Basic Law: Human Dignity and Liberty

 

HCJ 781-15

 

 

Petitioners:	Etai Arad Pinkas Yoav Arad Pinkas Anon. Anon. Anon. Anon. The Association of Israeli Gay Fathers Tammuz International Surrogacy Agency Ltd.

v.

 

Respondents:	1.  Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996
	2. The Knesset

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President M. Naor, Deputy President (emeritus) E. Rubinstein, Deputy President S. Joubran, Justice E. Hayut, Justice H. Melcer.

 

Petition for an Order Nisi

(Aug. 3, 2017)

 

 

Israeli Supreme Court cases cited:

 [1]      HCJ 8665/14 Desta v. Knesset, (Aug. 11, 2015) https://versa.cardozo.yu.edu/opinions/desta-v-knesset

[2]       HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration, (Feb. 9, 2009) https://versa.cardozo.yu.edu/opinions/karsik-v-state-israel

[3]       CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel (Sept. 1, 2005).

[4]       HCJ 466/07 Galon v. Attorney General, (Jan. 11, 2012) https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary

[5]       HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996, (Sept. 18, 2014) https://versa.cardozo.yu.edu/opinions/moshe-v-board-approval-embryo-carrying-agreements-under-embryo-carrying-agreements-law

[6]       HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015).

[7]       HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014).

[8]       HCJ 1213/10 Nir v. Knesset Speaker, (Feb. 23, 2012).

[9]       HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements, IsrSC 57(1) 419 [2002].

[10]     HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health, (Dec. 3, 2014).

[11]     LFA 1118/14 Anon. v. Ministry of Welfare and Social Services, (April 1, 2015).

[12]     HCJ 4406/16 Association of Banks in Israel v. Knesset, (Sept. 29, 2016).

[13]     HCJ 3734/11 Davidian v. Knesset (Aug. 15, 2012).

[14]     HCJ 4885/03 Israel Poultry Farmers Association v. Government, IsrSC 59(2) 14 [2004] https://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-v-government-israel

[15]     LCA 3145/99 Bank Leumi Ltd. v. Hazan, IsrSC 57(5) 385 [2003].

[16]     HCJ 6298/07 Ressler v. Israel Knesset, IsrSC 65(3) 1 [2012] https://versa.cardozo.yu.edu/opinions/ressler-v-knesset

[17]     HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior, IsrSC 61(2) 202 [2006] https://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-rights-israel-v-minister-interior

[18]     HCJFH 10007/09 Gluten v. National Labor Court, IsrSC 66(1) 518 [2013].

[19]     HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements (June 28, 2010).

[20]     HCJ 9134/12 Gavish v. Knesset, (April 21, 2016) https://versa.cardozo.yu.edu/opinions/gavish-v-knesset

[21]     HCJ 10662/04 Hassan v. National Insurance Institute,  (Feb. 28, 2012) https://versa.cardozo.yu.edu/opinions/hassan-v-national-insurance-institute

[22]     HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 [2006].

[23]     LFA 7141/15 A. v. B., (Dec. 22, 2016).

[24]     CFH 1892/11 Attorney General v. Anon., IsrSC 64(3) 356 [2011].

[25]     LFA 5082/05 Attorney General v. Anon., (Oct. 26, 2005).

[26]     CA 50/55 Hershkovitz v. Greenberger, IsrSC 9 791 [1955]. https://versa.cardozo.yu.edu/opinions/hershkovitz-v-greenberger

[27]     HCJ 11437/05 Kav LaOved v. Ministry of the Interior, IsrSC 634(3) 122 [2011].

[28]     HCJ 2245/06 Dobrin v. Israel Prisons Service, (June 13, 2016) https://versa.cardozo.yu.edu/opinions/dobrin-v-israel-prison-service

[29]     CFH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661[1996] https://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0

[30]     HCJ 4077/12 A. v. Ministry of Health, (Feb. 5, 2013) https://versa.cardozo.yu.edu/opinions/doe-v-ministry-health

[31]     A. & B., Prospective Adoptive Parents of a Minor v. Biological Parents, IsrSC 60(1) 124 [2005].

[32]     HCJ 3752/10 Amnon Rubinstein v. Knesset, (Sept. 17, 2014).

[33]     HCJ 5304/15 Israel Medical Association v. Knesset, (Sept. 11, 2016) https://versa.cardozo.yu.edu/opinions/israel-medical-association-v-knesset

[34]     HCJ 5239/11 Avneri v. Knesset, (April 15, 2015) https://versa.cardozo.yu.edu/opinions/avneri-v-knesset

[35]     LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co., (Dec. 20, 2010).

[36]     LCA 8233/08 Kovashi v. Adv. Eyal Schwartz, IsrSC 64(2) 207 [2010].

[37]     CA 3213/97 Nakar v. Local Planning and Development Council Herzliya, IsrSC 53(4) 625 [1999].

[38]     HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister, (Nov. 30, 2006).

[39]     HCJ 1756/10 Holon Municipality v. Minister of the Interior, (Jan. 2, 2013).

[40]     CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd., (Nov. 16, 2010).

[41]     HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs, (Aug. 11, 1998) https://versa.cardozo.yu.edu/opinions/israel-womens-network-v-minister-labor-social-affairs

[42]     HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56(3) 640 [2002].

[43]     CA 4239/15 Dor Alon Energy Israel 1998 Ltd. v. State of Israel, Tax Authority, (March 29, 2017).

[44]     HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister, IsrSC 58(3) 503 [2004].

[45]     CA 420/83 Ashur v. Migdal Insurance Co. Ltd., IsrSC 44(2) 627 [1990].

[46]     HCJ 5087/94 Zabaro v. Minister of Health, (July 17, 1995).

[47]     CFH 2121/12 Anon. v. Dayan Urbach, IsrSC 67(1) 667 [2014] https://versa.cardozo.yu.edu/opinions/anonymous-v-orbach

[48]     CA 9183/09 Football Association Premier League Ltd. v. Anon., (May 13, 2012).

[49]     HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security, (June 13, 2017).

[50]     AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa, (Feb. 2. 2012).

[51]     HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights v. Ministry of Social Affairs, (June 4, 2013) https://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-minority-rights-israel-v-ministry-social-affairs

[52]     HCJ 6698/95 Ka’adan v. Israel Land Administration, IsrSC 54(1) 258 [2000] https://versa.cardozo.yu.edu/opinions/ka%E2%80%99adan-v-israel-land-administration

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

[54]     HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 [2009] https://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-minister-finance

[55]     HCJ 566/11 Mamet Megged v. Minister of the Interior, (Jan. 28, 2014).

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

[57]     HCJ 98/69 Bergman v. Minister of Finance,  IsrSC 23(1) 693 [1969] https://versa.cardozo.yu.edu/opinions/bergman-v-minister-finance

[58]     AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 [2010] https://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-jerusalem-municipality

[59]     HCJ 2078/96 Vitz v. Minister of Health, (Feb. 11, 1997).

[60]     LAA 919/15 A. v. B., (July 19, 2017).

[61]     LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd., (Nov. 16, 2011) https://versa.cardozo.yu.edu/opinions/prozansky-v-layla-tov-productions-ltd

[62]     FH 25/80 Katashvili v. State of Israel, IsrSC 35(2) 457 [1981].

[63]     HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health, (3.12.2014).

[64]     HCJ 8893/16 Cabel v. Minister of Communication, (8.1.2017).

[65]     HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services, (May 5, 2010 and Nov. 11, 2010).

[66]     HCJ 8300/02 Nasser v. Government of Israel, (22.5.2012).

[67]     HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying Agreements, (26.7.2011).

[68]     HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services, (Sept. 17, 2017).

[69]     CA 488/77 A. v. Attorney General, IsrSC 32(3) 421 [1978].

[70]     HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion, IsrSC 47(5) 485 [1993].

 

 

PARTIAL JUDGMENT AND DECISION

Deputy President S. Joubran:

1.         The petition before us seeks to extend access to the Israeli surrogacy arrangement  primarily regulated by the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996 (hereinafter: Agreements Law), such that it would also apply to same-sex couples and to single individuals, with or without a genetic link to the child.

2.         The petition was filed at the beginning of 2015, and two hearings were held before an expanded bench of this Court, and supplemental pleadings were submitted, such that the petition was ripe for decision. However, on July 17, 2017, Respondent 1 submitted a notice providing updated details concerning the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill). This Bill was introduced in the Knesset on  July 5, 2017, and passed its first reading on July 17, 2017. In its updating notice, Respondent 1 explained that the Bill deals, inter alia, with extending access to Israeli surrogacy agreements, and asked that we rule that, in light of the introduction of the Bill, the petition does not show cause for judicial intervention. In their response of July 21, 2017, the Petitioners contended that the petition should be addressed immediately, in accordance with the current legislative situation, and that in view of the ongoing plight of the Petitioners – some 21 years after enactment of the Law – there is no justification for delaying for an additional, lengthy period for legislative developments. They also emphasize that the Bill relates to the access of genetically-related single women to surrogacy agreements, but does not provide a response for the petitioners in this petition.

3.         As will be explained below, in view of the fact that the Bill recently passed its first reading, on the assumption that the legislative process will proceed at a suitable pace, and in light of the judicial restraint required in sensitive matters such as the matter at hand, we are satisfied that the legislature should be granted a certain amount of time in which to complete that legislative process prior to our deciding on the merits of the petition as a whole. However, since the principled arguments of the parties concerning the points of contention have already been heard, it is already possible, in our opinion, to decide on parts of the petition, and it particular, on the arguments of Petitioners 5-6 (hereinafter: the Petitioners) that it should be permissible to enter into a surrogacy agreement in the absence of any genetic link between the prospective parent or prospective parents and the newborn.  In my opinion, even though the Petitioners’ argument that the requirement for a genetic link violates the right to parenthood has merit, this violation meets the conditions of the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty, and as such, the arguments on this matter must be dismissed.

My opinion will be presented in two parts: the first part will address the decision to postpone deciding on the petition in the matter of extending access to surrogacy to family units that are not presently included; the second part will present a partial judgment that dismisses the arguments for striking down the requirement of a genetic link in surrogacy procedures, as will be explained below.

Postponement of the Decision on the Petition

4.         As I mentioned above, recently – on July 5, 2017 – a Government bill to amend the Agreements Law was introduced in the Knesset. This proposal passed its first reading in the Knesset plenum on July 17, 2017, and at the time of writing this opinion, it is before the Knesset Labor, Welfare and Health Committee, awaiting preparation for the second and third readings. This proposal – should it be enacted as presently formulated – is expected to bring about a significant change in the current surrogacy arrangements, including allowing, for the first time, single women who have a genetic link to the child to enter into surrogacy agreements. As opposed to this, the formulation of the proposal provides no succor for what is sought by the Petitioners, since it does not extend the Law to same-sex couples and to single men. It should be noted that the said proposal is partially based on the Memorandum for Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) (Amendment – Definition of Prospective Parents and Conditions for Approval of the Agreement) Law, 2777-2016 (hereinafter: Memorandum of the Law), which was published on Oct. 30, 2016, and which similarly proposed expanding the definition of “prospective parents” in sec. 1 of the Agreements Law to include a single woman. Against the background of this development, I believe, as I wrote, that the legislature should be permitted to exhaust the legislative process before this Court decides on the full petition. Below I will briefly discuss my reasons for this.

5.         To begin, I will note that for this Court to accord status to a legislative initiative, and in particular, to postpone a hearing in proceedings that are affected by that initiative, is not a common phenomenon (for an in-depth analysis of the issue in modern legal literature, see Bell Yosef, A Mixed Blessing: The Normative Status of Legislative Initiatives 40 Tel Aviv L. Rev. 253 (2017) (Heb.) (hereinafter: Yosef). For a review of the judgments in which a legislative initiative has affected the course of the hearings in a petition before this Court sitting as the High Court of Justice, see ibid., at 262-66). In my view, this is not a bad thing, for it demonstrates a proper, healthy expression of the constitutional dialogue between the branches of government, in which each respects the sphere of activity of the other (see: HCJ 8665/14 Desta v. Knesset [1], para. 1, per Justice E. Hayut, paras. 1-7 per Justice H. Melcer (hereinafter: Desta); HCJ 2390/96 Karsik v. State of Israel, Israel Lands Administration [2], para. 6; CFH 5161/03 E.S.T. Projects and Human Resources Management Ltd. v. State of Israel [3] para. 13; Aharon Barak, The Judge in a Democratic Society, 376-89 (2004) (Heb.) (hereinafter: Barak, Judge in a Democratic Society); David Zecharia, The Pure Sound of the Piccolo: The Supreme Court, Dialogue and the Fight Against Terrorism, 241-43 (2012) (Heb.); Yosef, at 292-308; Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577 (1993); Peter W. Hogg & Allison A. Bushell, The Charter Dialogue between Courts and Legislatures (or perhaps The Charter of Rights isn't such a Bad Thing after all), 35 Osgoode Hall L. J. 75 (1997)). The words of Justice (emer.) E.E. Levy in HCJ 466/07 Galon v. Attorney General [4] (hereinafter: Galon case) are apt here:

[The] concept of constitutional dialogue [reflects] an understanding that protection of the values embodied in the constitution is an endeavor that is common to the three branches of government. This understanding does not undermine the democratic fundamental principles of the separation of powers and checks and balances; rather, it is concerned with furthering the dialogue between the branches of government and the mutual sensitivity between them … This understanding provides a foundation for the approach whereby it is best that engagement with constitutional questions should be the outcome of an honest, constant and continuous dialogue between the branches. This will likely be beneficial for the conduct of government in general. It may well be good for human rights. It is able to dispel antagonism, which is frequently connected to the notion of a right and protection of this right. It has the ability to aid in the development of additional constitutional rights. It allows basic rights to share the spotlight with other values, the promotion of which is important to the public (para. 42 of his opinion).

6.         In the circumstances of the present petition, since the legislature has expressed its intention to introduce changes into the Agreements Law and to consider the scope of the definition of “prospective parents”, a decision concerning the constitutionality of the formulation of the existing Law is liable to constitute undue interference in the sphere of activity reserved for it as the “senior partner” in legislation (Barak, The Judge in a Democracy, 380). The “right of way” that ought to be given to the legislature when we are dealing with a constitutional defect was discussed by my colleague, Justice E. Rubinstein in HCJ 5771/12 Moshe v. Committee for Approval of Embryo Carrying Agreements [5] (hereinafter: Moshe case), the backdrop to which was an earlier proposal to amend the Agreements Law. He wrote:

… the existence of current legislative proceedings to expand the existing circle of eligibility in the Embryo Carrying Law naturally and sensibly calls for judicial restraint by this Court, so that it will not snap at the heels of the legislature …. Of course, if ultimately there is no legislative process, constitutional judicial intervention must not be ruled out …. However, the appropriate port of call for such changes is first and foremost the legislature, and the existence of advanced legislative processes warrants such judicial restraint (para. 46 of his opinion; and see para. 17 of Justice Hayut’s opinion).

7.         Moreover, in my opinion, making a decision on this petition on the matter of expanding access to surrogacy at this time raises practical difficulties. This is because the normative framework on which this Court will base its decision is liable to change within a short time,  which would render our determinations, and any relief that may be given, purely theoretical. Moreover, a decision on the petition after the legislative process has been completed will ensure that the resources of this Court will be devoted to an issue that has practical application (cf: Yosef,  284-86).

8.         The Court must certainly exercise caution in postponing its decision on a pending petition due to a legislative initiative. There may be circumstances in which it is inappropriate to adopt such a course, whether because the postponement is liable to severely harm the petitioners or to allow a wrong requiring immediate remedy to persist, or whether because the chances of the legislative initiative maturing into a change in the normative framework are slim. In a certain sense, the major consideration in this matter appears to me to be similar to the criteria for examining a claim of ripeness in constitutional law. As I have pointed out on more than one occasion, a decision on this argument ought to be made by balancing the benefits of addressing the matter confronting this Court in another forum (in our case – the legislature) against the anticipated harm to the petitioners by allowing the existing normative situation to persist (cf. HCJ 3166/14 Gutman v. Attorney General [6], para. 5 of my opinion; HCJ 2311/11 Sabah v. Knesset [7], para. 7 of my opinion (hereinafter: Sabah case); HCJ 1213/10 Nir v. Knesset Speaker [8], para. 18 of my opinion (hereinafter: Nir case)). Therefore, I will now examine the different aspects of the legislative initiative before us, while addressing the primary criteria that have been proposed in the academic literature on this matter (see: Yosef , 301-18) and explaining why, in my view, the benefits outweigh the harm.

9.         I will first look at the legislative process concerning the matter before us. It is evident that this is not some trifling initiative that has been abandoned over the course of time. The Bill was introduced by the Government, and passed its first reading in the plenum with a majority of 12 to 1, with members of both the coalition and the opposition voting for it, even though the latter expressed reservations about the lack of a response to same-sex couples in the proposal (see: Minutes of Session no. 254 of the 20^th Knesset, 205-217 (July 17,.2017)). In the said circumstances, in my view, we  should consider the official status of the initiative and the possibility that it will indeed develop into a legislative amendment (cf: Yosef, 313-315). Moreover, the Bill has recently moved forward, and currently appears on the legislative agenda, thus increasing the concern about undermining a legislative process in its initial stages (cf: Yosef, 309-10).

10.       In their response to the updating notice of Respondent 1, the Petitioners note the concurrence between the progress in the legislative process and the course of the hearing on this petition. Indeed, it is evident that the legislative memorandum was published between the two dates for oral hearings on this petition, and that the Bill was submitted to the Knesset after the conclusion of the hearings and after the parties had submitted all their pleadings,  while this Court was deliberating the matter. According to the Petitioners: “It is difficult not to feel some discomfort in view of this conduct.” I am myself surprised that it was not possible to advance a legislative process like the one before us over the course of years, particularly in view of the explicit determination of Justice M. Cheshin in 2002 in HCJ 2458/01 New Family v. Committee for Approval of Embryo Carrying Agreements [9] (hereinafter: New Family case), according to which the distinction made by the Agreements Law between women who are in a relationship and single women is discriminatory (ibid., paras. 40-42). However, whatever mistakes were made in the past, my position looking forward is that there is nothing illegitimate in advancing a legislative initiative in response to or in connection with proceedings that are under way in this Court – as long as the motives are relevant and worthy. In this context, Prof. Barak’s words are apt:

In my view, legislation in the course of a pending judicial process does not harm the Court and the mutual respect to which the branches of government are committed. If the legislature concludes that a law is not constitutional, it is not required to wait for the Court to rule on the matter. This is also the case when the legislature concludes that the existing legislation is inappropriate, and should be changed. In such situations, there is no disrespect of the Court when the legislature seeks to have its say first, without waiting for a judicial decision and without harming the party whose matter is before the court. As opposed to this, the judiciary would be severely undermined if the Knesset were to make a decision intended to influence the discretion of the judges in a matter pending before the Court (Barak, Judge in a Democratic Society, 389; see also: Yosef, at 299).

However, the situation in the present petition is more complex, inasmuch as the legal defect that the legislature is correcting is more limited in scope than Petitioners’ objection, and therefore, even if the legislative process is completed, it will not necessarily obviate a decision on the petition. In these circumstances, Prof. Barak’s comment at the end of the above passage is doubly relevant, and indeed, one must avoid a scenario of repeated requests for postponements to allow for completion of the legislation, with the anticipated legislative amendment becoming a means at the service of the Respondent. For this reason, I would propose to my colleagues that we allocate a reasonable period of time after which the State will be required to provide an update concerning the legislative process. Obviously, a rate of progress that does not comport with the importance of the process, taking into account its complexity, will attest to a lesser degree of commitment to its advancement than that attributed to it at this stage, and will also lessen the justification for allowing extra time for its completion, despite the fundamental difficulties raised by this petition (cf: HCJ 6665/12 E-Cig Ltd. v. Director General of the Ministry of Health [10], para. 27).

11.       I will now proceed to examine the nature of the matter under discussion, and its ramifications for the appropriate attitude to the legislative initiative and the benefit that may  derive from its completion. In particular, I will discuss the substantial complexity on two levels: the professional level and the level of values.

12.       On the professional level, it is patently clear that the Agreements Law reflects a complex legislative arrangement based on a system of balances and monitoring mechanisms. This system constitutes the product of lengthy, meticulous legislative processes based on the recommendations of the public commission headed by Judge (emer.) Shaul Aloni, which studied the subject of in vitro fertilization, including the matter of surrogacy, and published its recommendations in 1994. Some two decades later, another public commission – the Mor Yosef Committee –  studied the subject of fertility and reproduction in Israel, including the issue of surrogacy and those who are eligible to avail themselves of it. On the basis of what has been said above, it is evident that the heart of the dispute in the present petition involves questions of expertise – a fact that attests to its considerable complexity from the professional perspective.

13.       At the level of values, the range of medical reproductive techniques gives rise to various social, moral, ethical, religious and legal problems concerning the status of those who contribute gametes to the reproductive process, and of the surrogate mother, as well as broad social implications that may arise from the use of these means (see, in depth: Benzion Schereschewsky  & Michael Corinaldi, Family Law, vol. 2, 979-1006 (2016) (Heb.); Pinhas Shifman, Family Law in Israel vol. 2, 101-35 (1989) (Heb.); Janet L. Dolgin & Lois L. Shepherd, Bioethics and the Law 94-321 (3^rd ed., 2013) (hereinafter: Dolgin & Shepherd). Private surrogacy agreements in themselves are a subject of legal, academic, social and public discussion revolving around the physical, psychological and familial difficulties of the surrogate mothers (Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 480-85 (2013) (Heb.); Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1928-32 (1987); Stephen Wilkinson, The Exploitation Argument against Commercial Surrogacy, 17 Bioethics 169 (2003); June Carbon & Judy Lynee Madeira, The Role of Agency: Compensated Surrogacy and the Institutionalization of Assisted Reproduction Practices, 90 Wash. L. Rev. Online 1, 13-19 (2015)), and on the compatibility of such agreements with public policy (see and cf.: LFA 1118/14 Anon. v. Ministry of Welfare and Social Services [11] para. 3 per Justice H. Melcer (April 1, 2015) (hereinafter: Anon. case); New Family case, para. 39 per Justice M. Cheshin; Dorit Shapira and Yosef Shapira, A Decade to the Embryo Carrying (Agreement Authorization & Status of the Newborn Child) Law, 5756-1996: The Reality and the Ideal, 36 Medicine and Law 19, 29-32 (2007) (Heb.); Ruth Zafran, The Family in the Genetic Era – Definition of Parenthood in Circumstances of Artificial Reproduction in a Test Case, 2 Din u-Devarim 223 (2006) (Heb.); Hila Keren, Contract Laws from a Feminist Perspective 273-75 (2004) (Heb.); Report of the Public Professional Committee for the Examination of the Subject of In Vitro Fertilization 48-49 (1994) (Heb.) (hereinafter: Aloni Commission); Deborah S. Mazer, Born Breach: The Challenge of Remedies in Surrogacy Contracts, 28 Yale J.L. & Feminism 211, 222-28, 231-38 (2016); the position of the Supreme Court of the State of Tennessee, United States, which allowed the enforcement of surrogacy agreements subject to various restrictions: In re Baby, 447 S.W.3d 807, 827-30, 832-33 (2014); the prohibition on the enforcement of surrogacy agreements except for allowing enforcement of the amount of compensation for the surrogate mother in New South Wales, Australia – Surrogacy Act 2010, §6; and section 541 of the Civil Code that prohibits the enforcement of surrogacy agreements: Droit de la famille -151172, 2015 QCCS 2308 (canlii, 5.20.2015), § 111).

14.       As we therefore see, the complexity presented by the Petitioners’ requested expansion is not inconsiderable in view of the range of professional and principled considerations it raises.  Justice M. Cheshin commented on this in the New Family case, stating:

… surrogacy is a new phenomenon, and the unknown exceeds the known in its ramifications for human life – in terms of health, emotion, society, religion and law. The process of surrogacy involves difficult human issues … with the passage of time and the amassing of knowledge and experience, it will be appropriate to revisit the subject (at 457-62).

Indeed, a great deal of time has passed since the advent of Israeli regulation of surrogacy and the judgment in the New Family case. Over the years, scientific knowledge on the subject has increased and essential experience has been accumulated by the professional bodies tasked with its realization. While the passage of time has indeed lessened the complexity discussed above, it cannot entirely eliminate it.

15.       In my opinion, this complexity reinforces the inappropriateness of deciding this petition at this time (cf: Yosef, 318). As we have often noted, developing policy, particularly policy in regard to sensitive issues at the heart of the public agenda and matters of professional expertise, is not the job of this Court, which lacks the resources of professional knowledge available to the legislature. This is evident, for example, in the restrained approach adopted by this Court in regard to legislation concerning socio-economic policy, which similarly involves professional considerations that are beyond the Court’s area of expertise (see, e.g.: HCJ 4406/16 Association of Banks in Israel v. Knesset [12], para. 39, per my colleague President M. Naor (hereinafter: Association of Banks case); HCJ 3734/11 Davidian v. Knesset [13], para. 39, per my colleague President M. Naor (15.8.2012); HCJ 4885/03 Israel Poultry Farmers Association v. Government [14], 60; CLA 3145/99 Bank Leumi Ltd. v. Hazan [15], 406-09), as well as in the willingness of this Court to defer deciding upon petitions that concern matters of broad public concern, such as the deferment of the military service of full-time yeshiva students (see: HCJ 6298/07 Ressler v. Israel Knesset [16], paras. 3-4, per President D. Beinisch, and the constitutionality of the Citizenship and Entry into Israel (Temporary Provisions) Law, 5763-2003 (see: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights v. Minister of Interior [17], para. 16, per President A. Barak (hereinafter: Adalah case)).

This does not, of course, detract from the authority of this Court to examine the constitutionality of legislation that is brought before it, and cure possible constitutional defects. This is not one of those cases in which the complexity of the issue justifies our total refusal to address it on the merits (cf: HCJFH 10007/09 Gluten v. National Labor Court [18], per President A. Grunis (hereinafter: Gluten case); for a discussion see: Yosef, 286-88). However, due to the separation of powers and the institutional differences that I discussed, I believe that it is better if the legislature first address surrogacy arrangements, and amend the law in light of its understanding and considerations. This adjournment will also allow the Petitioners, and their representatives in the legislative branch, to participate in the parliamentary and public conversation on amending the law, and try to influence its outcome. Through this process it may be possible to resolve, or at least moderate, the problems in the existing legal situation – which I will address at the end of my opinion – and yield a result in which I believe all the parties can profit. However, if these problems remain and the Petitioners insist on their arguments, we will decide upon the constitutionality of the new arrangement.

16.       As opposed to the weighty considerations that I enumerated stands the harm to the Petitioners. It should be stated from the outset that this petition is not a sporadic legal performance. Rather, it lies at the heart of a long, persistent, struggle for equality and for recognition on the part of the LGBT community in a range of areas of life, and in particular in all that concerns the right to become a parent (for a discussion of the various aspects of this issue see, e.g.: Ayelet Blecher-Prigat and Ruth Zafran, "Children are Joy": Same-Sex Parenthood and Artificial Reproductive Technologies, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 395 (Heb.) (hereinafter: Blecher-Prigat & Zafran); Zvi H. Triger and Mili Mass, The Child in her Family: A Necessary Turn Towards LGBT Adoption in Israel, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law (Einav Morgenstern, Yaniv Lushinski & Alon Harel eds., 2016) 437  (Heb.) (hereinafter: Triger & Mass)). There is therefore no denying that postponing the decision on the petition is very significant for the Petitioners, as well as for many others of the Israeli public, whether they are members of the community itself or other citizens who identify with their pain. This is due to the strong desire of men and women of the gay community to become parents, and the serious injury to their dignity as a result of the distinction drawn by the Law between them and heterosexual couples – a distinction of dubious relevance, as I will explain below. Moreover, the purpose of the postponement – giving the legislature time to complete the process of amending the Agreements Law – is not accompanied by good news for the Petitioners, for even in its proposed formulation, the Law will not provide relief for the distress of single-sex couples and of single men.

It is not superfluous to say that the disagreement around the accessibility of surrogacy to single-sex couples, as well as for single parents, is not new to us, and over the years it has brought various petitioners – including Petitioners 1-2 in the present case – to come knocking on the doors of this Court with a request for help.  Below I will briefly discuss the main milestones in this chronology in order to illustrate the many years of bitter experience suffered by the Petitioners and the community to which they belong with the subject before us, and the difficulty inherent in sending them away empty-handed – at least in the interim period until the legislative process is completed.

Already in the early years of this century, in the New Family case, this Court addressed the distinction drawn by the Law between single women and women in heterosexual relationships. Although the Court recognized the constitutional difficulties this distinction raises, it refrained from intervening in the Law in view of the need to acquire further experience from its implementation. About a decade later, Petitioners 1-2 in the present case petitioned this Court against the decision of Respondent 1 to deny them a surrogacy procedure because they did not, in its view, fall within the definition of “prospective parents” under the Agreements Law. That petition was dismissed with the consent of the parties, in view of the anticipated establishment of the Mor Yosef Committee (see: HCJ 1078/10 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [19]). The Moshe case, heard in this Court several years later, also raised questions involving the limited access to surrogacy, but the Court preferred to refrain from judicial intervention in the provisions of the Agreements Law due to the legislative proceedings that were underway at that time (see: ibid., para. 17 per Justice E. Hayut). Those proceedings, it is only fair to say, did not result in a legislative act.

17.       To summarize: we face a difficult choice, as it is said, “Woe unto me from my Creator [yotzri] and woe unto me from my inclination [yitzri]” (Babylonian Talmud, Berakhot 61a). On the one hand, there is considerable value in allowing the legislature time to complete the legislative process that it began,  which is now at an advanced stage and enjoys wide support in the Knesset. Allowing this time will allow for public debate of the sensitive issue in an institutional framework appropriate to its complexity, and will express an appropriate democratic constitutional approach in which the branches show a willingness to listen to one another and respect the sphere of authority of the other. On the other hand, postponing adjudication of the petition will extend the violation of the Petitioners’ rights,  the exalted constitutional status of which is not in doubt. This violation has affected them, and the community to which they belong, since the passage of the Agreements Law in 1996, and it constitutes only one of the many aspects in which Israeli law has not yet adapted itself to the reality of pluralistic life today.

18.       After having given serious thought to the matter, and not without hesitation, I have concluded that the time is not ripe for deciding on the matter of Petitioners 1-4, in light of the pending legislative proceedings in the Knesset, inter alia, on the question of the definition of “prospective parents” in the Agreements Law. I am certain that the legislature will be aware of the serious, on-going harm to the Petitioners, and will act with due dispatch to complete the legislative process. For this reason, I would recommend that we postpone hearing the petition for a six-month period, and that we order the Respondents to submit updated notice of the progress of the legislation no later than Feb. 4, 2018.

I will now proceed to the second part of the opinion – an examination of the constitutionality of the requirement of a genetic link in the surrogacy process.

The Requirement for a Genetic Link in the Surrogacy Process

19.       Medical procedures aimed at assisting fertilization for the purpose of pregnancy and birth have existed since the end of the eighteenth century, but recourse to these procedures became common only in the middle of the twentieth century, both in the wake of technological developments and in the wake of social changes (see: Ruth Zafran, Secrets and Lies: The Right of AID Offspring to Seek Out their Biological Fathers 35 Mishpatim 519, 527 (5765-2005) (Heb.) (hereinafter: Zafran, Secrets and Lies); Dolgin & Shepherd, at 321-28). To simplify the discussion, we can talk about four different links in the reproductive process that can be improved or replaced through medical procedures: the sperm, the egg, the fertilization process, and carrying the pregnancy by the woman (who is called a “surrogate”). Correspondingly, there are different medical procedures that can improve the quality of the sperm of the prospective father or allow for the use of a sperm donation in order to fertilize the egg. There are medical procedures that allow for ova to be extracted from the woman and fertilized outside of her body in order to overcome medical problems in fertilization; there are medical procedures that make it possible to donate a fertilized ovum and implant it in the womb of a woman who has not succeeded in becoming pregnant; and there are medical procedures for implanting a fertilized ovum into the womb of a woman who will serve as a surrogate. In other words, from a medical point of view, there are solutions that provide a response to various challenges in the reproductive process and allow for a child to be brought into the world without a genetic link to the prospective parent (Gaia Bernstein, The Socio-Legal Acceptance of New Technologies: A Close Look at Artificial Insemination, 77 Wash. L. Rev. 1035 (2002); Noa Ben-Asher, The Curing Law: On the Evolution of Baby-Making Markets, 30 Cardozo L. Rev. 1885 (2009) (hereinafter: Ben-Asher, The Curing Law); on more innovative reproductive possibilities and the possibility of legal adoption, see: Erez Aloni, Cloning and the LGBTI Family: Cautious Optimism, 35 N.Y.U Rev. L. Soc. Change 1, 14-17, 18-36 (2011); and see Recommendations of the Public Committee for the Examination of the Legislative Regulation of the Subject of Fertility and Reproduction in Israel (hereinafter: Mor Yosef Committee). This possibility is not purely theoretical, as transpires from the case of Anon. that was heard recently by this Court. That case concerned a transaction entered into by a single woman who obtained an egg donation and a sperm donation, implanted the fertilized egg in a surrogate, and sought to be recognized as the single parent of the child, even though she had no genetic link to the child. The point is – and as decided there – such a request does not comport with the provisions of the Law. Section 2(4) of the Agreements Law conditions entering into a surrogacy agreement on the sperm being that of the prospective father; and secs 6(b), 11 and 13 of the Ova Donation Law, 5770-2010 (hereinafter: Ova Donation Law) allow women to receive egg donations for the purpose of a surrogacy process only in accordance with the provisions of the Agreements Law. For this reason, it was not possible to recognize the process of parenthood initiated by the petitioner in that case as a legal surrogacy procedure. However, whereas the Anon. case dealt with the possibility of retroactive recognition of the process described, and in doing so raised constitutional questions, in the present case the Petitioners have grabbed the bull by the horns, and they ask that we look into the very constitutionality of the arrangement. I will discuss this below in the context of the requirement for a genetic link, and in that context only.

The Arguments of the Parties

20.       Petitioners 5-6 are single women who seek to realize their right to become parents with the help of the surrogacy process. Due to medical problems, however, not only are they not able to carry an embryo in their wombs, but they also cannot provide their own eggs. Their request, therefore, is to enter into a surrogacy agreement without there being any genetic link between themselves and the child. On Oct. 31, 2013, Petitioner 5 asked the Approvals Committee that had been established pursuant to the Agreements Law to approve her entering into a surrogacy agreement. Her request was dismissed in limine on Nov. 24, 2013, since according to the Committee, the Petitioner did not fall within the definition of “prospective parents” as provided in the Law. The Committee was also of the opinion that because one of the requirements of the Law is the existence of a genetic connection between the prospective parents and the child-to-be, the Law does not allow for use of a sperm donation as well as an ovum donation for the purpose of the procedure.

On Oct. 31, 2014, counsel for the Petitioners submitted a letter on their behalf and on behalf of the other petitioners in the petition to the (then) Minister of Health, to the person responsible for the Agreements Law in the Ministry of Health, to the Attorney General, to the Legal Adviser of the Knesset and to the Legal Adviser of the Ministry of Health, in which she requested approval for them to submit their requests to enter into an agreement, and for these requests to be considered on their merits. In her response dated Jan. 4, 2015, the Legal Adviser of the Ministry of Health explained that it was not possible to respond positively to the Petitioners, and that the way to change the situation was by means of a legislative amendment. In view of this, the Petitioners submitted the present petition.

21.       The Petitioners contend that denying the possibility of their bringing a child into the world with the assistance of a surrogate constitutes a violation of their right to equality and their right to become parents – a violation that does not meet the criteria of the limitations clause. According to them, in the matter of surrogacy, there is no room to distinguish between a woman who is not capable of carrying a pregnancy to term but who is able to provide her own eggs for the fertilization process, and a woman who cannot  carry a pregnancy to term and is medically unable to use her own eggs for the fertilization. Their position is that in both cases, the right to parenthood is violated, and the state must repair this violation without distinction. The Petitioners point out that Israeli law recognizes parenthood in the absence of a genetic connection in several contexts: the Ova Donation Law allows a single woman to receive a donation of an ovum in order to become pregnant (where she is the one who carries the pregnancy); the Agreements Law allows a woman to be recognized as the mother when the child is born through surrogacy and there is a genetic link only to her partner, the prospective father; and the adoption procedures in the Child Adoption Law, 5741-1981, by their nature establish parenthood without a genetic connection. The Petitioners also think that the judgment in the Anon. case determined the issue of recognition of private surrogacy that is not in accordance with the Agreements Law, and that it therefore says nothing about the possibility of undergoing a controlled process of surrogacy without a genetic link, and in particular, it does not rule out this possibility.

As opposed to this, the Respondents insist that a parental connection in the absence of a genetic link is a complex matter that should addressed by legislation. According to them, this is all the more so in regard to surrogacy, which makes it possible to create a child with  no physiological link to the prospective parents. As a natural outcome, they argue, doing away with the requirement for a genetic link between the prospective parents and the child will turn the surrogacy process into a process resembling adoption. Here, the respondents refer to the position of the Mor Yosef Committee, which stressed the importance of the genetic link in fertilization procedures.

Deliberation and Decision

22.       As we know, the constitutional examination comprises three main stages: examination of the existence of a violation of a constitutional right, examination of the constitutionality of the violation in light of the limitations clause, and examination of the appropriate constitutional remedy. If there is no violation, or if the violation is constitutional, there is no need to move to the next stage of the examination (see: HCJ 9134/12 Gavish v. Knesset [20], para. 25 per President M. Naor; HCJ 10662/04 Hassan v. National Insurance Institute [21], para. 24, per President D. Beinisch, and the opinion of Justice U. Vogelman; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [22], paras. 20-21, per President A. Barak (hereinafter: Movement for Quality Government case). I shall discuss these stages in the above order.

23.       First, does the existing surrogacy arrangement violate the constitutional rights of Petitioners 5-6? As I shall immediately explain, in my view there is no violation of their right to equality. In my opinion, for the purpose of the process of surrogacy, there is a relevant distinction between prospective parents who are capable of having a genetic link to the child, and prospective parents who are unable to do so. As opposed to this, I am of the opinion that there is indeed a violation of the right of the Petitioners to parenthood.

The Alleged Violation of the Right to Equality

24.       The starting point is that there is a difference between people who are able to donate gametes (sperm or ovum) for the sake of creating an embryo, and those who are not able to donate gametes for the purpose of creating an embryo. This difference is a medical-biological difference that stems from the bodily capabilities of each person (on the developments in genetic research and their possible effect on the issue, see: Jennifer S. Hendricks. Genetic Essentialism in Family Law, 26 Health Matrix: The Journal of Law-Medicine, 109, 122 (2016); Jennifer S. Hendricks, Not of Woman Born: A Scientific Fantasy, 62 Cas. W. Res. L. Rev. 399 (2011); Rajesh C. Rao, Alternatives to Embryonic Stem Cells and Cloning: A Brief Scientific Overview, 9 Yale J. Health Pol'y L. & Ethics 603 (2009); Dolgin & Shepherd, 370-75). In the present matter, the question arises whether in the framework of the regulation of surrogacy agreements, there is a relevant distinction between a person who is able to provide gametes that will be used for the purpose of giving birth and will ensure that the child bears her genes, and another person who is unable to do so. The Petitioners argue that the condition whereby the prospective parent must supply his/her own genetic material in order for a surrogacy agreement to be approved, (i.e., a requirement for a genetic link) constitutes unlawful discrimination. I am of a different opinion. In my view, this is a distinction that is relevant and not discriminatory. The main reasons for this position are the recognition of the importance of the genetic link between parents and children in general, and the importance of this link in surrogacy in particular, as I will explain below.

25.       The genetic link between parents and their children is of considerable importance, and it has deep historical roots in most known human cultures. The words of Dr. Yehezkel Margalit on this link are apt here:

There is no material doubt that this is the most ancient model, which in almost every culture acquired historical and mythological exclusivity in determining legal parenthood – both fatherhood and motherhood. It should be stressed that even the critics of this model do not deny the very deep importance and significance of the genetic element (Yehezkel Margalit, Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553, 566-67 (2012) (Heb.).

The importance of the genetic link to the relationship between parents and children is a common thread in Israeli law. The legislature has referred to this link in several legislative acts: (see: secs. 3(a) and 9 of the Children’s Foster Care Law, 5776-2016; secs. 3(c) and 10(2) of the Succession Law, 5725-1965; sec. 6 of the Population Registry Law, 5725-1965; sec. 14 of the Legal Capacity and Guardianship Law, 5722-1962; secs. 1(a) and 3(a) of the Family Law Amendment (Maintenance) Law, 5719-1959; sec. 3(a) of the Women’s Equal Rights Law, 5711-1951; and arts. 5 and 9 of the Convention on the Rights of the Child, (concluded on Nov. 20, 1989, ratified on Aug. 4, 1991)); and this Court has mentioned several times the importance of the “voice of the blood” that symbolizes the genetic link between the child and parent (see, e.g.,: LFA 7141/15 A. v. B. [23], paras. 5-6 per Justice H. Melcer, and the references there (hereinafter: A. v. B. case); CFH 1892/11 Attorney General v. Anon. [24], per Justice E. Arbel (hereinafter: CFH 1892/11); LFA 5082/05 Attorney General v. Anon. [25], para. 5, per Justice A. Procaccia (hereinafter: LFA 5082/05); New Family case, para. 31, per Justice M. Cheshin; CA 50/55 Hershkovitz v. Greenberger [26], paras. 14-16, per Deputy President S.Z. Cheshin). I had the opportunity of relating to the matter in one of the cases, saying:

We must not forget the nature of the connection between a parent and his child. The connection of blood. The connection of life. The connection of nature … When we sever it, whether absolutely or relatively, we must act with great caution, taking into account the constitutional right of the parent, but on the other hand the constitutional rights of the child, the public interest, and sometimes the interest and even the right of the adoptive family, as may be appropriate (CFH 1892/11, para. 6 of my opinion).

26.       The elevated status of the genetic link has consequences for surrogacy, as emerged in the A. v. B. case. There, Justice Hendel noted three relevant links regarding surrogacy:  the genetic link, which is the connection between the prospective parent who contributed his or her genetic reproductive material and the child; the physiological link, which is the connection between the pregnant mother and the child; and the link to the link, which is the connection that a particular person has to the person with the genetic link to the child. It was explained there that the genetic link constitutes the basis for conferring the status of parenthood in the framework of the surrogacy process, and that it is a sine qua non for recognition of the link to the link. Justice Hendel explained that there is, indeed, also a physiological link – but its status in surrogacy is marginal, since this process, by its nature, separates the physiological mother (the surrogate) from the child (see, e.g., secs. 12-13 of the Agreements Law). Hence, in all that concerns the definition of parenthood in surrogacy, the genetic link is of great importance in the present legal situation.

The importance of the genetic link in surrogacy finds expression in several additional sources: the report of the Mor Yosef Committee, which found that surrogacy (as well as egg donation under the Ova Donation Law) is to be approved only on condition that one of the prospective parents has a genetic link to the child (see the Report, at 39-40, 62, 64); and see the Aloni Commission Report, 22-23, 48); in the language of sec. 2(4) of the Agreements Law; in the legislative history of the Agreements Law (see the minutes of session no. 430 of the 13^th Knesset, per the chairman of the Labor and Welfare Committee, Yossi Katz, and the Minister of Health Dr. Efraim Sneh (March 7, 1996) (hereinafter: minutes of session 430)); in the position of the State as presented to this Court (see secs. 47-49 of the Response of Respondent 1 to the amended petition); and in the bills to amend the Agreements Law that have been introduced in the Knesset in recent years (see: sec. 2(4) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment) (Amendment of the Definition of Prospective Parents and Conditions for Approval of Agreement) Bill, 5777-2017; sec. 3(2) of the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment – Extension of Eligibility for Surrogacy Processes and Extension of Protection of the Surrogate Mother) Bill, 5776-2016; Explanatory Notes to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014, and sec. 6(6) of this Bill; Explanatory Notes to the Bill, 1152, and sec. 2 of that Bill).

The importance of the genetic link in surrogacy has also been recognized in comparative law (see, in general: Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1066, 1082-93 and the references there; this is the position in South Africa (see: sec. 294 of the Children’s Act 38 of 2005; AB and Another v. Minister of Social Development [2016] ZACC 43, §§ 276-278 (hereinafter: AB case); in the UK – Human Fertilisation and Embryology Act 2008, art. 54(1)(b); in the Province of Alberta,  Canada (see: Family Law Act, Statutes of Alberta, 2003 Chapter F-4.5, § 5.1(d) (2016); in the State of South Australia (see: Family Relationship Acts 1975 – Sect 10HA § 2a(h)(2)); in the States of Virginia, Nevada and Maine in the United States (see: Alex Finkelstein et al., Surrogacy Law and Policy in the U.S – A National Conversation Informed by Global Lawmaking, Columbia Law School Sexuality & Gender Law Clinic 10, 55, 81-82 (2016); Nev. Rev. Stat. § 126.670, and in the European Court of Human Rights (see: Mennesson v. France (app. no. 65192/11, ECHR 2014); Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 195, 211). At the same time, it must be noted that some legal systems comprise arrangements that recognize surrogacy even without a genetic link. This is the case in the Canadian Province of British Columbia and in the Northwest Territories (see: Family Law Act [SBC 2011], C 25, §§ 20, 29; Children’s Law Act, S.N.W.T. 1997 §8.1(3)), in the State of California in the United States (see, e.g., Cal. Fam. Code §7960; and in further detail in the updating notice of the Petitioners), and in the States of Tasmania and Victoria in Australia (see: Assisted Reproductive Treatment Act 2008 No. 76 of 2008, §§ 3, 39-45 (Victoria); Surrogacy Act 2012 (No. 34 of 2012), §3 (Tasmania)).

27.       The consistent requirement of Israeli law and of most Western states for the existence of a genetic link between the prospective parents and the child in the surrogacy process has its logic. It is true that there are other significant connections between parents and children – emotional and psychological connections that build up over time. However, I believe that for the purpose of approving the surrogacy process, there is a relevant difference between the existence of those connections alone, which are present in every connection between parents and children, and the existence of a genetic link in addition to those connections. This is due, inter alia, to the special nature and the complexity of surrogacy for all those involved in it, and to the potential it harbors for causing harm unless it is properly regulated (see and cf: para. 42 below; AB case, paras. 177-85, 283-87, 293-94; on concern for “commercialization” of the production of children as a result of under-regulation of the surrogacy process, see: Elizabeth S. Anderson, Is Women's Labor a Commodity? 19 Phil. & Pub. Aff. 71, 75-80 (1990); Richard J. Arneson, Commodification and Commercial Surrogacy, 21 Phil. & Pub. Aff. 132, 150-51 (1992)). Now, the absence of a genetic link does not, per se, prevent recourse to assisted medical reproductive techniques that are not surrogacy. Even in the absence of such a link, a particular woman may seek the assistance of some reproductive technique, as long as she is able to have another, additional link to the child – for example, a physiological link (being pregnant with the child) or a link to a link (when there is a genetic link to the spouse who is the prospective parent). However, as I shall explain below, in the absence of the possibility of an additional link to the child in the surrogacy process, the importance of the genetic link rises to the point of exclusivity.

28.       Moreover, surrogacy is a sensitive process that brings together new medical techniques and the ancient societal need for survival – whose importance cannot be exaggerated – by the birth of children. This meeting requires extreme caution. Although surrogacy is becoming ever more common with the passage of time, it still raises various moral, ethical, religious and legal difficulties. However, these difficulties are somewhat tempered by the combination of this new reproductive technique with the recognized, central element of reproduction, i.e., the genetic link. What are the implications of this? Given the importance of reproduction for the existence and continuation of society, given the novel nature of the process of surrogacy and its possible effects on traditional reproduction, and given that the element of the genetic link is an established social element at the very heart of society, I believe that a distinction on the basis of a genetic link is relevant in the regulation of an assisted reproductive technique such as surrogacy. I would emphasize that this is not an expression of a position on the relationship between reproductive techniques and social conceptions in general – especially in regard to harm to groups that have been viewed as “suspect” – which requires a more careful study. What I have said is confined to the question of the relevance, solely in the context of surrogacy, of the distinction between prospective parents who have a genetic link to the child and prospective parents who are not able to establish such a link. Israeli law does not view those who are unable to establish a genetic link to the child on the basis of producing gametes as a “suspect group”,  and without laying down hard and fast rules, I am also not convinced that this is a case of “disability” as reflected in the anti-discrimination laws (see, and cf: AB case, paras. 298-302; Ben-Asher, The Curing Law 1912-1916; Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent. L. Rev. 87, 91-93, 100-02 (2017)). It is therefore evident that when we are dealing with assisted medical reproductive techniques like surrogacy, a distinction on the basis of the existence of a genetic link constitutes, as stated, a relevant distinction.

29.       It emerges from the above that both Israeli law and most Western states that permit surrogacy regard the genetic link between prospective parents and the child as an essential condition for this process – despite the harm it entails to those people whose personal circumstances prevent them from providing the reproductive material that will allow for a genetic link. It seems to me that on the basis of this common conception and the values underlying it, the requirement of Israeli law for a genetic link in the surrogacy process is not discriminatory, but rather it is based on material, relevant reasons. Therefore, I find that it does not violate the constitutional right of the Petitioners to equality, and I will proceed to examine the alleged violation of the other right – the right to become a parent.

The Alleged Violation of the Right to Become a Parent

30.       The right to parenthood has been recognized in Israel as a constitutional right that derives from human dignity (see, e.g.: HCJ 11437/05 Kav LaOved v. Ministry of the Interior [27], paras. 29-32 and 38-40 per Justice A. Procaccia, para. 4 of my opinion, and para. 6 per Justice E. Rubinstein; HCJ 2245/06 Dobrin v. Israel Prisons Service [28], para. 12 per Justice A. Procaccia (hereinafter: Dobrin case); CFH 2401/95 Nahmani v. Nahmani [29], 675-78, 719, 785 (hereinafter: Nahmani case)). There are two separate aspects to the right to parenthood: one is the right to realize parenthood, on which I have elaborated on other occasions and which does not lie at the heart of this petition (see: Adalah case, paras. 1-14 of my opinion); the other is the right to become a parent (see: Anon. v. Anon. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit; HCJ 4077/12 A. v. Ministry of Health [30] para. 29 per Justice E. Rubinstein (hereinafter: A. v. Ministry of Health); Moshe case, paras. 6-7 per Justice (emer.) E. Arbel; CFH 1892/11, paras. 4 and 6 of my opinion; LFA 377/05 A. & B. v. Biological Parents [31], paras. 7-9 per Justice A. Procaccia (hereinafter: Biological Parents case)). The right to become a parent realizes the right to family life, the right of autonomy of the individual, and the right to privacy (see: Moshe case, para. 26 per Justice E. Hayut; Biological Parents case, para. 7 per Justice A. Procaccia; A. v. Ministry of Health case, para. 32 per Justice E. Rubinstein, and para. 6 per Justice D. Barak-Erez; Nahmani case, para. 7 per Justice D. Dorner, para. 2 per President A. Barak; and see also: Aloni Commission, at 10-11; Daphne Barak-Erez, Symmetry and Neutrality: Reflections on the Nahmani Case, 20 Tel Aviv U. L. Rev. 197, 199-200 (1996) (Heb.)). Recently, a position has been expressed whereby the right to become a parent also stems from the right to liberty, as stated in sec. 5 of Basic Law: Human Dignity and Liberty (A.. v. B.. case, paras. 5-8 per Justice H. Melcer and the references there, paras. 11-13 per Justice I. Amit).

31.       The Petitioners’ argue that the requirement for a genetic link as provided in the Agreements Law affects their possibility of bringing a child into the world with the help of medical reproductive techniques, and particularly, the technique of surrogacy. I believe that this argument is correct. In my view, the scope of the right to become a parent extends to all the various medical techniques that assist reproduction. As such, this right also includes the possibility of becoming a parent by means of surrogacy. This position emerges both from the rulings of this Court (see: New Family case, paras. 31-32 per Justice M. Cheshin; A. v. Ministry of Health case, para. 27 per Justice E. Rubinstein, para. 6 per Justice D. Barak-Erez; Moshe case, para. 28 per Justice E. Hayut, paras. 6-7 per Justice (emer.) E. Arbel; Dobrin case, para. 15 per Justice A. Procaccia; and see reservations as to this decision in the Anon. case, para. 23 per Justice N. Hendel, and the references there); as well as from comparative law (see: European Court of Human Rights: S.H. v. Austria, App. No. 57813/00, §§ 81-82, ECHR 2011(hereinafter: S.H. case); Dickson v. United Kingdom, App. No. 44362/04 §§ 65-66, ECHR 2007; in the Constitutional Court of South Africa: AB case, paras 94, 110, 118, 121; in the Greek Constitution: European Parliament – Directorate General for Internal Policies, A Comparative Study on the Regime of Surrogacy in EU Member States, 277-78 (2013), and esp. note 513; and a combination of arts. 12(1) and 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights (signed Dec. 16, 1966, ratified Oct. 3, 1991), and on this matter see S.H. case, para. 9 of the minority opinion); also from academic research on the subject (see: Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. 2, 675-76 (2014) (Heb.); Aharon Barak, The Light at the End of the Tunnel and the LGBT Community in Israel, Vol. III, Selected Essays: Constitutional Inquiries 399, 402 (2017) (Heb.); Meir Shamgar, Issues on the Subject of Reproduction and Birth, 39 HaPraklit 21, 28 (1996) (Heb.); and from the approach of the public committees that examined matters of medical reproductive techniques (see: Aloni Committee, 13; Mor Yosef  Committee, 25).

32.       From all of the above it emerges that the Petitioners have a constitutional right to become parents with the assistance of medical reproductive techniques. This right is a relative one: it is limited by sub-constitutional arrangements, and particularly by the Agreements Law and the Ova Donation Law (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and paras. 25-26 per Justice E. Hayut; and see: Anon. case, para. 3 per President M, Naor; and see other limitations on aspects of the right to become a parent: A. v. Ministry of Health case, para. 51 per Justice E. Rubinstein, para. 11 per Justice D. Barak-Erez; and see AB case, paras. 237, 314-15). Below I will discuss whether this violation complies with the criteria of the limitations clause.

Limitations Clause

33.       As we know, the limitations clause in sec. 8 of Basic Law: Human Dignity and Liberty comprises four conditions: the violation must be by law or by express authorization in a law; the law must befit the values of the State of Israel as a Jewish and democratic state; the law must be for a proper purpose; and finally, the violation of the right must be proportionate (see: Desta case, para. 24 per President M. Naor; Sabah case, paras. 66-70 of my opinion; HCJ 3752/10 Rubinstein v. Knesset [32] paras. 66-67 per Justice (emer.) E. Arbel). I will now address the violations of the constitutional right of the Petitioners to become parents in light of these criteria.

34.       In the present matter, it is indisputable that the first condition is fulfilled, inasmuch as the violation of the protected right was effected by virtue of the Agreements Law. In my view, the Law complies with the second condition. The Agreements Law regulates and realizes both the right to become a parent with the assistance of medical reproductive techniques and protection of women who are pregnant in the framework of surrogacy (see, e.g., secs. 4(a)(2), 4(a)(3), (4(a)(4) of the Agreements Law) – and thus the Law promotes human rights. In these circumstances, and in view of the fact that this condition has not yet been sufficiently developed in the case law, it seems to me that the Agreements Law befits the values of the State of Israel as a Jewish and democratic state (see: HCJ 5304/15 Israel Medical Association v. Knesset [33], paras. 103-106 per Deputy President E. Rubinstein (hereinafter: Israel Medical Association case); HCJ 5239/11 Avneri v. Knesset [34], paras. 28-30 per Justice H. Melcer; Galon case, paras. 13-18, 27-31 per Justice (emer.) E.E. Levy, paras. 2, 8 of my opinion).

35.       The third condition examines whether the offending Law serves a proper purpose. I will first consider the purpose of the Agreements Law itself.  Justice M. Cheshin discussed the purpose of this Law in the New Family case, and ruled that its purpose was “to establish a comprehensive arrangement on the subject of surrogacy, and that there will be no surrogacy other than by virtue thereof […] to solve the problems of spouses, men and women, who are childless, and these problems alone (paras. 15, 18 of his opinion; and see the Moshe case, para. 44 per Justice E. Rubinstein). In my view, the purpose of the Agreements Law is broader than that determined by the late Deputy President M. Cheshin. My position is based on the subjective purpose of the Law, but mainly on its objective purpose. I shall explain.

36.       The subjective purpose of the Agreements Law may be inferred from two main sources. The first source is the language of the Law. Both the name of the Agreements Law and the broad areas regulated by the language of the Law – including approval of a surrogacy agreement (Chapter 2 of the Law), regulation of the status of the newborn, the surrogate mother and the prospective parents upon the birth of the child, which includes the link of the child to the prospective parents and severance of the link to the surrogate mother (secs.  4(a)(2), 4(a)(3), 4(a)(4) of the Law, and the criminal prohibition against surrogacy contrary to the provisions of the Law (sec. 19 of the Law) – attest to the legislative intention to permit surrogacy agreements, to regulate their conditions, to regulate the status of the child and its link to the prospective parents, and to assure the well-being of the surrogate mother. The second source is the legislative history. The explanatory notes to the Agreements Law reveal that “the proposed Law is intended to permit surrogacy agreements with certain limitations and in a controlled manner” (Explanatory Notes to the Agreements Bill, H.H. 259, 259) (hereinafter: Explanatory Notes to the Agreements Bill). Similarly, the Knesset members who voted on the Law in the second and third readings noted the regulatory purpose of the Law and its aspiration to realize constitutional rights. Thus, the Minister of Health, MK Dr. Ephraim Sneh, noted: “I, as initiator of this Law, insisted first of all that there be legislation, since there were those who wanted to allow some sort of free market in the State”. Thus, MK Yael Dayan, a member of the Labor and Welfare Committee of the Knesset, who worked on the Law, noted: “What is determinant with respect […] is the existence of a fundamental right, the right to be a parent […] in every case in which the right to motherhood is denied due to a physical handicap, due to the inability to become pregnant. This is a moral issue – a basic right of the first order” (minutes of meeting 430). What we see from the above is that the subjective purpose of the Law is to regulate surrogacy agreements in Israel, including the status of the prospective parents and their link to the newborn, and to realize the right to become a parent while preserving the dignity and the health of the surrogate. In addition, Justice M. Cheshin found that the intention of the legislature was also to restrict access to surrogacy so that only heterosexual couples would be eligible to avail themselves of this technique (see: New Family case, paras. 17-18 of his opinion).

37.       In order to determine the objective purpose of the Agreements Law, we will look at the interpretive presumptions. In the present matter, two of these presumptions are particularly relevant: the presumption that the law aspires to protect and realize human rights, and the presumption concerning legislative harmony. Regarding the first, the Agreements Law permits and regulates the realization of the right to become a parent with the assistance of medical reproductive techniques, and in particular, the technique of surrogacy. Similarly, the Agreements Law includes protection of the dignity and well-being of the surrogate mother – and in this way it realizes her constitutional rights in the framework of this process.

The second presumption concerning legislative harmony says that a piece of legislation should be interpreted in accordance with the legislative tapestry into which it is woven (LAA 4021/09 Tel Aviv Municipal Tax Administration v. Michel Marsiah Co. [35], para. 32 per Justice E. Rubinstein; LCA 8233/08 Kovashi v. Adv. Eyal Schwartz [36], para. 37 per Justice E. Arbel ; CA 3213/97 Nakar v. Local Planning and Development Council Herzliya [37], 633-34. In this context I noted in one of the cases:

It is a well-known principle of our legal system that when the Court seeks to interpret any statute, it must examine legal arrangements that are materially related to the subject under discussion (in pari materia). Giving the identical interpretation to subjects in related areas realizes the principle of normative harmony (HCJ 6728/06 “Ometz”— Citizens for Good Governance and Social and Legal Justice v. Prime Minister [38], para. 6 of my opinion).

This rule of interpretation tells us that different laws that pertain to the same matter or that have a similar or identical purpose (in pari materia) must be treated as one system of law with a comprehensive purpose, composed of different parts that complement each other: this is the legislative template. This legislative template has one main purpose, and every law that composes this template plays a different role in realizing the purpose of this template (see: HCJ 1756/10 Holon Municipality v. Minister of the Interior [39], para. 33 per Justice D. Barak-Erez (hereinafter: Holon Municipality case); CA 2449/08 Tuashi v. Mercantile Discount Bank Ltd. [40], paras. 22-26 of my opinion; HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Affairs [41], para. 42 per Justice M. Cheshin; Aharon Barak, Interpretation in Law: Statutory Interpretation 341-45 (5753-1993) (hereinafter: Barak, Statutory Interpretation) (Heb.)). This Court has recognized several legislative templates: thus, for example, the Hours of Work and Rest Law, 5711-1951, the Minimum Wage Law, 5747-1987, the Male and Female Workers Equal Pay Law, 5756-1996, the Employment of Workers by Manpower Contractors Law, 5756-1996, and the Foreign Workers Law, 5751-1991, all belong to one legislative template (see: Gluten case, paras. 11-12 of my opinion). It is similarly possible to identify a legislative template in the area of electronic media and radio broadcasts (see: HCJ 1030/99 MK Oron v. Speaker of the Knesset [42], paras. 16-22 per Justice T. Orr (hereinafter: Oron case); as well as in the area of environmental protection and prevention of pollution, see: CA 4239/15  Dor Alon Energy Israel 1998 Ltd. v. Tax Authority [43], paras. 17-19 per Justice N. Sohlberg; Holon Municipality case, paras. 30-31; HCJ 4128/02 Adam Teva veDin – Israel Union for Environmental Defense v. Prime Minister [44] paras. 14-15 per President A. Barak; and relating to road accident compensation, see: CA 420/83 Ashur v. Migdal Insurance Co. Ltd. [45], para. 22 per Justice A. Barak (27.5.1990); Aharon Barak, Interpretation of the Civil Codex “Israel Style”, Gad Tedeschi Memorial Volume – Essays in Civil Law 115, 147-48 (5756-1996) (Heb.)).

38.       Similarly, I believe that the various statutes that regulate assistance through medical reproductive techniques must be viewed as part of a legislative template. In the framework of this template one may mention the Ova Donation Law; the Agreements Law; the Public Health (In Vitro Fertilization) Regulations, 5747-1987 (hereinafter: IVF Regulations); and Public Health (Sperm Bank) Regulations, 5739-1979, Declaration of Control of Products and Services (Sperm Bank and Artificial Insemination), 5739-1979, and Circular of the Director General of the Ministry of Health, 2.1.14, “Rules Concerning the Administration of a Sperm Bank and Guidelines for Performing Artificial Insemination” (June 29, 1979) (hereinafter: Ministry of Health Rules). I base my position on several grounds: first, these laws share the common purpose of regulating the use of various medical reproductive techniques, they determine the relationship among these techniques, they permit certain techniques and prohibit others, and they include several guiding principles such as ensuring the well-being of women involved in the process and ensuring a link between the prospective parents and the child in these processes (see, e.g., in relation to the link: sec. 11 of the  IVF Regulations, which was struck down in HCJ 5087/94 Zabaro v. Minister of Health [46]; sec. 23 of the Ministry of Health Rules; secs. 10 and 12 of the Agreements Law; sec. 42(a) of the Ova Donation Law; and see also reference to the link in the various arrangements for recourse to assisted reproductive techniques in the recommendations of the public committees on which these laws were based – Aloni Commission, 22-23, 48; Mor Yosef Committee, 76-77). Second, from the fact that the provisions of these laws complement each other and refer to each other (see, e.g., reference to a “recognized department” under the IVF Regulations in sec. 2 of the Ova Donation Law and in sec. 1 of the Agreements Law; reference to the IVF Regulations in the Explanatory Notes to the Ova Donation Law, 292, and in the Explanatory Notes to the Agreements Bill, 259; and reference to the Agreements Law in secs. 4(b), 12(b) and 11 in the Ova Donation Law); and third, from their close material relationship (see: Blecher-Prigat & Zafran, 403-20; reference to the various arrangements as one whole in the report of the Mor Yosef Committee, 8-9; Dolgin and Shepherd, 328-34, at para. 19 above). We find, therefore, that a legislative template exists in regard to the regulation of assistance through medical reproductive techniques, and also that the Agreements Law is part of this legislative template. The primary purpose of this legislative template is to regulate assistance through medical reproductive techniques in order to realize the right to become a parent, while ensuring the health of those involved in the process, and regulating the link between the newborns and the parents. Adapting the purpose of the legislative template to the said Law shows that the objective purpose of the Agreements Law is to regulate the process of surrogacy in Israel in order to realize the right to become a parent, while preserving the dignity and the well-being of the surrogate mothers, and to regulate the status of the newborn and its link to the prospective parents. As we have said, this purpose also comports with the presumption concerning realization of human rights.

39.            Thus, the lion’s share of the subjective purpose is consistent with the objective purpose, but the other part – which is concerned with restricting availability exclusively to heterosexual couples – does not comport with the objective purpose. In examining the general purpose of the Law, I believe that the subjective purpose that comports with the objective purpose is to be preferred over one that contradicts it, for several reasons. First, in examining the general purpose of the Agreements Law on the basis of its two purposes, the effect of the time that has elapsed since the Law was enacted should be taken into account. As noted by Justice M. Cheshin in the Biological Parents case: “Everything flows. We never dip twice into the same river, and the law, as a system of norms that seeks to integrate into life and navigate the path of human beings, must consider time as a factor of prime importance. Time is the fourth dimension, both in our lives, and in the law” (para. 17; and see: CFH 2121/12 Anon. v. Dayan Urbach [47], para. 48 per President A. Grunis; CA 9183/09 Football Association Premier League Ltd. v. Anon. [48], para. 6 per Justice H. Melcer; New Family case, para. 53 per Justice M Cheshin; Barak, Statutory Interpretation, 242-44, 246-47, 264-71). In truth, we are not dealing with an archaic law, but with a law that was enacted in 1996. However, we may also not ignore the significant social changes that Israeli society has undergone since the nineties, including changes in the traditional family unit (see: Anon. v. Anon., para. 20 per Justice H. Melcer, para. 14 per Justice I. Amit; Pinhas Shifman, On the New Family: Opening Lines for Discussion, 28 Tel Aviv U. L. Rev. 643, 648-9, 667-70 (2005) (Heb.)) and changes in the approach of society to assisted reproductive techniques (see: recommendations of the Mor Yosef Committee to allow surrogacy for single women as well, and altruistic surrogacy for single men – Mor Yosef Committee, 15, 63; the changes in the Ministry of Health Rules over the years; Haim Abraham, Parenthood, Surrogacy and the State, 9 Hukim 171, 175-95 (2017) (Heb.)); Tali Marcus, It Takes (Only) Two to Tango? On the Possibility of Recognizing More than Two Parents for One Child, 44 Mishpatim 45, 416-19 (2014) (Heb.)). Secondly, given that we are concerned with statutory provisions that involve human rights, greater weight should be attributed to the objective purpose (see: HCJ 1892/14 Association for Civil Rights in Israel v. Minister of Public Security [49], para. 115 and the references there; AAA 4105/09 Haifa Municipality v. Sephardic Jewish Community Association, Haifa [50], para. 24 per Justice M. Naor (2.2.2012); Aharon Barak, Purposive Interpretation in Law 255, 421-27 (2003) (Heb.)). And third, in light of the interpretive principle that a non-discriminatory purpose should be preferred over a discriminatory purpose (see: HCJ 7245/10 Adalah –  Legal Center for Arab Minority Rights v. Ministry of Social Affairs [51], paras. 6-7 per Justice E. Hayut; HCJ 6698/95 Ka’adan v. Israel Land Administration [52], para. 13 per President A. Barak; HCJ 142/89 Laor Movement v. Speaker of the Knesset [53], para. 9 per Deputy President A. Barak). My approach is that the said societal changes, taken together with the rules for prioritizing the objective purpose when dealing with human rights, and preferring a non-discriminatory purpose, indicate that the objective purpose, which largely comports with the subjective purpose, should be preferred. Therefore, we should  hold that the condition allowing only heterosexual couples to enter into surrogacy agreements is not part of the purpose of the Law. Thus, the purpose of the Agreements Law is to regulate the surrogacy process in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child.

40.       Is this purpose a proper one? In my opinion, the answer to this question is affirmative. Indeed, the Agreements Law does somewhat violate the constitutional right to become a parent. However, the rule is that a law that violates a constitutional right may serve a proper purpose if that purpose “is intended to realize social purposes that are consistent with the values of the state as a whole, and that display sensitivity to the place of human rights in the overall social system” (Adalah case, para. 62 per President A. Barak; Israel Medical Association case, para. 107 per Deputy President E. Rubinstein Quality Government case, paras. 52-53 per President A. Barak; HCJ 2605/05 Academic Center for Law and Business, Human Rights Division v. Minister of Finance [54], para. 45 per President D. Beinisch). My position is that the social goals that underpin the Agreements Law – regulation of recourse to surrogacy as a medical reproductive technique, preservation of the health of  those involved in the process, regulation of the status of the newborn children and their relationship to the prospective parents, and realization of the right to become parents – are important social goals that justify a certain violation of human rights. These goals make it possible to realize the right to become a parent, and they protect women from exploitation. In addition, they ensure that each child that comes into the world as a result of these assisted reproductive techniques will have a link to a particular parent, thus also preventing abuse of the said techniques (such as creating children for commercial purposes) and promoting the well-being of the children. Therefore, in my view, the Agreements Law reflects a proper purpose, and as such it complies with the third condition of the limitations clause (see: HCJ 566/11 Mamet Megged v. Minister of the Interior [55], para. 17 of my opinion (hereinafter: Mamet Megged case)). Having found that the Agreements Law meets the first three conditions of the limitations clause, I will now focus the discussion on the condition of proportionality, with its three sub-criteria.

41.       First, the rational connection criterion. Does the requirement for a genetic link bear a rational connection to the purpose that the Law seeks to realize? I believe that the answer to this is yes. As will be recalled, the purpose of the Agreements Law is to regulate the process of surrogacy in Israel, while ensuring the dignity and well-being of the surrogate mother and regulating the status of the prospective parents and their link to the child. The Law’s requirement of a genetic link is rationally connected both to the regulatory purpose of the Law, and to the realization of the link between the prospective parent and the prospective child.

With respect to the regulatory purpose, the legislature saw fit to restrict access to surrogacy to a person who is capable of having a genetic link to the child. As noted above, this exclusivity of access says that only a person who is able to supply his or her own genetic material in order to create the embryo that is implanted in the surrogate can enter into a surrogacy agreement. This, therefore, is a regulatory constraint adopted by the Law that is connected to the regulatory purpose of the Law in that it permits entering into an agreement only on the said condition. As explained above, this condition is relevant to approval of the surrogacy process, and it therefore also complies with the case-law criteria with respect to a link that is not “arbitrary, unreasonable or unfair” (see: Quality Government case, para. 58 per President A. Barak; HCJ 4769/95 Menahem v. Minister of Transport [56], para. 23 per Justice D. Beinisch). Moreover, a clear line can also be drawn between this requirement and the legislative purpose relating to the existence of a link between the parents and the child, for as we have said, the mechanism set by the Agreements Law for the purpose of a link between the prospective parents and the child is based on the genetic link between them (see above, para. 27; AB case, paras. 283-87, 293-94). As such, I find that the requirement for a genetic link has a rational connection with the realization of the purpose of the Law.

42.       Second is the criterion of the least harmful means. The question here is whether there exists a means that similarly serves the purpose of the law, but which entails a lesser violation of the constitutional rights. In my view, the existing arrangement meets this sub-criterion as well. In examining the requirement for a genetic link as provided in sec. 2(4) of the Law, of particular relevance is the legislative purpose with respect to ensuring the existence of a link between the prospective parents and the child. The means chosen to realize this purpose is the requirement that the newborn be genetically related to one of the prospective parents. Therefore, at this stage we must ask whether a means exists that realizes the purpose of ensuring the connection between the parents and the child to the same degree, but at the same time is less harmful to the right to become a parent (see: Nir case, paras. 47-49 of my opinion; Aharon Barak, Proportionality in Law 395, 411 (2010) (Heb.)). In my opinion, the answer is negative. I will explain.

One could, indeed, argue that the purpose of ensuring the link between the prospective parents and the child could be realized through their emotional connection at the stages of initiation, approval and implementation of the surrogacy process, without any genetic connection (see the dissenting opinion in the AB case, paras. 177-85). It is true that the emotional parental link cannot simply be dismissed, and we need not address the nature of this link in the present framework (see, inter alia, recognition of this approach in this Court: Anon. case, para. 3 per Justice D. Barak-Erez, para. 2 per Justice H. Melcer; A. v. Minister of Health case, para. 29, 43-45 per Justice E. Rubinstein; Mamet Megged case, para. 14 of my opinion; LAA 5082/05 Attorney General v. Anon., paras. 22, 36 per President A. Barak; in the Supreme Court of the United States: Lehr v. Robertson, 463 U.S. 248, 259-264 (1983); Troxel v. Granville, 530 U.S. 57, 87-89 (2000); and in the Grand Chamber of the European Court of Human Rights: Paradiso & Campenelli v. Italy (app. No. 25358/12), §§ 140, 148-149; and see: Dolgin & Shepherd, at 329-31)). It is clear to me that the Law assumed that every prospective parent would establish the said emotional and psychological connection with the prospective child – a link that has existed between parents and children from time immemorial. However, in order to allow a person to bring a child into the world with the assistance of medical reproductive techniques, it was determined that an additional link is required beyond that emotional connection that exists in any case. Thus, for example, in the artificial insemination process, a genetic and physiological link with the prospective mother is required; and similarly, in the process of IVF a physiological – or absent that, a genetic – link is required. We see, therefore, that the condition of the existence of an additional link between prospective parents and a child born with the assistance of medical reproductive techniques is not met without some additional connection between at least one of the prospective parents and the child, besides the emotional connection.

What additional link is required in the surrogacy process? In view of the fact that the surrogacy process by its nature severs the connection between the surrogate mother and the child, the existence of a physiological link is not a relevant alternative here. Hence, the only means that serves the purpose of legislation requiring a link between the parents and the child is that of a genetic link between the prospective parents and the child as a condition for approving a surrogacy agreement. As such, I find that there is no means that realizes the purpose to the same extent and causes a lesser violation of the constitutional right under discussion. Therefore, the Law is in compliance with the second sub-condition.

43.       Third is the criterion of proportionality stricto sensu. In the framework of this sub-criterion, we must decide whether the benefit derived from adding the requirement for a genetic link for the approval of the surrogacy process is greater than the damage caused by this requirement as a result of the violation of the constitutional right of Petitioners 5-6 to become parents. My view is that the benefit outweighs the harm, and that the Agreements Law also complies with this condition. I will explain.

Let us begin with the benefit of the requirement for a genetic link. Above I discussed the great importance attributed in Israel and in the Western world to the genetic link in general, and in the surrogacy process in particular. I also explained that this regulatory element is consistent with the ethical decision of the Israeli legislature, and with that of other legislatures, in regard to the great importance of the genetic link to parents in the surrogacy process. I also explained that the legislature sought to confine surrogacy to circumstances in which an additional link to the emotional link engendered by the parental connection would be forged in the framework of the broad regulation of assisted reproductive techniques, in which some kind of link in addition to the emotional link is required. Similarly, I pointed out that this link helps in addressing some of the potential problems raised by assisted reproductive techniques such as surrogacy, and it constitutes a fulcrum for assistance through such techniques (see above, para. 27). In this case, the requirement for a genetic link reflects benefits that are in keeping with the purpose of the Agreements Law – ensuring the connection between the newborn and the prospective parents, and helping regulate the use of surrogacy on the basis of relevant distinctions. These benefits cannot be brushed aside, and the proof is that most states in the Western world that permit surrogacy have adopted similar models requiring a genetic link between the child and the prospective parent.

I will now discuss the harm caused by the demand for a genetic link. This requirement undeniably entails a result that is harmful to the right of Petitioners 5-6, and of other men and women like them that fate has not been kind enough to allow to become parents. However, this harm is not at the core of the right to become a parent, and it does not affect the existence of this right. Rather, it affects its mode of realization (see: Moshe case, para. 2 per President M. Naor, para. 12 of my opinion, and para. 26 per Justice E. Hayut). This is because Israeli law does not negate the right of the Petitioners to become parents in general, but rather, prevents their access to a particular, special track because they do not comply with the criteria required for this track. Blocking the track leaves open a wide range of ways for realizing their yearning for parenthood, for example, by means of adoption, by means of joint or shared parenting agreements, or by any other legal means. True, these possibilities are not a precise alternative to realizing of the right to become a parent by way of the process of surrogacy, but their existence means that the right is limited only in its means of realization, and it is far from being totally nullified. Hence, the harm to the right to become a parent in our case is not great. Moreover, I find that there is substance in the Respondents’ contention that removal of the requirement for a genetic link in the surrogacy process will lead to a great similarity between that process and the process of adoption. As explained by Justice N. Hendel in the Anon. case, Israeli law today recognizes parenthood on the basis of four alternative, complementary foundations – genetic link, physiological link, adoption, and a link to a link (para. 7 of his opinion). In its present format, the process of surrogacy rests on the first foundation, in view of the requirement for a genetic link. As stated, this classification therefore shows us that the genetic link constitutes a significant means of distinction between surrogacy and adoption. Unfortunately, since parenthood through a genetic link is not possible for Petitioners 5-6, this means of distinction does not exist as far as they are concerned, and therefore the alternatives of adoption and surrogacy become more similar to one another. Therefore, the harm inflicted by the requirement for a genetic link is confined and limited: it relates to one out of a number of possibilities for realizing the right to become a parent, it also affects a very particular way of realizing the right to parenthood (surrogacy with no genetic link), which is not significantly different from another way of realizing the right to become a parent (adoption). This is even more so when the particular nature of the process of surrogacy and the many dilemmas to which it gives rise are considered.

I therefore find that the requirement for a genetic link in the surrogacy process is of considerable benefit, and the harm it causes is limited. My position regarding the overall balance is that this benefit outweighs the constitutional harm that it entails. Accordingly, I have reached the conclusion that the Agreements Law also meets the third sub-criterion of proportionality, and that the harm done to the right of Petitioners 5-6 to become parents is proportional.

Summation

44.       From the above it emerges that the requirement of the Agreements Law for a genetic link complies with the limitations clause, and therefore its constitutionality is not flawed. Although the circumstances of Petitioners 5-6 arouse empathy, on the basis of all that has been said above I do not find that there is room, in the framework of the present petition, to change the principles expressed in the Agreements Law with respect to the requirement for a genetic link. I will therefore recommend to my colleagues that we deny the petition in regard to those Petitioners.

Before Concluding

45.       In the framework of this petition, the Petitioners ask that we order that the portals to the surrogacy process be opened so that also those who wish to establish a non-heterosexual family framework will be able to pass through them with pride. As stated, in view of the fact that the legislature addresses this issue in the Bill that passed its first reading last month, we have decided to allow it time and not to decide the matter at present. However, I wish to devote a few words to the existing legislative situation, and to shed some light on issues that apparently arouse more than a little discomfort.

46.       I find it hard to come to terms with a situation in which single people and single-sex couples are prevented from realizing their right to become parents by entering into surrogacy agreements when their heterosexual brothers and sisters enjoy this right. A legal arrangement that grants a right with constitutional status to one group and excludes another group because of its identity, preferences, orientations or ways of life, is an arrangement that appears  discriminatory and is hard to accept. For myself, I see no justification for preferring heterosexual parenthood over single-sex parenthood in general, and particularly insofar as the right to become a parent – in terms of all the techniques for its realization – is concerned (cf.: Mamet Megged case, paras. 5 and 10 of my opinion; Moshe case, para. 8 per Justice (emer.) E. Arbel).

This unfounded preferential treatment turns its back on the value of human dignity that appears in the Basic Laws of the State of Israel, and the principle of equality that is derived from it. Even though equality is not specifically mentioned in the Basic Laws, the principle of equality has long been recognized as part of “the soul of our entire constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [57], 698). It was accorded the status of a supra-statutory constitutional right deriving from Basic Law: Human Dignity and Liberty (see, e.g., Association of Banks case, para. 3 of my opinion; Sabah case, para. 13 of my opinion; Quality Government case, paras. 36-43 per President A. Barak), and it is a common thread running throughout the foundational documents of our State. It was Theodor Herzl who wrote in Altneuland: “Let me tell you, then, that my associates and I make no distinctions between one man and another. We do not ask to what race or religion a man belongs. If he is a man, that is enough for us.” This principle also appears in the writings of Ze’ev Jabotinsky, who stated that “human rights and citizens’ rights are the property of the person and the citizen, qua person and citizen. This is a first principle.  There is no room for negotiating or for reckoning who is entitled to rights and who is not” (Ze’ev Jabotinsky, Untitled Notes, Plitonim 23, 29 (5714-1954) (Heb.)), and it is captured in the words of the Declaration of Independence, namely, that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants …”.

47.       The prohibition against discrimination on the basis of sexual orientation is one of the basic elements of the principle of equality, and Israeli law has managed over the years to weave it into the web of legislation and case law (for a review see: AAA 343/09 Jerusalem Open House for Pride v. Jerusalem Municipality [58], para. 54 per Justice I. Amit). However, our legal system has unfortunately been left trailing behind in many aspects that are at the heart of the lives of LGBT citizens, and particularly recognition and equal rights for gay partnerships and families (see: Yotam Zeira & Barak Medina, The Right to Equality and Sexual Orientation, LGBTQ Rights in Israel: Gender Identity, Sexual Orientation and the Law, 159, 176-88 (Einav Morgenstern, Yaniv Loshinski and Alon Harel eds., 2016) (Heb.)). This legal situation comprises a severe violation of human dignity, for it places a group of citizens with equal obligations and rights in an inferior position to that of the rest of Israeli society with no material justification. This violation, and the value of a legal system that is prepared to entertain change, was discussed by US Supreme Court Justice Anthony M. Kennedy, who stated in the context of a case related to our matter:

There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices […] If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied […] It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality” (Obergefell v. Hodges, 135 S. Ct. 2584 (2015) (emphasis added – S.J.).

In the context of the subject of this petition, I had the opportunity of saying the following in the Mamet Megged case (albeit in a dissenting opinion with regard to the result):

As long as the interpretation of the Committee for the Approval of Embryo Carrying of the Embryo Carrying Agreements Law remains in force, and the Law itself has not been changed by the legislature or found unconstitutional by the Court, same-sex couples find themselves in a categorically inferior position. Unlike heterosexual couples, same-sex couples can resort to surrogacy arrangements only outside of Israel […] The policy of the Respondent in all that regards parenthood discriminates against same-sex couples, and this, alongside totally preventing same-sex couples from turning to the track of surrogacy in Israel. This general policy […] is discriminatory. This policy seeks to establish the heterosexual couple as “natural” […] This discriminatory policy, alongside the deep violation of human dignity and equality, also harms the constitutional right of every person to family life (paras. 5 and 10 of my opinion).

48. It bears saying that over and above the moral flaw involved, the distinction between heterosexual and homosexual parenthood lacks any basis in academic research that has studied the welfare of the newborn. See, for example, Triger and Mass’s article, which addressed  the various arguments raised against same-sex parenthood systematically and in depth, and shows, through broad research from different areas, that they have no basis. Thus, for example, it was demonstrated that children who are raised in single-sex families do not have particular difficulties as opposed to children who grew up in families with a father and a mother – either from the point of view of the child’s development, or from the point of view of the partnership of the parents in raising the child, as well as from other aspects (see: Triger and Mass, 448-53). Other studies have looked into and dismissed various claims concerning the apparently negative ramifications of single-sex arrangements in the surrogacy process. These studies indicate that there are good connections with the surrogate mother in the course of the pregnancy and thereafter, and they also determine that it is not possible to identify any difference between the situation of children who were born to heterosexual families and that of children born to single-sex families through assisted reproductive techniques (see: Lucy Blake, et al., Gay Father Surrogacy Families: Relationships with Surrogates and Egg Donors and Parental Disclosure of Children's Origins, 16 Fertility & Sterility 1503 (2016); The Ethics Committee of the American Society for Reproductive Medicine, Access to Fertility Treatment by Gays, Lesbians, and Unmarried Persons: A Committee Opinion, 100 Fertility & Sterility 1524, 1526 (2013); and see Moshe case, para. 23 per Justice (emer.) E. Arbel and the references there.

49.       Moreover, I am also struggling to find a relevant reason for the distinction between single women and single men in relation to realizing the right to become a parent (see and cf. HCJ 2078/96 Vitz v. Minister of Health [59]; New Family case, para. 26 per Justice M. Cheshin; Moshe case, para. 21 per Justice (emer.) E. Arbel, para. 17 per Justice E Hayut; and in the U.K.: Z (A Child) (No 2) [2016] EWHC 1191 (Fam) (20 May 2016)). It is clear that the principle of equality also extends to the difference in gender between women and men, and it seems to me, without setting the matter in stone, that limiting access to assisted reproductive techniques for one gender and not for another raises questions. Thus, for example, a distinction between men and women with respect to the realization of the right to become parents is liable, prima facie, to broadcast, even unwittingly, an approach whereby single-parent family units headed by a woman are preferable, and therefore a higher normative value is to be accorded to a single female’s yearning for parenthood than to that of a single man; it is liable to hint at a basic assumption whereby this family structure is more proper and desirable; and it may echo archaic social approaches whereby the role of a woman as a parent is more central than that of a man as a parent (cf.  Sessions v. Morales-Santana, 198 L. Ed. 2d 150 (2017); Ben-Asher, The Curing Law, 1913-15; Jean Strout, Dads and Dicta: The Values of Acknowledging Fathers’ Interests, 21 Cardozo J. L. & Gender 135, 148-149 (2015)) – and in this it may possibly reflect a discriminatory basic assumption (cf. LAA 919/15 A. v. B..  [60] paras. 103, 105, 107 per Justice U. Vogelman; my opinion in LCA 8821/09 Prozansky v. Layla Tov Production Co. Ltd. [61]).

50. We see, therefore, that the current surrogacy arrangement gives rise to considerable fundamental difficulties. With the caution required at this interim stage, I dwelt above on the substantial harm to single-sex couples and to single men, and on the shaky social-ethical basis on which the distinctions in the Law stand. In view of our decision to postpone our ruling on the petition in order to allow for completion of the legislative process, this is neither the place nor the time to deliberate on the merits of the arguments presented by the Respondents in their response to the petition. However since we cannot suffice by leaving the matter without comment, I will note – without making any firm determination – that although I listened attentively to the Respondent’s arguments and considered them carefully, I was left with an uncomfortable feeling as to the compatibility of this arrangement with the values of the Basic Laws and their provisions. Those who are involved in this very weighty matter must consider this.

Conclusion

51.       In this decision, we are postponing determining the very important issues that I addressed above. We do so out of respect for the legislature and for the relationship between the judiciary and the legislature. This relationship is a complex one, based on dialogue between the Court and the legislature. This dialogue turns on the basic principles and the laws of the State of Israel. In that framework, the two branches aspire to advance the goals of the State and address the challenges that face  it in an optimal manner, while preserving the basic rights of every person by virtue of the Basic Laws. At the end of this dialogue, the expectation is that a legal result will be achieved that is in keeping with the fundamental principles of the State and that protects individual freedoms. At present, it is the turn of the legislative branch to have its say. Presumably it will fulfill its constitutional obligations and act to realize constitutional rights (see, at length: Aharon Barak, The Constitutional Right to Protection of Life, Body and Dignity, 17 Law and Government 9, 16-19, 29-27, 31-35 (5776-2016) (Heb.)). As always, this Court will listen very carefully to what the legislative branch has to say. And as always, its doors will be open and its ear bent to any person who claims that his constitutional right has been violated. This is so in regard to the further handling of the present petition, as well as to future petitions.

 

President M. Naor

1.         I concur in the opinion and decision of my colleague Deputy President S. Joubran, and will add just a few of my own comments.

2.         In the course of the deliberations on the petition before us, the State announced that the Ministry of Health wishes to advance an amendment to the Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) Law, 5756-1996 (hereinafter: Agreements Law), which will also enable single women to enter into surrogacy agreements. Several days ago, the State updated us on the progress of the legislative process and noted that the bill to amend the Agreements Law (Embryo Carrying Agreements (Approval of Agreement and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) was due for a vote on the first reading that same day (July 17, 2017). Indeed, the Bill passed its first reading that day, and was sent for further discussion to the Labor, Welfare and Health Committee of the Knesset for the purpose of preparation for its second and third readings . Under the circumstances, passage of the Bill in its first reading and it being sent for preparation for its second and third readings created a new situation. At the time, we did indeed express our displeasure at the way in which the Respondents conducted themselves in this process, which expressed itself in submitting a memo of the Bill at the last minute, on the eve of the oral hearing. Now, however, this has indeed come to pass. Accordingly, we have decided as stated by Deputy President Joubran, not to decide at the present time on the issue at hand (other than in relation to the constitutionality of the requirement for a genetic link). This means that we who have or will soon have completed our tenure on the Court – my colleague Deputy President (emer.) Rubinstein, Deputy President Joubran and myself – will not be party to the final judgment, insofar as one may be necessary after the exhaustion of the legislative process. We are a “house of judgment” and not a “house of judges.”

3.         As a rule, a court may address the legal questions before it even when a bill on that same subject is pending in the Knesset (see and cf.: FH 25/80 Katashvili v. State of Israel [62]; HJC 6665/12 A. Sig Ltd. v. Director General of the Ministry of Health [63], para. 27 per Justice M. Mazuz). At the same time, in light of the principle of mutual respect among the branches if government, in relevant cases it is appropriate to refrain from competing with the legislature, and to give the Knesset the opportunity to complete the legislative process within a reasonable time (cf.: HCJ 8893/16 Cabel v. Minister of Communication [64], in which we granted the State’s request for an extension of the period for submitting a response due to the progress of legislation that would have affected the petition there). It is appropriate to do so in the present case, particularly considering the complexity of the issues that have been raised in the petition and the advanced stage of the legislative process. I will not deny that the Respondents have refrained from estimating when the legislative process is expected to be completed, thus giving rise to concern that they will not make progress as required (and cf. other cases in which consideration of petitions was postponed for many months, and even years, until the completion of the legislative process: HCJ 5436/07 Movement for Quality Government in Israel v. National Authority for Religious Services [65], ; HCJ 8300/02 Nasser v. Government of Israel [66], paras. 2-5 per President (emer.) D. Beinisch). Moreover, the Bill in its present formulation does not provide a response to the Petitioners, and on reading the responses of the Respondents one can cautiously surmise that the chance of this changing is not great. To this must be added the fact that when realization of the right to parenthood is at stake, prolongation of the proceedings is liable to lead to an irreversible situation. Finally, it must be borne in mind that the Agreements Law was enacted more than 20 years ago, and since then it has been deliberated in various legal proceedings, in some of which reservations were expressed regarding its scope. In recent years, there have even been attempts – unsuccessful – to amend it. For this reason, and in view of the additional considerations mentioned above, I believe it right to rule, as proposed by Deputy President Joubran, that the Respondents must submit notice of the progress of the legislation within six months.

4.         Notwithstanding the above, and considering the fact that this petition has been pending for several years and oral argument has been heard in this Court, I would like to address briefly the definition of “prospective parents” in sec. 1 of the Agreements Law. What I will say is in the category of musings alone, and cannot limit the discretion of the justices who will replace us in these proceedings, if it should be necessary. What I am about to say is directed at the ears of the legislature as considerations that would seem to warrant attention.

5.         The Agreements Law was originally intended to provide a solution to a limited number of childless couples, while preserving the rights of all those involved in the process – first and foremost the surrogate mother (see: Report of the Mor Yosef Committee, at 53-54); New Family case [9], 434-35, 442-43; HCJ 625/10 A. v. Committee for the Approval of Embryo Carrying [67], para. 8 per Deputy President E. Rivlin). This being the case, the application of the Law was confined to prospective parents who are “a man and a woman who are a couple, who can never bring children into the world due to a physiological condition that prevents the woman from carrying a child or when pregnancy poses a risk to her life.” Several constitutional petitions have been submitted against the Law in the past – now is not the place to go into details – which in turn led to the establishment of various public committees. The latest committee to deal with this subject, including the question of expanding the circle of those eligible for surrogacy, was the Mor Yosef Committee. The Report of the Committee (submitted in May 2012) stated that “the Committee has been convinced of the strong desire of same-sex couples to bring children into the world and has heard that they regard surrogacy as having great potential … [that] constitutes a good solution … in light of the fact that it preserves the genetic link to one of the partners …” (at 57). Accordingly, the Committee assumed that in the absence of other significant interests, single men and women should not be prevented from bringing children into the world by way of surrogacy. However, the Committee also specified several opposing considerations: first, the concern was expressed that surrogacy would change from a specific solution for particularly difficult medical cases into an accepted way of bringing children into the world, and as a result it would be difficult to safeguard the well-being of the surrogates. Second, the concern was expressed that opening up surrogacy to broad populations would come at the expense of women who are suffering from a medical problem. Finally, there was a concern that broadening the scope of those eligible for the procedure would turn surrogacy into a solution only for the rich. In view of these considerations, the Committee ultimately recommended distinguishing between women and men in the sense that men would be permitted to enter into surrogacy agreements on an altruistic basis alone.

6.         In the petition before us, the Respondents explained that, in their view, expanding the scope of those eligible for surrogacy requires legislation. At the same time, they argued, in light of the considerations mentioned in the Mor Yosef Report, there is apparently a relevant distinction between single men or male couples and between women who suffer from a medical problem. Accordingly, as stated above, the Bill that is being considered seeks to expand the circle of those entitled to surrogacy to single women only. In my opinion, there is substance to the approach that entering into surrogacy agreements should be permitted only in a controlled fashion, and to the argument that turning surrogacy into the “major route” for bringing children into the world is problematic. Surrogacy involves health and emotional risks to the surrogate, and in certain cases it is also liable to spill over into exploitation of women and their objectivization (see: Nuphar Lipkin and Etti Semama, From Worthy Act to an Off-the-Shelf Product: Creeping Normativization of Surrogacy in Israel, 15 Mishpat u-Mimshal 435, 442 (5773-2013) (Heb.) (hereinafter: Lipkin & Semama)). These risks, which are inherent in the surrogacy process, were raised before the Mor Yosef Committee and they figured in their recommendations. Indeed, one cannot ignore the physical, emotional and ethical difficulties that are liable to arise in the surrogacy process. Nevertheless, since entering into controlled, monitored surrogacy agreements has been permitted in Israel, I see no apparent justification for distinguishing between women with medical problems and single men or male couples in this matter. These two groups are not able to bring children into the world other than by artificial insemination and reproductive techniques. At the same time, we have not been shown factual data indicating that expanding the arrangement in the Law would necessarily lead to a significant increase in demand for surrogacy in Israel. Apart from gender, there is therefore no material difference between the groups. In all events – and this is the main point – both the Mor Yosef Committee and the Respondents themselves did not argue that such a difference exists (and see and cf. also: Mamet Megged case). The considerations of the Committee, like those of the Respondents, focused, as we have said, on the extent of the demand for surrogacy and the risks this entails. However, it seems right to solve these problems in an egalitarian manner. For example, it is possible (and maybe desirable) to tighten up the control and monitoring of the surrogacy process and to improve the terms of these agreements (see: Lipkin & Semama, at 490-97). Furthermore, it is possible to limit the number of times that a couple or an individual are permitted to enter into a surrogacy agreement, or to prohibit the surrogacy process in the case of a person who already has a child (see also: sec. 5(b) of the Bill). Similarly, the possibility exists of prohibiting commercial surrogacy, and to permit only altruistic surrogacy, as is the practice in some European states (but see: Report of the Mor Yosef Committee, in which it was recommended by majority opinion to permit commercial surrogacy in Israel, at 61-62; and cf. sec. 15 of the Organ Transplant Law, 5768-2008). In the final analysis, even though approval of surrogacy agreements is no simple matter, prima facie it would seem that there is no difference between women and single men or male couples that justifies discrimination. Let me again emphasize that I am not laying down the law on the present issues. These are only comments as I see things. In any case, the legislature, which must now address these issues, will have to think about them. Insofar as the legislative processes in the Knesset are not concluded within reasonable time, the subject will return for adjudication before this Court, which will deliberate and decide as it sees fit.

7.         With respect to the constitutionality of the requirement for a genetic link as a condition for entering into a surrogacy agreement, I accept the ruling of Deputy President Joubran that the requirement of the Law that there be a genetic link between one of the prospective parents and the child meets the criteria of the limitations clause. Bringing a child into the world without a genetic or physiological link to the prospective parent gives rise to complex social, ethical and moral questions, and providing an answer to these questions in a courtroom is liable to entail broad consequences that have not been elucidated in the present proceedings. Unlike surrogacy with a genetic link, which has been discussed from every perspective over the years, in the courts and by other institutional actors, discussion of the issue of reproduction without a genetic or physiological link has not yet been exhausted. This is even more evident in view of the position of the Mor Yosef Committee, which saw fit to recommend expanding the circle of those eligible for surrogacy as long as a genetic or physiological link exists with at least one of the prospective parents. I therefore accept the position that in relation to the issue of the genetic connection, the petition should be denied. It is important to clarify, however, that our decision on this subject does not, of course, prevent the legislature from considering it, like any other matter, in the framework of the ongoing legislative process. I will also mention, with the required caution, that one cannot rule out in advance a situation in which, as a result of particular changes that may occur in the future, the legislature will once again be called upon to address this issue. I do not make light of the plight of the Petitioners. Indeed, as I have said in the past, the very fact that there are different ways to become a parent does not necessarily mean that the state must allow the realization of them all (Moshe case, para. 2 of my opinion). At the same time, without laying down the law on issues that are pending in other proceedings (see, e.g., HCJ 3217/16 Israel Religious Action Center – The Movement for Progressive Judaism in Israel v. Ministry of Welfare and Social Services [68], which deals with the scope of those entitled to adopt children), we should strive for alternative solutions that will enable the Petitioners to realize their right to parenthood.

8.         To summarize: I concur in the opinion of my colleague Deputy President Joubran, whereby the petition concerning the requirement for a genetic link must be denied. As for expanding the circle of those eligible for surrogacy to include single males and male couples, at the present stage this issue should remain without a final decision due to the ongoing legislative processes and taking into account the principle of mutual respect between the branches of government.

 

Deputy President (emer.) E. Rubinstein

1.         I concur in the outcome reached by Deputy President Joubran. The issues that arise for deliberation in this case add to the human, social and legal complexity that has been created in the present era, in which technological developments in the medical field on the one hand, and social developments in the area of family on the other, have engendered situations that our forefathers could not have imagined. In HCJ 407712 A. v. Ministry of Health [30], I had the opportunity, in a different context, to say the following (para. 2):

The "genetic era" and the increasing use in recent decades of artificial reproductive techniques have brought a real blessing to many who would have remained childless "in the old world". Reality has changed immeasurably, and technology presently enables many of those whose path to parenthood was previously blocked, to bring children into the world and have a family. This is one of the dramatic developments, which creates a new social and legal reality, and gives rise to complex, sensitive human questions. The legal world has not yet had the time to properly address these issues, and it falters behind them…

This “faltering along” continues to this day, and therefore issues arise such as the one before us. There are no bounds to a person’s desire for a child. My colleague Justice Barak-Erez, at the beginning of her opinion in the above case, quoted from the poem “Barren” by the poet Rachel: “A son! If I only … had one little boy, Dark, sable-curled and so smart …”; and I would add from the end of the poem: “But I’ll still weep like Rachel the Mother. And I’ll still plead like Channah at Shiloh. I’ll await him. I’ll await…”. Whose heart would not identify with this prayer?

2.         The point is that these issues, which change the known reality, such as the situation of single women and men and same-sex couples, should in principle be addressed by the legislature, which sees the entire picture in all its aspects. My colleague (in para. 6) quoted from the Moshe case (para. 46), and I will repeat what he said in order to complete the picture:

In any event, the existence of current legislative proceedings to expand the existing circle of eligibility in the Surrogacy Law naturally and sensibly calls for judicial restraint by this Court, so it will not trail behind the legislature (para. 17 of Justice Hayut’s judgment; HCJ 9682/10, Milu’off Agricultural Cooperative Association Ltd. v. The Minister of Agriculture – Ministry of Agriculture and Rural Development (2011)). Of course, were there ultimately not to be legislative processes, constitutional judicial intervention must not be ruled out of the realm of possibility. I do agree with my colleague Justice Arbel’s words in her judgment that “legislative arrangements must be interpreted to fit with the principle of equality which demands the equal treatment of same sex couples” (para. 10.) However, the appropriate port of call for such changes is, first and foremost, the legislature, and the existence of advanced legislative processes warrants such judicial restraint.

These words appear to me to be in keeping with what my colleague has now proposed, that is, postponement of the decision at a time in which the legislature is acting as reported. I support his proposal, and the constitutional arguments will be reserved for the petition when it comes.

3.         I also concur in the determination as to the importance of the genetic link, for it seems to me that anyone reading the judgment in the Moshe case cannot fail to form the impression that its basic assumption is genetic parenthood for the purpose of the Agreements Law, alongside severance between the surrogate mother and the prospective parents. It is true that the “genetic model,” which was the focus of legislation in the past, has been weakened to a certain degree (see in detail the above A. v. Ministry of Health. case, para. 44), but the genetic link still carries great weight (para. 45).

4.         I will conclude with the comment that regarding all the subjects raised by my colleague at the end of his written opinion, there is room for gradual progression in order to arrive at appropriate, correct results from the overall social aspect as well. This Court should, in my opinion, address these issues while observing the progress of the legislation, without slamming the door on judicial intervention. I will only mention that, on the one hand, the Mor Yosef Committee recommended expanding the circle of those eligible for surrogacy to single women, while on the other hand, it recommended the establishment of altruistic surrogacy for single men. However, the memorandum of the Law that was submitted at the time – which differs from the present one with the change of Government – expanded the circle of those eligible for commercial surrogacy to include single men as well (see my opinion in the Moshe case, para. 45). The reason given by the Committee – that expanding the circle may numerically limit the possibilities available for single women – bothered me, even upon carefully reading what my colleague Deputy President Joubran and my colleague the President wrote, and their thoughts regarding a solution. As for myself, I think that, in general, a committee is established in order that its conclusions be adopted, unless it has clearly deviated from what is reasonable. But of course, the legislature is permitted to think differently and act differently. On the other hand, there is the question of equality, which is no small thing: we are all created imago dei, nor does time stand still, socially and personally.

5.         This judgment, in its various opinions, comprises recommendations – even if cautious – to the legislature. In order to “glide over the lips of sleepers” (Song of Songs 7:10), and to show the progress that has been made by Israeli law, I would like to cite a summary of a memo written by Supreme Court President Itzhak Olshan during his tenure (1954-1965 – the date of the memo is unknown), who is quoted by Professor Pnina Lahav in her article, The Pains and Gains of Writing the Biography of Chief Justice Simon Agranat, Harris, Kedar, Lahav & Lichovski (eds.), The History of Law in a Multi-Cultural Society (2002) 147, 157-158. I cite these words not due to agreement with their content, but as an historical comment. President Olshan wrote (I do not have the original Hebrew text) – and according to him the subject had already arisen in discussions with judges in the past – that it is not recommended to make recommendations in a written opinion (he does not explain exactly which recommendations he means, and it may not necessarily be only legislative recommendations), particularly not in criminal matters. He says that it puts the authorities in a difficult position, for if they do not accept the recommendation, they are liable to be seen as offending the Court. On the other hand, the authorities may have good reasons for not accepting the recommendation, but they will be seen as offensive. President Olshan says that he raised the subject because he had been approached on the matter. Prof. Lahav, the author, notes that the memo is of interest both because it refers to informal connections between the governmental branches, and because although President Olshan was very careful to preserve and fight for judicial independence, he also preserved the relationship with the executive branch and was prepared to deliver its requests to the judges. She points out that the proclivity of courts for writing recommendations is common; it is something that could be said to contradict the principle of separation of powers, but on the other hand it could be seen as a “safety valve” attesting to the discomfort of the Court in applying a particular law as against considerations of justice, and prohibiting it would dilute judicial opinion and prevent the Court from sounding a moral voice. According to the author, the justices did not comply with the “rebuke” of the President, but the very fact that the memo was issued is an indication of the leadership of President Olshan.

As I noted, I cited these words as an historical comment, although I disagree with the position expressed in the memo, and I would add that in my opinion, on the basis of long years of practice and common sense, it is absolutely inappropriate to withhold judicial recommendations that are generally based on long professional, institutional and personal experience, and on consideration of the distressing situations that the Court encounters. On the contrary, the fifty years that have elapsed since President Olshan retired have shown us that there was and is great value to judicial recommendations. Many of them have found their way into legislation and governmental actions, and have contributed to their improvement. Even if caution is wise in making recommendations on matters of principle that are controversial, lack of action on the part of the legislature sometimes compels the Court to have its say. In any case, in general, not only is there nothing wrong with making judicial recommendations, but they are a good thing, for the benefit of all. The dialogue between the branches is important – that is the nature of democracy. The ability to listen is invaluable, and it is of course multi-directional. The spirit of our generation in the context of judicial recommendations was aptly described by Justice Melcer in describing academic discourse (see: Desta case, paras. 6-7 of his opinion, and the references cited there).

6.         I will conclude with what I wrote in the Moshe case (para. 23):

It is quite possible that there is a social need, in light of the rapid developments in the area of relationships as experienced in our world, for eliminating the requirement for the recipient’s medical need as established in section 11 and this in light of the desire to expand the circle of those eligible for an egg donation – for example, in the Petitioners’ case or the case of single men or a male homosexual couples who need the donation as a result of an inherent biological deficit (Haim Avraham, On Parenthood, Surrogacy and the State between Them, forthcoming in 8 Hukkim (2015) (hereinafter: Avraham)), or to resolve the issue of bastards (Yossi Green, Is There Resolution for the Problem of Bastards through Medical Technologies in the Field of Reproduction?, 7 Moznei Mishpat 411 (2010)). This expansion lays first and foremost in the hands of the Legislature, which is charged with weighting the balances..

Subsequently, it was said that there is a need (in that context) for a “guide” in the form of statutory directives, which would not require any great legislative effort. This applies, mutatis mutandis, in the present case. The last word has not yet been said.

7.         This judgment is being handed down on the day of the retirement of my good friend, Deputy President Selim Joubran. I have merited to serve alongside him in friendship and with affection throughout the whole period of our tenure, since we were sworn in on the same day in 2004. Deputy President Joubran – a proud Israeli, a proud Christian Arab – has in the period of his tenure made a great contribution to Israeli law and Israeli society, both with his substantive jurisprudence in his learned opinions, and with his incomparably amiable personality as a colleague, a friend, and a public personality. The “golden mean” approach that he represented in the law, which is particularly close to my heart, has contributed greatly to the peaceful settlement of conflicts, as a lover of peace and a pursuer of peace. May my friend continue in the ways of peace, of health and of contentment.

 

Justice E. Hayut

1.         What is the appropriate scope of the circle of persons eligible for assistance through the surrogacy process in Israel?

This is an issue that the Petitioners have once again laid at the door of this Court in the present petition. The petition raises arguments against the constitutionality of the arrangement provided in the Agreements Law, most of which concern the violation of the right to parenthood and the right to equality of single-sex couples (Petitioners 1-4) and men and women who do not have partners (hereinafter: single men and women), including women who, due to the inability to become pregnant or to donate their own ovum to the reproductive process (Petitioners 5-6) will not have a genetic link to the child as required by sec. 2(4) of the Agreements Law.

2.         This Court first considered the matter of the appropriate scope of those eligible for assistance through the surrogacy process in the New Family case, but this was in one single derivative only – a single but fertile woman who was not able to become pregnant and give birth. The judgment determined by majority opinion that denial of the right of a single woman to be included within the definition of “prospective parents” in the Agreements Law, and confining the process of surrogacy under the Law exclusively to “a man and a woman who are a couple”, appeared to constitute a violation of the principle of equality and discriminated against women such as the petitioner without justification. At the same time, the Court denied the petition for the reason that it dealt with a “new and complex” issue that should be developed gradually, in small steps, through legislative processes and not by way of case law that intervenes in the legislation of the Knesset. In the New Family case, the Court therefore confined itself to a call to the legislature to the effect that –

… it think about the plight of single women such as the Petitioner; that it give serious consideration, weighing one against the other, the reasons for and reasons against the application of the Law to single women; and that it decide on the merits of the question one way or another. Indeed, the plight of single women is genuine, their plight is not less than that of couples, and those single women deserve to have the legislature think specifically about them and about the prohibitions it placed on their path to surrogacy (at 461) (for an analysis of the status of calls such as this on the part of the Court to the legislature, see: Liav Orgad and Shai Lavi, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv L. Rev. 437 (2011) (Heb.)).

3.         More than 14 years have passed since judgment was rendered in the New Family case, but the definition of “prospective parents” in the Agreements Law has remained unchanged. As pointed out by my colleague Deputy President Joubran, some 8 years after the judgment in the New Family case, the Director General of the Ministry of Health appointed a public committee to examine the statutory regulation of the subject of fertility and reproduction in Israel, and this committee submitted a report in May 2012 (the Mor Yosef Report) in which it recommended, inter alia, to expand the circle of those eligible for assistance through surrogacy under the Agreements Law to include a single woman who has a medical condition preventing her from becoming pregnant, and a single man (with respect to whom it was recommended to permit only an altruistic surrogacy track). Also, in 2014, in the wake of the Mor Yosef Report, a governmental bill was formulated which expanded the circle of those eligible for surrogacy in Israel such that both single women and men would be able to employ the process for payment in Israel (Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5774-2014). However, this Bill was not moved forward, and when the rule of continuity was not applied to it, it lapsed.

4.         The present petition was submitted on Feb. 2, 2015. On July 17, 2017, after we – sitting as an expanded bench – had completed hearing the objections to the order nisi that had been issued, we were informed that the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) had been published and introduced in the Knesset on July 5, 2017. Under this Bill, the circle of women eligible for surrogacy in Israel would be expanded to include single women who suffer from a medical problem that necessitates undergoing the process, on condition that the genetic link between the prospective mother and the newborn is preserved. We were also informed that the Bill had passed its first reading and was sent to the Labor, Welfare and Health Committee of the Knesset for preparation for its second and third reading.

5.         In view of the conduct of the legislature regarding this issue over the years, it may be assumed that our deliberations on the present petition served as a fairly significant accelerant in the present legislative process. At the same time, and even though the Bill currently under consideration is more limited than the 2014 version (it does not include single men), I agree with my colleague Deputy President Joubran and with my colleague President Naor that at this stage, we should not enter into a “race” with the legislature, which should be allowed to complete the legislative process before we decide on the present petition insofar as it concerns Petitioners 1-4, given the principle of mutual respect between the branches by which we should abide. I therefore concur in this context in the position of my colleagues that we postpone handing down a judgment on the petition (insofar as it concerns Petitioners 1-4) for a period of six months, in order to allow the Knesset to complete the legislative process that it has begun.

6.         As opposed to this, like my colleagues, I too am of the opinion that with respect to Petitioners 5-6, the petition should already be denied at this stage.

As will be recalled, Petitioners 5-6 (hereinafter: the Petitioners) are single women who, due to medical problems are not able to carry a pregnancy nor are they able to donate their own ova for the purpose of fertilization and implantation into the womb of a surrogate. As described in the petition, Petitioner 5 has no children, and after attempts to become pregnant from fertilized ova implanted in her womb were not successful, her doctors determined that she could not become pregnant. Petitioner 5 is in possession of several frozen fertilized eggs that were prepared in the framework of her earlier attempts to become pregnant, and after she was told that she would not be able to carry a pregnancy herself, she turned to Respondent 1 (hereinafter: the Committee for Approval of  Embryo Carrying or the Committee) with a request to allow her to embark on a process of surrogacy using these ova. The Committee for Approval of Embryo Carrying rejected Petitioner 5’s request outright, due to her personal status as a single woman and due to the provision of sec. 2(4) of the Agreements Law that makes the process of surrogacy conditional upon the existence of a genetic link between the prospective parents and the child. Petitioner 6 is also a single woman who, as the result of a medical issue, cannot carry a pregnancy, nor can she donate her own ova for the purpose of surrogacy. Petitioner 6 has one child who was born after she became pregnant through the donation of another woman’s ovum that was fertilized by a sperm donation. After she gave birth to her son, Petitioner 6 was told she would not be able to carry further pregnancies, and that several fertilized ova remained carrying the same genetic load as that of her son. Petitioner 6, too, approached the Committee asking to be allowed to embark upon the surrogacy process, in the framework of which those fertilized ova would be implanted in the womb of the surrogate mother. The Committee also rejected the request of Petitioner 6 for the same reasons as those grounding its rejection of the request of Petitioner 5. Alongside the arguments common to them and to the other Petitioners regarding the discriminatory definition of “prospective parents” in the Agreements Law, the Petitioners further argue that denying the possibility of surrogacy  to a person who has no possibility of having a genetic link to the child, as provided in sec. 2(4) of the Agreements Law, violates the right to parenthood and to equality, and that for them, this causes harm in addition to the harm caused to them by virtue of their being single women.

7.         This Court has not infrequently discussed the importance attributed by society to the human desire of many for progeny who will carry their genetic material and who will be related to them “by blood” (see: New Family case, 447; CA 488/77 A.. v. Attorney General [69], 441-42; and see further in this context: Yehezkel Margalit, The Rise, Fall and Rise Again of the Genetic Foundation for Legal Parentage Determination, 3  Medical Law and Bio-Ethics 125 (5770-2010) (Heb.)). Now, as I pointed out in one of the cases in another context:

The biological-genetic connection between parent and child is not the be-all and end-all. No less important (and sometimes even more important) “raw material” constituting and fashioning the relationships between parents and their children is the emotional link and the commitment to the well-being of the children and raising them. At the same time, and has already been mentioned, real and significant justification is required in order to deny a person the possibility of realizing the right to parenthood that includes a blood tie between himself and the child (Moshe case, para. 33 of my opinion); see also Yehezkel Margalit,  Determining Legal Parenthood by Agreement as a Possible Solution to the Challenges of the New Era, 6 Din u-Devarim 553 (2012) (Heb.); Yehezkel Margalit, Towards Determining Legal Parenthood by Agreement in Israel, 42 Mishpatim 835 (2012) (Heb.)).

It may also be said that the medical limitations due to which the Petitioners are unable to form a genetic link to the child, alongside their single status, places them in certain senses at the top of the ladder of those who encounter difficulty in realizing their right to parenthood. However, the question facing us is not whether realization of the right to parenthood must be allowed in the case of a person who cannot have a genetic relationship with a child, but whether that person should be allowed to realize this right by way of the process of surrogacy under the Agreements Law.

8.         In the New Family case, Justice M. Cheshin said as follows:

… people are not always ready and able to absorb and digest the achievements of science and technology. This is the general case. A fortiori in relation to the subject of surrogacy, in which the most sensitive and intimate aspects of a person are involved.

            Justice Cheshin further mentioned there that in view of the novelty and the complexity of the issue of surrogacy from various perspectives, it is appropriate that this process develop in a gradual, proportionate manner (at 459-60). Indeed, the issue of the scope of the circle of persons eligible to realize the right of parenthood by means of surrogacy is a complex one that involves medical, social and ethical considerations, the sensitivity of which cannot be overstated. This applies to the process of surrogacy in general, and all the more so where the prospective parent lacks a genetic link to the child. First, in the absence of a genetic link, we are not concerned with denying a person the possibility of realizing parenthood that includes a blood relationship between himself and the child. It can therefore be said that the prospective parent has no special interest in bringing a child into the world by way of surrogacy in particular. In effect, it can be said that absent a genetic or physiological link to the prospective parent, we are dealing with the production of children for the purpose of adoption (see: Anon. case, paras. 25-26 per Justice N. Hendel; and Mor Yosef Report, at 6 and 61 (note 28)). And insofar as the matter is one of a variation of adoption, the question naturally arises why the prospective parent, who has no particular interest in the process of surrogacy, should not be directed to the adoption track, with all its advantages from the point of view of benefitting children who already exist.

Similarly, in this context of surrogacy  with no genetic link, ethical questions that are not simple arise concerning, inter alia, the possibility of creating children who are in certain senses “children by order”, with all the ramifications from the point of view of the surrogate mothers who participate in the process; questions about “industrialization” of these processes; and concerns about a concept of property taking root with regard to children created in this framework (Lipkin and Semama, 441-43). As my colleague the President pointed out, it may not be right to rule out in advance the possibility of considering the process of non-genetically linked surrogacy in the future, and it may be that the experience that will continue to accumulate regarding surrogacy in Israel and the world  will warrant legislative reconsideration of the issue. However, like my colleagues, I too think that the petition does not show constitutional grounds for striking down the provision of sec. 2(4) requiring such a link. This is similar to the approach adopted in this context in most states that permit surrogacy, and respectively, to the approach adopted by the Israeli legislature in additional statutes that attribute importance to the genetic link in the context of parent-child relationships (see paras. 25-26 per Deputy President S. Joubran).

9.         In summary, I concur in the opinion and decision of my colleague Deputy President S. Joubran.

 

Justice H. Melcer

1.         I concur with the result reached by my colleague Deputy President S. Joubran. I choose not to express a detailed opinion with respect to his main reasoning, for in view of what appears in the decision part of my colleague’s opinion, I am likely to deal further with this petition, alongside my colleague Justice Hayut (and other justices who will join the panel).

Nevertheless, I will permit myself to make several comments regarding the right of Petitioners 5-6 (in relation to whom the petition is denied) to realize their aspiration for parenthood by way of surrogacy, specifically in the legal situation pertaining at present and the future, and concerning the link between legislative initiatives and the case law of this Court.

I will discuss these subjects in their order.

The right of Petitioners 5-6 to realize their aspiration for parenthood specifically by means of surrogacy

2.         Petitioners 5-6 wish to realize their aspiration for parenthood by means of surrogacy, without having a genetic link (their ova) or a physiological link (pregnancy) to the child.

In LFA 7141/15 A. v. B. [23], I explained the similarity and the difference between the right to parenthood (which is not necessarily biological) and the right to continuity (which is at base genetic). Both these rights are in my view constitutional rights, as I explained there.

In the present case, Petitioners 5-6 wish to obtain approval to enter into an agreement with a “surrogate mother”, but various provisions in the existing Agreements Law stand in their way, including the requirement for a biological link, as expressed in sec. 2(4) which provides as follows:

The implantation of a fertilized egg for the purpose of impregnation of a surrogate mother in order for the child who will be born to be given to prospective parents will not be performed unless all the following are fulfilled:

….

(4)                   The sperm used for the in vitro fertilization is that of the prospective father and the ovum is not that of the surrogate mother.

These provisions indeed violate the rights of Petitioners 5-6 to parenthood, but as my colleagues showed, it cannot be said that the requirement for a genetic link, in this context of surrogacy, fails with respect to the criteria of the limitations clause. However, the right of Petitioners 5-6 (and others like them) to parenthood may possibly be realized in other ways that do not require a genetic link.

Moreover, in the case of Anon. [11], I called upon the legislature to consider finding a means for helping those belonging in this category. This is how I stated it there:

Thus, just as in the past, the institution of adoption provided for the problem of childlessness, now it can be expanded, either to enable individuals who have no available alternative … to resort to new medical technologies in order to become parents, or to be considered such, even without a genetic link …Following these paths is intended to provide a response to a reality within which technology usually precedes the law. The legislature and the courts are therefore asked in these cases to pour the essence of the good, well-grounded existing principles into legal containers that have not been in use before (as if these were old wine that improves over time and simply requires a newer container). Cf.: Steven Breyer, Active Liberty 64 (2009); see also my opinion in CA 9183/09 Football Association Premier League Ltd. v. Anon. [48] (13.05.2012)).

3.         In conclusion: my heart goes out to Petitioners 5-6 to whom we could  not extend more help in this process, given the existing legal situation. Nevertheless, I would point out that this does not detract from the possibility on the part of the said Petitioners to present their case and the interests of those like them to the Knesset during the deliberations that are to be held in the Labor, Welfare and Health Committee (hereinafter: Labor Committee) in preparation for the second and third readings of the Embryo Carrying Agreements (Approval of Agreements and Status of the Newborn) (Amendment no. 2) Bill, 5777-2017 (hereinafter: the Bill) that was introduced in the Knesset on  July 5, 2017 and passed its first reading on July 17, 2017.

4.         Owing to the fact that the Bill passed its first reading, the Respondents requested that we not decide upon the petition, and we have granted this request partially, as described in the opinions of my colleagues. On this issue of the constitutional dialogue, which is important, I will add several comments below, as a type of introduction for the future.

 

The ramifications of legislative initiatives for pending processes

5.         In principle we (as well as the administrative authorities) are supposed to decide according to the existing law. See: HCJ 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religion [70]. However, over the years exceptions to this rule have emerged. A comprehensive discussion of them appears in a recently published article: Bell Yosef, A Mixed Blessing – The Normative Status of Legislative Initiatives, 40 Tel Aviv U. L. Rev. 253 (2017) (Heb.). See also: Aharon Barak, Partnership and Dialogue between the Legislative and the Executive Authority and the Judiciary, 4 Moznei Mishpat 51, 68 (2005) (Heb.); Barak Medina, Strategic Considerations behind Normative Explanations: Lessons from Israel’s Supreme Court Expropriations Case: A Reply to Haim Sandberg, 11 Int’l J. Const. L. 771, 773-776 (2013); Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) (hereinafter: Young)).

A related issue concerns the question of whether the reviewing court should give directives to the legislature when it strikes down a law – how to legislate a future law that will be immune, as it were, to constitutional judicial review ‒ or whether it should confine itself to a constitutional analysis of the new law that will be brought before it, after the legislature has had its say.

In the Desta case [1], I discussed this question and said as follows:

There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie,  Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. v. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

6.         Now, after having presented the comparative law on this issue, and the theoretical streams that indicate the possible routes for dealing with it, I will return to the matter at hand.

It appears to me that the legislators, when they discuss the Bill in preparation for its second and third readings, must give thought to the words of my colleague the President, and my colleagues who are retiring from this Court (and therefore from this panel), which were uttered by way of “judicial advice” in relation to the subjects that remain pending in this petition. Moreover, the Respondents have made it clear that issues that the Petitioners raised could be discussed in the framework of the deliberations of the Labor Committee. The same applies, in my view, to the situation discussed in the Moshe case – a petition that was denied by a majority of four judges against three, and which presented, according to all the judges, a problem that called for a solution, preferably within the borders of Israel, without sending those petitioners (one of whom had a genetic connection and the other a physiological one) to a foreign country in other to fulfill their yearning for parenthood.

7.         How is the matter of Petitioners 1-4 therefore distinguishable from that of Petitioners 5-6, such that we leave the petition of the first group pending? I will now answer that briefly.

8.         The matter concerning Petitioners 1-4 does not encounter the barrier of an absence of a genetic link (at least with respect to one of the couples). At this stage, therefore, their request ought not to be rejected in advance, for it may be possible to find a solution for the issues that they raise within the framework of particular constitutional remedies, which my colleague Justice E. Hayut and myself were ready to consider in the framework of our dissenting opinion in the Moshe  case.

However, the legislature takes precedence in this regard, and a first step has already been taken in the framework of the Bill. Therefore, we found that we should wait for the process to ripen by virtue of the principle of mutual respect between the branches. However, the Bill, even if it is approved within a reasonable period of time, still does not, apparently, provide a solution for Petitioners 1-4 and others like them. Thus, their right to claim that a constitutional omission in this area violates their basic constitutional rights must be preserved. Recognition of this, if it should be given, and if  the violation is not protected in the framework of the limitations clause, might justify obligating the legislature to act (see: Aharon Barak, The Constitutional Right to Protection of Life, Body and Liberty, 15 Mordechai Kremnitzer Volume (Ariel Bendor, Haled Ghanayim, Ilan Saban eds., 2017)  (Heb.)), or the development of a suitable constitutional remedy. I say this here, without laying down the law, as a milestone or traffic sign in the framework of the above models (cf.: Young, at 131).

9.         In conclusion: this judgment is being handed down on the day of the retirement of my colleague Deputy President Selim Joubran. In translation from Arabic to Hebrew, the name Selim has two, separate or perhaps complementary, meanings: completeness and health. I know how much my colleague wanted his opinion in the case before us to be complete and to address all the aspects of the petition, so that his opinion would give expression to his complete judicial approach, which supports equality. The irony is that due to his pursuit of peace and in light of the above legislative initiative, which appeared only recently, he is forced to leave the labor for others to complete (the legislature, and if there is no choice – this Court).

It remains to me, therefore, only to wish our colleague Selim good health – which, as we have said, is the other meaning of his name – and that he continue to engage in productive activity, and to say to him who has in our eyes symbolized the possibility of co-existence with mutual respect, recognition and appreciation – goodbye and may peace be with you.

 

Decided in accordance with paragraphs 18 and 44 of the partial opinion and decision of Deputy President S. Joubran.

Given this day, 11 Av 5777 (Aug. 3, 2017).

 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioners in HCJ 2141/20:               1.         Adalah – Legal Center for Arab Minority Rights  in Israel

                                                            2.         The Joint List

Petitioner in HCJ 2187/20                              The Union of Journalists in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

Attorney for the Petitioner in HCJ 2109/20: Pro se

Attorneys for the Petitioner in HCJ 2135/20:  Dan Yakir, Adv., Gil Gan-Mor, Adv.

Attorney for the Petitioner in HCJ 2141/20: Hassan Jabareen, Adv., Suhad Bishara, Adv.

Attorney for the Petitioners in HCJ 2187/20: Moran Svorai, Adv.

Attorney for Respondents 1-7 in JCJ 2109/20 & Respondents in HCJ 2135/20: Reuven Eidelman, Adv., Shosh Shmueli, Adv.

Attorney for Respondents 8-9 in HCJ 2109/20: Avital Sompolinsky, Adv.

 

 

Petitions for order nisi and interim order

 

Israeli Supreme Court cases cited:

[1]       HCJ 2435/20 Yedidya Loewenthal, Adv. v. Prime Minister, (April 7, 2020) [https://versa.cardozo.yu.edu/opinions/yedidya-loewenthal-adv-v-prime-minister]

[2]       CA 6455/19 Yeruhamovich v. Official Receiver, (Jan. 28, 2020)

[3]       HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52(5) 481 (1998) [https://versa.cardozo.yu.edu/opinions/rubinstein-v-minister-defense]

[4]       HCJ 4491/13 Academic Center of Law and Business v. Government of Israel, (July 2, 2014)

[5]       HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016) [summary of judgment: https://versa.cardozo.yu.edu/opinions/movement-quality-government-v-prime-minister]

[6]       HCJ 5936/97 Oren Lam v. Ben Tzion Dal, Director-General Ministry of Education, Culture and Sport, IsrSC 53(4) 673 (1999) [https://versa.cardozo.yu.edu/opinions/lam-v-dal]

[7]       HCJ 7510/19 Orr-Hacohen v. Prime Minister, (Jan. 9, 2020)

[8]       CrimA 1302/92 State of Israel v. Nahmias, IsrSC 49(3) 309 (1995)

[9]       CA 439/88 Registrar of Databases v. Ventura, IsrSC 48(3) 808 (1994)

[10]     LCA 2558/16 A. v. Claims Officer of the Ministry of Defense, (Nov. 5, 2017)

[11]     AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority, (May 19, 2005)

[12]     LCA 8954/11 Doe v. Doe, IsrSC 66(3) 691 (2014) [https://versa.cardozo.yu.edu/opinions/doe-v-doe]

[13]     HCJ 8070/98 Association for Civil Rights in Israel v. Minister of the Interior, IsrSC 58(4) 842 (2004)

[14]     HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (May 28, 2012) [https://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-israel-police]

[15]     HCJ 6298/07 Ressler v. Knesset, (Feb. 21, 2012) [https://versa.cardozo.yu.edu/opinions/ressler-v-knesset]

[16]     HCJ 10203/03 Hamifkad Haleumi v. Attorney General, (Aug. 20, 2008) [https://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general]

[17]     HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services, (May 8, 2012)

[18]     HCJ 466/07 MK Zahava Gal-On v. Attorney General, (Jan. 11, 2012) [https://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]

[19]     HCJ 7040/15 Hamad v. Military Commander in the West Bank, (Nov. 12, 2015)

[20]     LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality, (July 27, 2017)

[21]     Nesher Israel Cement Enterprises v. Ministry of Environmental Protection, (July 23, 2018)

[22]     CrimApp 8823/07 A. v. State of Israel, IsrSC 63(3) 500 (2010) [https://versa.cardozo.yu.edu/opinions/v-state-israel-0]

[23]     AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority, (Feb. 11, 2008)

 

United States Supreme Court cases cited:

[24]     United States v. United States Dist. Ct., 407 U.S. 297 (1972)

[25]     Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

 

 

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

 

Judgment

(April 26, 2020)

 

President E. Hayut:

            The joined petitions before us challenge the Government’s decision of March 31, 2020 to authorize the Israel Security Agency (hereinafter: ISA), by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter the ISA Law), with the consent of the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee, to collect, process and use “technological information” regarding persons who have tested positive for the novel coronavirus (hereinafter: the virus), as well as persons who came into close contact with them (hereinafter: the Enabling Decision). The Journalists Union further asks that the journalists in the State of Israel be exempted from the application of the Enabling Decision, due to the fear of infringement of journalistic privilege and the exposure of sources.

            I will already note at the outset that the petitions were also originally directed at an additional Government Decision of March 16, 2020 (which was amended pursuant to remarks by this Court on March 25, 2020), that authorized the Israel Police, by virtue of Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations), to supervise the isolation requirement and enforce it upon those required to remain in isolation. This was to be accomplished by authorizing the police to receive location-data samples from the telecommunication companies in order to check whether the address where a person was required to isolate matched the location of that person’s cellphone. On March 23, 2020, the Governmental Respondents informed the Court that they intended to enshrine the police authorization in this regard in primary legislation, subsequent to which the Criminal Procedure (Enforcement Authorities – Telecommunication Data) (Temporary Order – Novel Coronavirus) (Receiving Location Data for the Purpose of Supervision of Isolation Orders) Bill, 5780-2020 (hereinafter: the Telecommunications Data Bill) was presented to the Knesset plenum. The Telecommunications Data Bill passed its first reading, but on April 23, 2020, the Respondent informed us that following several debates in the Foreign Affairs and Defense Committee, the Government decided not to present the Bill for second and third readings in the Knesset at this time. The Governmental Respondents further informed us that on April 22, 2020, the Police Regulations will expire, and that the authorities granted thereunder would not be exercised at this time.

            Therefore, for the present, the hearing in regard to the Police Regulations, and the interim order requested in that regard by the Petitioners in HCJ 2141/20, has become moot. This judgment will, therefore, focus upon the Enabling Decision in regard to the activity of the ISA.

 

Factual Background

1.         These are days of  national and worldwide crisis of dimensions and scope the likes of which we have not known (see: HCJ 2435/20 Loewenthal v. Prime Minister [1], para. 1 (hereinafter: the Loewenthal case). The coronavirus epidemic that began to spread throughout the world several months ago, and that has cost so many lives in various countries, did not spare the State of Israel. Since the first infected person was discovered here, two months ago, there have been over 15,000 verified cases, and some 200 people have perished from the illness. For about a month, the majority of Israeli citizens have been sequestered in their homes, and the education system is closed. Many economic branches are at a standstill, while others are on the verge of collapse or their activity limited, and the resulting daily economic harm to the marketplace approaches more than a billion shekels. The data of the government agencies shows that there are more than a million unemployed in Israel. Entire cities and towns have been placed under quarantine, and movement between cities has been prohibited for days at a time. The activity of Ben Gurion Airport has been disrupted and almost brought to a standstill. This year, we celebrated Passover with only our nuclear family members who live with us, and the situation in some countries – including countries with advanced, developed health systems – is even worse.

2.         In order to contend with the spread of the virus, the Israeli Government adopted a policy of “social distancing”, and the isolation of verified patients and those who came into close contact with them. To that end, a number of very exceptional steps were adopted over time, among them, authorizing the ISA to aid in epidemiological investigations through the use of the technological means at its disposal, for the purpose of identifying, as quickly as possible, the route of the movement of anyone who tested positive for the virus during the 14 days prior to the diagnosis, and locating all the people who were in that person’s close proximity for more than a quarter of an hour (hereinafter: contacts).

            In this regard, we would note that the ISA was originally authorized to perform the said activity by promulgating emergency regulations (hereinafter: the ISA Regulations). The original petitions challenged that decision, focusing upon issues related to the authorities granted to the Government by virtue of a Declaration of a State of Emergency, and the possibility of promulgating emergency regulations for the purpose of contending with a civilian health crisis, like the spread of the coronavirus epidemic. Following the hearing of the original petitions, on March 19, 2020, an interim order was granted that stated in regard to the ISA Regulations that “if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision,” and the restricting of the ISA Regulations only to verified patients.

3.         Following the swearing-in of the 23^rd Knesset, the Arrangements Committee was established on March 24, 2020, along with several temporary Knesset committees, among them the Knesset Foreign Affairs and Defense Committee and the Subcommittee for Intelligence and Secret Services of the Knesset Foreign Affairs and Defense Committee (hereinafter: the Services Committee). That same day, the Government passed Decision no. 4916, according to which the ISA was authorized, by virtue of sec. 7(b)(6) of the ISA Law, to collect and process “technological information” regarding persons who have tested positive during the 14 days prior to their diagnosis, for the purpose of identifying that person’s route of movement and identifying the people who were in that person’s close proximity during that period, so that the Ministry of Health could instruct them to self-isolate at home.

4.         Section 7(b)(6) of the ISA Law permits the Government to authorize the ISA to perform activities in an area that is not among the core areas of its authorized activity under the ISA Law, subject to meeting the conditions set forth under the section, which we will address below, and subject to the consent of the Service Committee. The Government’s decision was therefore presented to the Service Committee, which held five debates on the issue, three of which were unprecedented public hearings. In the public hearing on March 26, 2020, conducted as a video-conference – with the participation of representatives of the Knesset and the relevant government agencies, and public representatives, including representatives of some of the Petitioners – questions were raised in regard to the period during which the use of the surveillance authorizations granted to the ISA would be required. The representatives of the Ministry of Health pointed out that the use of these authorizations would be necessary as long as the Government’s policy is premised upon home-isolation of those who have come into close contact with people who have tested positive. They added that, in their opinion, in the event of a decision to relax the isolation policy, the use of the ISA for tracking would not become superfluous, but on the contrary – to the extent that restrictions would be eased, the need for the ISA’s “contact tracing” would become all the more necessary. In view of these circumstances, the Ministry of Health stated that it was unable to delimit the timeframe in which the ISA’s assistance would be required.

5.         On March 29, 2020, the Security Committee held a closed-door session, and the open session continued on March 30, 2020 – this time, only with the participation of members of the Knesset and the Government. The debate addressed four possible paths for authorization of the ISA’s use of its technological resources for the purpose of epidemiological investigation: (1) amending the ISA Law in a regular legislative process, and adding the said authority to the law; (2) enacting a separate law designated for that purpose; (3) promulgating emergency regulations by the Government, by virtue of sec. 39 of Basic Law: The Government, similar to the approach adopted prior to the swearing-in of the 23^rd Knesset that was the subject of the original petitions; (4) granting Government authorization to the ISA to conduct this activity by virtue of sec. 7(b)(6) of the ISA Law, by means of an enabling decision.

            The Committee’s legal advisor, Advocate Miri Frenkel-Shor, presented the advantages and disadvantages of each of the alternatives, and recommended adopting the last approach, i.e., that of an enabling decision, which was actually implemented following the swearing-in of the 23^rd Knesset.

6.         The Service Committee held another meeting, on March 31, 2020, in which it approved Government Decision No. 4950 – i.e., the Enabling Decision – following several changes and amendments made pursuant to comments by the Service Committee. This decision grants the ISA the authority “to receive, collect, and process technological information for the purpose of aiding the Ministry of Health in carrying out an examination in regard to the 14 day period prior to the diagnosis of the patient, for the purpose of identifying location data and routes of movement of the patient and identifying persons who came in close contact with that person, in order to locate those who might have become infected by that person” (sec. 2(a) of the Enabling Decision). At present, the Enabling Decision will remain in force until April 30, 2020, and its definition of “patient” was restricted in accordance with the decision of this Court in the interim order. The term “close contact with a patient” was defined as – contact that is likely to lead to infection in accordance, to the extent possible, with the clinical directives presented by the Ministry of Health in regard, inter alia, to the distance from the patient and the period of exposure, as shall be established in instructions that will be published on the Ministry of Health’s website, which will be updated from time to time, and brough to the attention of the Service Committee. General directives were established in regard to the protection of the information and its processing by the ISA. A provision was added that establishes that while the Enabling Decision is in force, the Minister of Health will periodically examine the need for the continued assistance of the ISA, in view of the restrictions upon activity imposed upon the public, or the availability of alternatives for achieving the purpose of the decision. In addition, a duty to notify the Service Committee was established, requiring that details in regard to the number of patients for whom the Ministry of Health requested the collection of data, the number of persons located by the ISA due to their proximity to a patient, and the steps taken by the Ministry of Health on the basis of the requested data, be presented to the Committee every six days, and to the Attorney General every three days.

7.         The mechanism established in the Enabling Decision for permitting assistance from the ISA and for employing its technological means for tracking contacts is as follows: after diagnosing a patient with a positive laboratory test for the virus, the Ministry of Health requests that the ISA track the patient’s movement over the course of the 14 days prior to the diagnosis, and identify the people who were in the patient’s proximity for more than a quarter of an hour during that period. To that end, the Ministry of Health gives the ISA the patient’s name, identification number, cellphone number, and the date of the diagnosis. At that point, the patient is sent a text message informing him that his particulars have been given to the ISA. After processing the necessary information, the ISA informs the Health Ministry of the route of the patient’s movement over the 14 days prior to the diagnosis, and details of the relevant contacts. These details include the name of anyone in close contact with the patient, as defined in the Enabling Decision, their identification number, telephone number, date of birth, and the date and place of exposure. At this point, a text message is sent to each of the people whose particulars were transferred to the Ministry of Health as persons who had come into close contact with the diagnosed patient, and they are asked to begin self-isolation at home for 14 days, and to report that on the Ministry of Health’s website.

8.         In view of this development, we permitted the Petitioners in all the petitions to amend their petitions accordingly. The amended petitions were submitted on April 5, 2020, the responses to them were submitted by April 12, 2020, and the hearing, which was held on April 16, 2020, was broadcasted to the public by livestream. With the consent of the Petitioners, a closed-door, ex parte hearing was also held in the course of the hearing, and the Respondents agreed that the petitions would be deemed as if an order nisi had been granted.

 

Arguments of the Parties

9.         The Petitioner in HCJ 2109/20, Advocate Shachar Ben Meir, the Petitioner in HCJ 2135/20, The Association for Civil Rights in Israel, the Petitioners in HCJ 2141/20, The Adalah – Legal Center for Arab Minority Rights in Israel and the Joint List Knesset faction (hereinafter: Adalah and the Joint List), and the Petitioner in HCJ 2187/20, The Union of Journalists in Israel (hereinafter: the Journalists Union) (hereinafter jointly: the Petitioners) all argue that authorizing the ISA to address a civilian public-health issue is contrary to the ISA Law, and that the Government’s Enabling Decision in this regard was ultra vires. According to the Petitioners, the ISA, as the preventive security agency of the State of Israel, is only authorized to conduct security-related tasks, and therefore sec. 7(b)(6) of the ISA Law – which allows the Government, with the consent of the Service Committee, to authorize the ISA to carry out tasks in another area for the purpose of protecting and advancing “other essential national security interests” – should be narrowly construed. According to the Petitioners, this section should be understood as permitting such activity only in regard to security threats in the “narrow” sense. Alternatively, the Petitioners argue that even if sec. 7(b)(6) of the ISA Law be given a broader interpretation, permitting the ISA to act in extra-security areas, that authority should be exercised only in extreme cases, which the current matter is not. Adalah and the Joint List further argue that the Enabling Decision violates fundamental individual rights, and therefore, in substance, it constitutes a primary arrangement. In their view, sec. 7(b)(6) is merely a “basket clause”, and therefore such a decision cannot be made in reliance upon it.

10.       The Petitioners further argue that the powers granted to the ISA by the Enabling Decision violate individual rights and fundamental principles of the system. Primarily, they argue that the constitutional right to privacy is violated, and Adalah and the Joint List are of the opinion that there is also a no-lesser violation of the constitutional right to dignity. The Petitioners do not dispute that the Enabling Decision was made for a proper purpose that befits the values of the State of Israel as a Jewish and democratic state, nor that there is a rational connection between that purpose the chosen means, but they are of the opinion that there are less harmful means than those chosen, and that the harm caused by those means exceeds its benefit. In this regard, the Petitioners argue that choosing the ISA to carry out a civilian public-health task fundamentally alters the checks and balances of a democratic society, in which mass surveillance of citizens by the security services should be reserved for specific needs of protecting state security. Therefore, they argue, the task should have been assigned to civilian agencies, like private companies, the Ministry of Health, or at least the Israel Police. The Petitioners further insist that the mechanism established by the Enabling Decision is inconsistent with the applicable norms for the protection of the privacy of databases, particularly in view of the compulsory character of the mechanism and the associated lack of transparency.

11.       On its part, the Journalists Union raises arguments concerning the implications of the Enabling Decision for journalists in the State of Israel. According to the Journalists Union, the Enabling Decision infringes freedom of the press and the confidentiality of journalists’ sources, as it may create a chilling effect upon sources, who may fear exposure to “location tracing” performed by the government authorities. The Journalists Union stresses the importance of protecting journalistic sources, particularly in these unusual times, and emphasizes that the number of persons holding press credentials in Israel is not great – totaling some 5,000 persons. Therefore, in its view, the danger of excepting that group from the established arrangement is defined and limited. The Journalists Union therefore petitions for excepting journalists from the application of the Enabling Decision, or at least, that special conditions be established for exercising the authorities therein in regard to journalists.

12.       As opposed to this, Respondents 1-7 in HCJ 2109/20, which are the relevant governmental organs (hereinafter: the Government Respondents), and Respondents 8-9 in HCJ 2109/20 and HCJ 2135/20 – the Knesset and the Chair of the Service Committee, Knesset Member Gabi Ashkenazi (hereinafter: the Knesset Respondents) (jointly: the Respondents), argue that the phrase “other national interests vital to the national security of the state” in sec. 7(b)(6) of the ISA Law encompasses broader areas than security in the narrow sense, in view of the language and purpose of the section. It is further argued that the epidemic caused by the coronavirus, and the need to confront it and stop its spread, fall within the scope of cases in which the ISA can be empowered by virtue of sec. 7(b)(6) of the ISA Law. The Government Respondents do not deny that that the Enabling Decision infringes the constitutional right to privacy, but they are of the opinion that the violation is proportionate. The Government Respondents further note that, at the outset, the Ministry of Health conducted individual epidemiological investigations in which each confirmed patient was interviewed, and his movements over the two weeks prior to his isolation were published on the website of the Ministry of Health and the broadcast media. But as the number of confirmed cases in Israel rose, individual interviews became impractical, and the professionals in the Ministry of Health concluded that the use of technological means was required in order to identify the movement of those positively diagnosed  as quickly as possible, and in order to locate all the people who were in close proximity of such persons for more than a quarter of an hour during the 14 days prior to the positive diagnosis. To that end, the Ministry first considered employing technologies offered by private companies, but those alternatives were found to be inadequate, and attempts to obtain the assistance of large international companies that have technological means that might be of use did not receive positive replies. Assigning the task to the Israel Police, which would receive the telecommunications data from the telecommunications companies, was also considered, but the relevant professionals found that there was a clear gap between the ability of the Police and that of the ISA in this regard. The Respondents further emphasize that the undeniable infringement of the right to privacy must be viewed against the right to life of the citizens and residents of the State of Israel, and the stability of the Israeli marketplace. According to the Respondents, under these circumstances, the weight of the latter rights and interests exceeds that of the violation of the right to privacy.

13.       As for the arguments of the Journalists Union, the Respondents argue that the powers granted under the Enabling Decision do not infringe freedom of the press, as claimed. This is so, inasmuch as if a journalist is positively diagnosed, his personal details will only be provided to the ISA and the Ministry of Health (and only to those granted access to the data in those bodies). The Respondents emphasize that the process of locating and processing the technological information in regard to the patient’s contacts is largely automatic. They further point out in this regard that the possibility of excepting journalists and others entitled to privilege was considered, but the importance of saving lives and stopping the chain of transmission is greater than the need to protect privileges.

 

Examination and Decision

14.       The central question before the Court concerns the legality and constitutionality of authorizing the ISA to employ the means at its disposal to assist the Ministry of health in conducting epidemiological investigations by collecting and processing “technological information”. Examining this question requires addressing it on three levels: First, in terms of authority – we must examine whether sec. 7(b)(6) of the ISA Law grants the Government the authority to employ the ISA in a purely civilian area that concerns a danger to public health. For that purpose, we must construe the meaning of the phrase “other essential national security interests” in sec. 7 of the ISA Law. Second, if the answer to the first question is positive, then we must further enquire as to the whether it was proper, under the circumstances, to use a Government Decision under sec. 7(b)(6) of the ISA Law for the purpose of empowering the ISA, or whether it would have been preferable to enshrine that authority in primary legislation. Lastly, if the answer to the second question is that it was not necessary to enshrine the authority in primary legislation, then we must consider whether the Enabling Decision is proportionate. That, given the undeniable infringement of human rights resulting from authorizing the ISA to act as stated.

 

The Issue of Authority – The Normative Framework

15.       The ISA Law was enacted in 2002, reflecting the view that the activity of the preventive security service of the State of Israel should be addressed in appropriate primary legislation that would define its authority, establish its subordination to the civil authorities, and the oversight of its activity. For the matter before us, the provisions concerning the purpose of the ISA, detailed in sec. 7(a) of the Law, and its functions, as detailed in sec. 7(b) are of relevance. These sections state as follows:

7.         (a)        The Service is responsible for protecting state security, the democratic regime and its institutions against terrorist threats, terrorism, subversion, espionage, and revealing state secrets, and the Service will also act to protect and advance other essential national security interests of the State, as the Government shall decide, and subject to any law.

(b)       For the purpose of subsection (a), the Service shall perform the following tasks:

(1)       Frustration and prevention of illegal activity intended to harm state security, the democratic regime or its institutions;

(2)       Protecting people, information and places as decided by the Government;

(3)       Establish directives in regard to security classification for roles and positions in the civil service and other bodies, as shall be decided by the Government, with the exception of elected officials and judges, and establishing the security compatibility of a person for a classified role or position, including by means of polygraph examination, as shall be established in rules. For the purpose of this section: “Judges” – a person holding judicial authority under Basic Law: The Judiciary, with the exception of candidates for judgeships and a military judge under the Military Justice Law, 5715-1955;

(4)       Establishing security procedures for bodies as decided by the Government;

(5)       Conducting intelligence research and providing advice and situation evaluations to the Government and other bodies as decided by the Government;

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State;

(7)       Collection and acquisition of information for the protection and advancement of the matters detailed in this section.

 

            The parties to the petitions are divided as to the meaning of the phrase “essential national security interests of the State” that appears twice in sec. 7 of the ISA Law. According to the Petitioners, the ISA Law expresses a sensitive balance between granting very broad powers to the ISA, on the one hand, and restricting the use of those powers solely for security purposes, on the other hand. The Petitioners argue that coronavirus epidemic – as complex and difficult as it may be – is not among the situations that would justify “crossing the Rubicon” and authorizing the ISA to employ its abilities – that are rooted in preventive security – in order to assist in performing epidemiological research in the framework of a health crisis that does not present a threat to the very existence of the state. As opposed to this, the Respondents are of the opinion that the use of the term “national security” rather than “state security” in sec. 7 of the ISA Law indicates that it is possible to authorize the ISA to carry out missions that are not “security related” in the narrow sense. However, the Respondents agree that expanding the ISA’s activity beyond the narrow area of security for which it is responsible is problematic, and must be resorted to only in exceptional cases.

            In order to resolve the dispute between the parties as to the proper interpretation of the provisions of sec. 7(b)(6), we must make recourse to our system’s accepted rules of interpretation.

 

Section 7(b)(6) of the ISA Law – The Interpretive Process

16.       The interpretive journey begins with the language of the provision we seek to interpret (CA 6455/19 Yeruhamovich v. Official Receiver [2], para. 9 (hereinafter: the Yeruhamovich case)). Section 7(b)(6) of the ISA Law speaks of “Activity in another area […] intended to protect and advance essential national security interests”, and it would appear that the words “national security” are the key words requiring interpretation.

            The term “national security”, and the aspects comprises, does not have a universally accepted definition (Greg Carne, Thawing the Big Chill: Reform, Rhetoric and Regression in the Security Intelligence Mandate, 22 Monash U. L. Rev. 379 (1996) (hereinafter: Carne)). The conceptions of security differ from country to country. They derive from their different characteristic security challenges, and from the differences between the bodies and institutions responsible for security in each state. Even in Israel, the concept of “national security” does not have a comprehensive statutory or case-law definition, and therefore, it is possible that its scope may differ in regard to different matters, in accordance with the context in which it appears.

            In the present matter, it may be possible to argue that the language of sec. 7(b)(6) of the ISA Law does not allow for authorizing the Israel Security Agency to engage in matters that are not in the field of security. As opposed to this, the legislature chose to employ two different terms is sec.7 – “national security” and “state security” – and we presume that the legislature did not do so for esthetic purposes, as a mere “linguistic adornment”. For interpretive inspiration, the Government Respondents went to great lengths in comparing other laws that employ the term “national security”, noting that this term has been broadly construed in various contexts, including aspects of national resilience in the socio-economic sphere. The Government Respondents further pointed to decisions in the field of international law in which the term “national security” was construed as comprising, inter alia, economic crises. Therefore, from a linguistic perspective, we cannot rule out the interpretation suggested by the Respondents, according to which the use of the term “national security”, as opposed to “state security”, granted the Government – by virtue of the section and the consent of the Security Committee – the authority to extend the activity of the ISA to another area that is not at the core of security activity, to the extent required for the purpose of protecting and advancing “essential national security interests” related to security in the broad sense. We would emphasize that in their arguments, all of the Respondents stress that we are not speaking of any “national interest” in any sphere, but rather the authorization applies only to exceptional cases in which there is an essential need to do so.

17.       In terms of the interpretive possibilities that the language “tolerates”, we must choose the interpretation that best realizes the normative purpose under examination (see: the Yeruhamovich case, para. 9). The subjective purpose of the law can be learned from its legislative history. In this regard, the fact that the Knesset Respondents went to the trouble of presenting the transcripts of the deliberations of the Knesset committees that addressed the enactment of the relevant section of the ISA Law is worthy of note and praise. These transcripts, which were classified until now under sec. 6(b) of the ISA Law and restrictions imposed by the Knesset Rules of Procedure, were appended, with the consent of the parties, as appendices to the Knesset’s response thanks to its efforts to permit their release. Although parts of the transcripts were blackened out for reasons of national security, they can serve to show the purpose of sec. 7(b)(6) of the ISA Law, and the serious reflection in its enactment.

18.       The Israel Security Agency Bill, 5758-1998 (hereinafter: the Bill) was submitted by the Government in 1998. In that framework, the original language of sec. 7(b)(6) established that one of the tasks of the Service was “activity in another area decided by the Government, with the consent of the Knesset Secret Service Committee, intended to protect and advance essential interests of the state”. In the course of the deliberations on the Bill, several members of the Subcommittee for the ISA Law expressed the fear of the possibility that the Government might improperly exploit the authority established under sec. 7(b)(6) of the Bill, and significantly expand the powers of the ISA to areas that deviate from the security matters for which it is expressly responsible. Thus, Knesset Member Ze’ev Binyamin Begin noted that the phrase “essential interests of the state” is understood as referring to “market, economic, and perhaps social” interests, and warned that the use of this power for such purposes might violate individual rights in matters that have nothing to do with security (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 24, 1998, pp. 23, 31). Knesset Member Ran Cohen joined in expressing those fears, emphasizing that “the ISA should deal with security matters, and the police should focus on purely civilian matters” (transcript of the meeting of the Subcommittee for the ISA Law of Aug. 26, 1998, p. 10). Professor Mordechai Kremnitzer, who attended one of the sessions, was of the opinion that the ambiguous description of the ISA’s tasks, particularly the possibility for significantly expanding them by virtue of sec. 7(b)(6) of the Bill, might lead to the Government employing the ISA for purposes for which it was not created.

19.       In view of these comments, the end of sec. 7(b)(6) of the Bill was changed to “essential national security interests of the State”. Then Deputy Attorney General Meni Mazuz explained that this change was meant to limit the scope of the provision in the original Bill, explaining as follows:

The term “national security” is somewhat broader than the term “security” in its narrow sense. For example, if an enemy state intends to flood the State of Israel with counterfeit money, that is something that could harm national security, in the sense that the state could collapse. These are matters that are not security in the sense we are used to, of armed security, terror, army (transcript of the meeting of the Subcommittee for the ISA Law of Dec. 30, 2001, p. 33).

 

            The Deputy Attorney General went on to present a number of examples from areas that might be considered “essential national security interests of the State”. In this framework, he noted such economic issues as industrial espionage and transnational crime, as well as serious international crimes, and “things that are done around the world in which an organization like the ISA or parallel organizations have a certain professional advantage over the regular police” (ibid., p. 40). The ISA Legal Advisor at the time, Advocate Arie Rotter, later explained that the term “essential national security interests”, as such, allows for granting authority to the ISA “in a broad manner, beyond security matters” (Arie Rotter, The Israel Security Agency Law – Anatomy of a Law, 75, fn. 202 (2010) (hereinafter: Rotter) (Hebrew)). Ultimately, on Feb. 11, 2002, the ISA Law was approved by the Knesset plenum, and the language of sec. 7(b)(6) of the Law is the amended language of the Bill that we have just examined.

20.       As we see from the legislative history described above, due to reservations expressed by Knesset Members in regard to the significant expansion of ISA authority, the possibility of the Government employing the ISA was restricted only to areas directly related to the national security of the State. In this regard, it would appear that sec. 7(b)(6) of the ISA Law was not intended, as a rule, to expand the role of the ISA to civilian areas. However, from the discussions of the Bill, we learn that it was the legislative intent to include matters that deviate from the narrow meaning of “national security”.

21.       As for the objective purpose of sec. 7(b)(6) of the ISA Law and its ramifications for the interpretation of the term “national security”, an overly broad, ambiguous definition of the expression “national security” in this context might loosen the reins and permit employing the ISA’s abilities for missions that have absolutely nothing to do with the purpose of a preventive security organization. As noted, the ISA Law limits the purpose of the ISA, and grants it defined tasks that are meant to enable the State of Israel to contend with the security threats that are part of our daily reality, primarily by means of collecting preventive intelligence, providing personal protection for personages, and other security activities (see: Eli Bachar, Legal Advice in a Security Service, 52 (2013) (Hebrew); Isser Harel, Security and Democracy, 162 (1989) (Hebrew); for a comparative survey, see Ariel Zimmerman, The General Security Services Bill – A Comparative Study, (Israel Democracy Institute, 1997) (Hebrew)). To that end, it was provided with broader tools and means than those given the police, which contends with civilian threats and maintaining public order (and compare, for example, the powers of the ISA under sec. 11 of the ISA Law with those granted to the police in this regard in the Criminal Procedure (Enforcement Authorities – Telecommunications Data), 5768-20017). This established the balance between the security needs of the State and the foundations of our democratic regime, primary among them, respect for the rights and freedoms of the individual and the principle of the rule of law. Employing the abilities of the ISA in regard to the State’s citizens and residents who intend it no harm comprises a threat to the existence of a democratic society that, as a rule, is willing to abide a certain, limited and defined infringement of human rights, and occasionally even of the rule of law, in regard to threats to its continued existence. Expanding the situations in which recourse can be made to the preventive security service thus raises serious fears.

22.       For the sake of comparison, in strategic papers published by the United States government over the last few years, the term “national security” comprised such aspects as cyber threats, natural disasters, drug trafficking, shortages of natural resources, and even epidemics (see: Laura K. Donohue, The Limits of National Security, 48 Am. Crim. L. Rev. 1573, 1577, 1722 (2011) (hereinafter: Donohue)). In regard to the latter, it would appear that the original intention was to epidemics resulting from biological warfare, but the federal government of the United States expanded the definition to epidemics not deriving from warfare (see, in this regard, the government’s response to the SARS epidemic in 2003, and to swine flu in 2009: Donohue, p. 1734). However, in view of the inherent ambiguity of the term “national security”, the American courts warned against exploiting its use, and expanding it in a manner that would infringe fundamental rights (see, e.g., United States v. United States Dist. Ct. [24], 314: “Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent”; and see how the United States Supreme Court addressed the broad and “malleable” use of national security considerations in the framework of the war on terror: Hamdi v. Rumsfeld [25], 520). This fear of the expansion of the meanings given to the term “national security” has been expressed over the years, inter alia, in Europe, Australia, and Canada (for an expanded discussion, see: Frank Foley, The Expansion of Intelligence Agency Mandates: British Counter-terrorism in Comparative Perspective, 35 Rev. Int. Stud. 983, 984-989 (2009); Carne, 381-385, 390-391).

            Therefore, there were those who were of the opinion that adding to the tasks of the ISA required the strictest test of protecting and advancing essential national interests for the prevention of an existential threat (see and compare: Rotter, pp. 17-18). As opposed to this, given the complexity of a changing reality, it is possible to accept the view that in certain, defined circumstances, the term “national security” may encompass a broader range of threats than those that are actually existential.

23.       In my opinion, sec. 7(b)(6) of the ISA Law should be construed as a provision that permits the Government to delegate authority to the ISA even in areas that do not concern security in the narrow sense, but the test that should be adopted for the term “national security” in this regard is that of a severe, imminent danger to the citizens and residents of the State or its regime”. In other words, as we move further from the core of security activity, the Government bears the burden of demonstrating that the situation is indeed one that presents a severe, imminent danger to the citizens of the State of Israel or to the national regime to an extent that requires mobilizing all its forces, among them its security services, in order to meet the challenge. This construction is necessary in view of the linguistic difficulty in interpreting the section, the limitation of its scope of incidence that can be discerned from its legislative history, and the emphasis – in Israel and abroad – upon preventing unchecked expansion of the powers of preventive security agencies.

            And note: the severe, imminent danger test that I believe should be adopted in this matter comprises two dimensions – a substantive dimension and a time dimension. The substantive dimension imposes a particularly high threshold of danger to the citizens and residents of the state. This does not necessarily mean an existential threat or a man-made subversive threat, but it is clear that the intention is not to the usual threats to public order that the police and civilian enforcement authorities contend with on a daily basis. As for the time dimension, the immediacy requirement requires that the danger must be such that there is no real, available possibility for developing more appropriate alternatives for confronting it before it is realized. In other words, the expansion of the powers of the ISA by virtue of sec. 7(b)(6) of the ISA Law beyond security matters in the narrow sense is not for an unlimited time period, and it is possible only as long as the immediacy requirement remains, and no other means are available for similarly addressing the severe threat. These strict requirements are necessary in view of the aforementioned fear of authorizing a preventive security service and employing its resources – which are neither transparent nor known, for understandable reasons – such that they be employed in an area that is not of a security nature in the narrow sense, and against citizens and residents of the state who intend it no harm.

24.       In summary, sec. 7(b)(6) of the ISA Law was intended to permit the Government – with the consent of the Security Committee – a certain measure of flexibility in regard to authorizing the ISA to act in circumstances that were unforeseen when the law was enacted. However, the section’s language, legislative history, and objective purpose show that the term “national security” in sec. 7(b)(6) is only slightly broader than the term “state security”, and in appropriate circumstance it can also comprise severe, imminent threats that do not derive from active subversion against the State and its institutions by some hostile entity. However, in expanding the ISA’s activity beyond the core areas of its security mandate in the narrow sense, we are concerned with the very limited expansion applicable to those rare, exceptional cases in which there is a severe, imminent threat to the citizens and residents of the state or its regime, carried out under strict restraint and supervision, and only temporarily.

 

From the General to the Specific: Is the Coronavirus Epidemic comprised by the Term “National Security”?

25.       As we have already noted in various recent decisions, like most countries, we are currently in an emergency situation unlike any we have previously experienced. As Justice I. Amit wrote in regard to another petition addressing the coronavirus epidemic, this situation leads us “from a legal standpoint … through a land not sown [Jeremiah 2:2], to legal and constitutional places and paths not imagined by our predecessors, nor even predicted by prophets of doom” (the Loewenthal case [1], para. 1). In the course of his statement to the Knesset Secret Service Committee, the Director General of the Ministry of Health, Mr. Moshe Bar Siman-Tov, referred to the current situation as “an unparalleled situation in modern times” (transcript of the meeting of the Service Committee of March 26, 2020, pp. 4-5). The National Security Council holds overall responsibility for the crisis, and its span of control for that purpose encompasses most government agencies, the Bank of Israel, the Airports Authority, the National Parks Authority, the IDF, the Israel Police, and other security and civilian entities mobilized in support.

26.       Under these exceptional, unprecedented circumstances, it would appear that even if we are not concerned with security needs in the narrow sense, the outbreak of the coronavirus crisis meets the conditions of the test for a severe, immediate threat to national security, as construed above. These unique circumstances, regarding which the Ministry of Health explained that “every passing hour is important” (statement of Deputy Attorney General Raz Nizri in the transcript of the meeting of the Service Committee of March 26, 2020, p. 24), required mobilizing the ISA in order to provide a quick, effective response to the significant challenge of  preventing the spread of the coronavirus, and permitted authorizing it for that purpose by virtue of sec. 7(b)(6) of the ISA Law.

27.       We should emphasize that not every threat to public health can be deemed a severe, imminent danger to the citizens of the state. However, the country’s situation following the outbreak of the coronavirus – which presents an exceptional challenge to the health system, and comprises devastating consequences in other areas, first and foremost, the economic security of far too many of the country’s families – justifies the finding that the current crisis passes through that narrow gate that permits the rare, exceptional expansion of the ISA’s authority by virtue of sec. 7(b)(6) of the Law. The Legal Advisor of the Service Committee aptly summarized this in stating: “It cannot be said that the ISA cannot be assigned this task in the framework of its purpose as established by law, when we are concerned with a serious, exceptional and unprecedented event, and the situation in which the state now finds itself. But this must be done with restraint, with sharp clarification that we are concerned with an exceptionally extreme situation, while emphasizing the fact that this authority is not at the core of the classic role of the Service, and that it cannot serve as a precedent for the future” (transcript of the Service Committee session of March 30, 2020, p. 3).

 

Authorizing the ISA by means of a Government Decision for contending with the Coronavirus Epidemic

28.       The next issue that must be addressed concerns the question whether the path chosen for the purpose of activating the ISA, and employing it for confronting the coronavirus is the appropriate path, or whether that authorization should be given by means of primary legislation. In this regard, Adalah and the Joint List argued that authorizing the ISA to conduct widespread tracking of citizens for civilian purposes contradicts the principle established in the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [3]) according to which there is an interpretive presumption that the legislature did not intend to authorize the executive branch to establish primary arrangements – i.e., arrangements that enshrine general policy and fundamental criteria in matters that violate basic individual rights or other matters of primary importance (HCJ 4491/13 Academic Center of Law and Business v. Government of Israel [4], para. 26, per President Grunis (hereinafter: the Academic Center case); Yoav Dotan, Non-Delegation and the Revised Principle of Legality, 42 Mishpatim 379, 414 (2012) (Hebrew)) – in the absence of express authorization by the legislature permitting the executive branch to establish a primary arrangement in a particular matter (the Academic Center case, para. 26, per President Grunis).

29.       The Enabling Decision does, indeed, establish a primary arrangement in substance, that permits the ISA to carry out widespread “contact tracing” of the state’s citizens and residents in order to protect public health and prevent the spread of the epidemic. This decision infringes basic rights, primary among them the right to privacy – a violation cannot be denied, as will be explained below – and it also expands the involvement of a preventive security service to matters that are civilian in nature. Therefore, the question is whether sec. 7(b)(6) of the ISA Law expressly permits expanding the authorities of the ISA as established in Government Decision No. 4950.

            It has been held that the urgency of the arrangement can have implications for the level of explicitness sufficient for delegating authority to the executive to establish primary arrangements (see: HCJ 4374/15 Movement for Quality Government v. Prime Minister [5], para. 61, per Justice N. Sohlberg). Having found that the outbreak of the crisis met the narrow test for the existence of a severe and imminent threat to the state’s citizens and residents, and particularly in view of the urgency inherent in activating the arrangement as pointed out by the professional entities in the Ministry of Health, I am of the opinion that at the time the Government decision was made, the authorization granted under sec. 7(b)(6) of the ISA Law was sufficiently explicit, and therefore, the decision is not repugnant to the primary arrangements principle. As noted, as it presently stands, the decision will remain in force until April 30, 2020. Can it be held that the force of the Enabling Decision can be extended again, rather than address the role of the ISA in the coronavirus crisis in primary legislation?

            In my opinion, the answer is no.

30.       When we are concerned with an arrangement of a temporary character, that was defined as limited in time when it was established, the need to reexamine the process for enshrining that arrangement, and the question of the sufficiency of the authorization upon which it was based, arise every time an extension of its force is sought. In the present matter, the weight that attaches to the urgency of the executive’s need to arrange the matter in a Government decision attenuates over time. This is particularly the case inasmuch as several weeks have passed since Decision No. 4950 was made, during which the Knesset could have conducted a substantial debate, and could have properly enshrined the authorization of the ISA in primary legislation. This fact tips the scales toward the conclusion that the authorization by virtue of sec. 7(b)(6) of the ISA Law, which relies upon the ambiguous term “essential national security interests of the State”, cannot provide a sufficient basis for so significant an expansion of the ISA’s activity over time without the legislature addressing the issue in the framework of primary legislation (see and compare the Rubinstein case [3], which held that sec. 36 of the Defense Service [Consolidated Version] Law, 5746-1986, which grants the Minister of Defense authority to exempt a person from military service “for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons”, could not serve as sufficient authority for granting comprehensive exemptions to yeshiva students “for whom Torah is their calling”). This conclusion is brought into sharper view in the present case in light of the Government’s notice in these petitions that it is currently considering the possibility of relying upon sec. 7(b)(6) of the ISA Law for the purpose of a further expansion of the ISA’s activities in the framework of confronting the coronavirus epidemic.

31.       We would emphasize that the question of the “proper path” for addressing the authorization of the ISA is not a technical matter that can be taken lightly. In a representative democracy, in which the people are the sovereign, “decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions” (the Rubinstein case [3], p. 108 [para. 22, per President A. Barak]). This basic principle is of particular importance in Israel, where there is an ongoing process of strengthening the executive branch at the expense of the legislative branch (Daphne Barak-Erez, Citizen-Subject-Consumer: Law and Government in a Changing State, pp. 42-43 (2012) (Hebrew)). An additional advantage to conducting a legislative process was well expressed by Justice D. Dorner in HCJ 5936/97 Lam v. Dal [6], 864 [para. 9]):

… generally speaking, the legislative process in the Knesset is more complex, protracted and expensive than the administrative process.  Nonetheless, efficiency is not necessarily an advantage where there is a question involving infringement of the freedom of occupation.  It is precisely the “cumbersome” nature of primary legislation and the requirement of a majority of the people’s representatives in order to pass a statute which provide a kind of institutional guarantee that basic rights will not be violated except where necessary.

 

            An up-to-date example of this can be seen in the developments described at the beginning of this opinion in regard to the legislative steps taken in order to enshrine the authorities that had been granted to the police in emergency regulations promulgated by the Government, which authorized the police to obtain location data from the telecommunications companies of persons required to remain in isolation. The Bill passed a first reading, but pursuant to the opinion of the Knesset Legal Advisor, the Arrangements Committee did not permit holding all three readings that day. In the course of preparing the Bill for a second and third reading, four in-depth meetings were convened by the Foreign Affairs and Defense Committee, which invited experts in the field of privacy protection, public health experts, and civil society organizations. In view of the reservations expressed in the meetings, the Government requested that the Bill not proceed at this time, the Police Regulations elapsed, and the police location-tracing of those required to be in isolation ceased. These developments illustrate the clear advantage of conducting a full legislative process in the Knesset, even at times of emergency, and particularly when a violation of individual rights is concerned.

32.       All of the Respondents insisted that primary legislation presents difficulties under the circumstances, primarily because it can permanently enshrine an exceptional authority and thus create a problematic precedent for the future. However, we should bear in mind that primary legislation can also be enacted as a temporary order that is limited in time and suitable for the moment. Thus, in appropriate circumstances, a temporary order – which constitutes primary legislation that is temporary by definition – can provide a proper, appropriate solution, in general, for legislation in a situation characterized by a lack of information and frequent change (see: Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            To this we should add the fact that the current Government – the 34^th Government – serves as a caretaker government whose powers, in general, are more limited than those of a regular government (HCJ 7510/19 Orr-Hacohen v. Prime Minister [7], para. 10). Indeed, the Service Committee of the newly sworn-in Knesset is conducting close, continuous parliamentary oversight – which has even led to the introduction of changes to the ISA’s authorities under the Enabling Decision. However, the temporary Service Committee, composed of a small number of Knesset Members, cannot serve as a substitute for 120 elected Knesset members. Moreover, it should be borne in mind that, as a rule, the meetings of the Service Committee are classified. In the present matter, the Services Committee did, in fact, decide that three of five of its meetings on the Enabling Decision would be open to the public, and representatives of the public, academia, and civilian and security bodies were heard. That is praiseworthy, but it is an exception that is not characteristic of the regular work procedures of the Committee.

33.       Under the unique, exceptional circumstances that developed, and especially given the timeframe imposed by the rapid spread of the coronavirus, which did not allow for initiating primary legislation in order to address the role of the ISA in the crisis, I am of the opinion that the decision to act under sec. 7(b)(6) of the ISA Law was lawful. However, due to the time dimension, which, as noted, constitutes a significant factor in regard to the possibility of expanding the ISA’s activities by virtue of the said sec. 7(b)(6), and in view of the fact that the arrangement established by the Enabling Decision constitutes a primary arrangement in substance, we cannot but conclude that if the ISA’s continued involvement is required in order to stop the epidemic even after the force of the Enabling Decision lapses on April 39, 2020, then the Government must take steps to establish the basis for such involvement in primary legislation in order to allow for the participation of Knesset Members from all the factions in the decisions related to this important issue. Such legislation should be provisional in nature, and should be enacted as a temporary order.

34.       However, as the attorney for the Knesset Respondents emphasized in the hearing, exhausting the legislative process demands time. Under these circumstances, if the Government continues to be of the opinion that authorizing the ISA for the tasks imposed upon it is still required, the Knesset should be allowed to proceed with the legislation in expedited, but not hasty proceedings that will allow for public comments and appropriate deliberations. Nonetheless, and given the fact that the Enabling Decision will expire on April 30, 2020, I am of the opinion that if the legislative process will move forward, it will be possible to extend the force of the Enabling Decision for a short additional period, not exceeding a few weeks, for the purpose of completing that process.

 

Before concluding – On Violating the Right to Privacy

35.       Having found that the Enabling Decision can no longer be relied upon for the purpose of providing for the ISA’s involvement in the coronavirus crisis after the decision expires, there is no need to examine whether the Enabling Decision meets the proportionality requirement. Nonetheless, inasmuch as the parties argued this point at length, I think it proper to make a few observations in regard to the proportionality of the infringement of the right to privacy caused by the Enabling Decision.

36.       Undeniably – and the Respondents all concede this – the Enabling Decision leads to a serious violation of the right to privacy and intimacy. This right, which achieved constitutional status upon the enactment of Basic Law: Human Dignity and Liberty (sec. 7 of the Basic Law), and was enshrined in other legislation even prior to that, most prominently in the Protection of Privacy Law, 5741-1981, and was recognized in case law as one of the most important human rights (see: CrimA 1302/92 State of Israel v. Nahmias [8], 353; CA 439/88 Registrar of Databases v. Ventura [9] 835). Moreover, on more than one occasion, the case law has stated that the right to privacy “is one of the freedoms that shape the character of the Israeli regime as democratic” (LCA 2558/16 A. v. Claims Officer of the Ministry of Defense [10], para 39, per Justice D. Barak-Erez;  and see: AAA 9341/05 Movement for Freedom of Information v. Government Companies Authority [11], para. 41, per Jusitce E. Arbel). Similarly, my colleague Justice N. Sohlberg wrote in LCA 8954/11 Doe v. Doe [12], 740 [para. 84]:

The democratic regime also requires the existence of the right to privacy. The existence of a private living space that is not under the watchful eye of the state is vital to the existence of a pluralistic society which gives freedom to the variety of voices amongst it. Political criticism will not emerge where human lives are monitored by various means. The existence of a private space is essential for the development of unique positions which can later gain political expression … And note, the right to privacy does not merely serve the person as a person. It has a broad social significance, over and above the right of the individual. Its value is great and important for the mere existence of human society.

 

37.       In the present matter, the Chair of the Service Committee, Knesset Member Gabi Ashkenazi, addressed this issue in the course of the deliberations on the Enabling Decision. He observed that authorizing the ISA to employ its technological resources for “contact tracing” grants “the State authority to invade the private areas and spaces of the citizens of the State of Israel” (transcript of the meeting of the Service Committee of March 30, 2020, pp. 39-40). President Grunis once noted, as well, that such cases present “concern about the excess power of the State, which may gather extensive information about citizens and residents and may abuse such information” (HCJ 8070/98 Association for Civil Rights v. Minister of the Interior [13], 856). “This concern increases as the government acquires more sophisticated means, making more extensive infringement of privacy possible” (HCJ 3809/08 Association for Civil Rights v. Israel Police [14], para. 5, per President Beinisch).

38.       The violation of privacy in the present case is particularly severe for two primary reasons: The first concerns the identity of the entity that is exercising the means under discussion, that is, the fact that it is the ISA – the State’s preventive security service – that is tracking the State’s citizens and residents, and the second concerns the nature of the means chosen, viz., the fact that we are speaking of a coercive mechanism that is not entirely transparent.

            As for the identity of the entity employing the said means – employing tools that were developed for the purpose of fighting against hostile elements, and aiming them at the State’s citizens and residents who do intend it no harm is a step that might cause any lover of democracy to lose sleep. To this we may add that according to documents published by the Israel Democracy Institute (hereinafter: the Institute), the apparatus employed in Israel that will be used to locate contacts with validated patients is carried out with the aid of the preventive security organ, is exceptional on the international landscape (see: Tehilla Schwartz Altshuler & Rachel Aridor-Hershkovitz,  Surveillance During a Pandemic - International Comparison, (Israel Democracy Institute, March 25, 2020); Rachel Aridor-Hershkovitz,  A Comparative Survey of Europe and the United States – Contact Tracing as a Means for Fighting the Coronavirus, (Israel Democracy Institute, March 31, 2020) (Hebrew)). This fact was not lost upon the Service Committee, which noted in this regard that the Government respondents must make a real effort to show the Service Committee “alternative tools like those available in other countries” (transcript of the meeting of the Service Committee on March 30, 2020, p. 40).

            As for the nature of the chosen means – in order to examine the level of conformity of the mechanism established in the Enabling Decision to the prevailing norms for protecting privacy in databases, we can turn to the legislation that treats of these subjects, and draw inspiration from comparative law in regard to accepted norms in the field of protection of privacy in the administering of sensitive databases (Michael Birnhack, Public Privacy by Design: The Case of Data Transfer to Political Parties, 12 Haifa Law Rev. 15, 25 (Hebrew) [English abstract]. An examination of the mechanism established in the Enabling Decision shows that there was a real effort to circumscribe and confine the infringement of privacy by adopting some of the primary norms prevailing in the field of protection of privacy of databases (see, e.g: secs. 5,7,9,10,15 and 16 of the Enabling Decision). However, the consent of the individual to collecting the information is a “central pillar” of the protection of the right to privacy (Michael Birnhack, Private Space: The Right to Privacy, Law and Technology 252 (2010) (Hebrew)). This is so because when an authority collects information in regard to an individual without obtaining his consent, his autonomous ability to control the flow of information about himself is effectively expropriated (Michael Birnhack, Control and Consent: The Theoretical Basis of the Right to Privacy, 11 Mishpat uMimshal 9, 13 (2008) (Hebrew); and see the Joint European Roadmap towards lifting COVID-19 Containment Measures of April 15, 2020, which explains that the use of cellphone applications for “contact tracing” must be carried out with full respect for the principles of protection of privacy, including that their use be voluntary).

            In addition, when we are concerned with information collected by the security agencies, transparency should be very strictly observed. In this regard, we would emphasize that the shroud of secrecy surrounding the use of the mechanism in its current format – which derives from the desire to preserve secrecy in regard to the ISA’s abilities – is understandable. The same is true for the need to protect the privacy of people who test positive, and of those who came into contact with them (Amir Cahane, The Chilling Effect: Online Surveillance in the Days of Corona, CSRCL Blog (March 16, 2020)). However, there is some justification for the view that it is “desirable to remove much of the cloak of secrecy surrounding the ‘digital means’ […]. Even if these means in themselves must remain confidential (in order to maintain special intelligence collection capabilities)” (ibid.). Therefore, it would appear that in the present matter, the possibility of providing more information on the manner by which the information is collected should be considered, and the oversight mechanisms over its use should be expanded.

39.       It cannot be denied that despite the infringement caused by employing the ISA’s tracking mechanism, that mechanism has significant advantages. Its use makes it possible to locate persons who came into close contact with a Corona patient quickly, and that makes a real contribution to saving lives and protecting public health by severing the chain of transmission. This situation requires striking a balance between the severe infringement of individual rights – primarily, the right to privacy – that the mechanism inflicts, and the significant benefit it provides.

40.       Striking the necessary balance is significantly influenced by the point in time when it is made. At the beginning of the outbreak of the virus in Israel, the choice to use the means available to the ISA derived from the “need to provide an effective means at record speed, and that was provided by the Service a short time after the Ministry of Health requested its help” (para. 163 of the Government’s Response of April 12, 2020). However, with the passage of time, it could be expected that in view of the Respondents’ own position that we are concerned with a highly effective means whose harm is undeniable, a serious effort would be made to find alternatives like those adopted elsewhere in the world, among them, use of the “HaMagen” application developed by the Ministry of Health, which are all based upon obtaining the consent of the person being tracked. This was also made clear in the meetings of the Service Committee, in which it was stated that “the State is obligated, together with its use of this exceptional means, this unprecedented means by the Israel Security Agency whose role is different and that was established for another purpose, to examine other, different alternatives” (transcript of the meeting of the Service Committee of March 30, 2020, p. 40). The Service Committee even suggested that seeking an alternative to the said means should be carried out by a competent professional entity that would conduct an organized study with the cooperation of experts in the field (ibid.).

41.       Indeed, the efforts to locate an effective alternative must continue uninterrupted. This conclusion can also be learned from the Enabling Decision itself. Section 13 states that “over the course of the period when this decision is in force, the minister of Health will consider the need for continued recourse to the Service, bearing in mind the restrictions upon the public’s activity imposed by the Government, or the existence of alternative possibilities for achieving the objective of the decision”. This provision reflects the understanding that in view of the extraordinary nature of the means currently in use, the government authorities must always consider whether the immediate needs still justify the severe means that it is employing. The Service Committee addressed this in stating:

Over the course of all the deliberations, the Committee stated that it was not comfortable with the use of the tool, and that it views it as something temporary. I find the need to state that again. The entire situation is exceptional – so we are permitting it with constraints and balances. But if it goes on, we will not be able to continue with this situation. We are not hiding this. We are saying this to everyone concerned. This is not the primary purpose of the ISA. It was not created for this purpose. The State will have to find alternative solutions, significantly reduce the use, or stop it as soon as possible (transcript of the meeting of the Service Committee of March 31, 2020, p. 34).

 

42.       In seeking such an alternative, consideration must be given to the substantive flaws in the current mechanism, and must particularly consider whether it is possible to achieve the necessary, important advantages by means of a transparent, voluntary mechanism.

 

The Journalists Union Petition

43.       The Journalists Union’s petition argues that the powers granted to the ISA in the Enabling Decision violate freedom of the press and the confidentiality of journalistic sources. It further explains that the problem does not end with the question of whether there is actually a technical fear of exposing of sources, but that the very use of a mechanism that affords a preventive security organization a possibility of tracking the “technological information” in all that regards journalists creates a chilling effect that could deter their sources.

44.       In the course of the hearing before us on April 16, 2020, we suggested that the Government Respondents consider a path agreed to by the journalists, by which a list of journalists holding press credentials would be given to the Ministry of Health, and that the Ministry would ask a journalist who tests positive for the virus to consent to providing his details to the ISA. If such consent be given, the mechanism would operate in the usual way. If the journalist would refuse, he will be granted 24 hours to petition the court for an order preventing the transfer of his data to the ISA. At the same time, he will undergo an individual epidemiological investigation, and will be asked to sign a declaration that he undertakes to inform any journalistic sources with whom he was in contact over the 14 days prior to his diagnosis. The Government Respondents considered the suggestion, and informed us, on April 20, 2020, that they could not agree to it. Instead, they offered a different path to which the Journalists Union did not agree.

45.       One cannot overstate the importance of freedom of the press in a democratic state, and preserving this principle is of particular importance during a national crisis of the type we are currently experiencing. In the hearing, the Journalist Union’s attorney pointed out that at this time of “social distancing”, most contacts with sources are conducted by telephone, and do not involve physical meeting. In the ex parte hearing, it was clarified that physical meeting is necessary for “contact tracing” by means of the mechanism employed by the ISA. Therefore, adopting the path that we have now suggested is, in any event, of limited scope, and is not expected to raise and particular difficulty. That being so, I am of the opinion that it should be applied as of the date of this judgment, and that we can expect that an arrangement in this spirit will be included in future legislation.

 

Conclusion

46.       These are unusual times. The outbreak of the coronavirus, and its spread throughout the world, have changed how we live. Under these unique, exceptional circumstances, the Government made a decision to employ technological means at the disposal of the ISA in order to perform epidemiological investigations, with the purpose of locating those who came into close contact with persons who had tested positive for the virus, and to inform them that they had to isolate themselves at home. The ISA was granted authorization by virtue of sec. 7(b)(6) of the ISA Law, which permits the Government, with the consent of the Services Committee, to authorize the ISA to perform additional tasks to those set out in the ISA Law for the purpose of protecting and advancing “essential national security interests of the State”. In my view, the term “national security” permits authorizing the ISA to perform tasks in areas that are not at the core of security activity in the narrow sense, but such authorization requires that there be a severe, imminent danger to the citizens and residents of the state or its regime. This test sets a high bar that requires periodic examination of the situation. At the point in time when the Enabling Decision was made, the need to contend with the outbreak of the coronavirus epidemic did, indeed, meet the said test. However, for the reasons stated above, if the ISA’s involvement is to continue after the date set in the Enabling Decision – i.e., April 30, 2020 – its authority to do so must me grounded in appropriate, primary legislation, such as a provisional temporary order. This is so given the fact that the means chosen by the State in the framework of the Enabling Decision is invasive and cannot be taken lightly. The choice to employ the preventive security organization of the state for tracking persons who intend it no harm, without the consent of those being tracked, raises particular difficulty. These extraordinary means were adopted in regard to a rare, extraordinary crisis by any metric. We must take every precaution that the unusual events with which we are currently contending will not lead to a slippery slope of using extraordinary, invasive means without justification.

47.       Therefore, if my opinion be accepted, I would recommend to my colleagues that we grant the petitions in the sense that, subject to what is stated in para. 34, above, as of April 30, 2020 it will not be possible to authorize the ISA to aid in confronting the coronavirus outbreak by means of the mechanism established under sec. 7(b)(6) of the ISA Law, and that should the State seek to continue to employ the means at the disposal of the ISA, it must take steps to establish that authorization in primary legislation. I would further recommend to my colleagues that in regard to journalists, the outline set out in para. 44, above, will be employed.

 

Justice N. Sohlberg:

1.         I concur in the considered opinion of my colleague the President, as well as with the opinion of my colleague the Deputy President in regard to the precautionary principle. On the margins of the matter, I will note an addition and register a reservation.

2.         Authorizing the ISA to collect, process and use “technological information” in regard to persons testing positive for the coronavirus, and persons with whom they were in close contact, falls – by the language of the law and its legislative purpose – within the compass of sec. 7(b)(6) of the ISA Law, inasmuch as it is intended “to protect and advance other essential national security interests of the State”, but that, only when there is an imminent, severe danger to the state’s citizens and residents. The Corona epidemic indeed presented such a danger. Just as IDF soldiers are working to offer help in the city streets and in the homes of citizens, so the members of the ISA were mobilized to confront the harm of the coronavirus. The pressing needs of the hour required that such action be taken. The involvement of the ISA, and its attendant the shroud of secrecy, are “not pleasant but not terrible” (in the lenient view), and in any case not intolerable (in the strict view) due to the exigencies of the situation. In any case, the weeks that have passed, and the danger that is no longer what it was, require that we return to the “high road”, i.e., primary legislation, preferably as a temporary order, to allow for the participation of all of the Knesset members in the required decisions. The Government’s Enabling Decision will lapse in the coming days, and if the legislative process begins before that, it will be possible to extend the Government’s decision for the period required for a proper process by a legislature that proceeds quickly.

3.         Without detracting from my colleague’s correct statements on the right to privacy and intimacy, I would like to this: At the present time, when privacy and intimacy are notoriously trampled and “location data” are transmitted in every direction, it would seem to me that the violation of the “marginal utility” of privacy caused by the involvement of the ISA, in the manner that it is carried out, can be tolerated. Indeed, in these difficult times, all are required to show general civic responsibility and solidarity. It is reasonable to assume, and recent opinion polls indeed show a humane readiness to relinquish some measure of privacy in order to aid in the early detection of those infected. There is a clear willingness to stand strictly upon individual rights, due to a sense of responsibility for others and for society.

4.         A person with the coronavirus who has infected those around him – family, congregation, friends – suffers greatly. The Government Respondents correctly state that “the dignity of every person, as such, is expressed in his willingness to defend his family and himself, to act altruistically, and to aid in the defense of others” (para. 219 of the Government’s Response). Indeed, more than the violation of privacy, we have here protection of human dignity and liberty, the saving of one’s own life and that of his neighbor. And note: there is more work to be done to protect and ensure privacy and intimacy, and we must do it, but not necessarily in the given crisis that pits the right of privacy against the right to life and health of people and of the entire public – a life-threatening danger in the plain sense – and a real fear for Israel’s economy.

5.         As for the Journalists Union’s petition, my colleague the President and my colleague the Deputy President are of the opinion that there should be a special approach that would include a 24 hour hiatus during which a journalist who tests positive for the coronavirus can petition the court for an order that would prevent transferring his particulars to the ISA (paras. 44-45 of the opinion of the President; para. 7 of the opinion of the Deputy President). I hold a different view in this regard. It would seem to me that with all due respect for the importance of freedom of the press and journalistic confidentiality, inasmuch as the principle of journalistic privilege (which is, as we know, a relative privilege) is rooted in case law, it would appear to me to be problematic to enshrine the exception to the principle in legislation. Moreover, the path that my colleagues require means denying the right of those exposed to the ailing journalist to be notified as soon as possible that they were exposed to the danger. Such a violation of the right to health – theirs and of those close to them – is unjustified. The right to life outweighs a fear of a violation of freedom of the press. I am not an expert on leaks, but it would appear reasonable – and so the Journalists Union’s attorney affirmed – that most of a journalist’s contact with sources is conducted by telephone. There is no fear of exposure in regard to such sources. The only fear, and it is very remote, is of the exposure of a source who physically meets with the journalist. And why is that a remote fear? Because the data processing mechanism operates automatically, and as a rule, the files produced are not opened except when a person who receives a text message from the Ministry of health (informing him that he must self-isolate due to exposure to a person who tested positive for Covid-19) questions the accuracy of the information, or in the course of an examination of random samples. Even then, there is only a miniscule chance that such a random examination might specifically hit upon the file of a journalist of such fame that his name will be recognized by the person performing the examination. When the fear of exposing sources is so remote when we are concerned with some 5,000 journalists, and when the danger of a chain of transmission is real, it seems to me that the Government Respondents fulfilled their duty with the path they suggested (paras. 6 and 7 of the Response of April 20, 2020), of a human epidemiological investigation that can be performed in regard to a journalist who tested positive for the coronavirus, in addition to the examination by the ISA’s mechanism whose results will not be exposed to anyone. I will suffice with that.

6. As stated, I concur in the opinion of my colleague the President, subject to the above.

 

Deputy President H. Melcer:

1.         I concur in the comprehensive opinion of my colleague President E. Hayut.

            However, in view of the importance of the matters under discussion, I will allow myself to add several insights and emphases.

 

The Question of Authority

2.         The question presented to us was whether the Israel Security Agency (hereinafter: ISA or the Service) could be authorized to receive, collect, and process “technological information” concerning persons who tested positive for Covid-19 and those who were in close contact with them, and transfer that information to the Ministry of Health.

            The Respondents argued that the matter fell within the compass of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002 (hereinafter: the ISA Law), which states as follows:

For the purpose of subsection (a) [which establishes the purpose of the ISA and its role – H.M.], the Service shall perform the following tasks:

[…]

(6)       Activity in another area decided upon by the Government, with the consent of the Knesset Secret Services Committee, intended to protect and advance essential national security interests of the State.

            My colleague the President ruled that if the above conditions were met (a Government decision with the consent of the Knesset Secret Services Committee), and in view of the current extraordinary, special situation resulting from the coronavirus epidemic, then while there was a severe, immediate danger to the state’s citizens and residents due to the spread of the virus, it was possible to make limited (in time and substance) use of that subsection, and to make the Enabling Decision and its accompanying arrangement (hereinafter, together: the Enabling Decision).

            Under the circumstances, I concur with this limited ruling, as well as with the reasoning of my colleague the President and what derives therefrom, i.e., that for the purpose of fulfilling this role, the ISA (by means of its staff) is authorized to receive, collect and process “technological information”, and transfer it to those duly authorized in the Ministry of Health, in accordance with secs. 8(a)(1) and (2) and (3) of the ISA Law, and all bearing in mind that the said special activity is intended – under the time, event, substance and place conditions – to protect and advance essential national security interests of the State (that deviate from national security in the narrow sense).

            My colleague Justice N. Sohlberg notes in this regard – by way of comparison – the activity of IDF soldiers in the city streets and in citizen’s homes at this time, and I would like to point out that in order to permit such activity – when necessary – at the time, in 1995, legislative amendments were made (in sec. 18 of the Law and Administration Ordinance, 5708-1948, and sec. 26A of the Defence Service (Consolidated Version) Law, 5746-1986 (hereinafter: Defense Service Law)). See: Defence Service (Amendment No. 7 and Temporary Order) (Service in the Police and Recognized Service) Law, 5755-1995 (hereinafter: Amendment 7).

            In accordance with Amendment 7, sec. 18 of the Law and Administration Ordinance states that the armed forces of the State “shall have authority to do all lawful and necessary acts for the defence of the State and for attaining its national-security objectives” (the emphasized words were added by Amendment 7 in 1995). Pursuant to that, the said Amendment also added sec. 26A to the Defence Service Law, which provided for the possibility of recognized service, that the Minister of Defense would establish by order, with the consent of the Government and the Knesset Foreign Affairs and Defense Committee, in one of the following:

(2)       Service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required.

            For a detailed discussion of Amendment 7 and the possibilities it presents, see: my opinion in HCJ 6298/07 Ressler v. Knesset [15]; my article: The IDF as the Army of a Jewish and Democratic State, in Volume in Honor of Prof. Amnon Rubinstein – Law and Man, 14 Mishpat v’Asakim 347, 358-364 (Sept. 2012) (Hebrew).

            We thus find that in special, exceptional circumstances, and in a defined situation, it is possible to authorize the IDF and the ISA to act for the purpose of attaining national-security objectives that go beyond the defense and security of the State (in the narrow sense).

3.         Moreover, sec. 7(b)(6) of the ISA Law, together with the provisions of the ISA Law that I noted in para. 2, above, provides express authority to perform the activities under discussion in the petitions (under the conditions we established) – in the sense of the first condition of the Limitations Clause in sec. 8 of Basic Law: Human Dignity and Liberty (that is, that the violation be by a law, or by virtue of express authorization in such law). See the majority opinion in HCJ 10203/03 Hamifkad Haleumi v. Attorney General [16] (hereinafter: the Mifkad Haleumi case).

            That case also provides an answer to the argument that the matter should have been arranged (if at all) in a primary arrangement (by primary legislation). Also see: my opinion in HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services [17]. However, in view of the significant dissent of President D. Beinisch and Justice E. Hayut in the Mifkad Haleumi case, it would seem to me that when the stage of pressing need for acting by virtue of sec. 7(b)(6) of the ISA ends (on April 30, 2020), it would be proper to arrange the matter – to the extent that it may still be relevant – in primary legislation by way of a temporary order, as recommended by my colleague the President and my colleague Justice N. Sohlberg, as long as such legislation meets all the other conditions of the Limitation Clause.

            I will now briefly turn to the matter of the proportionality of the path chosen and the arrangement set forth.

Examination of the Path Chosen and the Proportionality of the Arrangement

4.         The path chosen (authorizing the ISA by virtue of sec. 7(b)(6) of the ISA Law) was one of four alternatives examined, and that, after the Government had previously promulgated emergency regulations by virtue of sec. 39 of Basic Law: The Government.

            It seems to me that until the date set (April 30, 2020), that was, indeed, the preferable course under the circumstances. There are several reasons for this:

1. Emergency regulations do not require any “approval” (other than their promulgation by the Government, and submitting them to the Knesset Foreign Affairs and Defense Committee at the earliest possible date after their enactment – see: sec. 38(a) of Basic Law: The Government).
2. Emergency regulations, by virtue of sec. 39(c) of Basic Law: The Government, may alter any law, temporarily suspend its effect or introduce conditions, unless there be another provision by law (see, in this regard: sec. 12 of Basic Law: Human Dignity and Liberty). Here we should note, however, that after presenting the emergency regulations to the Knesset Foreign Affairs and Defense Committee, the Knesset may – by law or a decision of a majority of the members of the Knesset – revoke the emergency regulations (see: sec. 39(f) of Basic Law: The Government).

Thus, until the enactment of primary legislation in the form of a temporary order (if at all), there was an advantage to the Enabling Decision, due to the pressing need, inasmuch as it is within the framework of the ISA Law (without need for alter or suspend it), and it is subject to the review and oversight of the Subcommittee for Intelligence and Secret Services of the Knesset (hereinafter: the Service Committee), which acts by virtue of sec. 6 of the ISA Law.

At this point we should note that the Service Committee (chaired by MK Gabi Ashkenazi) admirably fulfilled its role in this regard, and conducted in-depth deliberations (some of which were open to the public) on the Enabling Decision that is the subject of the petitions, and added restrictions, changes, and various duties of notification (it also instigated the process that led to halting the advancement of the law to amend the Telecommunications Data Law – see para. 1 of the opinion of my colleague the President).

5.         Without detracting from what is stated in para. 4, above, concerning the choice to follow the course of an enabling decision until now – the proper course at present, to the extent that it may be needed, is that of a temporary order enacted as primary legislation that must meet the requirements of the Limitations Clause (inasmuch as we are concerned with a serious violation of the right to privacy, which is constitutionally guaranteed in sec. 7(a) and (d) of Basic Law: Human Dignity and Liberty, as well as other constitutional rights). This entire matter must be considered by all the members of the Knesset in their legislative capacity (compare: Ittai Bar-Siman-Tov, Parliamentary Activity and Legislative Oversight During the Coronavirus Pandemic – A Comparative Overview (2020); Ittai Bar-Siman-Tov & Gaya Harari-Heit, The Proper Time for Temporary Legislation? The Rise of Temporary Legislation in Israel, 41 Iyunei Mishpat 539 (2109) (Hebrew)).

            This is the place to make a few observations on the path established – which is the subject of these proceedings – without deciding upon the matter for the future, inasmuch as Prof. Sigal Sadetzky, Head of Health Services in the Ministry of Health, who appeared before us, informed us that the possibility of continuing, and even expanding the arrangement is being considered.

6.         The arrangement adopted in the Enabling Decision (after the changes introduced by the Service Committee), and the date established for its termination (April 30, 2020) met the criteria for proportionality under the Limitations Clause.

            In the framework of the third component of the proportionality requirement, I previously recommended the Precautionary Principle, which under certain circumstances is the lesser evil, inasmuch as better safe than sorry (see my opinion in HCJ 466/07 Gal-on v. Attorney General [18] (hereinafter: the Galon case); and see the opinion of my colleague Justice N. Sohlberg in HCJ 7040/15 Hamad v. Military Commander [19]; LCrimA 2841/17 Haifa Chemicals Ltd. v. Haifa Municipality [20], para. 37 and the references there; HCJ 5263/16 Nesher Israel Cement Enterprises v. Ministry of Environmental Protection [21], per Justice M. Mazuz writing for the Court).

            In the current emergency situation due to the Corona epidemic (as opposed to the disagreements that arose on the Gal-On case in this regard), it would seem that here and throughout the world, all agree that the authorities may act in accordance with the Precautionary Principle, and they are, indeed, doing so. This principle takes the view that in order to contend with a problem created by a gap between existing knowledge at a given time and the tremendous potential and uncertain harm that may be caused by some activity if no adequate precautions are adopted, the authorities (the legislature or the executive) should be permitted to adopt measures intended to prevent the catastrophe. This is the case when there is a perceived significant threat of wide-spread, irreversible harm, even if it is only of low probability, and when there is no proven scientific certainty that the harm will be realized (the Gal-On case, paras. 34-42 of my opinion [paras. 17-24 of the English summary].

            Nevertheless, even the said principle requires setting limits, or as my colleague Justice E. Rubinstein expressed it in the Gal-On case, cautions must be adopted even in regard to the Precautionary Principle. In order to pass the proportionality test stricto sensu (or “the relativity test”, as my colleague Deputy President E. Rivlin called it in CrimApp 8823/07 A. v. State of Israel [22], and Prof. A. Bendor in his article Trends in Israeli Public Law: Between Law and Judging, 14 Mishpat uMimshal 377 (2012)) that caution requires, in my view, not to continue with the Enabling Decision (other than for a short period after April 30, 2020, as recommended by my colleague the President in para. 34 of her opinion), and to replace it (if at all) by a temporary order in primary legislation.

            There are a number of reasons for this:

1. Over and above the need for immediacy, use of the Precautionary Principle requires – beyond immediacy – parliamentary oversight even in emergency situations (this is so even in the opinion of critics of the principle, like Prof. Cass R. Sunstein, in his book Laws of Fear: Beyond the Precautionary Principle, p. 214 (2005)).
2. The existence of alternative, more proportionate means for achieving the same or similar purpose must be examined (both in terms of the second subtest for proportionality under the Limitations Clause, and under the third subtest of proportionality stricto sensu).
3. We must beware of sliding down the “slippery slope” in the use of the means that will be permitted or their continuation (see: Elyakim Rubinstein, On the Danger of the Slippery Slope, Parashat HaShavua, no. 65 (Ministry of Justice) (Hebrew); Dr. Menachem Finkelstein, The Slippery Slope, Judge Baruch Judges Bulletin, no. 4, p. 1 (Feb. 2011) (Hebrew), and see: AAA 4011/05 Dagesh Foreign Trade (Shipping) Ltd. v. Ports Authority [23], para. 7(1) of the opinion of my colleague Justice E. Rubinstein, who stated:

Open for Me an opening like the eye of a needle and I will open for you an opening that wagons and carts can pass through (Shir HaShirim Rabba 5).

            In the hearing in the present matter, Prof. Saditzky explained that serological tests will be approved in the next few days, and that they may be able to replace – by mass testing (with immediate results) – the need to locate those who were in contact with persons who tested positive (in this regard we would emphasize that until now, due to the lack of sufficient test kits, and at the instruction of the Ministry of Health, not everyone who was located by the ISA as having been in contact with a person who tested positive was necessarily tested).

            Thus, given that until now there was no available alternative for achieving the objective of locating those who had come into contact with persons who had tested positive for the coronavirus, or to identify those who had contracted the virus, those who had not, and those who had developed antibodies, and the ISA had the ability to use its resources to help in this area (and thus, the situation differs in regard to what the ISA stated in the Gal-On case), it was possible to utilize the mechanism at the ISA’s disposal for this purpose, since it met all three criteria of proportionality, including the third subtest of relativity, inasmuch as: One who saves a single life “is considered as if he has saved an entire world” (Mishna Sanhedrin 4:5; Maimonides, Mishne Torah, Laws of the Sanhedrin 12:3).

            However, it would be appropriate to reexamine the entire complex (which was also the recommendation of the Service Committee), and this should be done by the entire Knesset in the timeframe set by my colleague the President in para. 34 of her opinion, while considering the alternatives that have been created in the meantime. In any case, any arrangement that may be made in the future (if at all) should comprise, inter alia, a provision that no material obtained as a result of the ISA’s activity for the purpose of identifying persons with the coronavirus will be used for any criminal investigation and will not serve as evidence in any trial.

            This framework should also address the matter of journalistic privilege, which was raised in the Journalists Union’s petition, which I will address in the following subsection.

 

The Issue of Journalistic Privilege

7.         Journalistic privilege raises a special problem, inasmuch as the arrangement deriving from the Enabling Decision may infringe the confidentiality of sources that is fundamental to investigative journalism in general, and at present, in particular, as well as freedom of the press (Dr. Yisgav Nakdimon, Journalist’s Privilege (2013) (Hebrew)).

            In the present matter, I believe that the approach we have recommended, as set out in paras. 44 and 45 of the opinion of my colleague the President, is appropriate, and it would be appropriate to adopt it in any additional arrangement that may be made (if at all), and should be followed from now. This is required by the rule established in HCJ 3809/08 Association for Civil Rights v. Israel Police [14], mutatis mutandis to the present matter, (in that case, I was of the minority opinion that the rule should be extended to all case of privilege, and in the course of the hearing, it became clear that this is indeed the practice in regard to members of Knesset). My colleague Justice N. Sohlberg’s fear for the health of the source will, in any case, be resolved, inasmuch as the approach requires that the journalist himself warn his source.

 

Conclusion

8.         This case raised new issues that the world, the medical profession, and the legal field had not yet encountered. In this judgment, we tried – with the help of the authorities who addressed the entire issue and the accepted legal principles – to treat of a situation and provide solutions that, on the one hand, would save lives, while on the other hand, would protect the accepted constitutional rights by means of appropriate balancing and proportionality. We may hope that we will no longer have need for all of these in the foreseeable future, and that we will see better days. Let us hope.

 

            Therefore, it is unanimously decided to grant the petitions in HCJ 2109/20, HCJ 2135/20, HCJ 2141/20 in the sense that as of April 30, 2020, it will not be possible to authorize the ISA to aid in contending with the outbreak of the coronavirus by means of the mechanism established in sec. 7(b)(6) of the ISA Law, and that if the State seeks to continue to employ the means at the ISA’s disposal, it must act to establish such authority in primary legislation. To the extent that such legislation will progress, it will be possible to extend the force of the Enabling Decision for a short, additional period that shall not exceed a few weeks, in order to enable the completion of that process.

            It is further decided my majority decision (President E. Hayut and Deputy President H. Melcer concurring, and Justice N, Sohlberg dissenting) to grant the petition in HCJ 2187/20 in the sense that, in regard to journalists holding press credentials, the arrangement set out in para. 44 of the opinion of the President will be followed.

 

Given this day, 2 Iyyar 5780 (April 26, 2020).

 

 

           

 

 

 

 

HCJ 2109/20

HCJ/2135/20

HCJ 2141/20

 

 

Petitioner in HCJ 2109/20:                             Shachar Ben Meir, Adv.

Petitioner in HCJ 2135/20:                             Association for Civil Rights in Israel

Petitioner in HCJ 2141/20:                             Adalah – Legal Center for Arabl Minority Rights in Israel

 

                                                                        v.

 

Respondents in HCJ 2109/20             1.         Prime Minister

                                                            2.         Government of Israel

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health   

                                                            6.         Attorney General

                                                            7.         Ministry of Justice Privacy Protection Authority

                                                            8.         Knesset

                                                            9.         MK Gabi Ashkenazi

 

Respondents in HCJ 2141/20:            1.         Prime Minister

                                                            2.         The Government

                                                            3.         Israel Security Agency

                                                            4.         Israel Police

                                                            5.         Ministry of Health

 

Respondents in HCJ 2141/20             1.         Prime Minister

                                                            2.         Israel Security Agency

                                                            3.         Israel Police

                                                            4.         Ministry of Health

 

 

The Supreme Court sitting as High Court of Justice

Before: President E. Hayut, Deputy President H. Melcer, Justice N. Sohlberg

Petitions for order nisi and interim order

 

Decision

 

1.         These three petitions challenge the Government’s decision to promulgate two sets of emergency regulations: (1) Emergency Regulations (Authorization of the Israel Security Agency to aid in the national effort to limit the spread of the new corona virus), 5780-2020 (hereinafter: the ISA Regulations); (2) Emergency Regulations (Location Data), 5780-2020 (hereinafter: the Police Regulations). The regulations permit the collection, processing and use of “technological data” of persons who have contracted the new corona virus (hereinafter: the virus), in order to combat the spread of the corona epidemic.

2.         In a hearing on the petitions today – March 19, 2020 – serious legal issues were raised concerning – inter alia – the absence of parliamentary oversight of the process of promulgating the regulations and the manner of their implementation, as well as constitutional questions that require examination.

3.         The petitions in HCJ 2135/20 and HCJ 2141/20 were filed immediately prior to the time set for the Respondents to submit their response to the petition in HCJ 2109/20, which had been filed on the previous day. That being the case, the Respondents did not have sufficient time to prepare their written response to the arguments raised in these two petitions prior to the hearing. The Respondents requested that we permit them to submit a supplementary response in this regard. In view of the urgency of the matter, we order that it be submitted by Sunday at five p.m. In their supplementary response, the Respondents will address the following fundamental questions:

            (a)        Does the declaration of a state of emergency under sec. 38 of Basic Law: The Government also relate to emergency situations that do not arise from security concerns?

            (b)       Can the Israel Security Agency be granted authority to act in areas that do not concern state security by virtue of sec. 7(b)(6) of the Israel Security Agency Law, 5762-2002?

            (c)        Does sec. 39(d) of Basic Law The Government, which states: “Emergency regulations may not […] infringement upon human dignity”, impose an absolute restriction upon violating the right to human dignity, or is such a violation subject to the conditions established under sec. 12 of Basic Law: Human Dignity and Liberty?

4.         At this stage, we are making an interim order, stating:

A.        As regards the ISA Regulations – if by noon on Tuesday, March 24, 2020, the Knesset does not establish the relevant committees for parliamentary oversight of these regulations, no use may be made of the authorities granted thereunder from that date until the issuance of another decision.

B.        Without derogating from the above sec. A., the ISA Regulations will be implemented at this stage exclusively for the purpose of locating persons who were in the vicinity of persons with a positive laboratory result for nCoV, and in accordance with the classified directives presented to us ex parte, with the consent of the Petitioners, which were approved by the Attorney General.

C.        If a decision is made to impose a general closure before Tuesday, March 24, 2020, it will be possible to reexamine the need for implementing the authorities under the ISA Regulations and the compatibility of the interim order with that situation.

D.        At this stage, and until another order, there shall be no implementation of the authorities granted under the Police Regulations. In this regard, we would note that in the hearing before us, the Respondents informed the Court that, at this stage, the procedure mentioned in sec. 4(A2) of the Criminal Procedure (Enforcement – Authorities Telecommunication Data) Law, 5768-2007) (hereinafter: the Telecommunication Data Law), which was added to that law by virtue of the Police Regulations, had not been completed. Therefore, these regulations have, in any case, not been implemented. It was further explained that, at this stage, there is no intention to make use of the authorities granted to the police under these regulations by virtue of sec. 4(A1)(1)(a) of the Telecommunications Data Law.

5.         When the material mentioned in para. 3, above, ahs been collected, we will decide upon the how these all these petitions shall proceed.

Given this day, 23 Adar 5790 (March 19, 2020).

HCJ 1892/14

 

 

 

Petitioners:                  1.         The Association for Civil Rights in Israel

                                    2.         The Ramat Gan College of Law and Business

                                    3.         Physicians for Human Rights

 

                                                            v.

 

Respondents:              1.         Minister of Public Security

                                    2.         Prison Service Commissioner

                                    3.         Minister of Justice

 

In the Supreme Court sitting as High Court of Justice

[June 13, 2017]

 

Before: Deputy President E. Rubinstein, Justices H. Melcer and U. Shoham

 

On behalf of the Petitioner:  Advocates Anne Sucio, Oded Feller, Sigal Shahav

On behalf of the Respondents: Advocates Ran Rozenberg, Reuven Eidelman

 

Israeli cases cited:

[1]        HCJ 337/84 Hokma v. Minister of Interior, IsrSC 38(2) 826  (1984).

[2]        PPA 4463/94 Golan v. Prisons Service, IsrSC 50(4) 136 (1996).

[3]        HCJ 2245/06 Dobrin v. Prisons Service (2006).

[4]        HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 (2009).

[5]        LHCJA 4937/14 Albazian v. Attorney General, (2014).

[6]        LHCJA 328/15 Zalum v. Attorney General, (2015).

[7]        HCJ 161/94 Atari v. State of Israel, (1994).

[8]        HCJ 4905/98 Gamzu v. Yeshayahu, IsrSC 58(3) 360 (2001).

[9]        HCJ 10662/04 Hassan v. National Insurance Institute, IsrSC 65(1) 782 (2102).

[10]      LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver, IsrSC 58 (1) 214 (2003).

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

[12]      AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality, IsrSC 59 (4) 769 (2004).

[13]      HCJ 1384/04 B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior, IsrSC 59(3) 397 (2005).

[14]      HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60(3) 464 (2005).

[15]      HCJ 1163/98 Sadot v. Prisons Service, IsrSC 58(4) 817 (2001).

[16]      HCJ 451/94 Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

[17]      HCJ 9134/12 Gavish v. Knesset, (2016).

[18]      MApp 1/87 Dananashvili v. State of Israel, IsrSC 41(2) 281 (1987).

[19]      CrimA 344/81 State of Israel v. Segal, IsrSC 35(4) 313 (1981).

[20]      HCJ 5304/92 Perah Association v. Minister of Justice, IsrSC 47(4) 715 (1993).

[21]      HCJ 114/86 Weil v. State of lsrael, IsrSC 41(3) 477 (1987).

[22]      MApp 3734/92 State of Israel v. Zaki Azazmi, IsrSC 46(5) 72 (1992).

[23]      FH 13/80 Hendels v. Kupat Am Bank Ltd., IsrSC 35(2) 785 (1981).

[24]      CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd., IsrSC 51(5) 337 (1997).

[25]      HCJ 5185/13 Anonymous v. Great Rabbinical Court, (2017).

[26]      LCA 296/11 Najar v. Aliyan, (2012).

[27]      CA 191/51 Skornik v. Skornik, IsrSC 8 141 (1954).

[28]      LFA 7141/15 A. v. B., (Dec. 22, 2016).

[29]      CA 8954/11 Doe v. Doe, (2014).

[30]      CFH 7325/95 Yediot Aharonot Ltd. v. Kraus, IsrSC 52(3) 1.

[31]      CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum, IsrSC 46(2) 464 (1992).

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

[33]      CA 522/70 Alkutub v. Shahin, IsrSC 25(2) 77 (1971).

[34]      HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education, IsrSC 56(5) 834 (2003).

[35]      HCJ 2065/05 Maher v. Minister of Interior, (2005).

[36]      HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs, IsrSC 48(4) 441 (1994).

[37]      HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance, (2017).

[38]      HCJ 221/80 Darwish v. Prisons Service, IsrSC 35(1) 536.

[39]      HCJ 355/79 Katlan v. Prison Service, IsrSC 34(3) 294.

[40]      HCJ 2442/11 Shtanger v. Speaker of the Knesset, (June 26, 2013).

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

[42]      HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society, (May 20, 2014).

[43]      HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424 (1953).

[44]      HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March, 27, 2016).

[45]      HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister, (April 13, 2016).

[46]      HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense, (July 18, 2010).

[47]      HCJ 2902/11 Association for Children at Risk v. Ministry of Health, (Sept. 4, 2015).

[48]      HCJ 4541/94 Alice Miller v. Minister of Defence, IsrSC 49(4) 94 (1995).

 

 

 

 

Judgment

 

Deputy President E. Rubinstein:

1. This petition concerns the conditions of confinement of prisoners and detainees, particularly in regard to the living space allotted to each prisoner and detainee.

 

Background

2.         The problem of prison overcrowding is not new. It has existed for at least four decades. Various commissions have been established over the years to address the subject, among them the Commission for the study of Crime in Israel of 1978 (the Shimron Commission), the Commission of Enquiry for the Investigation of Prison Conditions in Israel of 1981 (the Kenet Commission), the Commission to Assess Methods for Alleviating Overcrowding in Prisons of 1987 (the Karp Commission) (for details, see the 43^rd Annual Report of the State Comptroller for 1992 and Financial Report for the 1991 Fiscal Year, 345-346 (1993)). Since it was established, over two decades ago, the Public Defender’s Office has addressed this issue in the framework of its periodic reports in regard to prison conditions in Israel (see, for example, The Public Defender’s Report on Prison Overcrowding of 2013, hereinafter: The Public Defender’s Report). The findings of the various published reports show that overcrowding – and no one denies its very existence – derives from a lack of space in the prison facilities, on the one hand, together with a continual rise in the number of imprisonments and arrests, on the other. We should note that while new prisons and detention facilities have indeed been established over the last decades, and the it can be assumed that the Prison Service is making efforts in this regard, it cannot be denied that the tendency towards misbehavior by prisoners who enjoy good conditions would lessen. However, at the end of the day, this desirable effort has not – as yet – led to a significant increase in the average amount of living space allotted to each prisoner and detainee, which has remained at about 3 square meters per person for the last 25 years, and is now 3.16 square meters, as will be described below.

3.         The legislature addressed the issue of prison overcrowding in 2012, in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42), which establishes, inter alia, in sec. 11B(b) of the Prisons Ordinance: “A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. Since 1996, there has been a similar section in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law) in regard to detention facilities. We should recall that the Arrest Law was enacted under the influence of Basic Law: Human Dignity and Liberty, and the spirit of that law imbues it. Amendment 42 incorporated the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations), in which reg. 2(h) establishes a similar arrangement to that in reg. 3(e)(3) of the Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations), under which:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

            Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

Thus, according to the current normative situation, new prison facilities must provide at least 4.5 square meters of living space for each prisoner or detainee. But note that according to these legal provisions, the standard of 4.5 square meters per inmate will apply to existing facilities only in the framework of planning and renovation, and only if feasible (“to the extent possible”).

4.         Current data provided by the Prisons Service show that the average area per inmate in Israel is 3.16 square meters at present. In this framework, some 21% of the inmates are held in cells in which the average space per inmate is greater than 4.5 square meters; some 18% are held in cells in which the average space per inmate is between 4 and 4.5 square meters; and some 61% are held in cells in which the average space per inmate is less than 4 square meters, of whom two thirds – some 40.5% of all inmates – are held in cells in which the average space per inmate is less than 3 square meters (see the State’s supplementary notice of April 3, 2017, para. 32). It should be noted that the calculation of living space comprises the area of the entire cell, including beds and cupboards, as well as the areas of the lavatory and shower, to the extent that such are in the cell. For the sake of clarity, we would already point out that the petition argues for a minimum are of 4 square meters not including the lavatory and shower areas, while the said reg. 2(h) calls for 4.5 square meters including the area of the lavatory, sink, and shower.

5.         Here are the primary points of the petition before the Court.

The Arguments of the Petitioners

6.         The petition is premised upon the argument that the current living space allotted to most prisoners and detainees infringes their right to dignity, physical and emotional integrity, and privacy to a disproportionate extent and without express legal authority. It is further argued that we are concerned with an infringement of the right of the prisoners and detainees to liberty to an extent that exceeds what is necessary, and which the Petitioners argue is tantamount to cruel, inhuman and degrading punishment.

7.         It is argued that as a consequence of the overcrowding in Israeli prison and detention facilities, the living space allotted to each inmate – an average of some 3.16 square meters – is too small to meet the most basic needs of the inmates. Moreover, the Petitioners are of the opinion that ensuring proper living conditions requires examining data in addition to the size of the cell alone, such as the number of hours during which an inmate is permitted to be outside of his cell, the number of inmates in a cell, the size of the area outside the cell that is accessible to an inmate, the length of imprisonment, and more. It is therefore argued that the living space in the cell particularly affects the quality of life of inmates held in closed wings, who compose some 50% of the total held in prison facilities. Such inmates are permitted to leave their cells for only a few hours, during which they eat their meals, use the lavatories, shower, and spend their free time.

8.         The Petitioners argue that the average living space allotted to an Israeli inmate is far below the standard accepted in Western states, which runs between 6 and 12 square meters per inmate, as well as below the minimal appropriate space in accordance with Prisons Service’s own position, which is 6.5 meters, as expressed in the National Master Plan for Prisons (hereinafter: NMP 24 or the NMP). The Petitioners further argue that this area is even smaller than the standard established in the Arrest Regulations and the Prisons Regulations for new prison facilities, which stands, as noted, at 4.5 square meters per prisoner and detainee.

9.         In addition to the living space allotted to each inmate, it is noted that the overcrowding in the prisons and detention facilities is also expressed in the number of prisoners or detainees held in the cells. In this regard, the Petitioners point to the data of the Prisons Service, which show that some 85% of the total number of inmates are held in cells of four inmates or more, of whom some 43% share their cell with 8 additional inmates. This is the case despite the standard established in reg. 3(e)(2) of the Arrest Regulations and reg. 2(g) of the Prisons Regulations for new prison facilities, under which there should be no more than 4 beds in a cell.

10.       It is further argued that the overcrowding in the prisons harms the accessibility and availability of the services offered to the inmates. If more inmates are held in a facility relative to what was originally intended, the services provided in the facility – i.e., social assistance, medical and psychological treatment, educational and rehabilitation frameworks, as well as the various public infrastructures in the facilities, such as the cafeterias and the yard – are divided among a greater number of people. Citing academic publications in the area, and reports by the Public Defender in regard to the conditions in Israeli prison facilities, the Petitioners argue that each inmate indeed enjoys less of the resources offered to the general population of inmates in the prison as a result of the overcrowding.

11.       According to the Petitioners, the existing normative foundation lacks a standard obligating the Respondents to supply prisoners and detainees a defined minimum living space. This is the case inasmuch as the Arrest Regulations and the Prisons Regulations refer to future prison facilities, and therefore do not address the minimum living space to which every prisoner and detainee is currently entitled. On the contrary, it is argued that since the establishment of the 4.5 square meter standard for detention cells in 1997, there has been no advancement toward meeting that standard, and the living space of detainees remains as it was. The Petitioners further argue that despite the widespread construction efforts made over the last years, in which eight new prisons were erected and many wings in existing prisons were renovated, the problem of overcrowding was only slightly improved – inter alia, due to the constant increase in the rates of imprisonment – such that the average living space per inmate increased from 2.9 square meters in 1992 to merely 3.16 square meters at present. It is argued that other means adopted over the last few years to reduce overcrowding, such as administrative release, contributed little to significantly increase the living space allotted to each inmate. The Petitioners are of the opinion that in the absence of an obligatory norm in regard to the appropriate living space to be provided to all prisoners and detainees currently held in Israeli prison facilities, this population continues to remain in unbearable living conditions, with no discernable solution. It is further argued that existing plans for minimizing overcrowding in the prison facilities are insufficient in and of themselves, even if they would be granted the appropriate approvals and budgets.

12.       It is argued that the current overcrowding greatly influences the daily lives of the prisoners and detainees. The limited living space creates crowding and congestion in the cells, limits the movement of the inmates more than is necessary, increases friction among them and adds to their mental distress, exacerbates the violation of their privacy, and leads to poor hygiene and a rise in the spread of illness. The Petitioners argue that these stresses make living in the cells “inhuman”. This argument is supported by affidavits taken from six prisoners and detainees in various prison facilities throughout the country, by affidavits taken from former senior Prisons Service employees, and by the reports of the Public Defender referenced above. Citing research published in the field, it is further argued that in addition to the direct influence upon the lives and health of the inmates, the overcrowding in the prisons also has consequences for public welfare by undermining the possibility of an inmate’s rehabilitation under such conditions.

13.       In light of the above, the Petitioners are of the opinion that the constitutional right of the prisoners and detainees to proper living conditions is infringed. This right is anchored in sec. 11B of the Prisons Ordinance, and in sec. 9(a) of the Arrest Law, respectively, which create an obligation to hold prisoners and detainees in appropriate conditions that will not harm their health and dignity. It is argued that every prisoner and detainee also has a right to adequate living space on the basis of the constitutional regime, inasmuch as it derives from the right to dignity. It is also argued that holding prisoners and detainees in the aforesaid living space violates other fundamental rights, among them the right to physical  and emotional integrity, the right to privacy, and the right to liberty, all of which are, in the opinion of the Petitioners, infringed in these circumstances to an extent that exceeds what is necessary.

14.       It is further argued that the living conditions of the majority of prisoners and detainees in Israel contravene the rules of international law, in view of the obligation to ensure appropriate living space, and the prohibition upon imposing cruel, inhuman or degrading punishment. In regard to appropriate living space, the Petitioners refer to art. 10(1) of the International Covenant on Civil and Political Rights of 1966, which states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. In this regard, reference is also made to the U.N. rules of 1955 that establish Standard Minimum Rules for the Treatment of Prisoners, and expressly note the right to minimum floor space, as well as similar rules in the European Prison Rules adopted by the Council of Europe in 1987.

15.       According to the Petitioners, the average floor space per prisoner in Israel is lower that the accepted standard of democratic states, and even lower than the minimum established by the United Nations Committee against Torture, which is 4 square meters exclusive of the area of the lavatory and shower. That being the case, holding prisoners and detainees in Israel in an average living space of some 3 square meters per person (including the area of the lavatory and shower, and as noted, we are currently looking at 3.16 square meters per person) is, it is argued, tantamount to cruel, inhuman or degrading punishment, as defined under art. 7 of the International Covenant on Civil and Political Rights. In this regard, the petition cites several court decisions from around the world that addressed similar petitions against overcrowding in various prisons. Thus, for example, the petition cites the 2013 decision of the European Court of Human Rights in Torreggiani v. Italy, no. 43517/09, ECHR 2013 (hereinafter: the Torreggiani case)), which held that holding prisoners in living space less than 3 square meters per person constituted a violation of the prohibition upon cruel punishment and inhuman treatment, and held that Italy must find a solution to the problem of overcrowding within one year. Also cited is the United States Supreme Court decision in Brown v. Plata, 131 S.Ct. 1910 (hereinafter: the Plata case), which concerned the California prison system. The Court addressed the infringement of the rights of inmates due to overcrowding, and ordered the state to reduce the number of inmates by some 40,000 within two years. We are also referred to the 1998 decision of the Polish Constitutional Court (cited by the European Court of Human Rights in Orchowski v. Poland, no. 17885/04, § 85, EHCR 2009 (hereinafter: the Orchowski case)), that overturned legislation that permitted holding inmates in an area less than 3 square meters, and gave the prison authorities an eighteen-month period to increase the size of the prison facilities.

16.       In light of the above, the Petitioners request an order nisi in the following language:

A.        Why will every prisoner and detainee (hereinafter: inmate) not be ensured appropriate living space in the cell within a reasonable time period, and that the following steps be taken to that end:

1.         Establishing the appropriate living space for an inmate;

2.         Preparing a plan that will establish the course of action for attaining appropriate living space for an inmate;

3.         Establishing a reasonable timetable for realizing the plan that will be established.

B.        Why will the necessary steps not immediately be taken to ensure every inmate living space of 4 square meters (excluding the lavatory and shower areas) necessary to prevent cruel, inhuman or degrading punishment.

The Position of the Respondents

17.       The Respondents are of the opinion that the petition should be dismissed for lack of an actionable cause for the intervention of the Court.

18.       First and foremost, it is noted that a standard for the minimal cell area for each prisoner and detainee has already been established by the Israeli legislature in the framework of the Prisons Regulations and the Arrest Regulations, and it is 4.5 square meters. Therefore – according to the Respondents – the first remedy requested in the petition is superfluous. Moreover, it is argued that the arrangement under the regulations, according to which the standard will apply to new prison facilities, and to the extent possible, to the planning and renovation of existing facilities, expresses the balance struck by the subsidiary legislator between the need to increase the average cell size per inmate, on the one hand, and the required investment of resources for the immediate expansion of all the prison facilities, on the other hand. Inasmuch as the said standard was established in primary legislation by virtue of Amendment 42, the State’s actions in accordance therewith – both in regard to the construction of new facilities and the renovation of existing facilities – is, it is argued, in accordance with the law.

19.       As for the second remedy, concerning immediately ensuring 4 square meters of living space per inmate, the Respondents are of the opinion that there are no legal grounds for granting the petitioned remedy. It is argued that the appropriate criterion established for an inmate’s living space – i.e., 4.5 square meters, subject to the said balance between the construction of new facilities, and the renovation of existing facilities, to the extent possible – expresses the entire complex of required considerations. It is not clear to the Respondents upon what basis the Petitioners derive a duty to establish an alternative standard to that decided upon by the subsidiary legislator on the basis of primary legislation. The State further explains that immediately ensuring an average living space of 4.5 meters for each inmate – the standard established, as noted, by the State – would require massive construction of new prison facilities, expansion of current prison spaces, and the addition of over 1,300 employees, at an estimated expense of some 2.7 billion NIS. Granting the requested relief would mean changing the government’s budgetary priorities as established in the Budget Law, and this in regard to an issue that, as noted, the legislature specifically addressed.

20.       It is further argued that the there is an inherent tension between the two heads of the petition that further militates against it. The first head employs valve concepts[1] (“reasonable time”, “appropriate living space”), whereas the second head seeks to establish a concrete standard immediately. Moreover, the Respondents argue that these remedies were not defined in a manner that reflects their precise legal nature, inasmuch as they are located on the constitutional plane – in view of their inherent demand to change a legal arrangement established in primary legislation – and not in the administrative plane, as may appear from the language of the petition. It is argued that inasmuch as reasons for annulling the relevant regulations for unconstitutionality were not presented, the petition should be denied. The Respondents are further of the opinion that the first head actually seeks even more far-reaching intervention – viz., establishing an alternative standard to that established by the State, as well as a time frame, which would be tantamount to judicial legislation. It is argued that the rights of prisoners are not absolute but relative, and it is therefore necessary to balance the granting of those rights against competing considerations, like budgetary limitations, the security of the prisons, and so forth, as the legislature did in the present matter.

21.       Lastly, the Respondents argue that extreme caution should be exercised in regard to the comparison that the Petitioners make between Israeli prison policy and that of other countries. In general, it is argued, comparative law is, at most, a source of inspiration, and the legislature is accordingly granted a particular constitutional margin that derives from the State’s unique normative arrangements. This is particularly true where the question of the constitutionality of a specific legislative arrangement is concerned, and especially when we are concerned with a remedy that, if granted, would be tantamount to judicial legislation.

22.       In response, the Petitioners are of the opinion that the Respondents’ argument that the standard established under the regulations – i.e., 4.5 square meters of living space per inmate in prisons to be constructed in the future – renders the first remedy superfluous, should not be accepted. It is argued that the Prisons Regulations and the Arrest Regulations are irrelevant to the question of the conditions appropriate for current inmates, and thus the need for establishing a concrete standard – as recommended in the petition – that will apply immediately. It is also argued that granting the petition does not require a change in the existing normative situation.

The present proceedings

23.       We will briefly describe the progression of the proceedings from the time of the submission of the petition. On July 13, 2015, the first hearing was held before President M. Naor and Justices H. Melcer and Z. Zylbertal. In the course of the hearing, the attorneys for the Respondents updated the Court in regard to a wide-ranging plan for the construction of new prisons that, they argued, had the potential of providing a response to the remedies requested in the petition. At the end of the hearing, the Court decided to grant the Respondents a four-month period to submit an updated notice on the matter.

24.       On Jan. 8, 2016 – following the granting of a continuance – an updated notice was submitted. First, the Respondents informed the Court that an agreement had been reached between the Ministry of Finance and the Ministry of Public Security to double the annual construction budget of the Prisons Service for 2016 for the purpose of adding 200 new prison spaces. Second, we were informed that prior to the preparation of the State budget for 2017, long-term solutions for increasing the average living space per inmate would be considered – in a positive light – while also examining alternatives like building new prison facilities and renovating wings of existing facilities. Third, it was noted that in the course of deliberating the State budget for the years 2015-2016, it was decided to grant an additional 86 million NIS to the Prisons Service for expanding rehabilitation and educational services for inmates in the framework of a plan to execute Amendment 42. The Respondents are of the opinion that this step can be expected to result in a reduction of recidivism, and thereby to a reduction in the number of inmates in looking to the future.

25.       A second hearing of the petition was held on Jan. 25, 2016, before the same panel. At the outset of the hearing, the Petitioners argued that the position of the Respondents reflects a failure to internalize the seriousness of the problem at hand, and requires that an order nisi be granted to move the matter forward. For their part, the attorneys for the Respondents argued that the Petitioners’ demand for an immediate increase in the living space of every inmate is dramatic, and would require a significant budgetary commitment. In view of the position of the Respondents that, in principle, the petition did not present a cause for judicial intervention, the State’s attorneys argued that there is no room for an additional budgetary realignment beyond that already decided. At the conclusion of the hearing, an order nisi was granted as requested, as noted in para. 16, above.

26.       The Respondents submitted a reply on Sept. 7, 2016. In that reply, they reiterated their position that the petition should be denied for lack of cause. It was further stated that the Respondents had made significant advances toward improving the living conditions of inmates in Israel since the date of the submission of the petition, such that the claims made in the petition had been blunted.

27.       Pursuant to the above, the Respondents presented a list of steps that had been adopted to improve the living conditions of prisoners and detainees. First, they noted NMP 24, which had been approved by the Government on March 7, 1982, and which provided for constructing new prisons in seven sites around the country, and noted change no. 3 to that NMP, of June 8, 2015, that provided for adding additional prisons to the plan with the approval of the National Planning and Building Council. Under the provisions of the NMP, at least 75% of the planned cells are expected to be for individual inmates, and they will be no smaller than 6.5 square meters, while the others will be for three inmates, and each inmate will have at least 5 square meters. Second, a multi-year plan was presented that, in principle, would increase the average cell space allotted to an inmate. The plan was prepared by the Prisons Service following the filing of the petition (hereinafter: the plan-in-principle). The plan focuses upon building new prison facilities, on one hand, and on closing old facilities that provide a low living standard, on the other. The plan was approved by Respondent 1, and was presented to the Government. It is argued that its realization will lead to a significant improvement in the living conditions of the inmate population, including an increase in the average cell size per prisoner. Third, our attention was directed to the Prisons Service’s plan to execute Amendment 42, which has a budget of 86 million NIS for the years 2016-2018, and which will emphasize improvements in the treatment, rehabilitation, medical, and educational services offered in the prisons. Fourth, the Respondents noted Decision no. 1840 of the 34^th Government, of Aug. 11, 2016 (hereinafter: Decision 1840), which established a series of steps for making the penal and rehabilitation policies more efficient, among them: expanding the community-court model, with a view to limiting punishment by means of imprisonment; a suggestion to enact authorization for the courts to order community service for up to nine months (rather than the current six months); the allocation of 75 additional electronic monitoring devices to the Rehabilitation Authority for prisoners on conditional release. Fifth, the Respondents noted that in preparing the State budget for the years 2017-2018, an agreement was reached between the Ministry of Internal Security and the Ministry of Finance for the establishing of a Prisons Service building fund that would be allocated 20 million NIS in the Prisons Service’s basic annual budget, and that would rise to 60 million from 2019 onward. To summarize this matter, it was argued that the steps enumerated – which are being carried out, as noted, in accordance with the balance inherent in the application provisions of the regulations – provide a full response to the first remedy sought by the petition.

28.       The Petitioners submitted their reply on Sept. 25, 2016. While the Petitioners were of the view that the steps enumerated in the Respondents’ reply were welcome, they argued that there was no obligation to increasing the living space of inmates, even by mere centimeters, and certainly not in any defined time period. As for reducing the inmate population by means of alternatives to incarceration, the Petitioners are of the opinion that that provides no guarantee that the living space of inmates will be increased when it was not defined in advance as an independent objective, along with the establishing of a rigid standard and an orderly plan for its achievement. Thus, for example, it was argued that the administrative-release mechanism – in place since 1993 – has not itself led, as yet, to an improvement in the living conditions of the inmates. The Petitioners do not expect that the steps taken to reduce recidivism and the changes in penal policy will lead to a significant reduction in the number of inmates. It is argued that these plans affect a very limited number of inmates, and therefore, cannot serve to increase the living space allotted to the general inmate population in any acceptable manner. As for the Respondents’ updates on the matter of plans for constructing new prison facilities and the renovation of existing facilities, the Petitioners are of the opinion that these, too, cannot provide a response to the problem of overcrowding in the absence of a predetermined minimum standard for living space that will be allocated to each prisoner and detainee when the plans are realized. It was further argued in regard to the plan-in-principle, that the Respondents’ reply lacks specifics as to its concrete objectives, the projected timeframe for its completion or its estimated budget, all of which the Petitioners believe are required in order to evaluate the actually expected effect on the living space of prisoners and detainees.

29.       On Feb. 8, 2017, a hearing was held before the present panel on the objection to the order nisi. The attorney for the Respondents argued that tremendous progress had been made since the issue was brought before the Court, and this alone justifies denying the petition. The construction fund mentioned in the reply was specifically noted, and the Respondents requested additional time to provide a more detailed update in regard to the concrete timetables expected to be established in that regard. Given what was presented, the Respondents were granted 30 days to submit an updated notice, and the Petitioners were granted 10 additional days to reply.

30.       On April 3, 2017 – after requests for continuances, and without blaming the “messenger” – an updated notice was submitted on behalf of the Respondents. It stated that following a complex administrative review by the Prisons Service, with the cooperation of the Attorney General, who was also involved in the matter, the plan for building additional prison spaces in a number of new, high-standard facilities was examined, as well as a proposal for increasing the living space in the existing prisons. It was submitted that as of the date of the filing of the notice, the Respondents were as yet unable to crystallize a final position as to the said alternatives, and more time was requested in order to update the Court on the results of the review. We granted the request in our decision of April 9, 2017.

31.       The Respondents submitted a supplementary notice on April 21, 2017. That notice presented an update in regard to a number of solutions that had been developed, in addition to the steps already detailed in the reply. First, it was submitted that it had been decided to erect a new prison to replace the Neve Tirzah women’s prison, which would comprise 311 prison spaces at a cost of 171 million NIS. In this regard, it was noted that the living space allocated to prisoners in Neve Tirzah is currently 3.1 square meters on average, whereas building the new facility would lead to increasing the living space to some 6.5 square meters. Second, the Respondents updated the Court as to a plan for expanding cells in some of the existing prison facilities by removing 200-500 empty beds. Third, we were informed that the Prisons Service, in cooperation with the Ministry of Finance and the Ministry of Public Security, would begin detailed planning for the construction of a new prison – in addition to the facility intended for women – together with the closing of an old prison. It was stated that the sum of up to 15 million NIS would be allocated for the purpose of preparing the detailed plan for the facility, which would be addressed in the framework of the 2019 budget, and it was noted that there is already an approved development plan. The Respondents further updated the Court as to the progress made in regard to the execution of Decision 1840, and particularly in regard to the elements related to alternatives to imprisonment.

32.       The Respondents submitted their reply on April 27, 2017. It stated that the Respondents’ notice did not change their principled position according to which an order absolute should be granted. It was argued that the steps enumerated above do not constitute an undertaking in regard to increasing the living space of inmates, and are, in any case, far from providing a solution to the problem of overcrowding. That is the case inasmuch as some of them are – it was argued – of a theoretical and speculative character, whereas the concrete steps noted (such as building an alternative facility for Neve Tirzah) relate only to a limited prison population. That being the case, the Petitioners are of the opinion that even if these steps would increase the prison spaces by some amount – under what they deem the unreasonable assumption that the rate of incarceration and arrest will remain steady – it will not be an amount with the potential of achieving an appropriate average living space for each and every prisoner and detainee.

Review and decision

33.       It is a fundamental principle that “every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard…” (HCJ 337/84 Hokma v. Minister of Interior [1] 832, per Justice M. Elon). And note: a prisoner – even if he is lawfully imprisoned and is not one of the thirty-six righteous – is deprived, first and foremost, of his right to liberty, along with additional restrictions that derive from the purpose and nature of imprisonment. But the prisoner is not denuded of his rights as a person, and he does not lose those freedoms granted to every person as such, unless it is required for the purpose of incarceration. Prison walls are not a “normative black hole” beyond which there are no rights or protections. On the contrary. A prisoner – who is, of course, subject to certain duties of conduct in prison – is in the custody of the State, and the State has heightened responsibility for him:

When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison … Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly (PPA 4463/94 Golan v. Prisons Service (hereinafter: the Golan case [2]) 172, per Justice M. Cheshin).

And further on (at p. 175):

… a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack.

34.       However, as we know, the basic principle of the Israeli constitutional system that a person’s – any person’s – basic rights must not be infringed is not absolute, and such infringement is possible where there is “a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this” (HCJ 2245/06 Dobrin v. Prisons Service [3], para. 13, per Justice A. Procaccia).  However, “the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law” (HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance (hereinafter the Prison Privatization case [4],  595, per President D. Beinisch).

35.       Of course, in establishing the scope of the protection of the human rights of a prisoner, we must also address considerations inherent to incarceration and the duties imposed upon the Prisons Service: the need to protect all the prisoners and their rights; to maintain order and discipline in the prisons; and to ensure the welfare and security of the other prisoners and of the prison staff (the Golan case [2], 150).

Human dignity and the dignity of the prisoner

36.       Another basic principle: the right to human dignity is anchored in Basic Law: Human Dignity and Liberty. The Basic Law establishes a prohibition upon violating the right to dignity, as well as a duty to protect it:

1A. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

2. There shall be no violation of the life, body or dignity of any person as such.

…

4. All persons are entitled to protection of their life, body and dignity.

…

11. All governmental authorities are bound to respect the rights under this Basic Law.

            A prisoner does not enjoy liberty – one of the two elements of the title of the Basic Law – inasmuch as he is incarcerated. Section 5 of the Basic Law, which states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”, does not apply to prisoners, particularly in view of the limitation clause entitled “Violation of rights” (sec. 8), which states: “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” (and see: LHCJA 4937/14 Albazian v. Attorney General [5], paras. 11-12; LHCJA 328/15 Zalum v. Attorney General (hereinafter: the Zalum case [6]), para. 35).

37.       This Court has long held that human dignity comprises a broad field of rights, inter alia, and with nuances that this is not the place to elaborate, the right to freedom of religion and freedom from religion, the right to freedom of expression, the right to one’s good name, and the right to family life (A. Barak, Human Dignity: The Constitutional Value and its Daughter Rights (2014), chap. 13 (Hebrew), [published in English as Human Dignity: The Constitutional Value and the Constitutional Right (2015)]). The Basic Laws do not expressly recognize social rights, and the courts have refrained from unequivocally stating that the government has a duty to respect social rights (B. Medina, Human Rights Law in Israel (2017) (Hebrew)). However, it has been held, and this is perhaps the main point, that the right to dignity also includes a right to basic dignified existence.

38.       In HCJ 161/94 Atari v. State of Israel [7], and later in HCJ 4905/98 Gamzu v. Yeshayahu [8], the Court recognized the right to minimal dignified human existence – ensuring basic human subsistence (and see: HCJ 10662/04 Hassan v. National Insurance Institute [9]). These judgments, and in many subsequent judgments (LCA 5368/01 Yehuda v. Attorney Yosef Teshuva, Receiver [10]; HCJ 5578/02 Manor v. Minister of Finance [11], 736; AAA 3829/04 Tuito, Chairman, Mikol Halev Association v. Jerusalem Municipality [12], 779; B’tzedek Association – American-Israeli Center for Promoting Justice in Israel v. Minister of Interior [13]) recognized a basic right to a dignified human existence as a right to dignified socioeconomic existence, inasmuch as in “the free world”, the right to a dignified existence is intimately tied to economic welfare, and the possibility of maintaining it requires economic means. As opposed to this, the subsistence of prisoners behind bars is not contingent upon their economic capabilities, and it is by nature more modest. It consists primarily of the possibilities available to maintain his daily life within the confines of the prison and the purpose of imprisonment. “Indeed, the human right to dignity is also the right to have living conditions that allow an existence in which he will realize his liberty as a human being” (HCJ 366/06 Commitment to Peace and Social Justice Society v. Minister of Finance [14], 480, per President A. Barak). The prisoner cannot, of course, realize his liberty while imprisoned, but he , of course, does not stop being a human being, and looking to the future, his humane treatment also benefits society and contributes to preventing recidivism, to the extent possible (see: H. Cohn, The Law (1991) (Hebrew), hereinafter: Cohn, The Law).

39.       It would not be an exaggeration to say that an inmate’s physical living space is one of his most basic existential needs. It is essential in every respect that there be a space in which the inmate can live his life within the limits deriving from his imprisonment. We are concerned with the core of human dignity, the nucleus of the right: “We are speaking of human dignity in its plain meaning, the core of human dignity, of human dignity as expressed and understood in plain language” (HCJ 1163/98 Sadot v. Prisons Service [15], 857, per Justice Cheshin). We should bear in mind that even were the conditions those established by the legislature, and every inmate were allocated 4.5 square meters of living space, it would hardly be wildly generous, and privacy would, nevertheless, be limited. But the word of the legislature, even if qualified, must remain before our eyes, and to it we must strive.

40.       But the living space allocated to an inmate throughout the prison facilities stands at only 3.1 square meters. This space is “all included” – it comprises the beds (some 1.5 square meters), storage spaces, and lavatory and shower areas. In other words, the free space allotted to an inmate for his day-to-day activity does not reach 3 square meters. The overcrowding in the prisons “violates the movement and breathing space of the inmate in the prison compound” (the Prison Privatization case [4], para. 32 of the opinion of Justice Procaccia), infringes the inmate’s privacy to the point of nullification, and allows only limited movement. The Petitioners enumerated a long list of the consequences of overcrowding for the lives of inmates, and well described how it can inherently lead to the spread of disease and to difficulties in maintaining good hygiene (see: The Public Defender’s Report, pp. 17-19). This is the case even if I do not doubt that the Prisons Service, its headquarters, district commanders and prison wardens work hard to improve the situation and maintain the health of the inmates. However, research shows that overcrowding leads to an increase in friction among the inmates, which in turn leads to violence and disciplinary breaches (Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 Wash. U.J.L & Pol’y 265 (2206); Gerald G. Gaes, The Effects of Overcrowding in Prison, 6 Crime and Just. 95 (1985). Truth be told, there is no need for research to know this – it is clear from experience and common sense. The research also points to the physical and psychological decline of inmates, an increase in the sense of pressure, tension and anxiety, as well as an increase in self-starvation (N. Dagan, “Early Prison Release: The Releasing Authority and its Discretion in Designing Penalties” (Ph.D. diss, 2013) (Hebrew); and see: Jack Call & Terence Thornberry, Constitutional Challenges to Prison Overcrowding: The Scientific Evidence of Harmful Effects, 35 Hastings L.J. 313, 319 (1984)). It is superfluous to say that overcrowding impairs the availability and accessibility of various services in the prisons. These services are divided among a larger number of prisoners, and the same is true for public spaces. We will now turn to the “terrible overcrowding in the prisons” (not necessarily in regard to Israel, and see: Cohn, The Law, 552).

41.       The Public Defender’s Report (Conditions of Detention and Imprisonment in the Prison Facilities of the Prisons Service in the Years 2013-2014 (2015) (Hebrew)) states, for example, in regard to ventilation conditions:

In the Maasiyahu Prison [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.7 square meters – Appendix P/1 – E.R.] the cells were found to be dark, and there were no means for proper air conditioning and ventilation, other than in the staff offices. In a visit in July 2014, when the weather was very hot, the inspectors met inmates who all, without exception, complained of the severe heat in the prison, and noted that the few fans that were given to them were insufficient to alleviate it. The inspectors themselves suffered from the intense heat in the cells, and noted that some of the cells were dark (p. 47).

            As for the sanitation and hygienic conditions:

In the Nitzan Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 2.4 square meters – Appendix P/1 – E.R], the inspectors were exposed to particularly severe sanitation conditions. The inmates complained of hard living conditions in terms of overcrowding, hygiene and the available equipment, and also showed the inspectors insect, lice and flea bites. According to them, the matter has not been addressed by the Prisons Service, and there has been no spraying of insecticide in the wing for over five months. The prisoners also complained of a lack of facilities for hanging laundry, such that they are required to hang wet laundry in the cell. In one cell, the inspectors saw many cockroaches around an empty plate, and there was a sense of severe suffocation and a stench that made it difficult to remain in the place for more than a few minutes. In another cell, the inspectors found that there was no dining table and the inmates eat while sitting on the beds. There was no trash can, and the trash was thrown into a bag on the floor. There were signs of severe damp, the paint was peeling from the walls, and there was a water leak. In another cell, which held eight inmates, overcrowding and stench. The shower and lavatory were in an inner room, but the water continuously ran out of it into the cell. Insects and cockroaches were observed in the cell, which cause the inmates itching and sores. There is a large window in the cell, without glass due to the extreme heat in the room. It was reported that in the winter, rain water enters the room through the window and wets the beds… (p. 51).

And further:

In the Hadarim Detention Center [in which, according to the data of the Prisons Service, the living space per prisoner stands at 3.6 square meters – E.R], the inspectors noted the lack of hygiene in the cells of detainees being held under day-to-day arrest. The bathroom was neglected and dirty, and the metal (stainless steel) toilet and sink were dull and stained, the floor was filthy, trash was spread about the cell, on the walls and ceiling there were mildew, dirt and stains. The walls of the cell are covered in graffiti, and are completely peeling. The mattresses on the beds were torn, dirty and full of holes, and were nothing more than bare pieces of foam. There were gray woolen blankets on the beds, which were also partly torn and covered in stains. A bad odor emanated from the mattresses and blankets. Some of the beds were broken. In another cell, visited by the inspectors at lunchtime, there were three inmates who sat on the beds around a plastic table. The inmates crowded their trays on the narrow table or held them in their laps, and it was clear that eating was uncomfortable. Next to the table, there was an improvised trash bin, made from a large food can. This cell, too, was filthy, the blankets were dirty, and the inmates complained that they were used and had been left in the cell by other inmates. The inmates told that they wanted to clean the cell, but instead of being given cleaning supplies, the prisoner detail sprayed a little water and soap in the middle of the cell, and they removed the water from the cell with a squeegee. The inmates noted that the only cleaning material around is dishwashing soap, and even that is not accessible to them (ibid.).

42.       The Public Defender’s Office also noted that many prison facilities lack a partition between the shower and the toilet, such that the inmates have to shower while standing over the place where other inmates relieved themselves.

43.       The above is given concrete expression in the prisoners’ affidavits appended to the petition. We will quote some of them:

In that cell we were 8 inmates for 22 consecutive hours a day. Not enough daylight entered the room, so it was mostly dark. There was no air flow, so the room was suffocating and stank. There was no space in the room to stand and walk and stretch, so most of the time we would all lie on our beds … in 2005, I spent a year … in the Ayalon Prison. There we were twenty inmates in 35 square meters of living space, with only 14 beds in the room, and I had to sleep on a mattress on the floor. At night, inmates who went to relieve themselves stepped on me. Inmates threw things at me from their beds. There was a lot of violence in the room, and very frequently due to the severe overcrowding, and directly related to the issue of distributing the beds in the room and telephone times (P/11, Affidavit of Prisoner D).

            And:

The wings in which I was held for my 21 years of imprisonment until now were very crowded, filthy, not whitewashed, and certainly unfit for human habitation (P/12, Affidavit of Prisoner E).

44.       And this is how the situation was described by Mrs. Gilada Hellman, who held various positions in the Prisons Service, including warden of the Hermon Prison and District Prisoners Officer for the Northern District:

In a large part of the cells, there was such great overcrowding that there was no room to put a table or a chair in the cell, and the inmates, in such cases, had to eat while sitting on their beds with the plate on their knees, or they had to fight over the little available empty space … in a large part of the cells, there is also no room for keeping personal belongings … as a result, there are a lot of thefts and disputes among the inmates … the severe overcrowding conditions also negatively impacted the prisoners’ hygiene … (P/14).

45.       On a personal note: Over the years, beginning with my tenure as a District Court judge, and particularly during my term as Attorney General, and my tenure in this Court, I felt it was important to examine the living conditions of inmates by relatively frequent visits, without prior coordination other than a notice to the Legal Advisor of the Prisons Service immediately prior to the visit, and spontaneously choosing the prison. I also often wanted all the clerks in my office to see the prisons from the inside. I would note that a Supreme Court justice, as well as the Attorney General, may visit any prison in accordance with sec. 72 of the Prisons Ordinance. I recall what I was told by my late friend, and justice of this Court, Dr. Moshe Etzioni, who, when appointed to the Magistrates Court in 1945, asked the senior British judge for permission to visit a prison “in order to know where I am sending people”. I would also add at this juncture that I greatly appreciate the Prisons Service for its work – important and hard work – and I have always been impressed by the efforts of the commanders and their staffs to treat the inmates properly and respectfully. What will be said here is not intended to detract from that in any way. In those visits, after speaking with the prison warden, I would randomly visit the cells in the various wings as I chose, and talk to the inmates. I was always impressed by the efforts of the staff and all involved in providing, to the extent possible, suitable conditions and various services that would afford the inmates a real opportunity to leave the cycle of crime for a normative life, as far as possible, and attain “local quiet” to the extent possible. However, I saw crowded cells, with hardly adequate ventilation, particularly in the hot summer days, and a lack of space heaters in the winter in the old buildings. Thus, for example, after visiting the Ayalon Prison on July 23, 2008, I wrote to the Deputy Commander of the Central District and the Warden of the Ayalon Prison: “The Ayalon Prison is based upon an old building from the Mandate period, and it is clear that parts of it that remain from that structure are completely inadequate in terms of the living conditions of the inmates, where 12- 14 inmates reside in a cell that is not large enough for such a number, and the shower is over the toilet. We understand that three new wings are currently under construction, and that there is an intention to upgrade the existing ones thereafter. It is to be hoped that this process will be accelerated, as it is hard to accept such cells in the 21^st century … and this is not meant as criticism of the work of the staff, but rather of the unacceptable situation” (my letter dated July 24, 2008). After my visit to the Nitzan detention center on March 1, 2011, I wrote to the Prisons Commissioner that “in the renovated wing, living conditions are good and the lavatories are at a good level … in the ‘old’ wing as well, although it is much more crowded, we heard no complaints from the prisoners or detainees, and on the contrary, praise for the treatment by the staff. Nevertheless, the conditions require improvement, and it is to be hoped that the renovation will be carried out quickly” (my letter of March 2, 2011). After my visit to the Shatta (Shita) prison, I sent a letter to the prison warden in which I noted, among other things, that “at the basic level, we are concerned with old prisons, and the crowding is, therefore, not insignificant in some of the cells” (my letter of March 6, 2017). Actually, there is a high degree of overcrowding in certain Israeli prison facilities because they were built long ago, some in the British Mandate period, and there is even a remnant of the Ottoman period (the Russian Compound). Certain police stations that comprise detention rooms suffered from overcrowding. In the closing days of my tenure as Attorney General, I visited one of the police stations in the Judean foothills that comprised detention cells. A very crowded cell that was “intended” for six detainees in three bunk beds (and would even then be very crowded), held 12 people, and in addition to the six in the beds, two slept on the shelf over the shower that was in the cell, two shared beds with others (good lord), and two on the floor, who in certain conditions – if they did not pose particular danger – would be taken out into the hall to sleep in the air of the hallway rather than in a suffocating room. I turned, almost in a frenzy, to the Ministry for Public Security, and I was promised that the matter would be resolved quickly.

46.       It cannot be denied that much has been done over the last few years to improve the situation. Prisons have been renovated and new ones have been built, and there are proven good intentions, but that is not enough. As noted, a number of reports addressed the issue of prison conditions over the years, committees were convened, and the complex reality of budgeting and logistics led to a situation in which, for years, efforts have been made, plans devised, and steps even taken – and I say this with no intention to offend anyone – but an appropriate solution in the field has not been provided for a large part – too large a part – of inmates.

47.       We will already state that we are aware that, at the end of the day, the hurdle is economic and concerns the priorities of the decision makers, and “the needs of your people are many”.[2] None of the decision makers wishes to harm the prisoners and detainees, but the absolute majority of inmates “enjoys” living space that is lower, by any standard, from what is acceptable in a civilized state, as we shall elaborate below. While it is generally neither the practice nor the place of this Court to intervene in setting priorities for the division of state resources by putting ourselves in the authority’s shoes, that is not what we are concerned with here. No one disputes that basic rights cannot retreat before budgetary considerations (HCJ 451/94 Miller v. Minister of Defence [16]), inasmuch as “the rhetoric of human rights must be backed up by a reality that places those rights at the forefront of national priorities. Protecting human rights costs money, and a society that respects human rights must be willing to carry the financial burden” (Aharon Barak,  Interpretation in Law – Constitutional Interpretation, vol. 3, (2013) 528 (Hebrew) (hereinafter: Barak, Interpretation in Law); and also see HCJ 9134/12 Gavish v. Knesset [17] and references there). As noted, the present matter stands at the core of human dignity— the realization of the right to a minimal dignified existence in the most basic sense – and budgetary considerations cannot justify their continued violation over the course of decades.

International and comparative law

48.       In their petition, written responses, and oral arguments before the Court, the Petitioners made many references to international and comparative law. Indeed, the subject of the appropriate living space for prisoners and detainees has been addressed by many countries, of all types, both among those considered progressive and those that do not enjoy a good reputation in this area, and has been widely addressed by international enforcement agencies and other international bodies. While this is not lost upon the Respondents, who are of the opinion that caution should be exercised in comparing these laws to the balance struck by the Israeli legislature, and it is clear that every state has its own character, needs and abilities, I am of the opinion that the scope of comparative law’s interest in the area – together with the fact that we are concerned, to a great extent, with a universal question of human dignity – requires that we train our sites abroad. That clearly does not imply entirely adopting an arrangement of any particular country into our legal system. The survey is meant to enlighten us in our search for a solution to the problem we face. An incarcerated person, as such, is one and the same throughout the world. History and literature are laden with commentary and stories concerning imprisonment and the conditions of imprisonment in regimes to which we have never been, and will not be similar in any shape or form, not only in the distant past, but even in recent generations and in our own time, even close to us, whether a calaboose or a gulag. Israel seeks to be and to appear as the most civilized of nations, and while this area may physically be situated “behind closed doors”, it is a moral showcase.

International law

49.       We will, therefore, begin with the position of international law. The relevant requirement established under art. 10(1) of the International Covenant on Civil and Political Rights of 1966, states: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. While the phrase “with humanity and with respect for the inherent dignity of the human person” is inherently of a general nature, minimal floor space is among the basic conditions to which every prisoner is entitled under the United Nations Standard Minimum Rules for the Treatment of Prisoners, last amended in 2015:

All accommodation provided for the use of prisoners and in particular all sleeping accommodation shall meet all requirements of health, due regard being paid to climatic conditions and particularly to cubic content of air, minimum floor space, lighting, heating and ventilation (rule 10, emphasis added – E.R.).

            It should be noted that despite the express requirement to provide minimum living space, the rules do not specify a concrete standard that must be met.

50.       An additional source for interpreting the requirement for the appropriate care of prisoners can be found in the work of the UN Human Rights Committee, whose task is to supervise the execution of the Covenant (not to be confused with the Human Rights Council and its well-known discriminatory attitude towards Israel). The Committee addresses the issue of prison overcrowding as part of its periodic review of the member states, as well as in reviewing petitions submitted to it concerning the violation of their obligations under the Covenant and the Rules. An examination of cases reviewed by the Committee reveals that providing appropriate living space is indeed part of the obligation to treat prisoners “with humanity and with respect for the inherent dignity of the human person”. However, it is difficult to discern any rigid standard for appropriate living space in the Committee’s reports.

51.       International law also examines the conditions of imprisonment from the perspective of the prohibition of cruel, inhuman or degrading punishment. This prohibition, while worded in a general manner, is anchored in art. 5 of the International Covenant on Civil and Political Rights, and in art. 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Israel in 1991.

52.       According to the Petitioners, providing less than 4.5 square meters of living space per prisoner, independent of lavatory and shower areas, in a shared cell constitutes a violation of the said prohibition. Support for this view can be found in the reports of the UN Committee against Torture, which note that member states must provide living space of at least that scope (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Estonia at its Fiftieth Session, U.N. Doc. CAT/C/EST/CO/5 (Jun. 17. 2013)., para. 17; Comm. against Torture, Concluding observations on Bulgaria at its Forty-seventh Session, U.N. Doc. CAT/C/BGR/CO/4-5 (Oct. 31. 2011), para. 21). However, in most cases, the Committee does not require the reviewed state to meet a concrete objective in regard to the average living space per prisoner, but rather suffices with a general statement as to the need to observe the Rules (see, for example: Comm. against Torture, Concluding observations on the fifth periodic report of Colombia at its Fifty-fourth Session, U.N. Doc. CAT/C/COL/CO/5 (May. 29. 2015), para. 17; and see: Comm. against Torture, Concluding observations on the third periodic report of Philippines at its Fifty-seventh Session, U.N. Doc. CAT/C/PHL/CO/3 (Jun. 2. 2016), para. 27).

53.       A minimum standard of 4 square meters per prisoner, excluding lavatory and shower areas, and a total 6 square meters per prisoner, including those areas, for a prisoner in a single-occupancy cell, was recently established by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT), which is responsible for the execution of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 1950. It is significant that while the UN Committee views 4 square meters as an appropriate criterion, the European Committee regards that as a rigid minimum standard that is not, itself, sufficient to ensure proper living conditions:

Clearly, the aforementioned examples suggest that the 4m² per prisoner standard may still lead to cramped conditions when it comes to cells for a low number of inmates. Indeed, given that 6m² is the minimum amount of living space to be afforded to a prisoner accommodated in a single-occupancy cell, it is not self-evident that a cell of 8m² will provide satisfactory living space for two prisoners. In the CPT’s view, it is appropriate at least to strive for more living space than this. The 4m² standard is, after all, a minimum standard (European Committee for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment, Living Space per Prisoner in Prison Establishments: CPT Standards, CPT/Inf (2015) 44, para. 15 (emphasis added – E.R.)).

54.       In addition to the establishment of the said standard, the European Court of Human Rights – which acts under the authority of the European Convention – addressed a large number of applications in regard to the prison conditions in various states. In this framework, a clear rule was created on the question of when the incarceration of a prisoner would constitute a violation of the prohibition upon cruel, inhuman, or degrading punishment established under art. 3 of the Convention. Under the case law, meeting the standard of 4 square meters of living space per prisoner (exclusive of additional areas), as stated, is a central consideration in evaluating the conditions of imprisonment (Karalevicius v. Lithuania, no. 53254/99, § 36, ECHR 2005). Moreover, it was held that where the living space allotted to a prisoner is less than 3 square meters, the Court would view the crowding itself as grounds for a violation of the prohibition upon cruel, inhuman or degrading punishment (Ananyev v. Russia, no. 42525/07, § 145, ECHR 2012 (hereinafter: the Anyanev case); Kalashnikov v. Russia, no. 47095/99, § 97, ECHR 2002; Badila v. Romania, no. 31725/04, § 72, ECHR 2011 (hereinafter: the Badila case); Ostrovar v. Moldova, no. 35207/03, § 82, ECHR 2005; Lonia v. Croatia, no. 8067/12, § 76, ECHR 2014 (hereinafter: the Lonia case)). It should be noted that even when the allotted living space per prisoner is greater than 3 square meters but less than the 4 square meter standard, additional factors – such as the ventilation and heating of the cell, exposure to daylight, basic hygienic conditions and the possibility of using the lavatory without an infringement of privacy – may tip the scales in favor of a finding of cruel, inhuman or degrading punishment (the Badila case; Peers v. Greece, no. 28524/95, § 70, ECHR 2001).

55.       As for the consequences of such a violation, European law – as a rule – grants compensation for non-monetary harm to a person who suffered cruel, inhuman or degrading punishment; and see in this regard: Olszewski v. Poland, no. 21880/03, ECHR 2013, in which  the Court awarded the applicant €5000 for his injuries due to the conditions of his imprisonment – foremost among them, being held in a space that was less than 3 square meters for a cumulative period of some 5 years; and see Marin v. Romania, no. 79857/12, ECHR 2014, in which the applicant was awarded €15,300, in part due to the crowding in the facilities in which he was held for a period of about 10 years; and see the Lonia case, in which the Court awarded the full sum requested – €10,000 – inter alia due to the fact that the plaintiff was held for a year of his overall incarceration in a living space that was smaller than 3 square meters.

56.       It should also be noted that in some cases the Court exercises its authority under art. 46 of the European Convention, which permits instructing the member states to take operative steps, whose execution is supervised by the Committee of Ministers. Although the Court’s judgments are declaratory in nature, the panel may – under the said authority – establish a timeframe for the execution of its instructions, or recommend concrete steps to be taken by the country to meet them. That was done in the Orchowski case, cited above, which examined the conditions of imprisonment of the applicant in eight different Polish prison facilities over the course of 6 years, as of the date of the judgment. In view of the finding that the applicant had been held for most of that period in an area that was less than 3 square meters, and at times he was allotted even less than 2 square meters, the Court ruled that the prohibition upon cruel, inhuman or degrading punishment had been violated in his regard. In addition to awarding damages for the applicant’s injuries, the Court ruled that that the state had to establish long-term solutions for the problem of overcrowding in the prison system in order to meet acceptable standards. It was further held that if adequate steps were not adopted to improve the conditions of imprisonment, the state must adopt a more lenient penal policy or put in place a system of alternative means of punishment.

57.       The Ananyev case concerned three complaints by Russian prisoners against the conditions of their imprisonment. In addition to the finding that the applicants’ living conditions constituted cruel, inhuman or degrading punishment, the Court ruled that the problem of overcrowding in Russia – which affects various prison facilities throughout the country – requires long-term solutions, with emphasis upon reducing the number of remands in custody, and granting early release to prisoners:

… the Court considers it important for the purposes of the present judgment to highlight two such issues which need inevitably to be addressed by the Russian authorities in their ongoing struggle against persistent overcrowding of remand centres. The first issue concerns the close affinity between the problem of overcrowding, which falls to be considered under art. 3 of the Convention, and an excessive length of pre-trial detention … The second issue, which is closely linked to the first, concerns possible additional ways of combating the overcrowding through provisional arrangements and safeguards for the admission of prisoners in excess of the prison capacity (ibid., para. 196).

            It was further required that Russia present a binding time-frame for the adoption of the said measures, within six months from the date on which the Court’s judgment became final.

58.       In the Torreggiani case, as well, which treated of the conditions in two Italian prisons, the court allotted the state one year to develop a plan for addressing the overcrowding issue, and recommended that the plan include means for reducing the number of remand prisoners, and early release. Another judgment in which the European Court exercised its authority under art. 46 was recently issued in Varga and others v. Hungary (no. 14097/12, ECHR 2015), which addressed the applications of six prisoners, each held in a different facility. The court held that the limited space allotted to the prisoners, along with other poor conditions, constituted cruel, inhuman or degrading punishment, and the state was given a period of six months to present a plan for remedying the conditions of imprisonment and reducing the number of prisoners and detainees.

The United States

59.       The problem of overcrowding in prisons in the United States – generally viewed as one of the most civilized countries – is among the most severe in the Western world (Shepard Simpson & Lauren Salins, Efforts to Fix a Broken System: Brown v. Plata and the Prison Overcrowding Epidemic, 44 Loy. U. Chi. L.J. 1153, 1157 (2012) (hereinafter: Simpson & Salins); and see, Paul Paulus, Garvin McCain & Verne Cox, Prison Standards: Some Pertinent Data on Crowding, 45 Fed. Probation 48 (1981)). As a result, the question of the average living space per prisoner has not infrequently come up for review before the federal courts. In various petitions filed in regard to prison conditions, it was argued that overcrowding rose to the level of “cruel and unusual punishment”, which is the American equivalent to the said cruel, inhuman or degrading punishment in international conventions, and which is prohibited under the Eighth Amendment to the U.S. Constitution.

60.       The U.S. Supreme Court first addressed the issue in Rhodes v. Chapman (101 S. Ct. 2392 (1981) (hereinafter: the Rhodes case)), which concerned the constitutionality of the practice of “double-celling” – i.e., holding two prisoners in a cell intended for single occupancy. In denying the appeal, the majority held that the overcrowding did not constitute cruel and unusual punishment under the circumstances, inasmuch as the overcrowding did not lead to deprivations of the prisoners’ essential living conditions, such as sanitation, food quality, medical care, and so forth, nor did it increase violence among inmates.

61.       Since the reasoning in Rhodes was specific to the conditions of the concrete case, and refrained from drawing clear lines for a forward-looking comprehensive test, the federal courts were left broad discretion (see: Simpson & Salins, p. 1164), whose approaches could be divided into three primary views (Susanna Y. Chung, Prison Overcrowding: Standards in Determining Eighth Amendment Violations, 68 Fordham L. Rev. 2351, 2362-2371 (2000). According to the first approach, overcrowding alone should not be viewed as a criterion for a violation of human rights, but rather the question to be addressed is whether the prison living conditions as a whole represent a violation of the prohibition upon cruel and unusual punishment. The second approach, which is substantively similar to the majority opinion in Rhodes, holds that the overcrowding must have a negative effect upon the prisoner’s living conditions – e.g., the quality of food served, or the medical care provided – in order to be deemed unconstitutional. According to the third approach, reminiscent of the view of the European Court, holding a prisoner in a small living space may itself constitute cruel punishment.

62.       In 2001, the U.S. Supreme Court was faced with an appeal by the governor of California in the Plata case, challenging the judgment of the federal court in a class action by inmates in the state. That judgment ordered the State of California to reduce the number of prisoners in the state by no less than 38,000 to 46,000 inmates within a period of two years. By a five-to-four majority, the Court denied the appeal and upheld the decision of the appellate court.  Although the majority did not reverse the Rhodes ruling that measured the constitutional infringement in terms of the basic living conditions of the inmates, it held that overcrowding constituted a primary cause of the violation of the prohibition upon cruel punishment, and therefore, there was no alternative but to reduce the number of inmates:

The population reduction potentially required is nevertheless of unprecedented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding (ibid., at p. 1923, per Kennedy, J.).

63.       It should be noted that the Supreme Court’s decision in regard to the existence of disproportionate overcrowding in the prison was not based upon a calculation of the average living space per prisoner, but rather upon data concerning capacity – 200% at the relevant time. Reducing between 38,000 and 46,000 inmates was thus intended to bring occupancy down to 137.5% of capacity, which represented the compromise reached by the appellate court between the demand of the prisoners (130% of capacity) and the limitations of the state. It was further held that it was not necessary that every facility achieve the said standard, but that it would suffice that it be achieved on average:

There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it so the system as a whole remains in compliance with the order (ibid., p. 1941).

64.       It would seem that the decision in the Plata case expressed the Supreme Court’s readiness to retreat from the demand of a direct causal connection between the size of an inmate’s cell and a worsening of his basic living conditions, in favor of recognition – cautious as it may be – of overcrowding itself as a cause for a constitutional violation, in view of its inherent consequences for the services provided in the prison. And note: although the decision did not expressly recognize the right of every prisoner to minimal living space, its consequences were far-reaching in terms of the remedy (“perhaps the most radical injunction issued by a court in our Nation’s history,” per Scalia, J., dissenting) – ordering the state to reduce a concrete number of inmates (although leaving the manner of execution to the state’s discretion) in a clear timeframe.

Canada

65.       In Canada, too, petitions by prisoners against overcrowding are examined from the perspective of the prohibition upon cruel and unusual treatment or punishment anchored in sec. 12 of the Canadian Charter of Rights and Freedoms of 1982, to which this Court has referred on more than one occasion. The Canadian Supreme Court has yet to address the concrete question of average living space per prisoner, but a review of recent decisions of the Court of Queen’s Bench of Alberta can cast some light on the position of Canadian law in principle on the issue before us.

66.       The Trang case (Trang v. Alberta (Edmonton Remand Centre), 2010 ABQB 6) concerned a petition by some 25 prisoners for declaratory relief stating that the conditions in the facility in which they were being held pending trial constituted a violation of the said prohibition. It was argued, inter alia, that “double-bunking” of inmates in cells intended for single occupancy – ranging in size from 7.9 square meters to 8.1 square meters, i.e., some 4 square meters per inmate – constituted cruel punishment. This is how the court described the overcrowding in the facility:

The evidence shows that the cells are all double-bunked (except medical and segregation), that the cells were originally designed for one person, that there is not enough room for both roommates to walk around or exercise in the cell at the same time, and that there was only room for one person to sit at the table, leaving the bunk bed for the other. There is no toilet privacy (ibid., para. 1013).

            It was held that although double-celling itself is not an inherently prohibited practice (in reliance upon the 1982 decision of the Federal Court of Canada in Collin v. Kaplan (CanLII 2982 (FC)), it could not be tolerated in the present circumstances:

By itself double bunking is not a Charter breach. But many of the Applicants were on strict rotation schedules, which meant that they were only out of the cells for a half hour at a time, and that depending on the rotation, their total time out of cells ranged from 3 hours to 6 hours. Assuming an 8 hour sleep period, this means that they were awake and in the cells for 10 to 13 hours a day.

…

In my view, the amount of time spent reviewing disclosure, out at court, or for that matter, attending medical or dental parade, does not mitigate the fact that these Applicants spent a very significant amount of time in a very small cell, with little access to recreation or other activity. They could not even watch television, since the TVs were in the common area. I conclude that the s. 12 rights of these inmates were breached.

Obviously, it is the combination of double-bunking in small cells for 18-21 hours a day, with limited access to recreation and other activities that leads to this conclusion (ibid., paras. 1013, 1024-1025, emphasis added – E.R.).

67.       The Walters case (R. v. Walters, 2012 ABQB 83), which concerned petitions of remand prisoners being held in that same facility pending trial, addressed the question whether triple-celling – i.e., holding three in a cell intended for one – constituted a violation of the Charter prohibition upon cruel punishment. As noted, we are speaking of 8 square meter cells, such that the living space allotted to each detainee amounted to some 2.6 square meters. In addition, one of the detainees slept on a mattress due to insufficient space for an additional bed. When it was found that the only reason for the overcrowding of the facility was budgetary, the court ruled that holding three people in a cell intended for one constituted cruel punishment, and a fortiori in regard to remand prisoners who enjoy a presumption of innocence.

68.       In conclusion, no one denies that the problem of prison overcrowding exists in many countries – inter alia, as a result of the modern punitive policy that has led to a significant decline in executions and a rise in the number of prisoners – and they seek a variety of solutions to contend with it. Accordingly, the picture provided by the comparative survey is complex, and it is therefore difficult to draw a direct analogy to the situation in this country. However, despite the differences among the various laws in regard to the scope – and at times, even the very existence – of a minimum standard for living space, there would appear to be a growing willingness, both by international systems and the legal instances of the various states, to exercise active means to remedy the problem of overcrowding. Against this background, we will now return to address the present petition, but not before expressing the view of Jewish law on the subject of the treatment of prisoners.

The treatment of prisoners in the Jewish heritage

69.       The Jewish conception of human rights derives, first and foremost, from the principle stated at the beginning of the book of Genesis in describing the outset of human history:

Then God said, “Let us make mankind in our image, in our likeness, so that they may rule over the fish in the sea and the birds in the sky, over the livestock and all the wild animals, and over all the creatures that move along the ground.” So God created mankind in his own image, in the image of God he created them; male and female he created them (Genesis 1:26-27; emphasis added – E.R.).

70.       In the same spirit, the poet of the Psalms would later write: “You have made him little less than divine, and adorned him with glory and majesty” (Psalms 8:6; emphasis added – E.R). In the tannaitic period, Rabbi Akiva would explain: “Beloved is man for he was created in the image [of God]. Especially beloved is he for it was made known to him that he had been created in the image [of God], as it is said: For in the image of God He made man” (Mishna Avot 3:14).

71.       With the passage of time, the principle “For in the image of God He made man” would become one of the most centrally important principles that Judaism gave to humanity, and particularly to the free world. Human dignity and liberty are, therefore, a direct result of creation in God’s image. This is a principle that “impliedly and expressly encompasses, instructively and beautifully, the basis and foundation of all society, the grounding of the fundamental norm of the legal world” (Justice M. Elon, In the Image of God He created Him – Human Dignity and Liberty, in Parashat HaShavua – B’resheet 1(A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)). And as Prof. M. Elon also writes:

These two fundamental values – human dignity and human liberty – are interconnected, one influencing the other and uniting as one in our hands. So it is in the sources of Jewish heritage, and so it is in the Western democratic world. In the Jewish world, these two fundamental rights derive from one source – the fundamental principle of the creation of humanity in the image of God (Menachem Elon, Human Dignity and Liberty in Jewish Heritage, 12(1) Mahanayim: “On Halakha and Law” 18 (1995) (Hebrew)).

In his article Shelihut, in Yemei Zikaron (1987) (Hebrew), Rabbi J.B. Soloveitchik writes: “The value of human dignity is a central axis of many halakhot … and it may well be that all the interpersonal mitzvot are based upon the value of human dignity … In his commentary on the verse ‘Let us make mankind in our image, in our likeness’ (Genesis 1:26), Nachmanides refers to the Psalms (8:6), where the expression ‘in our image, in our likeness’ is replaced by ‘and adorned him with glory and majesty’. Thus, the image of God is replaced by the ‘dignity of God’, and its equivalent in the language of the sages is ‘human dignity’.” Also see, N. Rakover, Great is Human Dignity: Human DIgnity as a Supreme Value, 18-26 (1998) (Hebrew) and the many references there; and the Sages have said (Babylonian Talmud Berakhot 19b), “Great is human dignity, as it overrides a prohibition in the Torah”; and see the comprehensive entry in The Encyclopedia Talmudit, vol. 26, 477,  s.v. “kevod ha-beriyyot” (which states, inter alia, “A person must be careful in regard to human dignity – and Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] have written that this is a mitzva – and it is forbidden to embarrass or degrade”).

72.       Under the principles of Judaism, the principle of the creation of human beings in the Divine image requires that prisoners must also be treated with dignity. Indeed, prisoners are incarcerated because of their crimes, which arouse our revulsion and disgust, but they remain human beings, and they are entitled to be treated humanely, in accordance with the accepted criteria of a progressive society, as Israeli society seeks to be. The vulnerability of prisoners derives from two sources: first, from the very fact that they are deprived of their freedom – the greatest of all human rights, along with the right to life – and they are in the custody of the state (see, the Prison Privatization case [4], para. 20 of the opinion of Beinisch, P.); second, because – at least the criminal prisoners – largely “lack a lobby” in the political-public sense, although the Public Defender’s Office fights on their behalf, as do rights organizations (as in the present case), and the Prisoner Rehabilitation Authority in carrying out its mandate. Jewish law in this area begins with the presumption that the rights of prisoners must be respected, and should not be violated except to the extent required by the purpose of their incarceration. “Beloved is man for he was created in the image [of God] – every person, great and small, anonymous and renowned – and we are commanded to protect and preserve all of their rights, even if we are appalled by acts that they committed” (MApp 1/87 Dananashvili v. State of Israel [18], 289, per Elon, J.; emphasis added – E.R.).

73.       Before addressing the scope and nature of prisoners’ rights in Jewish law, we will first note that, as a rule, imprisonment as a means of punishment was unknown to the sources of Jewish law, and it is absent from the list of punishments detailed in the Torah (see, I. Wahrhaftig, “Then you shall select cities to be cities of refuge for you” – Exile as an Alternative to Imprisonment, Parashat HaShavua – B’midbar, 289 (A. Hacohen & M. Vigoda, eds,) (hereinafter: Wahrhaftig) (Hebrew); CrimA 344/81 State of Israel v. Segal [19], 327 (hereinafter: the Segal case); and see, Rabbi E.Y. Waldenberg, Imprisonment as Punishment, B’tzomet haTorah v’haMedina, vol. 1, 389 (Y. Shaviv, ed., 1991) (Hebrew); Rabbi M. Shelpovesky, Imprisonment, op.cit., 401 (Hebrew); Rabbi L. Kaminer, Imprisonment in Israel, 9 Tehumin 147 (5748) (hereinafter: Imprisonment in Israel) (Hebrew)). The sages mention “prison” (see, e.g., Baylonian Talmud Pesachim 91a – and note the distinction there between a “prison of the gentiles” and “a prison of Israel” – which Rashi explains as concerning the compelling of a divorce or the payment of a debt, for example), and Maimonides lists imprisonment among the penalties that a court can impose (Laws concerning Murder, 2:5, and Sanhedrin 24:9). But see, A. Kirschenbaum, Jewish Penology: The Theory and Development of Criminal Punishment among the Jews Throughout the Ages, 428-429 (2013) (hereinafter: Kirschenbaum) (Hebrew)), according to whom “imprisonment was a not a Jewish form of punishment” and was rarely mentioned in biblical and talmudic literature as a form of punishment (ibid., 429)). Indeed, in principle, Jewish law prefers more “proportionate” forms of punishment that do not deprive a person of liberty (see, Aviad Hacohen, Life Imprisonment that is not for Life, and Prisoner Dignity and Liberty: A Jewish Law Perspective, 204 HaSanigor 15 (2014) (hereinafter: Hacohen) (Hebrew)). According to Wahrhaftig, as opposed to imprisonment, “biblical punishment was a one-time penalty that prevented separating the offender from his natural surroundings, and facilitated his reincorporation into society immediately upon the conclusion of the legal process” (Wahrhaftig, p. 291; and see, HCJ 5304/92 Perah Association v. Minister of Justice [20], 744, per Elon, D.P. (hereinafter: the Perah case). This is so even though the Bible was aware of imprisonment as a form of punishment – with a trial or without – in the ancient world in general, and there is no lack of examples in the Bible, such as – in ancient, non-Jewish kingdoms – the story of Joseph in Egypt (Genesis 39-41) and the story of Hananiah, Mishael and Azariah in Babylonia (Daniel 3), and in the Judean kingdom in the case of Jeremiah (chaps. 32-33, 37); the imprisonment of King Jehoiachin (II Kings 25: 27-29); and King Jehoahaz (II Kings 23:37); and King Zedekiah in Babylonia (Jeremiah 52:11); and also see Ezra 7:26. As for the Talmudic period, Kirschenbaum writes that “we have not found that the Sages instituted it for any offense whatsoever” (ibid., 429).

74.       In their article A City of Refuge in a Modern Penal System (Hebrew) (I. Wahrhaftig and S. Rabinowitz, Ir Miklat b’Maarekhet Anishah Modernit – Dugmah Yissumit, miTorat haAnihsah shel haMishpat haIvri, 2 Sha'arei Mishpat 353–81 (2001) and the references there (hereinafter: Wahrhaftig & Rabinovitz), the authors quote various scholars on the subject of the purposes of punishment in Jewish law. Prof. I. Kirschenbaum is of the opinion that “the place of punishment in classical Jewish law, ‘Torah law’, is religious, mystical, educational: it is intended to refine the person, raise his spiritual level and bring him closer to the God of law”. Prof. S. Albeck notes that “the laws of punishments and offenses in the Torah are not intended for society’s good, to protect it from the threat of criminals, their purpose is not to benefit society and keep it from harm, but rather they are meant to teach the individual to conduct himself for his betterment, as offenses are but flaws in the offender … and punishment is but penance”. On their face, these purposes of punishment in Jewish law are not consistent with imprisonment, which is particularly grounded upon the ideas of retribution and deterrence. However, in real life, matters are not so simple and direct. Every society sought means for its protection. Imprisonment is one such means for achieving that, and in the historical-halakhic sense there was a type of gradation.

75.       Ancient Jewish law recognized imprisonment of a person primarily as a means of coercion, or as an intermediate period of detention in contemplation of another penalty imposed upon the offender. It can therefore be said that prisons were originally intended for remand rather than to serve as a criminal sanction (see, M. Elon, Imprisonment in Jewish Law, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 174-178 (Hebrew) (hereinafter: Imprisonment in Jewish Law); and also see, Hacohen, p. 15). This is what Samson Raphael Hirsch (19^th cent., Germany) stated in his commentary to the Bible:

The punishment of imprisonment, with all its loss of hope and the corruption of the morals of those residing behind the prison walls, with all the sorrow and sadness that it brings to the wife and children of the prisoner – has no place in God’s law. The place of the dismal prison towers of criminality are unknown in the kingdom of Torah. Torah law has only arrest and investigation, and this could only be short-term arrest (Hirsch, Commentary on the Torah, Exodus 21:6).

This is lovely to say, and it lends support to the rehabilitative aspect of imprisonment today, which is intended to prevent a further decline into criminality and harm to the family. And yet the question remains, what of protecting society, retribution and deterrence, which are the basis for incarceration today. A brief discussion follows.

76.       Indeed, situations of imprisonment and the attendant suffering of prisoners can be found in the Bible and the Talmud, in both Jewish and non-Jewish contexts. We learn of the sad state of prisoners at the time, and of the harsh conditions to which they were subjected, which are still to be found in some contemporary societies. Here are some examples:

            Joseph’s incarceration in Egypt is described as follows: “And Joseph’s master took him and put him into the prison, the place where the king’s prisoners were confined; he remained there in prison. But the Lord was with Joseph and showed him steadfast love; he gave him favor in the sight of the chief jailer” (Genesis 39: 20-21, emphasis added – E.R.). Nachmanides’ commentary, ad loc., interprets the term “prison” as “a dungeon [or “pit”] built below ground, with a small opening above through which the prisoners enter, and which provides them light”. And indeed, Joseph goes on to say: “For in fact I was stolen out of the land of the Hebrews; and here also I have done nothing that they should have put me into the dungeon [literally: “pit” – ed.]” (Genesis 40:15, emphasis added – E.R.). The dungeon would appear to have been the characteristic prison. The prison was a deep, dark dungeon in which people were bound in iron chains, and starved. It would seem that there are no few places in the world where prisons have remained unchanged since those ancient times.

            The Bible tells of Joshua’s request that Moses imprison Eldad and Medad, two who had prophesied in the camp, fearing that they might undermine Moses’ leadership: “My lord Moses, restrain them!” (Numbers 11:28). Onkelos renders the Hebrew “restrain” [k’la’em] as Aramaic “esarinun”, that is, imprison them, and see one of the two interpretations given by Rashi for the term “k’la’em”: “Put them in prison …”; and also see, Elishai Ben-Yitzhak, “Adoni Moshe K’la’em” – On Imprisonment in Jewish Law, Parashat HaShavua – B’midbar 73 (A. Hacohen & M. Vigoda, eds,) and see the references in fn. 4 (hereinafter: Ben-Yitzhak) (Hebrew).

            Here are additional verses from the Prophets and the Writings that teach us of the suffering of prisoners:

“… to open the eyes that are blind, to bring out the prisoners from the dungeon, from the prison those who sit in darkness” (Isaiah 42:7).        

“Some sat in darkness and in gloom, prisoners in misery and in irons” (Psalms 107:10). Psalm 107 is the biblical source for the rule concerning birkat hagomel [the prayer of thanksgiving for deliverance from danger] or the prayer of personal thanksgiving (Babylonian Talmud Berakhot 54b; Shulhan Arukh OH 219) that four categories of people must express thanks, all of whom are derived from this psalm. One category is that of a person who was “incarcerated in prison and released”.

“As for you also, because of the blood of my covenant with you, I will set your prisoners free from the waterless pit. Return to your stronghold, O prisoners of hope; today I declare that I will restore to you double” (Zacharia 9:11-12).

            Also see the Talmudic statement: “A prisoner cannot free himself from prison” (Babylonian Talmud Berachot 5b), that is, a person who has become used to the hardships of prison life cannot free himself from his chains of bondage, but requires outside assistance. Also see the Talmudic story of Rabbi Akiva who was meticulous in his observance of the mitzva of handwashing while in prison to the point of endangering his life due to his very limited water ration (Babylonian Talmud Eruvin 21b).

77.       In the talmudic period, prison was referred to as “kipa”, which, as noted, was an innovation in terms of the halakhic understanding of punishment. The Mishna notes two situations in which a person is placed in kipa. The first is where the accused has repeatedly committed a severe offense punishable by karet,[3] although he has already been punished twice (or, according to one view, three times) by flogging. The second is where a murderer cannot be sentenced to death by the court due to a procedural flaw (also see, Wahrhaftig, p.3; Arie Reich, The Punishment of Kipa in Jewish Law, 7 Maaliot 31 (1986) (Hebrew); Imprisonment in Jewish Law, 199; Imprisonment in Israel, 147). This is what the Mishna states as to the conditions of kipa imprisonment:

He who was flogged and then flogged again is then placed by the court in kipa and fed barley until his stomach bursts. One who commits murder without witnesses is placed in kipa and fed the bread of adversity and water of affliction (Mishna Sanhedrin 9:5).

            In his commentary to the Mishna, Maimonides explains that what is being referred to is “a cell in the prison that is equal in height to that of a man, and there is not enough room for him to undress or sleep (Commentary to the Mishna 9:5).

            Maimonides states the halakha in this matter as follows:

One who was flogged by the court for an offense punishable by karet, and flogged again for the very same karet offense, such as that he ate forbidden fat and was flogged for it, and ate forbidden fat again and was flogged for it, if he eats for a third time he is not flogged for it, but he is placed in kipa, which is a confined space equal to his height, in which he cannot lie down, and he is given bread of adversity and water of affliction until his intestines narrow and shrink, and then he is fed barley until his stomach bursts (Maimonides, Sanhedrin 18:4; emphasis here and below added – E.R.).

… One who kills and there were no witnesses who saw him together, but rather each saw him one after the other, or who killed in the presence of witnesses but without being warned, or the witnesses were refuted in the examinations but not refuted in the interrogations, all such murderers are placed in kipa and are fed bread of adversity and water of affliction until their intestines shrink, and then they are fed barley until their stomach bursts from the severity of the affliction (Maimonides, Murder 4:8).

            And see, The Encyclopedia Talmudit, vol. 31, 933-935, s.v. “kipa” and references there; and see Kirschenbaum, chap. 9, 256ff, who explains that what is concerned is harsh prison conditions intended to accelerate the offender’s death, as a sort of alternative to the death penalty that should appropriately have been imposed upon the offender, and so it should be understood. It should be noted that the Tosefta (Sanhedrin 12:4) and the parallel talmudic discussion bring an additional case of placing a person in kipa, but in which the means intended to hasten death are not imposed, but rather he is imprisoned until his death. Maimonides also refers to harsh, lengthy imprisonment for murder in circumstances in which the civil authorities did not impose the death penalty: “The [Jewish] court must, nevertheless, flog them severely almost to death, and confine them under severe conditions for many years, and cause them all kinds of suffering in order to frighten and deter other evildoers (Maimonides, Murder and the Preservation of Life 2:5, emphasis added – E.R.); for additional examples of imprisonment in the Talmud, see Imprisonment in Jewish Law, pp. 148-149).

78.       According to some of the commentators, the term “kipa” refers to the harsh conditions that characterized imprisonment, particularly the living space allotted to the offender. According to Mishna commentator Rabbi Ovadia Bertinoro, what was concerned was “a place as high as a person’s height and no more” (Sanhedrin 9:5). Rabbi Nissim Gerondi (14^th cent., Spain) explained that kipa derived from the root k-f-f, which implies that the person in it was bent over [kafuf] (Novellae of the RaN, Sanhedrin 81b (Hebrew)).

79.       Undeniably, the conditions of prisoners as expressed in the talmudic descriptions and in the commentaries on kipa, were very harsh. However, as explained, imprisonment was employed in talmudic times only for the most serious crimes, and primarily as an alternative to the death penalty. In view of Jewish law’s strict rules of evidence, it is reasonable to assume that we are speaking of extremely rare cases (see, Imprisonment in Jewish Law, 134; Reich, 33-35). Nevertheless, in his primary work, Maimonides addressed the human dignity of those punished by the court, ruling:

All of these measures should be applied in accordance with what the judge deems appropriate for the offender and is required in the circumstance of the time, and all he does must be for the sake of Heaven [without ulterior motive or extraneous considerations – ed.], and let human dignity not be taken lightly, for it overrides a rabbinic prohibition … He must be careful not to harm their dignity but only to increase respect for God, for whoever debases the Torah is degraded in the eyes of the people, and whoever respects the Torah will be respected by the people, and there is no greater respect for the Torah than following its laws and statutes (Maimonides, Sanhedrin 24:10, emphasis added – E.R.).

            And see The Encyclopedia Talmudit, s.v. “kevod hab’ri’ot” (ibid., 494), in regard to the possibility deviating from the four cubits of the Sabbath boundaries due to human dignity.

80.       Over time, and in consideration of changing times, the attempts of criminals to evade justice, and changes in methods of punishment in the various legal systems, by the 14^th century Jewish law began to reconcile itself to imprisonment as a “regular” sanction in the framework of “dina d’malkhuta” [the “law of the land”, i.e., the civil authorities – ed.]. From that time on, imprisonment was imposed for various offenses in many parts of the Jewish diaspora (Kirschenbaum, 431-434, and the many references there; Imprisonment in Jewish Law, 190ff; and see Ben-Yitzhak, 4).  While “we do not have many responsa treating of the prison conditions of prisoners” (HCJ 114/86 Weil v. State of lsrael [21], 494, per Elon, J. (hereinafter: the Weil case)), we can plainly say that Jewish law in this regard is clear, inasmuch as Jewish leaders throughout the generations took note and warned of the need to preserve the dignity of a person held behind bars (see: MApp 3734/92 State of Israel v. Zaki Azazmi [22], 79).

81.       We have already referred to what Maimonides wrote. The words of Rabbi Hayim Palaçi (19^th cent., Turkey) on the necessity to provide appropriate conditions for prisoners are particularly appropriate. Rabbi Palaçi ruled that the purpose of remand was only to prevent the prisoner from fleeing before trial, and he should not be subjected to any further suffering due to the conditions of detention. Concerning a person convicted of a non-capital offense, and perhaps under the influence of the conditions in the prisons of the Ottoman Empire at the time, he wrote:

He should not be incarcerated in a prison in which there is filth, that is a place of darkness and gloom, and where a person is in duress and wretchedness … for even if the Torah permits placing him in prison, it was not this type of prison that the Torah permitted … because even though he transgressed and was sentenced to prison, he remains part of the Jewish community (Responsa Hiqeqe Lev, part 2, chap. 5 (Henrew); and see Imprisonment in Jewish Law, 185, fn. 1).

82.       We also find that after the halakhic sages had to reconcile with the imprisonment of a debtor, the creditor was required to provide for the debtor’s maintenance (see, the Perah case [20], 742-743 and references there). Also see Justice Elon’s opinion in the Weil case [21], who turned to the biblical rules concerning the exile of a person who committed manslaughter to a city of refuge to conclude that his dignity should be maintained, and that “he should be provided possibilities for housing and sustenance, study and education, and other such necessities of life” (ibid., 495-497). Justice Elon further mentioned the rabbinic homily on the verse “lest your brother shall be dishonored before your eyes” (Deut. 25:3): “once he has been flogged he is considered your brother” (Mishna Makkot 3:15), and explained that “it is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain” (ibid., 491). These words, even if we do not take the words “your brother and friend” as reflecting actual reality in their plain sense, but rather as an instance of a biblical expression (“For the sake of my family and friends, I will say, Peace be within you” (Psalms 122:8)), they convey the overtone of humanity, or remembering that the prisoner is a person like you and me even if, at present, he is deprived of his rights.

83.       It is interesting to note that even in regard to the biblical story of Israel’s descent to Egypt, one can find an approach that supports protecting the rights of prisoners and respecting their basic needs. When Joseph’s brothers are accused of “spying”, Simeon is placed in an Egyptian prison. The Bible describes the imprisonment as being carried out in public, stating: “And he picked out Simeon and had him bound before their eyes” (Genesis 42:24). But Rashi comments, ad. loc., “He bound him only before their eyes. And when they left, he released him and gave him food and drink” (emphasis added – E.R.; also see in this regard, Aviad Hacohen, Nishama Yetera Bamishpat – Human Dignity and Liberty in Genesis, Parashat Hashavua – B’resheet 336 (A. Hacohen & M. Vigoda, eds. 1972) (Hebrew)).

84.       Justice Elon well described the approach of Jewish law to prisoners and detainees in his opinions over the years (see in this regard, my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew) and references there; A. Hacohen, Menachem Elon: Scholar of Law and Scholar in Law, 6 Sha’arei Mishpat 9, 16-18 (2013) (Hebrew)). Justice Elon’s statement in regard to penalties that the state sought to impose for illegal drug transactions are apt:

… In view of the intolerable situation in some of the prisons in regard to maintaining minimally humane living and diet conditions … it would be proper to prefer imposing heavy, consequential fines rather than imprisonment, as long as this would not be severely inconsistent with the circumstances of the crime and the offender and the need to protect public order and safety. Often, a heavy fine will achieve its purpose of deterrence of the offender and of leading him to a productive life, whereas imprisonment under the current, regrettable conditions in some of the prisons will, in addition to leading the offender to an irreparable entry into criminal society, often result in the degrading of the offender’s Divine image, and that, I fear, is not permitted to us (the Segal case [19], 327).

85.       While the above was written in the early 1980s, and there have undoubtedly been welcome changes in the conditions provided to prisoners, the underlying principle remains pertinent.

86.       In conclusion, underlying the long-standing principles of Jewish law in regard to the subject of prison conditions, beginning with a restrictive view of imprisonment in general, and a process of its acceptance as a necessary evil, stands the need to protect the dignity of prisoners and supply their elementary needs. In this sense, it would appear that the rules of Jewish law were relatively progressive in comparison the “classical” cruelty of imprisonment. “The adoption of imprisonment into Jewish law did not bring with it the attendant phenomena of cruelty and inhuman conditions in regard to diet, sleeping conditions, and so forth, that were common in various countries into the 19^th century” (Imprisonment in Jewish Law, 200). This can be extended even into the 20^th century, from the Russian gulags to the Apartheid regime of South Africa. In any case, it would seem clear that Jewish law requires the maintaining of a balance between the prisoner’s dignity and the punitive purposes of imprisonment. But most importantly for the present case, it seeks to protect the dignity of the vulnerable prisoner who requires rehabilitation. Jewish law would certainly support easing the conditions of prisoners to the extent that it does not undermine the purposes of punishment.

Jewish law in our legal system

87.       Inasmuch as this judgment is being given on the day of my retirement from the Supreme Court, and out of a love for Jewish law, I will allow myself the liberty to devote a few words to the status, place and force of Jewish law in our legal system, concerning which there was – and remains to some extent – a dispute among public figures and jurists (see, FH 13/80 Hendels v. Kupat Am Bank Ltd.[23] (hereinafter: the Hendels case)); my book, Paths of Government and Law, 168 (2003) (hereinafter: Paths of Government and Law) (Hebrew); Hanina Ben Menahem, Foundations of Law, 5740-1980 – Obligation to Comply or Obligation to Confer, 13 Shenaton Hamishpat Ha’ivri 257 (1987) (Hebrew); and see the aforementioned article by Aviad Hacohen, Menachem Elon: Scholar of Law and Scholar in Law; and see my article, Justice Menachem Elon – Humanity, Jewish Law in a Jewish State and Justice in a Jewish and Democratic State, 192 Hasanegor (2013) (Hebrew)). This dispute found expression, inter alia, in the debate between Justices M. Elon and A. Barak in regard to the interpretation of Foundations of Law, 5740-1980 (hereinafter: Foundations of Law) and of the Basic Laws treating of human rights. Briefly, the dispute focused upon the definition of the “Jewishness” of the State of Israel, and on the nature and character of the synthesis required by its being a “Jewish” state and a “democratic” state. The debate began with the meaning of the expression “the principles of freedom, justice, equity and peace of Israel’s heritage”, to which the Court is directed by sec. 1 of Foundations of Law in the case of a lacuna in the law. Justice Elon was of the opinion that the principles of “Israel’s heritage” are the principles of Jewish law, and the legislature had, thereby, granted primacy to Jewish law in judicial interpretation. As opposed to this, Justice Barak was of the opinion that the legislature had not granted “supra-legal” status to Jewish law, and it is not preferred over other legal sources that are employed in statutory interpretation. Years later, with the enactment of the Basic Laws concerning human rights, Justices Elon and Barak disagreed as to the interpretation of the purpose clauses of those Basic Laws, which establish that human rights are to be upheld in the spirit of “the values of the State of Israel as a Jewish and democratic state”. Justice Elon was of the opinion that the Jewish values of the State of Israel specifically include Jewish law, whereas under Justice Barak’s approach, they should be interpreted “at a level of universal abstraction”, that is, in a more general, broad way (for more on this subject, see my article, Malkhut Yisrael l’umat Dina D’malkhuta – Upon the publication of the Book in Honor of Judge Gershon German “Melekh Yisrael”, 22 Mehkarei Mishpat 489, 496 (2005) (Hebrew) (hereinafter: Malkhut Yisrael l’umat Dina D’malkhuta)).

88.       The opposing views presented by the learned Justices Elon and Barak were not resolved, and it is doubtful that they will be. Perhaps common sense allows that they need not be resolved as a binary opposition, but rather by the golden path of the middle road. In this regard, the words of philosopher Prof. Eliezer Goldman, in his article The Law of the State and the Halakaha – Is there a Contradiction, 65 Shedemot 70-79 (1978) (Hebrew) (also published in his book Theoretical Enquiries – Jewish Thought in the Past and the Present, 387 (D. Statman & A. Saguy, eds.) (1996) (Hebrew)), largely remain apt. He wrote (p. 388) that “…a large measure of tact and moderation is required of all parties. A stubborn insistence upon ideological principles of secularism or on the state’s loyalty to halakha might lead to a disintegration of shared national life … no enduring national reality can embody a consistent stance in regard to the Jewish national character or the relationship between the state and halakha. It will reflect an attempt at mutual, practical adaptation among groups whose views on the desirable politico-legal regime for the Jewish State is only partially congruent, and is at odds on some central issues”. Having said that, it would seem on the face of it that there is no dispute, in principle or in general, that Jewish law has a place of honor in our legal system. All would agree that Jewish law is an important source among the sources of Israeli law. All would agree that Jewish law is a treasure trove – particularly from the legal perspective – of intellectual richness and of fundamental values that remain relevant (also see, Aharon Barak, The Place of Jewish Law in the Law of the State, in Selected Essays, vol. 1, 98 (2000) (Hebrew) (hereinafter: The Place of Jewish Law in the Law of the State). Indeed, on its face, the old dispute between Justices Elon and Barak focused upon the character of the State of Israel, its identity and values, and now is not the time to elaborate, as “For everything there is a season, and a time for every matter under heaven” (Ecclesiastes 3:1). However, in my view, it would be appropriate to bridge the gap between the two views to a great extent, rather than say that there is an abyss between them. The Jewish Zionist basis of the rebirth of the nation in its land, and of human rights is shared by both views. President Barak, a Holocaust survivor, said on more than one occasion that for him there are two lessons: the need for a Jewish state so that Jews will have a home, and preserving human rights so that we not treat the other as in the Holocaust. Justice Elon was a liberal religious Zionist, whose devotion to human rights can be seen in his judgments and writings. To enrich the picture, I would note an additional opinion in regard to Jewish law, expressed by Justice Prof. Itzhak Englard (while still in academia, prior to his appointment to the Court), that the use of Jewish law presents the danger of its “secularization” (see, Y. Englard, The Incorporation of Jewish Law in the Israeli Legal System, Jewish Law and the State of Israel, 110 (Y. Bazak, ed., 5729) (Hebrew)). However, it would seem that during his tenure on this Court, Prof. Englard saw giving voice to Jewish law as something of a mission, as though “for such a purpose you were created” (Mishna Avot 2:8). Justice Turkel also addressed the subject (see, in this regard, Yuval Sinai, Jewish Law in the Decisions of the Israeli Courts in the Years 1994-2006, 7 Moznei Mishpat 374 (5770) (Hebrew) (hereinafter: Jewish Law in the Decisions of the Israeli Courts); and see Justice Turkel’s remarks at his retirement ceremony, as published in 23 Mehkarei Mishpat 5,8 (5764); and further see, CA 3616/92 Dekel Computer Engineering Services Ltd. v. Heshev Inter-Kibbutz Unit, Agricultural Co-Operative Society Ltd. [24], 353, where he quoted from Jewish law “in order to exalt the Torah”). Justice N. Hendel has also addressed this (see, e.g., HCJ 5185/13 Anonymous v. Great Rabbinical Court [25], paras. 4-7; LCA 296/11 Najar v. Aliyan [26], para. 9; and see, Jewish Law in the Decisions of the Israeli Courts, 401-402). In his article Jewish Law for Benefit  (pending publication) (Hebrew), my colleague Justice N. Sohlberg emphasized the operative aspect, i.e., how Jewish law can be used in concrete cases, and provided examples. It would not be superfluous to bring a different perspective expressed by Justice Haim Cohn (5792 Hamishpat 10):

The belief in the divine nature and eternity of the law prevented Jewish law from being accepted as the law of the State of Israel. There were those who were of the opinion that it would be unthinkable that we would live in accordance with anything but Jewish law in a Jewish state, and there were those who rightly argued that Jewish law is of sufficient flexibility and scope to be adapted to the needs of a modern democratic state. However, they were overcome by the objections of those who opposed any attempt at even the slightest change in the law of God and His commandments, even if only to adapt it to those needs. And since Jewish law, or any law, cannot be adopted in a democratic state without legislation, the legislature that would impart force to God’s law would also have the power to amend or repeal it – and such power would be nothing other than trespass upon the bounds of the Divine legislator. They even said that the secular legislature lacks authority to change the word of the Sages, sanctified since ancient time, and translate the ancient laws into modern legal language. Thus, Jewish law remains – with the exception of matters within the scope of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 – a broad, breathtaking field that is ploughed only by Torah scholars and legal historians.

            These words express the opinion of a scholar who was born and raised in religious society, and who later changed his view and approach, but who had a great love for Jewish law.

89.       I would like to briefly address the importance of appropriate recourse to Jewish law, and to employing it the interpretation of the law. Indeed, the State of Israel was founded upon “secular” law (with the exception of personal status law, which has, over the course of years, become restricted primarily to the laws of marriage and divorce that are under the jurisdiction of the various religious courts in accordance with their denomination, pursuant to Ottoman and Mandatory arrangements), and the courts do not decide the law on the basis of Jewish halakha, which particularly distressed Israel’s first Chief Rabbi, Rabbi Isaac Halevi Herzog, and see his book The Constitution for Israel according to the Torah (I. Wahrhaftig, ed., 1999) (Hebrew), and see Dr. Wahrhaftig’s comments at xxiiff; and see my article, The Birth of the State and Jewish Law in light of the approach of Rabbi Herzog, Massu’a L’yitzhak, vol. 2, 20 (Jerusalem, 5769) (Hebrew); and my book Judges of the Land, 75-76 (1980) (Hebrew). Rather than carry coal to Newcastle by extensive praise of the virtues of Jewish law, which it does not require from me and those like me, I will say a few words concerning it use, which I believe presents a possibility for synthesis.

90.       In my opinion, such a synthesis is certainly possible. It is primarily a conceptual message from a national, cultural perspective, whose use, of course, depends on the case. Jewish law should definitely not be conceived as “a matter for the religious”. The Jewish library, the Bible, the Mishna and the Talmuds, the Geonic literature, the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.] – among them Maimonides and the Shulhan Arukh [i.e., Rabbi Josef Karo, 1488-1575 – ed.] – and the Aharonim, particularly the responsa literature, and in our generation, the religious literature and research produced by persons – I will name primarily those who are no longer among us – like Justice Prof. Menachem. Elon, Prof. Asher Gulak, Justice Dr. Moshe Silberg, Dr. Avraham Haim (Alfred) Freimann, and Prof. Aaron Kirschenbaum, may their memories be for a blessing, as well Prof. Shalom Albeck and Prof. Nahum Rakover, and other important researchers in the field of Jewish law, and so as not to slight, I will not name them all, and I ask forgiveness of those I have not mentioned – all of these are a treasure trove of the law. We would do well to follow the path of Justice Sohlberg of Jewish law for benefit, and where possible “how good and how pleasant it is” [Psalms 133:1]. But elsewhere, recourse to its legal and moral insights in various is areas is proper as part of the general Jewish cultural fabric.

91.       My view in this regard, which is broadly more aligned with, although not identical to that of Justice Elon, argues for the middle road and for viewing Jewish law from two perspectives: the perspective of Jewish law as part of the national, cultural heritage upon which the State of Israel, as a Jewish and democratic state, may and should draw; and the perspective of its legal richness, overflowing with insights that, even if written long ago, often in archaic Hebrew, still remain vibrant. The Jewish character of the state should be expressed, inter alia, in the incorporation of Jewish law into our legal system (see: Malkhut Yisrael l’umat Dina D’malkhuta, 493). Indeed, from its very establishment, and even earlier, this spirit was expressed in declarations – sometimes only in declarations – by courts and scholars. Moreover, even prior to the establishment of the state, during the British Mandate, the Jewish law researcher, man of “the Hebrew Peace Court”,[4] and one of those who argued for Jewish law as early as the 1920s for nationalistic rather than specifically Orthodox religious reasons, was Israel Prize laureate Prof. Paltiel Daikan (Dickstein), who wrote:

There can be no Jewish state without Jewish law. It is not just the army and power that establish the validity and power of a state, but rather its organizational and legal structure are decisive in the question of its existence and fortitude. And just as it is unimaginable that we might build the state upon foreign cultures and languages, so a Jewish state is inconceivable without Jewish law. We will not forget the precious treasure of the millennia old Jewish legal tradition, nor will we ignore it (There cannot be a Jewish State without Jewish Law, 4 Hapraklit 329-330 (1947) (Hebrew)).

            Several years later, in the early days of the State, Justice S. Agranat explained:

I do this since the very moment that we admit – as we are obliged to admit – the continued existence of the Jews, in all generations and in all the lands of their dispersion, as a separate people, we must test the nature of Jewish law by the historic relationship of the Jewish people to this law. We shall then conclude – against our will – that the Jewish people really treated Jewish law, throughout their existence and their dispersion, as their special property, as part of the treasure of their culture. It follows that this law served in the past as the national law of the Jews, and even today possesses this national character in respect of Jews wherever they may be (CA 191/51 Skornik v. Skornik [27], 177).

            Not long ago, Justice Barak wrote:

The fundamental values of Jewish law shape our image as a nation and as a state …they are part of the fundamental values of our law … referring to the fundamental values of Jewish law is not referring to comparative law. It is a required reference. It is not a reference to all the values of Jewish law. It is to those values that constitute part of the law of the state (A. Barak, The Judge in a Democracy, 290 (2004) (Hebrew)).

The values of Jewish law are part of the values of Israeli law. The fundamental concepts of Jewish law – this cultural asset of the Jewish people – are the fundamental concepts of Israeli law. These values of Israeli law – among them the values of Jewish law – are part of the general purpose of every legislative act. This expresses the special status of Jewish law – our cultural asset whose values are our values (The Place of Jewish Law in the Law of the State, 102).

            Dr. S.A. Wozner ends his book The Legal Thinking in the Lithuanian Yeshivoth – The Heritage and Works of Rabbi Shimon Shkop (2014) (Hebrew) with an examination of the legal theory of Rabbi Shkop (Lithuania-Poland, 19^th-20^th cent.) and the question of the validity of norms that are not prima facie of Divine origin (like those of a modern state). His answer is that the obligation to obey God’s word derives from the law of human intelligence and the recognition of the autonomous understanding of the receiver (283). For me, this means that the roads of general law are also paved for the religious person, and this provides an entry to the present matter.

93.       It is sometimes argued that the use of Jewish law sources is incompatible with democracy. I believe that such arguments are fundamentally mistaken. As for the interaction between Jewish law and the democratic values of the state, I believe that “we should aspire to harmony, synthesis, and to mutual reconciliation between the Jewish and democratic elements” (Malkhut Yisrael l’umat Dina D’malkhuta, 490). There may, indeed, be different views as to the appropriate balance. However, the effort should focus upon developing law that creates harmony between the elements, that prioritizes the similar and rejects the different. This is what Justice Barak said in his eulogy for Justice Elon: “The relationship between the values of Israel as a Jewish state and its democratic values require, in his view (Justice Elon – E.R.), synthesis and harmony. We agreed on that, and we walked hand in hand” (quoted in 26 The Justice Shmuel Baruch Judges’ Bulletin (Feb. 2013) (Hebrew)). Harmony and synthesis must pave the way.

94.       It would, therefore, appear to me that recourse to the system of Jewish law – whether to ground arguments and judgment, as a source of comparative law, or as a source of inspiration and to broaden the theoretical legal groundwork (and compare: N. Rakover, Jewish Law in the Decisions of the Israeli Courts, 7 (Sifriyat Hamishpat Ha’ivri, vols. 1-2 (1989)), with due attention to the subject, the necessary meticulous examination, and the necessary care – plays a central role in creating the required synthesis between Jewish law and our legal system, which is based upon the laws of the Knesset (compare: the Hendels case [23], 795).

95.       Jewish law thus has national and cultural significance as the societal and moral heritage of the Jewish people from time immemorial. Indeed, it is grounded in the Jewish religion, but recourse to it does not, itself, express a religious or theological stance, and it should not be perceived as such, but rather through a national, legal lens. Jewish law is certainly not the exclusive legacy of religious Jewry, even if it is but natural, and somewhat sad, that most, although not all of those engaged in its study are observant Jews, which impresses it with a “religious stamp”. It would be good and proper if those who are not religiously observant would join their ranks (and see: A. Hacohen, Unjust Enrichment in Jewish Law, 10 Mishpat v’Asakim 183, 185 (5769) (Hebrew) (hereinafter: Unjust Enrichment in Jewish Law)). As I wrote in the past:

What is referred to as “the Jewish bookshelf” is an incomparable treasure of many cultural areas, but perhaps first and foremost of law. In my opinion, one need not identify with a particular conceptual approach in order to be curious about it, learn from it, utilize it, take pride in it, and put it to moral use, each according to his own definition of the moral foundation (Malkhut Yisrael l’umat Dina D’malkhuta, 502).

            At judges’ conferences in Jewish law, I was overjoyed at the participation of judges who were not members of the religious community, and even more so when judges who are not of the religious community made recourse Jewish law in their judgments.

96.       I therefore support the development of a national-cultural approach to Jewish law, its institutions and sources. “We must not close our minds to general cultural and legal legacies, and all the more so in regard to our own cultural legacy (the Hendels case [23], 798, per Elon, J.). Nevertheless, there is no denying that the rebirth of Jewish law, as expressed in our general legal system, remains meager. Recourse to the principles of Jewish law by the courts is not widespread, and their use – as a source of inspiration or as an interpretive tool – is not sufficiently common. Rhetoric that extols the virtues of Jewish law does not reflect reality (see: Unjust Enrichment in Jewish Law, 231). To date, the Foundations of Law did not meet with the success that its legislators had hoped.

97.       Years ago, in my brief article Jewish Law – A Law that calls out to Us (published in the anthology On the Incorporation of Jewish Law (N. Rakover, ed., 1998) (Hebrew), and in my book Paths of Government and Law, 168 (2003) (Hebrew)), I described three hurdles that an Israeli jurist, judge or lawyer must overcome in order to make proper, respectful use of Jewish law sources:

The first is will. This entails a certain ideational approach. The polarization that divides Israeli society in the area of religion and state, like no small number of other issues, can – wrongly, in my opinion – swallow up this subject. That is to say that a jurist who decides in favor of using Jewish law may, at times, see himself as “taking a side” in an internal debate. This approach is – in my opinion – mistaken, as an incomparably rich cultural heritage is not, and should not be the property of any one person, but rather should be the property of the general public, without regard for public controversies. While the source of Jewish law is religious, its message is not necessarily so, and it need not be the legacy of the religiously observant alone. Perhaps the current trend of seeking the treasures of “the Jewish bookshelf” will help ameliorate this problem.

The second hurdle is the need for a certain degree of knowledge in order to make proper, even if modest, use of the sources of Jewish law. The great, welcome contribution of contemporary jurists – among them the Jewish Law Department of the Ministry of Justice, headed by Prof. Nahum Rakover – helps to address this need. Today, the bookshelf of comprehensive research in various fields of Jewish law grows daily. The books are written in modern language, and thoroughly interrelate with the general Israeli law, which allows judges and lawyers who are ready to invest the necessary time, to make respectful, effective and convenient use of Jewish law as a source of inspiration, interpretation, and support for their work and the deepening of their understanding.

And here arises the third hurdle – time – the most precious resource of all. Israeli judges and lawyers are overburdened to the point of collapse. Judges are faced with a heavy docket that must be completed in a timely way. That requires great effort. The same is true for lawyers. Jewish law is like a neshama yeteira – an added dimension of spirituality – whose attainment usually requires an investment of time that is not readily available. However, since the incorporation of Jewish law into legal and judicial work is a rewarding cultural and professional experience, and a challenge that involves reconnecting with thousands of years of Jewish creativity, if one is ready and willing, time will be found (emphasis added – E.R.).

            As can readily be seen, I do not wish to divide the approach to these hurdles in a binary division between religious and non-religious, even if that may seem persuasive to some. On the contrary, if we approach the subject from the perspective of national culture, it need not be affected by the Israeli religious-secular tension, but resides entirely in the “harmony wing”.

98.       I have also had occasion to note:

The Israeli legal system takes a dichotomous approach to Jewish law. On the one hand, all agree, in theory, that Jewish law forms part of our legal heritage, and that it should have a place in Israeli law, even if there is dispute in regard to the scope of the obligation to refer to it … while on the other hand, putting that theoretical statement about the place of Jewish law into practice encountered obstacles in the Israeli legal community, some of ideational and most of a practical nature (Paths of Government and Law, 168; on the various approaches to Jewish law, see: Unjust Enrichment in Jewish Law, 187-195).

            Of late, there have been initiatives to increase support in this area by amending the Foundations of Law, a move that has led to some controversy (see the Israel Democracy Institute paper: Benjamin Porat, A Proposal to Amend the Foundations of Law Act, with an Analysis and Critique, and the accompanying response by M. Kremnitzer (2016) (Hebrew)). This is not the place for discussing that, but in my opinion, even the possibilities afforded by the current version of that law have not been fully exploited,[5] and see in this regard the instructive words of my colleague Justice Melcer (dissenting in LFA 7141/15 A. v. B. [28], para. 18), in support of interpreting sec. 1 of Foundations of Law “as pointing to the basic principles of Jewish heritage as defined by Prof. Elon, but not necessarily to the particular legal arrangements established by halakha”.

99.       Ultimately, in my opinion, the effort to give expression to the intellectual richness and the values of Jewish law in our legal system is worthwhile and even necessary, subject, of course, to the circumstances of each case. “A proper Israeli legal policy is one that lends an ear and listens to the sentiment of Jewish law” (CA 8954/11 Doe v. Doe [29], para. 135, per Sohlberg, J.); and see: A. Maoz, The Place of Jewish Law in the State of Israel, 40 Hapraklit 53, 66 (1991) (Hebrew)). For my part, I can say that from the day I began serving as a judge, I have tried to the best of my modest ability to give voice to the place of Jewish law, although I regret that I did not make greater use of Foundations of Law. I have often maintained an awareness of the intellectual treasures of Jewish law and the rich legal tradition that characterizes it, as well as the great value of its incorporation for Israeli law, without, of course, in any way compromising the autonomy of the courts under the state’s law. In this sense, in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

100.     Outlining the aurea mediocritas in all that relates to the extent and scope of recourse to Jewish law, its status and its normative force is a complex task. It requires “patience and tolerance, moderation, equanimity, good will and common sense” (E. Rubinstein & N. Sohlberg, Religion and State in Israel in the Jubilee Year, Minha LeYitzhak 339 (5759) (Hebrew), also published in Paths of Government and Law, 196 (Hebrew)). However, if we are willing to confidently address the national, cultural and moral significance of Jewish law, we will be rewarded by the development of the general law, and we will afford our ancient tradition the respect it deserves, or to paraphrase Rabbi Abraham Isaac Hacohen Kook, we will renew the old, and sanctify – in the national sense – the new. I would add that I do not see this as being in conflict with the equality of Israel’s minorities, but this is not the place to elaborate.

101.     We shall now return to the merits of the matter before us.

The statutory provisions

102.     I would first note that this judgment focuses upon the subject of living space, unrelated – except as anchored in law – to the severity of the offenses,  which may be severe and horrifying, for which the prisoners are serving their sentence. Similarly, we are not addressing the distinction between inmates imprisoned for criminal offenses and those imprisoned for criminal security offenses (with all the complexity regarding the latter), between which the Basic Law makes no distinction. The same holds for the distinction between criminal detainees and administrative detainees, which is not the concern of this case.

103.     The primary legal provisions with which we are concerned are sec. 11B(b) of the Prisons Ordinance, which was added by Amendment 42, and sec. 9(a) of the Arrests Law. Section 11B of the Ordinance states:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity.

            Section 9(a) establishes an identical provision in regard to detainees.

104.     The Petitioners argue that placing a person behind bars without granting him a minimal living space of 4 square meters (that is, 4 square meters exclusive of the lavatory and shower areas) – in accordance with the various standards established under international law – does not meet the standard of appropriate conditions and violates his dignity in a manner repugnant to the said statutory provisions and Basic Law: Human Dignity and Liberty.

105.     As earlier noted, the subsidiary legislator addressed this matter of appropriate living space. Regulation 2(h) of the Prisons Regulations – like reg. 3(e)3 of the Arrest Regulations), which concerns the living space of detainees – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

106.     But the difference between the standard established by the State itself and the actual situation is absolutely clear. According to the current data of the Prisons Service, presented in the updated notice submitted by the State on April 3, 2017, only 21%(!) of prisoners in the State of Israel are being held in prison cells that meet the standard of 4.5 square meters. In other words, despite the State’s efforts that were described at length in its responses, the absolute majority of prisoners and detainees in the State of Israel do not enjoy the minimum standard established by the subsidiary legislator itself for a prison or detention cell in Israel. From a legal standpoint, the State relies upon reg. 8 of the Prisons Regulations, which states:

Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

            From the phrase “to the extent possible”, the Respondents learn that the State has absolute discretion in deciding the living conditions of prisoners in the existing prison facilities, in accordance with budgetary considerations and priorities that it establishes.

107.     The focus of our discussion is sec. 11B of the Ordinance. The question is whether the expression “appropriate conditions” should also be taken to comprise the minimum living space to which a prisoner – and similarly, a detainee – is entitled in the State of Israel. We are, therefore, concerned with an issue of interpretation.

108.     As Prof. Barak wrote:

A statute must be interpreted according to its purpose (subjective and objective). The purpose of a statute is the interests, goals, values, aims, policies, and the function that the statute is designed to accomplish. It is the ratio legis (Barak, Purposive Interpretation in Law, p. 398 [English edition (Princeton, 2005), p. 340].

            To this I added in one case:

Purposive interpretation also derives from common sense and life experience. The legislature, or the drafter of a text in general, cannot foresee every possibility, and reality invites a variety of occasions that “your fathers did not know” (Deut. 32:17), and therefore, interpretative tools make it possible to seek the purpose of the text. This is also true in Jewish law, for example, by means of the thirteen hermeneutical rules by which the Torah is expounded (Midrash Sifra, Parashat Vayikra, 13 Principles, chap. 1), or similar systems of interpretation (the Zalum case [6], para. 32).

109.     The subjective purpose of the law is learned from its language and from the legislative intent. As for the language, the legislature established that “a prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity”. The legislative intent is learned from the Explanatory Notes to the Prisons Ordinance (Amendment no. 42) (Conditions of Imprisonment) Bill, 5772-2012 (650 Government Bills 298 (6 Shevat 5772, January 30, 2012)). These begin with the statement that “the purpose of the proposed law is to establish in the Prisons Ordinance [New Version], 5732-1971, obligatory provisions in regard to appropriate conditions of imprisonment for prisoners, and define their basic rights…” (emphasis added – E.R.). To my mind, common sense says that it is doubtful that “basic conditions” [sic] for a prisoner can be interpreted so as not to include minimal living space. By way of illustration, consider an extreme situation in which a prisoner resides in 2.5 square meters of living space, including his bed (a situation which, sadly, is not very far from the description of some Israeli prison facilities). Is it even conceivable that such a prisoner enjoys “appropriate conditions” for living? Thus, even if the food he is served meets the required standard, even if there are good educational services, even if visiting hours are reasonable – it would remain doubtful that without minimal living space, that prisoner could be deemed to have appropriate living conditions. On its face, it would appear that both the language of the law and the legislative intent show that the legislature sought to establish a minimum standard for a prisoner’s living space, while leaving the precise standard to the subsidiary legislator, as we shall address below.

110.     As opposed to this, there is some justice to the argument that when the legislature sought to establish concrete appropriate standards, it did so expressly. Thus, for example, sec. 11B(3) of the Ordinance refers to basic living conditions to which a prisoner is entitled: a bed and mattress (sec. 11B(3)(2), water and suitable food (sec. 11B(3))3)), clothing and products for maintaining personal hygiene (sec. 11B(3)(4), etc. Additionally, the deliberations of the Knesset Internal Affairs and Environment Committee show that when Petitioner 1 raised a request to establish an express, statutory minimum for prisoner living space, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions” (p. 28 of the Committee protocol of Feb. 21, 2012).  That and nothing more. Indeed, that can be understood to mean – as the Petitioners argue – that the Legal Advisor’s response implies that the expression “appropriate conditions” includes minimal living space. However, it can also be interpreted to mean – albeit with some difficulty, and see the matter of common sense that we noted above – that minimal living space is one of many parameters for a prisoner’s living conditions, such that – for the purpose of illustration – if in making the calculation, the prisoner is afforded fine food or an enhanced educational framework, it is possible to “compromise” on living space in the framework of ensuring “appropriate conditions”. We should again note that we are not concerned here with interpreting the law in accordance with the fundamental principles of the legal system and the Basic Laws, which we will address below, but rather with an attempt to understand the original legislative intent.

111.     To summarize thus far, I am of the opinion that the subjective purpose tends to the interpretation advanced by the Plaintiffs, i.e., that the State is required to provide a prisoner – and as noted, this equally applies to a detainee – “appropriate conditions”, which includes an obligation to provide minimum living space. However, determining the legislative intent in this matter is not entirely doubt free, and it cannot be denied that, on the face of it, there is some logic to the contrary argument – not on the substantive-value level, but rather in terms of the “historical development”. We will now proceed to examine the objective purpose of the law.

112.     As for the objective purpose, it would appear that here – even more persuasively – statutory interpretation leads to the conclusion that sec. 11B of the Ordinance seeks to establish at least a minimal standard for a prisoner’s living conditions, among them his living space in his cell. As opposed to its subjective purpose, the objective purpose of a legislative enactment tries to seek the intent of that reasonable legislator who is guided by the fundamental principles of the system, morality, fairness and justice. The words of Justice M. Cheshin are apt in this regard:

In approaching a law of the Knesset, we do not come empty handed. We come with bag filled with language and terminology, interpretations and meanings, social customs and mores, conventions and axioms, justice and integrity, principles and tenets … all these tenets, values, and principles appear to be extra-legal, but they are the foundation of the statute – of every statute – and no statute can be conceived without them. A statute without that platform is like a house without foundations, and just as the latter will not endure, so a law that has nothing but itself is like a house hanging in midair … As we read a statute, our robes upon us, we carry on our backs “an interpretive quiver”. Some will say an “interpretive kit”. Inside this quiver are the values, principles, and doctrines without which we would not be who we are: fundamental values of the system, morality, fairness, justice. These – and others like them – are fundamental values, and from them subsidiary values are derived (CFH 7325/95 Yediot Aharonot Ltd. v. Kraus [30], 72-74).

            It is additionally clear that the objective interpretation of a law must also be derived from the Basic Laws, and in the present case, Basic Law: Human Dignity and Liberty. Justice Barak addressed this in one case as follows:

The centrality of the value of human liberty is not expressed merely in rhetoric about its importance. It translates into legal language in the positivist conception that human dignity gives rise to rights and obligations, determines authority and powers, and affects the interpretation of every legislative act. In Israel, human dignity is not a metaphor. It is a normative reality that requires operative conclusions (CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum [31], 526).

113.     The “principle of constitutionality”, as President Barak referred to it on the basis of its use in comparative law (and see: CrimApp 537/95 Ganimat v. State of Israel [32], 412), is a basic principle of our legal system, from which we learn that a statute should be interpreted, as far as possible, in a manner that is consistent with the provisions of the Basic Law. The normative hierarchy is clear and well-known, and the basic interpretive presumptions derive from it: it is presumed that subsidiary legislation does not contradict a law, and that a law does not contradict constitutional provisions (Barak, Purposive Interpretation, 422).

114.     In addition to the fundamental principles of the system and the Basic Laws that express them, we saw fit to turn to Jewish law and comparative law, which we discussed above.  Jewish law teaches us “the principles and fundamental values grounding our culture and law” (Barak, Purposive Interpretation, 220). Comparative law teaches us about what has been done in similar situations abroad, in countries we would like to resemble (as opposed to those countries from which we seek to be distinguished). We should further bear in mind that in accordance with the presumption of constitutionality, we must also interpret Israeli law as compatible with the provisions of international law that Israel has adopted, to the extent possible (CA 522/70 Alkutub v. Shahin [33], 80; HCJ 2599/00 Yated – Non-Profit Organization for Parents of Children with Down Syndrome v. Ministry of Education [34], 846; T. Hostovsky Brandes, Human Rights Law in Israel, Mehkarei Mishpat 2017(Hebrew)).

115.     In the present matter, I am of the opinion that all of the sources point to the fact that the objective purpose – and as noted, the subjective as well – of sec. 11B is to establish appropriate, minimal standards applicable to every inmate, as such, and that the area of his cell is among them. As we have shown, minimal living space is a necessary condition for preserving a person’s dignity and his right to a minimally dignified existence. As stated, there is no dispute that the absolute majority of Israel’s inmates live under conditions that by the standards established by the State itself – and as noted, this is also supported by international law and comparative law – are not consistent with minimal living conditions for an inmate’s dignified existence. This is repugnant to the fundamental principles of our law, the constitutional right to dignity enshrined in Basic Law: Human Dignity and Liberty, Jewish heritage, the position of international law, and to what is acceptable according to comparative law, as we showed in detail above. Moreover, having found that the subjective purpose of the law is not unambiguous, but the objective purpose of the law clearly favors the position of the Petitioners, and since in interpreting a law concerning human rights, as in the present case, significant weight should be given, a priori, to the objective purpose (Barak, Purposive Interpretation, 255), we can only conclude that sec. 11B should be interpreted as establishing a principle of minimal living space that must be applied to every prisoner – and correspondingly, to every detainee – in Israel. I would add the following two points: First, we must examine the subject of a prisoner’s living space through the lens of basic human rights, and ask ourselves how we would feel living in a 3 square meter space over the course of years. Second, even were we to assume that the matter is open to different interpretations, when we are concerned with basic human rights, we must choose the one that realizes broader rights, rather than the opposite.

116.     We would further add that the concrete criteria for the execution of sec. 11B were established in the Prisons Regulations. In the present matter, two primary regulations are relevant, and in view of their importance, I will repeat them. Regulation 2(h) of the Prisons Regulations – which establishes an arrangement similar to that in reg. 3(e) of the Arrests Regulations – states:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell (emphasis added – E.R.).

117.     Regulation 8 of the Prisons Regulations, which establishes the application provision (similar to the parallel, final part of reg. 3(e)), instructs:

1. These regulations will apply to permanent construction. In this regulation, “permanent construction” – a structure that cannot be transported from place to place.
2. Sub-regulations (d), (f) through (h) will apply to places of imprisonment whose construction planning began after the initial day [June 2010 – E.R.], and to the extent possible, even to planning and renovation of existing places of imprisonment (emphasis added – E.R.).

118.     One might raise the question – as the State holds – that the above is stated looking to the future “to the extent possible”, so why should we not accept the view that what is possible comes in stages, and in the meantime has not been completely met? Before answering this, we would again note two basic principles of our jurisprudence in regard to the effect of these regulations upon the present matter: First, legislation should be interpreted in a compatible manner, and it is therefore presumed that subsidiary legislation is intended to realize the primary legislation, rather than conflict with it (Barak, Purposive Interpretation, p. 422). This is particularly so when all of the purposes of the present provisions are meant to give sec. 11B concrete meaning, by virtue of sec. 11B(f), which states that “the Minister may establish regulations for the execution of this section”. Second, from the other perspective (Barak, Interpretation in Law: Statutory Interpretation, vol. II, 802-803). Therefore, I am of the opinion that we should grant importance to the standard that the subsidiary legislator saw fit to establish as the minimum standard for a prison or detention cell – 4.5 square meters, including the lavatory and shower area – which, in practical terms would appear to be similar to 4 square meters exclusive of the lavatory and shower area. Inasmuch as this criterion is similar to the minimum that the Petitioners seek to establish on the basis of information from comparative law, as noted – albeit less than the appropriate criterion according to the Prisons Service as presented in an internal presentation of the Strategic Planning Branch of the Prisons Service in 2010, which stands at 6.5 square meters (Appendix P/1 of the Petition) – I believe this to be the relevant criterion to which we should aspire as the minimal criterion in the present matter. We would note that many years have passed since the Regulations were enacted, which should also be accorded weight.

119.     Indeed, inasmuch as the subsidiary legislator is presumed not to have intended to contradict the intent of the primary legislator, I am of the opinion that in employing the expression “to the extent possible” in reg. 8, the subsidiary legislator intended to say that the minimum standard would gradually be put into effect for all prisoners in all prisons within a reasonable period of time, as is customary when we are concerned with an administrative agency, and in accordance with the rule established under sec. 11 of the Interpretation Law, 5741-1981, that “any empowerment, and the imposition of any duty, to do something shall, where no time for doing is prescribed, mean that it shall or may be done with due dispatch …” (emphasis added – E.R.), and see in this regard, D. Barak-Erez, Administrative Law, vo. I, 407 (2020) (hereinafter: Barak-Erez) (Hebrew). In the present matter, some two decades have elapsed since the relevant regulation was established in the Arrest Regulations, and many years have also passed since the parallel regulation was enacted in the Prisons Regulations. That cannot be accepted as a reasonable time when we are concerned with a fundamental right of the first order, and where the infringement is severe and disproportionate, and surely when the State’s response reveals that the matter is not expected to change substantially in the near future. As Justice Levy once noted: “The obligation to act reasonably – which applies to all the acts of the Respondent – is a primary obligation. Reasonableness – we would again recall – means meeting a reasonable timetable” (HCJ 2065/05 Maher v. Minister of Interior [35]; and also see HCJ 6300/93 Center for Training of Rabbinical Court Pleaders v. Minister of Religious Affairs [36], 451). Moreover, we cannot accept an interpretation by which the subsidiary legislator intended to establish an arbitrary rule that would discriminate among prisoners in manner that would infringe their basic rights simply due to budgetary considerations, and under which there would be no minimum standard that would apply to every inmate as such, but rather would be subject to the (actually, absolute) discretion of the executive (in this regard, see: HCJ 6321/14 “Ken Lazaken” – For the Advancement of the Rights of the Elderly v. Minister of Finance [37], para. 38). In any case, the interpretation given by the subsidiary legislator is but one of the elements that the Court must consider in interpreting a statute, and as noted, an interpretation by which no minimum standard applicable to every inmate would be set would be incompatible with other sources by which the purpose is determined – fundamental principles of the system, our constitution as expressed in the Basic Laws, human dignity in Jewish law, and the comparative and international law cases cited. Having concluded that the purpose of the law leads to a clear conclusion in regard to the need for a minimal standard for the living space of the incarcerated prisoner, what is stated in subsidiary legislation cannot change that conclusion. A prisoner is a person, regardless of in what prison he is imprisoned, and the minimal standard must be universal.

120.     We would note that the State wishes to shine the spotlight on sec. 3 of Amendment 42 to the Ordinance – a section that was not included in the original bill – which establishes: “The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance … and nothing in regulations enacted under the said section shall detract from their validity”. The State therefore argues that this practice “essentially imported the Prisons (Imprisonment Conditions) Regulations, 5770-2010, into Amendment 42, and in so doing, the Knesset forged what is stated in the regulations in the furnace of legislation”. This is nicely worded by the State Attorney’s Office, and the State wishes to learn from this that the Prisons Regulations should be accorded added importance, essentially that of a statute, for the purpose of interpreting sec. 11B, inasmuch as “the Israeli Knesset set its sights on the arrangements detailed in the regulations, and established that those arrangements are appropriate for the implementation and execution of sec. 11B”. I cannot accept that charming argument. Indeed, Amendment 42 did not intend the entire repeal of the existing regulations, but that is not to say that those regulations enjoy a different normative status than other subsidiary legislation. Naturally, the legislature sought to create legislative continuity and not immediately repeal the prior arrangements under the regulations. I do not believe that we can understand that to represent the legislature’s specific adoption of each of the arrangements in the regulations as they were prior to the amendment. The status of the regulations as being subject to judicial review that is not necessarily constitutional review remains, and all the more so when we are concerned with a basic human-rights issue. Moreover, an examination of the meetings of the Knesset Internal Affairs and Environment Committee, which deliberated the bill, shows that the proposal to incorporate what is established under the regulations under discussion, including the prisoner’s living space, into the amended law was raised and rejected. Thus, as we noted above, when, in the course of the deliberations, the representative of Petitioner 1 requested that the living standard established in the regulations be established in primary legislation, the Legal Advisor of the Ministry of Public Security replied: “That is part of appropriate conditions [the wording of sec. 11B of the Ordinance – E.R.]. If you think that the law cannot be passed in this way, then we won’t pass it. We simply won’t pass it”. Thus, inasmuch as it was the State itself that insisted that the amendment not establish the regulations by statute, I have some doubts as to whether it can have it both ways, and now argue that the regulations have the status of a statute (see Protocol 510 of the meeting of the Internal Affairs and Environment Committee, p. 28 (Feb. 21, 2012)). With all due respect, it would therefore appear that nothing in the routine wording of sec. 3 of the amendment can be seen to show that it grants statutory status to the regulations. Had the legislature wished to do so, it is presumed that it would have expressly done so by statute. In the present matter, it is clear that this was not the legislative intent, and all that the legislature sought to do was to avoid creating the normative confusion that may have resulted had the regulations been immediately repealed by the amendment to the law, prior to the adoption of new regulations. The regulations that are the subject of this matter should, therefore, be treated as regulations for all intents and purposes, as they were created and as promulgated, and viewed as but one element in the interpretation of the legislation. Having found that an examination of all the relevant sources indicates the need to establish a minimal standard for the living conditions of every prisoner and detainee, what is stated in the regulations in this regard cannot serve to alter that conclusion.

121.     To summarize this section, we will simply say – is it conceivable that a prisoner or detainee who lies down to sleep and awakes morning after morning, week after week, month after month and year after year in a cell whose size is 2.2 square meters (Ofer Camp), 2.3 square meters (Megiddo Prison), 2.4 square meters (Nitzan, Ramon and Ketziot facilties), etc., lives “in dignity and health” as required by the law? Can we, Israel’s judges, ignore reality and continue to subject those convicted of criminal offenses – a fortiori suspects or criminal defendants – as serious as their crimes may be – and I repeat, many are criminal and security offenses that arouse untold revulsion and disgust – to prison conditions that are unfit for human habitation, and as my colleague Justice (emeritus) Zylbertal stated in one of the hearings in this case – “to a place that no one among us could endure for two days” (court transcript of July 13, 2015, p. 5)? And I would note here that according to the data of the Prisons Service, Israel stands well under the average European threshold for floor space allotted to a prisoner (which is 8.8 square meters), and according to the Red Cross, even less that what is found in Mauritius (4.08 square meters), Kenya (3.7 square meters), and Senegal (3.55 square meters) (International Committee of the Red Cross, Water, Sanitation, Hygiene and Habitat in Prisons, p. 31 (April, 2012)). I believe that there can be only one answer to these questions, and it is no.

122.     We held several hearings in the present case, and despite our pleas and the long time that has elapsed since the relevant statutory provisions and regulations were enacted, the overcrowding in prison and detentions cells sadly remains almost as it was prior to the enactment of the regulations, i.e., some 40% of all prisoners are held in cells that are less than 3 square meters on average. As the learned D. Barak-Erez observed, “there are limits to judicial flexibility that find expression when ongoing foot-dragging amounts to an evasion of the obligation to act in accordance with the requirements of law” (Barak-Erez, 409). We will say again that we do not, Heaven forbid, attribute ill-will or malice to those involved, but the priorities they have established require “reorienting”. Under the circumstances, it is hard to assume, as the State asks, that improvement of the situation is at hand, and in any case, it is hard to imagine that the steps that were described – some theoretical – will soon bear fruit, and that a concrete solution will be found. Given the undeniably severe situation, judicial intervention is required.

123.     I would therefore recommend that we grant the petition and make the order nisi absolute in the following manner:

A.        The minimum living space for every prisoner and detainee shall be set at 4 square meters exclusive of the lavatory and shower area, as requested in the petition (or 4.5 square meters inclusive of the lavatory and shower area).

B.        To that end, the State will do what is necessary so that, within 9 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower area; within 18 months of the issuing of this judgment, the living area of every prisoner and detainee will be at least 4.5 square meters, including the lavatory and shower area, or 4 square meters without them.

124.     Before concluding I would note that the ramifications of our decision are clear. As the State pointed out, immediately increasing the living space would impose a significant burden upon the state treasury. Indeed, one possibility – the “royal road” – is that the State will act to renovate and expand the prison and detention facilities in accordance with the above timetable. However, that is not the only option available to the executive and legislative branches for resolving part of the problem

125.     As we know, the Arrest Law, enacted under the influence of Basic Law: Human Dignity and Liberty, sought to change the conception that had prevailed prior to its enactment, and “delineate rules for enforcing the law while protecting human rights”, as well as to actually lessen the scope of arrests (see: Rinat Kitai-Sangero, Pre-Trial Detention of Liberty before Conviction 19-24 (2011) (Hebrew)). But intentions are one thing and reality another. Not only has the number of arrests not lessened, but has significantly increased (ibid., 28-29); Chaya Zandberg, Commentary on the Arrest Law 19-24 (2001) (Hebrew)), together with a rise in the number of remand prisoners, as part of the police department’s “turning-point plan” – so we were told – as a police objective (The Public Defender’s Report for the Year 2015, pp. 35-36 (August 2016) (Hebrew)). Without addressing police plans with which I am unfamiliar, I would note that the Arrest Law provides – e.g., in sec. 21(b)(1) – that an order for pre-trial remand will not be issued, inter alia, unless “the objective of the arrest cannot be attained by release on bail and by release conditions of lesser impact on the defendant's freedom”. It would seem that assimilating the legislature’s message that arrest is the last resort in the list of possibilities available to the enforcement authorities could aid in reducing the number of arrestees and increasing the living space remaining for those whose arrest is unavoidable.

126.     Clearly, the matter is more complicated in regard to imprisonment, as once a person is convicted of a crime, he no longer enjoys a presumption of innocence, and in many cases, there is no alternative to imprisonment, which may be long and even life imprisonment. But here, too, we must bear in mind that imprisonment is a means and not an end – it is a means for retribution, deterrence and for the rehabilitation of the offender. Thus, for example, according to the proposals of The Public Commission for examining the Policy for Punishment and Treatment of Offenders (hereinafter: The Dorner Commission) and the Government resolution to adopt its main points (Resolution 1840 of Aug. 11, 2016), the Parole Board can be authorized to transfer certain prisoners to halfway houses rather than keep them in prison; it can be decided that community service be extended so that it can be imposed as an alternative to 9 months imprisonment rather than 6, as it is at present, and thereby to reduce the number of prisoners (The Report of the Public Commission for examining the Policy for Punishment and Treatment of Offenders, 52-55 and 65-66 (Aug. 2015) (hereinafter: The Dorner Commission Report). As I recall, I raised this last proposal when I was serving as Attorney General, but various elements opposed it. Probation periods can also be extended in regard to certain offenses, fines for financial crimes can increased, and in appropriate cases, increased use of early release can be considered, together with the creation of appropriate supervision systems outside the prison walls. In this regard we would note that various studies in the United States – the holder of the “world record for imprisonment”, which holds 25% of the world’s prisoners, even though its general population is only 5% of the world population, which is seven times the prevailing rate in Western Europe – show that longer imprisonment does not necessarily lead to lower crime rates, and that the rate of imprisonment can be reduced together with reducing the crime rate, inter alia, because reducing the imprisonment rate reduces the rate of recidivism. Thus, for example, between 2011 and 2014, the number of prisoners in California went down 9%, pursuant to the judgment referred to above, which required that California release prisoners in order to provide every prisoner with appropriate living space, and which accordingly led to a change of the law and a change in the arrangements for probation and early release in the state. Concurrently, there was a 7% reduction in the crime rate. Similar trends were found in Mississippi, New Jersey, New York, South Carolina, and Texas (Iniami Chettiar & Laura-Brooke Eisen, The Reverse Mass Incarceration Act, p. 10 (Brennan Center for Justice, New York University, 2015)). Also see the comprehensive research by the National Academy of Sciences in the United States in regard to the increase in the rate of incarceration in the United States, which found, inter alia:

The incremental deterrent effect of increases in lengthy prison sentences is modest at best. Because recidivism rates decline markedly with age, lengthy prison sentences, unless they specifically target very high-rate or extremely dangerous offenders, are an inefficient approach to preventing crime by incapacitation (Jeremy Travis, Bruce Western & Steve Redburn, The Growth of Incarceration in the United States: Exploring Causes and Consequences, at pp. 334-337 (National Research Council of the National Academies, July 2014)).

            Of course, the above should not be taken as a comprehensive discussion of the effect of incarceration upon crime rates. Rather, the purpose is to draw attention to additional ways of thinking about the issue other than building more prisons and detention centers, and as noted, the government has already chosen to take that course by adopting the Dorner Commission Report.  The main conclusion of the Commission was that “we should act to reduce the use of incarceration in cases in which incarceration is not necessary to restrict offenders who present a high degree of danger to society, and the expansion of the use of cheaper, more efficient punishments that meet the principle of suitability, and thus to bring about efficient and more appropriate use of the resources earmarked for the subject” (ibid., p. iv). I can only agree with that as also reflecting the dictate of common sense.

127.     Of course, in accordance with their discretion, the legislature and the government will decide how to give effect to what is stated in this judgment in terms of both substance and timetable, and in keeping with the order absolute. As noted, they have various possibilities, and they must act in accordance with their discretion and in a manner compatible with the law, case law, and the basic right of every person to dignity.

128.     The proposed result is as stated in para. 120, above, in all its parts. In other words, the minimal living space of each prisoner and detainee shall be 4 square meters, exclusive of lavatory and shower, as requested in the petition (or 4.5 square meter including the lavatory and shower). In carrying that out, the State will do what is required so that within 9 months of this judgment, the living space of every prisoner and detainee will be at least 3 square meters, exclusive of the lavatory and shower. Within 18 months of this judgment, the living space of every prisoner and detainee will be 4.5 square meters, including the lavatory and shower, or 4 square meters without them, at the very least.

129.     Under the circumstances, we have decided not to issue an order for costs.

 

Justice U. Shoham:

1.         It is my privilege to be a partner to the judgment of my colleague Deputy President E. Rubinstein on the day of his retirement. I will immediately state that I concur with my colleague’s thorough, comprehensive opinion. This opinion reflects my colleague’s social and human sensitivity, and well expresses the worldview that has always characterized him. Having known him over the course of many years, as Attorney General and later as Justice Rubinstein, I have great respect for his empathy for the weaker elements of society, who often cannot or do not know how to stand up for their rights, and in those cases that have come before my colleague, a true, honest effort was made to remedy their problems. Together with a sensitive, social worldview in regard to the sufferings of others, whether a citizen, a resident or an alien, we should also recall the instructive material interwoven into my colleague’s opinion out of a love for Jewish law. Thus, in this important decision, as well, Justice Rubinstein dedicated a lengthy section (paras. 69-86) to the subject of “The treatment of prisoners in the Jewish heritage”, and also wrote of the status and place of Jewish law in our legal system. Every time that I had the privilege of serving on panels over which Justice Rubinstein presided, I learned to appreciate and respect his expertise in the subject matter, his pragmatic approach, and his indefatigable attempts to bring the parties to a compromise in which neither party would leave in woe. When compromise could not be achieved, Justice Rubinstein would issue a clear, lucid, thoroughly reasoned opinion, and no less important, he would do so relatively quickly, to prevent any further injustice to the parties.

2.         As for the present matter, it was saddening to read the harsh descriptions in paras. 41-44 of my colleague’s opinion, in regard to the conditions in some Israeli prisons. During my tenure as a District Court judge, I came to know the harsh conditions in certain prisons, and especially in the detention facilities. I have not forgotten that situation while sitting in this Court. Sadly, not enough has been done to improve the sad situation in this regard, and thus judicial intervention is required to remedy this wrong, even if somewhat gradually, as stated in para. 128 of my colleague’s opinion.

            In HCJ 221/80 Darwish v. Prisons Service [38], Deputy President H. Cohn addressed the conditions of security prisoners, and although he was in the minority, his moral stand would seem indisputable:

It is the right of a person in Israel who has been sentenced to prison (or lawfully arrested) to be incarcerated under conditions that permit civilized human life. It means nothing that this right is not expressly established in any statute – it is a fundamental human right, and in a democratic state under the rule of law, it is so obvious that it is as if it were written in a statue. We have already had the opportunity to stress that while arrest – as an unavoidable evil – deprives a person of physical liberty, it is not intended to deprive him of his human character and status (ibid., 538-539).

            The words of Justice A, Barak in HCJ 355/79 Katlan v. Prison Service [39], 298, are also apt:

Every person in Israel is entitled to the fundamental right of physical wellbeing and to the protection of their right to human dignity… Even detainees and inmates are entitled to these rights. Prison walls do not sever a detainee’s right to human dignity. While the nature of life in prison does infringe many of the rights of a free individual … prison life does not require the deprivation of a detainee’s right to physical wellbeing and protection from infringement of his human dignity. His freedom is taken away, not his rights as a human being.

3.         Establishing a minimum living space for every prisoner and detainee of 4 square meters, exclusive of the lavatory and shower, or 4.5 square meters, including the lavatory and shower, would appear to be a minimum requirement, and more would be better. Perusing the situation in this area in other Western countries, and even some less advanced countries, shows that the living space required for a prisoner is much greater than the area stated in the order absolute (see, e.g., a survey by the Information Services Unit of the Ministry of Public Security on the subject of “Living Space for a Prisoner”). It is inappropriate that the State of Israel, which is true to individual rights and the values of equality and human dignity of every person as such, should be bringing up the rear, and not providing a suitable response to this important issue that is the focus of the petition.

4.         In view of the above, I concur in the opinion of my colleague and with his conclusion.

 

Justice H. Melcer:

1.         I concur in the comprehensive, impressive opinion of my colleague Deputy President E. Rubinstein, which reflects the humane judicial approach and unique style that have identified and characterized him over the years (and see para. 16, below).

2.         In view of the importance of the subject of the petition and the legal issues it raises, as well as my colleague’s interesting conclusions in regard to the place and status of Jewish law, I would like to add a few observations of my own.

The “living space” of a prisoner and a detainee

3.         The prisoner criminally convicted and sentenced to incarceration behind bars is deprived of freedom in order to punish him and distance him from society. Incarceration has additional premises and purposes – deterrence (of the convict and of potential offenders), and providing an opportunity for rehabilitation.

            The arrest and detention of a detainee, who enjoys the presumption of innocence, is contingent upon the grounds set out in the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996 (hereinafter: the Arrest Law), and in there being no way to achieve the purposes of detention by alternative means, or by electronically supervised arrest, which infringe the suspect’s liberty to a lesser degree.

            These deprivations of liberty do not mean that over and above them and the realization of their purposes, there is room or license to inflict harm upon the life, body, or dignity of a prisoner of detainee. These are basic interests of a person as such, and they are ensured and protected as fundamental rights by virtue of secs. 2, 4, and 11 of Basic Law: Human Dignity and Liberty. Infringing these rights is permitted only if the conditions of the “Limitations Clause” under sec. 8 of the Basic Law are met (in appropriate circumstances, the deprivation of liberty – by imprisonment or detention – per se, does meet the conditions of the Limitations Clause, see: HCJ 2442/11 Shtanger v. Speaker of the Knesset [40]).

            Our point of departure for continuing the discussion is, therefore, that an inmate does not shed his basic rights at the prison gate, other than his right to freedom of movement and the restrictions that derive from and are directly related to his imprisonment (see: PPA 4463/94 Golan v. Prisons Service [2], 157; HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [4]).

4.         The right of a prisoner or detainee to his own “living space” in the prison or detention cell (respectively) is among the above ensured and protected rights. This right is established at a sub-constitutional level in the provisions of secs. 11B(b) and 11C of the Prisons Ordinance (New Version), 5732-1971 (hereinafter the Prisons Ordinance), as enacted in the framework of the Prisons Ordinance (Amendment no. 42) Law, 5772-2012 (hereinafter: Amendment 42) and supplementary arrangements promulgated in the Prisons (Imprisonment Conditions) Regulations, 5770-2010 (hereinafter: the Prisons Regulations). There are similar provisions in regard to detainees, see: sec. 9 of the Arrest Law and Criminal Procedure (Enforcement Powers – Arrests) (Conditions of Detention) Regulations, 5757-1997 (hereinafter: the Arrest Regulations; the Prisons Regulations and the Arrest Regulations will collectively be referred to as the Regulations). This will be set out in detail in the following section.

5.         The standard relevant to the present matter was adopted in the framework of sec. 11B of Amendment 42, and states as follows:

A prisoner will be held in appropriate conditions that will not harm his health or infringe his dignity. (An identical standard was established for detainees in sec. 9(a) of the Arrest Law).

            The rule pursuant to the standard was established in reg. 2(h) of the Prisons Regulations, which states as follows:

The average area of a cell shall not be less than four-and-a-half square meters per prisoner. The calculation of the said area shall be in accordance with the area between the walls of the cell, including the area of the lavatory, the sink and the shower, to the extent that there is a shower in the cell, and divided by the number of beds in the cell. (An identical rule was established for detainees in reg. 3(e)(3) of the Arrest Regulations).

            On the distinction between standards and rules, see: Menachem Mautner, Rules and Standards: Comments on the Jurisprudence of Israel’s New Civil Code, 17 Mishpatim 321 (1988) (Hebrew); Asaf Rentsler, Use Variance (in the chapter on general norms and the problem of the special case) 65-78 (2009) (Hebrew). I will quote from the latter:

“Legal norms are not cut from the same cloth.” One of the accepted distinctions is that between norms in the form of a rule and norms in the form of a standard. A rule is a norm that establishes a particular legal result upon the meeting of certain factual conditions, where the question of whether or not they are met is relatively easy to decide (for example: “One may not drive at a speed exceeding 50 kph”).  A standard is a norm that establishes a particular legal result in accordance with the application of a criterion that represents a particular value (for example: “One may not drive at an unreasonable speed bearing in mind the road conditions”) (ibid., p. 66, footnotes omitted).

            The distinction between a standard and a rule has several aspects and consequences, and I will address those relevant to the present matter below.

6.         Sadly, the rule concerning the average cell area for a prisoner or detainee is not observed in most of Israel’s prisons and detention centers, and the petition was filed in order to change the situation. The Respondents’ response to the order nisi that was granted did not succeed in raising the burden transferred to them to justify the continuation of this situation, which deviates from the rules cited in para. 5 above, and therefore, the remedies proposed by my colleague Deputy President E. Rubinstein are, indeed, required under the circumstances, for the reasons and supporting data he presented, and other reasons that I will immediately set out below.

Additional background considerations that justify making the order absolute

7.         Nelson Mandela, who knew what a jail is, once stated:

It is said that no one truly knows a nation until one has been inside its jails. (Quoted in The Economist, May 27, 2017, which devoted a report and an article to overcrowding in the world’s prisons, and various proposals for reform).

            In view of Mandela’s great sensitivity to the subjects of imprisonment and its conditions, the United Nations Standard Minimum Rules for the Treatment of Prisoners, cited in the opinion of my colleague Deputy President Rubinstein, were, upon their amendment in 2016, named the Nelson Mandela Rules (hereinafter also the Standard Minimum Rules, or SMR, or the Mandela Rules). See: UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): Resolution adopted by the General Assembly, A/res/70/175 (8 Jan. 2016). On this subject in general, see: Leslie Sebba & Rachela Erel, “Freestyle Imprisonment”: On the implementation of the Norms of International Human Rights in the Israeli Prison System, 10 Hukim 123 (hereinafter: Sebba & Erel) (Hebrew).

8.         At this point we should clearly state that only after the order absolute is realized will we come close (in terms of the subjects of this petition) to the Mandela Rules and international treaties to which Israel is a party, and which she undertook to implement, as explained in my colleague’s opinion (for a similar approach, see: Sebba & Erel). Other states also followed this path after decisions by their respective highest courts obligated them to do so (by orders and reasoning similar to those of this judgment), as I will show below:

            A)        Italy: Pursuant to a 2013 decision by the European Court of Human Rights, which held that, within one year, Italy must find solutions for the situation in which prisoners were being held in areas of less than 3 square meters, a plan was implemented that both reduced the number of prisoners, and brought the prisons into compliance with the judgment (see: Council of Europe, Execution of Judgment of the ECHR (Torreggiani v. Italy – 43517/09, 46882/09, 55400/09 et al.) (2014)).

            B)        Hungary: Following a 2015 decision of the European Court of Human Rights that gave Hungary six months to present a timetable for taking steps to prevent the violation of art. 3 of the European Convention (it was held that confining prisoners in an area less than 3 square meters constituted a violation of the prohibition upon inhuman or degrading treatment or punishment), the following steps were undertaken: within one year (by November 2015), the number of prison spaces were increased by some 900 spaces through construction and renovation, and a number of legislative amendments brought about a reduction in the prison population by expanding the possibilities for the early release of low-risk prisoners, and allowing them to serve the final six months of their sentence at home, using electronic monitoring devices (some 500 prisoners within a year), and increased use of “house arrest”. A plan was also developed for constructing 800 additional prison spaces by the end of 2017, and some 2000 additional spaces by 2019 (see: Committee of Ministers, Communication from Hungary concerning the Istvan Gabor Kovacs group of cases and the case of Varga and others against Hungary (Applications no, 15707/10, 14097/12) (14.11.2016)).

            C)        Croatia is currently undergoing a similar process pursuant to a judgment of the European Court of Human Rights of Oct. 20, 2016 in the matter of the Croatian prison system (European Court of Human Rights, Mursic v. Croatia (Application no, 7334/13) (20.10.2016)). In this case, the European Court of Human Rights, sitting as a Grand Chamber, reversed a decision from 2015 that held that if a prisoner could move freely outside of his cell during the day, then being held in a cell smaller than 3 square meters did not necessarily violate art. 3 of the European Convention in regard to being held in inhuman conditions (parallel to the prohibition established in the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment). In reversing that judgment, the court returned to the rule that holding a prisoner in less than 3 square meters of floor space constitutes a violation of the prohibition against holding a person in inhuman conditions, regardless of the time spent outside the cell or other conditions. We should emphasize that in that case the calculation of floor space for a prisoner was calculated after setting off the lavatory space, as opposed to the method of calculation in Israel, which includes the lavatory area as part of the “living space” allotted a prisoner in a cell.

            D)        California, United States:  Pursuant to a decision of the Supreme Court of the United States in Brown v. Plata 563 U.S. 493 (2011), California took various steps that reduced the number of prisoners, and significantly lessened overcrowding in cells. See: Jonathan Simon, The New Overcrowding, 48 Conn. L. Rev. 1191, 1197, 1203-1204 (2016).

9.         Thus, the order absolute that we are issuing here is consistent with similar decisions in comparative law. Moreover, it grounds and is consistent with the values of the State of Israel as a Jewish and democratic state. I will now clarify this last statement.

As a Jewish State – How?

            The Explanatory Notes to the bill that led to Amendment 42 (Government Bills 5772 No. 650, p. 298 of Jan. 30, 2012) state as follows:

The principle of preserving the dignity and welfare of a prisoner was expressed, inter alia, in Jewish law, and was also implemented in Israeli law by Justice M. Elon. Thus, for example, in HCJ 337/84 Hokma v. Minister of Interior [1], 826, it was stated: “We hold as an important principle that every right of a person, as a person, is retained even when he is under arrest or imprisoned, and the fact of imprisonment alone is insufficient to deprive him of any right, except when necessary and deriving from the very fact of the deprivation of his freedom of movement, or when there is an express legal provision in that regard. This rule has its roots in Jewish heritage since time immemorial: In accordance with what is stated in Deuteronomy 25:3: “lest your brother shall be dishonored before your eyes”, the Sages established an important principle in Jewish penal theory: “once he has been flogged he is considered your brother” (Mishna Makkot 3:15). It is an important, beautiful principle that not only after he has served his sentence, but even while serving it, he is your brother and friend, and his rights and dignity as a person are preserved and remain.

            Now, my colleague the Deputy President, Justice E. Rubinstein, has ably expanded upon these words, and I have nothing to add to this.

As a Jewish State – How?

            This subject was also clarified in the opinion of my colleague the Deputy President, Justice E. Rubinstein, and my colleague Justice U. Shoham      concurred and saw fit to add to this point. I agree with both of them, but I would like to contribute an additional perspective in the following paragraphs.

10.       The standard is established here pursuant to Amendment 42, as an ameliorative amendment[6] to the British Mandate Prisons Ordinance, as well as for the Arrests Law, both of which are Knesset legislation.

            The rule is established at the level of regulations – as explained in para. 5 above – but it would appear that an exception to the rule was established along with it in the said Regulations, according to which the rule will only apply to cells whose planned construction will commence only after the entry into force of the Regulations, and to the extent possible, also to the planning and renovation of existing prisons or detention facilities (see: reg. 8(b) of the Prisons Regulations and reg. 3(e) of the Arrest Regulations). In other words, the rule applies prospectively, and is intended to be implemented only in the future (sine die), while for the present, as an exception, the current severe situation will continue.

            Thus, the Knesset established a standard; the subsidiary legislator established a rule on that basis, and immediately tried to exclude it such that it would be exempt from the standard’s application to the existing situation. What is the Court’s role in such a case? It must interpret the norms (inter alia, against the background of Basic Law: Human Dignity and Liberty), and prioritize them such that the command of the constituent authority rise above the provisions of the legislature, and the legislative enactments of the Knesset prevail over the subsidiary legislation.

            It would appear that the representatives of the executive branch sensed this necessary result that is required by the commands of the constituent authority and the legislative intent, and therefore tried to find a remedy by including a “validity of laws” provision in Amendment 14 [sic] (which is not mentioned in the bill), which was passed and which states as follows:

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            This wording is vague, concealing more than it reveals, and appears, prima facie, to ignore Israel’s international obligations (see: Sebba & Erel). The answer to whether the attempt succeeded against the background of Basic Law: Human Dignity and Liberty and the dictate of the legislature will be presented in the following chapter.

The validity of the validity-of-laws provision and the interpretation of the application provisions

11.       The said validity of laws provision – found in both Amendment 42 and the Arrest Law – are ameliorative laws that were enacted after Basic Law: Human Dignity and Liberty, and therefore do not fall within the scope of sec. 10 of the said Basic Law, which treats of the validity of laws in force prior to the commencement of the Basic Law. This is also true in regard to the regulations promulgated pursuant to the Prisons Ordinance and the Arrest Law. (Compare to the majority opinion of the expanded panel in HCJ 6055/95 Tzemach v. Minister of Defense [41]; and see: Sebba & Erel, p. 47).

            Therefore, an exception that deviates from the standard established in the above laws should not be recognized here, and moreover, the standard gives expression to the provisions of Basic Law: Human Dignity and Liberty. The same is correspondingly true for the basic rule in regard to the living space of a prisoner or detainee established in the Regulations promulgated pursuant to the above laws.

12.       The Respondents are aware of these problems, and therefore argue that, by the validity of laws provision in Amendment 42, the legislature decided upon the priorities and the other living conditions appropriate for a prisoner – at present and in the future – and therefore, different criteria and manners of execution cannot be imposed (a similar argument is advanced in regard to detainees on the basis of the Arrest Law and the Arrest Regulations). In this regard, they purport to rely upon what was decided in HCJ 5636/13 Residents of Timorim – Agricultural Cooperative Society [42], paras. 9-10 of the opinion of my colleague Justice U. Vogelman, but the matter before us is not comparable to the said case, inasmuch as here we are concerned with the interpretation of legislative acts and establishing their hierarchy, whereas there the matter concerned the considerations of a planning institution.

            Moreover, the interpretation that the Respondents sought to give to the validity of laws provision in Amendment 42 does not withstand scrutiny, as we shall immediately explain.

13.       Section 3 of Amendment 42 establishes only this (I repeat the wording here so that the argument will be clear):

The Prisons (Imprisonment Conditions) Regulations, 5770-2010, as they were prior to the entry into force of this law, shall be deemed as if they were enacted in accordance with sec. 11B of the Ordinance, as it appears in sec. 1 of this law, and nothing in regulations enacted under the said section shall detract from their validity.

            In this regard, I would note:

            A)        New regulations have yet to be promulgated, and therefore, prima facie, the end of sec. 3 does not enter the discussion.

B)        The validity of laws provision does not say that the Prisons Regulations enacted prior to the adoption of the said Amendment are consistent with the provisions of Amendment 42 (that is, with the standard it embodies), or that they have the same force as the said Amendment (and carefully compare to the wording of secs. 36(f) and (h) of Basic Law: The Government in regard to Emergency Regulations).

Thus, the Bialer rule (see: HCJ 243/52 Bialer v. Minister of Finance [43] (hereinabove and hereinafter: the Bialer rule) does not apply to the present matter, not to mention that the rule was the subject of severe scholarly criticism (see: Hans Klinghoffer, On Emergency Regulations in Israel, Pinchas Rosen Jubilee Volume, (H. Cohn, ed., 1962) 86 (Hebrew); Benjamin Akzin, The Bialer Decision and the Israeli Legal System, 10 Hapraklit 113 (1954) (Hebrew)). On the entire issue, also see: Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 2, Government Authorities and Citizenship, 947 (2005) (Hebrew); and HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister [44], paras. 123 and 128 of the opinion of my colleague Deputy President E. Rubinstein, and see my dissenting opinion in HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister [45]).

C)        The term “as if” in sec. 3 of Amendment 42 is only intended to create a “legal truth”, which is different from “the objective truth” (see: HCJ 430/08 I.D.F. Disabled Veterans Organization v. Minister of Defense [46]), and cannot serve to “upgrade” the status of the Prisons Regulations, or change the basic rule that they establish. Therefore, just as it was possible to challenge the Prisons Regulations for the accepted causes for challenging subsidiary legislation, one can continue to challenge them as if they were promulgated under sec. 11B of the new Prisons Ordinance, by virtue of sec. 11B(f) therein, which states:

The Minister may establish provisions for the implementation of this law in regulations, as well as provisions in regard to additional conditions to which an inmate will be entitled in the prisons.

We can thus state that the construction that the Respondents seek to pin on the above sec. 3 is flawed because it does not accord with most of the conditions of the validity of laws clause in sec. 8 of Basic Law: Human Dignity and Liberty (other than the condition that the violation be “by law or as prescribed by law”, see: Oren Gazal-Ayal, Restrictions of Basic Rights “By Law” or “As Prescribed by Law”, 4 Mishpat uMimshal 381 (1998) (Hebrew)), and it also deviates from the basic rule regarding the “living space” of a prisoner established in the Prisons Regulations and is, therefore, ultra vires the provisions of the authorizing law.

Alternatively, if anyone might imagine otherwise, the correct interpretation of the provisions of the Regulations does not permit them to be read in a such a manner that the exception to the basic rule established in the Regulations might apply without setting a time limit. We will address this in the following section.

The exception to the basic rule established in the regulations has “run its course”

14.       In my opinion, there are two reasons supporting the conclusion that the exception to the basic rule established in the Regulations has “run its course”:

            A)        A deviation from a standard should not be preserved for an extended period, inasmuch as the standard derives from Basic Law: Human Dignity and Liberty, the provision of sec. 1 of Amendment 42, and what was established under the Arrests Law, not to mention that the matter is contrary to Israel’s international obligations (see: Sebba & Erel).

            This result derives from the legislative hierarchy and the rule concerning the need to update regulations that have “run their course” (whether by an act of the authority or by a decision of the Court). (See and compare: HCJ 2902/11 Association for Children at Risk v. Ministry of Health [47]).

            B)        The Respondents did not show that they had tried “to the extent possible” (as the expression is employed in the Regulations), to apply the basic rule established in the Regulations to the present situation, even after all the extensions granted them after the order nisi was issued. Moreover, the budgetary reasons that were raised in this regard did not justify the priorities chosen, in view of the alternatives that would have violated the relevant basic human rights to a lesser extent (in this regard, the aforementioned article in the Economist is instructive in showing that improving prison conditions and reducing overcrowding, ultimately lead to budgetary savings and achieve better results in terms of rehabilitation and reducing recidivism). (And see: HCJ 4541/94 Alice Miller v. Minister of Defence [48], and see para. 47 of the opinion of my colleague the Deputy President, Justice Rubinstein and the references there).

            This contemporary modern approach, expressed in the recent studies quoted in the Economist and in my colleague’s opinion, return us to Jewish law, inasmuch as the Sages and later scholars were opposed, a priori, to oppressive imprisonment for any but the most grave offences (in modern terms, we would say that they espoused a proper proportionality).

The status of Jewish law

15.       My colleague the Deputy President, Justice E. Rubinstein, wrote an enlightening dissertation on the place of Jewish law in our prevailing law. I agree with the main points of his approach, and with his conclusion that:

…in opening its gates before it, the general law showed respect for Jewish law no less than Jewish law showed respect for the state’s law by entering those gates.

            I will, nevertheless, permit myself some remarks.

1. I believe that we should make greater use of the referring provision in Foundations of Law, 5780-1980, in appropriate cases. In my view, the principles of freedom, justice, equity and peace of Israel's heritage refer to the basic principles of Jewish law, but not necessarily to all the specific legal arrangements it establishes (which should be updated and adapted to our present reality).  I recently expressed this view in detail in my dissent in LFA 7141/15 A. v. B. [28].
2. In my opinion, we should turn to Jewish law at least to the extent that we make recourse to comparative law, and one who does so will discover that the legal thinking of the Sages, and of the Rishonim [Jewish legal decisors active before the publication of the publication of the Shulhan Arukh (1563 CE) – ed.]  and the Aharonim [Jewish legal decisors living after the publication of the Shulhan Arukh (1563 CE) – ed.] was exceptionally creative and profound, such that one can (directly or by analogy) find appropriate solutions for current issues in this prodigious source.

Having arrived at Jewish law, I should explain that the reason I saw fit to express my opinion here, rather than suffice in adopting the views of my colleague the Deputy President, Justice E. Rubinstein, merely by saying “I concur”, is because I also acknowledge the statement of the Sages, who instructed us:

 

One should only take leave of another with a matter of halakhah, so that he will be remembered by him thereby (TB Berakhot 21a).

            Having done so, I will now proceed to some words of farewell.

Some words of farewell upon the retirement of the Deputy President, Justice E. Rubinstein

16.       Before signing the judgment that my colleague the Deputy President, Justice E. Rubinstein, chose to deliver on the day of his retirement (and it is my privilege to join him in this creation), I would like to note that I first met Justice Rubinstein 44 years ago, when I was a senior attorney in the office of the Legal Adviser to the Ministry of Defense. Since then, our paths have crossed from time to time in his various official capacities: in the Ministry of Defense, during his service as Cabinet Secretary, as Attorney General and as a judge, and the closer I came him, the greater I came to respect and admire him. He is “a plastered cistern that loses not a drop” [Mishna Avot 2:8], and his talents and works are beyond description. He possesses that rare combination of a wise mind and a wise heart, and the manner in which he brought together the values of the State of Israel as a Jewish and democratic state with humane sensitivity has already earned him an honored place in Israeli case law for generations to come. We can only wish Justice Rubinstein what his name (Elyakim) suggests – that God will grant all that he asks, and that like his family name (Rubinstein – ruby), this bright gem (once set in the Priestly “breastplate of judgment”) will continue to shine upon his family and upon all of Israel.

 

Decided in accordance with the opinion of Deputy President E. Rubinstein.

Given this 19^th day of Nisan 5777 (June 13, 2017).

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

1. Tel-Aviv-Jaffa Rabbinical Court
2. Supreme Rabbinical Court of Appeals
3. Ran Lev

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

Before Deputy President A. Barak and Justices S. Levin and D. Levin

 

 

 

 

[1]   CA 26/51 Kotik v. Wolfson, IsrSC 8, 1341

[2]   CA 99/63 Peleg et al. v. Attorney General, IsrSC 17, 1122

[3]   HCJ 136/54 Pollack v. Herzog et al., IsrSC 9, 155

[4]  HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court  et al., IsrSC 15, 106

[5]   HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals et al., IsrSC 40(3) 699

[6]   HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court et al., IsrSC 48(3) 203

[7]   ST 1/60 Winter v. Beeri, IsrSC 15, 1457

[8]   CrimA 230/56, 4/57 Shorer v. Attorney General, IsrSC 11, 750

[9]   FH 22/73 Ben Shahar v. Mahlev, IsrSC 28(2) 89

[10] HCJ 547/84 Of Ha’emek, Registered Agricultural Cooperative Association v. Ramat Yishai Local Council et al., IsrSC 40(1) 113

[11] MApp 613/82 State of Israel v. Awad, IsrSC 36(3) 612

[12] HCJ 991/91 David Pasternak Ltd. et al. v. Minister of Construction and Housing et al., IsrSC 48(5) 50

[13] HCJ 355, 370, 373, 391/79 Katalan et al. v. Prisons Service et al. IsrSC 34(3) 294 [http://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[14] HCJ 14/51 Attorney General v. Editor of “Davar” et al., IsrSC 8, 1017

[15] BAA 663, 691, 5145/90 A. v. Israel Bar Association District Committee of Tel Aviv – Jaffa, IsrSC 47(3) 397

[16] MApp 678/82 Tayar v. State of Israel, IsrSC 36(3) 386

[17] CA 703/70 Somech v. Ozer et al., IsrSC 24(2) 799

[18] CA 230/69 Kaneti v. United Shvili Film et al., IsrSC 23(1) 505

[19] LA 451/85 Adin Marketing Company Ltd. v. Flatto Sharon, IsrSC 39(3) 303

[20] CA 548/78 A. et al. v. B., IsrSC 38(1) 736

[21] LCA 26/89 Mashraki et al. v. "Rotem" Insurance Company Ltd., IsrSC 42(4) 348

[22] LCA 18/89 Pichman v. Bank Leumi Leyisrael Ltd., IsrSC 42(4) 513

[23] HCJ 243/62 Israel Film Studios Ltd. v. Levi Geri et al., IsrSC 16, 2407; IsrSJ 4, 208 [English]

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

[25] HCJ 323/81 (Mot 533/81) Vilozny v. Supreme Rabbinical Court in Jerusalem, IsrSC 36(2) 733

[26] HCJ 158, 2130/66 Segev et al. v. Rabbinical Court et al., IsrSC 21(2) 505

[27] HCJ 10/59 Levi v. Tel Aviv Rabbinical Court et al., IsrSC 13 1182

[28] HCJ 155/65 Gurovitz v. Tel Aviv Rabbinical Court et al., IsrSC 19(4) 16

[29] HCJ 95/63 A. v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 17, 2222

[30] HCJ 161/64 Mussman v. Haifa Rabbinical Court et al., IsrSC 18(3) 502

[31] HCJ 816/80 Gotthelf v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 38(3) 561

[32] HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court, IsrSC 9, 1193

[33] HCJ 7/83 Biaris v. Haifa Rabbinical Court et al., IsrSC 38(1) 673

[34] HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court, IsrSC 20(2) 342

[35] HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court, IsrSC 46(2) 1

[36] HCJ 1689/90 Aasi v. Central District Sharia Court, IsrSC 48(5) 148)

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

[38] HCJ 80/93 Gurfinkel v. Minister of the Interior, IsrSC 17, 2048

[39] CA 303/57 Reich v. Hammer,  IsrSC 11, 1362

[40] HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7, 534

[41] HCJ 190/57 Assaig v. Minister of Defence, IsrSC 12(1) 52

[42] HCJ 505, 496, 488/83 Baransi v. Director of the Visa and Nationality Dept; Dasuki v. Minister of the Interior et al., IsrSC 37(3) 722

[43] HCJ 448/85, HCJApp 32, 5/86 320, 284/85 Dahar et al. v. Minister of the Interior,  IsrSC 40(2) 701

[44] MApp 1064/86 Archbishop Ajamian v. State of Israel, IsrSC 41(1) 83

[45] FH 9/77 Israel Electric Corporation. v. “Ha’aretz” Newspaper Ltd., IsrSC 32(3) 33; IsrSJ 9, 295

[46] LA 558/85 Ilin et al. v. Rotenburg et al., IsrSC 40(1) 553

[47] HCJ 869, 852/86 Aloni et al. v. Minister of Justice et al., HJCApp 521, 523, 543, 518, 515-512, 507, 502, 487, 486, 483/86 IsrSC 41(2) 1

[48] HCJ 578/82  Naim v. Jerusalem District Rabbinical Court et al., IsrSC 37(2) 701

[49] HCJ 403/71 Alkourdi v. National Labor Court et al., IsrSC 26(2) 66

[50] ST 1/50 Sidis v. Chief Execution Officer, Jerusalem et al., IsrSC 8, 1020

[51] CA 174/83 N. Soher v. P. Soher, IsrSC 38(2) 77

[52] HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court et al., IsrSC 26(2) 765

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

[54] ] LC 52/8-4; 7-41 unreported

 

United States cases cited:

 

[55] Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

[56] Matter of Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2^nd 125 (1991)

 

 

 

 

Petition for an order nisi. The case was heard as if an order nisi were grated. The petition was granted, and the order nisi was made absolute.

 

M. Bar Shilton, Y. Bar Shilton – on behalf of the Petitioners

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

Deputy President A. Barak: The question before the Court in this petition is: What considerations may a Rabbinical Court take into account when considering whether or not to grant a writ ne exeat republica?

 

The Facts

 

1. Petitioner 1 (hereinafter: the Petitioner) and Respondent 3 (hereinafter: the Respondent) are married. They have three minor children (Petitioners 2, 3 and 4). Disputes arose between the Petitioner and the Respondent. The Petitioner filed a claim for child support and custody in the District Court (on May 10, 1992). She also sued for divorce in the Rabbinical Court. In response, the Respondent filed suit for marital reconciliation with the Rabbinical Court (Respondent 2). In the framework of the suit for marital reconciliation, the Respondent requested that the Tel Aviv-Jaffa Rabbinical Court issue a writ ne exeat republica to prevent the Petitioner from leaving Israel. The request stated that "for some time, the wife has been having an affair with a foreign man who is a resident of the United States, and it is her present intention to leave Israel, to move to the United States with the children, and  to live there with this man". The Rabbinical Court, in the presence of the Respondent alone, issued an order barring the Petitioner and her children from leaving the country. The Petitioner requested that the Rabbinical Court rescind the order. The request noted that the Petitioner and her eldest daughter (Petitioner 2) wished to go abroad for two weeks. The vacation was planned long in advance and was "meant as a bat-mitzvah gift for the daughter". The two sons (Petitioners 3 and 4) would remain in Israel. The Petitioner has an active business in Israel, and there is no concern that she might not return to Israel. The Respondent objected to this request. In the meantime, the original date for the Petitioner's departure from Israel passed. She amended her request to a new date (August 14, 1992), adding that she was also combining a business trip in her trip and that preventing her from leaving would inflict severe monetary damage.

 

The Proceeding before the Rabbinical Court

 

2. The Tel Aviv-Jaffa Rabbinical Court held a hearing in the presence of the parties (on August 2, 1992). The relationship between the parties was described in the course of the hearing. The Respondent stated that a foreign man disrupted the couple's marriage. According to the Respondent, the purpose of the Petitioner's travel abroad was to meet with the foreign man and to have intimate relations with him. The Petitioner emphasized the rift in their personal relationship. She stated that the purpose of the trip was an excursion (as a gift to the daughter) and business enquiries. At the end of the hearing (on July 30, 1992), the Rabbinical Court reached the following decision:

 

Having heard the arguments and responses of the parties and their attorneys, in light of the material presented to us, and in view of the claims of the husband who claims and who fears that the wife's travel abroad at this stage would cause a final and irreparable rift between them, this court decides – at this stage – not to grant the wife's request to rescind the writ ne exeat republica against her. The court will hold an additional hearing on the matter of the wife's request on the 24^th of Elul, 5752 (September 22, 1992) at 9:00 a.m. The parties are required to negotiate an appropriate solution which will enable them to travel abroad together, or will enable the wife to travel separately under such terms as will abate the husband's concerns.

 

An application for leave to appeal this decision was filed with the Supreme Rabbinical Court. The court was asked to schedule an urgent date for a hearing in order to allow the Petitioner to leave Israel on the date she requested, so that she and her daughter would be able to return to Israel in time for the beginning of the school year. The Supreme Rabbinical Court denied the application for leave to appeal (on August 6, 1992), ruling:

 

Inasmuch as the Regional Court decided to schedule an additional session to continue the hearing, it is inappropriate to hear the appeal at this stage .

 

The petition before us was filed against these Rabbinical Court decisions.

 

 

The Parties' Arguments

 

3. The Petitioners claim that the reason that was given by the Regional Rabbinical Court to bar their exit from the country – how the departure would affect the couple's relationship – is invalid. This reason is contrary to the Rabbinical Court's own approach and to the case law of the civil courts. It is repugnant to the provisions of Basic Law: Human Dignity and Liberty. This Basic Law establishes the right of every person to leave Israel. Against this background, granting a writ ne exeat republica must be limited to securing a party's appearance in court and guaranteeing the monetary rights of the other party. It was further argued that the Rabbinical Court lacked authority to prevent the daughter from leaving the country.

 

4. In his response, the Respondent argues that he seeks to achieve marital reconciliation. The court acted within this framework and did not act ultra vires. There is a concern that the Petitioner may not return to Israel for the Rabbinical Court's hearings and will thereby frustrate the claim for marital reconciliation. The Petitioner must wait until the hearing in the Regional Rabbinical Court is exhausted.

 

5. Upon the commencement of the hearing (on August 13, 1992), (at the consent of the parties) we treated the hearing as though an order nisi had been granted. After hearing the parties' arguments, we made the order absolute and cancelled the writ ne exeat republica against the Petitioners. We instructed that the cancellation of the order be conditioned upon the Petitioners' furnishing a personal bond securing their return by September 15, 1992, and a third-party guarantee in the amount of NIS 100,000.

 

We ruled that the Respondent will bear the Petitioners' costs in the amount of NIS 10,000. We instructed that our reasons will be given separately. These are our reasons.

 

The Normative Framework

 

6. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: the Rabbinical Courts Jurisdiction Law) sets forth the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law. The Rabbinical Courts also rule in accordance with the general substantive (statutory and case-law) law that applies to matters under their jurisdiction. The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. In the past, certain provisions in this regard were established in the Jewish Community Regulations.[1] These regulations are no longer valid, and for this reason alone they cannot serve as a source of the authority to promulgate procedural rules. What, then, is the procedural regime that applies in the rabbinical courts?

 

7. One might argue that the authority to prescribe procedural rules derives from the substantive law. Since the substantive law followed by the rabbinical courts is primarily Jewish law, therefore Jewish law should also be the source of the rabbinical courts authority to establish rules of procedure (see: E. Shochetman, Procedures (Sifriyat Hamishpat Ha’ivri, 5748) 12 (Hebrew)). This argument  cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules. Thus, for example, the civil court rules in accordance with Jewish law in many matters of personal status, however it does not apply the procedural (and evidentiary) rules of Jewish law when ruling on such matters (see, CA 26/51 Kotik v. Wolfson [1] at p. 1344; CA 99/63 Peleg. v. Attorney General [2] at p. 1128). Indeed, to paraphrase Justice Silberg’s statement that "the law here is, so to speak, a 'function' of the judge" (see: M. Silberg, Personal Status in Israel (Mif'al Hashichpul, 5718) 6 (Hebrew)), we might say in this case that the procedure is a “function” of the judge and not of the (substantive) law by which the judge rules. Therefore, the power of a rabbinical court judge to establish the court’s rules of procedure does not derive from the substantive law by which he rules. How, then, are the rabbinical courts’ rules of procedure established?

 

8. In my opinion, in the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures (see HCJ 136/54 Pollack v. Herzog  [3] at p. 165; also see P. Goldstein, The “Inherent Jurisdiction” of the Court, 10 Iyunei Mishpat 37, 49 (5744-45) (Hebrew); I. H. Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems 32 [1970]). Justice Berenson elaborated on this in reference to the rabbinical courts, stating:

 

A court for which the State did not prescribe procedures and did not delineate the manner by which they shall be established is authorized, by virtue of its inherent jurisdiction, to establish its own procedures that it will follow… When there is a hierarchic system of tribunals for which the legislature has not provided procedures, the question of who will decide them and how is generally an internal manner  (HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court [4] at p. 114).

 

Similarly, my colleague Justice D. Levin stated:

The Druze courts, which were duly established and have been conducting their hearings for years, do not operate in a vacuum. Since no procedural regulations were promulgated by the authorized minister, the judges of the Druze courts were permitted to establish their own procedures that they followed by virtue of their inherent jurisdiction (HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals [5] at p. 704).

 

Thus, the rabbinical courts have inherent jurisdiction to prescribe the procedures that they will follow. In exercising that jurisdiction, the Israeli Rabbinical Courts Procedure Regulations, 5753 (Y.P. 5753 2298) were promulgated. A review of these regulations reveals that their content reflects Jewish law (see Shochetman, ibid., at p. 11). However, in terms of the power to promulgate them, they in fact realize the rabbinical courts' inherent jurisdiction to prescribe their own procedures. Indeed, alongside the procedures that were promulgated in the past by virtue of the rabbinical courts' inherent jurisdiction, the courts continue to enjoy inherent power to regulate those procedural matters which have not been addressed in regulations (compare: HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court [6] at p. 214). This inherent jurisdiction derives from the rabbinical court (like any other judicial instance) being a judicial institution established by law, which is intended to rule upon disputes, and which is granted power that is inherent to the very performance of the duty and the need to conduct judicial proceedings.

 

Inherent Jurisdiction and its Limits

 

9. A judicial instance's inherent power to prescribe procedures is of signal importance. "Without it proper judicial activity would be impossible" (Justice H. Cohn in ST 1/60 Winter v. Beeri [7] at p. 1474). The inherent powers "are vital in order to allow the court to perform its duties properly…" (Justice Landau in CrimA 230/56 Shorer v. Attorney General [8] at p. 753). They underlie "that minimal authority in matters of procedures, trial efficiency and justice that the court needs in order to perform its purpose: administering justice. This power is the external reflection of the internal sense of justice with which the judge is endowed and that he expresses in his daily actions" (Justice Berenson in FH 22/73 Ben Shachar v. Machlev [9] at p. 96).

 

This power is broad. It "encompasses any matter that occurs in or out of the courtroom that is related to the trial" (HCJ 305/89 [6] at p. 214). Indeed, due to the broad scope of this power, it has long been accepted that it should be exercised with great caution (see: Roadway Express v. Piper (1980) [55] at p. 763). This ancillary power is not unlimited. It is not broader than the express authority to prescribe procedures. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control. Moreover: inherent jurisdiction (as well as express jurisdiction in procedural matters) is, in essence, "governmental authority". Therefore, it must be exercised reasonably. Indeed, the judge, like any person exercising governmental authority, must act reasonably. I addressed this elsewhere, stating:

 

A judge may not toss a coin. He may not consider any factor that he chooses. He must consider reasonably. We have here, as in administrative law, a margin of judicial reasonableness. There are a number of options within the margin among which a reasonable judge may choose. Two reasonable judges may reach different results (HCJ 547/84 Of Haemek v. Ramat Yishai  [10] at p. 141).

 

This duty to act reasonably also applies when a judge exercises his inherent jurisdiction (MApp 613/82 State of Israel v. Awad [11] at p. 616).

 

10. What constitutes reasonable exercise of judicial authority? The answer is that reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. I addressed this elsewhere, stating:

 

Judicial discretion, like any governmental discretion, must be exercised in the framework of the law. A judge must not be arbitrary or discriminatory. He must consider his discretion reasonably… This requirement means, inter alia, that the judge must weigh all of the relevant considerations, juxtapose them, and strike a balance among them where there is friction. The nature of the relevant considerations changes from case to case… what characterizes them all  is that they present considerations of judicial and judiciary efficiency along with considerations of justice, morality, human rights and the court's standing in modern Israeli society… (HCJ 991/91 David Pasternak Ltd. v. Minister of Construction and Housing  [12] at p.  60).

 

Thus, proper exercise of "inherent" judicial authority – like the exercise of explicit statutory procedural authority – means exercising the inherent authority in a manner that strikes a proper balance among the values, principles and interests that must be considered when exercising inherent authority.

 

11. What are the values, principles and interests that must be considered when exercising inherent jurisdiction? It would appear that these values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction. Naturally, these values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular. Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open  and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included in the framework of these typical considerations.

 

12. A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty (see: HCJ 355/79 Katalan v. Prisons Service [13]; HCJ 14/51 Attorney General v. Davar [14]). A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property (see BAA 663/91 A. v. Israel Bar Association [15]). It must consider the right to strike and lockout (see: MApp 678/82 Tayar v. State of Israel [16]; MApp 613/82 State of Israel v. Awad [11]; LC 52/8-4 7-41 [54]). It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country (see: CA 703/70 Somech v. Ozer [17]; CA 230/69 Kaneti v. United Shvili Film [18]; LA 451/85 Adin Marketing v. Flatto Sharon [19]). Indeed, constitutional human rights are part of constitutional law and are directed first and foremost towards the governmental authorities. However, they project (directly and indirectly) onto all the branches of law and thus create a constitutionalization of the law. Procedural law is not immune to human rights. On the contrary: procedural law must recognize them and give them expression. Indeed, in a long line of judgments, this Court has recognized procedural law's subordination to accepted human rights. Justice Elon addressed this in stating:

 

…In the absence of express law, the court does not have the power to order blood tests, even if it would not involve coercion. Indeed, the court has ancillary inherent jurisdiction to issue various decisions and orders in order to effect a just and efficient examination, however orders that by their very nature comprise an infringement of a person's basic right, even if the infringement will not be coercive, cannot not be included in this ancillary power (CA 548/78 A.. v. B. [20], at p. 756).

 

Similarly, the Supreme Court of the State of New York [sic][2] ruled, in reference to the court's inherent power, that: "Even in the name of its inherent power, the judiciary may not... violate the constitutional rights of persons brought before its tribunals" (Matter of Alamance County Ct. Facilities [56] at  p. 132). Similarly, my colleague Justice S. Levin emphasized the need to consider a person's constitutional right to leave Israel in the context of proceedings concerning the issuing of a writ ne exeat republica (see LCA 26/89 Mashraki. v. "Rotem" Insurance  [21] at p. 552).

 

My colleague, Justice S. Levin, wrote:

 

…In light of the severe restriction of the freedom of movement inherent to the use of this regulation (Regulation 376 – A.B), a freedom which is a constitutional right of the highest order, the regulation should not be employed unless all of its elements have been strictly proven…. (LCA 18/89 Pichman v. Bank Leumi [22] at p. 517).

 

13. I have addressed the corpus of general considerations that govern the exercise of (statutory or inherent) procedural power. Sometimes these considerations all lead in one direction and sometimes they conflict internally with one another: procedural justice leads in one direction while procedural efficiency leads in another. And both of these could lead in a direction that differs from the direction of human rights. In such a state of affairs, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights. This is particularly evident now, with the enactment of the Basic Law: Human Dignity and Liberty. This Basic Law has elevated human rights – the majority of which were based on case law ("'Unwritten' Basic Rights": HCJ 243/62 Israel Film Studios. v. Levi Geri [23]) to a supra-statutory constitutional level. Although the validity of the previous law – with its procedural rules – was preserved (sec. 10 of Basic Law: Human Dignity and Liberty), its interpretation, internal balances and application must be influenced by the constitutional status of human rights (see: CrimApp 6654/93 Binkin v. State of Israel [24]).

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

14. Does this general approach regarding the scope of inherent jurisdiction – both in terms of its breadth and in terms of its limitations – also apply to the inherent power of the rabbinical courts to prescribe their own procedures? The answer is affirmative. A rabbinical court is a judicial instance established by statute. "The rabbinical courts draw their judicial authority from the state's legal system that granted them that authority” (Justice Elon in HCJ 323/81 Vilozny v. Supreme Rabbinical Court [25] at p. 738). Like any judicial instance, it is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers. This approach was clearly expressed in a long list of judgments that held that the rabbinical courts' procedures must respect "basic principles of fairness" (HCJ 158/66 Segev v. Rabbinical Court [26] at p. 521, per President Agranat). These are the rules of natural justice that obligate any court system, including the rabbinical courts (see: HCJ 10/59 Levy v. Tel Aviv-Jaffa Rabbinical Court [27]; HCJ 155/65 Gurovitz v. Tel-Aviv Rabbinical Court [28] at p. 19; HCJ 95/63 A. v. Tel Aviv-Jaffa Rabbinical Court [29] at p. 2221; HCJ 161/64 Mussman v. Haifa Rabbinical Court [30]; HCJ 816/80 Gotthelf v. Tel Aviv-Jaffa Rabbinical Court [31]). Justice Berenson addressed this matter – in the context of the Rabbinical Court's inherent power – stating:

 

A court for which state law did not establish procedures nor delineate the manner for their establishment, is authorized, by virtue of its inherent jurisdiction, to decide for itself the procedures that it will apply. In this regard – to the extent that the state law does not limit the court – it is its own master. However, the arrangements it prescribes must not comprise anything repugnant to the relevant general laws of the State … and must realize the principles of natural justice, since they must be properly observed by every body that decides legal or quasi-legal matters … (HCJ 150/9 [4] at p. 114).

 

Observing the rules of natural justice is but one of the limitations upon inherent jurisdiction. It is not the only limitation. Justice Goitein addressed this in stating:

 

It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not intervene with judgments of the religious courts unless they have acted without jurisdiction, or in exceptional cases which call for our intervention for the administration of justice (HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court,  [32] at p. 1198; [IsrSJ 2, 429 at 436]).

 

Justice Bejski stated in a similar spirit:

 

That which has been stated until now justifies the intervention of this Court, despite its reticence to do so on the merits except in cases of ultra vires, of infringement of the principles of natural justice, or for the sake of tikkun olam [“repairing the world” – ed.] (HCJ 7/83 Biaris v. Haifa Rabbinical Court [33] at p. 687).

 

Thus, the "administration of justice" and the "repairing of the world" are additional limitations – beyond the limitation associated with the rules of natural justice – that apply to the exercise of (statutory or inherent) procedural authority. These also include, inter alia, the limitations deriving from the fundamental principles concerning recusal and judicial integrity, and open and accessible courts (and compare: HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court [35]; HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court [35] IsrSC 46(2) at p. 21; HCJ 1689/90 Aasi v. Central District Sharia Court [36]). Similarly, any recourse by the rabbinical court to its inherent authority must be consistent with the protection of human rights. Indeed, every litigant in the rabbinical courts appears before those courts bearing all the human rights enjoyed by every person in Israel. The Israeli legal regime guarantees human rights to every person, and every person enjoys these rights in every judicial forum. The move from a “civil” judicial forum to a “religious” one does not lead to a loss or denial of basic human rights. “It would be inconsistent with these fundamental rights that the move from a civil court to a religious court would lead to a loss or infringement of these basic rights. No ‘confiscation’ of these civil rights can be permitted in the absence of an express statutory provision consistent with the requirements established under our constitutional system” (HCJ 1000/92 Bavli v. Great Rabbinical Court [37] at p. 248). Indeed, the promise of human rights is general and applies to all relationships and before all the courts. A religious court does not operate in a vacuum. It operates within the general framework of the Israeli legal system. Professor Rosen-Zvi rightly observed:

 

The religious court indeed holds jurisdiction – sometimes exclusive – to address a certain area of Israeli law. But the court remains an Israeli judicial forum within the general framework of Israeli law. The court operates within the framework of Israeli law and the general legislative framework, and it is not exempt from the commandments of the provisions of Israeli law (A. Rosen-Zvi, Israeli Family Law: The Sacred and the Secular   (Papyrus, 1990) 86 [Hebrew]).

 

The Israeli legal system is not a confederation of separate systems. The Israeli legal system is a unity that recognizes the uniqueness of its various parts. Therefore, substantive matters of personal status are subject to Jewish law, which at times may take precedence over some arrangement of the general law. However, such precedence is limited exclusively to matters of personal status, “no more and no less” (per Landau J. in HCJ 80/63 Gurfinkel v. Minister of the Interior [38] at p. 2068). It does not apply to what does not fall within the scope of personal status (see: Rosen-Zvi, ibid., p. 76). Thus, for example, it does not apply to the civil “mass” (and the various property rights it encompasses) with which every person comes before the Rabbinical Court (see: HCJ 1000/92 [37]). It also does not apply to the exercise of the rabbinical court’s inherent authority to address the proceedings before it. In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue. This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.  What is that proper balance when the rabbinical court is requested to issue a writ ne exeat republica against one of the litigants?

 

 

Ne Exeat Republica

 

15.       A stay of exit, whether as temporary or interlocutory procedural relief, can only be issued as a procedural means intended to assist a party “in realizing the relief that the substantive law grants to the party” (per Landau J. in CA 303/57 Reich v. Hammer [39] at p. 1363). The inherent authority of a judicial instance to establish procedure in regard to the granting of this procedural relief must therefore properly balance the values, interests and principles vying for dominance in the framework of procedural law.  A person’s constitutional right to leave Israel must be placed on one side of the scales. This right has been recognized as a basic right of a person in Israel. “A citizen’s freedom of movement to leave Israel is a natural right that is recognized as self-evident in every country with a  democratic regime, of which our country is one …” (per Silberg J. in HCJ 111/53 Kaufman v. Minister of the Interior [40] at p. 536; and see: HCJ 190/57 Assaig v. Minister of Defence [41] at p. 55; HCJ 488/83 Baransi v. Director of the Visa and Nationality Dept. [42]; HCJ 448/85 Dahar v. Minister of the Interior [43]; MApp 1064/86 Archbishop Ajamian v. State of Israel [44]). It derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right. Basic Law: Human Dignity and Liberty adopted this approach (sec. 6(a)) and granted the right to leave Israel (“All persons are free to leave Israel”) supra-legal status (see: CrimApp 6654/93 [24]). “All governmental authorities” – including all judicial forums (as they, too, are governmental authorities) “are bound to respect” this right (sec. 11 of Basic Law: Human Dignity and Liberty).

 

16.       As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. A litigant’s leaving the country may influence the legal proceedings and the possibility of executing the judgment. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed. Leading a litigant to an “empty well” because the other side has left the country infringes both the personal interest of the victim and the public interest in maintaining proper legal proceedings. However, the plaintiff’s interest that  deserves protection is not the pressuring of the defendant to concede the suit in order to liberate himself from the restriction imposed by a stay of exit. The state is not a prison, and agreeing to a suit should not be a key for release from captivity. “… staying the defendant is not meant to serve as a means for pressuring him to ransom himself from captivity” Y. Sussman, Civil Procedure, S. Levin, ed., (6^th ed., 1990) 571 (Hebrew)).

 

17.       We have addressed the values, principle and interests that must be considered in regard to granting relief in the form of a stay upon exiting the country. On one hand stands the basic value of freedom of movement, while the litigant’s interest in ensuring his substantive rights by means of a legal process stands on the other. The two values stand in opposition. Balancing the conflicting values is therefore required.  My colleague Justice S. Levin addressed the need for striking this balance in the area of procedural law, noting:

 

The fundamental question that must be addressed in interpreting the said regulation is where is the balance point between the principle that the defendant’s right to freedom of movement not be restricted unnecessarily, and the need to prevent the defendant from fleeing abroad and thus frustrating the suit filed against him (LCA 26/89 [22] at p. 552).

 

Professor S. Goldstein similarly observed:

                       

…granting any type of preliminary relief involves a delicate balance of the plaintiff’s interests in preventing the defendant from frustrating the litigation, and that of the defendant in not having his liberty or property restrained prior to the definitive adjudication of his liability (Stephen Goldstein, Preventing a Civil Defendant from Leaving the Country as a form of Preliminary Relief, 20 Is.L.R. 18, 24 (1985)).

 

                       

Indeed, the balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a “decisional framework which contains a guideline of value…” (per Shamgar J. in FH 9/77 Israel Electric Corporation. v. “Ha’aretz” [45] at p. 361 [IsrSJ 9, 295]; and see: HCJ 991/91 [12] at p. 60).  This balance serves a dual purpose: first is serves as a standard for interpretation by which a procedural rule is given meaning; second, it establishes the boundaries of the (statutory or inherent) authority of the procedural rules themselves. Procedural rules whose interpretation leads to the possibility of preventing leaving the country to an extent that exceeds the standards established by the principled balance exceed the (statutory or inherent) power of the promulgator of the rules.

 

18.       It would appear to me that the proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment. My colleague Justice S. Levin gave expression to this standard in noting:

 

…when there is real, direct or circumstantial evidence from which one may infer a danger that the proceedings may be thwarted by the defendant’s travel abroad, the first principle (the defendant’s freedom of movement – A.B.) will retreat before the need to prevent the complainant from facing an empty well when judgment is rendered against the defendant, inasmuch as the rule is not intended to shield the defendant from his creditors and thwart them (LCA 26/89 [22] at p. 553).

 

I would like to make a few comments in regard to this standard. First, this standard is of a constitutional character. By establishing a causal connection between preventing leaving the country (as a constitutional right) and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system. Professor Goldstein addressed this in his abovementioned article in noting (at p. 26):

 

…the requirement of a causal connection is not merely a result of the interpretation of a specific rule of civil procedure, but rather the demand of a more fundamental principle of Israeli jurisprudence. It represents the application of a constitutional norm regarding the freedom of movement in general, and the right of a person to leave the country in particular.

 

Second, the causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. This standard was adopted in the Dahar case [43] in regard to striking the balance between the right to leave the country and the public interest in state security. In my opinion, this standard is also appropriate for striking the required balance in the matter before us. Dr. Yaffa Zilbershats addressed this in noting:

 

In our opinion, the “sincere and well-founded suspicion” test is better suited to balancing the interests in this case in which we deprive a person of his basic right to leave the country in order to protect the interest of the plaintiff that the legal proceedings or the execution of a judgment not be frustrated (Y. Zilbershats, The Right to Leave a Country (Ph.D. Diss., Bar Ilan, 1991) 203).

 

 

Third, not any possible harm, whether severe or insignificant,  can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., “frustrating the lawsuit in advance through the debtor’s fleeing abroad…” (LCA 26/89 [21] at p. 552, following LA 558/85 Ilin v. Rotenburg [46] at p. 556). In addressing the nature of the permissible infringement of a person’s right to leave Israel, Dr. Zilbershats writes (ibid., p. 180):

 

In our opinion, because the right to leave the country is a basic human right of great importance, it should only be possible to restrict it if it has the potential to frustrate a judicial proceeding or prevent the execution of a judgment against the person seeking to leave the country.

 

Fourth, meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country. It is not a sufficient condition. Thus, for example, procedural rules may impose additional demands, for example, that a condition for granting a writ ne exeat republica is that: “The defendant is about to leave the country permanently or for an extended period” (rule 376(a) of the Civil Procedure Rules, 5744-1984). Fifth, before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement. Thus, for example, providing an appropriate bond may often meet this requirement. Sixth, the court should exercise this procedural authority with great care. “Unquestionably, preventing a person from leaving the country infringes an individual’s liberty, and therefore requires careful consideration…” (per Ben-Porat, D.P. in LA 451/85 [19] at p.305). The court must therefore meticulously examine whether the required standard is met, and only “if all the elements have been strictly proven” can the requested order be granted (per S. Levin, J. in LCA 18/89 [22] at p. 517). Granting the order must not be routine, and it should properly be granted only when justified by the circumstances.

 

Seventh, naturally, the application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize. Proceedings for the return of a loan are not the same as divorce proceedings. In the former, the legitimate interests of the creditor can usually be ensured by an adequate bond. In the latter, at times (although not always) the sincere and well-founded suspicion that the woman may be rendered an agunah [a “chained woman” – ed.] may require granting a writ ne exeat republica. Moreover, proceedings that can lawfully be conducted without the personal presence of the parties are unlike proceedings that can only be lawfully conducted if the parties are actually present. In the former case, a party’s leaving the country will not frustrate the proceedings, while in the latter it will frustrate the very possibility of conducting proceedings.  Nevertheless, even here a less drastic means should always be preferred. Eighth, this standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. We must bear in mind that the claim has not yet been proved, and a judgment has not yet been rendered. The certain infringement of one party’s freedom of movement stands against the mere claim of the other party who argues that his substantive right has been infringed, but whose claim has not yet been accepted and no judgment has recognized it. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the person who will suffer the certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

 

Ne Exeat Republica in the Rabbinical Court

 

19.       As we have seen, the Rabbinical Court has the inherent power to establish rules of procedure. Procedures for preventing a litigant from leaving the country were established within that framework. Such procedures are established under rule 106 of the Rabbinical Courts Rules of Procedure, 5753 (see: HCJ 852/86 Aloni v. Minister of Justice [47] at p. 61). In the framework of its inherent power, the Rabbinical Court can, indeed, establish procedural rules in general, and procedural rules in regard to preventing a person from leaving the country in particular, in accordance with its procedural conceptions, which may differ from the procedural conceptions of the “civil” courts or of other religious courts (see: Shochetman, On Orders of Ne Exeat Regno against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts, 14 Mishpatim 83 (1984)). However, the Rabbinical Courts inherent power to establish procedural rules in general, and procedural rules in regard to preventing leaving the country in particular is limited by the proper balance of the values, interests and principles that characterize Israeli law. Therefore, the Rabbinical Court’s authority to order that a litigant may not leave the country is limited by the appropriate standard for balancing the conflicting values, interests and principles in this context. In accordance with them, judicial authority to bar a litigant from leaving the country may be exercised only when there is a sincere, well-founded suspicion that his leaving the country will frustrate or thwart the legal proceedings or prevent the execution of the judgment. It is against this background that one must understand this Court’s  statement that “the purpose of the restriction imposed upon a person, which prevents his leaving Israel, is identical for a [civil] court or a rabbinical court” (HCJ 578/82 Naim v. Jerusalem District Rabbinical Court [48] at p. 711), and that “the areas of the authority of the various judicial forums – civil and religious – in regard to preventing leaving the country…must be similarly construed” (per Shamgar P. in HCJ 852/68 [47] at p. 61). Adopting this standard will achieve the normative harmony and legal unity to which every legal system aspires. This will ensure that the fundamental values and principles grounding our legal system will be protected and uniformly realized in the procedural rules of all Israeli judicial forums. In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. “Their procedural rules are their own business” (per Berinson J. in HCJ 403/71 Alkourdi v. National Labor Court [49] at p. 70). However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the State of Israel.

 

From the General to the Particular

 

20.       The District Rabbinical Court’s decision to prevent the Petitioner from leaving the country must be examined against the background of this normative structure. The Petitioner’s suit for divorce from the Respondent was pending before the Rabbinical Court. The Respondent’s suit for marital reconciliation was also pending. The court was requested to issue a writ ne exeat republica against the Petitioner and the children in the framework of the reconciliation suit. The Rabbinical Court granted the request on the basis of the Respondent’s claim that he “fears that the woman’s leaving the country at this stage would result in a final, irreparable rupture between them”.  The Rabbinical Court ordered a further hearing in two months, and requested that the parties negotiate “to achieve a suitable solution that would allow their joint travel abroad, or allow the wife to leave subject to conditions that would allay the husband’s fears”. The Great Rabbinical Court denied the wife’s appeal, holding that there were no grounds for hearing the appeal “inasmuch as the District Rabbinical Court had set a date for a further hearing of the matter”.

 

21.       Does the District Rabbinical Court’s decision maintain the proper balance between the freedom of movement (of the Petitioner) and ensuring the realization of the substantive rights (of the Respondent) by means of the judicial process? In my opinion, it does not, for two reasons. First, the evidentiary groundwork presented to the Rabbinical Court did not substantiate a “sincere and well-founded suspicion”. All that was before the court was the husband’s claim (unsupported by any additional evidentiary foundation) and the wife’s denial. That is insufficient to ground a sincere, well-founded suspicion. Second – and of primary importance in this context – the condition that the Petitioner’s absence from the country might frustrate or thwart the judicial proceeding in regard to reconciliation was not met. The judicial proceeding in the matter of reconciliation would not be frustrated at all by the Petitioner leaving the country. It is clear from the circumstances that the Petitioner will be travelling abroad for only a brief period. This brief absence from Israel cannot potentially influence the proceedings. In any case, the matter can be adequately addressed by requiring an appropriate guarantee. Postponing the hearing on revoking the writ ne exeat republica for two months is inconsistent with the status of the freedom to leave the country as a basic human right. Note that I am willing to assume – without deciding the matter – that the Petitioner’s leaving the country might negatively influence the couple’s relationship, and might even – as the husband argues – result in a final rupture of the relationship. It is also possible – although here, too, I cannot make a finding – that preventing the women’s leaving might serve to advance a reconciliation between her and the Respondent. But even if that were the case, the Rabbinical Court’s inherent power to establish procedures does authorize it to prevent a litigant from leaving the country when the standard that properly balances the relevant values, interests and principles is not met. Indeed, the suit for marital reconciliation (which is a matter of personal-status law, see: ST 1/50 Sidis v. Chief Execution Officer, Jerusalem [50] at p. 1031; CA 174/83 N. Soher v. P. Soher [51] at p. 82) raises serious problems, particularly in the area of interlocutory relief. Interlocutory orders that infringe basic human rights like the right to property (in regard to vacating a residence), freedom of movement (in prohibiting leaving the country, see: HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court [52] at p. 770) and the autonomy of personal will (by preventing meeting another person) may be granted out of a desire to realize the substantive law (see in this regard: S. Dichovski, The Authority of the Rabbinical Courts as reflected in their Judgments, 10-11 Dinei Israel 9, 15ff. (5741-43) (Hebrew)). In this case, we are witnesses to an example of the fundamental problem deriving from the first attempt “of its kind in Jewish history to apply religious law and impose religious jurisdiction in a society in which the majority of its members define themselves as secular” (P. Maoz, The Rabbinate and the Religious Courts: Between the Hammer of the Law and the Anvil of Halakha, 16-17 Annual of the Institute for Research in Jewish Law 289, 394 (1991) (Hebrew)). In the matter at hand, this special attempt leads to a gap between the basic conceptions underlying marital reconciliation in religious law and the worldview of a largely secular society. As judges, we take the law as a given and do not  question it. However, to the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the Rabbinical Court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation (as opposed to interfering with the judicial proceedings in regard to reconciliation), inasmuch as its procedural power to grant such orders is subject to the limitations required by the proper balance that we discussed. In his aforementioned book,  Prof. Rosen-Zvi correctly pointed out (pp. 117, 119):

 

The Rabbinical Court issues [orders – A.B.] comprising remedies attendant to marital reconciliation that infringe the spouse’s liberty. Some of these orders also concern prohibitions that directly affect third parties. For example, an order forbidding a spouse to meet with a particular person whose name appears in the body of the order. Such an order seriously infringes an individual’s right and is inconsistent with the fundamental values of Israeli society…

 

…Israeli law does not grant the Rabbinical Court a free hand even if it is required by the worldview of religious law and the original content of the marital reconciliation cause of action. The Rabbinical Court operates within the framework of boundaries set by Israeli law. These exigencies obligate it, and it may not deviate from or exceed their borders.

 

Indeed, to the extent that such interlocutory orders do not conform to the delicate balance of the values, principles and interests that must be considered – primary among them the human rights of the parties to the proceedings and of third parties – they deviate from the inherent authority (as currently expressed in the Rules of Procedure of the Israeli Rabbinical Courts, 5753) of the Rabbinical Court to grant interlocutory relief. It may be superfluous to note that, nevertheless, the Rabbinical Court is authorized to take the conduct of the parties into account among its considerations in accordance with Jewish law, and give it the duly required weight under the substantive law. In this regard, it is apt to recall the words of Deputy President Y. Kahan, who held:

 

Clearly, the Rabbinical Court may draw all the conclusions that derive under [Jewish – ed.] law from the fact that the Petitioner, who is married, is conducting intimate relations with another man.

 

However, we have not found any legal basis upon which to ground a restraining order as issued in this case (HCJ 428/81 [53]).

 

That is also so in the matter before us. The Rabbinical Court is not authorized to issue a temporary order prohibiting the Petitioner from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that the Petitioner left the country, and from her conduct in the country and abroad. For these reasons, we have made the order absolute (as stated in para. 5 of our opinion).

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

Given this 29^th day of Shevat 5754 (Feb. 10, 1994).

 

 

 

 

In the Supreme Court sitting as High Court of Justice

HCJ 8665/14

 

Before:                                    President M. Naor

                                    Justice S. Joubran

                                    Justice E. Hayut

                                    Justice H. Melcer

                                    Justice Y. Danziger

                                    Justice N. Hendel

                                    Justice U. Vogelman

                                    Justice I. Amit

                                    Justice Z. Zylbertal

 

Petitioners:                  1. Teshome Nega Desta

                                    2. Anwar Suliman Arbab Ismail

                                    3. Hotline for Refugees and Migrants

                                    4. Association for Civil Rights in Israel

                                    5. ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel

                                    6. Worker’s Hotline

                                    7. Physicians for Human Rights – Israel

                                    8. African Refugee Development Center

                                               

                                                                        v.

 

Respondents:              1. Knesset

                                    2. Minister of the Interior

                                    3. Minister of Defence

                                    4. Minister of Public Security

                                    5. Attorney General

 

Request to join as amici:                     1. Eitan - Israeli Immigration Policy Center

                                                            2. Kohelet Policy Forum

                                                            3. Legal Forum for Israel

4. Concord Research Center for Integration of International Law in Israel

 

Objection to granting an order nisi

Date of Hearing:                                 14 Shevat 5775 (Feb. 3, 2015)

 

Attorneys for the Petitioners: Adv. Oded Feller; Adv. Anat Ben-Dor; Adv. Asaf Weitzen; Adv. Osnat Cohen Lifshitz; Adv. Aelad Cahana; Adv. Rachel Friedman; Adv. Yonatan Berman

 

Attorney for Respondent 1: Adv. Gur Bligh

Attorney for Respondents 2-5: Adv. Yochi Gnessin; Adv. Ran Rozenberg; Adv. Moriah Freeman; Adv. Noam Mola

Attorney for Amicus 1: Adv. Guy Tsabari

Attorney for Amicus 2: Adv. Ariel Erlich

Attorney for Amicus 3: Adv. Idan Abuhav

Attorney for Amicus 4: Adv. Avinoam Cohen

 

 

Judgment

 

President M. Naor:

 

The petition before the Court challenges the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment). This chapter amends the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), and establishes provisions for the detention of infiltrators for a period of up to three months, and to order that they be held in a residency center for up to twenty months. The Amendment, which passed second and third readings in the Knesset on Dec. 8, 2014, was enacted after this Court held in two previous judgments that certain provisions that had been added to the Law by previous amendments were unconstitutional (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)).

 

General Background

1.         Over the last few years, tens of thousands of people, many of them nationals of African countries, entered Israel without passing through the border control stations. The Law defines these people as “infiltrators” because they did not enter Israel legally. This, as opposed to persons who entered Israel legally but who did not leave on the required date, thus continuing to remain in the country unlawfully. 

2.         The infiltration phenomenon presents Israel with complex challenges. While it must prevent illegal immigration, the state must also uphold its obligations to protect persecuted persons and ensure that they not face a situation that would threaten their lives or freedom if deported (HCJ 7302/07 Foreign Workers Hotline v. Minister of Defence, para. 13 (July 7, 2011) (hereinafter: the Hotline case)). In the Adam case and the Eitan case, we noted that these challenges are not unique to Israel, and that there has been a constant rise in the number of men and women wandering outside their countries for various reasons over the last decades.

3.         According to the current data of the Population and Immigration Authority, as of June 30, 2015, a total of 64,309 infiltrators have entered Israel, of whom 45,091 are currently present in the country. Until 2012, infiltration followed an upward trend, which has since reversed. While 17,258 infiltrators entered the country in 2011, only 45 entered in 2013, and 21 in 2014. In the first half of 2015, 39 infiltrators entered the country. In the years 2013-2014, there was an increase in the number of infiltrators leaving Israel. Despite the said changes in the scope of the infiltration phenomenon, the State of Israel must still contend with a large number of infiltrators living in its territory (and see: the Eitan case, para. 40 of the opinion of Justice U. Vogelman, further references in this judgment refer to the opinion of Justice Vogelman, unless otherwise noted). Most of the infiltrators currently present in Israel (some 92 percent) are nationals of Eritrea and the Republic of Sudan (hereinafter: North Sudan) (Population and Immigration Authority, Policy Planning Department, Data on Foreigners Policy in Israel – Publication no. 2/2015 (July 2015)).

4.         In the previous proceedings, the Court noted that the parties disagree as to the reasons that brought the infiltrators to Israel. That disagreement has also arisen in these proceedings. The State is of the opinion that the overwhelming majority of infiltrators are economic migrants who left their countries in order to improve their situations. Therefore, in addition to the legislative arrangements that are the subject of these proceedings, the Amendment also comprises Chapter B (which is not challenged in this petition), which amends the Foreign Workers Law, 5751-1991, by reference, and imposes various restrictions upon the employment of infiltrators. As opposed to this, the Petitioners are of the opinion that we are concerned with people who fled their countries of origin due to threats to their lives or liberty. The Petitioners note that Eritrea and Sudan – the countries of origin of most of the infiltrators – are countries that have suffered internal instability, and in which there have been crises and wars over the last years (the Adam case, para. 6 of the opinion of Justice E. Arbel, further references in this judgment refer to the opinion of Justice Arbel unless otherwise noted; the Eitan case, para. 31). Against this background, the Petitioners argue that many of the infiltrators are entitled to refugee status. According to the Petitioners, that status is not limited to a prohibition upon deportation to the country of origin, but grants additional rights in various areas (Convention Relating to the Status of Refugees of 1951, 5 Kitvei Amana 3 (opened for signature in 1951), and the Protocol Relating to the Status of Refugees of 1967, 21 Kitvei Amana 23 (opened for signature in 1967) (hereinafter referred to jointly as the Refugee Conventions); the Eitan case, paras. 32-36).

5.         As noted in the previous proceedings, “the true picture as to the identity of the infiltrators is certainly more complex than either side seeks to present. Alongside the economic motive that may be assumed to have driven many of the infiltrators to come to the State of Israel, we cannot casually deny the claims relating to fleeing the dangers that threatened them in their country” (ibid., para. 31). This is also true in the matter before us. In any case, at present Israel does not deport nationals of Eritrea and North Sudan directly to their countries. According to the information presented to us, nationals of North Sudan are not repatriated due to practical problems deriving from the lack of diplomatic relations with that country (for a more detailed discussion of this issue, see ibid., paras. 31-32; the Adam case, para. 8). As opposed to this, due to the situation in Eritrea, the State has adopted a policy of “temporary non-deportation”. This is in accordance with the customary international law principle that a person cannot be removed to a place that presents a danger to his life or liberty (the principle of non-refoulement; see, inter alia, para. 33 of the Refugee Convention). This Court addressed the non-deportation policy as implemented by Israel at some length in earlier judgments (the Adam case, paras. 8-9; AAA 8908/11 Asafu v. Ministry of the Interior (July 7, 2012) (hereinafter: the Asafu case)). At present, only “temporary non-deportation” is involved, without establishing any associated, specific arrangement treating of its practical implications and the nationality rights of those enjoying it (for a criticism of this normative situation, see ibid., the opinion of Justice E. Hayut).

6.         To complete the picture, we would note that the said policy does not currently prevent nationals of Eritrea and Sudan from submitting individual requests for recognition as refugees, although the State formerly limited this (see: the Eitan case, para 34; the Asafu case, para. 18 of the opinion of Justice Vogelman). Until a few years ago, requests for asylum were handled by the U.N. High Commission for Refugees, initially in their entirety and later in cooperation with it (see: AAA 8675/11 Tedesa v. Unit for Processing Asylum Seekers, para. 9-11 (May 14, 2012); Sharon Harel, The Israeli Asylum Mechanism: The Process for transferring the handling of Asylum Requests from the U.N. Commission for Refugees to the State of Israel, in Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy 43 (2015) (hereinafter: Levinsky Meets Asmara) (Hebrew)). Over the last few years, requests for asylum have been referred to the RSD (Refugee Status Determination) (hereinafter: RSD) department of the Population and Immigration Authority, which operates in accordance with the directives of the Ministry of the Interior (see: Ministry of the Interior, “Procedure for Handling Requests for Political Asylum in Israel” (Jan. 2, 2011)).

 

Previous Proceedings – the Adam and Eitan Cases

7.         In view of the difficulty in repatriating most of the infiltrators, the State of Israel had to find alternative solutions. Initially, Israel adopted a policy under which infiltrators who were apprehended were returned to Egypt. However, the implementation of that policy was stopped due to the geopolitical situation in Egypt (the Hotline case, paras. 11-12; for other arrangements implemented in the past, see: Yonatan Berman, Arrest of Refugees and Asylum Seekers in Israel, in Levinsky Meets Asmara 147; HCJ 10463/08 African Refugee Development Center v. Ministry of the Interior (Aug. 17, 2009); HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009)). Another policy adopted by Israel was that of detaining infiltrators under the Entry into Israel Law, 5712-19952 (hereinafter: the Entry into Israel Law). However, the infiltrators were released from detention after a relatively brief period, inter alia, because the Entry into Israel Law does not generally permit detaining a person or more than sixty days.

8.         In light of the increase in infiltrations, the state authorities implemented other means, among them the erection of a physical barrier along the land border with Egypt, and legislation intended to impose special legal arrangements upon infiltrators. These arrangements are more severe than those applying to persons unlawfully present in Israel under the Entry into Israel Law. This policy was first expressed in the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 3 and Temporary Order) Law, 5772-2012 (hereinafter: Amendment 3), which added sec. 30A to the Law. The main provision of sec. 30A – enacted as a temporary order – permitted detaining an infiltrator in legal custody for a period of up to three years, subject to grounds for supervised release that were established in the Law. In the Adam case, this Court – in an expanded panel of nine justices – held that Amendment 3 was unconstitutional due to its disproportionate violation of the constitutional right to liberty. By majority opinion, we annulled all the arrangements established in sec. 30A of the Law. We further ruled that in light of the annulment of sec. 30A, all the detention and deportation orders under which the infiltrators were detained would be viewed as if they had been issued by virtue of the Entry into Israel Law, and that an immediate, individual review of the cases of all those detained must be undertaken, along with their release, as necessary.

9.         Pursuant to the judgment in the Adam case, the Knesset enacted the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 4 and Temporary Order) Law, 5774-2013 (hereinafter: Amendment 4). That law – also enacted as a temporary order – reenacted sec. 30A, while shortening the maximum period of detention to one year. It also added Chapter D, which arranged for the establishment of a residency center for infiltrators (hereinafter: residency center), and authorized the Director of Border Control (hereinafter: the Director) to transfer any infiltrator to the center if there was any problem whatsoever in removing him from Israel. Chapter D also established various provisions in regard to the operation of the residency center. Inter alia, infiltrators residing in the residency center were required to report three times a day for registration of their presence in the center, and to remain in the center during the night. On Dec. 12, 2013, shortly after the enactment of Amendment 4, the Prevention of Infiltration (Offences and Jurisdiction) (Declaration of a Residency Center for Infiltrators) (Temporary Order), 5774-2013, was published in the Official Gazette. In that order, promulgated by virtue of sec. 32B of the Law, the Minister of Public Security declared the “Holot” installation in the Negev as a residency center for infiltrators under Chapter D of the law. On the following day, the Population and Immigration Authority began transferring infiltrators held in custody to the “Holot” installation.

10.       In the Eitan case, a majority of this Court held that the aforementioned two pillars of Amendment 4 were unconstitutional and ordered their annulment. The Court held that a person could not be ordered to be held in custody if there was no expectation of his removal from Israel, and a fortiori not for a period of one year. Although the State argued that one of the purposes of sec. 30A of the Law was the identification of the infiltrator and exhausting the possibilities for his deportation, it was held that there was a gap between the declared purpose of the Law and its language. It was therefore held that placing infiltrators in detention for an entire year in the absence of any foreseeable expectation of their deportation – and this not a punishment for their conduct, and in view of their inability to do anything to bring about their release – creates a disproportionate violation of their rights. It was further held that the residency center was also unconstitutional. This was first and foremost because no limits were set for the maximum period of custody in the center, nor were any criteria for release established. But it was also due to the specific arrangements that were established, such the obligation to report for registration and the obligation to remain in the center at night. The Court held that Chapter D, as a whole, presented a gloomy picture of an installation that shared many of the characteristics of a detention center, as opposed to an open or partly open residency facility. The Court therefore overturned both elements of the Law.

11.       In place of the arrangement established under sec. 30A, which was annulled, the Court held that the arrangement established under the Entry into Israel Law would be followed. In addition, the declaration as to the annulment of Chapter D of the Law was held in abeyance for ninety days, with the exception of a limited number of provisions regarding which the declaration would enter into force earlier, in accordance with the conditions set forth in the judgment.

 

The Law challenged by the Petition

12.       On Dec. 8, 2014 – about three months after the judgment in the Eitan case – the Knesset enacted the amendment that is the subject of these proceedings. It, too, was enacted as a temporary order. The main points of the amendment are as follows: First, sec. 30A of the Law was reenacted, while establishing a three-month maximum for detention. Second, Chapter D of the Law was reenacted to reestablish the residency center and regulate its operation. Like the earlier version of Chapter D, the new arrangement authorizes the Director to require that an infiltrator be present in the residency center. However, the maximum period for remaining in the residency center is limited to twenty months, and special populations – like minors and victims of certain crimes – will not be summoned to the center. As in the past, the infiltrators were required to report in the evening for registration, and were prohibited from leaving the center at night. However, the requirement that they report during the day was rescinded, and grounds for release from the residency center were established. Below, I will address all of the details of the arrangement established under Chapter D. I will already note that according to the explanatory notes, these arrangements were intended to change the scheme of incentives for infiltrators considering entering Israel other than through the border control stations; to permit the authorities to exhaust the identification procedures for infiltrators, as well as deportation procedures; to provide a response to the State of Israel’s right to protect its borders and sovereignty; and to prevent infiltrators from continuing to establish themselves in Israeli urban centers (Explanatory Notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904 (hereinafter: the Explanatory Notes)).

            The petition before the Court was filed shortly after the enactment of the Amendment.

 

Developments following the filing of the Petition

13.       On Dec. 30, 2014, President A. Grunis issued an order nisi instructing the Respondents to show cause why sec. 30A of Chapter D of the Law, as amended in the Amendment that is the subject of this petition, not be annulled. President Grunis further ordered that the case be heard before an expanded panel of nine justices.

14.       Oral arguments were heard on Feb. 3, 2015. In light of questions and arguments raised in the course of the hearing, we ordered that the Respondents submit a supplementary affidavit. The Respondents were asked to present various data in their affidavit, inter alia, in regard to the breakdown of the population currently in the Holot residency center; in regard to asylum requests submitted to the RSD; and in regard to asylum seekers who voluntary left Israel in the course of their stay in the residency center or while in detention. I will refer to the supplementary data submitted on Feb. 16, 2015 in due course.

 

The Petitioners’ Presentation and the Main Arguments of the Parties

15.       Petitioner 1 is a 34 year old Eritrean citizen. He claims that he served for a number of years in the Eritrean army, and was thereafter imprisoned without trial for over a year. In 2008, Petitioner 1 left Eritrea and infiltrated into Israel. Between the years 2008 and 2013, Petitioner 1 lived in Beer Sheva, Eilat and Tel Aviv, and worked in hotels. In January 2014, the Director ordered him to the Holot residency center, where he remained until the filing of the petition. Petitioner 1 filed a request for asylum that has not yet been decided. Petitioner 2 is a 35 year old citizen of North Sudan, born in the Darfur region. He claims that in the course of his university studies he was politically active in the Sons of Darfur movement, and as a result, was twice imprisoned without trial, beaten and held under inhuman conditions. In 2004, following his release from prison, Petitioner 2 fled from North Sudan to Libya. In 2008, when the Libyan authorities began to extradite members of the movement to North Africa, Petitioner 2 fled Libya, and on Nov. 17, 2008, infiltrated into Israel. Upon arrival, he was held in custody for five months. Following his release from custody, he lived in Jerusalem and in Tel Aviv, and worked in hotels. In February 2014, Petitioner 2 was ordered to the Holot installation, where he has been since March of that year. According to him, he was ordered to stay in Holot after he refused to leave Israel to a third country. Petitioner 2 also filed a request for asylum that has not yet been decided.

            The other petitioners are human rights organizations: The Hotline for Refugees and Migrants; The Association for Civil Rights in Israel; ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel; The Worker’s Hotline; Physicians for Human Rights – Israel; and The African Refugee Development Center.

16.       The petition challenges both elements of Chapter A of the Amendment. The first arrangement challenged is that of custody by virtue of sec. 30A of the Law. Although the period of custody has been shortened from one year to three months, the Petitioners are of the opinion that the section nevertheless remains unconstitutional. The Petitioners argue that, like Amendment 4, section 30A in its current form permits holding a person in custody even when there is no practical expectation of his removal form the country. Under these circumstances, they argue that this constitutes unlawful arrest.

            The second arrangement challenged by the Petitioners is the residency center that, as noted, was established under Chapter D of the Law. According to the Petitioners, Chapter D suffers from a number of constitutional defects that justify the annulling of the entire chapter. Their main argument is that the period of custody in the residency center – although limited to twenty months – is still extremely long in relation to what is accepted in the world, and significantly violates the rights of the infiltrators. The Petitioners are of the opinion that the purposes of Chapter D are also improper. Their primary argument in this regard is that the true purpose of the provisions of Chapter D is to encourage the infiltrators to leave the state “by means of breaking their spirit, deterrence, and separation of populations”. This, they argue, is not a proper purpose when deportation of the concerned group is prohibited. In any case, the Petitioners argue, the residency center does not achieve its purpose in view of the fact that after their release from the center, they will return to the urban centers and establish themselves there. The Petitioners also make numerous arguments in regard to the individual arrangements in Chapter D, and particularly in regard to the arrangement that authorizes the Director to order that an infiltrator staying in the residency center be transferred to detention if he be found to have violated various rules of the residency center.

            In light of the above, the Petitioners ask that this Court annul for a third time the provisions of the Law as amended in the Amendment that is the subject of the petition.

17.       The Knesset and the State are of the opinion that the petition should be denied. According to them, the purposes of the Law are proper, and the arrangements therein are proportionate. According to the Knesset, there are substantive differences between the arrangement that was overturned in the Eitan case and the arrangement enacted to replace it, which is challenged in this petition. The changes introduced by the Knesset in the legislative arrangement – among them a reduction of the maximum period of detention to three months; shortening the maximum period for being held in a residency center to twenty months; limiting the duty of reporting in the residency center; shortening the periods for transfer of an infiltrator from a residency center to detention, and instituting automatic judicial review of such a decision by the detention tribunal – resolved, it is argued, the constitutional defects found in the previous arrangement. Given the margin of legislative appreciation granted to the legislature, the Knesset is of the opinion that, in this petition, an interpretive solution should be preferred to Supreme Court intervention in legislation. This is particularly so in view of the fact that we are concerned with a third constitutional review of the same law, and in view of the fact that the Law touches upon the designing of immigration policy, which is a subject  at the core of the State’s sovereign authority.

            The State argues that although the provisions of Chapter D in regard to a residency center infringe the right to liberty, they do not deny it. It is argued that the changes introduced by the Knesset in this arrangement significantly limit the scope of the infringement, and they pass the criteria of the Limitation Clause. It is similarly argued that the provisions regarding placing a person in detention were enacted for a proper purpose and meet the criteria of proportionality.

 

Requests to join the Petition

 18.      Four associations and organizations asked to join the petition as amici curiae. The first, the Kohelet Policy Forum (hereinafter: the Forum), is a public association that acts “for the strengthening of Israeli democracy, the advancement of individual freedom and encouraging the implementation of free-market principles in Israel, and for the establishing of the permanent status of Israel as the nation state of the Jewish nation”. According to the Forum, the purposes of the Law – which are the stemming of the infiltration phenomenon and the prevention of future infiltration, along with preventing the permanency of the presence of infiltrators unlawfully present in Israel and ensuring their exit – are proper. It is further argued that in accordance with the accepted Israeli normative structure, domestic law takes precedence over the provisions of international law. The Forum therefore argues that recourse should not be made to the provisions of international law in the framework of constitutional review of the Law.

19.       The second association that requested to join the petition as an amicus is the Legal Forum for Israel, which acts “for good governance in general, and in the judiciary in particular, including in the area of the separation of powers and the balances among the three branches of government”. In brief, the association argues that the petition should be denied first and foremost in light of the broad margin of discretion granted to the legislature as a substantive element of the principle of separation of powers. It is argued that in the instant case the margin of discretion is particularly broad, given that the primary issue – the period of time that an infiltrator may be held in custody and in a residency center – is “quantitative” in nature.

20.       The third association, requesting to join the petition as a respondent or alternatively as an amicus is the Eitan - Israeli Immigration Policy Center, which acts “for the establishing of an orderly immigration policy for Israel”. Eitan’s main argument is that an examination of the constitutionality of the Law must also address the necessary balance between the rights of the infiltrators and the rights of the residents of the cities in general and those of south Tel Aviv in particular. In Eitan’s view, we are concerned with a “vertical balance” in which the interests of Israel’s citizens and residents must be shown preference. It is therefore argued that the Law’s arrangements are not only proportionate but necessary, inasmuch as there will otherwise be disproportionate harm to the rights of the city residents.

21.       The fourth organization requesting to join the petition is the Concord Research Center for Integration of International Law in Israel (hereinafter: the Concord Center). The Concord Center emphasizes that international law grants states the right and authority to enforce their immigration laws by means of removing aliens unlawfully present in their territory. It further notes that there is nothing wrong in principle with adopting detention as a means for ensuring the enforcement of decisions in regard to deportation and removal. However, it explains that the use of this means is subject to such fundamental principles as necessity, proportionality and reasonableness. According to the Concord Center, the Law’s provisions are not consistent with those principles. In its view, the Law lacks a clear connection between the authority to hold a person in custody or in a residency center and the practical possibility to deport a person defined as an infiltrator form Israel. It is argued that, in practice, the absence of such a connection allows for the arbitrary violation of the right to liberty, which is prohibited under international law.

 

Discussion and Decision

22.       As noted, the question before the Court concerns the constitutionality of two arrangements in the Law. The starting point for the constitutional examination is that the Court must act with restraint in reviewing laws enacted by the Knesset, which express the will of the people (see, for example: HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (Feb. 23, 2012) (hereinafter: the Nir case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). This is particularly true in this case in which we are concerned with the constitutional review of a law that was overturned by the Court, and reenacted by the Knesset for a third time. In the Eitan case, Justice Vogelman noted that examining the constitutionality of a law under such circumstances requires particular care (ibid., para. 23). However, that does not mean that the Law is immune to judicial review. I made a similar point in the Eitan case:

…there is a constitutional dialogue between the judiciary and the legislature: the Knesset enacts a law, which it believes meets the constitutional criteria; the Court examines the law under the lens of constitutional review. Occasionally, upon review, the Court arrives at the conclusion that the law, or some part thereof, is unconstitutional. That does not end the dialogue: if necessary, the Knesset legislates anew (see: Aharon Barak, The Judge in a Democracy, 383-384 (2004) (Hebrew), [236-238 (2006) (English)]). However, after the Court has determined that a piece of legislation is unconstitutional, the legislature must not reenact it unchanged, or with changes that do not resolve the contradiction of the Basic Laws that the Court pointed out, as such legislation “constitutes a violation of the Basic Laws themselves” (ibid., 388) [ibid., para. 3 of my opinion].

We are, therefore, required to examine the constitutionality of the said Law yet again. As is well known, constitutional review is not performed in a vacuum. It is performed against the background of the reality with which it was intended to contend (see: the Adam case, para. 1 of the opinion of Justice U. Vogelman). As described above, the provisions of the Law that are being challenged in these proceedings comprise means that the State employed as part of an attempt to contend with the infiltration phenomenon. According to the data before us, the magnitude of this phenomenon is in a downward trend. However, inasmuch as the number of infiltrators living in Israel is still large, the need to contend with the challenges that derive therefrom still remains. It is against this background that I will begin my constitutional examination.

23.       In principle, constitutional review is performed in stages. First, we must examine whether the law infringes a protected human right. If the answer is negative, then the constitutional examination comes to an end. If the answer is positive, then we must examine whether it is lawful in accordance with the criteria of the Limitation Clause (see, for example: HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 594 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: the Prison Privatization case)). These rules are based upon the constitutional view that constitutionally protected human rights are relative, and may be limited where justified.

24.       The Limitation Clause establishes four cumulative conditions that a violating law must meet in order for the infringement to be lawful. First, constitutional rights cannot be infringed except by a law that befits the values of the State of Israel as a Jewish and democratic state. Additionally, the law must serve a proper purpose. In brief, a purpose is proper if it is intended to realize important public interests (see, for example: HCJ 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2205); HCJ 6784/06 Major Schlitner v. IDF Director of Pension Payment, para. 78 of the opinion of Justice A. Procaccia (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of a statute is tested by means of three subtests.  The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r...(hereinafter: the Adalah case); HCJ 6133/14 Gurevitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gurevitz case); Aharon Barak Proportionality in Law –Constitutional Rights and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality). The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. The legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 24; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of the opinion of Justice E. Arbel (September 17, 2014)).  The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit derived from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based upon a balance between rights and interests. It calculates the social importance of the infringed right, the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of the opinion of Justice A. Procaccia (September 2, 2010); HCJ 6055/95 Tzemach v. Minister of Defence, IsrSC 53(1) 241, 273 (1999) (hereinafter: the Tzemach case) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]).

If the Court concludes that the statute does not meet the conditions of the Limitation Clause, then it is unconstitutional. In such a case, the Court must determine how to remedy the unconstitutionality (see, for example: HCJ 2334/02 Shtanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792, para. 5 of the opinion of President A. Barak (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

25.       I will now turn from general principles to the constitutional review of the Law that is the subject of these proceedings. First I will examine sec. 30A of the Law, by virtue of which infiltrators may be held in detention for three months. I will then examine Chapter D of the Law, which rearranges the operation of the residency center for infiltrators.

 

Section 30A of the Law – General

26.       The point of departure for the examination is sec. 30(a) of the Law, which authorizes the Minister of Defence to issue a deportation order to an infiltrator. The deportation order serves as legal grounds for holding the infiltrator in custody until his deportation, subject to various provisos (also see: the Eitan case, para. 42). Section 30A of the Law, which was reviewed in the Adam case, allowed for the custody of an infiltrator against whom a deportation order was issued for a maximum period of three years. Section 30A, as worded in Amendment 4, and which was reviewed in the Eitan case, established a shorter, one-year maximum period for detention. The section currently under review again shortened the maximum period of custody, setting it at three months. Section 30A states:

Bringing before the Director of Border Control and his Authorities (Temporary order) 5774-2013)

30(A)(a) An infiltrator located in detention will be brought before the Director of Border Control no later than five days from the beginning of his being taken in custody.

(b) The Director of Border Control may release an infiltrator with a monetary guarantee, with a bank guarantee, or another suitable guarantee, or on conditions that he shall deem appropriate (in this law – guarantee), if he is convinced of one of the following:

(1) Due to the infiltrator’s age or to his physical condition, including his mental health, his being held in custody is likely to harm his health as aforesaid, and there is no other way to prevent the aforesaid harm;

(2) There are other, special humanitarian grounds from those stated in paragraph (1) justifying the release of the infiltrator with a guarantee, including if as a result of his being held in custody, a minor will be left unsupervised;

(3) The infiltrator is a minor who is unaccompanied by his family members or a guardian;

(4) His release will assist in the infiltrator’s deportation proceedings;

(5) If 60 days have passed from the date when the infiltrator filed a request for a visa and permit for residence in Israel under the Entry into Israel Law and processing of the request has not yet begun.

(c) The Director of Border Control is authorized to release an infiltrator with guarantee if three months have passed from the beginning of the infiltrator’s being held in custody.

(d) Notwithstanding the provisions of subparagraph (b)(2) or (4) or (5), an infiltrator will not be released with guarantee if the Director of Border Control is convinced of the existence of one of the following:

(1) His deportation from Israel is prevented or delayed due to a lack of full cooperation on his part, including in regard to the matter of verifying his identity or arranging the proceedings for his deportation from Israel;

(2) His release would endanger national security, public order or public health. In this regard, the Director of Border Control may rely upon an opinion of the authorized security agencies that activity that may threaten the security of the State of Israel or its citizens is being carried out in the infiltrator’s country of origin or the area of his residence, unless the Director of Border Control is convinced that due to his age or his state of health, holding him in custody is likely to harm his health and there is no other way to prevent this aforesaid harm.

(e) His release with guarantee from detention will be contingent on conditions which the Director of Border Control shall determine in order to ensure the appearance of the infiltrator for deportation from Israel on the determined date, or for other proceedings according to law. The Director of Border Control may, at any time, review the guarantee conditions if new facts be discovered or if the circumstances have changed since the decision to release upon guarantee was rendered.

(f) In regard to an infiltrator released from detention with a guarantee according to this section, the decision regarding his release with a guarantee will be deemed a legal credential for his stay in Israel for the period of his release under guarantee. The validity of this decision regarding release upon guarantee is contingent upon meeting the conditions for release as aforesaid.

(g) Where a guarantor requests to cancel the guarantee that he provided, the Director of Border Control may grant the request or reject it, provided that his decision will ensure the reporting of the infiltrator by supplying a different guarantee. If it is not possible to ensure the appearance of the infiltrator by supplying a different guarantee, the infiltrator will be returned to custody.

(h) If an infiltrator is deported from Israel at the time determined, he and his guarantors will be released from their guarantee and the monetary guarantee will be returned, as may be the case.

(i) If the Director of Border Control discovers that the infiltrator released upon guarantee violated or was about to violate one of the conditions of his release upon guarantee, he is may instruct by order that the infiltrator be returned to custody, and he may order the confiscation or realization of the guarantee.

(j) No order will be given to confiscate or realize a guarantee as aforesaid in subsection (i) until after the infiltrator or guarantor, as the case may be, has been given an opportunity to present his arguments,  if it is reasonably possible to locate him.

(k) If the Director of Border Control ordered an infiltrator’s release upon guarantee in accordance with this section, and the conditions for granting an order for the infiltrator to stay under section 32D are met, the Director shall issue a residence order staying as stated in that section.

Like the arrangement under Amendment 4 that we reviewed, sec. 30A in its current form regulates the authorities of the Director in all that relates to holding in custody and release from custody. As in the past, the arrangement was enacted in the framework of a temporary order in force for three years, and its incidence is prospective (sec. 8(b) of the Amendment to the Law).

27.       As noted, sec. 30A authorizes the Director to hold an infiltrator in custody for a maximum period of three months (sec. 30A(c) of the Law), subject to the grounds for release upon guarantee, among them the age of the infiltrator, his state of health or other humanitarian considerations (sec. 30A(b) of the Law). In addition, if the infiltrator filed an application for an Israeli residency permit and the processing of the request has not yet begun sixty days following its submission, this will constitute additional grounds for release on guarantee. Along with this, sec. 30A permits holding an infiltrator in custody for a longer period if he does not cooperate in his deportation or if his release poses a threat. All of the above applies unless the Director is convinced that due to the individual circumstances of the infiltrator, holding him in custody is likely to harm his health (sec. 30A(d) of the Law). An infiltrator held in custody must be brought before the Detention Review Tribunal (hereinafter: the Tribunal) no later than ten days from the beginning of his being held (sec. 30E(1) of the Law). If the Tribunal approves holding the infiltrator in custody, he will be brought for periodic review of his matter within a period that will not exceed thirty days (sec. 30D of the Law). The Tribunal’s decision is subject to appeal before an administrative affairs court (sec. 30F of the Law).

28.       These, in brief, are the provisions concerning holding an infiltrator in detention and release therefrom. The main difference between these provisions and those that we examined in the Eitan case is the maximum period of time that an infiltrator may be held in detention. While, as noted, Amendment 4 permitted holding an infiltrator for a year, the current arrangement restricts the period of detention to three months. Similarly, the period until the supervised release of an infiltrator whose request for a residency permit has not begun to be processed was reduced from three months to sixty days. In addition, grounds for supervised release based upon the infiltrator’s state of mental health were added (sec. 30A(b)(1), and other grounds for supervised release, which concerned the period of time until the rendering of a decision on the residency request, were cancelled.

29.       The Petitioners argue that even in its present form, sec. 30A does not meet the criteria of the Limitation Clause. They argue that this arrangement – like that examined in the Eitan case – permits holding an infiltrator in detention without regard for whether there is any effective possibility of his removal. According to the Petitioners, this can be understood from the Knesset’s decision not to include an express provision in the Law that an infiltrator be released from detention if, at the conclusion of the identification process, there is no practical possibility of removing him from Israel within a reasonable period of time. They argue that this shows that the purpose of sec. 30A is not to determine the identity of the infiltrators and exhaust the existing avenues for their removal, but rather to deter potential infiltrators. The Petitioners are of the opinion that deterrence is not a proper purpose. They therefore argue that sec. 30A in its present form must also be annulled.

30.       In its response, the State argues that sec. 30A was enacted for a proper purpose, and that it does not infringe rights beyond what is necessary. According to the State, the main purpose of the section is the exhausting of procedures for the identification of the infiltrator, and providing the necessary time for establishing avenues for his removal from Israel. In view of this purpose, the State is of the opinion that the three-month period established in the Law is proportionate.

31.       In its response, the Knesset joined the position of the State that sec. 30 is constitutional. The Knesset notes that while the section is also premised upon the additional purpose of reducing incentives for potential infiltrators to reach Israel – regarding which the Court expressed doubt as to its constituting a proper purpose – inasmuch as the period of custody is consistent with achieving the purposes of identification and exhausting avenues for removal, it is of the opinion that the present arrangement’s infringement of rights does not exceed what is necessary. Finally, the Knesset argues that even though the present arrangement does not expressly include grounds for release in circumstances in which the process of identifying a particular infiltrator and the examination of avenues for his deportation have been exhausted, it would be better to interpret the arrangement in a manner that is consistent with the Basic Laws than to annul it.

            After considering the arguments of the parties, I have reached the conclusion that, subject to the interpretation that will be presented below as to the arrangement for custody, the petition should be denied in this regard.

 

Infringement of Constitutional Rights

32.       That sec. 30A infringes the infiltrators’ constitutional right to liberty is undisputed. Bearing in mind that in the previous proceedings the Court addressed the importance of the right to liberty at length (the Adam case, paras. 71-76; the Eitan case, para. 46), I will suffice with a summary. The right to personal liberty is established in sec. 5 of Basic Law: Human Dignity and Liberty, according to which: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. The right to liberty is granted to every person present in Israel, even if he entered its territory illegally. This right “[…] is one of the foundations of the democratic regime” (the Eitan case, para. 46; and see, for example: the Prison Privatization case, at pp. 597-598). Holding an infiltrator in detention violates his right to physical liberty, which also has consequences for other rights. Along with the violation of the right to liberty, holding an infiltrator in detention also violates his right to dignity (the Eitan case, para. 47). Of course, shortening the period of detention does not, itself, eliminate the said violation of the constitutional rights of the infiltrators.

33.       When constitutional rights are violated, we must ascertain whether the infringement is lawful. The first condition – that the infringement is effected by a law – is met. In the present proceedings – as in the previous proceedings – the parties did not expand upon the second condition, which concerns the Law’s consistency with the values of the State of Israel. Therefore, I will proceed upon the assumption that this condition is met, and I will turn to the additional criteria of the Limitation Clause – whether the provisions of the infringing law were intended for a proper purpose, and whether the infringement is not greater than necessary.

 

The Purpose of Detention

34.       In its response and in the course of the hearing, the State declared, as noted, that the primary purpose of sec. 30A is “to exhaust the procedures for identifying the infiltrator, and the allowing the necessary time for the State to arrange avenues for voluntary emigration or deportation from Israel” (para. 119). As held in the Eitan case, the purpose of removal, itself, is proper. “Who will be permitted to enter the territory of the state is a question of a purely sovereign character. The state enjoys a broad prerogative to decide who will enter its gates, for how long, and under what conditions, in a manner that will permit its proper conduct and the protection of the rights of its citizens and residents” (the Eitan case, para. 51). Holding an infiltrator in detention in order to determine his identity and for the purpose of exhausting avenues for his removal from Israel is consistent with the case law, according to which a person cannot be held in detention if it is not possible to deport him within a certain period of time. Indeed, “[…] the validity of an arrest by virtue of a deportation order does not persist in the absence of an effective removal proceeding” (the Adam case, para. 2 of my opinion; and see: HCJ 4702/94 Al Tai v. Minister of the Interior, IsrSC 49(3) 843, 851 (1995) (hereinafter: the Al Tai case)). This Court reiterated this rule in the Eitan case:

This is the rule that has been established in our case law and there is no other: holding a person in detention requires that there be an effective removal process. In order to deny a person’s liberty for the purpose of his removal, a general declaration that the state intends to do so is not sufficient. What is required is consistent activity whose purpose is to achieve an avenue for deportation in due course (para. 199).

It is therefore possible to hold infiltrators in detention if that is necessary in order to identify them and exhaust the avenues for their removal (and see: Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law 462 (3^rd ed.) (Oxford University Press, 2009) (hereinafter: Goodwin-Gill and McAdam, Refugee)).

35.       Another underlying purpose of the detention arrangement concerns creating a “normative barrier…that will reduce the motivation of potential infiltrators to reach Israel” (Explanatory Notes, p. 424). The meaning of this purpose is general deterrence (the Eitan case, para. 52). I referred to the purpose of deterrence in the Eitan case, noting that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). Nevertheless, there is nothing wrong with a purpose of deterrence when it is attendant to another legitimate purpose. As held in HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (20020 [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]:

The military commander may not, therefore, adopt a measure of assigned residence merely as a deterrent to others. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander’s taking into account considerations of deterring others [para. 27].

While this was stated in a different context, it is nevertheless appropriate to the matter before us. It was similarly held in the Eitan case that “there is nothing wrong with the fact that detention of an infiltrator, intended to advance the process of his deportation, has an accompanying deterrent effect…however, that should not be understood as meaning that an infiltrator can be held in detention for the purpose of deterring others even after his identity has been established, and even after it is found that there is no effective possibility of removing him from the country” (para. 52; and compare the opinion of Justice I. Amit, ibid.).

36.       Bearing in mind that sec. 30A is grounded upon two purposes, we must consider the relationship between them and focus upon the dominant of the two (the Adalah case, p. 319). Indeed, “[…] Knesset legislation may have more than one purpose. Our case law has previously held that that in a situation in which a law has several intertwined purposes, great weight will be given to its dominant purpose, and it will be the focus of the judicial review. Nevertheless, the other, secondary purposes of the law should not be ignored, and their consequences for human rights will also be examined” (HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 and the citations there (2002)).

37.       What, then, is the dominant purpose of sec. 30A? An examination of the legislative history of this section shows that the primary purpose is the identification of the infiltrator and the exhausting of avenues for his removal from Israel, while deterrence is at most a secondary, attendant purpose. Thus, the purpose of identification and exhausting avenues of removal is granted a central place in the Explanatory Notes to sec. 30A:

Establishing a three-month period of detention […] is necessary, inter alia, in order to exhaust the procedures for identifying and deporting the infiltrator, among them identifying his place of origin, arranging travel documents for him, and exhausting avenues for his emigration or removal from Israel (Explanatory Notes, p. 425; emphasis added – M.N.).

The importance of this purpose can also be seen in the statement by the Minister of the Interior in the course of the deliberations of the Internal Affairs and Environment Committee on the bill:

I think that the framework that we are presenting today, of 3 months of detention, we will argue here about what that means. With all due respect, the Knesset can define what it sees as the efficacy of the procedure for examining the removal. I don’t know that the Even-Shoshan Dictionary, Mr. Knesset Legal Advisor, precisely defines what is the efficacy of the examination of the removal […] we are very interested that the procedure be effective. We need time. It is very difficult when legal advisors define for us unscientific formulas for what constitutes the time for the effectiveness of a removal procedure. I thought that three months would not necessarily be enough for us (Protocol of Session No. 428 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 7 (Dec. 2, 2014)).

The Knesset also argued in its response that in examining the constitutionality of sec. 30A of the Law, it is sufficient to focus upon the purpose of identification and removal (para. 88). According to its approach, the need for a process of identification of infiltrators and the exhausting of avenues for their removal from Israel is therefore at the base of sec. 30A of the Law in its current language. In the hearing before us, the State also emphasized that according to its approach, this is the primary purpose of this arrangement.

38.       Locating the dominant purpose does not suffice with an examination of the legislative history of the law. The question whether a particular purpose is the dominant purpose of the law is also examined in light of the specific arrangements that it establishes (compare: the Adalah case, pp. 336-339). Can the primary purpose of sec. 30A be discerned from its arrangements? According to the Petitioners, the current Law – like the arrangement that we reviewed in the Eitan and Adam cases – does not make holding an infiltrator in custody contingent upon identification or removal proceedings. They argue that in the absence of a clear connection in the Law between detention and the reasonable possibility of removal, “the real purpose of this section [sec. 30A – M.N.]” is the improper purpose of deterrence. As opposed to this, the Respondents first argued in the context of this petition that the present arrangement can be interpreted in a manner that establishes a clear relationship between holding in custody and the identification of the infiltrator and the existence of an effective removal process. After considering the parties’ arguments, I am of the opinion that in view of the present legislative framework, we should accept the position of the Respondents.

39.       There is no dispute that there is a facial connection between holding the infiltrator in detention and the purpose of his identification and the exhaustion of avenues for his removal from Israel. We addressed this in the Eitan case:

No one disputes that holding an infiltrator in detention facilitates the possibility of his identification in an orderly, controlled procedure, which is a matter of great importance against the background of the special characteristics of the infiltrator population which did not enter by means of regular border crossings and official identity documents. It is also clear that detention aids in carrying out the procedures for deportation from Israel, in that it ensures that the person will not “disappear”, and it saves the possible pursuant problems of locating him (and compare: sec. 13F(a)(2) of the Entry into Israel Law) [ibid., para. 54].

Moreover, I believe that there are grounds for stating that under the present Law, holding a person in detention is subject to this purpose. The starting point is in the provision of sec. 30(a) of the Law, which empowers the Minister of Defence to order in writing that an infiltrator be deported, and establishes that a deportation order will serve as legal grounds for holding him in detention until his deportation. Authority to hold an infiltrator in detention is therefore contingent upon the existence of a deportation order. Similar authority – permitting the holding of a person who is not lawfully present in the country in detention, subject to the issuance of a deportation order – can also be found in the Entry into Israel Law. The time periods for detention are similar in the two laws (three months in the present Law and sixty days in the Entry into Israel Law). I accept the view of the Respondents that the difference in the time periods stems from the complexity of the process of ascertaining the identity of infiltrators who, as opposed to others unlawfully present in the country, did not enter through a border control station. Often, infiltrators carry no identification papers, and significant factual disputes arise as to their country of origin (see, for example: AAA 6694/13 Gidai v. Ministry of the Interior – State of Israel (Feb. 15, 2015); AP 37598-06-10 (Central District) Gebremaiam v. Ministry of the Interior (July 6, 2010)). In view of the arrest’s contingency upon the issuance of a deportation order, the case law has construed the arrest authority in the Entry into Israel Law as auxiliary to the deportation authority, the purpose of which is to ensure that the detainee will leave Israel (see: HCJ 1468/90 Ben Yisrael v. Minister of the Interior, IsrSC 44(4) 149, 151-152 (1990) (hereinafter: the Ben Yisrael case); LAA 696/06 Elkanov v. Detention Review Tribunal, para. 16 (Dec. 18, 2006)). This is so even though this Law does not comprise an express provision connecting the person’s arrest to the possibility of his deportation. In view of the similarity of the arrangement under review and that established under the Entry into Israel Law, I believe that we can apply that rule to this case by analogy. My conclusion is further supported by the provisions of secs. 30D and 30E of the present Law, which make holding an infiltrator in detention subject to periodic review within no more than thirty days. The requirement of periodic review of the detained person helps ensure that there are still grounds for holding him in detention, and supports the conclusion that the detention is intended to aid in the process of the infiltrator’s deportation. Deterrence is but ancillary thereto (see and compare: the Eitan case, para. 199).

40.       The said provisions were also included in the arrangement that was presented for our review in the Eitan case. Nonetheless, the Eitan case held that there was a gap between the arrangement under sec. 30A of the Law and the declared purpose of detention – identifying the infiltrator and arranging avenues for his exit from Israel. That finding was based upon the absence of relevant arrangements such as an express provision conditioning the continued detention of an infiltrator upon the existence of “a prospect of removal that is expected to be realized within a reasonable time” (the Eitan case, paras. 55, 199; and see the Adam case, para. 34 of the opinion of Justice U. Vogelman). The legislative arrangement now before us also lacks an express provision that makes detention of an infiltrator contingent upon the existence of a possibility of his removal. However, I believe that the shortening of the period of detention now – as opposed to in the Eitan case – makes it possible to construe the Law in the manner proposed by the Knesset. In the Eitan case, Justice U. Vogelman was willing to assume that an interpretive path could be adopted, but he did not see “how, in this matter, confronted by a legislative provision establishing a one-year period for detention…it is possible to refrain from invalidating it” (para. 202). He further held that “a section of the law that authorizes a person to hold someone in detention for an extended period for the purpose of his deportation (as opposed to the limited timeframe of the Entry into Israel Law) must express the connection between the removal process and the detention” (para. 199, emphasis added – M.N.). As opposed to the arrangement under review in the Eitan case, the new timeframe for detention is similar to the timeframe under the Entry into Israel Law. The period is also not exceptional in comparison to those found in other countries for the purpose of identifying the infiltrator and exhausting avenues for deportation. Most western countries limit the period for detaining illegal aliens awaiting deportation to a period of a few months. In the absence of special circumstances, the accepted time periods average between one and six months (for details: see the Eitan case, paras. 73-77; for an up-to-date survey of the average period of detention for illegal aliens in Europe, see: The Use of Detention and Alternatives to Detention in the Context of Immigration Policies, Synthesis Report for the EMN Focused Study (2014)). A maximum period of three months does not, therefore, deviate from what is acceptable in most countries in which the purpose of detention is similar to the declared purpose in the matter before us (compare: the Eitan case, para. 72).

41.       In view of all the above, my conclusion is that the provisions of the current Law – like the provisions of the Entry into Israel Law – can be understood as intended for the identification of the infiltrator and for exhausting avenues for his removal from Israel. Therefore, if it is found that the continued detention of an infiltrator cannot serve the purpose of identification and removal, then there will be no justification for his continued detention. That will be the case even if three months have not passed since the beginning of his detention, for otherwise it would be possible to hold a person under arrest arbitrarily. Such a result would not be consistent with the fundamental principles of our legal regime. We ruled similarly in regard to the Entry into Israel Law:

From an examination of this section [sec. 13 of the Entry into Israel Law as then worded – M.N.] it is manifest that the purpose of the detention mentioned in subpara. (3) of the section [establishing that a person in regard to whom a deportation order has been issued may be detained until he leaves Israel or is deported – M.N.] is to ensure the exit of a person against whom a deportation order from Israel has been issued, or until his deportation therefrom…the sole source of authority for the detention of the Petitioner, according to the Respondents before us, is the provision of sec. 13(c) of the law. Having found that the continued detention of the Petitioner cannot serve the purpose for which it was permitted under sec. 13(c), there is no further justification for holding him under detention. (The Ben Yisrael case, at pp. 151-152, emphasis added – M.N.).

In that case, the Court held that it is possible to continue to detain an illegal alien as long as the detention is intended to serve the purpose for which it was originally instituted. That holding – based upon the purpose grounding the detention authority – was made despite the fact that the Entry into Israel Law does not comprise a relevant cause for release from detention (CA 9656/08 State of Israel v. Saidi, para. 26 (Dec. 15, 2011); and see: the Al Tai case, at p. 851; HCJ 199/53 A. v. Minister of the Interior, IsrSC 8 243, 247 (1954)). This is appropriate here, as well.

42.       In addition, the choice of this interpretive possibility is consistent with one of the principles of our constitutional law according to which – to the extent possible – an interpretation that realizes the law is preferable to its voidance (see, for example: HCJ 5462/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793, 808, 812 (1996) (hereinafter: the Zandberg case); HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 49(4) 241, 257-258, 276 (2004) [http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housi... CA 6659/06 A. v. State of Israel, para. 8 (June 11, 2008)). It is also consistent with the principle cessante ratione legis cessat ipse lex – the rationale of a legal rule no longer being applicable, that rule itself no longer applies (Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (hereinafter: the Zadvydas case)).

43.       This approach is not unique to our system. The courts of other countries have also adopted a narrow construction of the authority to detain asylum seekers and illegal aliens. The most salient example – noted in both the Adam and Eitan cases – is the United States Supreme Court’s decision in the Zadvydas case. That case addressed the constitutionality of and American legal arrangement that permitted the detention of an illegal alien beyond the “regular” ninety-day period established by law in cases in which, for some reason, he was not deported. Inasmuch as the period of detention was not delimited, it appeared that detention could be indefinite. The Supreme Court (per Justice Breyer) interpreted the authority in accordance with its purpose – ensuring deportation – and held that a person could be detained only for the period of time necessary for his deportation, and only if there is an effective means for his removal (ibid., p. 699-700). Therefore, as a rule, supervised release of the alien should be ordered at the end of that period (ibid., p. 701). A similar ruling was made by the Australian Supreme Court (Plaintiff S4-2014 v. Minister for Immigration and Border Protection, paras. 21-35 [2014] HCA 34).

44.       The interpretive conclusion that I presented above is also consistent with the provisions of international law. Under secs. 9, 26 and 31 of the Refugee Convention, a state may – subject to demands of necessity and proportionality – impose restrictions upon the freedom of movement of asylum seekers (and see: The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Andreas Zimmerman, ed., 2011) 1243, 1268 (hereinafter: Commentary to the Refugees Convention); R. v. Uxbridge Magistrates Court & Another Ex Parte Adimi [1999] EWHC 765, para. 26; Goodwin-Gill and McAdam, Refugees, at 522; The UN Refugee Agency [UNHCR], Alternatives to Detention of Asylum Seekers and Refugees, April 2006, POLAS/2006/03, at 6, para. 18 (hereinafter: UNCHR, Alternatives to Detention)). Although these sections treat of restrictions upon freedom of movement, according to the accepted interpretation they also apply to the detention of persons who unlawfully entered the state in order to file an asylum application (see, for example: James Hathaway, The Rights of Refugees under International Law 414-418 (Cambridge University Press, 2005) (hereinafter: Hathaway)).

45.       The restriction of the movement of asylum seekers is permitted for achieving lawful purposes under international law (Commentary to the Refugees Convention, p. 1270). Among such lawful purposes, the directives of the UN Commission for Refugees mention, inter alia, preserving public order, including the sense of identifying an unlawfully present person; protecting public health; and protecting national security (The UN Refugee Agency [UNHCR], Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 15-19 (2012) available at http://www.unhcr.org/505b10ee9.html (hereinafter: the Directives); and see: the Adam case, para. 92). The Directives also note that a person may be held in detention in order to ensure his deportation when there is such a possibility, and that detention solely for general deterrence or as punishment is improper (ibid., p 19). In addition, the state is required to evaluate the need for detention on the basis of the individual circumstances of the particular infiltrator, and must not use this means in a sweeping manner (ibid., p. 15; and see: International Law Commission, Draft Articles on the Expulsion of Aliens, art. 19 (2004), http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_12_2014.pdf).

46.       Lastly, the interpretive conclusion in this matter is reinforced in view of the position of the State. In the oral hearing before the Court, the State declared, expressly for the first time, that despite the absence of a provision conditioning the continued detention of an infiltrator upon identification and removal proceedings, it recognizes that the detention authority is subject to a reasonable expectation of removal (Protocol of the Hearing of Feb. 3, 2015, pp. 4-5). This being the case as long as the infiltrator whose matter is being addressed cooperates in the proceedings for his removal from Israel (in this regard, see: sec. 30A(d) above, which permits the continued detention of an infiltrator if he does not cooperate in the proceedings for his deportation from Israel). This declaration by the State is of no insignificant weight in the matter before us.

47.       The Petitioners referred us to the position expressed by the Knesset legal adviser in response to the bill, that it would be appropriate to create a written connection between the detention period and its purpose (Opinion of the Legal Adviser to the Knesset; and see: Position of the legal adviser to the Internal Affairs and Environment Committee, as expressed in the committee’s deliberations on the bill (Protocol of Session No. 429 of the Internal Affairs and Environment Committee of the 19^th Knesset, at pp. 9-10 (Dec. 2, 2014)). The Petitioners complained that no express provision was ultimately included to establish that an infiltrator must be released if there was no reasonable expectation of his removal. I have considered this argument, but I see no reason to change my conclusion in the matter. Although including an express connection between detention and removal procedures would be desirable, my conclusion is, as aforesaid, that the present arrangement allows us to arrive at the same result through interpretation of the statute.

48.       To summarize, I am of the opinion that viewing the matter in its entirety – the purpose of the Law, the shortening of the maximum period of detention, and the declarations of the Respondents – it is possible to interpret the Law in a manner that establishes the missing connection. I am aware that this interpretive result differs from our decisions in previous proceedings. However, adopting this interpretive approach – which is reasonable and possible in the present case – was not possible in regard to the arrangement reviewed in the Eitan case (see, ibid., para. 200-201; and see: the Zandberg case, p. 813). This is so because the previous maximum detention period was not consistent with the declared purpose of the Law. Had this interpretation been applied in the Eitan case, it would have allowed a person to be held in detention for an unreasonably long period. As a result, Justice U. Vogelman noted in the Eitan case: “I agree with the view of my colleague [President A. Grunis – M.N.] according to which an interpretive effort must be made in order to refrain from voiding Knesset legislation. However, in this case in which we are confronted with a legislative provision that establishes a one-year period for detention (a period that is, in my view, disproportionate), I do not see how we can refrain from voiding it (ibid., para. 202; and see: para. 2 of my opinion in the Eitan case). As noted, the matter is different in the case before us. As explained in detail above, the maximum period established by the law now under review is a relatively shorter period that is consistent with and supports the purpose of the Law.

49.       Against this background, and in reliance upon the interpretation outlined for the Law, I will now turn to an examination based upon the proportionality tests.

 

The Proportionality Tests

50.       As I will explain, I am of the opinion that in view of the interpretation of the Law, sec. 30A passes the proportionality tests. In the Eitan case, we expressed doubt as to whether the legislative approach under review actually presented a rational connection between detention and realizing the legislative purpose. That was so in view of the absence of an express provision conditioning the continued detention of an infiltrator upon the reasonable expectation of his removal from Israel. This problem was resolved in this case. Given the relationship between detaining an infiltrator and the existence of an identification process and the exhausting of avenues for deportation, it is difficult to argue that the Law currently under review does not meet the rational connection test. The current Law also meets the second proportionality test – the less harmful means test. Although there are various possible alternatives to detention, foremost among them open or semi-open residency centers, those alternatives do not realize the purpose of the Law to a similar degree of effectiveness (the Eitan case, paras. 60-66). It therefore remains to examine the Law under the proportionality stricto sensu test, which is the primary test in the matter before us.

51.       As noted, the third proportionality test examines whether there is an appropriate relationship between the benefit that will accrue to the public from the legislation and the infringement of the constitutional right that will be caused by its implementation. In the Eitan case, we explained that even though the arrangement established under sec. 30A benefits the public, its benefit is limited. On that basis, we held that the Law as then worded infringed constitutional rights to a greater extent than was necessary. That conclusion was founded upon two primary pillars: First, the Law’s “default position” was that persons unlawfully present could be detained for a maximum period of one year when there was no possibility of their removal. Second, the holding that even on the assumption that the detention of an infiltrator was subject to the conducting of effective removal proceedings, a detention period of up to one year was disproportionately long. We therefore found (para. 71):

Such detention is permissible only in order to protect the state’s sovereignty, for the purpose of the removal of those who are unlawfully present from the country. It cannot be implemented as a punitive act that is not part of a criminal process. In accordance with the demands of the Limitation Clause, it must be implemented only when necessary, when there is no alternative means, and for a proportionate period of time.

Against the background of our holding in the Eitan case, I am of the opinion that the current Law also meets the third proportionality test. Shortening the maximum detention period, subject to the purpose I addressed above, significantly reduces the infringement of the rights of the infiltrators. As aforesaid, a three-month period is not exceptional, both in comparison to other arrangements in Israeli law of similar purpose, as well as in comparison to similar arrangements in various other western states. It would appear that no one would argue that detention, even for a short period, does not seriously infringe the rights of the detainee. However, when we are concerned with a maximum period of a few months – and bearing in mind that detaining the infiltrator serves a purpose recognized as proper by our legal system, by international law, and in comparative law – there are now, subject to this interpretation, no grounds for our intervention.

52.       We have twice held that the Law’s provision in regard to the detention of infiltrators does not pass the tests for constitutionality. The language now before us – interpreted in a manner agreeable, in practice, to the Petitioners – meets the requirements of the Limitations Clause and should not be voided.

 

Chapter D of the Law – General

53.       Chapter D was added to the Law in the framework of Amendment 4, and the “Holot” residency center was erected by virtue of this chapter. The voiding of Chapter 4 in the Eitan case marked this Court’s first intervention in the provisions of the Law regarding a residency center. The particular arrangements and practical operation of the “Holot” residency center prior to its voidance were described in detail in the Eitan case. The prior language of Chapter D authorized the Director to order that an infiltrator concerning whom there was difficulty in regard to deportation present himself at the residency center. As opposed to the provisions of sec. 30A of the Law, which are of prospective force, the above authority could also be exercised in regard to infiltrators who were already in Israel. In addition, the Director was not required to set a time limit for remaining in the residency center. Thus, an infiltrator ordered to a residency could have remained there until Amendment 4 – which was enacted as a temporary order for three years – lapsed. In theory, if the temporary order were to be extended, an infiltrator could remain in the center indefinitely (see: the Eitan case, paras. 149, 151). The prior law also did not establish grounds for release from the residency center, or any provision requiring that the Director exempt any special populations from residing in the residency center. Those residing in the center were required to report for registration three times a day – in the morning, afternoon, and evening. The center was closed at night. The center was operated by specially trained personnel from the Prisons Service who were granted broad enforcement powers, such as the power to detain, search and seize. Along with those powers, the Director was granted authority to transfer residents who violated various of the center’s rules to detention.

54.       After we ordered the voiding of Chapter 4 in the Eitan case, it was reenacted in the framework of the Law now under review. Like the prior law, the current language of Chapter D authorizes the Minister of Public Security to designate by order that a particular place serve as a residency center for infiltrators (sec. 32B of the Law), and arranges the manner of operation of the residency center and its rules. Most of the particular arrangements have remained unchanged. Thus, the Director may order residency in the residency center for any infiltrator regarding whom there is a problem “of any sort” in regard to deportation to his country of origin, including infiltrators already present in the state’s territory and infiltrators in detention by virtue of sec. 30A of the Law (secs. 32D and 30D(d) of the Law). In accordance with these provisions, the Director of the Population and Immigration Authority issued a directive under which Sudanese nationals who had infiltrated into Israel prior to May 31, 2011, and Eritrean nationals who had infiltrated into Israel prior to May 31, 2009 were to be relocated to the residency center (Appendix R/6 of the State’s response). In their request for an order nisi, filed on July 20, 2015, the Petitioners noted that updated criteria were published on July 14, 2015. According to those criteria, as of July 19, 2015, Sudanese nationals who had infiltrated Israel prior to Dec. 31, 2011, and Eritrean nationals who had infiltrated Israel prior to July 31, 2011 would be relocated to the residency center (http://www.piba.gov.il/ SpokesmanshipMessagess/ Documents/ holot_criteria_14072015.pdf). The residency center continues to be run by the Prisons Authority; the detention, search and seizure authority granted to the corrections officers remains the same; and the authority of the Director to order transfer to detention has not been entirely cancelled. As opposed to this, Chapter D in its current form differs from the prior format in several aspects: the period of residency in the center has been limited (up to twenty months); the requirement of presence in the center over the course of the day has been reduced; the Director’s authority to order the transfer of a person from the residency center to detention has been restricted; the Director has been authorized to release a person from the residency center in various situations; and certain populations, such as children, women, and victims of certain offenses, were excepted from its application.

55.       The maximum capacity of the Holot residency center is 3,360 people, as in the past. According to the supplementary affidavit, as of Feb. 9, 2015, there were 1,950 infiltrators in the center, of whom 76% were Sudanese nationals while the remaining 24% were Eritrean nationals. Also, as of that date, the maximum period during which infiltrators resided in Holot was twenty-four months. According to the affidavit, more than 60% of the residents of Holot infiltrated into Israel before 2008, and 1,521 filed applications for asylum with the RSD, of which about half were filed after the beginning of residency in the center. According to the Population and Immigration Authority, the asylum applications of the residents are given priority.

56.       The nature of the living conditions in the residency center is disputed by the parties. According to the Petitioners, the conditions in the center are very basic, the structure of the living quarters does not allow privacy and the employment possibilities are few and poor. Additionally, the Petitioners complain of the medical and welfare services in the residency center, of the quality of the food supplied, and of the amount of pocket money allotted to the residents. As opposed to this, the State argues that there are recreational activities and educational frameworks, and that medical and welfare services are provided. The State further notes that each wing of the residency center – which houses 140 residents – has a recreation center that operates all day, and the residency center has two libraries, an athletics field, a laundry and a grocery in which the price of goods is controlled. In addition, the State noted that sec. 32G of the Law, and the Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015, promulgated thereunder, arrange for the possibility of working in the area of the residency center for payment set in the regulations. There is an employment office in the residency center, and the residents are offered work, inter alia, in maintenance and cleaning of the center, in supply and in the laundry. However, the State claims that the rate of participation in the various activities offered to the residents and the rate of employment in the framework of the residency center are extremely low (see and compare: the Eitan case, paras. 91-96).

            Against this background, I will proceed to examine the claims of the parties in regard to the constitutionality of Chapter D in its present form. But first a few words of introduction.

57.       In my opinion in the Eitan case, I wrote: “The State faces a reality that it is compelled to confront. That confrontation poses problems and attendant challenges. These challenges require creative solutions. This can be the state’s finest hour, in which, facing a compelled reality, it will succeed in finding humane solutions, solutions that are not only consistent with international law, but also with Jewish values”. Inter alia, I suggested changing the residency facility into a voluntary, open residency center.

            I will not deny that the residency center erected in Holot is not what I had in mind when I wrote that. As a citizen, I would be happy to see my state show more compassion, even to those suspected of infiltrating into Israel to find sustenance. However, just as we do not examine the wisdom of the law, we do not place ourselves in the place of the legislature. Our role is to examine the constitutionality of the law. I will begin by stating that after examining the provisions of Chapter D, I have concluded that, with the exception of the maximum period of residence in the center, Chapter D meets – sometimes just barely – the criteria of the Limitation Clause.

 

The Infringement of Constitutional Rights

58.       There is no disputing that the arrangements established in Chapter D of the Law infringe constitutional rights. However, the parties disagree as to the type of infringement, its intensity, and its scope. According to the Petitioners, the various arrangements on Chapter D – that set out the obligation to remain in a residency center and its scope – constitute a harsh, independent infringement of the constitutional right to liberty. Despite the changes made in the Law, they argue that staying in a residency center means staying there. In other words, it is a facility whose characteristics are more like those of a detention facility than an “open” or “semi-open” residency center. For its part, the State does not dispute that Chapter D, by its current language, continues to restrict the constitutional right to liberty. However, it argues that the changes made in the Law reduce “the restriction imposed upon the resident’s ability to realize his liberty substantially, such that the obligation to stay there in a manner that infringes the right to liberty is only at night…”. The State further argues that “Chapter D does indeed restrict the right to liberty and thus infringes it. However…the Petitioners’ claim that staying in the residency constitutes a denial of the right to liberty should not be accepted” (para. 103 of the State’s response).

59.       Indeed, changes were introduced into the current language of Chapter D in comparison to its former language. However, while these changes reduce the infringement of the right to liberty, the infringement still exists. The obligation to remain in the residency center is still not given of the resident’s free choice. As such, it infringes the residents’ freedom of movement, as well as amounting to an infringement of their right to liberty. This infringement is reinforced in view of the requirement that the residents of the center report for registration in the evening, and remain there during the night, and in view of the prohibition upon their working outside of its confines. As was held in the Eitan case, every arrangement that forces a person to stay in a particular place, and that requires him to stay there even for part of the day, naturally comprises an infringement of his right to liberty:

Infringement of the right to liberty…is inherent to every facility in which one’s presence is not voluntary. Open residency centers that are not entered voluntarily as a matter of the resident’s free choice, and that require the resident’s presence even if only for part of the day – infringe the right to liberty by their very nature. In the matter before us, the State does not dispute that the residency center restricts the right to liberty, but rather, as noted, it distinguishes between denying the right to liberty and limiting it. I find no virtue in this distinction in regard to the infringement of the right. As A. Barak noted, “Limiting a constitutional right means violating it. Basic Law: Human Dignity and Liberty employs the term ‘violates’ (‘There shall be no violation of rights under this Basic Law…’). As opposed to this, the Canadian Charter and most other modern constitutions employ the term ‘limits’. In my opinion, there is no distinction between the two (Proportionality in Law, p. 135). And as Barak explains:

“The limitation or violation occurs in every situation in which a governmental authority prohibits or prevents the holder of a right from realizing it to its fullest. In this regard, the question of whether the violation is great or small is of no importance, whether it is at the core of the right or its dim edges, whether it is intentional or not, whether it is by action or by omission (where there is a positive duty to protect the right), every violation, regardless of its scope, is unconstitutional unless it is proportionate (ibid., at pp. 135-136)” (ibid., para. 117, emphasis added – M.N.).

So it is in the matter before us, as well. As a rule, the difference between a violation of freedom of movement and a violation of the right to liberty is in the extent of the violation and its force (Ophelia Field, U.N. High Commissioner for Refugees, Div. of Int’l Protection Servs., Alternatives to Detention of Asylum Seekers and Refugees 2, 11-2 U.N. DOC POLAS/2006/03 (April 2006); Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) at 23–25 (¶¶92–95) (1981) (hereinafter: the Guzzardi case); and see: Department of Economics and Social Affairs, Study of the right of everyone to be free from arbitrary arrest, detention and exile (United Nations publication, Sales No. 65.XIV. 2), ¶21)). The changes made in the Law – like the reduction of the requirement of presence, and the restriction upon the length of residency in the residency center – reduced the extent of the violation of constitutional rights. However, it cannot be said that the violation has been so reduced as to leave only the imposition of limits upon freedom of movement.

60.       To summarize this aspect, the current language of Chapter D still significantly infringes the rights of the residents of the residency center – particularly their liberty. That being the case, we must examine whether that infringement can meet the criteria of constitutional review, to which I will now proceed.

 

The Purposes of Chapter D

61.       From the explanatory notes of the Law and the responses of the Respondents we learn that the main purpose of Chapter D of the Law is to stop the permanent settling of the infiltrator population in the urban centers, and to prevent them from working in Israel. Alongside this, the Law is intended to provide an appropriate response to the needs of the infiltrators. Another declared purpose is the creation of a normative block to potential infiltrators.

62.       The Petitioners’ main argument is that the true primary purpose of the Chapter D of the Law is to “break the spirit” of the infiltrators and encourage them to leave Israel (and see: the Petitioners’ pleadings, paras. 4-6). This purpose, they argue, found expression in the deliberations on the bill. They argue that, in any case, reality demonstrates that, in practice, sending infiltrators to the Holot residency center breaks their spirit and leads to their leaving Israel. The Petitioners are of the opinion that the desire to encourage departure from Israel is not a proper purpose, particularly when the efforts are directed at a group of people who cannot be deported. The desire to prevent the infiltrators from settling in the urban centers is also not a proper purpose in their view. The purpose is improper whether it is intended to prevent long-term residence in Israel, or whether it is intended to distance these people from society. Lastly, the Petitioners argue that deterrence is also not a proper purpose.

63.       The Respondents – both the State and the Knesset – are of the opinion that these purposes are proper in that they are “intended…for the benefit of realizing clear societal interests concerning the sovereignty of the State of Israel and its ability to confront the consequences attendant to tens of thousands of infiltrators settling in its cities…” (para. 178 of the State’s response).

 

Preventing Settling

64.       The purpose of preventing infiltrators from settling was addressed in the Adam case, as well as in the Eitan case. In the Adam case, Justice E. Arbel was of the opinion (in the course of addressing the arrangement for detention) that this is a proper purpose. In her view, the state has the “right to decide its immigration policy, which derives from the sovereign character of the state”, from which “even its right to establish measures to confront illegal immigrants, assuming they have not been recognized as refugees” also derives. She was ready to “deem as an important societal objective, the state’s desire to prevent negative consequences…to thwart the possibility of infiltrators to freely establish themselves in any place in the State of Israel, integrate into the labor market, and force the local public to contend with the entry of infiltrators to its midst, with all that it implies” (ibid., para. 84). As opposed to this, in the same case, Justice U. Vogelman was of the opinion that “the question of whether the law’s purposes meet the proper-purpose test, as set out in the case law, raises difficulties”, but he left the matter to be addressed in due course (ibid., para. 19; and see: the Eitan case, para 103). The remaining justices concurred in the opinions of both Justice E. Arbel and Justice U. Vogelman. Therefore, the Adam case did not decide this issue, with the majority preferring to leave the question of whether the purpose was proper for future deliberation in due course.

65.       The question of whether preventing settling is a proper purpose was also left undecided in the Eitan case. Justice U. Vogelman again refrained from deciding the question of proper purpose “against the problem raised”, in his words, “by a purpose concerning the separation of one population from another” (para. 103). Most of the justices – both those who concurred in Justice Vogelman’s majority opinion, and those dissenting – did not address this purpose. Justice S. Joubran was of the opinion that this purpose “in and of itself, is not illegitimate”, noting “that the state’s desire to prevent the settling of infiltrators in the cities is one of the expressions of the immigration policy. This policy inherently involves restrictions of certain basic rights…but this restriction itself does not deny its being a proper purpose. Vital interest underlie this policy. The purpose of these interests expresses protection of society from the negative consequences that may result from the infiltration phenomenon. I view this purpose to be proper […]” (ibid., paras. 7-8). I also noted there (para. 5 of my opinion) that creative solutions are needed to solve the problem of the distress of the residents of south Tel Aviv, such as the orderly delineation of the areas of residence of infiltrators.

66.       Neither the Adam case nor the Eitan case unequivocally found that preventing settling in the urban centers is a proper purpose. It was expressly recognized as such by Justice (Emerita) E. Arbel and Justices N. Hendel and S. Joubran. I also expressed support for adopting means for realizing that purpose. I would propose to my colleagues that we now expressly hold that preventing settling in the urban centers is a proper purpose, for the reasons that I will now present.

67.       The Eitan case noted that many of the infiltrators live in the city of Tel Aviv-Jaffa (particularly in its southern neighborhoods), and that the rest live primarily in Eilat, Ashdod, Ashkelon, Beer Sheba, Petach Tikva, Rishon Lezion, and Ramle (para. 29). The situation created in those aforementioned cities raised – and continues to raise – not inconsequential problems. In my opinion, there if no defect in a law that seeks to reduce those problems by dispersing the infiltrator population. In the Eitan case, I noted, as aforesaid, that it is not wrong for the state to adopt means that would lead to the dispersal of the infiltrators and to easing the burden on Israel’s urban centers.

68.       International law recognizes the challenges posed by the arrival of aliens in a state, and as noted, permits it to adopt various measures – among them measures that restrict their freedom of movement and liberty – in the framework of confronting those challenges (secs. 26 and 31 of the Refugee Convention; also see sec. 9 of the Convention, which establishes a derogation clause that permits states to adopt various measures against asylum seekers in exceptional situations, among them measures that may limit their freedom of movement (Commentary to the Refugee Convention, p. 789)). As described above, the restriction of liberty must serve a lawful purpose, and it must be employed only when necessary.

69.       The purpose of preventing settling in the urban centers – which concerns easing the burden upon the urban center in which there is a significant concentration of aliens – is consistent with these criteria, and accords with the rules of international law. The interest in preventing the concentration of asylum seekers in certain cities stood at the base of various measures that restrict the freedom of movement of asylum seekers in Norway (see: UNHCR, Alternatives to Detention, p. 165), Switzerland (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Switzerland, at 52, AIDA Doc. (17.2.2015) (hereinafter: Switzerland)), Germany (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Germany, at 62, AIDA Doc. (January 2015)), and Kenya (see: Kitu Cha Sheria v. The Attorney General [2013] eKLR (H.C.K.) (Kenya) (hereinafter: Kitu Cha Sheria); Samow Mumin Mohamed v. Cabinet Secretary, Ministry of Interior Security and Co-ordination [2014] eKLR (H.C.K.) (Kenya) (hereinafter: Mohamed); Coalition for Reform and Democracy (CORD) v. Republic of Kenya [2015] eKLR, paras. 401-403 (H.C.K.) (Kenya)). Even the U.N. Commission for Refugees – in its comments upon the bill for the Law that is the subject of these proceedings – recognized that dispersal of the asylum-seeking population among various cities is necessary in order to ease the burden upon the cities in which the infiltrators have concentrated (see: Appendix P/10 of the petition).

70.       The European Union’s directive regarding the reception of asylum seekers (Council Directive 2003/9, 2003 O.J. (L31) 18 (EC)) adopts a similar approach. Despite the fact that, as a rule, asylum seekers are granted freedom of movement within the state in which they are staying, art. 7 of the directive establishes that states may establish geographic areas in which asylum may reside, and at times, even specific places of residence:

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.

4. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation.

5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 4 and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

6. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible. (Emphasis added – M.N.)

 

Adopting means for deciding the place of residence of asylum seekers is therefore proper, as long as it is related to public interests, public order, or the need for the swift and efficient processing of applications for asylum. A revision to this directive was recently published, in the framework of which similar provisions were applied to anyone submitting an application for international protection of any kind (Directive 2013/33, 2013 O.J. (L180) 96 (EU)).

71.       The European policy established under the directive and its revision has been the subject of criticism, inter alia, due to the broad discretion that it allows states in its implementation (Commentary to the Refugees Convention, pp. 1161-1163), and because it permits the imposition of restrictions upon freedom of movement for considerations of public order even if they do not meet a necessity test (UNCHR Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast) 14 (2015) (hereinafter: UNCHR Comments to EU 2013 Directive). However, the current commentary to the Refugee Convention noted that it is possible to justify the European policy if it is implemented in situations in which there is a pressing need to do so, such as circumstances of “mass influx”:

[Article 7] can, however, […] be regarded to be in accordance with Art. 26 of the 1951 Convention if it is restricted to situations of a mass influx, or to the procedural situation of investigating the identity of, and possible security threat poses by, an individual seeking recognition of refugee status. (ibid., p. 1164; emphasis added – M.N.)

In its response to the revision to the directive, the U.N. Commission for Refugees presented a similar stand (UNCHR Comments to EU 2013 Directive, p. 14):

UNHCR recognises that there are circumstances, however, in which the freedom of movement or choice of residence of applicants for international protection may be needed to be restricted, subject to relevant safeguards under international law.

72.       International law thus recognizes that measures that restrict the freedom of movement and at times, even the liberty of asylum seekers may be adopted in exceptional circumstances (compare: Commentary to the Refugees Convention, p. 790; UNCHR Comments to EU 2013 Directive, pp. 20-21). This is permitted for public purposes, among them alleviating the burden on urban centers in exceptional circumstances such as “mass influx” of asylum seekers (and see: Commentary to the Refugees Convention, pp. 789-790; Hathaway, p. 420); Goodwin-Gill and McAdam, p. 465; on the exceptionality of these circumstances, also compare the European directive in regard to temporary protection in the event of mass influx: Council Directive 2001/55, 2001 O.J. (L212) 12 (EC); for an analysis of the directive, see the Asafu case, para. 26).

73.       If we view the Israeli legislation through the lens of international law, we can distinguish a situation in which the state is confronted with a situation that, on its face, justifies adopting liberty-limiting measures. As presented above, over the last decade the State of Israel has been contending with a large number of people who entered its territory illegally, and who, at the present time, it is unable to remove. A significant part of them are concentrated in specific geographic areas, particularly south Tel Aviv. In my opinion, under these circumstances, there are no grounds for intervening in the State’s position that there is a vital need to prevent the infiltrators from settling in the urban centers. One can even say that such a situation constitutes “mass influx” that requires the implementation of appropriate measures. “Mass influx” is not only measured quantitatively, but also relatively, inter alia, giving consideration to the state’s resources, and specifically its asylum system and its capabilities (Goodwin-Gill and McAdam, Refugee, p. 335).

74.       The purpose of preventing settling in urban centers would also appear to be consistent with the state’s right to design its immigration policy and choose to whom to grant status in Israel. This right derives from the principle of state sovereignty (the Adam case, para. 84). However, that right is not absolute, and it is subject to the state’s obligation to aliens, among them refugees and asylum seekers. This view is also accepted in our constitutional system. As is well known, a person is not deprived of basic human rights even if he enters the country illegally. Therefore, not every legislative arrangement intended to serve the immigration policy will be consistent with constitutional criteria (see and compare: the Al Tai case, p. 848). Nevertheless, this does not mean that such an arrangement will necessarily be annulled due to its purpose (see and compare: the Adalah case, p. 412).

75.       In conclusion, it is my view that under the present circumstances, preventing settling in the urban centers is a proper purpose.

 

Preventing the Infiltrators from Earning in Israel

76.       The Respondents argued that erecting the residency center is also intended to serve the purpose of preventing the infiltrators from earning income in Israel. However, although the residents of the center are not permitted to work, it would seem that this purpose is, at most, attendant to the primary purpose of preventing the infiltrators from settling in the urban centers. This conclusion is reinforced by the fact that the provisions regarding work and earning by infiltrators are primarily found in Chapter B of the Amendment, which was not challenged in the petition before us. The Petitioners themselves did not specifically address this purpose and did not present concrete arguments as to the constitutionality of the provision prohibiting residents of the residency center to work outside of the center. This being the case, I see no reason to decide the complex question (compare, inter alia, the response of the U.N. Commission for Refugees to the bill, Appendix P/10 of the petition) of whether this purpose is proper.

 

Preventing a Resurgence of Infiltration to Israel

77.       According to the State, another purpose of the Law is the creation of a “normative block” to the arrival of potential infiltrators to Israel. The State is of the opinion that this purpose, in and of itself, is proper. I addressed the purpose of deterrence in the framework of my discussion of sec. 30A of the Law. I found, as I noted in the Eitan case, that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). However, as I noted, when there is a proper purpose for restricting or infringing individual rights, there is no flaw in the legislature’s considering a subsidiary, attendant purpose of deterrence. This is the case before us. Having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect.

 

Responding to the Needs of the Infiltrators

78.       According to the State, another purpose grounding the Law is providing a response to the needs of the infiltrators. This purpose was acknowledged to be proper in the Eitan case, which held: “A law whose purpose is the erecting of an open residency center intended to meet the needs of the infiltrators is a law intended for a proper purpose” (ibid., para. 104). I am in complete agreement with that conclusion, and I see no need to say more. There can be no doubt that such a social purpose is proper. Similarly, other countries have established residency centers intended to provide shelter and basic rights for asylum seekers who cannot provide for themselves (for a detailed discussion, see ibid., paras. 133-134). However, we should not ignore the fact that, in practice, the infiltrators do not consider the Holot residency center to be meeting their needs. I will address this below.

 

A “Hidden” Purpose – Encouraging Voluntary Emigration

79.       The Petitioners’ main argument is, as noted, that the true purpose of the residency center is to “break the spirit” of the infiltrators and encourage them to leave Israel “voluntarily”, so to speak. This claim was also raised in the Eitan case, and Justice U. Vogelman left it to be decided in due course. The claim was denied before the Court in the responses of both the State and the Knesset. The matter also finds no mention in the Law or the explanatory notes. More importantly, in the oral arguments before the Court, the State’s attorney Adv. Yochi Genessin expressly declared that no actions have or will be taken for the purpose of encouraging the infiltrators to leave Israel:

President Naor: This is a motif that is nevertheless repeated in the petition. Are you willing to clearly state that no actions have or will be taken to break the spirit?

Adv. Genessin: Certainly, most certainly (emphasis added – M.N.).

80.       The Respondents pointed out that not every policy whose purpose is not “inclusion and absorption” is a policy intended to break the spirit of those people who have infiltrated into Israel. I accept that legal position. In this matter, it is not possible to determine that breaking the infiltrators spirit is one of the purposes of the Law. Infiltrators who cannot be deported have the right to remain in the territory of the state after completing their stay [in the residency center]. In its response and in the hearing before us, the State argued that the residency center provides a response to the needs of many of the infiltrators, above and beyond their basic needs, and that, inter alia, recreational activities, employment opportunities, professional training courses and more are offered. While the Petitioners presented a number of claims and criticisms in regard to the character of the residency center and the possibilities it afforded, they stressed that this subject is not the focus of their petition. Even assuming that there is room for improving the living conditions in the residency center – upon which I am not making a determination – it cannot be found, at present, that the current conditions actually cause infiltrators to leave Israel by breaking their spirit.

81.       I have, therefore, not found that the current Law is intended to break the spirit of the infiltrators. If this were the purpose of the Law, it would present a great difficulty. On its face, such a purpose would be improper in view of the fact that it would appear to undermine the principle of non-refoulement that prohibits deporting a person to a state in which there is a threat to his life of liberty. This is not to say that the state cannot remove infiltrators to a safe country. Removal of infiltrators to such a country is subject to various conditions intended to ensure that it is indeed a safe country, and that that country will not transfer the infiltrators to another country that is not safe (the Al Tai case, pp. 848-850; the Adam case; for foreign case law in this regard, see for example: Plaintiff M70/2011 v. Minister for Immigration and Citizenship [2011] H.C.A. 32; EM (Eritrea) v. Secretary of State for the Home Department [2012] EWCA Civ. 1336). Determining that the country is indeed safe is a complex question that does not arise in the matter before us.

82.       Along with the possibility of transferring any person – even against his will – to a safe country, a person is, of course, entitled to choose to leave Israel of his own free will, and even go to a country that presents a danger (the Eitan case, para. 109; sec. 1(c)4 of the Refugee Convention, according to which the Convention will cease to apply to a person who “[…] has voluntarily re-established himself in the country which he left or outside which he remained […]”; and see art. 12 of the International Covenant on Civil and Political Rights; Hathaway, pp. 953-961). A person’s free will is premised upon the principle of freedom of choice. This principle is expressed in sec. 1(c)(4) of the Refugee Convention in the “voluntariness” requirement (see: Hathaway, p. 960; UNCHR, Handbook: Voluntary Repatriation: International Protection (1996)). A free, voluntary decision to leave the country is one made “without external inducement and certainly without coercion of any kind” (Hathaway, p. 960). Voluntary repatriation that does not meet these requirements may expose the infiltrators to persecution in their country and constitute “constructive removal” in violation of the non-refoulement principle (for a discussion of constructive removal in the Israeli context, see: Christian Mommers, Between Voluntary Repatriation and Constructive Removal, or: The Activities of Israel to Promote the Return of South Sudanese Asylum Seekers, in Where Levinsky Meets Asmara 386 (2015) (Hebrew); for a discussion in regard to other countries, see Hathaway, pp. 319, 959-961; and compare the Mahmoud case, para. 26).

83.       The outcome of the above is that the state may not employ sanctions or any other means that might deny free will against groups of people subject to the non-refoulement principle in order to break their spirit. As quoted, the State’s attorney, Adv. Genessin, declared that no actions intended to break the spirit of the infiltrators would be employed in the residency center. The state is therefore obligated – as also arises from the declaration – to refrain from tying staying in the residency center to the issue of voluntarily leaving the country. Accordingly, no actions intended to bring about voluntarily departure from the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner. In particular, no such actions may be taken in the course of contacts between the infiltrators and administrative entities in the residency center, for example, when they seek medical attention, welfare assistance, an exemption from reporting in the residency center, and so forth.

84.       In summary, the result of this chapter is my conclusion that preventing infiltrators from settling in the urban centers, in the senses that I addressed, is a proper purpose. As noted, this conclusion is also consistent with the principles of international law. In view of this conclusion, I will now turn to an examination of the proportionality of the means adopted by the Law for realizing the said purpose.

 

Chapter D: Proportionality

85.       As is well known, an infringement of a right must be to an extent no greater than is required. “Proper purposes do not sanctify all means” (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, 694 (2006); HCJ 5100/94 Public Committee against Torture v. Government, IsrSC 53(4) 817, 845 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In the Eitan case, the majority held that Chapter D comprised a number of individual arrangements – such as the scope of the requirement to remain in the residency center and the length of the stay – that suffered from constitutional defects that affected the entire chapter (see, for example, ibid., para. 4 of my opinion). Here, too, I will first examine the primary individual arrangements established by the Law. In doing so, the reciprocal relationships between these arrangements will also be examined.

86.       I will state my conclusion in advance: I have not found any grounds for intervention in the Director’s authority to order an infiltrator to the residency center. I also find no defect in the Law’s provisions arranging the method of operating the residency center and the daily life of the infiltrators staying there. The only arrangement that, in my view, is tainted by a constitutional defect is that establishing a twenty-month maximum period for holding a person in the residency center. In my opinion, this period of time violates the constitutional rights of the infiltrators to an extent that is greater than required.

 

The Director’s Authority to order that an Infiltrator stay in the Residency Center and its Scope

87.       Like Amendment 4, the Law now under review authorizes the Director to order that an infiltrator stay in the residency center. The current language of the Law limits this authority in two ways. First, it establishes that the Director can issue such an order for a period that shall not exceed twenty months. Second, it establishes that the Director is not permitted to issue such an order to vulnerable populations, such as minors, victims of human trafficking, or people with families (sec. 32D(b) of the Law). In addition, the Law establishes grounds for release, among them a change of circumstances or medical reasons (secs. 32D(g) and 32E(c) of the Law). The previous law did not expressly restrict the Director’s authority in these ways. The question before us is whether – in light of the changes introduced in regard to the scope of the Director’s authority – this authority passes the tests for constitutionality.

 

A.The Rational Connection Test

88.       The first test is the rational connection test, which examines whether the chosen means are appropriate to achieving the law’s purpose and rationally lead to its realization (see: the Nir case, para. 23; Barak-Proportionality, pp. 373-374). Do the arrangements under review meet this test? The Petitioners’ main argument is that the period of up to twenty months does not realize the legislative purposes. As opposed to this, the State is of the opinion that while staying in the residency center may only prevent settling for a limited period, the purpose is effectively achieved during that period.

89.       In the Eitan case we held that issuing an order to stay in the residency center that is not limited in time meets the rational connection test. We noted that the order permanently disengages the infiltrator from the area in which he established himself, and makes it difficult for him to continue his employment (ibid., para. 158). The question that must be asked is whether an analogy should be drawn from that holding to the matter before us in which the period of the stay in the residency center is, as noted, limited to a defined period. In my opinion, the answer is yes. First, there can be no doubt that while staying in the residency center, the infiltrator is unable to establish himself in the urban centers, inasmuch as his habitual residence is in the residency center. Thus, during the period of the stay, the Law’s purpose is fully realized. Moreover, disengaging the infiltrator – even for a defined period – can influence his ability to return and reestablish himself in the urban centers. Even disengagement for a limited period has not-inconsequential effect on way of life (see and compare the data submitted by the Petitioners themselves in this regard: paras. 138-140 of the petition, and the affidavits appended as Appendix 13). In addition, Eitan - Israeli Immigration Policy Center – which sought to join the petition – appended to is request a number of affidavits by residents of Tel Aviv’s southern neighborhoods who state that the effect of the means adopted by the State can be seen on the ground. According to them, since the implementation of the new policy, the situation has significantly improved (p. 2 of the affidavit of Ms. Shefi Paz, a social activist who is a resident of the Shapira neighborhood, and see: the affidavit of Mr. Oved Hugi, Chair of the Tel-Haim Council; the affidavit of Mr. Haim Meir Goren, a resident of the Shapira neighborhood).

90.       In any case, even if a limited stay does not fully achieve the Law’s purpose, it is not necessary that the chosen means fully achieve the Law’s purpose (see and compare: the Nir case, para. 24; Barak-Proportionality, pp. 376-382; the Adalah case, p. 323). We should bear in mind that underlying Chapter D was the desire to ease the burden borne by a number of Israeli cities that are a magnet for infiltrators. Under these circumstances – and upon the reasonable assumption that after infiltrators are released from the residency center, other infiltrators will enter to replace them – I am of the opinion that limiting the stay of a particular infiltrator to a particular period of time is consistent with the purpose of the Law.

91.       Inasmuch as according to the Petitioners the maximum number of infiltrators that can be held in the residency center constitutes a marginal percentage of the total infiltrator population, the petition casts doubt whether the residency center will have a real influence over their settling as a group. However, this argument ignores the fact that the Law allows for increasing the capacity of the Holot residency center and for establishing additional residency centers. Accordingly, the State declared that the existing center serves as a “pilot”. Against this background, we can state that the provision under review meets the first proportionality test. This Court expressed a similar view in the prior proceedings (see: the Eitan case, para. 128; and see: the Adam case, para. 97). However, it is not impossible that with time or changes in circumstances, it will be possible to revisit this issue. “[…] the rational connection must continue throughout the entire life of the law. The question of constitutionality accompanies the law through its entire life. It is examined at all times in accordance with its results (Barak-Proportionality, p. 385; HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, para. 60 of the opinion of Justice E. Arbel (June 4, 2013) [http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-... HCJ 9333/03 Kaniel v. Government, IsrSC 60(1) 277, 293 (2005)). Therefore, for the present, the said means achieve the primary purpose of Chapter D.

92.       To a certain extent, staying in the residency center also achieves the attendant purpose of deterring potential infiltrators. It may, of course, be assumed that infiltrators fleeing for their lives will not refrain from entering Israel, despite the possibility of being placed in the residency center. However, it is reasonable to assume that those infiltrators who have set themselves the objective of settling in the intended state and earn a living there will take the period of residence in the residency center into account among their considerations (see and compare: the Eitan case, para. 58; the Adam case, para. 98; and see: UNCHR, Legal and Protection Policy Research Series, Back to Basics: The Right to Liberty and Security of Person and “Alternatives to Detention” of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, p. 2, PPLA/2011/01.Rev. 1 (April 2011) (prepared by Alice Edwards)).

93.       The purpose of providing a response to the needs of the infiltrators is a desirable purpose. But, as noted, I am not convinced that it is realized by the means chosen by the legislature. As is well known, staying in the residency center is imposed upon those residing there, without any certainty that they actually require assistance (see and compare: the Eitan case, paras. 105-106; Kitu Cha Sheria, para. 82). In any case, there is no need to expand upon this inasmuch as, as noted, the residency center realizes the main purpose for which is was erected.

 

2. The Less Restrictive Means Test

94.       In my opinion, the means under review – requiring that an infiltrator stay in the residency center for up to twenty months – also meets the less restrictive means test. In the Eitan case the Court held that a residency order for an indeterminate time (or a period limited to three years) constitutes a less restrictive means inasmuch as no other means would realize the Law’s purposes as effectively (ibid., para. 159). That conclusion also applies to this case, in which we are concerned with a residency order limited to twenty months. Other means proposed by the Petitioners – like a voluntary residence center – would not achieve the Law’s purpose as effectively. It may be assumed that a person who has already established himself in a particular place in Israel will not voluntarily choose to leave it and move to the residency center (see and compare: ibid., paras. 129, 181). Indeed, the legislature is not required to adopt the means that is the very least restrictive when adopting that means would lessen the possibility of achieving the purpose (Barak-Proportionality, p. 500; the Eitan case, para. 130).

 

The Proportionality Stricto Sensu Test

95.       The third proportionality test – proportionality stricto sensu – examines whether the legal provision strikes a proper balance between the social benefit produced by the law and the harm resulting from its infringement of constitutional rights (Barak-Proportionality, p. 413; the Gurevitz case, para. 58). In the Eitan case, the Court held that the absence of a limit upon the length of residence and the lack of grounds for release lead to the conclusion that Chapter D was entirely void (para. 195). As described above, these requirements received some response in the current Law. Does that alter the harm-benefit relationship?

96.       As described above, the changes in the Law reduced the harm to constitutional rights. Clearly, the twenty-month period established under the current Law infringes the rights of the infiltrators to a lesser degree in comparison to the longer period established in the prior law. Similarly, keeping a person in the residency center for a limited period – as opposed to an indeterminate period (or a period that can be extended for an indeterminate time) – lessens the intensity of the infringement of his rights, inasmuch as it creates certainty as to the release date. In addition, the Law includes a number of provisions that limit the Director’s authority to issue a residency order and set its length, and which outline an administrative apparatus through which he must make his decision. First, under the Law, the Director must make two separate decisions. He must first decide whether a residency order should be issued in regard to a specific infiltrator. If he decides that an order should be issued, he must – at the second stage – decide upon the period of time that the infiltrator will reside in the center. Second, the twenty-month period is not a default position, but rather the upper limit of the Director’s authority. This derives from the express language of the Law, which establishes that the residency period will be “[…] no more than the 20 months stated in sec. 32U (emphasis added – M.N.). We are therefore concerned with a system that requires an individual examination of each infiltrator. This system is appropriate and should be maintained. Third, the Director must grant the infiltrator a hearing in which he can present his arguments prior to the issuance of a residency order and before the setting of the period of residency (sec. 32D(d) of the Law; and see: AAA 2863/14 Ali v. Ministry of the Interior – Population and Immigration Authority (Aug. 10, 2014 and Oct. 2, 2014)). Lastly, the procedure for issuing the residency order and setting its time is individual. The Director must exercise his authority and his discretion in accordance with the personal circumstances of each infiltrator (compare: Kitu Cha Sheria, paras. 62 and 87; and see Mohamed, para. 24). In this framework, he must consider relevant information, bearing in mind the purpose of the Law and the scope of the expected harm to the infiltrator (see and compare: AAA 1758/10 Israel Bar Assoc. v. Sagi, para. 12 (Aug. 15, 2011); the Al Tai case, p. 848; Itzhak Zamir, The Administrative Authority, vol. II, 119-130 (2^nd ed., 2011)). Against this background, the statement made by the State’s attorney in the hearing before us – according to which, at present, all infiltrators are issued a twenty-month residency order – is not consistent with the Law and is contrary to its purpose.

97.       While it is hard to disagree – particularly in light of the above – that Chapter D’s current infringement of the constitutional rights of the infiltrators to liberty is of lesser intensity than it was under its prior language, that is not the end of the road. Even when the legislature adopts a less harmful arrangement than the previous one – a situation referred to as a “benefitting statute” – the Court is not relieved of its duty to examine the constitutionality of such a law that infringes constitutional rights. As held in the Tzemach case:

… 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 [at p. 260; and see: the Eitan case].

Indeed, we are concerned with an arrangement that the legislature adopted after the Court annulled a previous arrangement for unconstitutionality. However, that does not exempt the Court from examining the new Law in accordance with the accepted constitutional criteria. That is what this Court did in the Eitan case in regard to sec. 30A of the Law, and that is what we must do now in regard to the provisions of Chapter D of the Law. I will begin by stating that despite the appropriate changes made in Chapter D – as a result of which most of the provisions now pass the constitutional tests – I am of the opinion that the maximum period established for staying in the center is unconstitutional. It does not appropriately balance the benefit of the Law and the serious harm to the rights of those staying in the residency center. As a result, it does not meet the third proportionality test. I will now explain in detail.

98.       As noted, this Court held that even holding an infiltrator in the residency center for a limited period of time constitutes an infringement of his right to liberty. “An infringement of the right to liberty…is inherent to any facility in which a person’s presence is not voluntary. Open residency centers that one does not enter voluntarily in accordance with the resident’s free choice, and which requires the resident’s presence even if only for part of the day, inherently infringe the right to liberty” (the Eitan case, para. 117). An infiltrator who is the subject of a residency order must abandon his lifestyle, his work, his place of residence, and his family and acquaintances. His day is organized in accordance with the rules of the residency center, and he is not free to live his life in an independent, autonomous manner. “[…] and all of this, not as punishment for his infiltration, or for the purpose of realizing his deportation, but for the purpose of ‘preventing him from settling in the urban centers and integrating himself into the labor market” (ibid., para. 150). This infringement is intensified in regard to some of the infiltrators in view of the trials and travails they experienced in their countries of origin and on their way to Israel (the Adam case, para. 112). This Court added that the longer the period of time during which a person is deprived of liberty, the greater the intensity of its infringement, “[…] such that a person is required to increasingly relinquish more of his desires and hopes. His personal identity and his unique voice are submerged in a regimented, grinding daily routine” (the Eitan case, para. 154).

99.       Against this background, it was held that setting an upper limit for being held in a residency center is insufficient. That limit must also be proportionate (see: ibid., para. 162). Liberty is the basic foundation of a person’s life and existence. Denying it, even for a day, significantly infringes his rights (compare: ibid., paras. 152-153). Weighing the serious infringement of the infiltrator’s rights against the benefit deriving from the Law has led me to the conclusion that a period of twenty months is too long a period for holding infiltrators under liberty-limiting conditions of the type under examination. We should bear in mind that we are speaking of infiltrators who cannot be deported from Israel, and who do not present a concrete threat to the security of the state or the lives of its citizens. Their only sin is illegally crossing our borders, for which the state may not punish them (see and compare: sec. 31(1) of the Refugee Convention). While infiltration is an unwanted phenomenon, and solutions should be found for the residents of Israel’s cities, these are not the only considerations. A solution that involves denying people’s rights for such long periods of time is disproportionate.

100.     At this point, on the basis of all the above, I will return to the main purpose of the Law – preventing settling in urban centers. This purpose does not focus upon an individual infiltrator or a threat that he poses to society. It concerns the need to ease the burden upon the urban centers and their residents, in general. I am of the opinion that realizing this purpose does not require holding any particular infiltrator in the residency center. It is sufficient that a group of various infiltrators be held in the residency center. Indeed, it is to be assumed that when one infiltrator is released from the residency center, another infiltrator will take his place. I am of the opinion that this turnover between the infiltrators staying in the residence center and others from outside realizes the purpose of the Law. It is sufficient that at any given time, part of the infiltrator population – according to the capacity of the Holot facility and other facilities that the state intends to erect – is removed from the urban centers. This “revolving door” approach infringes the constitutional rights of the infiltrators placed in the residency center to a lesser extent, while achieving the legislative purpose. It is therefore possible to suffice with a significantly shorter period for staying in the residency center while still realizing the Law’s purpose.

101.     The lengthy period established by the Law has no parallel in comparative law. A comparative examination must, of course, be conducted cautiously in view of the cultural and social differences that may influence the comparison (see: the Eitan case, para. 72 and the references there). Nevertheless, “we should bear in mind that democratic states share common basic values. One can learn from another. Comparative law allows us to broaden our horizons and acquire interpretive inspiration […]” (ibid.). A comparative survey reveals that staying in residency centers of various types is voluntary in most countries. In certain countries, asylum seekers are required to stay in a residency center as an alternative to detention, but this is only for periods of a few months. It is also important to note that in some countries there is a trend toward shortening the periods for imposed residence in residency facilities of various kinds, and of reducing the restrictions upon freedom of movement. Thus, for example, while asylum seekers in Germany and Switzerland are required to stay in a reception center upon arrival in the country, the period of that stay is only three months (Asylverfahrensgesets [Asylum Procedure Act] Nov. 22, 2011, BGBI. I S 2258, Art. 47) (hereinafter: Germany, Asylum Procedure Act); Art. 16 al. 2 Ordonnance 1 sur l’asile relative à la procedure).

102.     After that period, remaining in the reception center is not required, but in Germany it constitutes a condition for obtaining social benefits (Germany, Asylum Procedure Act, Art. 47, Art. 60 para 2 Nr. 1, Art. 85 para 3 Act; Oberverwaltungsgericht [OVG] Freie Hansestadt Bremen [Higher Administrative Court of Bremen], 01.10.1993 - 1 B 120/93, beck-online). In the Netherlands, an asylum seeker is permitted to stay in an open residency center on the basis of economic need for as long as his request is being processed. An asylum seeker staying in such a center is free to leave the facility, but he must report to the authorities weekly (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, the Netherlands, at 43-46, AIDA Doc. (16.1.2015)). There are open residency centers intended for social needs in Belgium and Finland, as well. Asylum seekers residing in them enjoy full freedom of movement (see: European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Belgium, at 68, AIDA Doc. (28.2.2015) ; MAAHANMUUTTOVIRASTO: The Finnish Immigration Service, http://www.migri.fi/asylum_in_finland/reception_activities/ reception_centers). There is no requirement to remain in a reception center in Hungary, Poland or Ireland, but staying in a residency center is a condition for receiving social benefits (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Hungary, at 14, AIDA Doc. (17.2.2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Poland, at 5, AIDA Doc. (January 2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Ireland, at 50-51, AIDA Doc. (1.2.2015)). There is also no requirement for remaining in residency centers while asylum requests are processed in France, but more than a five-day absence may lead to a denial of eligibility for pocket money (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, France, at 57, AIDA Doc. (26.1.2015); L348-2 Code de l'action sociale et des familles).

103.     In Italy, staying in the facilities – for a maximum period of twelve months – is viewed as a benefit (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Italy, at 15, 53, AIDA Doc. (January 2015) (hereinafter: Italy)). Not reporting to the facility without permission will lead to the resident’s loss of his place in the facility (ibid., p. 66). In Malta, as well, staying in the open facilities – limited up to the issuance of a decision on the person’s asylum request, unless extended – is voluntary (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Malta, at 40, AIDA Doc. (February 2015) (hereinafter: Malta)). Although residents there enjoy freedom of movement, they are required to confirm residence by signing in order to continue to remain in the facility and receive the attendant social benefits (ibid., p.44). Staying in the residency centers in Croatia is voluntary, and is intended to provide the social welfare needs of the asylum seekers. Asylum seekers enjoy freedom of movement, but they are required to return to the center every day by 11:00 PM unless they have obtained permission for absence from the director of the center (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report,Croatia, at 44, AIDA Doc. (5.3.2015) (hereinafter: Croatia)). And also compare the situation in Lithuania, where asylum seekers may be held in reception centers as long as the processing of their asylum request continues (EMN Focussed Study 2013, The Organisation of Reception Facilities for Asylum Seekers in different Member States, National Contribution from Lithuania; The UN Refugee Agency [UNHCR], Integration of refugees in Lithuania: Participation and Empowerment (Oct. – Nov. 2013)).

104.     To complete the picture, we would note that even in countries in which it is possible, under certain circumstances, to hold asylum seekers in closed detention facilities, the period of restricting liberty does not generally exceed a few days, or at most, a period of a few months (see: the Eitan case, paras. 73-74; The Global Detention Project [GDP], The detention of Asylum Seekers in the Mediterranean Region, Global Detention Project Backgrounder (April 2015)). Some countries permit detaining asylum seekers in closed detention facilities or longer periods. In Malta, for example, most asylum seekers are placed in detention for a maximum period of twelve months (Malta, p. 47). Severe criticism has been expressed in this regard (see, for example: Daniela DeBono, ‘Not Our Problem’: Why the Detention of Irregular Migrants is Not Considered a Human Right Issue in Malta, in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, 146 (Marie-Benedicte Dembour & Tobias Kelly, eds., 2011). In Bulgaria, illegal migrants can be detained for a maximum of eighteen months. While, in general, Bulgarian law requires that asylum seekers not be held in detention, in practice, a person who does not manage to file an asylum request at the border will be arrested (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 34-35, AIDA Doc. (31.1.2015); recently, a bill was introduced to permit a general detention regime in closed facilities for all asylum seekers (ibid., p. 48)). Similarly, Cyprus permits the detention of an asylum seeker for a maximum period of eighteen months, which can be extended in certain cases (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 64, AIDA Doc. (February 2015)). However, there is a trend toward shortening the periods of detention even in some of these countries. Thus, while Greece permits detention for the relatively long period of eighteen months, the government recently announced that the period would be reduced to six months (for the Greek government’s announcement of Feb. 17, 2015, see: http://www.mopocp.gov.gr/index.php?option=ozo_content&lang=&perform=view... (in Greek); Asylum Information Database [AIDA], An end to indefinite immigration detention in Greece?, http://www.asylumineurope.org/news/16-02-2015/end-indefinite-immigration... for the criticism of detention in Greece by the U.N. Commission on Refugees, see The UN Refugee Agency [UNHCR], Greece As A Country Of Asylum – UNHCR'S Recommendations (April 2015)). Similarly, until recently, Italian law permitted a maximum detention period of eighteen months, but in November 2014 that period was shortened to four months (Italy, pp. 72-73). In Croatia, where aliens could be held for a period of up to eighteen months, it has been established that aliens who have submitted a request for asylum may be detained for a period of only three months, which can be extended for an additional three months under certain circumstances (Croatia, p. 53).

105.     Moreover, the reception centers in various countries are generally intended for such purposes as initial identification of those entering the territory, assessing asylum requests or exhausting avenues for deportation (for a broad discussion of this subject, see: the Eitan case, para. 163; STEPS Consulting Social study for European Parliament, The conditions in centers for third country national (detention camps, open centers as well as transit centers and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states, IP/C/LIBE/IC/2006-181, 193). To the best of my knowledge, no western country maintains residency centers that are not voluntary for asylum seekers of other migrants with the purpose of population dispersal. That objective is generally achieved by other means (see, for example, what is done in Norway, Switzerland and Turkey: UNHCR, Alternatives to Detention, at p. 165; Switzerland, at p. 71; Asylum European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Turkey, AIDA Doc. (18.5.2015); it should be noted that Turkey recently adopted regulations that arrange the status of aliens who enjoy temporary protection from deportation, see ibid., pp. 65-74). In addition, many countries distinguish among different groups of infiltrators that cannot be deported in regard to the restrictions upon their liberty (see, for example: Eur. Comm’n, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries 75, E.U. Doc. HOME/2010/RFXX/PR/1001 (Mar. 11, 2013)). As a rule, the distinctions are based upon the reasons for why a particular infiltrator cannot be deported from the country. As a result, there are differences in the scope and type of restrictions imposed upon the liberty of asylum seekers and those who are entitled to international protection as opposed to other aliens. The arrangement under our review does not comprise such distinctions, but rather relates inclusively to all infiltrators for whom there is a problem in regard to deportation. I would emphasize that this is not to say that infiltrators cannot be held in residency centers for the purpose of easing the burden upon the cities. As already stated, my opinion is that this may be done. However, the above does hold implications for the reasonable, proportionate period of time that they may be held.

106.     Undeniably, the conditions for residence in the residency center have been improved, but not sufficiently. As was held in the Eitan case: “…a proportionate normative arrangement must preserve a proper relationship between the extent of the limitation of rights in the facility and the length of the maximum stay there, such that the more severe the limitation upon basic rights, the shorter the imposed stay in the facility” (ibid., para. 162). In the matter before us, the maximum period for holding a person in the residency center does not take into account the scope of the limitations imposed by the current language of the Law on the liberty of the infiltrators staying in the center. Those staying in the center are still subject to a strict disciplinary regime and to the authority of the employees of the Prisons Service (sec. 32C of the Law). In the Eitan case we held that while the administration of the center by employees of the Prisons Service does not constitute an independent infringement of the right to liberty and the right to dignity, it reinforces the infringement of the rights of the infiltrators (ibid., paras. 138-146). To that we must add the enforcement powers granted to the employees of the Prisons Service – among them the power to detain, search and seize. The administration of the residency center by employees of the Prisons Service who are granted police enforcement powers thus increases the infringement of the right to liberty of those staying there. It amplifies the imbalance between the severe infringement of the rights of the individual and the benefit provided by the Law. Along with that, the Law expressly forbids those staying in the center from working outside of its precincts. Although the residents are given the opportunity to work the center, in practice the Law is implemented in a manner that significantly limits that possibility both in terms of the maximum scope of monthly employment hours and in terms of the salary paid for that work (see: Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015; Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2015). In its response, the State itself notes that the employment opportunities are limited and that there are not enough jobs for all of the infiltrators staying in the center (paras. 77-78). As a result of the imposition of these restrictions, the infringement of the liberty of the residents is intensified. Although the residents are currently permitted to remain outside of the center all day, in the absence of employment or a reasonable ability to earn a living, their ability to shape their existence is severely impaired. This is all the more so in view of the location of the residency center, which remains far removed from any populated area (see the Eitan case, para. 126).

            The net result of all of the above further supports the conclusion that the maximum period for holding infiltrators in the center is greater than necessary.

107.     As noted, the State argues that part of the constitutional defects in the previous version of the Law in regard to the residency center has been remedied in the present version. Two subsidiary arguments can be derived from this: One is that the Court should not intervene in these arrangements, while the other is that the Court should examine the proportionality of the maximum period for holding a person in the residency center under the amended arrangements. I will now address these arguments.

 

The Constitutionality of Additional Individual Arrangements and their Consequences

108.     The first arrangement that was amended concerns release from the residency center. Under the law that came under review in the Eitan case, the Director did not have the authority to release a person from the residency center. The Law now establishes grounds for release. Another arrangement concerns the requirement of reporting in to the residency center. While the previous law required that infiltrators staying in the center register three times a day, they are now required to do so only once. Due to the cancellation of the obligation to register in the afternoon, a resident of the center can now move about relatively freely throughout the day (see and compare: the Eitan case, para. 127). The cancellation of the requirement of registering in the morning saves the resident valuable time and allows him to leave the residency center without unnecessary delays. In my opinion, these changes make the reporting requirement proportionate.

109.     Another amended arrangement grants the Director authority – if one of the grounds specified in the Law is met – to order the transfer of an infiltrator to a detention facility. These grounds largely remain as they were in the previous law, primary among them the commission of disciplinary infractions – which concern the violation of the residency center’s disciplinary rules – as detailed in the Law. The Director is authorized to decide the length of the detention period imposed upon the resident of the center, subject to maximum periods prescribed by the legislature. Like the previous law, the periods of detention are set in relation to the number of infractions, their severity and the length of their continuation. However, the maximum periods for detention were significantly shortened. Thus, the shortest period is now set at fifteen days (as opposed to thirty days under the previous law), and the longest period is set at 120 days (as opposed to a year under the previous law).

110.     Unlike the previous law, the current version of the Law establishes an express mechanism for judicial review of the Director’s decision. In accordance with this mechanism, the detention order must be approved by the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of the resident’s detention (sec. 32T(g) of the Law). The Tribunal is required to examine whether there were grounds for transferring the resident to detention, and it may approve the order with or without changes or not approve it (sec. 32T(h) of the Law). This review is self-executing and automatic. It constitutes an inseparable part of the process of transferring a resident to detention, and validates it (see and compare: HCJ 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria, IsrSC 52(3) 346, 360-362; AAA 8788/03 Federman v. Minister of Defence, para. 12 (Nov. 5, 2003) (hereinafter: the Federman case); Yitzhak Hans Klinghoffer, Preventive Detention for Reasons of Security: AAA 1/80 Ben-Yosef (Green) v. Minister of Defence, 11 Mishpatim 286, 291 (1981) (Hebrew) (hereinafter: Klinghoffer)). This interpretive conclusion is supported by the Law’s provisions and their purpose, as well as by the position expressed by the Respondents, who made it clear in the hearing before us that, in their view, the judicial review exercised by the Tribunal is de novo review (and see: paras. 61-63, 168, 229-247 of the State’s response). Along with this, by virtue of sec. 4 of the Administrative Courts Law, 5752-1992 (hereinafter: the Administrative Courts Law), together with art. 22 of the Addendum to that law, the Tribunal’s exercise of its review power it subject to the provisions of that law. The Administrative Courts Law establishes, inter alia, that the court is an independent body that, in matters of judging, is subject to no authority other than the law (sec. 3). That law also establishes provisions in regard to procedures and rules of evidence (secs. 20-21). The law further establishes that hearings before the court will be public, that the parties are entitled to legal representation, and that they may submit evidence and ask that the court subpoena witnesses and order the disclosure of documents (secs. 25, 27, 28).

111.     The main hurdle that sec. 32T of the Law must clear is the third proportionality test – proportionality stricto sensu. I am of the opinion that the current version passes this test. As noted, the enforcement mechanism established under sec. 32T of the Law grants effective means for the administration of the residency center, without which its rules of conduct would be a sham (see and compare: the Eitan case, para. 180). As opposed to the benefit of the arrangement, it undeniably infringes the rights of the residents. However, in view of the procedural guarantees established in the current Law, we are concerned with a lesser infringement than in the previous law. After weighing the benefit deriving from the arrangement against the infringement of the rights of the residents, I am of the opinion that the infringement under the current version of the Law maintains a proper balance with the benefit. Although the Director’s authority to order a transfer to detention remains, it has, in practice, been made conditional upon a decision composed of two elements: the Director, who is part of the executive authority, and the Tribunal that is of a judicial character (the Federman case, para. 12; Klinghoffer, p. 287). In this manner, “the deprival of personal liberty, which is a direct result of the issuing of the detention order, [loses] its pure administrative character and to some degree, the great principle of the rule of law that a person shall not be derived of his personal liberty unless a judge has so ruled is satisfied” (ibid., p. 286). In addition, the review process is accompanied by other procedural guarantees that, as noted, apply to the operation of the Tribunal by virtue of the Administrative Courts Law. These procedural guarantees bring the disciplinary regime under review as close as possible to a regular judicial process without detracting from its purpose (also see: Dalia Dorner, Constitutional Aspects of Disciplinary Procedures, 16 IDF Law Review 463, 468 (2002-2003) (Hebrew) (hereinafter: Dorner); Assaf Porat, On the Right to Legal Representation in Military Disciplinary Proceedings, 17 Mishpat V’asakim 469 (2014) (Hebrew)).

112.     The Petitioners are indeed correct in arguing that the detention periods established by the Law – among them periods of 85, 90 and even 120 days – are long. For the sake of comparison, under military disciplinary rules, a junior disciplinary officer is authorized to sentence a soldier to up to seven days imprisonment, and a senior disciplinary office is authorized to impose up to thirty-five days imprisonment (secs. 152(5) and 153(a)(6) of the Military Justice Law, 5716-1955). In the case of multiple offenses, it is possible to impose imprisonment for no more that seventy consecutive days (sec. 162A of the Military Justice Law; Dorner, p. 464; and see: Emanuel Gross, The Constitutional Dimensions of Arrest Law in the Army, 5 Mispat Umimshal 437, 449-453 (2000) (Hebrew)). However, although the detention periods in the current Law are, in my opinion, at the border of legality, they do not justify our intervention in the discretion of the legislature. We should bear in mind that we are concerned with maximum periods that need not necessarily be fully “exploited”. The Director must exercise his discretion in an individual manner in regard to each infiltrator and each disciplinary violation. He is not empowered to put infiltrators in detention for the maximum periods automatically. Moreover, the maximum period of 120 days applies only to one disciplinary violation concerning absence from the residency center for over ninety days. The other periods are dependent upon the severity of the conduct, and there is a clear punishment scale in regard to repeated violations. In addition, in view of the severity of placing a person in detention, it is clear that the violations that permit the adoption of this measure must be narrowly construed. The state recognizes this, as well (see: paras. 244-245 of the State’s response). Moreover, the Law provides another “scale” in regard to the enforcement means that should be adopted. The scale begins with other means of enforcement established under sec. 32S of the Law (warning, reprimand, denial of pocket money, etc.), and concludes with transfer to detention. As a result, the Director and the Tribunal are expected to consider imposing the lesser sanctions before arriving at a decision to transfer a resident to detention. This interpretive conclusion is also required in view of the purpose of the enforcement powers in the current Law. This purpose seeks to balance the need for maintaining the rules for staying in the center with the desire to protect the basic rights of its residents. Lastly, it should be noted that both the finding that a violation has occurred and the decision in regard to the appropriate sanction under the circumstances are subject to the judicial review of the Tribunal. Therefore, although the maximum periods for detention are long, I believe that sec. 32T does not infringe the rights of the infiltrators to a greater extent than required.

113.     There are, therefore, a number of individual arrangements that now meet the tests of the Limitation Clause. Thus, I find no grounds for annulling them. However, we cannot ignore the fact that a central defect remains in regard to the length of the stay in the residency center. Although the lives of the residents of the center have improved, and they have been given broader freedom of action, the provision permitting compelled residency in the center for a very long period continues to stand out. While the infiltrator would appear to enjoy a greater degree of freedom of movement during this period, he is still required to move his habitual residence to the residency center. For a significant part of the day, he is not his own master. He must spend his nights and part of his days with others, in violation of his constitutional rights. In the course of the hearing, the attorney for the Petitioners described the intensity of the violation and the sense of degradation a person incurs when forced to reside in a residency center against his will. I accept the accuracy of these observations in regard to the law that was annulled in the Eitan case, and they remain correct today in regard to the Law under review. I will not deny that the current arrangement benefits the public interest to a certain degree. Placing the infiltrators in a residency center may limit the negative phenomena associated with broad-scale unregulated immigration and ease the burden upon the residents of the major cities (see the Eitan case, paras. 131, 160 and 186). However, we cannot condone restricting the liberty of the infiltrators staying in the residency center for such a long period, even if it is based upon a proper purpose.

 

Conclusion

114.     This petition is the third in a series of petitions in which this Court has addressed the constitutionality of liberty-limiting means adopted against infiltrators. As opposed to the previous judgments, I am not of the opinion that the issues involved in the Law before us should be left for examination in due course, even if deciding them is not entirely necessary in the present matter. In general – and subject to the interpretation presented in my opinion – I am of the opinion that the current Law passes the tests for constitutionality, with the exception of the maximum period for holding a person in the residency center. I will, therefore, recommend to my colleagues that we find that this upper limit is disproportionate and must be voided.

115.     In the previous judgments we established a three-month transition period in the framework of the constitutional relief granted. Experience has shown that that period is insufficient. The legislative process was hasty, and the legislature was unable to conduct an in-depth examination before adopting the new Law. I would therefore propose to my colleagues that we now permit the legislature a longer period – of six months – before the annulment of the maximum period for holding a person in the residency center comes into force. During that period – or until the enactment of a new maximum period for staying in the residency center, whichever is sooner – secs. 32D(a) and 32U of the Law, which establish the authority for ordering that an infiltrator remain in the residency center, will remain in force. However, they will be understood as permitting the Director to order an infiltrator to the residency center for a period not to exceed twelve months. To remove all doubt, the Director is still required to exercise his authority in an individual manner, and decide whether it is proper to issue a residency order to an infiltrator, and if so, for what period. Those currently staying in the residency center upon the issuance of this judgment will be released at the end of twelve months in the center or at the end of the period set for them by the Director, according to the shorter of the two periods. Residents of the residency center who are currently residing in the center for twelve months or more on the day of this judgment – among them Petitioners 1 and 2 – will be released immediately, and no later than fifteen days from the date of this judgment. We would emphasize that in the absence of new legislation at the end of the six-month period, the authority to issue a residency order to infiltrators will lapse.

116.     The petition is therefore partially granted in regard to the maximum period for holding a person in the residency center, in the sense that secs. 32D(a) and 32U of the Law are annulled. As for sec. 32A of the Law and the other individual arrangements established under Chapter D of the Law, subject to the interpretation of the Law that I explained above, the petition is denied. The Respondents will bear the costs of the Petitioners in the amount of NIS 30,000.

 

Justice U. Vogelman:

This Court twice nullified amendments to the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law or the Prevention of Infiltration Law). Now before the Court are additional amendments to the Law made under Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. In her comprehensive opinion, my colleague President M. Naor presented an instructive constitutional examination in which – as this Court is required – she examined for a third time the detention arrangement for infiltrators who arrived in Israel through unregulated immigration, and again addressed the normative provisions establishing the residency center for infiltrators (hereinafter: the center or the facility) – the Holot center. To begin with the end: it is possible that this amendment is not a benefitting statute. In our case law, we have taken note of many other legislative possibilities. But, as usual, the question is not what the ideal legislative arrangement is. The question is whether the arrangement adopted meets the constitutional tests. As I will explain, my opinion, like that of the President, is that sec. 30A of the Law is constitutional, and that the provisions establishing the twenty-month maximum length for residing in the residency center should be nullified. In addition, I have found that the arrangement permitting the transfer of an infiltrator from the residency center to detention should be declared void, as I will explain.

 

Preface to the Constitutional Examination – The Factual Basis for the Decision

1.         Like other countries, Israel is also required to contend with the global refugee and migrant crises that is the worst since the Second World War (U.N. High Commissioner for refugees, Global Trends: Forced Displacement in 2014 (2015) (http://www.unhcr.org/556725e69.html)). Israel is the only western country accessible by land from Africa (see the opinion of Justice I. Amit in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government, para. 15 (Sept. 22, 2014) (hereinafter: the Eitan case). The fence erected on the Israeli-Egyptian border does not absolutely stop unregulated immigration (as the continuing trickle of infiltration into Israel testifies). Before that, tens of thousands infiltrators crossed our borders, and the burden that presents is significant and sadly, would appear to be borne primarily by the weaker more vulnerable segments of the state’s population. In an attempt to contend with this phenomenon, the Knesset made changes to various provisions in the Prevention of Infiltration Law. First it established that an infiltrator entering the borders of Israel, and against whom a deportation order was issued, could be held in detention for a period of up to three months. In the Adam case (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case) a unanimous Court of nine justices held that the maximum period of detention (established in sec. 30A of the Law at that time) was unconstitutional. A majority of eight justices – against the dissent of Justice N. Hendel who was of the opinion that only sec. 30A(c) should be annulled – ordered the nullification of sec. 30A of the Prevention of Infiltration Law. Following that decision, the Law was amended again (hereinafter: Amendment 4) – as a temporary order for three years – establishing that an infiltrator against whom a deportation order was issued could be held in detention for one year (sec. 30A of the law). Along with that, the Law established a “residency center” for infiltrators. Chapter D, which was added to the Law, established that infiltrators could be ordered to the residency center for an unlimited time (and at the very least, for the three-year term of the temporary order). In the Eitan case, the Court majority found that sec. 30A and Chapter D of the Law were unconstitutional and must be annulled. In the two previous cases, I noted that the background of the constitutional analysis must present a picture of the situation that can serve as a foundation for the examination and sharpen the legal questions that must be decided (the Adam case, para. 1; the Eitan case, para. 37). The time that has passed since our last judgment requires that we now do so again.

2.         First, the makeup of the infiltrator population in Israel (on the problematic nature of the term “infiltrator”, see the Adam case, para. 10 of my opinion; the Eitan case, para. 5). The data regarding the identities of the infiltrators were addressed at length in the previous decisions, and in the absence of any significant change in this regard since the decision in the Eitan case, there is no need to address this in detail. It is sufficient to state that the countries of origin of 92% of the infiltrators currently in Israel are Eritrea and the Republic of Sudan (hereinafter: Sudan). The situation in both countries is not easy, to put it mildly. According to the up-to-date reports that I cited in the Eitan case, the Eritrean government systematically violates human rights on a broad scale (see ibid., para. 31). In Sudan, a country with a history of military coups and internal struggles, most of the residents suffer from significant poverty (ibid.). The nationals of those two countries are not directly repatriated to their countries of origin. Eritrean nationals are not currently removed in accordance with a temporary non-removal policy and in accordance with the principle of non-refoulement. Sudanese nationals are not repatriated due to the absence of diplomatic relations with Sudan (the Eitan case, para. 32). I will not repeat what I stated in regard to the reasons that brought these infiltrators to our country, but I will merely note that among them – in my view – are some who sought to improve their economic situation, but there are also those who sought to flee dangers that threatened them in their country. The state is not making haste to decide upon the applications for asylum that have been submitted (see the data in this regard in the Eitan case, para. 35), and it is therefore difficult to reach clear conclusions in this regard.

3.         The matter is different in regard to the number of infiltrators in Israel, which has seen many changes over the last years. In her opinion, the President addressed the current data (para. 3 of her opinion). It was noted that – based upon a publication by the Population and Immigration Authority – there were 47,711 infiltrators in Israel as of March 31, 2015, as opposed to some 50,000 staying in Israel as of the date of our judgment in the Eitan case (at the end of September 2014). From the data provided by the President, read together with the data presented in the Eitan case, it is clear that the decreasing trend in the number of infiltrators in Israel, which began in 2012, is continuing. This is also clear from comparing the number leaving Israel against the number entering. As noted in the President’s opinion, since the beginning of 2014 and until the end of the second quarter of 2015, a total of 104 infiltrators have entered Israel. As opposed to this, 6,414 infiltrators left the country in 2014, and 1,382 left in the second quarter of this year alone (see: Population and Immigration Authority, Policy Planning Department, Data on Foreigners in Israel (July 2015) (hereinafter: July Data of the Population and Immigration Authority)).

            This, therefore, is the basis for the discussion, and against this background we will embark upon the constitutional examination. Inasmuch as the subject has been addressed twice by this Court, and in view of the President’s broad discussion, I see no need to start the examination from the beginning, and in my following remarks I will seek to emphasize and elucidate several points.

 

Section 30A of the Law

4.         Section 30A establishes the law in regard to an infiltrator to whom a deportation order has been issued. The section makes it possible to hold an infiltrator in detention for a maximum period of three months, as opposed to the three-year period that was the situation when the Adam case was adjudicated, and the one-year period we addressed in the Eitan case. Along with this, several changes were made in the section that are not at the core of the matter. There would seem to be no disagreement that this section infringes the constitutional rights of liberty and dignity to which the infiltrators – and all persons – are entitled (see the President’s opinion, para. 32; the Eitan case, paras. 46-47; the Adam case, paras. 71-72). In view of this infringement, we must address the criteria established under the Limitation Clause, and first examine whether the section is intended to serve a proper purpose.

 

“For a Proper Purpose”

5.         In its response (p.35), the State argued that the primary purpose of the section is to exhaust the process of identifying the infiltrator and providing the necessary time for arranging avenues for voluntary emigration or deportation. The Knesset added that the legal arrangement has an additional purpose, as arises from the explanatory notes, of reducing the incentives for potential infiltrators to come to Israel (p. 20 of the Knesset’s response; and see the explanatory notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904, p. 424). My colleague the President found that the dominant of the two purposes of sec. 30A of the Law is that argued by the State. I agree for the same reasons as those presented by the President (without, at this stage of the discussion, addressing the purpose argued by the Knesset, which is actually “deterrence”, to put it euphemistically (see the Eitan case, para. 52)). As I pointed out in the Eitan case, the purpose of identification and exhausting avenues of departure and deportation is a proper purpose (ibid., para. 51). The state has the right to remove a person who entered its territory in an unregulated manner, subject to domestic Israeli law and international law, to which Israel is obligated. However, I emphasized there that the state is permitted to hold a person in detention for that purpose – identification and removal – alone: “Holding a person against whom a deportation order has been issued in detention is legitimate when it is intended to ensure the process of his removal from the country. It is permitted as long as its purpose is deportation, but forbidden when there is no effective removal process, or when the possibility of deportation from the country is not on the visible horizon” (ibid.,).

6.         Unfortunately, despite the findings in the Adam and Eitan cases, the legislature did not include a direct connection between detention and the removal process in the amended version of sec. 30A (on the need for this connection, also see the Adam case, para. 5 of my opinion). There can be no denying that had the legislature adopted a legislative arrangement that included such a connection, along with a periodic review of the situation of the detainee focused upon this question, and appropriate grounds for release when there is no expectation of removal (and see the Eitan case, para. 19) our task would be easier, and the arrangement would pass constitutional review in this regard without difficulty.  I would think that after this had been stated twice by expanded panels of this Court, it would even have been appropriate to do so (see and compare: para. 48 of the opinion of the President). However, I agree that what the legislature left undone, we can add by way of judicial interpretation that will realize the language of the Law and its purpose. In this sense, I concur with the view of my colleague the President that we need not declare the section void, inasmuch as I am also of the opinion that in this matter it is possible to interpret the Law’s provisions in a manner that is consistent with constitutional criteria.

7.         In her opinion, my colleague the President explained in detail why this night is different from other nights, and why we can now refrain from declaring the nullification of sec. 30A of the Law. In brief, the President pointed out the similarity between this arrangement and the arrangement established under the Entry into Israel Law, which our case law has interpreted as requiring an expectation of deportation from Israel (ibid., paras. 39-40), and how this conclusion is consistent with international law (ibid., paras. 44-45). The President further emphasized that the State – for the first time in these proceedings -- agrees with this interpretation (para. 46 of her opinion; see and compare the Eitan case, para. 200). I would like to add to what the President explained that, in my opinion, the period of detention established under sec. 30A of the Law – three months – also supports this view. The maximum period of detention established by the legislature is not long. As noted, it is a period that is only one month longer than that established under the Entry into Israel Law (compare to sec. 13(f) of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry into Israel Law)). This short extension of the period permitted under the Entry into Israel Law derives from the fact that infiltration into Israel is characterized by an absence of any orderly documentation and does not go through a border control point, which makes identification more difficult (see the Eitan case, para. 54). While we are concerned with a longer period of time than that permitted under the Entry into Israel Law, it is a relatively short period that can itself motivate the authorities to take effective steps to identify the infiltrator and examine the possibility of his deportation in accordance with provisions of the law, inasmuch as at the end of this period it is more difficult to ensure that the infiltrator will not “disappear” (see and compare: the Eitan case, para. 54). Thus, while in the Eitan case it was possible to question whether the one-year period of detention was a possible normative expression of the claimed purpose – identification and exhaustion of avenues for deportation (this, even though no one denies the relative complexity of the identification process in the case of unregulated immigration) – in the matter before us it appropriate to take the opposite view. Just as under the previous version of the Law it was difficult to conclude that the purpose was identification and exhaustion of avenues for deportation, shortening the period of detention to three months can serve to demonstrate – even without express language to this effect – the inherent connection between the period of detention and an effective removal process. In this sense, the “quantity” – the maximum detention period – “speaks”, and affects the interpretation of the “quality” (a connection to the existence of an effective removal process).

8.         This change in the quantitative aspect also permits a validating interpretive approach in another sense. In the Eitan case, a careful, respectful approach required resolving the constitutional problem that arose specifically in regard to nullifying the section (as we were confronted head on with a legislative provision that established a one-year period of detention, which is itself disproportionate. Had we sought to establish an alternative period, we would have found ourselves involved in judicial lawmaking (also see: ibid., para 201)), whereas the detention period at present does not raise constitutional problems, as I shall explain. We are therefore left only with the need to ensure that the detainment of the infiltrator – like any case of detention – will not be arbitrary, but rather intended to serve the purpose grounding it. In the matter before us, that purpose is, as noted, ensuring an effective deportation process. While this purpose is not directly expressed by the language of the Law, this time the Law’s provisions can be reconciled with the need to realize it by a judicial interpretative approach that is consistent with the State’s position (although it would be possible to arrive at this interpretation even if the State did not agree with it), and refrain from declaring them void. The provisions of sec. 30A will, therefore, be understood such that an infiltrator who has been identified and who cannot be deported will be released immediately (subject to the grounds stated in sec. 30A(d) of the Law). Given the aforesaid, I conclude that sec. 30A of the Law meets the test of a proper purpose.

Proportionality

9.         In this case, no dispute arose between the parties as to whether the Law’s infringement of rights was intended for a purpose befitting the values of the State of Israel as a Jewish and democratic state (neither in regard to this section, not in regard to Chapter D, which will be addressed below). That being the case, we will now proceed with an examination of proportionality. I will state at the outset that in my opinion, this section also meets the requirements of the three subtests for proportionality. We begin with the question whether the section maintains a rational connection with the Law’s purpose. Our basic assumption for the purpose of this examination is that – in view of the interpretive approach set forth above – we are now concerned with legislation that permits detaining only those regarding whom there is an ongoing identification and deportation process. In the Eitan case I noted that while no one disputes that holding an infiltrator in detention makes it easier to conduct an orderly, controlled identification process and remove the fear that he may flee and thus frustrate the process of identification and removal from the country, it is not clear that there is an effective avenue for removal in regard to most of the infiltrators held in detention under sec. 30A of the Law (ibid., paras. 54-55 and 62). That is so, given the fact that most of the infiltrators are, as noted, from Eritrea and Sudan, to which there is no present possibility of removal. Although as noted above, there has been no change in the identity of the infiltrators, the State now contends that it can deport the infiltrators to “safe third countries” rather than to their countries of origin (and according to its submission, some 1,093 infiltrators have been so removed from Israel). An examination of the arrangements that the state has arrived at with those other countries is beyond the present procedural scope, and I will not make any definitive findings in this regard (as well as in regard to the additional question raised by the State in this regard concerning what might be deemed a lack of cooperation). However, this is sufficient for the purpose of meeting the first subtest.

10.       This brings us to the second proportionality test – the less harmful means test – which was already addressed in the previous cases. In the Eitan case, I noted that even if there are alternatives to detention that other countries have seen fit to adopt, their actual effectiveness is not comparable to that of custodial detention. The legislature enjoys a broad margin of appreciation in this regard, and in the absence of an alternative that can achieve the Law’s purpose to the same or a similar degree of effectiveness, the conclusion is that sec. 30A also meets this test (also see: the Eitan case, paras. 60-66)). The current detention arrangement also meets the third proportionality test – proportionality stricto sensu – as opposed to what was held in regard to this section in its previous version in the Adam and Eitan cases. As may be recalled, those cases addressed a maximum detention period of three years and of one year respectively. As I noted in the Eitan case, the period of time during which liberty is denied affects the intensity of the infringement of the right. The longer the denial of liberty, the greater its infringement (ibid., para. 153). The mirror image of that is that reducing the period of detention lessens the infringement of the right. Indeed, detention for three months is no trivial matter. However, setting the ceiling for detention at three months (instead of a year) significantly reduces the infringement of the right to liberty and the right to dignity. As for the scope of the infringement of the right, weight should be given to the State’s position that the grounds for release of an infiltrator for “other special humanitarian reasons” (sec. 30A(b)(2) of the Law) should be interpreted broadly as a dynamic valve-concept that will allow those responsible for implementing this general ground “to show the necessary sensitivity for limiting the infringement of the right to liberty” (and I would add, in regard to other rights, as may be the case) (see p. 43 of the State’s response). In striking the balance between the infringement of a right and the benefit, I no longer find it necessary to state that it is constitutionally prohibited to hold a person who has immigrated to the country in an unregulated manner for this period of time for the purpose of identification and removal.  This is accepted throughout the world (see: the Eitan case, paras. 73-77), and this may also be done under our domestic constitutional law and the basic principles upon which it is founded.

            In summary, there are no grounds for declaring sec. 30A of the Law void given the agreed interpretation that we have pronounced here. I will now proceed to Chapter D of the Law.

 

Chapter D of the Law

11.       In the framework of this petition, the Petitioners also challenged the provisions of Chapter D of the Law, which permits establishing a “residency center” for infiltrators. In the Eitan case we concluded that the arrangement established under Chapter D of the Law disproportionately infringed the right to liberty and the right to dignity and was, therefore, void (ibid., para. 98). Changes have since been made in this chapter. The President addressed these changes (paras. 53-54 of her opinion), which are primarily as follows: the length of the stay in the center has been limited to a maximum of 20 months; the obligation to register has been set at once a day; the authority of the Director of Border Control to order the transfer of a resident from the residency center to detention has been limited; a resident may be released from the center on a number of grounds; and special groups, such as women and children, will not be sent to the residency center. Despite these changes, Chapter D of the Law continues to infringe protected constitutional rights. I will now address this.

 

The Infringement of Constitutional Rights

12.       I addressed the issue of the infringement of rights in Chapter D at length in the Eitan case (ibid., paras. 117-127). The State recognizes the fact that Chapter D can indeed limit and infringe the right to liberty, but it reiterates its previous argument that infringing a right is not the same as denying it. The State is further of the opinion that the infringement of the right to liberty “is only at night (between 10 PM and 6 AM)” (p. 31 of its response), when the facility is closed and entry and exit are prohibited. I cannot accept this argument. First, although precisely defining the scope of the infringement of the right is of importance at the later stages of the constitutional examination, every infringement – whether minor or severe – is sufficient to require an examination under the Limitation Clause. At this point, the question of whether we are concerned with a “limitation” of the right or its “denial” is of no consequence, as “every limitation, regardless of its scope, is unconstitutional unless it is proportional” (Aharon Barak, Proportionality – Constitutional Rights and their Limitations, 136 (2010) (Hebrew); see: the Eitan case, para. 117; also see above, para. 59 of the opinion of the President).

13.       Second, and most importantly, I am not of the opinion that the infringement of the right to liberty is “only at night”. A person’s liberty is not infringed by walls alone. Section 5 of Basic Law: Human Dignity and Liberty states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. How shall we interpret “or otherwise”? Does it apply only to a physical restriction upon liberty, or might it also extend to the individual’s right to autonomy (also see: the Eitan case, para. 171)? The State proposes the most limited interpretation: in any other manner that restricts a person’s physical liberty. In my opinion, that is not an appropriate interpretation. “Personal liberty is not confined to a person’s physical liberty” (Aharon Barak, Human Dignity – The Constitutional Right and the Constitutional Right, vol. I, 344 (2014) (Hebrew) (hereinafter: Barak, Human Dignity)). Of course, not every infringement of free will and of the autonomy of will constitutes an infringement of the right to liberty (see: ibid.). But in my view, an extreme denial of an individual’s choices constitutes an infringement of the right to liberty. An infiltrator residing – under coercion, let us not forget – in a residency center is not a free person even during those hours of the day when he is not enclosed within its walls. We must bear in mind that even though the requirement of reporting three times a day was rescinded in the new Law, and even though the center is sealed off only at night, it is questionable whether many of the residents have an effective possibility of leaving or travelling far from the facility. This is so in view of the “pocket money” given to the residents, which stands at NIS 14 per day (reg. 2 of the Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2014 (the regulations were not challenged in the petition); the prohibition upon persons staying in the residency center to work in Israel (sec. 32F of the Law); and the geographic location of the Holot facility. Under these circumstances, I am not convinced that a resident is able to routinely stray from the facility and provide for himself over the course of the day. This normative situation greatly limits the personal autonomy enjoyed by the infiltrators – who are subject to conduct and disciplinary rules that accompany them when they exit the gates of the residency center – and this restriction also affects their right to liberty. In this regard, the words of Justice E. Goldberg are apt:

As Thomas Hobbes said: “A free man is he that… is not hindered to do what he has a will to” (Hobbes, Leviathan, ch. 21). The scholar Isaiah Berlin discussed the positive meaning of this concept in his essay Two Concepts of Liberty:

“The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside” (I. Berlin, Two Concepts of Liberty, 1958).

Indeed, there is a strong connection between the right of liberty, and its derivative the autonomy of the will, and human dignity (FH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661, 723 (1996) [http://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0]).

            Our case law has also recognized an infringement of the right to liberty in other contexts that are not restricted only to “sealed gates” (see and compare: HCJ 4542/02 Kav LaOved v. Government of Israel, IsrSC 61(1) 346, 378 (2006) [http://versa.cardozo.yu.edu/opinions/kav-laoved-worker%E2%80%99s-hotline... (“The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty” (Justice E. E. Levy); “The arrangement has violated the autonomy of the workers as human beings, and it has de facto taken away their liberty” (Deputy President M. Cheshin, ibid., p. 403); LCA 10520/03 Ben Gvir v. Dankner (Nov. 12, 2006) (“The right to a good name also derives from a person’s right to liberty, which is not exhausted in the protection of his body, but also of his spirit” (para. 12 of the opinion of Justice A. Procaccia); HCJ 2123/08 A. v. B., IsrSC 62(4) 678, 696 (2008) (“The phenomenon of get refusal […] involves severe, painful harm to a woman who is left chained to a marriage in which she is no longer interested: her liberty is infringed, her dignity and emotions are infringed […]”) (Justice E. Arbel); HCJ 3368/10 Ministry of Palestinian Prisoners v. Minister of Defence, para. 52 (April 6, 2014) [http://versa.cardozo.yu.edu/opinions/ministry-palestinian-prisoners-v-mi... (“The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty” (Justice E. Arbel); HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 603-604 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (“But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison […] and complies with the rules of conduct in the prison, which also restrict his personal liberty” (President D. Beinisch). See additional references in Barak, Human Dignity, 343-344, and compare to his approach according to which “the proper interpretation of the term ‘otherwise’ is in any other way that physically limits a person’s liberty, or any other liberty of similar force” (ibid., p. 345).

14.       If we find that the right to liberty of the center’s residents is infringed even when they are not required to be there, in view of the requirement that they reside in the center to which they have moved their habitual residence, it is self-evident that staying in the residency center also infringes the right to dignity – their ability to choose how to conduct themselves and narrate their life story. I discussed this at length in the Eitan case (ibid., paras. 120-127).

15.       What is the extent of the infringement of rights under Chapter D in its current formulation? Indeed, increasing the openness of the residency center (by means of registering once a day); granting the Director authority to exempt an infiltrator from registering for four days (instead of the prior two days); establishing a twenty-month maximum period of residence; excepting special populations; and certain changes in the Director’s authority to order the transfer of a resident to detention have all somewhat reduced the infringement of rights. However, the Holot facility still remains isolated in the desert. We are still concerned with a facility in which a person torn from his life is forced to stay for a long period. His privacy is infringed – surrounded by jailers. The infringement of rights thus remains.

 

For a Proper Purpose

16.       Having found an infringement of rights, we are obligated to examine whether the legislation meets the tests of the Limitation Clause. In her opinion, the President noted that the main purpose of Chapter D of the Law is “to stop the permanent settling of the infiltrator population in the urban centers, and prevent them from working in Israel”, while providing an appropriate response to their needs (ibid., para. 61). The President further took note of the Petitioners’ argument, also voiced in the Eitan case, that this chapter of the Law has a hidden purpose that is its true purpose: “breaking the spirit” of the infiltrators so that they will leave Israel. I addressed all of these purposes in the Eitan case (for a discussion of the purpose of preventing settling, see ibid., para. 103; on the purpose of responding to the needs of the infiltrators, see ibid., paras 104-106; on the claimed purpose of “encouraging voluntary emigration”, see ibid., paras. 107-113). I will, therefore, only briefly address these matters.

 

Preventing Settling

17.       We will begin with the purpose concerning the prevention of settling (or “stopping settling”) that I left to be addressed in due course in the Eitan case (ibid., para. 103). I explained there that in any case, in my opinion, the provisions of Amendment 4 – the amendment under review in that case, and which introduced Chapter D – did not pass the constitutional tests, and therefore there was no need to address the question whether the purpose was proper (also see my position in the Adam case, para. 19 of my opinion). However, I was willing to assume, for the sake of argument, that it was a proper purpose. The President has now proposed that we expressly find that this purpose is proper (para. 66 of her opinion). I will therefore address this question.

18.       “Preventing settling” – of whom? In the Eitan case, I addressed the problematic nature of separating one population from another (see: ibid,. para. 103 of my opinion). The reason for this is clear: the infiltrator population – as a matter of fact – has been with us for some time. Despite the fog surrounding the matter form a normative perspective (see: AAA 8908/11 Asafu v. Ministry of the Interior, the opinion of my colleague Justice E. Hayut (July 7, 2012); the Eitan case, para. 104) – which is no cause for celebration – there is no dispute that those infiltrators who are not in the Holot facility (which is the majority of the infiltrator population; see para. 55 of the President’s opinion) are living substantial lives in Israel’s cities. The State does not wish to reconcile with this situation. It is permitted to do so. In this regard, the State informed us that it has established and continues to work on establishing arrangements that will, in its view, facilitate the departure of infiltrators from Israel. These arrangements are not under review in the context of this petition, but in any case it is clear – and no contrary argument was made – that there is no concrete expectation for the mass removal of tens of thousands in the near future. That being the case, and inasmuch as we cannot order these people to return to their countries of origin, is it proper for us to seek to “prevent them from settling”?

19.       At the end of the day, I have reached the conclusion that, in one sense, it can be assumed that while the matter is not problem free, we are concerned with a proper purpose. In this regard, I am referring to the interpretation of this purpose as “alleviating the burden” on the cities in which most of the infiltrators are concentrated – particularly south Tel Aviv. We need not waste words on the fact that the number of infiltrators who cannot be removed is large. In the years 2009-2011, thousands and more infiltrators entered Israel each year (see: the Eitan case, para. 38). Most of the infiltrators are concentrated in one geographical area. This concentration imposes a very heavy burden on the local population. The situation of infiltrators settling in the southern part of the city has changed the area’s character, increased crowding, and contributed to the problems of daily life of the local residents. I addressed this at length in the Eitan case (ibid., para. 210). This burden – in terms of a small country with a small population, like Israel – is exceptional. Under the existing circumstances, we cannot deny that we are witnessing a “mass influx” of infiltrators. Given such a mass influx, I do not see reason to contradict the view that legislation seeking to prevent infiltrators from settling is, at present, intended for a proper purpose.  This, as noted, is subject to our understanding of “prevention of settling” as intending to achieve a temporary division of the burden (with emphasis on the fact that we are concerned with a “temporary order”). Together with this, we should bear in mind that thousands of infiltrators left Israel since 2014, with only a few entering. The number of infiltrators is thus going down, and as I have already noted, “different factual data may […] lead to a different legal result (the Eitan case, para. 37). It is possible that in the future – perhaps the near future – the pressing social need for a strict normative arrangement for the infiltration phenomenon will assume a different character (see and compare: the Eitan case, para. 69), and if the downward trend of infiltration to Israel continues, and to the extent that the temporary order may be extended, the question of whether we are concerned with a “proper purpose” may arise for reconsideration.

20.       In conclusion, at present I see no reason to reject the State’s position in regard to this purpose. Along with this, like my colleague the President, I am also of the opinion that there is no present need to address the purpose of preventing the infiltrators from earning a livelihood in Israel, in view of the parts of the Law upon which the Petitioners focused their challenge (para. 76 of the opinion of the President).

 

Preventing the Resurgence of the Infiltration Phenomenon

21.       Despite the title given to this purpose, we would make it clear that we are concerned with a deterrent purpose, with all the difficulties that were expressed in this regard in the Adam case and the Eitan case (ibid., para. 52 of my opinion), inasmuch as the State clearly informed us that this purpose means the reduction of the economic motivation of potential infiltrators – now in Africa – to immigrate to Israel (para. 52 of the State’s response). In the Adam and Eitan cases, I refrained from making any decisive statement in regard to the deterrent purpose (argued in regard to sec. 30A of the Law), inasmuch as in any case that section did not meet the proportionality tests (see: the Adam case, para. 19 of my opinion; the Eitan case, para. 52). I believe that we now must expressly decide the question whether this purpose meets the proper-purpose test. In my opinion, except in particularly exceptional cases – which are not present in the current circumstances – this purpose is improper. My colleague the President (para. 77 of her opinion) states that since we have already recognized that “having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect”. I agree with that. As I pointed out in the Eitan case, I, too, am of the opinion that “there is nothing wrong with the detention of an infiltrator, intended to advance the process of his deportation, having an attendant deterrent effect” (ibid., para. 52), and that is true not only in regard to custody, but also in regard to the residency center. But the State’s argument shows that it thinks that deterrence is not an attendant purpose appended to the other, proper, purpose but rather a separate and distinct purpose that it believes is also proper. It even refers to it as “the second purpose” (alongside “the first purpose” that concerns preventing the infiltrator population from striking roots, and “the third purpose”, which concerns providing an appropriate response to the needs of that population). I cannot agree to this separate existence. In my view, this purpose cannot stand on its own – and standing on its own, it is improper. Justice E. Arbel addressed this at length in the Adam case, and I see no need to revisit it (ibid., paras. 85-93; but compare the position of Justice I. Amit in the Eitan case, according to which changing the incentives in regard to potential infiltrators is a proper social purpose that derives from the principle of state sovereignty, paras. 9-10 of his opinion).

22.       Moreover, the State notes that changing the array of incentives for potential infiltrators is rooted in the integration of the provisions of sec. 30A (concerning detention) and the provisions of Chapter D (which addresses the establishing of a residency center). The relationship between the two is established by sec. 30A(k) of the Law, according to which an infiltrator will be ordered to the residency center upon release from custody. According to the State, these two change the array of incentives and encourage potential infiltrators to refrain from trying to reach Israel. I read and reread the State’s argument, and it is not clear – even were I willing to accept that we were concerned with a proper purpose (which is not the case) – why “changing the array of incentives for the potential infiltrator”, or deterring him from coming to Israel, would not be achieved by making the provisions of the Law, in regard to Chapter D as well, of prospective effect. To the extent that the State seeks to deter someone from arriving in Israel, it should in any case suffice that the said normative arrangement apply only to that potential infiltrator who is currently somewhere else and considering whether to make his way to Israel. That is not what was done in the legislation we are examining.

23.       As opposed to this, the Knesset’s view is that the purpose of reducing the economic incentive is also relevant in regard to existing infiltrators wishing to remain in Israel (p. 13 of the Knesset’s response). This framing of the matter raises questions in regard to the possibility of encouraging “voluntary emigration” by such means (see the Eitan case, paras. 107-113 of my opinion), and I will address this below. It remains to address two matters – the purpose of providing a response to the needs of infiltrators and the additionally claimed purpose of “encouraging voluntary emigration”. I will briefly state, as I already stated in the Eitan case, that the purpose of “providing a response to the needs of the infiltrators” is proper (ibid., para. 104 of my opinion). I indeed continue to doubt whether the residency center actually realizes this purpose in practice, but I do not believe that the constitutional framework is the appropriate one for addressing the dispute as to the manner of operation of the Holot center, on which the parties to these proceedings continue to disagree.

            I will now turn to the issue of the claimed purpose of “encouraging voluntary emigration”.

 

Encouraging Voluntary Emigration

24.       The starting point for examining this purpose is that a person cannot be compelled to go to a country that presents a danger to his life or liberty. But what of a person who does so of his own will? In the Eitan case I noted that leaving the country might be deemed prohibited deportation or “constructive removal” (and not leaving of “free will”) not only in situations in which the state officially orders a person’s deportation, but also when the state adopts particularly severe, harmful means intended to exert pressure that will lead to a person to leave the country “willingly”. The decision to leave the country – which is a choice that should not be influenced – must be free of unreasonable pressures (ibid., paras. 110-112). In the Eitan case I addressed the question whether the purpose of Chapter D of Amendment 4 was to deny such free will – a question which, in my view, was not easy to decide nor free of doubts. This is what I said then:

It would appear that no one would disagree that the residency center established by virtue of Chapter D of the Law presents a serious hardship for the lives of the infiltrators, and such hardship may certainly serve as an incentive for a person to leave the country. However, certain hardships are the lot of every person who chooses to immigrate to another country in an unorderly manner. It is not possible – and even, in some senses, undesirable – to eliminate them entirely. There is a fine line between legitimate incentives (such as financial incentives) to leave the country and applying significant, unfair pressure that, in practice, deprives the illegal aliens of their ability to choose not to leave the country. Does Chapter D cross that line in view of its the inherent, indeterminate denial of liberty, and other matters that will be addressed below? While I do not believe that the Petitioners’ arguments in this regard can be dismissed out of hand, I do not find it necessary to decide the matter inasmuch as I believe that in any case, Chapter D of the Law must be annulled because it does not meet the requirements of proportionality (ibid., para. 113).

25.       As opposed to this, in the present case the President expressed her view that the current Law is not intended to break the spirit of the infiltrators (paras. 80-81 of her opinion). In this regard, the President relied, inter alia, on the fact that the claim that here is a “hidden” purpose of this type was denied in the hearing before us by the State’s attorney as well as in the responses of the Knesset and the State to the petition (para. 79 of her opinion). She also noted that the residency center offers activities and employment (ibid., para. 80). I have considered this, but I do not believe that it is sufficient to remove the doubts that I expressed in the Eitan case. It should first be noted that in the course of the deliberations that preceded the enactment of Amendment 4, representatives of the governmental agencies expressed themselves in a manner that showed that the possibility of encouraging “voluntary emigration” loomed in the background of the legislation (see the Eitan case, para. 113). On the day our judgment in the Eitan case was handed down, the then Minister of the Interior announced that “the second amendment of the law has made a significant contribution to the process of voluntary emigration” (his announcement was appended to the petition and marked P/20). This matter was not forgotten in the deliberations on the Law that is the subject of these proceedings. Thus, for example, in a meeting of the Knesset Internal Affairs and Environment Committee on Oct. 6, 2014, the committee chair noted: “[…] by means of the law we have succeeded in voluntarily returning […] many infiltrators”, and the Minister of the Interior added: “I set a goal of removing infiltrators […] we had a tremendous upswing in the voluntary emigration of infiltrators […]” (Protocol of meeting 384 of the Internal Affairs and Environment Committee of the 19^th Knesset, pp. 4 & 6 (Oct. 6, 2014)). On Nov. 11, 2013, the Director of the Enforcement and Aliens Department of the Population and Immigration Authority noted in a meeting of that committee that “Whomever it is decided to send to a residency center will be given a referral that very moment, the residency permit he now holds in his hand will be revoked and his employment will be massively enforced. The moment he enters the facility, we will continue all of the procedures for encouraging voluntary emigration” (Protocol of meeting 117 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 14 (Nov. 11, 2013)). In a meeting of that committee on Dec. 8, 2014, Knesset member David Tzur noted: “Holot must not be closed. We have to create a situation that amplifies the incentive for infiltrators to leave here. That’s what I say” (Protocol of meeting 435 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 6 (Dec. 8, 2014)).

26.       If that were not enough, despite the declaration by the State’s attorney in the hearing before this Court that “Certainly, most certainly” no actions were or would be taken to “break spirits”, and although my colleague the President emphasized in language that could not be clearer that “[…] no actions intended to bring about voluntarily leaving the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner” (para. 83 of her opinion), the State did not reply to the concrete claims of the Petitioners in these proceedings – which were supported by affidavits – that they were indeed heavily pressured in the residency center to leave the country. Thus, for example, Petitioner 2 stated:

Every meeting with prison guards and clerks, and even with the clinic staff, is always accompanied by one question: “Why don’t you leave?” The fact that my asylum request has not been examined for over a year doesn’t interest anyone. All the people in Holot care about is that I leave, and the pressure in this regard is really unbearable (para. 23 of the affidavit of Petitioner 2, appended to the Petition and marked P/3).

The Petitioners further claimed that when the center’s residents meet with representatives of the Population and Immigration Authority to submit requests for “leave”, they are pressured to “depart voluntarily” (p. 55 of the petition). They argued on and on, and even presented additional examples, but no real answer was forthcoming from the Respondents.

27.       Lastly, the question of the identity of the people sent to the Holot facility and the criteria established by the administrative agency in this regard continues to accompany us since the Eitan case (see: ibid., paras. 90-91). I will also address this issue briefly further on. At this point I would only point out that the result of the implementation of these criteria is that 76% of the Holot residents are Sudanese and 24% are Eritrean. This is almost the reverse of their relative proportions. According to the July data of the Population and Immigration Authority, 19% of the infiltrators into Israel are Sudanese and 73% are Eritrean. According to the Petitioners – and I do not intend to rule on this argument in these proceedings – “in the Respondents estimation, there is a better chance of breaking the spirts of the Sudanese nationals and forcing them to “agree” to leave the country” (p. 48 of the petition). Indeed, certain aspects concerning the implementation of the Law are not, at least directly, of constitutional import. However, questions regarding the implementation of the Law may influence the decision of whether it meets the proportionality tests (HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (para. 33 (May 28, 2012) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-i... (hereinafter: the Association for Civil Rights case)), and in my opinion, these aspects may even aid in the examination of the purpose of the Law in seeking to understand the difference – if there be one – between the declared purpose of the Law and its true purpose.

28.       On this occasion, as well, I do not wish to place exclamation points after these question marks and decide as to the existence or absence of this claimed purpose, and I do not take lightly the State’s declarations before us in this regard. Nevertheless, it would appear to me that even if we are unable to determine that the purpose of Chapter D of the Law is to “pressure” the infiltrators to agree to leave Israel, the above suffices for us to refrain from making a positive finding in the matter. In conclusion, we can, at present, suffice in finding that the main purpose of Chapter D of the Law is to prevent the infiltrator population from settling in the urban centers. In the present time and circumstances, we cannot say that this is not a proper purpose. We will, therefore, proceed to an examination of the proportionality of the Law’s provisions.

 

Proportionality

29.       The legislature introduced several changes into the arrangement currently before us, which were presented in detail by the President, but it remains fundamentally similar to its predecessor. Under these circumstances, I see no need for a comprehensive examination of the details of the various arrangements that I reviewed in at length in the Eitan case, so I will suffice with a summary. I will focus my examination on two specific arrangements that require special attention: the authority to issue a residence order to an infiltrator for a maximum period of twenty months, as prescribed by the legislature, and the arrangement permitting the detention of an infiltrator for various disciplinary offenses. As for the former I agree with the relief proposed by the President. As for the latter, I would propose that we declare it void and issue appropriate transitional instructions.

 

The Authority to Order Residency and the Length of Residency in the Center

30.       If the Director of Border Control finds any problem in regard to deporting an infiltrator to his country of origin, “he may order that the infiltrator stay in a residency center until his deportation from Israel or his removal therefrom, or until another date as shall be decided” for a period of twenty months in total (sec. 32D and 32U of the Law). Residency orders will not be issued to such defined populations as minors and women, as will be explained below. This is the core of Chapter D of the Law, in that – subject to criteria established by the administrative agency – it authorizes holding an infiltrator in a residency center, and establishes the maximum period of such a stay. As my colleague the President noted, examining the proportionality of this arrangement requires that we address its reciprocal relationship with other particular arrangements in the Law (para. 85 of her opinion), as I will now proceed to do.

 

The Rational Connection Test

31.       The rational connection test requires that the chosen means be suitable for realizing the Law’s purpose. I earlier noted several possible purposes, and I will focus my examination of proportionality upon the purpose of “preventing settling”, which is the most important of the purposes of Chapter D of the Law. Is there a rational connection between the authority granted to the Director and this purpose? Answering this question became more complex after a twenty-month limit was established for residency in the center. I noted in the Etan case that the absence of a limit upon the period of residency ensures the realization of the Law’s purpose in manner that meets the rational connection test (para. 158). I added there that any limitation of the residency period would mean that the infiltrator could return to the labor market after a certain period of time (inasmuch as the State undertook not to enforce the work prohibition in regard to those not being held in the residency center). Indeed, the very setting of a time limit for staying in the center creates a “revolving door” in and out of the center in a manner that does not make it possible to prevent setting down roots, but at most delays it until such time as the infiltrator returns to his place of residence and his work. Even were one to say that such settling is prevented, but only for a limited period (which is the State’s contention – se p. 67 of its response; and also see its statement that the Law is not “an exclusive means solely responsible for achieving the proper purpose of preventing 48,000 infiltrators from settling in Israel”, ibid.), we are concerned with a law that only partially achieves its purpose, inasmuch as an infiltrator – regarding whom there is no concrete expectation of removal – will return to the urban centers. We would add that, at present, the maximum occupancy of the Holot center is 3,360 residents (according to the State’s submission at p. 66 of its response), which is but a small part of the infiltrator population. Thus, only a minority of the infiltrator population is “prevented” (or delayed) from settling. However, it should be noted that the Law does not set a limit upon the size of the residency center, nor upon the number of residency centers that may be established. In practice, the State’s contention is that the Holot center serves as a sort of “pilot” (the Eitan case, para. 128).

32.       Ultimately, I believe that the rational connection in this case is not entirely clear. Despite my doubts, I would not say that there is no such connection. As the President noted, the chosen means need not fully realize the Law’s purpose (para. 90 of her opinion), and I am willing to assume that this arrangement meets the first proportionality test. In any case, this matter can be revisited in the future (see para. 91 of the President’s opinion).

 

The Less Harmful Means Test

33.       An infiltrator ordered to report to the residency center cannot “establish himself” in the urban centers. During the period of his required residency in the center, his life is primarily in the center. In this sense, the residency center realizes the Law’s primary purpose – preventing the infiltrators from settling – with relatively high effectiveness. Indeed, one might think of other means that might serve to achieve this purpose, like geographic dispersion or various grants that might serve as an incentive – a “carrot” rather than a “stick” – for living and working in various places other than the urban centers. However, presence in the residency center is compelled. It is not subject to the infiltrator’s free choice. A person who chooses not to report to the center is subject to the severe sanction of detention, which I will address in detail below. I therefore tend to the view that it is doubtful whether there is a less harmful means with the potential for achieving the Law’s purpose to a similar degree of effectiveness (the Eitan case, para. 159).

 

Proportionality Stricto Sensu

34.       Thus far, the arrangement has passed the proportionality tests. However, in my opinion, this arrangement fails the last and most important value-based test inasmuch as the provisions that permit holding a person in a residency center for a maximum period of twenty months do not maintain a direct relationship with the benefit they achieve. In assessing the balance between the benefit and harm of the infringement of constitutional rights, I will begin with an examination of the benefit. In the Eitan case I emphasized that “there is some truth to the opinion that Israeli society benefits from its members not being required as a matter of course to bear the burden of absorbing tens of thousands of infiltrators, and that the negative phenomena associated with mass, unregulated immigration – which cannot be ignored – are substantially reduced when they are placed in a residency center” (ibid., para. 160). But the benefit provided by this arrangement does not outweigh its infringement of rights. I explained this in detail in the Eitan case, and I see no need to repeat what I stated there. I will therefore focus upon the changes introduced into Chapter D of the Law and their consequences. I will first point out that under Amendment 4, Chapter D did not except special, particularly vulnerable groups from its compass. That is not the case in the present version of Chapter D, in which sec. 32D(2) prohibits issuing a residency order to minors, women, persons over the age of sixty, the parent of a dependent minor, “a person whom the Director of Border Control is convinced might be harmed by residing in the residency center due to his age or state of health, including his mental health, and there is no other way to prevent such harm”, and so forth. I pointed out in the Eitan case that “individual infiltrators not referred to the residency center due to their personal status, or who may later be released therefor, would not detract from achieving the purpose grounding the legislation, and would, at most, detract to an insignificant extent”, and that the absence of exceptions “forcefully emphasizes the lack of proportion (in the narrow sense) of the comprehensive prohibition” (ibid., para. 187). The amendment of the Law has resolved this problem to a great extent.

35.       Another change introduced by the legislature concerns the center’s registration requirement. Amendment 4 required that during the daylight hours – when the center is “open” and the residents may leave and enter freely – they must report three times. As I pointed out in the Eitan case, the need to report for registration at noon severely detracts from the practical possibility of leaving the facility for any uninterrupted activity (ibid., para 118), as “a person needs an appropriate window of time in order to fill his life with real content. Short, fixed periods are insufficient for that” (ibid., para 127). The Law now provides that the residency center will be closed at night (between 10:00 PM and 6:00 AM), and that a resident must report for registration once a day, between 8:00 PM and 10:00 PM (sec. 32H of the Law). This change somewhat blunts the intensity of the infringement of the right to liberty and the right to dignity. It allows the infiltrator greater freedom of action, inasmuch as he may leave the residency early in the morning and return in the evening. However, as I noted earlier, we should not overestimate the importance of this change in terms of lessening the infringement of the right. “May” is not necessarily “can”. The center of life of an infiltrator required to report to the residency center transfers to that center. He is not a free man, inasmuch as he conducts his daily life in the shadow of the demand to return to the center at night, and his ability to realize his autonomy is dictated by the Law’s provisions that forbid him to work, the small amount of “pocket money” that he receives, and the location of the Holot center. Clearly, while there have been changes, the arrangement continues to infringe his rights (see paras 12-15, above).

36.       The arrangement that I addressed in the Eitan case in regard to the administration of the residency center by the Prisons Service has barely been changed. The operation of the facility is entrusted to the Prisons Service under sec. 32C of the Law, which requires that when the Minister of Public Security proclaims the establishment of a residency center, he must appoint a senior warden as its director, and the Commissioner will appoint corrections officers who will work for the center (after appropriate training). I noted in the Eitan case that placing the operation of the residency center in the hands of the Prisons Service – which is also granted the broad powers required for operating the center – amplifies the infringement of the infiltrators’ rights (ibid., para, 138), as the entity operating and administering the open residency center is in daily contact with the residents of the center, has substantial control over the entire scope of their lives, and therefore has decisive influence over how the center is perceived by its residents – whether an open facility with a civilian character, or a prison or detention facility with a criminal character (ibid., para. 144). However, I stressed that “it is possible that another normative approach for arranging the facility’s operation would pass the constitutional test even if the entity entrusted with its operation were the Prisons Service” (ibid., para. 146). The arrangement has essentially remained unchanged, and corrections officers continue to operate the residency center.

37.       What is the upshot of all this? It would seem that although there has been some mitigation of the infringement of human rights that was found in the prior version of Chapter D following Amendment 4, in view of the provisions regulating the lives of the residents of the residency center – including those in regard to when one must report to the center and when one may leave, who operates it and the authority granted him – the infringement of rights remains, and it is severe. As I noted in the Eitan case, “a proportionate normative arrangement must maintain a proper relationship between the extent of the limitation of rights in the facility and the maximum length of the stay therein, such that the more severe the limitation of basic rights, the shorter the period of imposed residence in the facility” (ibid., para. 162). The reason for this is that Chapter D is built as an equation. “One arrangement (like the rigid registration requirement) may be balanced by another arrangement (like fixing the period of residency for a shorter period)” (the Eitan case, para. 100). The twenty-month period established in the Law is a very long time (in fact, there is no parallel to such a period of residency in a residency center anywhere in the world, see: the comprehensive survey in the President’s opinion, paras. 101-105; and see: the Eitan case, para. 163). The time dimension substantially affects the infringement of the dignity of the person deprived of liberty. Depriving liberty for a short period allows a person to return quickly to his normal life. That is not so in the case of a very long period (the Eitan case, para. 154). Because the infringement of rights of imposed residence in the facility and the maximum term of that residence are inextricably tied, and in view of the extent of infringement of rights inherent in Chapter D, I am of the opinion that the maximum period of residence established by the Law does not maintain that proper relationship, despite the benefit it provides. The result is that secs. 32D(a) and 32U of the Law are disproportionate and therefore unconstitutional. Subject to the aforesaid, I concur in the opinion of the President and the relief she proposes.

            I will now proceed to an examination of an additional arrangement – that permitting the transfer of an infiltrator to detention.

 

Transferring an Infiltrator to Detention

38.       The State seeks to compel reporting to the residency center. It seeks to operate it in accordance with defined rules of conduct. To that end, it must hold “coercive power” that will deter infiltrators from perpetrating infractions (the Eitan case, para. 183). The State chose the means of detention of an infiltrator who perpetrates various infractions. The length of detention depends upon the type of infraction and the number of orders issued in regard to infractions committed. In the Eitan case, the periods of detention ranged from thirty days of detention for a minor infraction to a year for the repeated perpetration of certain infractions (ibid., para. 166). As I noted in the Eitan case, transferring a person to detention from the residency center (and even persons not in the residency center) infringes his constitutional right to liberty. This is so because “transfer from the residency center to a detention facility involves the limitation of various aspects of the right to liberty that are not limited merely to an amplified infringement of physical liberty […] [it] prevents the possibility granted to an infiltrator in the residency center to leave its confines at the permitted times; it limits the possibility of creating social relationships; it disrupts the routine that the infiltrator has adopted in the course of his stay in the center” (ibid., para. 168).

39.       In the Eitan case, I was of the view that sec. 32T – in its former version – also infringed the right of the infiltrators to due process, in addition to the infringement of their liberty. This section granted the Director authority to order the transfer of an infiltrator to detention without that decision being subject to automatic judicial review by any judicial or quasi-judicial body, other than for the grounds for release under sec 30A(b) of the Law, and did not comprise the appropriate “procedural guarantees” that are a precondition of the constitutional right to due process (the Eitan case, paras. 167, 179). The infringement of the right to due process was found to be disproportionate in the Eitan case. That conclusion obviated the need to examine whether the section passed the other constitutional criteria of the Limitation Clause due to its infringement of the constitutional right to liberty (ibid., paras. 183-184). I also noted that the issue of the independent infringement of the right to liberty was worthy of a separate examination in view of the periods of detention, inasmuch as placing a person in detention for extended periods “crosses the border between a ‘disciplinary’ sanction that is primarily deterrent and a ‘penal’ sanction that is of a retributive nature”. I took particular note of the fact that an overly long period of detention “may also be disproportionate (in and of itself) in view of its severe infringement of the right to liberty, even if the Director’s decision were subject to automatic judicial review” (ibid., para. 184).

40.       The current Law also authorizes the administrative agency – more precisely: the Director of Border Control – to impose punishment in the form of deprivation or restriction of a person’s liberty as part of the disciplinary arrangement. Before making such a decision, the Director is required to permit the infiltrator to “present his arguments to him” (sec. 32T(e) of the Law). To what extent is the Director able to make an informed decision in the matter before him? Needless to say, in making such a decision the Director is subject to the rules of administrative law, and he must observe them with utmost strictness. Inter alia, the infiltrator must be informed of the nature of the charge or claim against him, he must be given a fair opportunity to respond to the information provided in his matter, and appropriate arrangements must be made in view of the fact that some of the infiltrators do not know the language (see and compare, e.g: AAA 7201/11 Rahmani Ltd. v. Airports Authority, paras. 43-45 (Jan. 7, 2014) (hereinafter: the Rahmani case); AAA 1038/08 State of Israel v. Gaevitz (Aug. 11, 2009); LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697 (1998); HCJ 656/80 Abu Rumi v. Minister of Health, IsrSC 35(3) 185 (1981); Daphne Barak-Erez, Administrative Law, vol. I, 498-529 (2010)). The Director’s decision must also be grounded upon an appropriate factual foundation directly corresponding to the infringement of basic rights inherent in a decision to place a person in detention (see and compare: HCJ 394/99 Maximov v. Ministry of the Interior, IsrSC 58(1) 919, 928-931 (2003); HCJ 3615/98 Nimoshin v. Ministry of the Interior, IsrSC 54(5) 780, 787 (2000); and see: HCJ 7015/12 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 372 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]). However, the Law does not grant the Director such powers as the power to summon or subpoena witnesses. Such powers could serve to increase the probability that the proceedings will achieve a correct result and increase the chances that they will be fair from the perspective of the person charged, such that it will be easier for him to accept the result (see and compare: the Eitan case, para. 174). This is problematic in view of the degree of the infringement of rights.

41.       However, as opposed to the situation in Eitan case, under the current legislation the Director’s discretion is subject to the review of the Detention Review Tribunal (hereinafter: the Tribunal). The Director’s decision is examined de novo by the Tribunal, which can approve or reject the Director’s order (sec. 32T(h) of the Law). The Tribunal is not restricted to the grounds for termination of detention under secs. 30A(b)(1)-(3) of the Law, and it is also required to examine the lawfulness and reasonableness of the Director’s decision. To that end, the Director’s decision must be properly reasoned so that the considerations leading to the decision can be examined, and so that the decision can be subjected to judicial review (see and compare: the Rahmani case, para. 9 of the opinion of Justice Joubran). In my opinion, the Tribunal must address the Director’s findings in their entirety, in a manner similar to the “double instance” model. In other words, it must permit the resident of the center to present his arguments and submit supporting evidence (see and compare: Chemi Ben-Noon, The Civil Appeal, 13 (3^rd ed., 2012)). To that end, the Tribunal, as opposed to the Director, holds broad powers by virtue of the fact that it exercises its review in accordance with the Administrative Courts Law, 5752-1992 (see the opinion of the President, para. 110). It should be stressed that the current procedure establishes self-initiated review by the Tribunal, with no need for the infiltrator to “start” the procedure himself. This represents an improvement over the situation prior to the Eitan case. However, as can be understood from the language of the section, the Tribunal is required to examine the Director’s discretion only after he has decided upon a transfer to detention. Although the infiltrator must be brought before the Tribunal “as soon as possible”, his first appearance before it may take place only 96 hours after his confinement in detention (sec. 32T(g) of the Law). This is no insignificant amount of time (see: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case); sec. 237A of the Military Justice Law, 5715-1955 (hereinafter: the Military Justice Law); sec. 29(a) of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996; but see: sec. 13N(a) of the Entry into Israel Law, which establishes that “a person held in detention will be brought before the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of his custody”).

42.       In any case, and even assuming the sufficiency of the judicial review established by the Law, granting such authority to an administrative agency is exceptional. In the Eitan case I noted that “the authority to limit and supervise liberty is at the core of the role of the judiciary” (ibid., para. 179). It is the judiciary that administers the criminal law. In order to ensure the constitutional protection of the right to liberty, criminal law establishes strict rules of procedure and evidence that govern the judicial supervision of interrogation and the manner in which a person’s guilt will subsequently be decided (Ron Shapira, An Administrative Procedure establishing the Boundaries and Scope of Criminal Punishment, 12 HaMishpat – Adi Azar Volume, 485, 488 (2007) (hereinafter: Shapira)). Nevertheless, Israeli law provides several examples in which an administrative agency is granted authority to restrict a person’s liberty. First, in hierarchic organizations that by nature require the observance of strict disciplinary rules, the legislature granted authority to an administrative organ to deprive a person’s liberty as punishment for breaches of disciplinary rules. Such rules – found in the armed forces, the Prisons Service and the police – permit judicial officers or disciplinary tribunals to impose penalties of confinement or detention a person who has committed disciplinary offenses under the relevant rules (see: secs. 152-153 of the Military Justice Law; secs. 110(30) and 100(44) of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance); secs. 37 and 51 of the Police Law, 5766-2006 (hereinafter: the Police Law)). Second, in situations concerning the enforcement of discipline in prisons and detention centers, the authority administering the prison or detention facility is authorized to order that a prisoner or arrestee be held in solitary confinement or – in the case of prisoners – to order a reduction of days of administrative or early release (see: sec. 58 of the Prisons Ordinance; sec. 10(b) of the Arrests Law).

43.       As we see, the legislature recognizes that in certain hierarchic systems the administrative agency is authorized to impose punishment that includes the denial of liberty for disciplinary purposes (see: Shimon Shetreet, Administrative Fines: Criminal Punishment by the Administration, 2 Mishpatim 577, 579-581 (1970)). Nevertheless, these arrangements should not be understood as indicating that the task of criminal punishment can be taken out of the hands the judiciary. We must, therefore, carefully consider the delicate distinction between disciplinary punishment and criminal punishment: in appropriate circumstances, disciplinary punishment can be entrusted to an administrative agency (but see: Shapira on the importance of judicial review over the decisions of the administrative body, in the case addressed there, the Prisons Service, ibid., pp. 488-493). However, if the Director of Border Control be granted authority to impose criminal punishment upon an infiltrator, that will not stand. It would constitute an overly severe infringement of rights – the right to liberty and to due process, which are interrelated. Seemingly disciplinary deprivation of liberty that crosses the Rubicon to the “criminal” coast requires a criminal process in a court of law that will ensure due process. Criminal punishment is permitted to the court and only the court, not retroactively and after the fact, not as “judicial review”, and not even by rehearing. What is required is a criminal process in a court, in accordance with all its rules and regulations.

44.       The question of the location of the border between punishment that serves essentially retributive objectives (criminal punishment) and punishment intended for deterrent, disciplinary purposes is difficult to resolve. It would seem that here, too, “there is great confusion and uncertainty”, and “it may be that the said theoretical issue has not yet been adequately developed” (CrimA 758/80 Yesh Li Ltd. v. State of Israel, IsrSC 35(4) 625, 629 (1981) (hereinafter: the Yesh Li case) (on the question of whether a particular fine constitutes criminal punishment); and see: LCA 4096/04 Boteach v. State of Israel, IsrSC 59(1) 913, 917-920 (2004) (hereinafter: the Boteach case)). This matter requires an interpretive solution. “Through interpretation we must locate the ‘genetic code’ of the principle under examination – in other words, its substance and character, and whether it is indeed ‘criminal’ or not” (HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, para. 6 of the opinion of Justice M. Naor (June 15, 2011) (hereinafter: the Passport Regulations case); and see: the Yesh Li case, p. 629; LA 277/82 Nirosta Ltd. v. State of Israel, IsrSC 37(1) 826, 830 (1983); CrimA 474/65 Miromit Metal Works v. Attorney General, IsrSC 20(1) 374, 376-377 (1966)). This classification depends upon the circumstances of the matter and the language of the authorizing legislation (and see the example in the Passport Regulations case, para. 10).

45.       This is the crux of the matter: the Director of Border Control is authorized to issue orders to transfer a person to detention for periods that may reach 75, 90, or 120 days. In other words, for various disciplinary violations – like absence from the residency center or not reporting on time to renew a temporary visitor’s permit under sec. 2(a)(5) of the Entry into Israel Law – the Director of Border Control may “sentence” an infiltrator to prison-like punishment for a period of three or even four months. Is this “criminal” as opposed to “disciplinary” punishment? We will begin with the interpretation of the provision. In my opinion, we can be aided in this by examining the character of the disciplinary “offense” and whether or not it is part of the criminal corpus (the existence of a parallel criminal norm may support the view that we are not concerned with a disciplinary means, but rather an attempt to create a “by-pass” of the criminal process, and see the decision of the European Court of Human Rights in Campbell v. United Kingdom, 7 E.H.R.R. 165 ¶ 68 (1984) (hereinafter: the Campbell case)); the severity of the offense (the greater the severity with which the offense attributed to the person is viewed, the greater the tendency to view its punishment as criminal); the maximum term of deprivation of liberty (a longer period brings the punishment closer to criminal punishment, while a shorter period is more indicative of disciplinary punishment); and the manner for implementing the punishment (the greater the punishment infringes liberty, the more the scales tip towards a criminal classification) (see and compare the case law of the European Court of Human Rights that addressed the question of when a person subjected to a disciplinary penalty is entitled to the defenses under Art. 6 of the European Convention on Human Rights that establish procedural safeguards for a criminal defendant: Engel v. The Netherlands, 1 E.H.R.R. 647 ¶ 82 (1976); the Campbell case, paras. 69-73; Ezeh v. United Kingdom, 39 E.H.R.R. 1 ¶ 82-86 (2003). In the latter case, the European Court noted that the criteria are not cumulative conditions, and that there may be instances in which the presence of one of them may suffice to show that the penalty under examination belongs to the criminal “sphere”, ibid., para. 86).

46.       We will now apply these tests to the arrangement under review. First, in regard to the existence of a parallel criminal norm, we find that an examination of sec. 32T of the Law shows that there is no parallel criminal offense for some of the violations enumerated there, whereas in regard to so some of them – “Causing substantial damage to property” (sec. 32T(a)(3) of the Law) and “Inflicting bodily injury” (sec. 32T(a)(4) of the Law – one can think of criminal offenses that might be applied when needed. This test does not, therefore, tilt the scale to one side or the other. This is also true in regard to the severity of the offenses, some of which relate to obeying the conduct rules of the residency center (like the registration requirement), while others, as noted, relate to more severe harm to property or person. Thus, neither of these two subtests yields an unequivocal result. However, the two other subtests do, in my opinion, point to the view that we are concerned with essentially criminal punishment. In regard to the manner of implementing the punishment, we are concerned with transferring a person to detention in conditions similar to imprisonment. This is, of course, a very severe sanction in terms of its infringement of liberty (and see: the Eitan case, para. 47). The length of the deprivation of liberty also supports this conclusion. Some of the periods of detention established in this section are unquestionably long, reaching 120 days – or four months – of deprivation of liberty. My colleague the President emphasized that these are “maximum” periods that need not be fully “exploited” (para. 112 of her opinion). In my opinion, that does not put the matter to rest. In the Eitan case, in response to the opinion of President A. Grunis, I addressed the question of the weight that should be given to the fact that the law authorized the Director of Border Control to order that an infiltrator remain in the residency center “until the date that shall be established”. I pointed out that in accordance with my approach, the discretion granted to the Director did not change the fundamental principle, inasmuch as while the Director was authorized to set a date, the beginning of the section concurrently granted him the authority not to set any date. The Director may indeed properly exercise his discretion and refrain from placing an infiltrator in detention for the long periods stated by the Law. But we cannot hang our hopes solely on the grace of the administrative authority’s discretion and on its choice to set punishment at the lower end of the scale permitted by the Law. We must look the Law in the eye. The legislature entrusted the administrative agency with the possibility of imposing prison-like punishment for months. The authority was thus granted, and it – rather than the individual discretion – is now under our review.

47.       Lastly, I would propose that we examine the balances achieved by the legislature in similar situations, as “in our legal tradition, we accept that a statement in one text may be interpreted by examining the meaning of a similar statement in another text” (Aharon Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, 243 (1995) (hereinafter: Barak, Interpretation)). Parallel disciplinary arrangements in Israeli law limit the deprivation of liberty to much shorter periods than those established under sec. 32T of the Law. In the armed forces, as my colleague the President noted, a senior judicial officer can sentence a soldier to detention for a maximum of 35 days. If an additional punishment is imposed before the soldier has served the entire sentence, the soldier will serve both sentences, but with the proviso that the maximum period of consecutive detention not exceed 70 days (see sec. 153(a)(6) and sec. 162A of the Military Justice Law; para. 112 of the President’s opinion). In the case of a corrections officer, a disciplinary tribunal can impose a maximum of 45 days detention for a conviction for a disciplinary offense. If the corrections officer is sentenced to an additional term of detention before serving the prior sentence, he will serve the longer of the two, but the panel may order that the sentences be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 110(44)(5) and sec. 110(61) of the Prisons Ordinance). A disciplinary tribunal can sentence a police officer convicted of a disciplinary offense to a maximum of 45 days detention (sec. 51(a)(5) of the Police Law). Here too, if the police officer is sentence to an additional term of detention while still serving another sentence, he will serve the longer of the two, but the panel may order that the terms be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 66 of the Police Law). It would not be superfluous to note that the authority to impose such maximum sentences upon police and corrections officers is granted to a three-judge panel, and two of the judges must be jurists (see sec. 110(37) of the Prisons Ordinance and sec. 44 of the Police Law). It thus appears that where Israeli law sets time limits upon the authority it grants to an administrative entity to deprive a person of his liberty for disciplinary purposes, the accepted time limit is 45 days for a single disciplinary offense, and no more than 70 consecutive days for several offenses.

48.       Note well that sec. 32T of the Law establishes a “scale of severity” for punishment that is contingent upon the question of how many times an order for detention has been issued “for the same cause”. Thus, for example, if such a detention order has been issued twice for an offense under sec. 32T(a)(5) of the Law (working in contravention of sec. 32F of the Law), such that the infiltrator has twice been placed in detention for the offenses he was “found” to have committed, he can be sentenced to detention for a period of 60 days for the third offense (sec. 32T(b)(3)(c) of the Law). But this is not like the provisions in regard to an “additional” detention sentence I referred to above. Those provisions treat of a situation in which the person was sentenced to an additional term while serving the first. In such cases, the relevant legislation establishes that even in the case of consecutive terms, the total cannot exceed 70 days. None of the disciplinary arrangements that I addressed permit a similar term of punishment for one disciplinary offense (even if preceded by additional offenses for which the term of punishment has been served). As opposed to this, in the matter before us the Director is authorized to order detention for such a period – and even longer – for one infraction (even if it is the third infraction). From a comparative perspective, as my colleague Justice H. Melcer notes in his opinion, a breach of the restrictions applying to “persons who infiltrated into Germany who are asylum seekers” leads to the criminal track (see para 10 of his opinion). That is not the case here.

49.       It would appear from the above that the provisions established under sec. 32T of the Law cross the boundary between disciplinary and criminal punishment. That being the case, such authority cannot be entrusted to the Director or to any other administrative entity. Of course, the legislature enjoys broad discretion in regard to the length of administrative punishment. It need not precisely adopt the periods established in other arrangements that apply to soldiers, police or corrections officers. However, the periods established in the Prevention of Infiltration Law are very far from those – too far. They do not meet the test of proportionality stricto sensu, which as the President noted, is the primary test in this matter (para. 111 of her opinion). Operating a facility in which residence is imposed requires rules. Those rules require enforcement or they will be futile. But not anything goes. We should emphasize that when appropriate, the state can, of course, institute criminal proceedings “that by nature allow for the imposition of severe punishment” (the Eitan case, para. 184). But such authority cannot be granted to an administrative body, even if its decisions are subject to self-initiating judicial review. As I noted in the Eitan case, “such a sanction cannot stand, regardless of whether or not it is followed by judicial review” (ibid., para. 184). My conclusion is, therefore, that such authority is not proportionate relative to its inherent harm.

 

The Relief

50.       I have reached the conclusion that sec. 32T of the Law is unconstitutional. This constitutional defect cannot be remedied by interpretation, and there is no recourse but to declare the section void. In the Eitan case, I proposed to my colleagues that we read the section such that the Director would be authorized to order the detention of an infiltrator for no more than thirty days for each of the causes set out in the section, and that those in detention on the date of the judgment be released thirty days after the beginning of their detention, or on the date set by the Director, whichever be shorter (ibid., para. 191). This time – in view of the automatic judicial review of the Director’s decisions that was added to the Law – I would propose that the declaration of voidance be held in abeyance for six months. During that period, or until an alternative arrangement be adopted, sec. 32T will remain in force but will be read such that no detention order will be issued for a period exceeding forty-five days for any of the causes under the section (in accordance with the rule for disciplinary punishment for one infraction). Those held in custody on the day of this judgment by virtue of an order issued by the Director will be released forty-five days from the beginning of their detention or at the conclusion of the term set by the Director, whichever is shorter.

 

Approaching the End – Comments on the Future

51.       The result I have ultimately reached at the conclusion of the legal examination is as follows: Sections 30D(a) and 32U of the Law are void. Section 32T is void. What shall the Knesset do now? The dialogue will continue. The same legislation cannot be restored as if nothing has happened (see the opinion of then Deputy President M. Naor in the Eitan case, para. 3). The Knesset can enact a legislative arrangement that will meet constitutional criteria. The long detention periods established under sec. 32T of the Law can be replaced with shorter periods. The Knesset can replace the section that I propose be declared void – setting the maximum period of residency in the residency center – with one that establishes a different, significantly shorter period that would pass constitutional review. The legislature can also consider other, new possibilities. In this regard, I would like to add a further comment.

52.       As earlier noted, the Prevention of Infiltration Law permits the Director to issue a residency order to any infiltrator regarding whom there is a problem “of any sort” in regard to his deportation (sec. 32D of the Law). The administrative agency set criteria for itself in this regard. Under those criteria, which were published on the website of the Population and Immigration Authority and dated July 14, 2015, the infiltrators who can be issued a residency order are “Sudanese nationals who infiltrated into Israel before Dec. 31, 2011” and “Eritrean nationals who infiltrated into Israel before July 31, 2011, including those who received a B/1 residency permit until now”. In other words, the administrative agency chose to apply the arrangement established by the Prevention of Infiltration Law to “old” infiltrators – those who arrived in Israel nearly four years ago. I do not intend to decide the various question these criteria raise. As I have already noted, inasmuch as these criteria involve an infringement of the right to liberty and the right to dignity, the question arises as to whether they should have been established in primary legislation (the Eitan case, para. 91). I would now like to emphasize only that in my opinion the scope of the infringement of rights, as well as the effectiveness of the residency center, differs in regard to two populations -- the first, “old” infiltrators, and the second, “new” infiltrators. The infringement of the rights caused by Chapter D of the Law is far greater for the first group. Most of the “old” infiltrators – the ones being sent to Holot under the criteria established in this regard �