Basic Law: Human Dignity and Liberty

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitions denied.

10 Adar 5764.

3 March 2004.

 

 

 

 

 

 

 

 

CA 6024/97

 

Fredrika Shavit

v.

Rishon Lezion Jewish Burial Society

 

The Supreme Court sitting as the Court of Civil Appeals

[July 6, 1999]

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

 

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

 

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

Basic Laws cited:

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

 

Legislation cited:

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

Standard Contracts Law, 1964 s.14.

Standard Contracts Law, 1982.

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

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

 

Regulations cited:

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

 

Bills cited:

Right to Alternative Civilian Burial Bill.

.

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Israeli District Court Cases Cited:

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

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

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

 

Israeli Books Cited:

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

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

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

 

Israeli Articles Cited:

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

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

 

Jewish Law Sources Cited:

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

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

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

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

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

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

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

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

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

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

 

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

 

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

Yair Shilo – for the respondent.

 

 

JUDGMENT

Justice M. Cheshin

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

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

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

The Facts

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

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

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

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

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

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

Gideon [1] at 23.

 

He continued:

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

Id.

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

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

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

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

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

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

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

Id. at 467-68.

 

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

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

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

The Alternative Burial Law

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

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

Right to Alternative Civilian Burial Bill, 1996 at 600.

 

The bill continues:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regarding the “Overturning Effect” of the Alternative Burial Law

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

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

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

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

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

Id. at 402-03.

 

And what is this overturning effect?

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

Id. at 393-94.

 

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

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

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

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

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

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

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

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

Id. at 524.

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

Id.at 482.

 

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

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

Id. at 523.

 

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

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

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

Id. at 507-08.

 

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

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

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

…

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

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

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

 

I made further remarks along the same lines.

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

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

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

This is the private domain.

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

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

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

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

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

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

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

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

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

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

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

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

Side Comment (unrelated yet related)

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

Conclusion

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

Later

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

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

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

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

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

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

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

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

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

 

Justice I. Englard

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

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

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

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

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

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

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

Gideon [1] at 23.

 

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

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

Id.at 19.

 

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

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

Id.

 

This was Justice Etzioni’s conclusion:

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

Id.

 

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

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

Id. at 24.

 

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

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

Id. at 15-16.

 

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

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

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

Id. at 482.

 

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

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

Id.

 

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

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

Id. at 523.

 

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

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

Id. at 513.

 

Deputy President Elon concludes his opinion as follows:

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

Id. at 515-16.

 

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

President A. Barak

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

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

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

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

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

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

Kestenbaum [6] at 523-24.

 

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

 

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

 

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

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

 

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

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

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

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

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

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

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

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

 

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

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

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

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

Id. at 482

 

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

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

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

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

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

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

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

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

Para. 21.

 

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

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

Para.8.

 

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

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

Para. 13.

 

He adds:

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

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

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

Paras. 17, 18, and 19.

 

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

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

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

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

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

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

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

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

…

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

…

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

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

 

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

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

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

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

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

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

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

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

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

July 6, 1999.

            HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

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

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

[30] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693 S.J. vol. VIII, supra, p. 13.

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

 

 

 

 

 

 

Justice Y. Danziger

I concur in the comprehensive and scholarly opinion of my colleague, Justice E. Rubinstein, and in the operative result proposed by him.

1.    At the outset I will emphasize that in my opinion, our willingness to allow an additional trial period, in which the effect of the “door-opening” arrangement on the coercive application of separation and dress codes will be examined, cannot legitimize coercion as stated; and if it transpires that such coercion persists, this will obviously constitute a very weighty consideration that may lead to the conclusion that this arrangement should be terminated because, in effect, it promotes patently illegal coercion, as stated. I also find it appropriate to emphasize the importance of maintaining a broad, efficient and effective control mechanism to check for the existence of coercion during the trial period. At the end of the day, the respondent’s decision at the conclusion of the trial period will be based on the results of this control mechanism and on reports that will be provided by male and female inspectors on behalf of the respondent (and, hopefully, also on the direct impression of the general public which makes use of the relevant lines). If the trial period is not properly utilized for the compilation of a well-established factual base as aforesaid, it will be truly difficult for the respondent to make a reasonable and proper decision in the matter.

In addition, I believe that the role of respondent 2, together with its managers and its employees, in ensuring the implementation of the arrangement recommended by the Committee should be emphasized. Respondent 2 must not contribute, indirectly or tacitly, to the forcible application of separation or dress codes, and it is subject to the duty — as a company providing a public service — of maintaining absolute compliance with the guidelines laid down by the Committee, to which we have added in this ruling.

I welcome the fact that ultimately, the respondent accepted the conception that structured and enforced separation in the public arena in which public transportation is provided is illegal. This restricted the scope of the dispute to the question of how to implement this conception and to ensure that there are no arrangements that force separation or a certain type of attire on women. Nonetheless, I cannot stop at this point, and I would like once again to briefly emphasize some basic concepts regarding dignity and equality.

2.    Israel’s Declaration of Independence states that the State of Israel “will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex.” Separation of people on the basis of gender (as on the basis of race or religion) violates the principle of equality and constitutes discrimination. In HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94, Justice D. Dorner emphasized in her ruling — which some believe is perhaps the most important ruling she ever handed down (see: Mordechai Kremnitzer, Khaled Ghanayim and Alon Harel, “Portrait of Dalia Dorner,” in The Dalia Dorner Volume (Shulamit Almog, Dorit Beinisch and Yaad Rotem, eds., 2009) 418 (Hebrew)) — the humiliation that accompanies gender-based discrimination as a basis for her position that discrimination against that background constitutes a violation of the right to dignity which is anchored in Orsdin. In that ruling, she referred to the ruling of the United States Supreme Court in Brown v. Board of Education 347 U.S. 483 (1954), which rejected the “separate but equal” approach to education that had been generally accepted up to that time. In that context, Justice Dorner stated, inter alia:

‘Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, entails profound humiliation for the victim of the discrimination’ (ibid., at 132).

The humiliation that accompanies gender-based discrimination was also pointed out by (then) Justice M. Cheshin in HCJ 2671/98 Israel Women’s Network v. Minister of Labor and Social Welfare [1998] IsrSC 52(3) 630 , who stated as follows:

‘Discrimination against a woman — for being a woman — is generic discrimination... Generic discrimination, as  already stated, is discrimination that mortally wounds human dignity’ (pp. 658-659).

3.    This humiliation becomes gross humiliation when violence — verbal or physical — is used to enforce it, or when the state authorities legitimize it, even indirectly and certainly directly. As a man, I suggest that every man ask himself if he would want one of the means of coercion which my colleague described in his opinion (see para. 20 of the opinion) to be used against a woman in his family, and if he would want a woman in his family to be forced to dress in a way that is not in line with her beliefs whenever she seeks to use a public service. Even more importantly, I would suggest that all the men in question ask themselves how they would feel if, merely because they belonged to a certain group, people were to fence off the public area in which they are entitled to be present and to require them to wear a certain type of attire. I would ask those women who support coercive separation to ask themselves the same questions — for example, whether forcing them to dress in a way that is not in line with their beliefs as a prerequisite for using public transportation, would not humiliate them and violate their dignity. In fact, there were periods — dark ages — in which norms such as those that constitute the object of the petition before us were applied throughout the entire world (and, unfortunately, there are places in which they are still applied). Nonetheless, such norms cannot apply to, and cannot be binding upon a public area within the State of Israel, merely because that public area also serves, inter alia, the religious and ultra-Orthodox population.

4.    I cannot refrain from commenting that many generations of Jews lived in societies in which separation of the type that some people are now seeking to enforce was not practiced. Were they less devout in their belief than those who now seek to enforce such separation? Did they have the audacity to enforce separation in the public space that they shared with all those people who did not desire such separation? Are the solutions that were found by the great sages of those generations inferior to the solution of coercive separation? In my view, the answers to these questions are obvious, and the fact that some people are seeking to exploit their power, including their consumer and political power, in order to apply and even to establish the said coercion, gives rise to real discomfort, especially against the background of these circumstances. 

Even without relating to the situation from a historical perspective, in the Jewish and democratic State of Israel, the state authorities cannot support the establishment of the said coercion, and the state must take action — positive action — to uproot it. The coercion in question reflects a violation of human dignity and individual autonomy; it is nothing but the oppression and humiliation of women, for which there is no place in our society, either in the name of multiculturalism or under any other banner. On this matter, the message that must be voiced by the state authorities, in all areas in which the state has influence, must be unequivocal and insistent: there shall be no such coercion. 

5.    I feel bound to conclude by citing a statement of (then) Justice M. Cheshin in Israel Women’s Network v. Minister of Labor and Social Welfare [23]. His words should be recalled by all those who seek to enforce separation and certain types of attire on any man or woman who does not want them:

‘Both the male and the female were created — created together — in the image of God. Woman and man are one: she is a human being; he is a human being; both are human beings.

Thus it was — and was rightly; thus it is — and is rightly; thus it shall be — and shall be rightly. We shall remember and we shall be on guard’ (at p. 663).

 

 

Held as per the opinion of Justice E. Rubinstein.

29 Tevet 5771.

5 January 2011.    

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 7302/07

 

Before:

The Honorable President D. Beinisch

 

The Honorable Vice-President E. Rivlin

 

The Honorable Justice Emeritus A. Procaccia

 

Petitioners:

1. Hotline for Migrant Workers

2. Association for Civil Rights in Israel

3. Israel Religious Action Center - Israel movement for progressive Judaism

4. Physicians for Human Rights – Israel

5. ASSAF – Assistance Association for Refugees and Asylum-Seekers

 

 

v.

 

Respondents:

1. Minister of Defense

2. Minister of the Interior

3. Prime Minister of Israel

4. Attorney General

 

 

 

Petition to grant an order nisi

 

Dates of hearings:

12 Tishri 5768

21 Adar I 5768

8 Tishri 5769

6 Adar 5769

26 Kislev 5771

24 Adar II 5771

(September 24, 2007)

(February 27, 2008)

(October 7, 2008)

(March 2, 2009)

(December 13, 2009)

(March 30, 2011)

 

On behalf of the Petitioners:

 

On behalf of the Respondents:

Anat Ben-Dor, attorney at law; Yonatan Berman, attorney at law

Yochi Genessin, attorney at law

 

Judgment

 

President D. Beinisch:

 

Factual background

 

1.          In recent years, and before our eyes, a process is taking place whereby the State of Israel is being transformed into an attractive country that draws foreigners from various places throughout the world into its territory. Many people gather at its gates – by sea, by air and by land – and seek to be allowed to enter its borders and live there, whether for short periods of time or forever, for a wide variety of reasons. It appears that these people primarily constitute part of an international migration movement, occasioned by the phenomena of poverty and unemployment in many countries. The Petition before us, which was filed approximately four years ago, focuses on one of the aspects of this widespread phenomenon and concerns the group of aliens who enter Israel – illegally – via its border with the African continent. In recent years, the entry of these aliens – the majority of whom are residents of various African countries – via the land border with Egypt, has become a common and extensive phenomenon, resulting, inter alia, from the fact that this border in relatively long and predominantly, if not entirely, devoid of fences and obstacles. According to the State’s argument, the scope of this phenomenon significantly increased in 2007, when 5,208 persons entered Israel in this way; of these, 1,643 arrived in June and July 2007. According to data provided by the State, some 6,900 persons entered Israel illegally in 2008 – a 30% increase over the 2007 data; in 2009, on the other hand, this datum amounted to 2,719 persons, as at September 17, 2009. The updated data recently filed by the State show that in 2010, the number of persons who entered Israel illegally increased considerably, to 13,984 aliens for the entire year. From the beginning of 2011 and up to April 11, 2011, 2,163 aliens entered Israel illegally.

 

             This phenomenon presents complex problems and challenges for Israel, which require it to provide an adequate response in order to prevent unlawful mass immigration to Israel, while, at the same time, complying with its duties as a member state of the international community and refraining from violating the rights of persecuted persons in such a way as to endanger their lives or their liberty, if they to be deported from Israel. At the core of this balance system stands the real fear of expansion of the phenomenon to dimensions that the State of Israel will have difficulty handling without harm to either side of the equation – the State of Israel and its residents on the one hand and the aliens who enter its borders on the other hand. In the course of its attempts to arrive at various solutions for coping with the implications of this phenomenon, few years ago the State formulated a policy, pursuant to which, in certain cases, anyone who entered Israel illegally via the Sinai Peninsula and was found in the area under Israeli sovereignty or on its international border, was returned to Egypt immediately upon their entry into Israel (hereinafter: Coordinated Return). At the time of the filing of this Petition, it was argued before us that this policy was based on a diplomatic agreement between the Prime Minister of Israel at the time and the President of Egypt at the time.

 

2.          In brief, it may be said that during the period in which the Petition was filed, and in accordance with the guidelines for the Coordinated Return mechanism, as they were presented in the first Response by the State to the Petition which was filed on September 23, 2007, it was customary that upon the seizure of a person who entered Israel illegally via its border with Egypt, the person was questioned by a member of the Border Police or a soldier of the Israel Defense Forces who was appointed for that purpose. The questioning procedure included the provision of personal data, such as the ethnic origin of the person in question, and the documentation in his possession. At that stage, and provided there was no suspicion that the person in question had an affinity to terrorist activity or constituted another security risk, the possibility of returning him to Egypt was examined, in light of his personal data. The decision was made, as necessary, in consultation with a jurist from the Judge-Advocate General’s Office of the Israel Defense Forces. At that time, it was determined that the alien in question, pending his Coordinated Return to Egypt, would be held in a military facility, under adequate conditions, and that legal supporting documentation for his return would be prepared. It was further determined that the return to Egypt of anyone who entered Israel illegally would be coordinated with the relevant Egyptian authorities.

 

3.          Pursuant to an incident that took place in August 2007 (hereinafter: the August Incident), in which the State of Israel acted in accordance with the Coordinated Return policy described above and deported to Egypt a group of aliens – most of whom were citizens of Sudan – who had entered Israel on foot via the southern border, and whose fate, following their deportation, was uncertain, the Petition before us was filed on August 28, 2007 by a number of human rights organizations. The Petition sought to examine the policy in question, primarily with respect to the matter of asylum-seekers, who are protected under the 1951 United Nations Convention Relating to the Status of Refugees (Israel Convention Series 65, 5), and the 1967 protocol appended thereto, (Israel Convention Series 690, 3) (hereinafter: the Refugee Convention or the Convention). The Petition asked the Court to order the State not to act in accordance with the Coordinated Return policy and to refrain from deporting anyone who entered Israel without a permit and was found in the area under Israeli sovereignty or on its international border, including asylum-seekers. The Court was further requested to order the State not to deport the unlawful entrants before they were allowed to meet with representatives of the Office of the United Nations High Commissioner for Refugees (hereinafter: the Commission or the UNHCR) and to file an application for asylum; before an individual examination was conducted with respect to arguments of persecution or fear for the safety of the unlawful entrant, in his country of origin or in the country to which he would be deported; before a hearing was held by the entity competent to order the deportation; and before the unlawful entrant was allowed to have access to human rights organizations or to other entities that were likely to help him. According to the Petitioners, the manner in which the State acted in implementing the Coordinated Return policy contradicted the principle of non-refoulement (“non-return”), which is anchored in the Refugee Convention and imposes upon the State a duty of refraining from deporting or expelling a refugee to a place in which his life or his liberty is endangered.

 

4.          The State, for its part, made it clear from the very beginning that the Coordinated Return policy was intended as a means of coping with Israel’s unique situation, as set forth above – the vast numbers of aliens illegally entering its territory via its land border with Egypt. According to the State, the policy described above is consistent with the duties incumbent upon Israel under international law, most of which are founded on the Refugee Convention, and does not constitute cause for intervention by this Court. In this context, it was argued by the State that the policy of Coordinated Return to Egypt is consistent with Resolution 58, which was adopted in 1989 by the Executive Committee of the United Nations High Commissioner for Refugees. Generally speaking, according to the rule set forth in that resolution, refugees and asylum-seekers who had found asylum in a certain state (hereinafter: the Absorbing State or the First State of Asylum) would not be transferred to another state. The aforementioned Resolution 58 further stated that, should a refugee or an asylum-seeker nonetheless move from the Absorbing State to another state, he could be returned to the Absorbing State, provided that two conditions were fulfilled: first, the refugee or asylum-seeker would be protected against return to his country of origin, and second, the refugee or asylum-seeker could expect to receive basic humane treatment until a solution was found for him, possibly in coordination with the Commission. According to the State, in light of the diplomatic agreements that have been formulated, these two conditions were fulfilled when refugees or asylum-seekers were returned to Egypt according to the Coordinated Return policy. It was further argued that the mechanism is also consistent with Israeli domestic law, and, for this purpose, the State referred to HCJ 1764/99, Abu Muammar, Head of the al-’Azazmeh Tribe, v. Minister of the Interior (March 21, 1999).

 

5.          The first hearing on the Petition took place on September 24, 2007. In the course of the hearing, the State again presented the guidelines that it had formulated for the purpose of implementing the Coordinated Return mechanism, and announced that it intended to anchor this mechanism of operation in a procedure, whose formulation had not yet been completed. Accordingly, the State was requested to update the Court with respect to the procedure to be formulated and, in so doing, to comment on the manner in which the Coordinated Return to Egypt was to be examined, with special emphasis on the manner of performing the initial clarification, which was intended to examine whether the person in question was an asylum-seeker claiming recognition as a refugee, or an alien who was not seeking asylum and who belonged to the group defined by the State as “work migrants.” The State was further asked to comment, in its notice, on the training given to those handling the persons claiming refugee status and their qualification to examine the arguments pertaining to that status. Pursuant to that decision, on December 3, 2007 the State filed a supplementary notice, in which it announced that it had formulated a new procedure: the “Procedure for Immediate Coordinated Return of Infiltrators of the Israeli-Egyptian Border” (hereinafter: the Coordinated Return Procedure or the Procedure).

 

             Following formulation of the Procedure, in which the initial clarification was assigned to soldiers who were present at the site within the framework of their essential roles as defenders of the border, which was also a source of security risks, the Petitioners set forth their position on the subjects that they deemed to require improvement in the procedure. Indeed, at the time the Coordinated Return policy was declared, the mechanism for handling its implementation was still in its infancy and caused quite a number of practical and legal difficulties. The diplomatic agreement on which the State relied in its arguments was also vague and undefined. Moreover, the State had difficulty stating what became of the group of persons who were deported in the August Incident. Furthermore, at the time the Petition was filed, the problem raised therein had grown and become more acute in light of the fact that, at the time, many of those who crossed the southern border into Israel were Sudanese citizens, some of them Darfur refugees. With regard to the latter, no one could dispute that they were entitled to asylum. Under those circumstances, we also saw the importance of a more in-depth clarification of the issue and the improvement of the Procedure presented by the State, along with the mechanisms for implementing it. We therefore decided to leave the Petition pending and to ask the State for updates, on an ongoing basis, as to the changes and improvements made to the Procedure and its overall application.

 

6.          Accordingly, we held four additional hearings on the Petition and asked the State for update notices. In the notices that were filed from time to time, and in the hearings that we held, the State provided ongoing updates on the improvements that it had made to the Procedure and the manner of handling and training the Israel Defense Forces and Border Police personnel who were responsible, inter alia, for its implementation.

 

             Thus, the notices by the State indicated that, in the course of the period during which the Petition was pending, the efforts to establish a Special Unit responsible for in-depth questioning procedures within the Ministry of the Interior had borne fruit. The role of that unit is to perform an exhaustive and comprehensive questioning of persons seeking asylum in Israel, in order to ascertain the extent to which they met the requirements for gaining refugee status in Israel. It further transpired that the new unit had engaged employees who speak various languages and had trained them in various fields – including training in the initial record-keeping, training with the participation of professional entities with expert knowledge of various areas of Africa, and a course in inquiry and questioning procedures, which concerned the actual practice of those procedures. The State clarified that some workers in the unit are in charge of questioning aliens in an Israel Defense Forces facility in southern Israel, after the aliens in question are detained and arrested by Israel Defense Forces troops near the southern border. The State further emphasized the involvement of representatives of the Office of the United Nations High Commissioner for Refugees in Israel in this training, and even provided details as to the scope of the applications that were handled by the Questioning Unit employees.

 

             In addition, we were also told that, concomitantly, the Israel Defense Forces had formulated a military training program for soldiers posted near the Egyptian border to take part in the questioning procedure, as part of the implementation of the Coordinated Return policy. The training program that was formulated includes survey courses on various legal subjects, the powers vested in Israel Defense Forces troops regarding the treatment of the unlawful entrants, the military orders governing their handling and the socioeconomic and political situation in African countries. Subsequently, and after an additional hearing had been held before us, we were informed in an update notice that training programs of this type had begun to be implemented. It was emphasized that only soldiers who had attended at least one training program would be authorized to perform the questioning according to the Procedure, to complete the relevant form and, if necessary, to participate in performing a Coordinated Return. In accordance with the policy that was in effect at the relevant time, these questioning procedures, as set forth above, were implemented with the aliens shortly after their entry into Israel, and only thereafter was a decision made as to whether the alien would be transferred to the Ministry of the Interior for further handling.

 

             In the course of time, the State also informed us that additional changes and improvements had been made in the procedure for handling the aliens who enter Israel illegally via its southern border, and in the Coordinated Return process, and that a new procedure for that issue had been formulated (hereinafter: the Updated Procedure). Basically, an additional update notice indicated that the framework of the original Procedure had been preserved and that, in addition, other entities had been authorized to perform various operations pursuant to the Procedure as one of the processes for handling aliens who enter Israel illegally.

 

             It was also made clear to us, in the course of the hearings, that, whenever aliens who enter Israel illegally via the Egyptian border claim refugee status during their initial questioning, a Coordinated Return is not conducted;  rather, those aliens are transferred to the Questioning Unit in the Ministry of the Interior for further clarification. It also transpired, on the basis of the data provided by the State, that during the years in which the Petition was pending, relatively few Coordinated Returns had been implemented, all of them in one sector of the southern border, where, according to the State, there was proper coordination between the Egyptian and Israeli forces.

 

7.          Notwithstanding the aforesaid changes and improvements that were made in the Procedure, the Petitioners insisted on maintaining both aspects of their Petition – ­ both the general aspect, which concerns the legality of the Coordinated Return policy as a whole, and the individual aspect, which concerns various changes that they believe should be made in the Procedure. During the period when the Petition was pending, they also presented arguments about prima facie breaches of the Procedure. The State responded to these arguments, commenting on various incidents that took place during that period, and explained that when circumstances required the assimilation of procedures, it was done.

 

8.          Everything set forth above indicates that, since the Petition was filed – and, in many ways, as a result of the Petition – numerous developments have taken place with respect to the issue that it sought to raise, regarding the ways in which the situation and status of the aliens who cross the Egyptian border and enter Israel via the Sinai Desert are clarified.

 

             Thus, and most importantly, the Ministry of the Interior established a special questioning unit whose employees were trained to handle applications by persons seeking asylum in Israel, as is customary in many other countries throughout the world. The establishment of the unit was accompanied and supported by the United Nations High Commission for Refugees. In that unit, training was given to employees in charge of initial identification and questioning – including in an Israel Defense Forces facility in the South, after the detention and arrest of the aliens by Israel Defense Forces troops – as well as to employees in charge of performing in-depth interviews of the aliens (Refugee Status Determination – RSD). In addition, the State formulated a proper handling procedure for the affairs of aliens who enter Israel illegally from the Egyptian border, and, as set forth above, many changes and improvements were made in that procedure during the period the Petition was pending. These included the establishment of a mechanism that was meant to locate the asylum-seekers among those aliens, in such a way as to enable their cases to be transferred to the competent authority in the Ministry of the Interior for further handling; special training of soldiers responsible for questioning those aliens; formulation of appropriate questioning forms; and definition of the competent military entities for handling these matters. It also came to light that, during the time that had elapsed since the Petition was filed, the guidelines with regard to asylum-seekers were clarified, so that it seemed that any alien who claimed, upon encountering military personnel after crossing the border, that his life or his liberty would be at risk if he were returned to Egypt or to his country of origin, was transferred to the Questioning Unit in the Ministry of the Interior for further handling, and the Coordinated Return procedures did not apply to him. It further transpired, as set forth above, that, in any event, only a few Coordinated Returns were carried out, and only in certain sectors – those in which there was proper coordination between the Egyptian and the Israeli sides – and only in cases involving aliens who, after entering Israel, told the soldiers who questioned them that they wanted to enter Israel in order to find work. The State further argued that, in any event, the number of returned persons was rather small, relative to the number of entrants who had been caught on the border. Thus, for example, the State pointed out that, between the beginning of 2009 and September 12, 2009, in the sector where, as set forth above, the State felt there was adequate coordination, 23 Coordinated Return incidents were implemented, in which 217 aliens were returned, out of a total of 1,093 persons who had entered and had been caught in that sector. In addition, the State emphasized to us that, throughout the years, a change had taken place in the population that made up the majority of aliens crossing the border illegally: whereas, in the first two years in which the Petition was handled, most of the aliens had been Sudanese who claimed to have come from Darfur, in the last two years, most of the entrants were from Eritrea, and in light of the situation there, a temporary policy of non-refoulement is in force with regard to those aliens.

 

9.          Before our decision on the Petition was handed down, additional events took place that had a substantive impact on the subject of the Petition. These events are the geopolitical changes that occurred in the area and changed the political reality in Egypt. As set forth above, from the outset, we were troubled by the fact that, if and insofar as any unwritten arrangement existed with Egypt, it was prima facie an unsatisfactory one. With the overthrow of the government, we became even more troubled, in view of the increasing risk of uncertainty with regard to the prevailing situation in Egypt and, accordingly, with regard to the fate of the aliens being returned to that country.

 

             Therefore, as a result of these changes, and in order to examine their connection to the Petition, we decided to hold yet another hearing – the sixth in number – on the Petition, which took place on March 30, 2011. At the end of the hearing, we asked the State to file a supplementary affidavit, including updated comments on the prevailing reality on everything pertaining to the implementation of Coordinated Returns in accordance with the Procedure, in light of the geopolitical changes in the area and additional factual changes regarding the situation in Sinai. On April 18, 2011, the State filed a supplementary affidavit, on behalf of the commanding officer of the Edom Division, Brig. Gen. Tamir Yidei. The affidavit indicated – as the representative of the State had informed us during the hearing – that as a result of the recent developments in Egypt, it was not possible to implement the Coordinated Return mechanism in accordance with the framework that had been agreed upon in the past. This being the case, in early March 2011, Brig. Gen. Yidei ordered that implementation of the Coordinated Return procedure be suspended for the time being. The affidavit further indicated that, in 2010, Brig. Gen. Yidei had ordered that no Coordinated Returns of women and children were to be implemented, given the fear for their well-being because of the hardships involved in the return trip. The latter order had probably taken into account the situation prevailing in the Sinai, which poses a real danger for those infiltrating into Israel with the assistance of border smugglers, who misuse their power, thereby causing this helpless group to incur real harm – both physical and mental.

 

10.        On May 19, 2011, the Petitioners filed a Response to the supplementary affidavit by the State. In their Response, the Petitioners emphasized two aspects. The first of these was the change that had taken place in the geopolitical reality in the area, resulting in the fact that there is no longer any diplomatic agreement between Israel and Egypt. In light of this change, the Petitioners argued, the main basis for the State’s argument about the legality of the Coordinated Return mechanism had been undermined. As for the second aspect, the Petitioners appended two affidavits by citizens of Eritrea, which prima facie indicated that, in April 2011, when they attempted to enter Israel, they were prevented from entering by Israel Defense Forces troops and were returned to Egypt without having been questioned in accordance with the Procedure. The Petitioners argue that these affidavits indicated a discrepancy between the declarations by the State - that Coordinated Returns have been stopped for the time being - and the actual situation. It should be noted that, in addition to these affidavits, three other affidavits – which were filed by the Petitioners prior to the hearing on March 30, 2011 – attest to additional cases in which Israel Defense Forces troops prima facie prevented citizens of Eritrea from entering Israel, without having implemented the provisions of the Procedure in their cases.

 

11.        In an additional decision dated May 29, 2011, which was handed down pursuant to the Response by the Petitioners, the State was asked to file a supplementary notice “in which it will clarify whether, in its opinion, under the circumstances at the present time and in light of the reality prevailing in Egypt, Coordinated Returns are being implemented in accordance with the Procedure, without such a move endangering the lives or liberty of the deported persons.”

 

             On June 13, 2011, the State filed its last supplementary Response. Within the framework of that notice, the State again declared that, at this time, and since March 2011, no more Coordinated Returns to Egypt are being implemented, pending the adoption of a new decision in the matter. In addition, the State appended a copy of the Coordinated Return Procedure, which expressly stated that the Procedure was suspended “for the time being, pending the resumption of tactical coordination with the Egyptian security forces,” and that it would be possible to renew it “when the conditions that enable the continued implementation of the Procedure are resumed,” and only in accordance with a written instruction by the Operations Division in coordination with entities from the Judge-Advocate General’s Office. At the same time, the State made it clear that this decision, with regard to the suspension of the Procedure for the time being, had been made despite the fact that the events in Egypt had not led to the discontinuation of contacts between Israel and Egypt, and that close cooperation and coordination between the two states have continued at all times, on all levels and on a variety of issues. This position was supported by the Deputy Director-General for the Middle East in the Ministry of Foreign Affairs. The State further emphasized that, in any event, coordination between Israel and Egypt is not a sine qua non for the implementation of the Coordinated Return procedure.

 

Decision

 

12.        Under the factual circumstances extensively described above, and in light of the suspension of the Coordinated Return procedure, we have come to the conclusion that the Petition should be denied, subject to the fact that the parties reserve the right to pursue their arguments, should the issue arise again in the future.

 

             As set forth above, throughout the entire time the Petition was pending, it remained founded on two principal arguments. The first of these concerned the legality of the Coordinated Return procedure as a whole and sought the remedy of a Court order for its termination; the second concerned individual arrangements that were formulated within the Procedure for the purpose of its implementation.

 

             This being the case, once the State decided to suspend implementation of the policy for the time being, the granting of a remedy which seeks to cancel it becomes devoid of any practical meaning today, because, as long as the Coordinated Return procedure is not being implemented, it remains theoretical. As a rule, this Court does not customarily addresses itself to issues of a theoretical nature, other than in exceptional cases, where a judgment can only be rendered with respect to a general question that does not involve a specific case (see Administrative Petition Appeal 1789/10, Esther Saba v. Israel Lands Administration (November 7, 2010)). We believe that the subject matter of the Petition does not fall within the confines of the exception to the rule. Furthermore: since the Petition was filed, so many changes have taken place in its relevant normative and factual infrastructure that today, and in its present format, there is no further remedy that can be sought within its scope.

 

             In addition, under the circumstances of the case, we believe that we are actually incapable of granting the remedy sought by the Petitioners, because the present factual reality does not enable examination of the policy attacked by the Petition in a way that gives proper consideration to all of the factors involved. As stated above, both the State and the Petitioners sought to examine the legality of the Coordinated Return policy – inter alia, in light of the outline of action that was formulated between Israel and Egypt for the purpose of its implementation. Whereas the State, as stated above, referred to a diplomatic agreement that was formulated in the past between the leaders of the states, the Petitioners attacked that agreement and argued that it was not sufficient to ensure compliance with the obligations imposed by international law on this issue. As stated, this vague and undefined arrangement appeared difficult for us as well; moreover, the data presented by the Petitioners left unanswered questions about the situation of the returned persons. However, given that the Coordinated Return policy has been terminated for the time being, there is no longer any cause for examining the legality of an arrangement that is not being followed. To all of the above, we must add that, for quite some time, the situation prevailing in Sinai has been creating real risks for Israel. This is because, aside from its nature as an exposed and insecure border area that enables uncontrolled entry of aliens into Israel, it also constitutes a dangerous pivotal point for the smuggling of weapons and drugs, as well as extensive and fertile ground for human trafficking. In light of these risks, and as the representative of the State declared before us during the hearings, the Government decided to build a fence along the southern border, and that fence is currently under construction. Obviously, once the fence is completed, an additional change will take place in the factual circumstances relevant to the case before us – a change that may well have implications for the issue that constitutes the object of the Petition.

 

             Considering all the above, we believe that at the present time there is no justification, nor even any proper basis, for subjecting the suspended policy of the State to judicial review. Should it be decided, in the future, to reinstate the Coordinated Return policy, the Petitioners will have the right to pursue their arguments, which will be examined in light of all of the factual and legal aspects that will be relevant at that time. In light of our conclusion about examining the legality of the policy as a whole, and given the present factual reality and the suspension, in practical terms, of the Coordinated Return Procedure, we also do not believe, at this time, that the Court should address itself to the second aspect of the Petitioners’ arguments, which concerns the various sections of the Procedure, in which, as stated, many changes and improvements have been made over the years. The amended Procedure, after all its metamorphoses, can only be examined within the framework of a new, focused petition, if and insofar as this is required again in the future, and not within the framework of the Petition before us.

 

             Nonetheless, in light of the difficulties to which the Coordinated Return policy gives rise, especially given the chaotic situation which presently prevails in Sinai and the fear for the well-being of the returned aliens, we assume that, should it be decided to reinstate the policy of returning aliens to Egypt and, accordingly, to reinstate the Procedure, it will be done in accordance with the generally accepted standards of international law, including the provision of appropriate guarantees, in order to safeguard the well-being of the returned persons with a high level of certainty.

 

13.        In addition to this Judgment, we would nonetheless like to state that the issue that was raised in the Petition before us is, of course, not unique to the State of Israel, notwithstanding the fact that our security-related and geopolitical reality has unique aspects. Many countries throughout the Western world have found it necessary in recent decades, to establish various arrangements with regard to the proper handling of asylum-seekers who gather at their gates, because of the obligations of those countries under refugee laws. These arrangements are based on a complex and complicated system of balances – on one hand, preserving the sovereign right of the State to decide who may enter it; and, on the other, upholding the duty of protecting the human rights of this group, which seeks to flee the fear of hunger, wars or persecution and to provide itself with an alternative for a better life. Over the years, the Office of the United Nations High Commissioner for Refugees has emphasized its position on the importance of establishing various procedural arrangements, to enable proper and effective handling of applications made by asylum-seekers from various countries, while establishing general guidelines for assisting all countries in implementing the provisions of the Refugee Convention with regard, inter alia, to the definition of the term “refugee” and the ways of dealing with persons seeking to be granted such a status. Accordingly, many countries have adopted various arrangements, based, inter alia, on these principles. This is not surprising, given that the establishment of procedures and processes for handling aliens who cross borders illegally, and the possibility that some of those aliens are asylum-seekers, doubtlessly make it necessary to take into account international rules and standards based on the Refugee Convention.

 

             In Israel, as stated, the phenomena of unlawful entry by aliens, especially via the southern border, imposes an especially difficult task upon the authorities of the State: finding a solution that will reduce the number of uncontrolled entries while acknowledging the need to deal properly with the status of those who are entitled to asylum.

 

14.        Therefore, at this time and under the circumstances that have arisen, we find that there is no further remedy that can be sought within the scope of this petition; we deny the petition, while reserving the parties’ right to pursue their arguments, and with no order for costs.

 

The President

 

Vice-President E. Rivlin:

 

             I concur.

 

The Vice-President

 

Justice Emeritus A. Procaccia:

 

             I concur.

 

Justice Emeritus

 

             It is therefore decided as stated in the ruling by President D. Beinisch.

 

             Given this day, 5 Tammuz 5771 (July 7, 2011).

 

The President  The Vice-President      Justice Emeritus

_________________________

This copy is subject to editorial and textual changes. 07073020_N32.doc DZ

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                                                                        HCJ 10843/04

1. Hotline for Migrant Workers

2. Kav LaOved Worker’s Hotline

v.

1.       Government of Israel

2.       Minister of Interior

3.       Minister of Industry, Trade and Employment

4.       Yilmazlar International Construction Tourism and Textile Co. Ltd

5.       Israel Military Industries Ltd (IMI)

 

 

The Supreme Court sitting as the High Court of Justice

[19 September 2007]

Before Vice-President E. Rivlin and Justices E.E. Levy, E. Hayut

 

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

 

Facts: Within the framework of an agreement between the fifth respondent and the Turkish Ministry of Defence, the State of Israel undertook that the fourth respondent would be given permits by the Israeli authorities to employ Turkish workers in Israel in the construction industry. According to the terms of these permits, the Turkish workers are only permitted to be employed in Israel by the fourth respondent. Following the decision of the court in Kav LaOved Worker’s Hotline v. Government of Israel [1], which set aside arrangements that restricted foreign workers in Israel to a specific employer as a violation of their human rights, the petitioners challenged the restrictive arrangement relating to the Turkish employees of the fourth respondent.

 

Held: (Majority opinion — Vice-President Rivlin and Justice Hayut) The arrangement in this case differs from the restrictive arrangements addressed in Kav LaOved Worker’s Hotline v. Government of Israel [1] in two major respects. First, unlike the foreign workers in Kav LaOved Worker’s Hotline v. Government of Israel [1], the Turkish workers do not pay substantial sums to manpower contractors to be allowed to come to Israel. Second, the rights of the Turkish workers are subject to the supervision of both the Turkish authorities and the Israeli authorities, which both have an interest in ensuring that the Turkish workers’ wages are paid and remitted to Turkey.

(Minority opinion — Justice Levy) The fact that the Turkish workers are not required to pay substantial sums to manpower contractors in order to come to work in Israel does not derogate from the fact that they are subject to a restrictive arrangement that prevents them from changing employers in Israel. The result of this is that they are unable to realize their market value in the work market. The restrictive arrangement thus violates the rights of the Turkish workers, and this violation is unconstitutional.

 

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

 

Legislation cited:

Companies Law, 5759-1999, s. 2.

Contracts (General Part) Law, 5733-1973, s. 30.

Courts (Mediation) Regulations, 5753-1993, r. 4A.

Employment Service Law, 5719-1959.

Hours of Work and Rest Law, 5711-1951.

 

Israeli Supreme Court cases cited:

[1]      HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [2006] (1) IsrLR 260.

[2]      HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department (not yet reported).

[3]      HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel (not yet reported).

[4]      HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment (not yet reported).

[5]      HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister (not yet reported).

[6]      CA 11152/04 Pardo v. Migdal Ltd [2006] (2) IsrLR 213.

[7]      CrimA 11196/02 Frudenthal v. State of Israel [2003] IsrSC 57(3) 40.

[8]      CrimA 7757/04 Borstein v. State of Israel [2005] IsrSC 59(5) 218.

[9]      LCA 267/06 Yilmazlar International v. Yagel (unreported decision of 9 January 2006).

[10]    HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister (not yet reported decision of 10 May 2006).

[11]    HCJ 1030/99 Oron v. Knesset Speaker [2002] IsrSC 56(3) 640.

[12]    CA 10078/03 Shatil v. State of Israel (not yet reported decision of 19 March 2007).

[13]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (not yet reported decision of 11 May 2006).

[14]    HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[15]    CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[16]    CA 337/62 Riezenfeld v. Jacobson [1963] IsrSC 17(2) 1009; IsrSJ 5 96.

 

Israeli District Court cases cited:

[17]    LCA (TA) 2782/05 Yilmazlar International v. Yagel (unreported decision of 4 January 2006).

 

Israeli Magistrates Court cases cited:

[18]    CC 2992/05 (Ram) Yagel v. Nomdar (unreported decision of 4 September 2005).

 

Canadian cases cited:

[19]    Dunmore v. Ontario (Attorney General) [2001] 3 S.C.R. 1016.

 

For the first petitioner — N. Levenkron, Y. Berman.

For the second petitioner — Y. Livnat.

For respondents 1-3 — A. Helman.

For the fourth respondent — T. Benenson.

For the fifth respondent — R. Wolf.

 

 

JUDGMENT

 

 

Vice-President E. Rivlin

The background to the petition and the arguments of the parties

1.    In 2002, an agreement was signed between Israel Military Industries Ltd (IMI) and the Turkish Ministry of Defence to upgrade 170 Turkish Army tanks, for a sum of approximately 700 million dollars. The agreement included an undertaking on the part of the State of Israel to make reciprocal purchases in an amount of approximately 200 million dollars over a period of ten years, i.e., approximately 20 million dollars per annum. An undertaking of this kind for a reciprocal purchase, which is called an ‘offset arrangement,’ is intended as a rule to compensate local industry for sending sources of income and employment out of the country, as well as to create an economic balance so that together with the purchase from a party outside the country, foreign currency will also travel in the opposite direction, which in our case is from Israel to Turkey. There is therefore no dispute that, without the undertaking to make a reciprocal purchase, the Turkish Ministry of Defence would not have approved the transaction as a whole.

In 2003, it was agreed between IMI and the Turkish Ministry of Defence that a part of the offset undertaking to which IMI committed itself would be realized by means of granting a permit to the fourth respondent, Yilmazlar International Construction Tourism & Textile Co. Ltd (hereafter: the Yilmazlar company), a company registered in Israel with Turkish owners, to employ workers from Turkey in the construction industry. Within the framework of the agreement it was stipulated that the wages of the Yilmazlar company’s workers, less the amounts of money that the employees would keep for themselves for the purpose of their living expenses in Israel, would be sent directly to Turkey, and would be deducted from the offset debt. In order to ensure that most of the amounts that the Yilmazlar company’s workers would receive would indeed be sent to Turkey and be deducted from the offset liability, it was stipulated that at least 90 per cent of the Turkish workers who would be employed by the Yilmazlar company within the framework of the agreement would have families to support.

The aforesaid agreement was enshrined in government decision no. 2222 of 11 July 2004 (hereafter: the government decision). It was stipulated in the decision that the Yilmazlar company would receive a special permit to employ 800 foreign workers from Turkey in the construction industry during the years 2004-2007, without this leading to an increase in the overall maximum number of foreign workers in the construction industry. The petition before us was filed against this decision.

2.    The petitioners before us — the Hotline for Migrant Workers and the non-profit organization Kav LaOved Worker’s Hotline — are challenging the aforesaid decision of the government. In their petition, they explain that the workers of the Yilmazlar company are not subject to the procedures that apply to other foreign workers in the construction industry in Israel with regard to the possibility of changing employers, but they are subject to the arrangement that existed before the aforesaid procedures were formulated. According to the previous arrangement, a worker may work solely and exclusively for the employer for whom he came to work in Israel, and when the contract between the worker and that employer ends, the validity of the worker’s entry visa and his permit to live in Israel expires. As a result of this, the workers of the Yilmazlar company are ‘bound’ to their employers. In view of the aforesaid, the petitioners demand that respondents 1-3 (hereafter: the respondents) apply to the workers of the Yilmazlar company the arrangements that apply to the other foreign workers in the Israeli construction industry. In particular the petitioners demand that the ‘change of employer’ procedure and the ‘closed skies’ procedure should be applied to the workers of the Yilmazlar company. The ‘change of employer’ procedure, it should be clarified, was intended to allow a worker to submit an application to change employers before he leaves his lawful employer or immediately after leaving him, if he proves that he was unable to submit the aforesaid application before he left. The procedure stipulates conditions that allow a worker to leave the employer whose name is stated in his permit and change over to a different employer, subject to the conditions and requirements stipulated therein. The ‘closed skies’ procedure allows in certain circumstances a worker who has been arrested for illegal residence in Israel to be released from custody and to obtain work with another employer. This is intended to provide a solution for employers who have a shortage of workers, in view of the closed skies policy. The petitioners therefore argue that the government decision, which provides that the Yilmazlar company’s workers shall not be subject to the aforesaid procedures, is an unreasonable decision that violates the basic constitutional rights of the workers.

3.    The petitioners give details in their petition of several cases in which the Yilmazlar company’s workers applied, because of allegedly harsh and illegal conditions of work and wages, to change over to another employer within the framework of the ‘closed skies’ procedure. The applications of these workers were refused — so it is alleged — because the state relied on the government decision that is the subject of the petition. The petitioners argue that the Yilmazlar company’s workers suffer from harsh work conditions and meagre, illegal wages. They explain that the Yilmazlar company’s workers are recruited for the work in Turkey and are immediately required to sign a several-page agreement, without being given the possibility of reading the agreement and without being given a copy of it. It is alleged that the workers’ wages, without overtime, are less than the minimum wage required by law. The workers are required to sign a blank promissory note, which remains in the possession of the Yilmazlar company and allows it to attach the worker’s money and property unconditionally and for whatever amount that it sees fit to write in the promissory note. The petitioners further argue that when the workers come to Israel, their passports are taken from them; that in the first few months of their work, the Yilmazlar company does not pay their wages; that they work many hours each day and in rare cases they are even required to work almost a whole day without interruption; that the workers are not paid for overtime; that in some cases the workers are forbidden to leave the site after the workday ends without the approval of the work manager or they are required to return home no later than 10:00 p.m.; that at some sites the workers are forbidden to have cellular telephones; that if workers make a complaint, they are fined by the company and threatened that they will be dismissed and sent back to Turkey; and that the company has the habit of holding ‘threat meetings’ from time to time. The petitioners claim that the respondents’ policy, according to which they do not allow the Yilmazlar company’s workers to change over to another employer, gives Yilmazlar absolute power over its workers, who are compelled to suffer any condition and any stricture that is imposed upon them. They also say that the petition is filed as a public petition and that the petitioners do not include any worker of the Yilmazlar company who has been personally harmed by the company’s policy. The reason for this, according to the petitioners, is that the Yilmazlar company has succeeded in exploiting its absolute power over the workers in order to suppress any possibility of a ‘revolt’ against its conditions of work, as well as against the restriction upon changing over to another employer.

The petitioners raise a host of arguments against the government decision. Inter alia, they argue that the government decision with regard to the restrictive arrangement was made ultra vires and is contrary to the provisions of the Employment Service Law, 5719-1959, and contrary to the decision of a previous government; that it is a restrictive arrangement that violates the dignity and liberty of Yilmazlar’s workers, the freedom of occupation, the freedom of contracts and their freedom to enter into contracts; that the decision is contrary to public policy, contrary to the principle of equality and unreasonable. Finally they are of the opinion that we ought to decide that the offset transaction that was signed between the Government of Israel and the Government of Turkey is nothing more than trafficking in human beings.

4.    The state argues at the beginning of its reply that no foreigner has an inherent right to work in Israel, and a foreigner certainly does not have an inherent right to work in any place of work where he wishes to work, for any employer whom he chooses. It argues that every state may make its willingness to allow a foreign national to enter and work in it conditional upon him working only for a specific employer for whose benefit a visa was issued to the worker. On the merits, the state is of the opinion that the government decision does not violate any inherent rights of the company’s workers and that there are objective and reasonable grounds that justify not applying the ‘closed skies’ procedure and the ‘change of employer’ procedure to the Yilmazlar company’s workers. The state argues that there are significant differences between the Yilmazlar company’s workers and other foreign workers. First, the state says that the Yilmazlar company’s workers do not, when they enter into a contract with the company, pay large sums of money for their actual employment in Israel. This is different from other foreign workers, who pay huge sums to manpower companies or other agents in return for their actual employment in Israel, and they are therefore subject to the possibility of exploitation by the employer. In view of the aforesaid, the state argues that a worker who is not satisfied with the terms of his employment with the Yilmazlar company and wishes to terminate his employment with it can return to Turkey without suffering serious economic loss as a result, and there is no ground or reason that justifies allowing him to remain in Israel and to work here. Second, the state claims that the Yilmazlar company’s workers are different from other foreign workers in Israel in that they are employed in Israel within the framework of an agreement that was made with the approval of the Turkish government and they are entitled to the protection of the Turkish government with regard to their rights as workers. Third, the state further argues that the State of Israel has a clear special interest in protecting the rights of the Turkish workers to earn proper wages and to receive their wages on time. It is emphasized that the State of Israel attributes great importance to carrying out the offset undertaking within the framework of the agreement with Turkey, both because of the serious economic consequences that could result from a breach of the undertaking and because of the negative consequences that could result from a breach of the undertaking in the sphere of Israel’s foreign relations with Turkey. The respondents say in this regard that the Turkish Ministry of Defence and the Israeli government check the conditions of employment of the Yilmazlar company’s workers. Thus a delegation from the Turkish Ministry of Defence visited Israel in order to check the conditions of employment of Yilmazlar’s workers. In addition, the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment (hereafter: the Ministry of Industry) ordered a comprehensive investigation to be made of the conditions of employment of Yilmazlar’s workers at the various sites of the company throughout Israel. It is claimed that the findings of this investigation showed that, as a rule, the company’s workers are employed on fair conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state clarifies that where problems were found, a further check was made and this showed that most of the problems had been corrected, and it declares that, in any case, the department will continue to consider whether to take action pursuant to its powers under the law to prevent additional problems in the future. Finally, the state claims that the petitioners did not succeed in establishing their claim with regard to a systematic violation of the rights of the Yilmazlar company’s workers, and that in any case, even if there is a basis to their claims, nothing prevents the workers who are dissatisfied with their terms of employment from leaving their work and returning to Turkey.

5.    The Yilmazlar company, the fourth respondent, requests in its reply that we deny the petition against it in its entirety. Yilmazlar claims that the petitioners, in their innocence, have been deceived by parties that have economic interests — employers and manpower contractors — who wish to devise  a method of bringing foreign workers into the State of Israel, who will operate without supervision and in circumvention of the ‘closed skies’ policy of the Israeli government. Yilmazlar regrets the fact that the petitioners  made no contact with it requesting  to receive the relevant details and to clarify the truth of the claims raised against it. The company claims that the documents in its possession — salary slips, confirmations of the payment of wages by bank transfer, confirmations of direct payments to workers and work agreements — show that it fully complied with the employment laws, and that investigations that have been carried out, both by Turkish government authorities and by Israeli authorities, show this to be the case. Yilmazlar requests that we do not accept the affidavits of the three foreign workers on which the petition is based. It claims that a comparison of these affidavits with other affidavits, which were filed by workers in administrative petitions relating to them, show many contradictions and that many of the facts included in them are incorrect. Inter alia, Yilmazlar says that the workers keep their Turkish passports, which they claim was proved in the investigation carried out by the Ministry of Industry; that the workers, including the deponents, come to Israel after signing work agreements with Yilmazlar that are supervised and approved by the Turkish Ministry of Labour; that the terms of the agreements with them, including increases in wages, are punctiliously observed by Yilmazlar; that the Turkish Ministry of Employment controls the travelling of Turkish workers to Israel and supervises the procedure carefully; and that the fact that many of the workers who return to Turkey, including one of the petitioners’ deponents, wish to return to Israel and to be reemployed specifically by Yilmazlar shows that the employment is fair and the wages are proper and lawful. Yilmazlar claims that the offset agreement constitutes a golden economic opportunity for the Turkish workers, and that granting the petition and setting aside the agreement will inflict a mortal blow upon hundreds of Turkish workers who are employed by the company.

6.    IMI, which was joined as a party to the petition at a later stage, is also of the opinion that it should be denied. It argues that the petition should be denied in limine because of delay in filing it, both because it was filed more than four months after the date on which the government decision was made, and because IMI was joined as a party to the proceedings another four months thereafter. IMI explains that the realization of the undertaking to make a reciprocal purchase — in an amount of tens of millions of dollars, and in accordance with predetermined timetables — involves lengthy and complex planning. It argues that setting the government decision aside will case IMI real and serious damage, since it will have difficulty, and maybe will not succeed at all, in complying with its undertakings to make a reciprocal purchase within the timetable that applies in this regard. IMI points out that Turkey is one of its important strategic targets. It argues that a failure to comply with the undertakings that IMI took upon itself is likely to result in fines in a sum of millions of dollars; damage to its chances of winning a further order for the project; the inclusion of IMI on the ‘blacklist’ of the Turkish defence establishment; exclusion from participation in additional tenders in Turkey in the military-security sphere; damage to IMI’s additional projects in Turkey; and damage to other joint projects between Israel and Turkey and the strategic relationship between the countries.

Decision no. FW/3 of the ministerial committee and Government Decision no. 4024

7.    Before we turn to consider the merits of the petition, we should discuss several developments that have occurred since the court began  hearing the petition. First, on 7 September 2005, the state filed an update statement, in which it gave notice that on 7 June 2005 the ministerial committee for the employment of foreign workers adopted a decision concerning the workers of the Yilmazlar company (hereafter: ministerial committee decision no. FW/3), which states the following:

‘1.          a.         Further to Government Decision no. 2446 of 15 August 2004 and Government Decision no. 2222 of 11 July 2004 [the decision that is the subject of this petition], it shall be determined that the permits that were given to Yilmazlar… to employ 800 foreign workers until the end of 2007 shall not be subject to the procedures concerning the employment of foreign workers through licensed corporations, and the Minister of Industry, Trade and Employment shall be directed to grant an exemption to the Yilmazlar company from paying the permit fees for employing those workers. In addition, the Ministry of the Interior shall be directed not to apply the transfer procedure and the change of employer procedure to the Yilmazlar company’s workers, subject to the decision of the Supreme Court in petition HCJ 10843/04, and at the same time the Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic checks of the conditions according to which the company’s workers are employed, in order to ensure the payment of wages and ancillary benefits to the workers according to law.

b.            It is clarified that only the government has the power to approve, in very exceptional cases, any additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions.’

The update statement made it clear that the Minister of Finance submitted an objection to the aforesaid ministerial committee decision no. FW/3, and on 31 July 2005 the government adopted decision no. 4024 (hereafter: decision no. 4024), in which it decided, inter alia, to approve the aforementioned paragraph 1, which lies at the heart of this petition and which concerns the arrangement whereby the foreign workers are employed by the Yilmazlar company. The state, therefore, emphasizes that both the ministerial committee and the government directly considered the matter lying at the heart of the petition, and they decided, in the circumstances of the case, that the transfer procedure and the change of employer procedure should not apply to the 800 foreign workers who are employed by Yilmazlar. It is argued that the margin of discretion given to the government, as the executive branch of the state, with regard to the policy of employing foreign workers in Israel, is very broad. In view of the aforesaid, the state argues that Government Decision no. 4024 falls within the margin of reasonableness, and that there are no legal grounds for the court's intervention.

8.    For their part, the petitioners filed a response to the update statement, in which they clarified that they stand behind everything stated in their petition and insist upon the relief sought therein. The petitioners claim that the decision of the ministerial committee and Government Decision no. 4024 do not change the position of Yilmazlar’s workers. Moreover, the petitioners emphasize that other foreign workers who work in the construction industry are no longer employed by construction companies, but through licensed corporations who supply manpower to the construction companies. As we said above, these workers are subject to the ‘closed skies’ procedure and the ‘change of employer’ procedure, which allow workers to change over from one manpower company to another once every three months. The petitioners argue that, by contrast, Yilmazlar remains the only construction company in Israel which has permits to employ non-Israeli construction workers directly, and whose workers suffer from being absolutely bound to their employer and from a continued violation of their rights.

9.    On 8 February 2006, the petitioners filed an application to attach documents, which they claim are capable of shedding light on the harsh consequences of the arrangement under discussion in the petition, and of the violation of the rights of the Yilmazlar company’s workers. The documents that the petitioners wish to attach are the decisions of three instances of the courts in an action filed by the village of Yagel against the Yilmazlar company. In the action, the Yilmazlar company was requested to vacate a building in the village in which it had housed its workers. It was alleged that the company housed approximately one hundred of its workers in a building designed as a home for one family, thereby violating their rights. The petitioners claim that the Magistrates Court, the District Court and finally this Court accepted the factual contentions of the village of Yagel in this regard.

In response, Yilmazlar argues that the housing conditions of its workers are not a part of the petition, and the facts of this matter should be examined, if at all, in other proceedings. It argues that the citations from the judgments that the petitioners wish to attach are obiter remarks that were made within the framework of the hearing for a temporary order, before the actual claim was tried. Finally, Yilmazlar argues that inspectors from the Department for Enforcing the Employment Laws at the Ministry of Labour and Social Affairs made an inspection of the housing conditions of the workers who were housed in the village of Yagel. They argue that that the report that was compiled shows that the housing conditions of the workers were satisfactory and that Yilmazlar passed the inspection after correcting minor defects. Yilmazlar therefore wishes to attach to its submissions the report of the inspection of the foreign workers’ housing by the Department for Enforcing the Employment Laws of the Ministry of Labour and Social Affairs of 8 November 2005, and the report of the inspection after correcting the defects, in order to prove that there is no basis to the petitioners’ claims.

The judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1]

10. On 40 March 2006, judgment was given by this Court in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. The petition in Kav LaOved Worker’s Hotline v. Government of Israel [1] was filed inter alia by the petitioners before us. In that petition it was claimed that the arrangement that bound foreign workers in Israel to one employer seriously violated the rights of those workers. The Supreme Court granted the petition. In a comprehensive judgment (written by Justice E. Levy, with the agreement of President A. Barak and Vice-President M. Cheshin), the court first considered the realities of the employment of foreign workers in Israel. The position of the workers was described (in paragraph 27 of the judgment) as follows:

‘A consideration of the reality of employing foreign workers in Israel during these years reveals a problematic and troublesome picture. It transpires that workers from foreign countries are able to come to Israel ab initio only after paying large amounts of money — sometimes involving the mortgaging of their property and taking out loans — to manpower providers and agencies. These amounts of money are shared between the manpower company in the country of origin and the manpower providers in Israel (State Comptroller, Annual Report no. 53b for 2002, at pp. 655-656; LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment). In this manner:

“The profit involved in actually bringing the foreign workers from abroad (which arises from payments that the foreign workers are prepared to pay in their country of origin in return for the right to work in Israel) induces various manpower providers to bring foreign workers to Israel in as large a number as possible, whether there is work for them in Israel… or not” (Recommendations of the Inter-ministerial Committee, at p. 11).

The wages paid to foreign workers are in most cases low, and frequently even lower than the minimum wage. The State Comptroller’s Annual Report for 1999 found that:

“The main economic incentive for employing foreign workers is that they cost less than the Israeli worker, and that they are prepared to work without social benefits and on terms that are unacceptable to the Israeli worker… Foreign workers are the most vulnerable sector, from the viewpoint of breaching the Minimum Wage Law. Exploitation of foreign workers by employers can also be seen from a survey conducted by the Manpower Planning Authority in 1998 with regard to foreign workers in Israel without a permit. Approximately 70% of those interviewed earned less than the minimum hourly wage…” (State Comptroller’s Annual Report for 1999, at pp. 278-279).

Even the work and subsistence conditions offered to foreign workers are poor, and many of them find themselves living in crowded accommodation and unpleasant living conditions (see State Comptroller’s Annual Report for 1995, at pp. 476, 493; CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd). They do not benefit from the effective protection of protective legislation (see O. Yadlin, “Foreign Work in Israel,” Menachem Goldberg Book (A. Barak et al. eds., 2001), at p. 350 and the references cited there; LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd); they are exposed to abuse, exploitation and oppression (see LCrimA 10255/05 Hanana v. State of Israel; see also the Report of the Ministry of Justice, Ministry of Labour and Social Affairs and the Ministry of Foreign Affairs, Implementation of the International Covenant on Economic, Social and Cultural Rights (1997), at p. 27), and they find it difficult, inter alia because of a lack of the knowledge and the funds that are required in order to pursue a legal recourse, and because of their great dependence on their employers, in bringing their cases to the courts (see LabA 1064/00 Kinianjoi v. Olitziki Earth Works, at p. 638).’

Against the background of this harsh reality, the court reached the conclusion that the arrangement that restricts a worker to one employer violates the basic rights of the foreign workers to dignity and liberty. The court explained that in view of the large sums that the worker invests in acquiring the possibility of working in Israel, the connection between the residency permit in Israel and working for one employer seriously violates the foreign worker’s autonomy of will, which constitutes a central part of the human right to dignity. It was held that the restrictive employment arrangement means that the act of resignation, which is a legitimate act and a basic right of every worker, is accompanied by a serious sanction — the person who wishes to terminate the employment relationship loses the licence to live in Israel. This involves a violation of the worker’s right to operate in the work market as a free agent. The judgment explains that:

‘Associating the act of resignation with a serious resulting harm is equivalent to denying the individual of the possibility of choosing with whom to enter into a contract of employment, and compelling a person to work in the service of another against his will. This not only violates the right to liberty, but it creates a unique legal arrangement that is by its very nature foreign to the basic principle of employment law, the moral value of the employment contract and the basic purpose of the employment contract in guaranteeing the economic survival, dignity and liberty of the worker. It gives the employer of the foreign worker an enforcement tool that is unrecognized in our legal system, which has freed itself of the idea of enforcing employment contracts (see s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970). It deprives the worker of the basic ability to negotiate for the remuneration that he will receive for his work potential, and for the terms of his employment and his social benefits’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 32).

The court went on to hold that the arrangement that binds a worker to one employer does not satisfy the proportionality test. In view of the aforesaid, the court ordered the respondents:

‘…to formulate a new employment arrangement, which is balanced and proportionate, with regard to foreign workers in these industries. This should not be based on the restriction of the worker who comes to Israel to a single employer, and it should refrain from linking the act of resigning with any sanction, including the loss of the status in Israel.’

11. Following the judgement in Kav LaOved Worker’s Hotline v. Government of Israel [1], the parties were asked to notify the court of their position with regard to the ramifications of the aforesaid judgment on the petition before us. From the statements of the parties it can be seen that both the petitioners and the respondents have not changed their positions. According to the petitioners, the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1] strengthens their petition and what is stated therein applies a fortiori to the specific restrictive arrangement of the Yilmazlar’s company’s workers. The petitioners are of the opinion that the arrangement that is the subject of this petition should also be set aside, since it is a unique and even more drastic arrangement than the arrangement that previously governed all  of the foreign workers in Israel. For their part, the respondents are of the opinion that Kav LaOved Worker’s Hotline v. Government of Israel [1] does not have any effect upon their response. According to them, there is a material and relevant difference between the workers of the Yilmazlar company and the other foreign workers, who are required to pay large sums of money in order to come to Israel. The respondents are of the opinion that in view of the special employment arrangements of the Yilmazlar workers, the additional supervision of their employment, the fact that that this is an exceptional and special arrangement and the fact that the arrangement is supposed to continue only until the end of 2007, a distinction should be made between the specific case in this petition and the general question considered in Kav LaOved Worker’s Hotline v. Government of Israel [1].

Consideration of the arrangement that applies to the Yilmazlar workers

12. No one disputes that the offset arrangement between the Turkish government and IMI, which is the background to this petition, involves important public interests of the State of Israel. Granting the petition, by ordering the state to apply to the workers of the Yilmazlar company the arrangements that apply to all the foreign workers in the construction industry, in so far as this concerns the ability to change employers, is likely to result in serious damage to essential interests of the state, since it will lead to one of two possibilities. The first possibility is that the Yilmazlar company will be given an opportunity to employ new workers from Turkey, as replacements for workers who leave it and change over to other employers. This course of action will allow foreign workers to be brought into Israel without any limit, which is completely contrary to the ‘closed skies’ policy that the government adopted in order to limit the number of foreign workers and to encourage Israelis to re-enter the work market. The respondents explain that this policy has, in the last two years, resulted in thousands of new Israeli workers joining the construction industry. It has also been approved in several decisions of this Court, which has held that it contains no flaw and that there are no grounds for court intervention (HCJ 8155/03 A. Arenson Ltd v. Director of the Foreign Workers Department [2]; HCJ 3541/03 A. Dori Engineering Works Ltd v. Government of Israel [3]; HCJ 1963/04 Resido Fi. Bi. Ltd v. Ministry of Industry, Trade and Employment [4]; HCJ 10692/03 Plassim Development and Construction Co. Ltd v. Prime Minister [5]). The second possibility available to the state is that it will not allow Yilmazlar to bring new workers from Turkey to replace those workers who have changed over to other employers. It should be noted that the employment of a worker who changes over to any employer other than the Yilmazlar company, which as we said above has Turkish owners, will not be credited to the implementation of the reciprocal purchase undertaking, unless the Turkish Ministry of Defence approves the identity of the employer. Consequently, this course of action will lead to a breach of the offset agreement with Turkey, and the respondents assert that it is likely to result in serious damage to IMI in particular, and to Israel’s foreign relations and security in general. In this regard, the state emphasized the great importance of the strategic relationship between the State of Israel and Turkey and the fact that Turkey is one of Israel’s most important allies.

13. Indeed, the concern that important interests of the state may be harmed carries great weight. However, in the case before us, I have reached the conclusion that in and of itself  this concern need not lead to the denial of the petition because I am persuaded that the petition is unjustified on its merits and that the rights of the foreign workers, whom the petitioners wish to protect, are not being violated to a degree that justifies our intervention.

The position of the Yilmazlar company’s workers is incomparably different from the position of the foreign workers whose case was considered in Kav LaOved Worker’s Hotline v. Government of Israel [1], because of a combination of several factors that are all present in our case. First, there is no dispute that the workers of the Yilmazlar company are not required to pay large sums of money in order to come to Israel for the purpose of working for Yilmazlar. In the judgment in Kav LaOved Worker’s Hotline v. Government of Israel [1], the court emphasized that:

‘The question whether the restrictive employment arrangement violates the rights of the employee to dignity and liberty cannot be considered in a vacuum. It should be considered in view of the reality of the employment of foreign workers in Israel. It should be sensitive to the complex circumstances that led to the possibility of foreign workers coming to Israel in the first place. It should take into account the special status of the group of foreign workers in the Israeli work market — a group that is composed of weak, “temporary,” poor and unorganized workers. It should take into account the huge disparity in forces between the foreign worker and the state that is allowing them to enter its work market on its terms , and the manpower agencies and companies that operate in this work market’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Indeed, the court went on to discuss this reality. It explained that:

‘… foreign workers that come to Israel to work here do so against a background of economic distress and their desire to provide for their families. In the process of coming here, they are charged, not infrequently, large sums of money, which in terms of what is customary in their countries of origin are sometimes enormous, in return for arranging their coming and staying in Israel. For these reasons, deporting them from Israel before the worker has the opportunity of earning an amount of money that is at least sufficient to “cover” his debt is an action that deals a mortal economic blow to the worker and his dependents’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at paragraph 28; emphasis supplied).

Later the court said:

‘…according to the restrictive employment arrangement the residence permit given to the foreign worker who comes to Israel is conditional upon him working for a specific employer whose name is stipulated in the residence permit. A termination of the work for this employer, whatever the reason for it may be, means that the permit to reside in Israel expires. In view of the money and the effort that the foreign worker invests in “acquiring” the possibility of working in Israel for a fixed period, it is clear that this connection between the validity of the residence permit and the work for a single employer seriously violates the autonomy of his will…’ (Kav LaOved Worker’s Hotline v. Government of Israel [1], at para. 31; emphasis supplied).

The conclusion of the court in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1] was therefore based to a large extent on the factual background. In the case before us, as we have said, the position is different: the Turkish workers are not required to pay huge amounts to middlemen or to manpower companies in order to come to Israel to work for Yilmazlar. The opposite is true: Yilmazlar pays the cost of bringing the workers to Israel, including the costs of medical checks, flights to Israel and medical insurance. In view of the aforesaid, and as the respondents justly point out in their replies, an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company, return to his country of origin, and this too is at Yilmazlar’s expense (except in exceptional cases where the worker is dismissed because of damage and loss that he deliberately and wilfully caused to the company), without the worker being encumbered by any significant debt. Indeed, a foreign worker who enters Israel within the framework of the offset arrangement does not have any acquired right to work in Israel; he certainly does not have an acquired right to work at any place of work that he wishes and for any employer that he chooses. Notwithstanding, a worker who has returned to Turkey can, if he so wishes, take the necessary steps in order to be employed by another Israeli employer, like any foreign national who wishes to be employed in Israel.

14. Moreover, I have been persuaded that there is a significant difference between the Yilmazlar workers and other foreign workers. This difference finds expression in a host of other parameters: the procedure of making a contract with Yilmazlar’s workers is carried out under the auspices and supervision of the Turkish government; the employment agreement with the workers is drafted and prepared by the Turkish Ministry of Labour together with the Turkish Ministry of Defence; the agreement is written in Turkish, the mother-tongue of the workers, and a copy of it is kept in the file that is maintained by the central management of the Turkish employment office; the work agreement is signed in Turkey as a three-party agreement by the worker, the Yilmazlar company and also a representative of the Turkish Ministry of Labour; the agreement grants the Yilmazlar workers a right to sue Yilmazlar even in Turkey. In this respect, their situation is also different from other foreign workers, since the deportation of the latter from Israel to their country of origin is likely to make it impossible for them to pursue their rights against their Israeli employer. With regard to the work conditions of the Yilmazlar company’s workers, the employment of these workers requires compliance with very strict conditions that were determined by the Turkish authorities. The respondents declare that the workers enjoy good working conditions, which includes receiving three meals a day, housing and medical insurance that are all paid for by Yilmazlar. The activity of the Yilmazlar company, in so far as it concerns the protection of the rights of the Turkish workers employed by it in Israel, is subject to the institutional supervision and strict review of several bodies, both on the Turkish side and on the Israeli side: the Turkish Ministry of Labour recruits the workers, prepares the work agreement with them and signs it, as aforesaid, as a third party, together with the worker and the Yilmazlar company. In this way, it is possible for the Turkish authorities to monitor the conditions in which the workers are employed. It was also stated that a delegation from the Turkish Ministry of Defence actually visited Israel in order to check the employment conditions of the Yilmazlar workers; the Turkish authority that supervises the offset arrangement supervises the transfers of the money and payments to the workers. The money (at least 75% of the workers’ salaries) is transferred to a central account that is managed in a bank in Turkey and from that account the money is transferred to the private accounts of the workers. From the Israeli side, there is an equal degree of supervision: IMI sends the Turkish authorities copies of all the transfers of money to the workers’ accounts and in return it benefits from a credit for the reciprocal purchase in the total amount of those transfers; the Israeli Ministry of Industry, which is responsible for the performance of the offset agreement, conducts inspections of the Yilmazlar company. As the state explained in its reply, the Foreign Workers Department at the Ministry of Industry carries out checks at the company’s sites throughout Israel. In the most recent check that was made, it was found that all of the company’s workers are employed in decent conditions, their wages are not less than the minimum wage provided by law and their housing conditions at the company’s sites are reasonable. The state also declared that in places where problems were found, a further inspection was made, and this showed that most of the problems had been corrected. The state further declared that the Foreign Workers Department will continue to check that measures are taken in accordance with its powers under the law in order to prevent additional problems in the future. It will be remembered that in decision no. FW/3 of the ministerial committee, which was approved in Government Decision no. 4024, it was stated that:

‘The Director of the Foreign Workers Department at the Ministry of Industry, Trade and Employment shall be directed to carry out special periodic supervision of the conditions of employment of the company’s workers, in order to ensure the payment of wages and ancillary benefits to the workers according to law.’

In addition, the Israeli Ministry of Labour and Social Affairs is also carrying out checks, on a regular basis, of the manner in which Yilmazlar treats its workers.

15. From all of the aforesaid and after reviewing all the additional documents in the application to attach documents, it transpires that the position of the Yilmazlar company’s workers is materially different from the position of the foreign workers whose case was considered in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]. In the circumstances described, I am satisfied that the rights of Yilmazlar’s workers are being protected, thanks to the strict supervision that is imposed both from the Turkish side and from the Israeli side. Indeed, the arrangement under review in this petition is an unusual and special arrangement. Counsel for the state emphasized that, according to Government Decision no. 4024, it will not be possible in the future to make an additional arrangement to bring foreign workers to Israel or to employ them as a part of reciprocal purchase agreements without the approval of the government. In view of the state’s foreign affairs and security interests that are in the balance, the fact that the arrangement under discussion is supposed to continue only until the end of this year, and that the workers’ terms of employment were dictated by the Turkish government, which has a sincere concern for the conditions in which its citizens are employed, there are no grounds for granting relief to the workers. This is especially so when considering that it is questionable whether they want such relief. I propose to my colleagues that the petition should be denied.

16. I have studied the comprehensive opinion of my colleague Justice E.E. Levy and the opinion of my colleague Justice E. Hayut. I agree in principle with everything stated in them. Indeed, no one could dispute that the restrictive employment arrangement is highly undesirable, and that its causes very great harm to the foreign workers.

In the course of his wide-ranging opinion, my colleague devoted approximately two pages to an examination of the ‘actual harm’ to the Yilmazlar workers. In his consideration of the concrete expression of the harm to the workers, my colleague reaches the conclusion that ‘the factual picture is not entirely clear,’ but he determines that, from his point of view, it is sufficient that there is ‘a real concern that arises from the case that the rights of the Yilmazlar workers may be violated in various respects.’ The heart of the matter, in his opinion, is therefore ‘the normative situation created by the Government Decision’ (paragraphs 19 and 20 of his opinion; emphasis in the original). It should be noted that this is the point of dispute between us: I agree with the rule held in Kav LaOved Worker’s Hotline v. Government of Israel [1] as well as with the vast majority of the legal analysis put forward by my colleague in the course of his opinion in this case. But, I am of the opinion that this Court cannot consider the legal position without reference to the actual factual position. In our case, we are dealing with a special group of workers, and in the special circumstances that have been brought before us. As I have emphasized and I emphasize once again,  there is no basis for granting the petition.

17. In the case before us, it is not possible to examine the specific work relationship between the parties — the foreign worker on the one hand and the employer on the other — without reference to all of the factors that are involved in the transaction between them. In the case before us, the contract between the foreign workers and Yilmazlar is based on the agreement between the Israeli and Turkish governments, with the respective supervision mechanisms contained therein, which constitute a kind of ‘collective protection’ for Yilmazlar’s workers. The fundamental agreement between the governments strengthens the position of Yilmazlar’s workers; these workers benefit ab initio from a different status than that of other foreign workers, since the Turkish government represents them, conducted the negotiations concerning their terms of employment and is responsible for ensuring that the terms that were agreed to are upheld. In the present case, the protection of the rights of Yilmazlar’s workers does not rely solely on the goodwill of the employer, but involves international political interests, which arise from the relationship between the two countries. Thus, the Yilmazlar workers are employed within the framework of a government arrangement, by virtue of a political agreement, which imposes on the private subcontractor (Yilmazlar) duties that do not apply in general to private manpower contractors. We cannot ignore the clear purpose of the offset agreement between the two countries, which is the background to the employment of the workers. Whereas, as a rule, the assumption is that the employer, who is motivated by economic interests, is likely to minimize his workers’ rights, in the present case it is in the interest of the Turkish government that foreign currency—the  workers’ wages—will flow into it. In these circumstances, the Turkish government can be presumed to ensure that the economic value that was agreed to will actually be transferred, since this is the main declared and agreed purpose of the agreement.

18. Finally, I should point out that a consideration of the operative consequences of my colleague’s opinion raises the question of whether, if the outcome proposed by him is adopted, the condition of Yilmazlar’s workers will actually be improved. Since a cancellation of the open skies policy is no longer a possibility, adopting my colleague’s position would lead to the cancelling of the offset agreement, and, as a consequence thereof, completely denying the Yilmazlar workers the possibility of earning their livelihoods in Israel. I think that, in view of the serious state of the Turkish job market, which my colleague also discusses in his opinion, the actual harm that such a decision will cause the Yilmazlar workers is very serious indeed, and is far greater than the theoretical concerns raised by my colleague. The interests and concerns of the foreign workers are the main focus of my decision. I also agree with the remarks of my colleague, Justice E. Hayut, that we are dealing with an agreement that is limited in time and subject to special supervision, and that any change will justify a reconsideration of the matter by this Court.

 

 

Justice E.E. Levy

1.    On 30 March 2006, this Court held that a procedure that made the entitlement of a migrant worker to a residency and work licence in Israel conditional upon his remaining with the employer whose name is stipulated in the licence was void because it violated basic rights excessively (HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]). It was held that the procedure blatantly conflicted with a major principle in labour law — the right of a person to cease  working for an employer with whom he no longer wants to be associated, without this involving such a serious sanction that it makes the termination of the employment relations not worthwhile. If you deny this right of someone — and with it the fundamental principle of competition between employers — there is a significantly greater risk that his rights as an employee will be violated. This violation, as we know, frequently results in serious cases of exploitation. It deprives the worker of the only real protection that he has — his "market value". Thus, in the absence of any sense of moral responsibility, which it would appear many people have long forgotten, it is as if we have removed the last barrier preventing the dissemination of the outlook that seeks to blur the image of the worker as a human being and to reduce his existence to being no more than a pair of working hands, a machine to be used by the employer. In the works of Aristotle:

καὶ ὁ δοῦλος κτῆμά τι ἔμψυχον, καὶ ὥσπερ ὄργανον πρὸ ὀργάνων πᾶς ὑπηρέτης. [Greek letters unclear in source – Trans.]

‘And the slave is a living possession, and every slave is like a tool that is preferable to all others’ (Aristotle, Politics 1, 21).

The fundamental case law ruling that the restrictive arrangement is void remains valid, even if it has not been implemented in full (see the decisions of October-December 2006 in the aforesaid Kav LaOved Worker’s Hotline v. Government of Israel [1]; see also Hotline for Migrant Workers and Kav LaOved Worker’s Hotline, Binding Migrant Workers to Corporations, 11 (March 2007), and Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, 14, 38 (August 2007)). It created a new legal position, in which the law is no longer prepared to tolerate the making of arrangements of this kind. It plays a major role in the normative framework in which migrant workers are employed in Israel. It looks equally to the present and the future. It binds all the organs of government, and in particular the government. As long as it is valid, it is also the concern of the court, whether it is this Court, the administrative courts, the labour courts or the detention courts.

2.    The ink has not yet dried on that ruling, and the question of employment restrictions has once again come before us. This time, it is alleged, it takes a different form, which should be distinguished from the case that we decided. It presents us with a specific and special arrangement that is based on important security, economic and political interests. This arrangement is limited in scope and prima facie concerns no more than several hundred workers. The seriousness of this arrangement is reduced — so it is alleged — because of the low level of the violation of rights that is actually inflicted. In all of this my colleague Vice-President Rivlin found a basis for departing from the case law ruling that was made. My position is different. Adopting my colleague’s approach means nothing more than turning the normative clock back and returning to a previous legal position that was found to betotally unacceptable. Were my opinion heard, we would hold that the restrictive element in the Government Decision cannot stand, because it is inconsistent with the provisions of the prevailing law.

Restrictive arrangements come in many forms but have the same result

3.    In Kav LaOved Worker’s Hotline v. Government of Israel [1] my colleagues and I discussed briefly the negative effects of restricting foreign workers to one employer, throughout the world in general and in Israel in particular (see, inter alia, paragraphs 24 and 38 of that decision and the citations there). I personally wonder whether the normative position that was set out in that case was not clear enough. I will not mention my own comments there, but can  anyone who reads the judgment not be be disturbed by the profound question of Vice-President Cheshin who asked —

‘What has happened to us that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and how can we remain silent?’ (ibid., at paragraph 4 of his opinion).

It is therefore incumbent upon us,  and this time with even greater force, to reemphasize the gravity of the  harm caused by restrictive employment mechanisms, and the immense injustice caused by their toleration. By considering these, we will also find an answer to the claims that are unique to the case before us.

4.    Throughout the world there are arrangements that apply to migrant workers, which, despite the many ways in which they are expressed, the different methods that they adopt and the various sectors of industry to which they apply, all have a similar purpose — to restrict an employee to one employer. By denying the employee of the natural protection inherent in the idea of the free market, the restrictive arrangement exposes him to violations of his rights concerning wages, including the payment of lower wages than the minimum wage provided by law and prohibited deductions from the wages actually paid, to the imposition of hours of work that are far longer than those permitted, to the seizing of travel papers by employers as a means of guaranteeing the continued existence of the work relationship, to poor quality housing, to the denial of proper medical care, to forced movement from one work site to another, and not infrequently also to sexual abuse and actual imprisonment. Where it concerns the treatment of migrant workers there is a considerable, surprising and most regrettable similarity between countries that are very distant from one another and between peoples who are completely foreign to one another. .

5.    A description of some of these phenomena in Israel was given by the State Comptroller in reports that he issued (State Comptroller, Annual report no. 49 (1998), at page 279; State Comptroller, Annual Report no. 55b (2005), at p. 379). Scholars have also written about them (see, inter alia, Amiram Gill and Yossi Dahan, ‘Between Neo-Liberalism and Ethno-Nationalism: Theory, Policy, and Law in the Deportation of Migrant Workers in Israel,’ 10 Mishpat uMimshal (Law and Government) 347 (2006), at p. 361; Adrianna Kemp and Rivka Reichman, ‘“Foreign Workers” in Israel,’ 13 Information on Equality and Social Justice in Israel 1 (2003), at p. 13). They were well described in the annual journal of the Israeli Society for Labour Law and Social Security for 2004:

‘The “restrictive arrangement” has led to widespread and serious phenomena of abuse and violations of the human rights of foreign workers. Many employers have exploited foreign workers in various ways. Workers are “charged” for fees and taxes that they [the employers] are liable to pay to the state, huge sums are deducted from the salaries of foreign workers on various pretexts and the workers are housed in wretched conditions. A large number of employers do not pay the foreign workers for all the hours during which they work, they pay less than the minimum wage and they do not pay overtime. Many employers do not pay medical insurance for their workers, and they shirk responsibility for them when they are hurt in work accidents and need medical treatment’ (Sharon Asiskovitch, ‘The Political Economy of Migrant Workers in Israel and the Immigration Policy vis-à-vis Foreign Workers in the 1990s,’ 10 Labour, Society and Law 79 (2004), at p. 90).

6.    But the negative consequences of restricting workers to their employers are not found in Israel alone. In Great Britain the recognition of the serious harm caused by this restriction to foreign domestic workers led to the amendment of the law in 1998 and the cancellation of the restriction (recently human rights organizations are warning of its return, de facto, because of government policy. See Kevin Bales, Disposable People: New Slavery in the Global Economy (2000), at page 28; Kate Roberts, ‘An important progressive response to globalisation is about to be reversed,’ Compass (May 22nd, 2007)). In Italy migrant workers are compelled to endure harsh treatment by their employers, since an attempt to change employers results in immediate deportation from the country and a three-year ban upon returning to work there (John Wrench, Migrants and Ethnic Minorities at the Workplace — The Interaction of Legal and Racial Discrimination in the European Union (Danish Centre for Migration and Ethnic Studies, Papers, Migration No. 19, 1997), at p. 29). In the United States the restriction of a whole sector — seasonal migrant workers whose main occupation is in agriculture — is a key factor in the serious exploitation of migrant workers by their employers. A comprehensive report, which was published this year by an American human rights organization, discussed this relationship between the restrictive arrangement and the violation of the rights of temporary migrant workers, who are sometimes treated like commodities:

‘Unlike U.S. citizens, guestworkers do not enjoy the most fundamental protection of a competitive labor market – the ability to change jobs if they are mistreated. Instead, they are bound to the employers who “import” them. If guestworkers complain about abuses, they face deportation, blacklisting or other retaliation… They are the foreseeable outcomes of a system that treats foreign workers as commodities…’ (Southern Poverty Law Center, Close to Slavery — Guestworker Programs in the United States (2007) 1, 2, 33-40).

7.    Some people regard restrictive arrangements as a means used by the host countries to keep the migrant workers apart and estranged from society, and to make them a cheap and available work force that can only be employed in difficult and unattractive jobs. The direct link between being bound to one employer, on the one hand, and a reduction in the wages paid and the migrant worker being forced to the bottom of the work ladder, on the other, was well illustrated by what is happening in the labour markets in East and South Asia (Stuart Rosewarne, ‘The Globalisation and Liberalisation of Asian Labour Markets,’ 21 World Economy 963 (1998), at page 973) as well as in Canada (Nandita Sharma, ‘On Being Not Canadian: The Social Organization of “Migrant Workers” in Canada,’ 38 Canadian Review of Sociology and Anthropology  415 (2001), at pages 425, 433). This was also discussed in a working paper describing the territory of Macao in China, which each year attracts a significant number of migrant workers:

‘[Scholars] have gone a long way to expose the role of the state in keeping the migrant workers “cheap” and “flexible.” The state has constructed a regulatory system in managing this category of foreigners. Many of these mechanisms are legislated into laws. Typically, migrant workers are denied the right to change employers. Since the ability of foreign workers to switch employer is severely curtailed, they are forced into a status of bonded labour and thus allow their employers to pay them a rate below that of the local workers’ (Alex H. Choi, ‘Migrant Workers in Macao: Labour and Globalisation,’ Southeast Asia Research Centre Working Paper Series no. 66 (2004), at page 6).

In the United Arab Emirates, migrants that constitute the majority of the work force, are forbidden to change employers during their first two years and thereafter can only do so with the employer’s consent. A particularly serious consequence of this is in the construction industry, where dozens of migrant workers lose their lives every year as a result of poor safety conditions. Dozens of others, in their distress, take their own lives. Others do not receive wages on time, live in poor conditions and are compelled to work long hours. All of this is because the employers regard themselves as not needing to compete for the market value of the worker (Hassan M. Fattah, ‘In Dubai, an Outcry from Asians for Workplace Rights,’ The New York Times (March 26th, 2006)). This was discussed by the international human rights organization, Human Rights Watch, in a comprehensive report published last year:

‘In most other places, a worker faced with hazardous working conditions and unpaid wages, in a free market economy that has an extreme shortage of labor, would move to a different job. But this is not an option for the migrant construction workers of the UAE, who like all other migrant workers in the country are contracted to work only for a specific employer’ (Human Rights Watch, Building Towers, Cheating Workers – Exploitation of Migrant Workers in the United Arab Emirates (2006), at p. 13).

8.    But what happens around the world does not only include direct restrictive arrangements. Sometimes the arrangements in the law take on an indirect guise, so that it appears that they originate in the free will of workers, even though this is not the case. The United States also provides an example of this. Not many years ago, in 2000, the American legislator addressed the impropriety whereby foreign skilled workers were subject to restrictions by law and repealed it (S. 2045 American Competitiveness in the Twenty-first Century Act of 2000, Pub. L. 106–313, title I, § 105, Oct. 17, 2000 (8 USCS §1184(n))). These workers are therefore allowed to change employers, but few of them take advantage of this, since their loyalty to a single employer is almost always an essential condition for recognition of their entitlement to a permanent residency visa (‘green card’). The strong desire to obtain this visa results in most workers binding themselves to an employer for many years. The direct and obvious result of this constraint — which as we have said appears to be a voluntary act deriving from freedom of choice — is the lack of competition for the workers, and consequently a significant worsening of their terms of employment. The figures show that even though these are skilled workers, including engineers, software and hi-tech personnel (who include, incidentally, no small number of Israelis), the wages paid to them are significantly lower than their American counterparts, they are compelled to work far more than the customary number of hours and they are harmed in other ways (Mark Krikorian, ‘Slave Trade: Permitting Guest Workers Sounds like the Perfect Solution to the Immigration Imbroglio: Look Again,’ National Review (September 14th, 1998); Norman Matloff, ‘On the Need for Reform of the H-1B Non-Immigrant Work Visa in Computer-Related Occupations,’ 36(4) University of Michigan Journal of Law Reform 50 (2003), at page 64).

9.    Additional aspects of an indirect restrictive arrangement, which results in workers refraining from changing employers and suffering unfair treatment and the loss of basic rights, may also be found in the following two measures. The first of these is where workers are required to sign promissory notes for large amounts or for unstated amounts, which allows the employer to sue the workers for large amounts of money at will and for any reason that he chooses. According to the petitioners, Yilmazlar’s workers were required to sign such promissory notes. The second is where there are ‘blacklists’ by means of which employers work together to blacklist workers who have the temerity to complain about their conditions of employment. Being blacklisted has serious consequences, since not only does the complaint result in many cases in an immediate termination of the work and deportation, but in the future also, even if those workers have a right in principle to ask for another work permit, they will have difficulty in finding someone who will be willing to employ them.

The restrictive arrangement and the alleged consent

10. Only a consideration of the complexity of the issue of restrictive arrangements, with the multitude of situations that it manifests, allows us to understand the real difficulty faced by migrant workers, for whom the restriction to one employer — whether overt or concealed, whether official or de facto, whether clearly the result of coercion or apparently the result of the worker’s free choice — is a main source of the violation of their rights. It is clear to everyone that were migrant workers not prepared to suffer the restrictive arrangement, because they have no choice, the restrictive arrangement would never have come into existence. Were the workers to make their arrival in the host country conditional upon their ability to change employers, were they to apply on a constant basis to the courts and to enforcement agencies in government ministries for help and receive a positive response, and were they to refrain from working under the restrictive arrangement system, then it is doubtful whether it would survive for long. Similarly, were they to refuse poor employment conditions, the employers would be compelled to improve them.

Does this lead us to the conclusion that the responsibility for the restrictive arrangement should be imputed to those who suffer from it? Do migrant workers bring upon themselves the wrongs that they suffer, by continuing to look for employment despite what they know of it? Should they complain to no one other than themselves for choosing to look for work abroad? This is exactly how we should understand the argument of the respondents before us. This can also be seen from an approach that, regrettably, has obtained some credibility in the public debate concerning migrant work in Israel. It was written in one research paper that the treatment of migrant workers ‘is based today on a contractual-commercial approach, according to which the consent of the migrant workers to accept the “rules of the game” makes the rules legitimate’ (Ofer Sitbon, ‘The Role of Courts in Israel and France in Designing the Policy towards Migrant Workers,’ 10 Mishpat uMimshal (Law and Government) 273 (2006), at page 278). This was well described by Professor Guy Mundlak:

‘One of the arguments raised in the public debate is that the discussion of the rights of the foreign worker is not important, since the state does not have a duty to take in foreign workers… The foreigner can decide if he wishes to accept the status that Israel offers and to work accordingly, or he can choose a competing status offered by another country or stay in his own country. [According to this argument], the willingness of a foreigner to enter a country with the status offered in itself indicates his consent to the conditions accompanying it that are presented before him. When this consent is given, it constitutes the moral basis for the whole set of rights that the state offers… If the number of foreigners who are interested in adopting this status, with its accompanying conditions, fills the quota, it means that these conditions are fair. The mere consent of the foreigners to accept them is the stamp of approval for their fairness’ (Guy Mundlak, ‘Workers or Foreigners in Israel? “The Basic Contract” and the Democratic Deficit,’ 27 Tel-Aviv University Law Review (Iyyunei Mishpat) 423 (2003), at page 428).

11. According to the respondents, the violation of rights inherent in the restrictive arrangement of the Yilmazlar workers is not a violation, since it can be remedied at any time by means of a simple act — the return of the worker to his country of origin. If he does not choose to do this, on the basis of a profit and loss reckoning that finally leads him to the conclusion that working in Israel is worthwhile, what right does he have to complain about a work system that he chooses to join? A similar approach is also implied in the position of my colleague, the Vice-President, when he says: ‘… an employee of the Yilmazlar company who is not satisfied with his conditions of employment may terminate his work relationship with the company [and] return to his country of origin…’ (paragraph 13 of his opinion, supra). Moreover, according to my colleague’s approach, the employee has the right to apply once again, when he returns to Turkey, for a work permit in Israel, as if there were no ‘closed skies’ policyand  as if the number of positions were not limited, and as if the workers could be confident or certain that they would not be prejudiced because they left in the first place.

In my opinion, this position cannot be tolerated, mainly for reasons of principle. It is inconsistent with the basic principles of our legal system. I am referring primarily to a fundamental principle in the law, which is a principle of public policy. It was my colleague, the Vice-President, who regarded this principle as ‘one of the legal tools that were designed to protect the fundamental core values of the legal system and to steer the operation of the rules of law in a direction that is consistent with those basic values’ (CA 11152/04 Pardo v. Migdal Ltd [6]). Indeed, the whole of public policy is based on the recognition of the superiority of social values, which are even capable of prevailing over a contractual consent that was made freely and willingly. It allows the court to invalidate a contract whose content is immoral (section 30 of the Contracts (General Part) Law, 5733-1973); it denies the right of a person to form a company whose purpose is not a proper purpose (section 2 of the Companies Law, 5759-1999); a mediator may terminate a mediation proceeding where he is of the opinion that the settlement reached by the parties is an improper one (regulation 4A of the Courts (Mediation) Regulations, 5753-1993), and so on.

12. Thus we see that the outlook that regards consent as the whole of the matter is an idea that is foreign to our legal system. A clear example of this was provided in the past by the rulings that addressed the serious issue of trafficking in human beings, which despite the clear differences has more than one point of similarity with the issue that we are currently considering. In several cases that came before it, this Court emphasized the limited value of the argument of consent in that context. In CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 46, Justice D. Beinisch emphasized that the consent of the victim of the trafficking to what is done to him is of no relevance. In CrimA 7757/04 Borstein v. State of Israel [8], at p. 233, Vice-President Cheshin also held that ‘there is no significance to the issue of the consent or lack of consent of a person to work in prostitution; consent does not reduce the severity of the offence nor can it serve as a defence for the trafficker.’ Within the narrow limits of the case before us, we are not dealing with criminal liability. But the criminal prohibition is one of several tools for expressing our unwillingness to tolerate moral wrongs, which harm the ethical basis on which our society is founded. Where someone wishes to put forward the argument of consent in order to indicate prima facie acquiescence in a situation that is regarded as ethically wrong, we have the power — or perhaps I should say that we are required by the law — not to satisfy ourselves with that argument but to investigate further the moral basis underlying the matter, and where necessary to set matters right.

This is the position in the law in general, and it is also the position in labour law, which for some time has not regarded a contract as the final word with regard to the relationship between a worker and his employer. An approach that consent is sufficient to make a contract for providing a service valid, whatever its contents, is inconsistent with our understanding of the labour laws and their purpose — to encompass, within the well-established limits of decency and morality, interactions between an employer and an employee. It is also clearly contrary to the rationale underlying protective legislation, and regrettably we so often find ourselves acquiescing in the blatant breach of such legislation (see Gill and Dahan, supra, at p. 363). A ‘foreign worker,’ before he is a foreigner, is a worker. The spirit of labour law, which extends its protection to him, does not allow us to regard his relationship with his employer, as well as with the state, merely from the narrow viewpoint of informed consent.

Basic values of law, as well as basic principles of morality, cannot be excluded from the normative framework that applies to migrant workers. Mundlak answers the questions that we cited above so correctly that it is fitting that I should cite his remarks:

‘Even if we accept the premise that the arrival of the foreigner to work in Israel is based on consent, there are limits to the extent of the consent that can be attributed to the contract that was agreed by the foreigner when he came to work in Israel. First, there are universal rights that do not depend upon prior association with the national community; contracting out of these in an agreement with a foreign worker has no effect… The mere presence of foreign workers in Israel cannot provide the answer to the question of the extent of the rights to which they are entitled. In essence, the argument of consent grants a legitimacy that does not depend on content but merely on procedure (a kind of offer and acceptance). But offer and acceptance are not the proper procedure… There is a basis for making the prima facie consent in the basic contract subordinate to norms of public policy, including the protection of human rights and democratic norms’ (Mundlak, supra, at pages 430, 432, 480).

Although we have spoken above of ‘market value,’ we should always remember that this is a starting point, but not the end of the matter, and to this important element we ought to add other factors that are also capable of protecting workers — whether foreign or local — when their market value is limited.

13. The position adopted by my colleague also does not sufficiently take into account factors that are inherent to migrant workers. The first and foremost of these is the question of motivation. The foreign worker is almost always looking for employment opportunities outside his country of origin because of a desire to improve his economic condition. Sometimes poverty, which is clearly recognizable to western eyes, and a difficulty to support his family are what compel him to look for work abroad. The same economic distress is also what leads temporary workers to return time after time to countries in which they were exploited in the past, in the hope — usually a false one — that this time they will receive better treatment. Indeed —

‘Propelled by desperate economic circumstances in their home countries, and perhaps misplaced naive optimism, they return a second or third time with hopes of better conditions, only to experience salary reductions again’ (Human Rights Watch, Bad Dreams: Exploitation and Abuse of Migrant Workers in Saudi Arabia (2004), ch. 2).

In other cases, and it is possible that this is also the case before us, the background from which the migrant worker comes is better. But we should not treat lightly the economic constraints which the migrant worker faced and which led him to seek an alternative source of livelihood. Not infrequently the opportunity of employment in the host country is the alternative to a high level of unemployment in the country of origin, which reduces a person’s chances of finding work in his homeland. The wages paid in the host country, which are often considerably higher than those in the country of origin, are also a major factor in encouraging migration for the sake of work. The economic enticement is great, and its effects are considerable. It is not difficult to imagine what motivates a person who earns a relatively low wage in his country of origin, sometimes merely a few dollars a day, to uproot himself from his home and his family and look abroad to the promise of wages that are hundreds of times higher. This promise, whether it is realized or not, is very powerful and has great effect. Frequently, it overrides concerns of difficulties, and even specific knowledge concerning the danger of exploitation and the loss of rights. This too was considered by the American report, which asked:

‘This raises the question: Why do workers choose to come to the United States under these terms? The simple fact is that workers from Mexico, Guatemala and many other countries often have very few economic opportunities… Where jobs exist [in those countries], the pay is extremely low; unskilled laborers can earn 10 times as much, or more, in the United States as they can at home. So even though they risk being cheated, many workers are willing to take that chance. Most perceive the guestworker program as their best chance to provide a better life for their families. These desperate workers are easily deceived’ (Southern Poverty Law Center report, supra, at p. 12).

14. Turkey is a developed country in comparison with many of the countries from which workers come to find employment in Israel. The Turkish economy has undergone considerable changes in recent years, and the economy of that country is experiencing growth and making efforts to increase employment opportunities. Notwithstanding, the report of the World Bank, which was written in 2006, indicates that the increase in jobs available there still lags considerably behind the natural growth of the population. Whereas the number of residents of working age has increased considerably — between 1980 and 2004 approximately 23 million potential employees entered the market — only six million additional jobs have been created (World Bank, Turkey Labour Market Study, report no. 33254-TR 12 (April 2006)). For this reason, the World Bank states that the employment rate in Turkey is one of the lowest in the world (ibid.). The report goes on to reveal that as a result of economic crises that Turkey underwent in 1994 and 2001, there was a significant reduction in the amount of the average wage paid in Turkey, and only recently has there been some degree of improvement in this index (ibid., at p. 21). To illustrate this, in 2004 — the year in which the arrangement that is the subject of the petition before us began to be implemented — the average monthly salary of a worker in Turkey was the equivalent of approximately 3,600 NIS. In Israel the amount of the average wage at that time was double — approximately 7,000 sheqels.( http://www.databasece.com/international.htm)

Moreover, precisely because of extensive protective legislation that is included in the Turkish code of laws and that makes the dismissal of a worker there very expensive for his employer, not only is the incentive for Turkish employers to take upon themselves the risk of creating new jobs small, but there is a flourishing market of informal workers who do not benefit at all from the protection of the labour laws (World Bank report, supra, at pp. iii, 21). The vast majority of formal workers do not benefit from proper protection because they are not parties to collective arrangements that are the result of collective bargaining (ibid., at p. 26). Turkey has, of course, a long tradition as an ‘exporter’ of migrants to foreign countries, and the migration consciousness in Turkey, including for the purposes of work, is well developed. According to official figures of the Turkish Ministry of Labour, in June 2005 more than three and a half million persons with Turkish nationality lived in countries around the world (approximately five per cent of the country’s population at that time), and of these almost a million and a half persons worked in the foreign workers market.

15. From reading all this it becomes very clear what motivates the persons who are employed as workers by Yilmazlar to look for a livelihood outside their country of origin, notwithstanding the difficulties that may accompany their work in Israel, including the absence of any possibility of choosing their employer here. Even more important is the understanding that it is not their informed choice — their preferred choice between several good options — that is the basis for their agreeing to the restrictive aspect of the agreement. Difficulty and distress are the essence of the matter. Their fear of a harsh economic fate, their natural desire to improve the living conditions of their families, their ambition to take advantage of an opportunity that the global village of the beginning of the twenty-first century has opened up to them — these are the motives of these workers to agree to a well-institutionalized denial of their rights. Can anyone fault them for this?

The argument concerning enforcement

16. It may be argued, and this reasoning is also used by my colleague the Vice-President in his opinion, that the concern with regard to the evil consequences of restricting the workers is allayed by the protection given to them in labour law, and especially the declared policy of the Israeli and Turkish governments that the employment of the workers shall be subject to ‘institutional supervision and strict review,’ in the words of my colleague. First I will say that I question how strict the supervision measures adopted can really be, and of this I will say more below. But before this I will emphasize that experience in most countries around the world, as well as in Israel, proves that in the main the enforcement authorities cannot provide a solution to the concern that we have described.

Not infrequently there is an inherent conflict of interests, even if it is an unspoken one, between the system of laws that is the basis for the policy whose main purpose is to provide a cheap and effective work force for various industries in the economy and the part of the legal system that concerns workers’ rights.

‘If supplying this labor force is a primary goal of immigration policy, then legal protections for guest workers cannot be guaranteed, since they contradict its essential purpose’ (David Bacon, Be Our Guests, The Nation (September 27th, 2004)).

Second, the protection of the rights of foreigners, who are found on the margin of society, is usually a low-level priority for governments, and only limited resources are devoted to it. As a direct result, in many countries that host foreign workers the enforcement system has difficulty in preventing a violation of their rights. It should be emphasized that I am not referring to rights of a vague or external nature that rely on the overburdened foundations of universal morality or general principles, which may well not be given any expression in the law of the host country. Even those principles that are expressly enshrined in the laws of the state and whose solid foundations are unchallenged, both in their application to local employees and also to temporary guests in the work force, are not sufficiently enforced. Often, even if on paper these rules are quite well-developed, when put to the test they are an empty shell and have no real effect (Sitbon, supra, at page 278). This is the case throughout the world, including in the United States (Southern Poverty Law Center report, supra, at pages 1, 7), in East Asia (Rosewarne, supra, at page 22), in Africa (Nasseem Ackbarally, Foreign workers in Mauritius face torrid time, Mail & Guardian Online (28 November 2006)), and in the countries of the United Arab Emirates (Human Rights Watch report regarding UAE, supra, at pages 9, 13, 48).

Even the countries of origin of migrant workers do not always have the same interests as their citizens abroad. Even if in some cases an effort is made to further the rights of the workers, usually in agreements with host countries, this effort is often confronted by, and sometime in direct conflict with, the interest of the country of origin to develop its economy by means of income from a foreign source and the import of knowledge and work methods. When this interest prevails, the first to be harmed are the workers (S. Rosewarne, Globalisation and the Valorisation of Migrant Labour: Recasting the Migration-Development Nexus (Paper presented to the Regional Conference on Institutions, Globalisation and their Impacts on Labour Markets in Pacific Island Countries, October, 2006), at page 4).

17. The case of the Yilmazlar workers, which according to the state’s argument before us — an argument that my colleague the Vice-President sees fit to accept — also benefits from the protection of representatives of the Turkish authorities, is very similar to the case of temporary workers in Canada, who are employed in the agricultural industries and are bound to a single employer during all the months when they are in that country (Sharma (2001), supra, at page 423). The unique aspect of work migration to Canada is that almost all of it is based on bilateral agreements, in which the federal government is one party and the authorities of the country of origin the other. These agreements contain mechanisms that allow the two countries to supervise the enforcement of proper conditions of employment. If a foreign worker has any complaint with regard to any aspect of his work, he may bring it before the representatives of his country, and they, in turn, are supposed to raise the matter with the Canadian authorities. In practice, those representatives of the countries of origin are faced with a conflict: on the one hand, they owe a duty of faith to the worker, but on the other hand, they have a similar duty to the interests of their country, including to its good diplomatic relations with Canada. It is not surprising to discover that in this competition of interests, the workers find themselves at a disadvantage. They are employed in very harsh conditions and with small salaries, and there is no real address for their complaints. Because they fear being deported, they are compelled to suffer conditions that would be unacceptable to local workers (Nandita Sharma, Mexican Standoff – Canadian ‘Guest Workers,’ The Globe and Mail (March 29th, 2006)). The Supreme Court of Canada discussed this in a judgment in 2001, in which it set aside a provision of legislation that forbade foreign workers to form unions (Dunmore v. Ontario (Attorney General) [19], at paragraphs 41, 102). This harmful reality is also described in an article that was published last year and reviewed the Canadian experience, which is so bad that some have called it ‘Canada’s shameful little secret.’ The article states:

‘…the consular liaison officers [of the sending nation] appointed to look out for the workers suffer from a conflict of interest: maintaining good relations with Canada and the smooth operation of the scheme versus taking up the fight on behalf of individual workers.

 As one former contract worker from Mexico puts it, a complaint to a consular official “enters in one ear and goes out the other.” It is simpler for consular officials to replace workers who raise concerns in the workplace than to address the root cause of their complaints’ (Peter Mares, Workers for all seasons, The Diplomat (July-August, 2006). See also World Bank, Pacific Islands At Home & Away — Expanding Job Opportunities for Pacific Islanders Through Labor Mobility, Report No. 37715-EAP 117 (September, 2006)).

Moreover, contacting the enforcement authorities, which is often the most effective way in which workers who have been harmed can bring their case to the attention of the authorities, is not practicable in view of the concern, which is a common occurrence in the experience of migrant workers, that it will lead to the loss of their livelihood. Another report of Human Rights Watch, which deals with the American labour market, found that migrant workers in that country are generally reluctant to sue for legal remedies to which they are entitled under the law, in case it leads to their being blacklisted for work. In the words of the report:

‘… found widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in [labor organizations]’ (Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States under International Human Rights Standards (2002), at pages 42, 202, 206).

18. To all of this we should add the recognition that despite the well-developed labour law in the country of origin of Yilmazlar’s workers, the legal protection actually afforded to workers in Turkey leaves much to be desired. This was discovered by the World Bank, which said: ‘Compliance with labor law is weak in Turkey. Many workers are not receiving the protection that is the intent of the laws’ (World Bank report, supra, at page xi). In view of the aforesaid, one can only look sceptically upon the promise that the authorities will carry out enforcement measures, both in Israel and in Turkey. In the absence of any real course of action in the legal sphere, there is additional support for the conclusion that a worker who refuses to acquiesce in his being bound to one employer faces a real difficulty in protecting his rights.

To complete the picture I will add that this difficulty is aggravated by an additional element that is integral to work migration, and this is the limited ability of foreign workers to form unions and to achieve collective protection. In many places the local workers’ organizations are not prepared to admit foreigners into their ranks, and there are places where the law prevents this and even forbids the creation of alternative frameworks. It is also natural that temporary workers, who come from different countries, speak different languages and sometimes have conflicting interests (for example, because of the competition over a limited number of positions or a desire to improve their work conditions at the expense of other workers), have difficulty in forming unions. To all of this we should add the well-known difficulty, which is inherent in work migration, of being removed from a familiar environment, the normative system to which the workers are accustomed and the family unit, which is capable of weakening them and preventing them from becoming organized in an effective manner.

Theoretical harm and actual harm

19. What is the concrete expression of all this in the case of the Yilmazlar workers? The parties disagree on this question. On the one hand, workers of the company have testified, in affidavits that were attached to the petition before us, with regard to difficult conditions in which they were employed, harsh treatment that they received, being required to sign contracts whose content — which is sometime draconic — was unclear to them, prolonged delays in receiving wages, the confiscation of passports, the payment of wages that are lower than the minimum wage in force in Israel, non-compliance with the provisions of the Hours of Work and Rest Law, 5711-1951, and an absolute dependence on their employer, which prevents any possibility of improving the situation. On the other hand, Yilmazlar remains insistent that everything stated in those affidavits is false and unfounded. As proof, the company presented affidavits from other workers, in far greater numbers, that testify to fair employment conditions and the payment of wages on time. Unfortunately, these affidavits are all drafted in identical language, as if they were all dictated word for word. All that I can hope is that it is merely a false concern that someone wished to have workers sign a declaration that does not reflect their true position. In any case, these affidavits do not address at all the amount of the wages paid to the workers, the content of the work contract, the claim that workers were compelled to sign blank promissory notes, the question of the workers’ dependence on the company including the claim that passports were confiscated, the proper housing conditions that are provided and the question of vacations and rest days.

In practice, checks that were conducted by the Ministry of Employment on the work sites where Yilmazlar operates, on 8 November 2005 and 23 November 2005, found nothing detrimental to the company. This was also the case when a visit was made by representatives of the Undersecretariat for Defence Industries (SSM) at the Turkish Ministry of Defence. On the other hand, in a legal proceeding that took place not long ago against Yilmazlar in the Ramla Magistrates Court, a case was considered in which dozens of its workers were housed with considerable overcrowding in a residential house in a village in the centre of the country. At the request of the village, the Magistrates Court ordered the company to remedy the matter immediately (CC 2992/05 (Ram) Yagel v. Nomdar [18]). In its decision to deny an application for leave to appeal filed by Yilmazlar, the Tel-Aviv District Court (the honourable Judge S. Dotan) held that: ‘If we are dealing with the rights of the workers, there is no greater violation of their rights than housing them with inhuman overcrowding as described above’ (LCA (TA) 2782/05 Yilmazlar International v. Yagel [17]). The same conclusion was reached by this Court, which approved the decision and added (per the honourable Justice E. Arbel): ‘I agree with the remarks of the District Court with regard to the serious conditions in which the workers were placed — a hundred people in one overcrowded house’ (LCA 267/06 Yilmazlar International v. Yagel [9]).

20. Even though the facts are not entirely clear, it is sufficient that there is a real concern, which arises in this case, that the rights of the Yilmazlar workers are likely to be violated in various respects. In any case, this Court is not the appropriate framework for clarifying questions of fact (HCJ 4999/03 Movement for Quality Government in Israel v. Prime Minister [10], in the second paragraph of the opinion of President A. Barak). The focus of the matter, therefore, is upon the normative situation created by the Government Decision. This has created an opportunity, which is very considerable, for the abuse of Yilmazlar’s workers, as well as other foreign workers in the future. Experience teaches us that where there is an opportunity, there will always be someone who tries to avail himself of it. I cannot acquiesce in this.

The argument concerning the imminent expiry of the arrangement

21. I should further emphasize that the respondents should not rely on the assumption that in any case the entire arrangement is soon to expire,  at the end of 2007. First, I should say that I would  not be surprised if someone decides to extend it. Second, even though the decision of the Ministerial Committee for Foreign Workers no. FW/3 of 7 June 2005 states that ‘only the government has the power to approve, in very exceptional cases, an additional arrangement for the bringing or the employment of foreign workers as a part of reciprocal purchase transactions,’ I think that I will not be mistaken in my assessment that giving legal sanction to the Government Decision in this case will result in similar decisions in the future. Indeed, the normative impropriety of the decision is the heart of the matter, and this should not be countenanced, no matter how long it is valid.

22. My colleague the Vice-President bases his position mainly on the fact that the case of the Yilmazlar workers does not involve debt bondage. This is almost the entire basis for the distinction that he wishes to make between the case before us and the ruling made in the aforementioned Kav LaOved Worker’s Hotline v. Government of Israel [1].

Indeed, the question of debt bondage is of critical importance in the context of migrant workers, and a major factor in the cruel fate — no less — that ensnares them in host countries. In brief, the meaning of this concept is that a worker who wishes to obtain a visa to work in a foreign country is often required to pay huge sums to various agencies and middlemen, who are responsible for obtaining it. To illustrate the point, the average agency fee that a foreign worker is required to pay, when he earns in Israel an average wage of 500-1,000 US dollars a month, is 10,000 dollars and even more (Binding Migrant Workers to Corporations, supra, at page 23; Freedom Inc. — Binding Migrant Workers to Manpower Corporations in Israel, supra, at pages 12, 26). Most of the workers borrow money for this purpose in their countries of origin, and they thereby become debtors who pay high rates of interest. Often they are given a promise that they can work in Israel for several years, even though their residency permit in Israel is valid only for one year and there is no certainty that it will be renewed. Even a very small delay in receiving the wages — for example because of not turning up to work because of illness or another reason, may result in a situation in which this debt increases significantly to a point where it can no longer be repaid. This harsh reality, which threatens to bring serious economic disaster upon them, is the lot of foreign workers throughout the world. It is possible that it is the main problem in work migration in modern times. There are three petitions addressing this issue that are pending in this Court (HCJ 2405/06, HCJ 1193/07, HCJ 2768/07).

It also cannot be denied that when the two evils — debt bondage and being restricted to one employer — befall a worker simultaneously, the extent of the harm to him is greatly increased. In the absence of any bargaining power, not only does the worker have difficulty in earning the true value of his work (which is usually greater than what he is paid) and repaying his debt, but he will think twice  before he dares to complain about his conditions of employment, because of the fear that he will be dismissed, which means — in the absence of an alternative possibility of employment — that he will be unable to repay the debt. Indeed, a worker who is not burdened with a debt, but is bound to one employer, is in a better position that his fellow worker who both has a debt and is also bound to one employer.

23. But all of this is not capable of combining the two — the debt and the restrictive arrangement — into one entity that cannot be separated. It should be emphasized that we are dealing here with two different factors that are independent of one another, even though each one of them may be affected by the other in its deleterious effects. A restrictive arrangement without a debt is still a restrictive arrangement, and the harm that it causes, as I have described  above, is great.

It is therefore clear that there is no basis to the state’s claim that the special position of the Yilmazlar workers, who do not leave behind them any debt to be repaid when they come to Israel, lies in the fact that the restrictive arrangement does not cause them any real harm. This harm, the essence of which is the worker’s loss of his bargaining power, does not depend — it should be emphasized once again — on the existence of a debt and does not derive from it. It is independent. Can it seriously be argued that the removal of the element of debt is sufficient to make employers willing to pay their workers wages that will reflect the true value of their work, adhere strictly to the hours of employment, stop taking passports or provide fitting housing conditions? Is the absence of a debt capable of repairing the moral flaw inherent in the restrictive arrangement mechanism? I think that the answer to these questions is self-evident.

24. Another aspect of the argument, if I have understood it fully, is that in the absence of a debt there is nothing to prevent an employee, who is not satisfied with the conditions offered to him, from leaving Israel. Once again the same error has arisen, since, as I clarified above, often the option of leaving Israel and giving up the job is a bad one, both because of the alternative in the country of origin and because of the reliance that has already taken place. If there are workers — and there are very many of these — who are prepared to work under a regime of both a debt and a restrictive arrangement, with its double evils, then a fortiori there will certainly be those  who  will be prepared to work subject to the restrictive arrangement only, while suffering the harm that it causes them. I have already discussed the weakness of the argument of consent, and I need not elaborate further.

My colleague, the Vice-President, bases his position on remarks that were written in Kav LaOved Worker’s Hotline v. Government of Israel [1]. In this matter too I think I should make matters clear. Debt bondage was mentioned there as one of the factors that made the restrictive arrangement so evil, but it is not the only one, and not necessarily the dominant one. The violation of ‘the foreign worker’s autonomy of will’ — in the words of my colleague in paragraph 10 of his opinion above — does not arise solely from the debt bondage. The following is what I wrote in Kav LaOved Worker’s Hotline v. Government of Israel [1]:

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates his human dignity and liberty in the most basic sense’ (paragraph 29 of my opinion).

These violations, regrettably, are unaffected by the absence of debt bondage.

All of the above shows that the special characteristics of the Turkish transaction cannot undermine the basis of the claim that the restrictive arrangement seriously violates the rights of the workers. I shall now consider how this violation is consistent with the public interest.

The public interest and the purpose of the administrative act

25. The contract with the Turkish Ministry of Defence is important to the respondents. It is important to the State of Israel. Their counsel emphasized the interests that it serves, in both the economic and the political spheres. First and foremost it would appear, and I am prepared to accept this as a fact, that without the offset component, the agreement would not have been made. The Israeli economy, and especially the fifth respondent, Israel Military Industries Ltd, would then have lost substantial income in foreign currency. IMI’s ability to enter into future transactions with the Turkish authorities would have been impaired. It would have to suffer the consequences of a breach of contract. The effects on workers in the security industries would have been considerable, and possibly employment in the economy as a whole would have been affected. It is possible that in the long term this would have even harmed the security of Israel. Moreover, it cannot be denied that the agreement plays a part in Israel’s relationship with Turkey, a main ally without any doubt, and it is difficult to exaggerate the importance of maintaining good relations with it. In so far as the agreement, with its various elements, can benefit the interests of that country, this too is indirectly desirable for Israel, its ally. Indeed, ‘the phenomenon of work migration is an inseparable part of international relations’ and of ‘the mutual interest of governments in developing relations’ (Kemp and Reichman, supra, at page 10).

The realization of this interest by means of implementing the Turkish transaction imposes a duty on Israel, which is not at all a light one. It is obliged to carry out its share in the offset mechanism, and for this purpose it was required to take upon itself an undertaking with a significant financial value. A particularly creative mind gave rise to the idea that it would be possible to make use of human beings in order to cover a part of this liability. As the state explained in its response to the petition (in paragraph 9 of the preliminary response), of the two hundred million dollars that Israel is required to ‘return’ to Turkey, approximately 28 million dollars are supposed to be derived from the employment of the Turkish workers (which is only approximately fourteen per cent of the total amount). The restriction of the workers to their employer makes it much easier to reach this target. It ensures that the majority of the wages will be transferred in an orderly manner to Turkey. It is particularly important in view of the fact that the Turkish Ministry of Defence has taken upon itself the task of supervising the implementation of the agreement and it refuses to hold discussions with several different employers but is prepared, and it has its reasons, to work only with Yilmazlar.

26. When  enquiring into the dominant purpose of an administrative act such as the one undertaken by the government of Israel in the case of the Yilmazlar workers, we should of course consider those aspects that indicate, in so far as possible, the essence of the act and properly reflect the reality and the context in which it arose (see and cf. HCJ 1030/99 MK Oron v. Knesset Speaker [11], at page 665; CA 10078/03 Shatil v. State of Israel [12], at paragraph 26 of my opinion)). In view of the aforesaid, it is possible to determine without any difficulty that a main purpose of the Government Decision is to create an effective mechanism of discharging a part of the offset debt, by means of ensuring that Yilmazlar has foreign manpower available at all times.

But this is not the only purpose of the restrictive arrangement mechanism. It serves another purpose. The concern of the authorities that the floodgates will be opened, after they have been erected with considerable effort in recent years and prevented Israel from being inundated by legal and illegal migrant workers, is what led them to act so that the number of Yilmazlar’s workers would be limited and watched carefully at all times, and that no use would be made of the narrow route that was provided for individual cases in order to bring hundreds and thousands of others into the Israeli economy.

These, then, are the two dominant purposes of the decision that is the subject of this petition. They seek to realize important interests, and to this end the government of Israel took the liberty of restricting the rights of the Yilmazlar company’s workers. In order to determine whether the government did this lawfully, we are required to consider the matter — just as we did in Kav LaOved Worker’s Hotline v. Government of Israel [1] — from the perspective of the formulae that we have borrowed from the limitations clauses in the Basic Laws.

Judicial scrutiny

27. The first stage in the process of scrutiny seeks to ascertain whether the purposes are proper ones. With regard to the first purpose of which I spoke above, I think that it can be determined with the utmost clarity that it is not a proper purpose. Whoever looks at the facts of the case before us cannot, in my opinion, fail to be outraged at the use that has been made of these workers as an instrument and a means of furthering the interests of the Israeli government and commercial companies. After all, of what concern to the Turkish worker are international relations? What does he care for the success of the security industries in Israel? Of what interest is it to him that tanks are improved for his country’s army? What is the source of the obligation, for which that worker is required to pay with his liberty, his dignity, his ability to earn a livelihood and his hopes for a better future for his family, in order to further these interests? What justification is there that he should be subjected to the binding force of the restrictive arrangement? (cf. HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [13], at para. 6 of my opinion). What justification is there that in addition to the consideration that he is required, in the usual manner, to provide within the framework of a free and fair contract with an employer, he should be required to pay an additional price, from which he does not benefit and with regard to whose nature and character he was never consulted?

28. This purpose is inherently inconsistent with the ethical foundations on which the State of Israel was established. The basic principles of liberal morality have taught us that a human being is always an end and not merely a means to an end. Kant wrote:

‘… der Mensch und überhaupt jedes vernünftige Wesen existiert als Zweck an sich selbst, nicht bloß als Mittel zum beliebigen Gebrauche für diesen oder jenen Willen… dagegen vernünftige Wesen... das nicht bloß als Mittel gebraucht werden darf... mithin sofern alle Willkür einschränkt (und ein Gegenstand der Achtung ist).’

‘… man and generally any rational being exists as an end in himself, not merely as a means to be used arbitrarily by this or that will…; but rational beings… are… something that should not be used merely as a means, and consequently all arbitrariness is thereby eliminated (and he is an object of respect)’ (Immanuel Kant, Groundwork of the Metaphysic of Morals).

To this I would add that, prima facie, even if a person is required to take part in achieving any purpose, it should be one in which he is directly the goal of that purpose. Any other approach is tantamount to treating a human being as an object, and in our case, as the property of the employer. Justice M. Cheshin said: ‘An inanimate object and likewise an animal may be taken by its owner from place to place, transferred from one person to another, and no one will object. But man is different; nothing should be done to him against his will’ (HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [14], at p. 575). And Justice D. Beinisch emphasized: ‘The dark ages in which a person could be regarded as the property of another person have passed’ (CrimA 11196/02 Frudenthal v. State of Israel [7], at p. 47). Particularly appropriate here are remarks written by my colleague  Vice-President Rivlin himself in New Federation of Workers v. Israel Aerospace Industries Ltd:

‘… We should not also include within the scope [of the employer’s property rights] the power to hold onto the worker, even if only as a premise. I said as a premise, because no one disputes that the worker always has the power to leave his new employer, just as he had the power to leave his previous employer. But a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative. There can only be one premise, the former one, if we agree that the employer’s property rights will never also include control of the worker’s liberty… The liberty of the worker to choose his employer is derived from the right to liberty, which is enshrined in the Basic Law: Human Dignity and Liberty, and from the value of human dignity, which is the foundation of the aforesaid Basic Law… This liberty of the worker is derived directly from the outlook that the human being is an end and not a means’ (ibid., at page 595).

These remarks were admittedly written with regard to Israeli workers, but I do not know what moral basis there is for distinguishing between them and their foreign counterparts. The principle is simply that the idea that Yilmazlar’s workers can be used as a tool for performing the obligation in a commercial transaction between third parties is immoral and cannot stand. The restrictive arrangement mechanism, which turns the migrant worker into an object, cannot be accepted in a normative environment that seeks to emphasize — in the course of implementing the processes of globalization and openness — the value of the human being, every human being, as a subject rather than an object (Stuart Rosewarne, ‘Globalization and the Recovery of the Migrant as Subject: “Transnationalism from Below”,’ 15(3) Capitalism, Nature, Socialism 37 (2004); Ivan G. Alvarado & Hilda Sánchez, ‘Migration in Latin America and the Caribbean: A view from the ICFTU/ORIT,’ 129 Labour Education 101 (2002), at page 104). Such an environment, which raises the banner of the autonomy of the human will and the dignity of the human being, cannot stand idly by when it sees, in the words of the poet Yehuda Amihai: ‘How people who went out whole are returned in the evening to their homes like pocket change’ (Yehuda Amihai, ‘Out of three or four in a room,’ Poems 1948-1962 (2002), at page 97).

29. I might have ended here, since the impropriety of the dominant purpose of an administrative act is sufficient in order to annul the act itself . But since a similar conclusion — that the act should be set aside — also arises from a consideration of the second purpose of which I spoke, I should also add the following: admittedly, preventing a possibility that the employment market in Israel will be flooded with  migrnat workers is likely, as a rule, to be regarded as a proper purpose, and therefore it will pass the first part of the test of judicial scrutiny. But my opinion is that the measures that were adopted to realize this purpose do not satisfy the second part of the test of judicial scrutiny, by which I mean the principle of proportionality.

30. I have difficulty in imagining what motive may induce a  migrant worker who enjoys fair conditions of employment that are compatible with his market value to stop working for his employer. If the picture is so rosy, and reflects — in the words of counsel for Yilmazlar — the ‘huge advantage given to the Turkish workers in the offset agreement’ without which ‘they would not be able to come and work in Israel at all’ (pages 708 of the statement of reply), why is there any need for a restrictive arrangement? One is compelled to wonder why this ‘huge advantage’ is not capable of ensuring loyalty to the employer. Is it perhaps because the main advantage is actually enjoyed by the Yilmazlar company, which, because of the power of control given to it by the restrictive arrangement mechanism, must be an object of envy to other employers?

It is precisely the restrictive arrangement that threatens to deprive the worker of fair conditions that is likely — and this is the heart of this case — to provide an incentive for workers to leave their employers, and to result in an increase in the market of unlicensed workers and the breakdown of control over what happens in this sphere. As I said in Kav LaOved Worker’s Hotline v. Government of Israel [1], figures that were compiled by the Ministry of Industry, Trade and Employment indicate that there is such a connection between a restrictive arrangement and illegal work, since the latter is ‘a rational act necessitated by reality’ in the efforts of the  migrant worker to improve his conditions (Yoram Ida, Factors Influencing Foreign Workers to Revert to Illegal Employment (Research Department of the Ministry of Industry, Trade and Employment, 2004), at page 57). That research found that the phenomenon of foreign workers in Israel resorting to illegal employment was not usually the result of a worker receiving a better financial offer, nor of the expiry of his residency permit. It was mainly the result of the worker’s desire to extricate himself from the difficulties that he experienced in consequence of unfair employment conditions enforced by the employer (ibid., at pages 64, 74; see also Malsiri Dias & Ramani Jayasundere, ‘Sri Lanka: Good Practices to Prevent Women Migrant Workers From Going Into Exploitative Forms of Labour,’ 9 GENPROM Working Paper 26 (ILO, Geneva, 2000)). From this we can see the lack of a rational connection between the purpose and the means adopted to achieve it, since the restrictive arrangement not only does not reduce the illegal employment market but it is one of the factors creating it. An additional conclusion is that the restrictive arrangement is a more harmful measure than other measures that could be adopted in order to realize the purpose under discussion, especially the measure of ensuring that workers are given their rights.

31. The proportionality test in the ‘narrow’ sense is also not satisfied, since in my opinion, as I explained above, the impropriety in the restrictive arrangement is greater than the benefit that it provides. In this respect I should add the following: it is hard to dispute the contribution of work migration to economic success in the host country and to ensuring the existence of industries in which it would otherwise be difficult to recruit workers, by which I am referring especially to the construction and agriculture industries. This can be shown clearly by Germany after  World War II, the markets of the United States and Canada today and what is happening in additional countries (see, for example, Michael J. Piore, ‘Illegal Immigration to the U.S.: Some Observations and Policy Suggestions’, in Illegal Aliens: An Assessment of the Issues 26 (1976). But the foreign work market does not only make a positive contribution. The public interest is not monolithic, and some aspects of it may be harmed — even from a narrow economic viewpoint of the interests of the economy — as a result of acquiescing in a reality where  migrant workers are deprived of their rights. Thus, inter alia, there is a concern that unemployment may be increased among local workers and the level of their salaries may be adversely affected by being ‘dragged’ down by a whole sector of  migrant workers whose salary is inconsistent with what is required by law. The willingness to ignore the value of having fair employment relations in the economy is a two-edged sword, which will ultimately harm local workers. Cheap labour also removes the incentive to develop new technologies and hi-tech industries, and it leads instead to an excessive focus on manual labour industries that impede the development of the economy. There are other negative aspects as well (see and cf. O. Yadlin, ‘Foreign Work in Israel,’ Menachem Goldberg Book 337 (2001), at page 342). All of these, which are strengthened when the restrictive employment mechanism operates, should not be ignored. We should also consider the possible risk of harm to the international standing of the State of Israel as well as its image in the eyes of the exploited community of workers, who ultimately return to their country of origin and share their impressions with others.

On membership of the community of civilized nations

32. In this last context, I would add another significant aspect that may have remained, unjustifiably, in the background of the discussion of the technical aspects of the restrictive arrangement. I am referring to the responsibility that the State of Israel is obliged to take upon itself as a member of the community of civilized nations and on the basis of its commitment to universal values of justice and morality (CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [15], at p. 206). In my opinion, these do not allow the continued implementation of the restrictive arrangement. Even if the  migrant worker does not have an inherent right to work in Israel, the state has a duty not to harm him once he comes within its borders, especially after the state has itself invited him to do so. The spirit of the twenty-first century, a spirit of openness and transnational cooperation, cannot allow this. A strange and questionable combination of globalization on the one hand, and adherence to old laws of serfdom and bondage on the other, is unacceptable. Indeed, in the first part of my remarks I gave many disturbing examples of the harm that restrictive employment arrangements inflict on foreign workers all around the globe, including in progressive and enlightened western democracies. I do not think that the conclusion that follows from this is that we should regard restrictive arrangements as a necessary evil or — worse still — as a desirable and acceptable phenomenon. We can learn from the bad experience of others, and we should not hasten to adopt into our legal system anything other than what should be adopted. In the words of Justice A. Witkon: ‘It is possible that in one question or another the [Israeli] public will have an outlook of its own that is different from the outlook of other peoples, and it need not be said that in such a case we will be guided solely by the outlook of our public’ (CA 337/62 Riezenfeld v. Jacobson [16], at page 1026 {113}). The rights of the weak are naturally not the subject of great popularity and enthusiasm, but they are rooted in a solid and well-founded ethical outlook. This is the direction in which our social conscience leads us, and we can only hope that its light will also shine on others.

With regard to work migration in Europe in the 1970s, the Swiss novelist and playwright coined a phrase that many  quote. ‘Wir riefen Arbeitskräfte, und es kamen Menschen’ (‘We called for workers, and human beings came’). Indeed, the Yilmazlar workers, before they are workers, are human beings. We should recognize this. This should be reflected in our legal arrangements. This is how we should treat the migrant worker who enters into our gates.

 

 

Justice E. Hayut

My colleague Justice E. Levy has once again set out in his comprehensive opinion the basic principles that this Court addressed not long ago in HCJ 4542/02 Kav LaOved Worker’s Hotline v. Government of Israel [1]. By virtue of these principles, the decision in Kav LaOved Worker’s Hotline v. Government of Israel [1] set aside a procedure that was practised in the agriculture, nursing and manufacturing industries, according to which the residency and work licence of foreign workers was conditional upon being bound to a specific employer. With regard to this procedure, my colleague Justice E. Levy said in that case (in para. 29 of his opinion):

‘The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates the individual’s human dignity and liberty in the most basic sense.’

These pertinent remarks were adopted by President A. Barak and by Vice-President Emeritus M. Cheshin who added some remarks of his own in that case, and as a result the arrangements that bound foreign workers to their employers were set aside. It seems that there is not, nor can there be any dispute between my colleagues with regard to the basic principles underlying the ruling made in Kav LaOved Worker’s Hotline v. Government of Israel [1], but my colleagues are in disagreement with regard to the implementation of this ruling in the special circumstances of the case before us. In this dispute, I agree with the opinion of my colleague Vice-President E. Rivlin, and like him I too am of the opinion that the offset arrangement is an exceptional arrangement with special characteristics that justifies the exclusion of the Government Decision under consideration in this petition from the rule that invalidates restrictive arrangements. Notwithstanding, I would like to emphasize that in my opinion it is possible to allow this arrangement as an exception inter alia because it is limited in time. But if the concern that my colleague Justice E. Levy raises is realized, and the denial of the current petition ‘will result in similar decisions in the future,’ then it will be necessary to re-examine the legality of those decisions and it is not improbable that a different conclusion will be required in those cases. I would also like to emphasize that in view of the restriction imposed on the Yilmazlar workers when they are in Israel that prevents them from changing over to another employer, there is in my opinion an extra and special duty to protect the rights of these workers, and it is to be expected that the respondents will take care to do this and will continue to carry out regular and strict supervision of their conditions of employment.

 

Petition denied, by majority opinion (Vice-President Rivlin and Justice Hayut), Justice Levy dissenting.

7 Tishrei 5768.

19 September 2007.

 

 

 

HCJ 5016/96

HCJ 5025/96

HCJ 5090/96

HCJ 5434/96

HCJ 5016/96

HCJ 5025/96

 

Lior Horev
Member of Knesset Ophir Pines
Member of Knesset Yosef Sarid
Arnon Yakutiali
Aliza Avinezer
Yehuda Gabay
Meretz-Democratic Israel Faction    
The Association for the Rights of the Religious Community in Israel

v.

The Minister of Transportation

 

The Supreme Court of Israel sitting as the High Court of Justice

[April 13,1997]

Before President A. Barak, Deputy President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Ts. A. Tal, D. Dorner

 

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

 

Facts: The Minister of Transportation, assuming the powers of the Traffic Controller, ordered the closure of Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Petitioners are secular residents of the area and representatives of the secular population in Jerusalem, who claim that the decision of the Minister infringes their right to freedom of movement. One petitioner—the Association for the Rights of the Religious Community in Israel—counter-petitioned that Bar-Ilan should be closed to motor traffic for all hours on the Sabbath and Jewish holidays.

 

Held: The Court held that the Traffic Controller was to weigh the freedom of movement of those who chose to use Bar-Ilan Street against the possible injury of such traffic to the religious sensibilities and lifestyle of the local residents. The Court noted that the latter consideration was a valid one in a democratic society. The Court held that the Minister of Transportation, in his capacity as the Traffic Controller, did not adequately consider the interests of the local secular residents of Bar-Ilan Street. As such, the Court struck down the Traffic Controller's decision. Several dissenting Justices contended that the Minister had no authority at all the close Bar-Ilan Street to traffic.

 

Israeli Supreme Court Cases Cited

HCJ 174/62 The League for the Prevention of Religious Coercion v. Jerusalem City Council, IsrSC 16 2665.
HCJ 531/77 Baruch v. The Traffic Comptroller, IsrSC 32(2) 160.
HCJ 390/79 Dawikat v. The Government of Israel, IsrSC 34(1) 1.
HCJ 935/87 Poraz v. Mayor of Tel-Aviv/Jaffa, IsrSC 42(2) 309.
HCJ 98/54 Lazarovitch v. Food Products Comptroller (Jerusalem), IsrSC 10 40.
HCJ 3872/93 Meatrael v. The Prime Minister, IsrSC 47(5) 485.
HCJ 217/80 Segal v. Minister of the Interior, IsrSC 34(4) 429.
HCJ 351/72 Keinan v. The Film and Play Review Board, IsrSC 26(2) 811.
HCJ 806/88 Universal City Studios Inc. v. The Film and Play Review Board, IsrSC 43(2) 22.
HCJ 230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kolek, IsrSC 28(2) 113. 
HCJ 7128/96 The Temple Mount Faithful v. The Government of Israel, IsrSC 51(2) 509.
Crim. App. 217/68 Izramax. v. The State of Israel, IsrSC 22(2) 343.
HCJ 612/81 Shabbo v. Minister of Finance, IsrSC 36(4) 296.
F. Crim. A2316/95 Ganimat v. The State of Israel, IsrSC 49(4) 589.
CA 506/88 Yael Shefer v. The State of Israel, IsrSC 48(1) 87.
HCJ 935/89 Ganor v. Attorney-General, IsrSC 44(2) 485.
IA 1/65 Yardor v. Chairman of the Central Election Committee, IsrSC 19(3) 365.
IA 2/84 Neiman v. Chairman of the Central Election Committee, IsrSC 39(2) 225.
CA 294/91 Jerusalem Burial Society  v. Kestenbaum, IsrSC 46(2) 464.
CA 105/92 Re’em Engineers and Contractors Ltd. v. Municipality of Upper Nazareth, IsrSC 47(5) 189.
HCJ 73/53 Kol Ha’Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.
HCJ 153/83 Levy v. Southern District Commander of the Israel Police, 38(2)  393.
HCJ 448/85 Dahar v. Minister of the Interior, IsrSC 40(2) 701.
HCJ 148/79 Saar, v. Minister of the Interior and of Police, IsrSC 34(2) 169.
HCJ 399/85 Kahane v. The Broadcasting Authority, IsrSC 41(3) 255.
HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.
HCJ 2481/93 Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.
CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Agricultural Cooperative, IsrSC 49(4) 221.
FH 9/77 Israel Electric Company. v. “Ha’aretz” Newspaper Publications, IsrSC 32(3) 337.
HCJ 389/80 Dapei Zahav  v. The Broadcasting Authority, IsrSC 35(1) 421.
HCJ 376/81 Lugassy v. Minister of Communications, IsrSC 36(2) 449.
HCJ 341/81 Moshav Beit-Oved Ltd. v. Traffic Comptroller, IsrSC 36(3) 349.
HCJ 910/86 Ressler v. Minister of Defense, IsrSC 42(2) 441.
HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683.
HCJ 14/86 Laor v. The Film and Play Review Board, IsrSC 41(1) 421.
HCJ 6163/92 Eizenberg v. Mistster of Construction and Housing, IsrSC 47(2) 229.
HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49(4) 94.
HCJ 693/91 Efrat v. Population Registrar, IsrSC 47(1) 749.
HCJ 257/89 Hoffman v. Appointee over the Western Wall, IsrSC 48(2) 265.
HCJ 549/75 Noah Film Company v. The Film and Play Review Board, IsrSC 30(1) 757.
HCJ 606/93 Kiddum Yezmot (1981) v. The Broadcasting Authority, IsrSC 48(2) 1.
HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7 534.
Crim. A 255/68 The State of Israel v. Ben-Moshe, IsrSC 22(2) 427.
HCJ 243/81 Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421.
Crim. A 126/62 Disentzik v. The Attorney General, IsrSC 17 169.
HCJ 680/88 Schnitzer v. Chief Military Censor, IsrSC 42(2) 617.
HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38(2) 449.
HCJ 2725/93 Salomon v. Jerusalem District Commander, Israel Police, IsrSC 49(5) 366.
HCJ 5510/92 Turgeman v. Minister of Defense, IsrSC 48(1) 217.
HCJ 987/94 Euronet Kavei Zahav (1992) Ltd. v. Minister of Communications, IsrSC 48(5) 412.
HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport, IsrSC 49(5) 1.
HCJ 1064/94 Computext Rishon Le Zion (1986) Ltd. v. Minister of Transportation, IsrSC 49(4) 808.
HCJ 287/69 Miron v. Minister of Labour, IsrSC 24(1) 337.
HCJ 672/87 Atamalla v. Northern Command, IsrSC 42(4) 708.
P.L.A. 6654/93 Binkin v. The State of Israel, IsrSC 48(1) 290.
HCJ 3914/92 Lev v. Tel-Aviv/Jaffa District Rabbinical Court, IsrSC 48(2) 491.
HCJ 297/82 Brenner v. Minister of the Interior, IsrSC 37(3) 29.
HCJ 2911/94 Baki v. Director General of the Ministry of the Interior, IsrSC 48(5) 291.
HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel, IsrSC 47(5) 832.
HCJ 161/80 San Tropez Holtel Ltd. v. Israel Lands Authority, IsrSC 34(4) 709.
HCJ 465/93 Tridet v. Local Council for Planning and Building, Herziliya IsrSC 48(2) 622
HCJ 400/89 Levitt v. President of the Military Tribunal, Southern District, IsrSC 43(3) 705.
HCJ 166/71 Halon v. Head of the Local Council of Ousfiah, IsrSC 25(2) 591.
HCJ 155/60 Elazar v. Mayor of Bat-Yam, IsrSC 14 1511.
HCJ 512/81 The Archeological Institute of the Hebrew University, Jeruslaem v. Minister of Education and Culture, 35(4)  533.
HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance, IsrSC 50(5) 854.
HCJ 398/79 Abdallah v. Mayor of Nazareth, IsrSC 34(1) 522.
HCJ 379/71 Levy v. Municipality of Petach-Tikvah, IsrSC 26(1) 785.
HCJ 112/88 The Local Council for Planning and Building, Ramat-Gan v.  The District Committee for Planning and Building, Tel-Aviv District, (unreported case).
HCJ 1869/95 Gasoline Import Company v. Minister of Transportation, IsrSC 49(5) 559.
HCJ 6111/94 Guardians of the Tradition  v. The Chief Rabbinical Council of Israel, IsrSC 49(5) 94.
P.Cr. A. 6795/93 Aggadi v. The State of Israel, IsrSC 48(1) 705.
HCJ 4267/93 A.M.I.T.I—Citizens for Efficient Government v. The Prime Minister of Israel, IsrSC 47(5) 441.
HCJ 4712/96 Meretz-Democratic Israel Faction v. Jerusalem District Commander, Israel Police, IsrSC 50(2) 822.
HCJ 122/54 Axel v. Mayor  of  Netanya, IsrSC 8 1524.
HCJ 72/55 Mendelson  v. Municipality of Tel-Aviv/Jaffa, IsrSC 10 734.
HCJ 1520/91 Vilensky v. National Labor Court, IsrSC 46(5) 502.
HCJ 150/69 Reich v. Head of the Antiques and Museums Administration, IsrSC 24(1) 204.
HCJ 70/50 Michlin v. Minster of Health, IsrSC 4 319.
HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry, IsrSC 5 1544.
HCJ 231/63 Retef Food Supplies. v. Minister of Commerce and Industry, IsrSC 17 2730.
HCJ 392/72 Brenner v. District Committee for Planning and Building, Haifa District, IsrSC 27(2) 764.
HCJ 4676/94 Meatrael Ltd. v. The Knesset, IsrSC 50(5) 15.
HCJ 4769/90 Zidan v. Minister of Labor and Welfare, IsrSC 47(2) 147.

 

United States Cases Cited:

Kent v. Dulles, 357 U.S. 116 (1958).
People v. Grant, 117 N.E. 2d 542 (N.Y. Ct. Appeals 1954).
NYS Public Emp. Fed. v. City of Albany, 527 N.E. 2d 253 (N.Y. Ct. Appeals 1988).

 

English Cases Cited:

Ex parte Lewis (1888) 21 Q.B D. 191.
Vanderplant v. Mayfair Hotel Co. (1930) 1 Ch. 138.

 

German Cases Cited:

 6 BverfGE 32 (1957).

 

Israeli Books Cited:

1-2, I. Zamir, The Administrative Authority (1996).
1 A. Rubinstein, The Constitutional Law of the State of Israel (1997).
2 A. Barak Interpretation in Law: Interpretation of Legislation (1993);
3 A. Barak Interpretation in Law: Constitutional Interpretation (1993);
R. Cohen-Almagor, The Limits of Tolerance and Tolerance—Liberal Theory and the Struggle Against Kahanism (1994).
Y. Weisman, Property Law (1993).
H. Klinghoffer, Administrative Law (1957)
S. Eizenstadt, Roman Law: Its History and Substance (1954)
B. Bracha, Administrative Law (1996).
Y. Dotan, Administrative Guidelines (1996).

 

Israeli Articles Cited

A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5 (1991-1993).
Z. Segal, The Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-1991).
I. Zamir, Israeli Administrative Law as Compared to the Adminstrative Law of Germany, 2 Mishpat U’Mimshal 109 (1994-1995).
H. Klinghoffer, An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod Hamishpat 38 (1948)

 

Foreign Books Cited:

R.M. Dworkin, A Matter of Principle (1985).
R.W. League, Roman Private Law (3rd ed. 1961).

 

Foreign Articles Cited:

F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986).

 

Miscellaneous:

31 The Jewish Encyclopedia (1979).

 

The Laws of England (4th ed. 1995).

 

Jewish Law Sources Cited:

Babylonian Talmud, Tractate Beitza 16a.
Habbakuk 2:4
Isaiah 36:6
Numbers 22:21-22.
Mishna, Tractate Baba Bathra 6:7.

 

Tractate Baba Bathra, With the Modern Commentary of Shimon Ben-Shemen 92b (1981)
Babylonian Talmud, Tractate Baba Bathra, 99b-100a
Babylonian Talmud, Tractate Nedarim 39a.
Proverbs 3:17.
Exodus 31:16-17.
Jeremiah 17: 24-27.
Ezekiel 20.
Amos 8.
Nehemia 9, 10, 13.
Jerusalem Talmud, Tractate Brachot 1:8.
Babylonian Talmud, Tractate Shabbat 119b.
The Book of Sabbath: The Sabbath Portion, its Value, its Manifestation and Influence in the Lives of the People of Israel in Ancient Times and Until Today (1963).
A.J. Heschel, The Sabbath: Its Meaning for Modern Man (1951).
Midrash Leviticus Rabbah 32A

 

JUDGMENT

President A. Barak

1. In Israeli public discourse, Bar-Ilan Street is no longer simply a street. It has become a social concept reflecting a deep-seated political dispute between the Ultra-Orthodox and the secular populations in this country.  This debate is not limited to the matter of freedom of movement on Bar-Ilan Street on Friday evenings and on the Sabbath. It is, in essence, a difficult debate involving the relationship between religion and state in Israel, which pierces through to Israel’s very character as a Jewish or a democratic state. It is a bitter debate about the character of Jerusalem, which has found its way to the Court’s doorstep.  This being the case, it is incumbent upon us to decide this case irrespective of its political and social ramifications. The dispute before us is a legal one.

Our concern is with the scope of the Central Traffic Authority’s powers under Regulation 17 of the Traffic Regulations-1961. More specifically, the issue at bar involves the scope of the Central Traffic Authority’s discretion to direct its local counterpart in regulating traffic on Bar-Ilan Street, so that the street will be closed to traffic during certain hours during the Sabbath. The answer to these questions must be drawn from the Regulation’s wording and purpose.  Our decision will be made in accordance with legal criteria, as has always been the practice in Israel. For this Court has dealt with similar issues in the past.  Indeed, this Court ruled on the closing of a particular section of King George and Shmuel HaNagid streets in Jerusalem during morning hours of the Sabbath and Jewish festivals, in order to avoid disturbing worshippers at the “Yeshurun” Synagogue over thirty years ago. See HCJ 174/62 The League for Prevention of Religious Coercion v. Municipality of Jerusalem [1]. In a similar vein, twenty years ago, this Court decided to close a certain section of HaShomer Street in Bnei Brak on the Sabbath and Jewish holidays. See HCJ 531/77 Baruch v. Tel-Aviv District Central Traffic Supervisor [2].  And so, this time too, we will decide these matters according to legal criteria. Significantly, our concern is not with the social debate; our considerations are not political. Rather, we are concerned with the legal dispute, with normative considerations. Our concern is not with the relationship between the secular and the religious in Israel; nor is it with the relationship between religion and state in this country. Nor is our concern the character of Jerusalem. We are simply concerned with Bar-Ilan Street, in its literal sense, and with the Central Traffic Authority’s powers and the scope of its discretion. We will examine the balance between the freedom of movement and any resulting injury to religious sensibilities and the observant way of life.

This having been said, I am well aware that many members of the public will not read our decision. Their interest will lie with the social ramifications of our decision, not with the legal reasoning underlying it. They will not examine our normative considerations and will occupy themselves with the political ramifications of our ruling. We are quite conscious that our legal decision will have extra-legal ramifications. This, we cannot prevent. Our judicial role obligates us to rule on the state of the law in accordance with our best understanding. In this context, I need only cite the words of Acting President Landau, who in HCJ 390/79 Dawikat v. The Government of Israel [3], at 4, wrote:

There is still great fear that the Court will appear to have abandoned its proper role and to have descended into the whirlwind of public debate; that its decision will be acclaimed by certain segments of the public, while others will reject it absolutely. It is in this sense that I see myself as obligated to rule in accordance with the law on any matter properly brought before the Court. I am forced to rule in accordance with the law, in complete awareness that the public at large is not interested in the legal reasoning behind our decision, but rather in the final result. Conceivably, the stature of the Court as an institution that stands above the arguments that divide the public will be damaged.  But what can we do, for this is our role and our obligation as judges.

In dealing with the Bar-Ilan case, I cannot help but feel as Justice Landau felt in Dawikat [3], but what can I do? This is my role and this is my obligation.

2. I begin with a description of the factual background, based on the briefs before us and upon an examination of the material before the Public Committee Appointed for the Purpose of Making Recommendations Regarding Sabbath Traffic on Bar-Ilan Street [hereinafter the Tzameret Committee.] Subsequent to the factual description, I shall examine the normative framework. Within the confines of this framework, I will proceed to address the principles in question. Namely, to what extent it is possible to limit human rights, in order to spare human feelings. I will also address the issue of whether it is possible to limit freedom of movement because of the harm caused to religious sensibilities. I shall conclude by applying the general law to the particular instance at bar.

The Facts

3. Bar-Ilan Street is a main traffic artery. Its length (including a segment of Yirmiyahu Street) is approximately 1.2 kilometers. In its southern section, it joins Yirmiyahu Street, reaching the entrance to the city. To the north, it merges with Harel Brigade Street, which becomes Eshkol Boulevard. Bar-Ilan Street connects the city entrance to Jerusalem’s northern neighborhoods, including Ramat-Eshkol, Ma’alot Dafna, Givat Shapira, and Pizgat Ze’ev. Bar-Ilan Street cuts through an Ultra-Orthodox neighborhood. It serves the residents of this neighborhood. It also serves those who, entering the city, wish to reach its northern neighborhoods, or those who, leaving Jerusalem's northern neighborhoods, wish to exit the city. It also serves the residents of those northern neighborhoods who enter the city for services and commerce. The volume of traffic on Bar-Ilan on weekdays is great. The traffic on Sabbaths and holidays is less significant, approximately 21-28 percent of weekday traffic.

4. Up until the Six Day War, Bar-Ilan Street was situated at the periphery of Ultra-Orthodox neighborhoods, which were located to its east. After the Six Day War, two phenomena occurred. First the Ultra-Orthodox neighborhoods exapanded west of Bar-Ilan, transforming it from a peripheral street to one that cuts through the heart of the Ultra-Orthodox areas, which now envelop the street on both its sides. Second, after the Six Day War, the northern neighborhoods were built. Bar-Ilan Street became the main traffic artery that connected the central part of the city to its northern neighborhoods.

5. Since the Israel's establishment, and even before that, there have been clashes between the Ultra-Orthodox and secular populations in Jerusalem over traffic flow on the Sabbath. Demonstrations in Jerusalem around “Sabbath Square” took place at the beginning of the 1950s. Nearing the mid-1950s, these demonstrations spread to Jaffa Street, Beit HaDegel Square (“Dvidka Square”), Herzl Boulevard, and the Etz Haim neighborhood, situated at the entrance to the city. During the early 1960s, the city of Jerusalem discussed a proposal regarding the prevention of some traffic on the Sabbath. Following this proposal, the street near the “Yeshurun” synagogue was closed to traffic on the Sabbath during prayer times. This was done in reliance on a similar precedent in Tel-Aviv and Haifa. The petition challenging this decision was rejected. See League [1].

The tension between the secular and the religious increased during the 1960s and the 1970s. Essentially, these tensions revolved around the opening of swimming pools and the City Stadium. The clashes around the issue of Sabbath traffic were renewed and have persisted since the 1970s. This debate was sparked by a dispute over Ramot road, which connects the Ramot neighborhood to the downtown area. In the midst of these clashes, the Jerusalem municipality closed dozens of streets located in Ultra-Orthodox and other religious neighborhoods to traffic on the Sabbath.

6. The first of the demonstrations by Ultra-Orthodox groups on Bar-Ilan Street occurred in 1988. This struggle escalated following the street’s one-time closure in June of 1991, on the occasion of the Satmar Rebbe’s visit, and in November of 1995, on the occasion of the Vishnitzer Rebbe’s visit. Moreover, the Ultra-Orthodox voters’ increasing political clout gave rise to heightened expectations among the Ultra-Orthodox public that the street be closed to traffic on the Sabbath. In addition, the availability of surrounding streets, paved through the years, which could potentially serve as alternate routes, strengthened the Ultra-Orthodox belief that the secular public should accede to their request and refrain from traveling in their midst on the Sabbath.

Conversely, the request to close Bar-Ilan Street to traffic was perceived by the secular public as the continuation of an ongoing policy to effectively push the non-Ultra-Orthodox population out of Jerusalem. As a result, counter-demonstrations took place, accompanied by violent clashes. Against this backdrop, in August of 1994, the Mayor of Jerusalem, Mr. Ehud Olmert, appointed a committee headed by Mr. Elazar Sturm [hereinafter the Sturm Committee].

7. The Sturm Committee held a significant number of meetings. Dozens of city residents, among them representatives of neighborhoods, parties, and interested bodies, appeared before the Committee. The Committee heard from experts in the fields of transportation, geography, sociology, law and religion. In its report of September 29, 1995, the Committee noted:

The issue of traffic on the Sabbath divides Jerusalem’s populace deeply. Solutions befitting the conflicting interests of the city’s residents must be found. The situation is difficult and complicated. Accordingly, our examination was conducted in the spirit of compromise and in careful analysis of the conflicting needs. The testimony before the Committee, from every shade of the social and political rainbow, religious and secular, reflected agreement and broad understanding. There is general agreement in favor of respecting the request of many religious neighborhoods to foster a public atmosphere befitting their own religious lifestyle, while bearing in mind the needs of others.

Against this backdrop, the Committee recommended closing particular streets, such as Keter Sofer Street, Shmuel HaNavi Street and Brandeis Street. It also recommended closing the neighborhood of Har-Nof to traffic on the Sabbath and Jewish holidays. Having said this, the Committee did note that it recommended leaving access routes open to secular residents and their visitors. Accordingly, it called on secular residents to inform them of their place of residence. Only after the secular residents’ places of residence were mapped out and the relevant roads and accessways clearly marked, would the Committee make its recommendations. Additionally, the Committee decided not to recommend closing other streets, such as Malchei Yisrael Street, Yam-Suf Street, and Michlin Street. With respect to Bar-Ilan Street, it recommended that:

Bar-Ilan Street be closed during prayer times on Sabbaths and Jewish holidays.

More specifically, the Committee recommended that the street be closed on the eve of the Sabbath, from the beginning of the Sabbath (sunset) to an hour and forty-five minutes thereafter; on the Sabbath day the street would be closed from 7:30 a.m. to 11:30 a.m.. Bar-Ilan would also be closed for an hour and forty five minutes prior to the end of the Sabbath. It shall be noted that one of the Committee’s members, Mr. Yitzhak Rubin, opposed closing the street during prayer hours, noting that the street is a main traffic artery.

8. While the Sturm Committee was still at work, the local and national media published articles regarding its recommendations. On the heel of these publications, November 29, 1994, Mr. Langer, the National Traffic Controller, approached the Mayor, Mr. Ehud Olmert, regarding Bar-Ilan Street. In his letter Mr. Langer stated that:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

9. Jerusalem’s City Council deliberated the Sturm Committee’s report, and decided to close off a number of streets. In light of Mr. Langer’s letter, and in view of the city’s legal advisor’s position, the Council held: “Jerusalem’s City Council does not have the discretion to close off Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” The Council added that it will take note of the Sturm Commisttee’s recommendations and forward them to the Minister of Transportation “with a recommendation to consider the plight of the local public.”

10. A number of requests to close off Bar-Ilan Street on the Sabbath reached the Minister of Transportation, Mr. Israel Kaiser. A meeting was held, on January 10, 1996, between the Minister and residents of Bar-Ilan Street—a meeting that Mr. Langer also attended. In concluding the meeting, the Minister asserted that:

the Traffic Controller is the highest professional authority in this area, and I, as Minister of Transportation, must act in accordance with his professional opinion. The Traffic Controller’s professional opinion is that this street is a main traffic artery and therefore cannot be closed on the Sabbath. I will only be able to change this decision if the Traffic Controller is swayed by the data presented here before him, and decides that, on Sabbaths during prayer times, the street may be closed. As I have said, the decision shall be on a professional basis, and if there is room to take a more lenient view—as the House of Hillel did in the times of the Talmud—I shall take that path. If, however, the Traffic Controller does not change his professional opinion, we will only close the street if the government or the Court compels us to do so.

Minister Kaiser concluded his meeting with the Mayor of Jerusalem, on February 13, 1996, on a similar note. During all this time, demonstrations against Sabbath traffic on Bar-Ilan Street grew more violent. The police were forced to intervene and traffic in the area was disrupted.

11. In May of 1996, Rabbi Yitzhak Levi was named the new Minister of Transportation. The National Traffic Controller, Mr. Langer, listened to the position of the new Minister, who noted that he had received many complaints regarding the offense to the sensibilities of the local Ultra-Orthodox public on Bar-Ilan Street. The Minister expressed his opinion that a compromise solution was desirable and notified Mr. Langer that, in light of the issue's ramifications, he planned on meeting with Israel’s President to discuss it.  After meeting with the President, the Minister of Transportation informed Mr. Langer that the President also believed in reaching a compromise regarding Bar-Ilan Street. Mr. Langer consulted with professionals—with the Ministry of Transportation’s Chief Engineer and with its Legal Advisor. He revisited and reconsidered his original stance. After this assessment, Mr. Langer became convinced that he should change his previous decision.

12. On July 10, 1996, Mr. Langer submitted a new decision. According to this decision, Bar-Ilan Street was to be closed to traffic, in both directions, on the Sabbath and Jewish holidays, during prayer times. On Friday evenings and holiday eves the street would be closed from 6:30 p.m. to 9 p.m.; on Saturdays and Jewish holidays from 7:30 a.m. to 11:30 a.m., and from 5 p.m. to 8:30 p.m. This traffic arrangement would be in force for a four month period. Intersections themselves would remain open to traffic. During this period, the impact on traffic in the area would be monitored. The Minister of Transportation informed the Knesset of his decision—a decision which the current petitions challenge.

The Petitions

13. The first petition before us (HCJ5016/96) was filed by Lior Horev, a resident of Jerusalem active in the struggle against the street’s closure.  He claims that the decision was illegal, as it was taken without consulting the Mayor or the residents of the affected secular neighborhoods.  The petitioner further maintains that the decision is patently unreasonable, for it involves the permanent closure of a central traffic artery for a number of hours, as distinguished from a temporary closure for a particular event.  The petitioner claims that the decision is based on political considerations. He also noted the problem with impeding the freedom of movement of emergency and security vehicles.  Indeed, Bar-Ilan Street is used by such vehicles for the purpose of reaching the hospital on Mount Scopus.  Consequently, the petitioner requests that we declare the Minister’s decision invalid and issue a temporary restraining order, until we render a final decision.

14. The second petition (HCJ 5025/96) was filed by Member of Knesset Ophir Pines, a resident of the neighborhood of Ramot. M.K. Pines argues that he is liable to be harmed by the Traffic Controller’s decision. He claims that the Minister forced the Traffic Controller to decide as he did.  The decision, he submits, is patently unreasonable, for it leaves entire neighborhoods in Jerusalem without any reasonable alternative routes. Nor, he claims, did the respondents consult with representatives of the secular public prior to adopting the decision.  He further contends that the placing of traffic signs, such as the ones indicating Bar-Ilan’s closure, is a regulatory act that requires official publication.  There was no such publication and the new traffic regulations were made without proper authorization, when both the Prime Minister and the Mayor were overseas. The petitioner further emphasized that the parallel road, Yechezkel Street, had already been closed to traffic on the Sabbath and holidays in order to meet the religious needs of the Ultra-Orthodox public. Thus, closing Bar-Ilan Street would impose a total detour of about nine kilometers on motorists. The petitioner therefore requests that the Court strike down the Traffic Controller’s decision. He also requests that we issue an interim order, prohibiting the placing of traffic signs, pending a final resolution.

15. Knesset Member Yosef Sarid and others filed the third petition (HCJ 5090/96).  They argue that limiting traffic on Bar-Ilan Street on Sabbaths and festivals is a matter that should be determined by the Knesset, as it impacts basic civil rights. It was further argued that the decision was taken without consulting with the Prime Minister, the Head of the Regional Authority, the Head of the Local Traffic Authority, or with residents who were likely to be harmed by the decision. Petitioners maintain that a better solution would be to build pedestrian walkways over Bar-Ilan Street. 

Petitioner number three is a resident of Tzefania Street, adjacent to Bar-Ilan. She works at Hadassah Ein Karem Hospital. Petitioner number three claims that closing Bar-Ilan Street on Sabbaths and festivals will force her to park her car about a kilometer away from her home and that, if she decides to visit her brother, also a resident of Jerusalem, she will have to walk about five kilometers. Petitioner number four is a disabled Israel Defense Force (IDF) veteran, with restricted mobility. His parents live on David Street, which intersects Bar-Ilan. He visits them every Friday and Sabbath.  Petitioner number four argues that closing the street will prevent him from seeing his parents on Sabbaths and holidays.  Petitioners also submit that the Controller’s decision was made under the pressure of the demonstrations of the local Ultra-Orthodox public. These demonstrations sometimes involved acts of violence, which ended in damage to both persons and property. They argue that the Controller’s decision would give dangerous legitimacy to such violence. We were therefore requested to strike down the Controller’s decision.

Issuing an Order Nisi and an Interim Order

16. The petitions were filed with the Justice on Duty, Justice D. Dorner, and transferred to a panel of justices, who decided that they would hear the petition the following day.  During the hearing, before President A. Barak, Justice E. Mazza and Justice D. Dorner, it was decided to issue an order nisi. The interim order was also granted. Respondent was given fifteen days to file a response. It was decided that, upon receiving respondent’s response, a date would be set for hearing the petition.

17.  After the order nisi was issued, an additional petition was filed (HCJ 5434/96). The petitioner was the Association for the Rights of the Religious Community in Israel. They request that we order the Traffic Controller and the Minister of Transportation to show cause as to why Bar-Ilan Street should not be completely closed on Sabbaths and holidays. They claim that these areas are completely and exclusively religious and Ultra-Orthodox. This being the case, the use of the road for traffic on Sabbaths and festivals injures the sensibilities of the residents of Bar-Ilan Street and its environs.  It also causes ongoing tension between this population and Jerusalem’s secular population.  As a result, there are repeated incidents of violence between these sectors of the public.  Petitioner also claims that traffic on the Sabbath endangers the welfare of the local population, for whom the road serves as a pedestrian promenade on the Sabbath.  It turns the Sabbath into a regular weekday, violating the beliefs by which the local residents abide. The secular population, they argue, has reasonable alternative roads on which to drive on the Sabbath.  The petition was filed with the Justice on Duty, again Justice D. Dorner, and an order nisi was issued as requested. A hearing was set and combined with the hearings of the other three petitions.

18. The continuation of the hearing of the four petitions was scheduled for August 15, 1996. The Traffic Controller’s response to the four petitions was submitted to the Court prior to this hearing.  With respect to the first three petitions, the Controller noted that, in his decision to partially and temporarily close Bar-Ilan Street, he had appropriately balanced between freedom of movement and the sensibilities of the religious residents of Bar-Ilan Street and its vicinity. Employing the information provided by the Sturm Committee, the Controller asserted that the volume of traffic on the Sabbath and festivals is only 12 per cent of the volume of traffic on regular days.  According to the Controller, his decision did not leave motorists without alternate routes. These alternative routes, however, do require longer trips.

19. According to the data submitted by the Traffic Controller, Bar-Ilan’s closure would mean that, instead of travelling 2.2 kilometers along the road, motorists wishing to reach the Sanhedria intersection from the entrance to the city to would have to turn left at the entrance to the city, at Route no. 4 (Mie Naftoach) and then turn right at Golda Meir Boulevard prior to reaching the Sanhedria intersection. The trip would be lengthened by only 1.5 kilometers and the time difference would be only two minutes.  For the residents of Jerusalem’s eastern neighborhoods (Katamon, Talpiot and the German Colony) as well as for residents of the city center, the direct route to the northern suburbs is via Route no. One. For residents of the western neighborhoods (Beth Hakerem, Kiryat Hayovel and Kiryat Menachem) an alternate route to the northern suburbs through Route no. Four is available, which, as stated above, lengthens the trip by only 2.2 kilometers. Residents of Jerusalem’s northern neighborhoods, for their part, can exit the city directly via Route no. Four to Tel-Aviv, as well as via Route no. 443 to Modi'in.

20. In light of this data, the Controller balanced the conflicting interests. He considered the intensity of the harm caused by alternate courses of action. He concluded that the appropriate balance between the relevant factors necessitated a partial closure of Bar-Ilan Street, during those times when a large portion of the religious population was on its way to or from the synagogue. As these times motor traffic along Bar-Ilan presents the greatest affront to religious sensibilities. Even so, the Traffic Controller was of the opinion that the closure ought to be on a temporary basis only.  During the period of the closure, the damage caused motorists using Bar-Ilan and its alternate routes would be examined.  The respondent’s position is that, “at this stage,” closing the road beyond prayer times should not be permitted.

21.   In his response, the Traffic Controller addressed the change in his position. He asserted that his initial response only addressed the strictly traffic-related aspects of the matter and failed to give full attention to the scope of the offense to the Ultra-Orthodox public’s sensibilities. His second decision was adopted following a renewed examination of all the circumstances. As a result, he is now convinced that the appropriate balance of the conflicting interests warrants the temporary, partial closure of Bar-Ilan Street during and around prayer times.

22. Further on in his response, the Traffic Controller discussed the arguments for consulting sections of the secular population.  The Controller contended that he was not under a duty to consult but that, as a matter of fact, he was aware of the positions of both the Ultra-Orthodox and the secular. He had studied the Sturm Report and had been apprised of the Jerusalem City Council’s stance regarding the Sturm Committee’s recommendations. The Traffic Controller also asserted that placing a traffic sign does not require official publication.

23. Regarding the inconvenience caused to petitioners three and four (HCJ 5090/96), the Traffic Controller contended that:

the reasonableness of an administrative decision in a case is assessed subsequent to balancing all the relevant interests. The fact that a particular individual suffers in a more serious way does not affect the reasonableness of the decision as a whole.

24. In his reply, the Traffic Controller specifically related to the petition in HCJ 5434/96, which requests that Bar-Ilan Street be completely closed for the entire Sabbath. He noted that even though the alternate routes only lengthen the commute by about two kilometers, this still constitutes an infringement of the city residents’ interests in general, and the interests of the residents of the northern suburbs in particular. Of course, their rights must be balanced against those of the Ultra-Orthodox population who live along the road, and their interest not to have their religious sensibilities offended on the Sabbath and festivals.   The appropriate balance between these conflicting interests, argues the Controller, warrants the partial closure of the road, during the Sabbath and festivals.  This closure will be temporary. After the trial period, the situation will be reexamined, with consideration for statistics regarding the volume of traffic on the street. Towards the end of his response, the Traffic Controller also raised the possibility of establishing an electric sign, which would advertise the times that the Sabbath and festivals commence and end. This sign would be connected to the traffic lights, and would facilitate the road’s closure at the precise times of prayers.

25. In view of the matter’s significance and at the request that the original panel of judges be broadened, I decided to add Deputy President S. Levin and Justices Or, Cheshin and Tal to the original panel. The hearing began on the August 15, 1996. At the start of the hearing, we ordered the joinder of a number of petitioners (HCJ 5341/96, 5354/96 and 5377/96) as respondents to the first three petitions. These respondents included the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods. The Committee noted the numerous times it had approached the Minister of Transportation, Israel Kaiser, with requests that Bar-Ilan Street be closed.  These requests were appended with the petitions of rabbis, of institutions for Jewish learning and of thousands of residents, including a petition signed by 1,000 children, all of whom requested that the Bar-Ilan Street be closed to traffic on the Sabbath.  According to petitioner, those signing these petitions included “almost all of Bar-Ilan Street’s residents, house after house, religious, traditional and secular.” The Committee asserted that, on the Sabbath, “Bar-Ilan Street serves as a main artery for pedestrian traffic. Residents, together with their families, go to services three times a day, visit their rabbis and the homes of relatives and friends in the neighborhood, attend lessons in Torah, and go to the synagogue for the afternoon meal.  Children, after a week of long days in school, also attend services, and go to lessons, Psalm reciting groups, games and meetings with their friends. The pedestrian traffic on the Sabbath and festivals on Bar-Ilan Street involves thousands of people and is of a far greater scope than the motor traffic, which poses a serious danger to the pedestrians, particularly the children. In addition, according to petitioner, the presence of motor vehicles “disturbs prayers and Torah classes in the synagogues and infringes upon the Sabbath rest enjoyed by the local residents.”

According to the Committee, the proper solution is the absolute closure of Bar-Ilan Street to traffic on the Sabbath.  At minimum, the road should be closed in accordance with the Sturm Committee’s recommendations and the Traffic Controller’s decision. With respect to ambulances or other emergency vehicles, the Committee noted that these would be able to move freely. It asserted that “[w]ho is as well-known as the Ultra-Orthodox public and its volunteers for their commitment to saving lives and helping others?"  The Committee further contended that Bar-Ilan Street was only a vital traffic artery on weekdays. On the Sabbath, traffic is minimal and the road becomes “a traffic artery for pedestrians.”  The Committee also asserted that “almost 100% of the residents living in the vicinity of the Shmuel HaNavi and Jeremiah Streets, as far as Shamgar Street, are all religious or Ultra-Orthodox, and their religious sensibilities, convenience, and way of life should be taken into account.” In addition, it emphasized that the section of the road designated for closure contains over one hundred synagogues and religious institutions.  As for the violence of Ultra-Orthodox groups on Bar-Ilan Street, the Committee deemed these to be fringe groups, who do not reflect the views of the overwhelming majority of local residents. “It is well known that rabbis from all circles and communities have prohibited stone-throwing or any kind of violence at demonstrations, especially on the Sabbath, as such is prohibited by Jewish law.”

With respect to petitioner number three (HCJ 5090/96), the Committee submits that an ambulance would be able to pick her up on the Sabbath.  In addition, she would be able to obtain an ambulance sign for her car through the hospital. Regarding travel to members of her family, she would be able to do so during the hours when the street was open on the Sabbath. The same would apply to petitioner number four.

26. When the Minister of Transportation and the Traffic Controller began their oral arguments, the Court asked for further details from the National Traffic Controller, Mr. Langer. He answered our questions.  He provided us with a detailed explanation of the traffic issues in Jerusalem on the Sabbath, noting the conflict between the desire of the religious and Ultra-Orthodox communities to maintain an observant way of life and between the secular public’s freedom of movement. In the Controller’s view, closing Bar-Ilan Street for a four-month period constituted an attempt to find the proper balance between these conflicting considerations, in order to facilitate finding a more permanent solution.

27. On the basis of his testimony before us, and in the view of the petitions and the responses to them, the Court thought it best to resolve the matter by way of an agreement.  Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of such this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

28. This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by the government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

 29.            The Court’s proposal was immediately submitted to the Minister of Transportation, who accepted it.  We were informed that the Minister intended to have the Committee set-up immediately so it could begin deliberations without delay.  The other sides also welcomed our proposal. Under the circumstances, we thought it appropriate to postpone the continuation of the hearing for two months, in order to allow the committee to function.

30. In view of this development, the state and the petitioners in HCJ 5434/96 petitioned the Court to strike down the interim order.  Petitioners in HCJ 5016/96, 5025/96 and 5090/96 opposed this motion. We held, with Justice Tal dissenting, that there was no reason to revoke the interim order at that stage. It was our understanding, given the response of the National Traffic Controller and, on the basis of accepted guidelines regarding interim orders, that the interim order should remain valid.  We further noted that the petitions were still pending and that, as long as we lacked exact and verified data regarding an appropriate solution, there were no grounds for changing the status quo that had existed on Bar-Ilan Street prior to the Controller’s decision.  This having been said, we noted that there was nothing to prevent the Controller or one of the other litigants, subsequent to the establishment of the committee, from approaching us at his or her own initiative with a request to strike down or alter the interim order, on the basis of developments in the committee.

31. The Court emphasized its hope that a public committee that would make recommendations, which would be submitted with appropriate haste and which would reflect the social consensus of all walks of Israeli society, would facilitate an eventual solution to the critical problem of religious-secular relations both in Jerusalem and outside of it, based on mutual tolerance. We also expressed our concern that the committee be allowed to do its work in a quiet atmosphere, free from threats or violence.  As noted above, the Controller or any of the litigants would be able to return to us in the future with a request to strike down or alter the interim order.

32. In his dissent, Justice Tal opined that the interim order should be cancelled. In his view, the National Traffic Controller’s decision was temporary, and was intended to allow for assessment of the proposed arrangement. Upon termination of the trial period it would be possible to ascertain whether the proposed arrangement had been an appropriate and reasonable alternative. Justice Tal noted that he saw no reason for this Court to prevent the authority from conducting this experiment. The results of the experiment could also be weighed by the public committee.

The Tzameret Committee

In the wake of our proposal, on August 27, 1996 the Minister of Transportation appointed a public committee charged with making recommendations regarding motor traffic on the Sabbath. The committee was chaired by Dr. T. Tzameret. Its members were Prof. G. Golan, Rabbi T. Weinmann, Mr. U. Chason, Rabbi S. Yakobovitz, Rabbi She'ar Yashuv Cohen, Prof. E. Shweid, Prof. D. Shferber. In its letters of appointment, the Committee was requested to establish

recommendations regarding traffic on the Sabbath on Bar-Ilan Street in Jerusalem, in Jerusalem in general, and its environs. The recommendations are to reflect a social consensus between various segments of the population. This consensus is to be based on patience, tolerance and on a long-term understanding of the population structure of Jerusalem and its environs.

34. The Tzameret Committee deliberated for approximately nine weeks. It heard the testimony of dozens of witnesses, including public servants, experts in geography, economics, urban planning, sociology, political science and public administration, politicians, public figures and ordinary citizens. The Committee also studied the written requests of citizens not summoned to testify before it.

35. The Committee’s recommendations address four matters: the creation of a “social covenant” between the religious and the secular, the economic, demographic, cultural and social development of Jerusalem, the regulation of the street closures nationwide on the Sabbath and holidays, and the closure of Bar-Ilan Street on the Sabbath and holidays.

Regarding the social covenant, seven of the eight Committee members recommended that a council, consisting of twenty-three public figures and spiritual leaders from all walks of life, be established to engage in an ongoing dialogue on religious-secular relations. “All of this with a view to the gradual improvement of religious-secular relations based on mutual respect, understanding and agreement.”

With respect to Jerusalem’s development, seven of the eight Committee members recommended intensifying research regarding Jerusalem, its development and its population, in order to collect data which could serve as a basis for formulating policy. Likewise, the seven members also suggested the restriction of subsidized building in Jerusalem, the building of additional public structures and the planning of new suburbs, with an eye to the lifestyles, character, and needs of the various sectors of the population. The Committee unanimously recommended extending the municipal boundaries of Jerusalem to the west and south, so that suburbs such as Mevasseret Tzion, Motza Elit, Ramat Rachel, Mt. Eitan and the Arazim valley would be included within Jerusalem.  The Committee further recommended encouraging economic, public and spiritual activities within the Jerusalem area. In addition, six of the Committee members proposed “the promotion of cultural activity geared towards various populations, provided that such activities do not involve the public desecration of the Sabbath.” One of the members opposed this recommendation and another abstained.

 36.            As for the matter of closing roads nationwide, the Committee recommended that Israeli roads be classified into six categories:

                    (1)Local streets—streets used exclusively for access to adjacent land and not for thorough traffic;

                    (2)Internal Thorough Streets—streets, mainly serving the needs of local residents, which concentrate and divert traffic from internal streets to collector or arterial thoroughfares;

                    (3)Main Thorough Streets—streets which concentrate traffic from internal thorough streets to main traffic arteries;

                    (4)Arterial Thoroughfare (with direct access to adjacent lands)—streets, used for transit between various neighborhoods, which concentrate traffic from the categories listed above;

                    (5)Arterial Thoroughfare (without direct access to adjacent land users)—street, which are used for through traffic only, which concentrate traffic from the thoroughfares listed above;

                    (6)Intercity Highway.

The Committee recommended that the Municipal Authority, in its capacity as the Traffic Authority, be exclusively authorized to deliberate and decide whether a Main Thorough Street or an Arterial Thoroughfare (with direct access to adjacent land users), should be closed. Such requests would be considered if a large majority of the adult population (75% - 80%) in the area through which the street passes requested such a closure, and if reasonable alternate routes could be found. The Committee further suggested that any decision of the Municipal Authority to close a street should be submitted to the Central Authority, who would examine the decision based on professional considerations. The Committee recommended that only the Central Authority be authorized to close Arterial Thoroughfares (without direct access to adjacent land users) and Intercity Highways, and only then under exceptional circumstances. Moreover, the Committee proposed that an appeals board be established in order to adjudicate objections raised against the Central Authority’s decisions.

37. With respect to Bar-Ilan Street’s closure, five of the Committee members recommended that “in consideration of the needs of the Ultra-Orthodox population, we recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street on the Sabbath and festivals during prayer times, provided that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo.” In a personal letter, which forms part of the report, the Committee’s Chairman noted that the recommendation that the road be closed during prayer times is a conditional one—the condition being that “there be an organized transportation alternative on the Sabbaths in Jerusalem, an arrangement that had existed in Jerusalem for many years.”  Two additional Committee members (Prof. Shweid and Prof. Golan) clarified that they agreed to closing the road with the understanding that transportation arrangements for the secular public would be based on the status quo, under which taxis had been permitted to operate. Prof. Shweber expressed reservations regarding these understandings, and emphasized that his intention was not to permit public transportation on the Sabbath, but rather to continue allowing private transportation. Rabbi Shear Yashuv Cohen, who refrained from voting, claimed that the reference to the status quo was intended to prevent deterioration in the position of the secular population rather than permit the desecration of the Sabbath.

The Decision of the Minister of Transportation

38. The recommendations of the Tzameret Committee were submitted to the Minister of Transportation.  In accordance with section 42 of the Basic Law: The Government, the Minister decided to assume the authority of the Traffic Controller in the matter of Bar-Ilan Street.  On November 7, 1996, the Minister submitted an affidavit to this Court, detailing his stance.

 39. The Minister of Transportation adopted the Tzameret Committee’s recommendations regarding the establishment of a public council. This Council would be responsible for conflict resolution between different sectors of the Jewish population.  The Minister of Transportation brought this proposal to the Prime Minister and requested that he recommend to the President that such a council be established.

With respect to Jerusalem’s development, the Minister of Transportation stated that the committee's recommendations were not within his authority, but suggested to the Prime Minister that these recommendations be submitted to the Minister’s Committee for Jerusalem.

40. In the matter of closing roads nationwide, the Minister of Transportation decided that professionals employed by his Ministry would assess recommendations of this nature. If the professionals suggested that the recommendations be implemented, and if the Minister decided to adopt them, appropriate legislative amendments would be necessary.

41. Regarding Bar-Ilan Street, the Minister of Transportation felt that implementing the Tzameret Committee’s recommendations would essentially entail closing the road. This position took into account its classification as an Arterial Thoroughfare (with direct access to adjacent lands), the existence of reasonable alternatives, and the fact that an overwhelming majority of the population had expressed its desire that the road be closed.  The Minister also expressed his view regarding the condition on which the road closing was to be premised, namely “that arrangements are made for the secular public in accordance with its needs within the framework of the current status quo." The Minister regarded this condition as being “vague and lacking substantial factual basis.”  He noted the various interpretations given by different Committee members. Dr. Tzameret, Prof. Schweid and Prof. Golan felt that this paragraph referred to the implementation of public transportation on the Sabbath. Prof. Shwerber interpreted the paragraph as referring to the individual’s right to violate the Sabbath within the framework of the existing status quo. Consequently, the Minister concluded that the majority of the Committee did not suggest making the street closure contingent on the establishment of alternate transportation routes.

 Regarding the paragraph’s factual basis, the Minister noted that the three Committee members in question could not point to any agreements that would confirm their respective interpretations.  The Minister further noted that the Traffic Controller had informed him that, in the past, licenses had not been distributed for taxis to operate on Sabbaths and festivals.  From this he deduced that, in permitting organized transportation, he would be changing the status quo rather than continuing it. The Minister of Transportation concluded that he had not been presented with a recommendation that reflected a “a social consensus between the various segments of the public regarding Sabbath traffic.”

 The Minister of Transportation also consulted with the Traffic Controller. The Traffic Controller recommended that the Minister adopt the Tzameret Committee’s recommendation that Bar-Ilan Street be closed during prayer times, on the condition that Golda Meir Boulevard and the other entrances to the city remain open during the Sabbath and festivals, as well as that Jaffa Street be open to private vehicles. It was on the basis of these conditions that the Minister of Transport decided that Bar-Ilan Street would be closed to traffic on Sabbaths and festivals during prayer times, as per the Sturm Committee’s recommendations. Closing times would be for one hour and forty-five minutes after the beginning of the Sabbath, one hour and forty-five minutes prior to the end of the Sabbath and between 7.30 and 11.30 a.m. during the Sabbath day. In addition, the Minister of Transportation decided that, for as long as Bar-Ilan Street was closed, Golda Meir Boulevard and the entrances to Jerusalem would remain open. Similarly, the lanes on Jaffa Street normally reserved for public transportation would be opened to private vehicles.

The Continuation of the Hearing

42. Oral arguments resumed upon receipt of the Minister’s response.  The Minister of Transportation emphasized that his decision was not for a trial period, but reflected a final position. The Minister asserted that he had balanced the conflicting interests and decided that, in view of the serious harm to the interests of the Ultra-Orthodox sector on the one hand, and the existence of reasonable transportation alternatives on the other, it was reasonable to partially close Bar-Ilan Street to traffic on the Sabbath and on festivals. However, he noted, should there be any change in the circumstances, the Minister would obviously reconsider his decision. Moreover, the Minister asserted that his decision was influenced by the Sturm and Tzameret Committees’ recommendations and by the opinions of various rabbis, committees and other interested parties. In this context, it was stressed that there were over one hundred synagogues within the ten surrounding neighborhoods immediately adjacent to Bar-Ilan Street.  Indeed, local residents often crossed Bar-Ilan Street when going from one neighborhood to another, both for purposes of prayer and study. This having been said, the Minister was careful to stress that he had not been influenced by the violent demonstrations, though he contended that this violence was proof of the intensity of the feelings of the Ultra-Orthodox community. According to the Minister, violence must be dealt with by the police, and it would not lead him to change his mind. Needless to say, if one of the responsible bodies, such as the municipality or the police, were to approach him, he would be prepared to consult with them in that regard.

The Minister highlighted that he had not been approached by any secular residents who would be harmed by his decision. He reiterated that “so long as Bar-Ilan Street is closed, the adjacent roads … would remain open.”  Furthermore, he clarified that, in deciding these matters, the more important and central the road, the stricter and more exacting would be the standards for its closing.  In any event, the factors to be taken into account were the degree of harm to the feelings of the public, the balance between the various populations living adjacent to the road, and the nature of the alternatives available. In addition, the Minister notified the Court that the establishment of a public body that would function as an appeals board was presently under discussion.  Practically speaking, he asserted, such a body had functioned in the Bar-Ilan case.

The Committee of Tel-Arza and Bar-Ilan Street Neighborhoods reiterated its position that Bar-Ilan Street ought to be completely closed on Sabbaths and festivals. It asserted that that there were no more than fifty secular residents in the neighborhood, making Bar-Ilan Street a uniquely Ultra-Orthodox neighborhood. Similarly, the Association for the Rights of the Religious Community in Israel also asserted that Bar-Ilan Street ought to be absolutely closed to traffic on Sabbaths and festivals. 

43. For their part, petitioners in 5090, 5025, and 5016/96 repeated their position that Bar-Ilan Street’s closure is unreasonable. They emphasized the absence of criteria for closing streets to traffic and argued that a precedent would be set for closing additional arterial roads if the Court was to approve the Minister’s decision to close the Bar Ilan Street. They further emphasized that, in the past, the closure of Yehezkel Street had been justified by the fact that Bar-Ilan Street provided an alternative route. Now, however, there are requests to close Bar-Ilan Street, claiming that other roads can serve as alternatives. In the future, these roads would also be closed. In this context, it was argued that if the feelings of the Ultra-Orthodox warranted the closing of Bar-Ilan Street, why did respecting these feelings not also warrant the closing of alternative roads as well?  The petitioners emphasized that, while the secular petitioners were always ready to compromise, the Ultra-Orthodox were not prepared for any compromise, nor were they ready to renounce any of their past victories.  It was further emphasized that there were many secular citizens who refrained from using Bar-Ilan Street on the Sabbath, due to the Ultra-Orthodox violence on the street.

44. In response to these comments, my colleague, Justice Tal, inquired as to whether the petitioners were prepared for a compromise in which Bar-Ilan Street would be closed to traffic on the Sabbath, as per the Minister of Transportation’s decision and, in exchange, a street that is currently closed on Sabbath would be reopened. Justice Tal made particular reference to Yam Suf Street. The panel joined Justice Tal in this suggestion. The Minister informed us that he would conduct a hearing regarding the proposal with the representatives of the City of Jerusalem.

45. In his response, the Minister informed us that the compromise proposal had been seriously considered and that he had inquired with the Mayor of Jerusalem regarding the possibility of reopening Yam Suf Street to traffic on the Sabbath. After consulting with the representatives of the City Council and with the Director of the Traffic Section and Engineering Services, the Mayor of Jerusalem decided that it is appropriate to preserve the status quo on Yam Suf Street. He reasoned that there is no traffic-related connection between closing Bar-Ilan Street, as per the Sturm Committee’s recommendation, and reopening that particular segment of Yam Suf Street, which had already been closed to traffic on Sabbaths and holidays for a year and three months. Professionals working in the Transportation Ministry agree that there is no significant traffic-related connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. The Minister of Transportation also agrees with this position. The Minister of Transportation noted that additional attempts had been made to find a solution acceptable to all sides, but that these efforts had been unsuccessful.

The General Normative Framework

46. Our point of departure is section 70(1) of the Traffic Ordinance [Revised Version], which confers upon the Minister of Transportation the authority to regulate traffic and establish rules regarding the use of the roads. With this authority, the Minister enacted Regulation 17 of the Traffic Regulations-1961:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

The “Central Traffic Authority” is the Traffic Controller or the body upon which the authority of the Controller is conferred. For our purposes, the Central Traffic Authority is the Minister of Transportation, in view of his use of section 42 of the Basic Law: The Government, by which he assumed the Traffic Controller’s authority with respect to Bar-Ilan Street.

47. Regulation 17 of the Traffic Regulations endows the Traffic Controller with the administrative authority to direct the manner in which traffic arrangements are to be set up.  This authority, like any administrative power, must be exercised in accordance with the rules of administrative discretion and procedure.  The rules of administrative discretion, for their part, deal with the factors that the administrative authorities are permitted to take into account and any balancing between them. The rules of administrative procedure determine the methods through which administrative discretion is to be exercised. See 2 I. Zamir, The Administrative Authority [91], at 673. These two sets of rules were developed by the High Court of Justice and are based on the fundamental principles of our legal system. They have been entrenched in our Basic Laws. In accordance with the theory of administrative discretion, the administrative authority is only permitted to take relevant considerations into account. Furthermore, the administrative authority must find the appropriate balance between these relevant considerations. The balance must be reasonable, as must the decision. The exercise of administrative discretion must be based on a principled, fair and systematic examination of the factual foundation underlying the matter in question.  Were the requirements of these two sets of rules satisfied in the case at bar?    

Laws of Administrative Discretion—Relevance

48. According to our administrative law, an administrative authority is only permitted to consider relevant considerations.  Irrelevant or foreign considerations are proscribed. See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa Mayor [4], at 324. In the case at bar, the Minister of Transportation considered the affront to the religious sensibilities and observant way of life of the Ultra-Orthodox population living around Bar-Ilan Street. Is this a relevant or a foreign consideration? The question of whether religious considerations and offense to religious sensibilities may be taken into account has been discussed at length in our case law. See 1 A. Rubinstein, The Constitutional Law of the State of Israel 214 (1997) [92]. Sometimes, the answer was in the affirmative and, at other times, it was in the negative. See HCJ 105/54 Lazerovitz v. Food Products Comproller, Jerusalem [5].

Clearly, the determining factor is the language of the law conferring the authority, and the purpose for which the authority is conferred. As a general interpretative guideline, subject to specific legislative provision, it may be said that considerations that take religious sensibilities into account are precluded if religious coercion is the final goal of such considerations. In contrast, religious sensibilities may be taken into account if they are intended to give expression to religious needs. See HCJ 3972/93 Meatrael Ltd v. Prime Minister [6], at 507.  Indeed, religious coercion is said to run contrary to the right to freedom of religion and human dignity. Consideration of religious needs is, however, consistent with freedom of religion and human dignity. Thus, for example, when exercising discretionary powers to institute daylight savings time, it is permitted to take religious needs into account. I discussed this point in HCJ 217/8 Segel v. Minister of the Interior [7], at 439:

Changing the clock touches on and affects the lifestyle of the Israeli population. As such, even times of prayer and the observance of religious commandments are relevant matters. Just as the Minister of the Interior is permitted to take the industrial and agricultural needs of farmers, adults, and youth into account, he is also permitted to consider the interests of the religious and secular populations.

Similarly, in the exercise of discretion to prohibit the performance of a play, the fact that the performance offends the audience’s religious sensibilities may be considered. This was indeed the ruling in HCJ 351/72 Keinan v. Film and Play Review Board for Films [8], at 814, as per Justice Landau:

According to the law of the State of Israel, even a playwright is not exempt from the duty not to grossly offend his fellow’s religious sensibilities. This obligation is a direct product of the duty of mutual tolerance between free citizens with differing views, without which a pluralistic society such as ours could not function. This principle is important to the extent that it can prevail over the basic right of freedom of expression.

In another case, dealing with the Review Board’s authority to prohibit the screening of a film that offended the religious sensibilities of the public, HCJ 806/88 Universal City Studio Inc. v. Film and Play Censorship Board [9], at 37, I wrote:

In a long line of cases, this Court has recognized offense against another's feelings—such as feelings of religion or mourning—as justifying the exercise of the authority of the Review Board for the purpose of restricting the freedom of expression. The public’s feelings are values which the Film and Play Review Board, acting in its capacity to censor films, must take into account. An infringement on such feelings may justify limiting the freedom of expression.

One case, HCJ230/73 S.T.M. v. Mayor of Jerusalem—Mr. Teddy Kollek [10], at 121, discussed whether an administrative authority was entitled to refuse to issue a license that was required by the Licensing of Businesses Law-1968. The reason offered for the refusal was that opening the business in question would offend the local residents’ sensibilities. The Court upheld the refusal to grant the license. Justice Y. Cohen considered injury to the public’s religious feelings as a consideration relating to “public security,” and, as such, to be legitimate:

Even in its narrow sense, this provision justifies the refusal to issue a license for a business, which, by its very nature, offends the feelings of the residents of the area in which the business is to be opened. As such, there is a real danger of a concrete violation of the public peace. If, for example, someone requested to open a night club in the heart of Mea Shearim, or a pub in the center of a religious Muslim neighborhood, the Licensing Authority would be justified in refusing to issue a license.

In yet another case, the Court held that religious feelings may be taken into account when authority is exercised to limit the freedom of worship. See HCJ 7128/96 The Temple Mount Faithful v. Government of Israel [11].  That matter was succinctly summarized by Justice Berenson:

Consideration of religious feelings, close to the hearts of numerous segments of the population, is not an invalid consideration per se, provided that the use of the statutory authority is not a guise for attaining a purely religious objective.  Where it is possible to pursue a course of action in one of two ways—either by ignoring religious considerations, or by taking them into account without imposing a large burden the public—the second route is preferable. In HCJ 98/54, a directive issued by the Food Controller was struck down by reason of it being an attempt—motivated by exclusively religious considerations—to prevent pig farming in Israel, under the guise of food control. This having been said, in the same ruling, it was explained that the directive would not have been defective had the Controller taken into account religious needs in a manner incidental to his authority to regulate food consumption. “Quite the opposite, there would have conceivably been a serious problem in his behavior had he ignored these considerations.” Crim. A 217/58 Izramax Ltd. v. The State of Israel [11], at 362.

Our conclusion is that the consideration of religious feelings, if this does not amount to religious coercion, is deemed to be a legitimate exercise of administrative authority. HCJ 612/81 Shabbo v. Minister of Finance [13], at 301. Taking into account religious considerations may form part of a statute’s general goal. Obviously, aside from this general goal, there may be a more specific goal, under which religious considerations are deemed illegitimate. See HCJ 953/87 supra. [4]. This approach was reinforced by the adoption of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.  Both of these Basic Laws stipulate that their purpose is “to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” See section 1 of the Basic Law: Human Dignity and Liberty and section 2 of the Basic Law: Freedom of Occupation. Consideration of religious feelings was recognized in the past as being commensurate with the values of the State of Israel as a democratic state. The validity of this consideration is now further reinforced by the values of the State of Israel as a Jewish state. Indeed, the Jewish and democratic values of the state are inseparable, as both are endowed with constitutional status. Both serve as tools for the legislative interpretation of laws. See Crim. FH 2316/95 Ganimat v. The State of Israel [14]. Thus, on the interpretative level, every effort must be made to ensure the synthesis and accommodation of these two aspects. See CA 506/88 Yael Shefer  v. The State of Israel [15].    

The Law of Administrative Discretion: Balancing and Reasonableness

49. As we have seen, provided no religious coercion is involved, offense against the religious feelings and lifestyle of an individual or group is a relevant factor in the exercise of administrative authority.  Nonetheless, it cannot be forgotten that considering the religious feelings of a particular individuals is liable to violate the rights and feelings of another person. Thus, whether religious sensibilities are offended is a factor that cannot be considered in isolation. Rather, this must invariably be weighed against other factors, related to both the individual and the public at large. A reasonable balance must be struck between the conflicting considerations. If the balance is appropriate, it leads to the conclusion that the decision is reasonable. See HCJ Ganor v. The Attorney-General, at 513-14 [16]. Indeed, a decision’s reasonableness is assessed by balancing between competing values, according to their respective weight.  This is the balancing doctrine as practiced in our public law. It is employed where an authority considers conflicting values and interests. It has been practiced by this Court in most instances where the exercise of discretionary power infringes the rights of either the individual or society.

 Even so, there are some interests against which there can be no balancing. For example, when the State of Israel’s very existence was placed on the scales, this Court refused to weigh between that interest and competing interests. IA 1/65 Yardor v. Chairman of Central Elections Committee [17]. Indeed, the Court regarded preserving the State of Israel’s existence as a “constitutional given” not to be weighed against the right to elect and be elected.  Nonetheless, this case was clearly exceptional and was even the subject of criticism. See IA 2/84 Neiman v. Chairman of the Central Elections Committee [18], at 304. Thus, this Court refused to extend the scope of this exception to cases other than those involving preserving the democratic nature of the state. Neiman [18]. I am prepared to assume, without ruling on the matter, that there are other values or interests to which the balancing doctrine is not applicable. This having been said, the accepted approach in our public law is the following: where a conflict arises between an individual right and a public right, the Court balances between the two. See Neiman [18], at 308; CA 294/91 Jerusalem Burial Society v. Kastenbaum [19], at 521; CA 105/92 Re’em Engineers v. Municipality of Nazareth-Illith [20], at 207. This case involves balancing between conflicting interests and values. This is a process of “placing competing values on the scale and, having weighed them, deciding which value is to be preferred. See HCJ 73/53 Kol Ha’Am Company v. Minister of the Interior [21], at 879. This was the Court’s approach regarding the conflict between freedom of expression and preserving public peace, HCJ 153/83 Levy v. Southern District Police Commander [22], in the clash between freedom of movement and public security, HCJ 448/85 Dahar v. Minister of the Interior [23], and in the clash between other conflicting values and interests that constitute fundamental values of our legal system. See 2 A. Barak, Interpretation in Law 679 (1993) [93]. Indeed, our constitutional jurisprudential theory is not based on an “all or nothing” approach but rather on a “give and take” approach, involving balancing between different values. HCJ 148/79 Saar v. Minister of the Interior [24], at 178. As I stated in CA 105/92 supra. [20], at  205:  

A social value, such as freedom of expression, does not have "absolute weight." The weight of any social principle is relative. The status of any fundamental principle is always assessed in relation to that of other principles with which it is likely to conflict.

50. This Court adopted a similar approach with regard to the balance between religious feelings and the freedom of expression, see HCJ 351/72 supra. [8]; HCJ 806/88 supra. [9]. It also adopted this approach with regard to the relationship between religious sensibilities related to the observance of the Sabbath and a specific public interest—for example, the regular supply of petrol.  In that latter instance, the Court stated that a solution must be found which “on the one hand, would not ignore the religious sensibilities, sacred to the local residents and, at the same time, which would guarantee the supply of vital services to the public.” Crim. A 217/68 supra. [12], at 364. This Court adopted a similar approach regarding the relationship between religious feelings and the freedom of occupation.  In this context, my colleague Justice Cheshin wrote in Meatrael [6], at 507:

The considerations of man, qua man, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

It therefore follows that religious feelings are a public interest to be taken into account. Nonetheless, their weight is not “absolute.” Instead, they must be balanced “horizontally” against other values that also constitute a public interest and balanced “vertically” against other human rights. As Justice Zamir explained, in HCJ 7128/96 supra. [11], at 521:

Religious feelings are not extended absolute protection. There is no law that provides absolute protection to any right or value. All rights and values, be they what they may, are relative. Necessarily, the protection they are allotted is also relative. This equally applies to the protection extended to religious feelings.  

Furthermore, just as consideration of religious sensibilities is not an “absolute,” but rather “relative,” value that must be balanced against other rights, values and interests, so too, the right to freedom of movement is not “absolute.” It too must be balanced against other rights, values and interests. It is common knowledge that there are roads and streets closed to traffic, either partially or totally. Roads are replete with road-signs and symbols that regulate the flow of traffic on the roads and streets. Thus, freedom of movement is a relative right and the law does not protect its full scope. Compare HCJ399/85 Kahane v. The Broadcasting Authority [25], at 283; HCJ 806/88 supra [9], at 33. In fact, the vast majority of human rights are relative, and may be infringed in order to realize interests which society considers worthy. See HCJ 153/87 Shakdiel v. Minister of Religious Affairs [26]; HCJ 2481/93 Dayan v. Jerusalem District Commander [27], at 473. The reason for this is that human rights in general, and the right to freedom of movement in particular, are not the rights of an isolated individual, living on a desert island. Instead, they are the rights of individuals living in society. They deal with the individual in his relationships with others, and presume the existence of a state that must realize social and national goals. Hence, every democratic society, sensitive to human rights, recognizes the need to restrict them in order to preserve its capacity to protect human rights.  For both human rights and the restrictions imposed on them stem from the same source, and reflect the same values. Even so, there are restrictions on the extent to which human rights may be limited. These limitations are based on the need to protect human rights. See CA 6821/93 United Mizrahi Bank v. Migdal [28], at 444.

51. The balancing of conflicting interests and values, including values related to religious feelings and religious lifestyle, ought to be principled, or definitional.  The balancing ought to be based on a generalization that also allows for the resolution of future cases. In the balancing process a “rational principle” ought to be formulated. HCJ 73/53, supra. [21], at 881 (Agranat, P.). The balancing must reflect a “substantive criteria, which is neither paternalistic nor accidental, the nature or direction of which cannot be assessed." See FH 9/77 Israel Electric Company v. “Ha’Aretz” Newspaper Publications [29], at 361. (Shamgar, J.) 

52. As the balancing between conflicting values and interests is not conducted with scientific tools, the weight that must attach to the various interests and values is, by definition, not exact.  Thus, there are certain situations where there are different ways of balancing between the conflicting interests and values, and there is more than one reasonable decision.  A “zone of reasonableness” is created, within which a number of different decisions will be considered reasonable. See HCJ 389/80 Dapei Zahav v. Broadcasting Authority [30]; HCJ Lugassy v. Minister of Communications [31], at 454; HCJ 341/80 Moshav Beit Oved v. Traffic Controller [32], at 354; HCJ 910/86 Ressler v. Minister of Defense [33]. Any alternative within the “zone of reasonableness” is considered reasonable. In such situations, the choice between the various alternatives will be made by the relevant authority.  It is endowed with the authority to select the alternative that appears appropriate, from among the different alternatives. As I mentioned in HCJ 953/89 Indoor  v. Mayor of Jerusalem [34], at 694:

Applying the general normative criterion “near certainty of serious injury” to the circumstances of a concrete case may, quite naturally, give rise to difficult cases.  One mayor may decide that there is near certainty of serious injury. Another mayor, using the same criterion, may decide the injury is not serious or that possibility of its occurrence does not reach “near certainty.” There may be a variety of possibilities, all included within the parameters of reasonableness, which reflect the legal exercise of the said criterion. The choice between these alternatives will be made by the competent authority—not the Court.

And so, when the authority in question is the legislature—the Knesset—the choice between alternatives found within the “parameter of reasonableness” is left to the legislature’s discretion. The choice is in the legislature’s hands and not the Court’s. Similarly, when the authority in question is the executive branch, the choice between the alternatives within the parameters of reasonableness rests with the executive, not the Court. This conclusion is derived from the principle of separation of powers. Indeed, while the Court is responsible for maintaining this separation, it is not charged with selecting the particular legal alternative within the "zone of reasonableness." In consequence, it does not ask itself which of the legal alternatives it would have chosen had it been empowered to do so. To the extent that each of the alternatives is legal, it is irrelevant that the Court may have chosen a different alternative were it vested with the requisite authority. Ressler [33], at 506. A decision made by the executive branch may be declared illegal if it falls outside the zone of reasonableness.  Every decision within the zone, however, is legal and the Court will not strike it down. The area of this zone is to be determined by the Court.   

53. “Balance” is a metaphorical concept.  When a judge balances between conflicting values, he operates on the normative level. The concept of “balancing” is premised on the notion that:

not all principles are of identical significance in society’s eyes. Thus, in the absence of legislative direction, the Court must assess the relative social importance of the different values. Just as there is no person without a shadow, so too, there is no principle without weight. Balance on the basis of weight necessarily implies a social assessment of the relative importance of the different principles.

HCJ 14/86 Laor v. The Film and Play Review Board [35], at 434. Hence, “weight” attaches to social norms, reflecting their relative social importance. The “weighing” process is a normative act, intended to endow the various data with a place within the legal system and establish their social value, within the overall fabric of social values.” HCJ 6163/92 Eizenberg v. Minister of Construction and Housing [36]. To this end, Justice Shamgar was correct, in FH 9/77 supra. [29], at 361, in pointing out that:

The process of placing competing values on the balancing scales describes the interpretative starting point, but does not establish criterion or value weights to assist in performing the interpretative task.

It follows that a standard for balancing between the need to preserve freedom of movement and the need to protect religious sensibilities must be found. 

The Balancing Standard

54. In the wake of the adoption of the Basic Laws regarding human rights, the accepted criteria for balancing is the standard stipulated in the limitation clause of sec.8 of the Basic Law: Human Dignity and Liberty:

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 that is required.

For our purposes, the relevant question is whether the order issued by the Traffic Controller, by virtue of which Bar-Ilan Street was partially closed to traffic on Sabbath eve and day, is commensurate with the values of the State of Israel, whether it was enacted for a proper purpose and whether the infringement of the freedom of movement does not exceed that which is required. We are permitted to employ this standard even though the order in question was issued under the authority of the Traffic Ordinance [Revised Version]-1961, which is protected by the rule upholding the validity of laws in effect prior to the adoption of the Basic Law. See Basic Law: Human Dignity and Liberty, § 10.  Even so, all statutes must be interpreted in the spirit of the Basic Law, as I noted in FH Cr. 2316/95 supra. [14], at 653:

The Basic Law’s constitutional status is projected on all areas of Israeli law. It does not overlook existing legislation, which is also a part of the law of the State of Israel. The constitutional aura projected by the Basic Law influences all areas of the Israeli Law, necessarily affecting the old law as well. Admittedly, the validity of existing law is retained, as the Basic Law’s aura is projected less intensely on these, as compared to the new law. Thus, while the latter may be struck down if it contradicts a provision of the Basic Law, it cannot be invalidated.  However, while the old law is constitutionally protected from being struck down, it is nonetheless not immune from being interpreted anew. There is no distinction between old and new law with respect to the interpretative influence of the Basic Law. Any administrative discretion conferred by existing law must be exercised in the spirit of the Basic Law.

Justice Dorner elucidated this point, in HCJ 4541/94 Miller v. Minister of Defense [37], at 138, regarding the interpretation of administrative authority: 

The limitation clause applies exclusively to powers grounded in laws adopted subsequent to the Basic Law’s enactment.  However, by implication, it is appropriate to also apply its principles to the authorities’ duties by virtue of section 11 of the Basic Law, which also applies to powers anchored in pre-existing laws.

Ever since the Knesset enacted the Basic Laws, the interpretation of legislation does not depend on whether the relevant legislation precedes or antecedes the Basic Laws. Likewise, whether the violation relates to rights “covered” by the two Basic Laws or not is equally irrelevant.  A natural connection exists between the constitutional limitation clause and all public law, including human rights not literally “covered” by the Basic Laws.  This is because it has always been our position that legislation includes both general and specific purposes. See HCJ 953/87 supra. [4]; HCJ 693/91 Efrat v. Population Registrar [38]. The general purposes are the values of the State of Israel as a Jewish and democratic state; the specific purposes refer to the specific “proper purpose” specified by the limitation clause. The principle of proportionality, as provided for in the Basic Law, is another expression of the reasonableness standard according to which we generally interpret any piece of legislation. Even previous law must—and has always been—interpreted by the standards of the limitation clause.

We shall now consider the general principles mentioned in the limitation clause. We will then proceed to examine their practical application to the order to partially close Bar-Ilan Street, issued by the Minister of Transportation in his capacity as Traffic Controller.

The Values of the State of Israel

55. The values of the State of Israel are its values as a “Jewish and democratic state.” See the Basic Law: Human Dignity and Liberty, §1.  It appears beyond dispute that consideration of religious sensibilities is commensurate with the values of the State of Israel as a Jewish state.   Indeed, a Jewish state is sensitive to the religious feelings of every one of its citizens. This is true, a fortiori, when these feelings are connected to the Sabbath itself. Sabbath observance is a central value in Judaism. The fourth of the Ten Commandments, the Sabbath constitutes an original and significant Jewish contribution to the culture of mankind. See 31 The Jewish Encyclopedia, [107], under The Sabbath, at 422.  It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul, for the Sabbath comprises the very essence of the Judaism’s nature. Over the generations, throughout its blood-soaked history, our nation has sacrificed many of its children in the name of the Sabbath.

56. Is it consistent with democratic values to restrict human rights for the purpose of protecting religious feelings?

The answer to this question is quite complex. Taking into account human feelings, including religious feelings, as grounds for restricting human rights is particularly problematic under the democratic conception See R. Cohen-Almagor, Limitations of Tolerance and Freedom—Liberal Theory and the Struggle Against Kahanism (1994). In HCJ 230/73 supra. [10], at 119, Justice Etzioni correctly referred to this matter as “a minefield,” emphasizing that:

The concept of “public feelings” has broad connotations and the subject itself is particularly sensitive.

Thus, democracy finds itself in a dilemma when broaching the issue of whether the desire to protect human feelings can justify infringing on human rights. Indeed, democratic considerations seem to pull in opposite directions. On the one hand, protecting human feelings is natural to the democratic system, for society exists in order to give expression to these. This is the principle of tolerance, a basic tenet of democratic theory, vital to a pluralistic democracy. It therefore “constitutes a social objective in its own right, its realization incumbent upon any democratic society." CA 294/91 [19]. I dwelt on this point in CA 105/92 supra. [20], at 211, stating:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

In HCJ 257/89 Hoffman v. Appointee over the Western Wall [39], at 354, President Shamgar adopted a similar view, holding:

The sons and daughters of a free society, in which human dignity is a hallowed value, are all called upon to respect the individual’s personal religious feelings and his human dignity. This must be based on tolerance and the understanding that personal religious feelings and their expression vary from one individual to another.

An enlightened society also respects the beliefs and views of those who devotedly and passionately identify with what may not necessarily be the opinions shared by the average citizen. In that sense, understanding the other is more important than self-understanding. Thus, although the imperative “know thyself,” which is borrowed from a cultural tradition not our own, merits respect, it cannot replace tolerance, as expressed in Hillel's famous maxim in the Talmud: “Do not unto the other that which is hateful unto you." Tolerance is not a mere slogan for the appropriation of rights, but rather a criterion for recognizing the rights of others.

In HCJ 806/88 supra. [9], at 30, President Shamgar, addressing the tension between freedom of expression and offense against the listener’s feelings, wrote:

Tolerance must not give license to offend the religious sensibilities of the other.  It can even be said that a serious violation of religious feelings is the antithesis of tolerance, for the tolerance is intended to nurture and promote freedom of expression, rather than to violate and suppress religious feelings. Mutual tolerance between people with different values and beliefs is a basic cornerstone on which a free democratic society is premised.

Indeed, a democratic society is one which takes into account each and every individual’s feelings. Democratic values give expression to “an individual’s personal-emotional feelings and human dignity." CA 294/91 supra. [19], at 481 (Shamgar, P.). Furthermore, a democratic society is prepared to recognize that rights—such as freedom of expression or worship—must be restricted when allowing them to be fully realized would harm human life or physical integrity. Thus, for instance, we recognize the possibility of limiting the freedom to protest if it is nearly certain that allowing the demonstration to occur threatens physical harm, either to participants or to bystanders. See HCJ 153/83 supra. [22]. A democratic society, which is prepared to restrict rights in order to prevent physical injury, must be equally sensitive to the potential need for restricting rights in order to prevent emotional harm, which, at times, may be even more severe than physical injury. A democratic society seeking to protect life, physical integrity and property, must also strive to protect feelings.

57.  On the other hand, a democratic system prioritizes human rights above all else. Democracy is not merely formal democracy—the “rule book conception,” according to which decisions are left to majority will. Rather, democracy is substantive—the “rights conception," according to which the majority is precluded from infringing on human rights. See R.M. Dworkin, A Matter of Principle 11 (1985) [104]. Thus, substantive democracy’s need to protect and preserve human rights gives rise to a familiar dilemma, namely, whether it is at all possible to infringe on human rights in order to consider human feelings, themselves being harmed by the exercise of particular human rights. Indeed, the exercise of a right, by its very nature, risks offending another’s feelings. However, recognizing offensiveness as grounds for restricting human rights may pave the way for undermining human rights entirely. Consequently, a democratic society must be most careful in recognizing the legitimacy of infringing on human rights for the purpose of protecting feelings. I noted this in, HCJ 953/89 supra, [34], at 690, a case dealing with the possibility of restricting freedom of expression in order to protect the feelings of a segment of the population:

If we were to restrict freedom of expression each time that feelings were hurt, freedom of expression would eventually disappear. Expression, by its very nature, risks offending. This being the case, if every offended feeling were to justify infringing on freedom of expression, in the end the latter would lose all meaning.

Clearly, communal life in a democratic society, by its very nature, requires some openness to offense in order to realize human rights.  The principle of tolerance, by virtue of which consideration for feelings arises, itself gives rise to the requirement that one whose feelings are offended be tolerant. “This is the other side of mutual tolerance, necessary in a pluralistic society." HCJ 549/75 Noah Films v. The Film and Play Review Board at 764 [40] (Vitkon, J.). Indeed, "[t]olerance and patience are not one-way norms, but broad, multi-dimensional imperatives…” Hoffman [39], at 364 (Shamgar, P.). I insisted on this point, with regard to freedom of expression and offensiveness, in HCJ 806/88 supra. [9], at 38, noting:

A democratic society, by virtue of its very nature and substance, is premised on tolerance for differing opinions. A pluralistic, tolerant society is the singular force permitting communal life and co-existence. Hence, each and every member of society accepts the "risk" of their feelings being somewhat offended as a result of the free exchange of ideas. In effect, a society based on social pluralism must allow for the free exchange of ideas even if this risks offending those who may not agree with certain views. The regime’s very foundation, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended. 

As to the exercise of freedom of expression which infringes upon religious sensibilities, I stated, in HCJ 806/88 supra. [9], at 39:

It is only natural that religious conceptions are intrinsically related to individual consciousness. Indeed, feelings are liable to be hurt since a contradictory religious world-view is not merely an intellectual position with which one happens to disagree. Thus, the atheist is likely to offend the believer. Proponents of opposing religious views are likely to offend one another. This is a fact of life that a democratic society must accept. It is particularly differences of this nature that unite us around what we have in common. As this the only way that proponents of differing religious views can co-exist, suppressing the offensive is not the solution… Nor is suppressing all opposing views the solution. Doing so would only serve to stifle the human spirit.

And so, in a democratic and pluralistic society such as our own, there is no choice but to “absorb” offensiveness. In a democratic society, endeavoring to foster tolerance, there is no substitute for tolerance, even in the face of that which offends, as a means for preserving human rights. "The regime’s very substance, as a democratic regime, requires a certain exposure to the risk that some members of the public may be offended.” HCJ 806/88 supra. [9], at 38. This is the law regarding offensiveness in general, and regarding religious feelings in particular.

58. How can a democratic society escape this dilemma? How do we resolve the complications flowing from the fact that tolerance, which underlies the democratic conception, simultaneously justifies both protecting rights and infringing them? It appears to me that the answer lies in our duty to recognize a certain “threshold of tolerance” regarding hurt feelings, which every member of a democratic society accepts as part of the social contract upon which democracy is predicated.  This being the case, only when an offense exceeds this “threshold of tolerance” will restricting human rights in a democratic society be justified. As I noted in HCJ 953/89 supra. [34], at 690:

A democratic society, striving to protect both freedom of expression and the public’s feelings, must establish a "threshold of tolerance." Only offense that exceeds this threshold can justify infringing the freedom of expression.

This case dealt with the relationship between freedom of expression and offense to the public’s feelings. A similar approach should be adopted with respect to infringements of other human rights. Clearly, the “threshold of tolerance” is not uniform, but rather a function of the right and infringement in question, as Justice Zamir stated in HCJ 7128/96 supra. [11], at 521:

The threshold of tolerance for feelings, is neither set nor identical in every situation. The threshold depends, inter alia, on the identity of the conflicting right. For instance, the threshold may vary depending on whether the right in question is a basic right, such as freedom of expression, or a material, financial interest. Thus, while the threshold can be quite high if protecting feelings requires infringing the freedom of expression, it may be lower regarding infringements on property. In effect, the threshold shall be set in accordance with the balance between clashing interests in the circumstances, reflecting the relative weight, that is to say the social importance, of the interests in question.

And so, it is possible to infringe human rights for the purpose of protecting feelings—particularly religious feelings and lifestyle—in a society with democratic values, provided that the harm exceeds the threshold of tolerance accepted in that society. Quite naturally, the “threshold of tolerance” varies from one democratic society to the next. This being the case, while it is possible to learn from the experiences of other democracies, the utility of such comparisons is rather limited. Thus, for instance, the stricter the separation between religion and state under a given system, and the more that the rights are set out in more “absolute” terms, the more likely that such a system will prefer human rights to human feelings. Conversely, the more permeable the boundaries between religion and state, and the more a legal culture is predicated on a “relative” conception of human rights, the greater significance it will attach to feelings as a proper ground for limiting human rights.

Our society is unique. Consequently, the solutions that we must seek are undoubtedly equally unique, or “Israeli-style,” to use Justice Cheshin’s turn of phrase in Meatrael [6], at 506, regarding the separation between religion and state in Israel. Similarly, addressing the relationship between store closures on the Sabbath, because of offense to religious sensibilities, and the harm to public order that such causes, Justice Berenson wrote in Crim. A 217/68 supra. [12], at 364:

I do not know how these matters are resolved in other countries. It is, however, reasonable to assume that each country seeks a solution suitable to its own needs that, on the one hand, is not estranged from the religious values to which its citizens adhere yet, at the same time, promises to provide the necessary services that the public requires.

And so, in setting the “threshold of tolerance,” it is incumbent upon us to consider the substance of the right being infringed, the degree of offensiveness and the probability of the harm. Let us now turn to these principles.

The Right’s Substance

59. How does the substance of the right influence the possibility of infringing it in order to protect religious feelings? Would it not be accurate to assert that all rights are of equal status? The accepted approach—in Israel and abroad—regarding the protection of human rights is that not all rights are of equal status. Is the right to human dignity not different from the right to property? Even within the confines of a given right, various levels of protection may be allotted. Thus, for instance, the protection offered political expression is superior to that allotted commercial expression. See HCJ 606/93 Kiddum Yezumot (1981) v. Broadcasting Authority [41], at 24.

60. This being the case, our concern is with a complicated matter, best left to evolve according to our own legal system’s experience. For the purposes of this petition, it is sufficient that we establish that freedom of movement—the right being violated—is one of the most basic rights. This is true in Israel and in other legal systems as well.  Discussing the “citizen and foreigner’s freedom of movement,” Justice Silberg stated, in HCJ 111/53 Kaufman v. Minister of the Interior [42], at 536, that this right is:

A natural right, recognized as self-evident in every country boasting a democratic regime.

These words ring especially true with regard to freedom of movement inside the country itself. Indeed, the freedom to travel within the country’s borders is generally understood as being of greater constitutional import than the freedom to travel abroad. See Dahar [23], at 708. Freedom of movement within the country’s borders is usually placed on a constitutional plane similar to that of freedom of expression. Hence, for example, in Dahar [23], Deputy President Ben-Porat perceived freedom of movement and freedom of expression as “rights of equal value and weight.” Id.

The Extent of the Harm to Feelings

61. As we have seen, a democracy recognizes the possibility of restricting human rights to prevent harm to human feelings. This having been said, not every hurt feeling justifies violating rights; such harm must be tantamount to a severe offense to human feelings. What intensity of harm will justify an infringement on rights will vary from one right to another. Thus, only severe, serious, and grave offense to another's feelings can justify the infringement of a basic human right, such as freedom of expression. These cases shall be so exceptional that they shake the foundations of mutual tolerance. See A. Barak, Freedom of Expression and its Limitations, 40 HaPraklit 5, 18 (1991-1993) [100].

This was our approach to infringements on the freedom of artistic expression. See HCJ supra. [8], at 16; HCJ 243/81 Yeki Yosha. v. The Film and Play Review Board [44]; HCJ 14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 953/89 supra. [34]. This is the law regarding the tension between the freedom of worship of one faith and between offending members of a different stream of belief. HCJ 7128/96 supra. [11]. I believe this approach should apply to the matter here—the balance between freedom of movement within the state and protecting religious sensibilities. As we have seen, substantively, freedom of movement resembles freedom of expression. These rights may be called “superior;” they are granted a "consecrated a place of honor in the temple of basic human rights.” See HCJ 153/83 supra. [22], at 398). Freedom of expression may be infringed to prevent severe, grave and serious harm to human feelings, including religious sensibilities; similarly, it is possible to restrict freedom of movement under such conditions. “The nature of the harm” in question in both instances must be identical. Restricting freedom of movement is only possible when the harm to religious feelings and lifestyle is severe, grave and serious.

62. The severity of the affront to religious feelings is measured by its scope and its depth, as Justice Zamir said in HCJ 7128/96 supra. [11], at 524-25:

The severity of the offensiveness is measured on two levels: its scope and its depth. First, the harm must be broad. It is therefore insufficient that one person or a small group with minority extreme opinions is offended.

Likewise, negligible harm, even if it continues over many years, is insufficient. Both conditions need to be fulfilled: only harm to the religious feelings of a given group that is both broad and deep shall be said to exceed the threshold of tolerance in a manner that may justify restricting another group’s freedom of religious worship.

The Probability of the Harm

63. At times, the severe, grave and serious harm to feelings has already occurred; other times, it is a risk that has yet to materialize. When the latter is the case, does the risk always justify infringing a protected human right? The answer is no. The central status that democracy extends to human rights leads us to conclude that only a very high probability that feelings will be offended will justify infringing on a right. At times, it is held that there must be a “reasonable probability” of the risk materializing. See Crim. A 126/62 Disentzik v. Attorney-General [45]; Neiman [18], at 311.  In other cases, the risk must be “real and serious.” See Dahar [23]. The requisite degree of probability varies from right to right, from case to case, as I noted in HCJ 153/83 supra. [22], at 401-02:

The variety of potential situations necessitates a multi-shaded balancing approach. We must refrain from adopting a single standard for all matters. The reason for this is that conflicting interests are not always of identical normative import and the problems that arise from the different clashes themselves, vary.

In Neiman [18], at 311, I further noted:

In determining which standard of probability should be adopted, an inclusive and universal measure is inappropriate. The matter depends on the magnitude of the various conflicting rights in a given context. The question is always whether the harm’s significance, together with the probability of it materializing, justifies infringing on a citizen’s right.

With respect to anything relating to freedom of expression, our approach is that a mere possibility, or even a reasonable possibility, for that matter, is insufficient for the purpose of violating the public interest. The probability of the harm materializing must be nearly certain or proximately certain. See see HCJ 73/53 supra. [21]; HCJ14/86 supra. [35]; HCJ 806/88 supra. [9]; HCJ 680/88 Schnitzer v. Chief Military Censor [46]. The probability test resembles the standard adopted by this Court regarding violations of freedom of worship and freedom of conscience. See HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Commander [47], at 456; HCJ 2725/93 Salomon v. Jerusalem District Commander [48]; HCJ 7128/96 supra. [11]. In light of the close link between freedom of movement within the country and freedom of expression and worship, it seems to me that this probability requirement must also apply to infringements on freedom of movement within the state. It shall be noted that the “actual and serious suspicion” standard was adopted with regards to violations of freedom of movement outside the country’s borders. Dahar [23], at 708. This having been said, in that same case, Deputy President Ben-Porat emphasized the difference between freedom of movement inside and outside the state’s borders, and narrowed the “actual and serious suspicion” test so that it applied exclusively to traffic crossing the state's borders. “Internal” traffic should be subject to the near certainty test. 

A “Proper Purpose”  

64. As we have seen, human rights are not to be infringed, save restrictions that are prescribed by statute and enacted for a proper purpose, as per article 8 of the Basic Law: Human Dignity and Liberty. The issue of whether a given purpose is deemed to be proper is ascertained on two levels: the first examines the purpose’s content; the second examines its necessity. On the first level, a given purpose is deemed to be proper if it reflects a social objective, which is sensitive to human rights. Likewise, a purpose is said to be proper if it is intended to fulfill general social goals, such as a broad social policy or preserving the public interest. See Bank Mizrahi [28], at 434. On the second plane, a purpose is deemed reasonable if the need to fulfill it is important to society and to the state’s values. The degree of importance is likely to vary according to the substance of the right that is violated. Thus, for instance, American law distinguishes between three levels of rights. To this effect, freedom of speech, voting rights, freedom of movement and the right to equality are found at the highest level. As these rights are deemed fundamental, only a purpose endeavoring to fulfill a compelling state interest, pressing public necessity, or substantial state interest shall properly infringe them. A lower standard is required with respect to other rights. See 3 A. Barak Interpretation in Law: Constitutional Interpretation [93], at 522. For its part, Canadian law requires that the highest standard be applied to all matters involving human rights. We need not take a stance regarding whether Israeli law should distinguish between different levels of scrutiny. Suffice it to say that, as in foreign law, infringements on freedom of movement—a freedom at the pinnacle of human rights in Israel—requires the highest of standards.

The “Least Restrictive Means”

65. Human rights may be infringed only if the means used do not exceed the necessary. While the “proper purpose” test examines the objective, the “least restrictive means” standard examines the means employed for achieving the purpose. It is a proportionality test, employed in Israel for examining administrative and constitutional discretion. See HCJ 5510/92 Turkeman v. Minister of Defense [49]; HCJ 987/94 Euronet Kavie Zahav (1992) Ltd. v. Minister of Communications [50]; HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport [51]; See also Z. Segal, Grounds for Disproportionality in Administrative Law, 39 HaPraklit 507 (1990-91) [101]; I. Zamir, Israeli Administrative Law as Compared to Germany's, 2 Mishpat U'Memshal 109 (1994-95) [102]. In HCJ 3477/95 supra. [51], at 11-12, I noted that the issue raised by the “proportionality” test is:

Whether the means employed correspond to the objective they seek to realize. Proportionality implies that the means need to befit the goal that is pursued. The principle of proportionality comes to protect the individual from the regime and to prevent excessive infringements on individual freedom. As such, the means that the regime employs must be carefully selected in order to bring about the purpose’s realization.

66. In Israel as in foreign law, the proportionality test is three- pronged. See HCJ 3477/95 supra. [51], at 12; Bank Mizrahi supra. [28], at 436. The first prong requires a rational connection between the means and objective. Thus, the means employed must be precisely “cut out” to fulfill the desired goal and rationally lead to its fulfillment—“the rational connection test.” The second prong prescribes that the means in question infringe on the individual as little as possible. This is to say that the means are said to be proper only if it is not possible to achieve the objective in a different fashion, whereby the infringement would be minimized—“the least restrictive means test." The third prong provides that the means selected are inappropriate if the infringement on individual rights is not related to the benefits said to flow from the desired objective—the “restricted proportionality test." As Professor Zamir, see Zamir supra. [102], at 131, explained:

The third prong refers to the proportionality itself. According to this prong, it is insufficient that the authority select appropriate and moderate means. Instead, the authority must weigh the public benefits of achieving the goal against the harm caused the citizen by the means’ application. The relationship between the benefit and the harm, and indeed between the means and objective, must be proportional.

67. Considering the feelings of one segment of the population may harm other segments. For our purposes, considering the religious sensibilities of Ultra-Orthodox Jews living in the neighborhood of Bar-Ilan Street infringes the freedom of movement of others. The proportionality test provides that infringements on the rights and interests of citizens seeking to travel on Bar-Ilan Street on the Sabbath must be proportional. In other words, the rights of these individuals are not to be infringed beyond what is necessary to safeguard the religious feelings of other individuals. The question of determining the appropriate means—and when infringing on human rights surpasses the necessary means—is examined according to the three-pronged test.

Summarizing the Normative Framework

68. To summarize: consideration of feelings, including religious sensibilities, as proper grounds for infringing on human rights is most problematic from the point of view of a democracy. Democracy finds itself trapped in an internal conflict, which it must naturally address with great care. The Israeli solution is the following: considering feelings as grounds for restricting human rights is only permissible when the following three conditions are met. First, taking feelings into account conforms to the specific objective underlying the legislation. Second, it is permitted to take religious feelings into account only if doing so does not involve any religious coercion. Third, religious feelings may only be considered when the harm to these is so severe that it is said to exceed the proper threshold of tolerance. This threshold shall vary from right to right. Freedom of movement, specifically, can be restricted if such harm surpasses the threshold of tolerance. Several conditions must be met for this to be true. First, the harm to religious feelings and the observant lifestyle must be severe, grave and serious; second, the probability that the harm will materialize must be nearly certain; third, a substantial social interest must underlie the protection of religious feelings; fourth, the extent of the harm to freedom of movement must not exceed the necessary. This is to say that the least restrictive means are to be selected from amongst the available options.

Having set out this general normative framework, let us now examine the specific case at bar.

From the General to the Particular

69. Bar-Ilan Street’s partial closure is based on three pieces of legislation. The basic authority to regulate traffic is set out in section 70(1) of the Traffic Ordinance [Revised Version], which empowers the Minister of Transportation to enact regulations for:

Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others

The Traffic Regulations were enacted by virtue of this authorization. Regulation 17(a) provides:

The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

As we have seen, the Minister of Transportation, under section 42 of the Basic Law: The Government, assumed the powers of the Traffic Controller. The Minister’s powers cannot exceed those of the Traffic Controller. In his capacity as Traffic Controller, the Minister of Transportation instructed the Local Traffic Authority to close parts of Bar-Ilan Street to traffic on Sabbaths and Jewish holidays during prayer times in order to safeguard the religious sensibilities of the Ultra-Orthodox residents in the area. The order in question was handed down subsequent to the Minister of Transportation’s determination that there is an alternate road to Bar-Ilan Street.   

The Issue of Authority

70. Our starting point is that the Traffic Controller is, in principle, empowered to order that a street be closed to traffic on Sabbaths and Jewish holidays. With respect to local streets situated in Ultra-Orthodox neighborhoods this is undisputed. In principle, the Traffic Ordinance [Revised Version] does not distinguish between various sorts of streets, roads or drives, in all that concerns the Traffic Controller’s authority to regulate traffic therein. As such, the type of road does not affect the authority to order its closure per se, it only influences the exercise of discretion regarding its potential closure.

The Issue of Discretion

71. Did the Minister of Transportation in his capacity as Traffic Controller properly exercise his authority? Our analysis begins with the fact that the Traffic Controller must take into account traffic considerations. It is incumbent on the Controller to ensure that residents be able to reach their homes and be able to travel from point A to point B in a given neighborhood. Moreover, he must ensure that inter-city roads and city entrances remain open to traffic. Were it to become clear that no proper alternate route to Bar-Ilan Street is available, it would not be possible to close it off to traffic on Sabbaths and Jewish holidays, regardless of the harm caused to religious feelings and lifestyle.

72. However, rather than weighing traffic considerations, the Minister of Transportation, in his capacity as Traffic Controller, considered the residents’ religious feelings.  Was he permitted to do so? Clearly, religious matters cannot be the dominant consideration for, as we have seen, the dominant considerations must be traffic-related. However, in view of my assumption that the alternate route is reasonable from a traffic perspective, does it then become possible to take into account secondary considerations, such as those related to safeguarding religious feelings and lifestyle? The answer is in the affirmative. Although traffic related considerations are central, they are not absolute. To this effect, the Court has held that free competition, for instance, was a secondary consideration that could properly be taken into account. See HCJ 1064/94 Computest Rishon Le Tzion (1986) v. Minister of Transportation [52]. Thus, the issue boils down to the following questions: is the religious factor a relevant secondary consideration? If so, what is its weight? Can it exceed the inconvenience associated with rerouting traffic and the two extra minutes that doing so requires? Is this factor sufficiently weighty so as to outweigh the traffic difficulties caused the secular residents in the area, whose freedom to travel is restricted? The answer, needless to say, is far from simple. It is incumbent on us to examine the rights and interests struggling for primacy. Subsequently, we shall proceed to examine whether, under the circumstances, the Minister is authorized to weigh all these rights and interests. Finally, we shall examine whether the weight that the Minister attached to them was appropriate and whether his decision is within the zone of reasonableness.

The Interests and Values Struggling for Primacy

73. Which interests and values clash in the case at bar? On the one hand, we have society's interest in preventing offense to the sensibilities of the local religious population. The population in question, residing immediately around Bar-Ilan Street, is Ultra-Orthodox. Seven synagogues are found along Bar-Ilan Street.  The area boasts over one hundred synagogues and institutions for Torah study. On the Sabbath, the neighborhood residents customarily attend synagogue, Torah lessons, visit rabbis, family and friends who live in the adjacent Ultra-Orthodox neighborhoods. To these residents, the desecration of the Sabbath on Bar-Ilan Street is offensive and infringes their observant lifestyle. Indeed, from their perspective, the offense is both bitter and severe. This is the interest in question on one side of the issue. This having been said, let it be emphasized that I am not convinced that Sabbath traffic on Bar-Ilan Street  infringes the freedom of religion of the residents. These residents are free to observe the religious commandments. Sabbath traffic does not serve to deny them this freedom. Compare HCJ 287/69 Miron v. Minister of Labour [53], at 349. Even so, traffic on the Sabbath does harm the residents’ religious feelings and their observant lifestyle. 

74. On the other hand, we have freedom of movement, to which each citizen is entitled. Freedom of movement is a basic right, guaranteed to each and every Israeli. See Dahar [23], at 708; HCJ 72/87 Atamalla v. Northern Command [54]; Crim. Motion 6654/93 Binkin v. The State of Israel [55]. It is entrenched in the Basic Law: Human Dignity and Liberty. It is derived from the principle of human dignity, which is enshrined in our constitution. Compare Elfassy 6 BferGE (1957) [90]. The individual’s freedom to travel "flows from man’s intrinsic freedom as such, and from the state’s democratic character.” HCJ 3914/92 Lev v. The Tel-Aviv/Jaffa District Rabbinical Court [56], at 506. Each individual in Israel is granted the constitutional right to travel freely. “This constitutional right is self-sufficient, and can even be implied from human dignity and liberty.” HCJ 2481/93 supra.[27], at 472. The significance of freedom of movement is the freedom to travel freely on streets and roads. HCJ 148/79 supra. [24]. It is the freedom to “come and go”—“la liberté d’aller et de venire.” And so, closing Bar-Ilan Street to traffic on the Sabbath—either a full or partial closure—infringes the public’s constitutional right to freedom of movement. Moreover, preventing the free-flow of traffic on city streets injures the public interest in the free-flow of traffic. As Justice Berenson noted in Crim. A 217/68 supra. [12], at 363:

 

The use of private vehicles is increasingly indispensable to the economy and to satisfying collective and individual social and cultural needs. This is particularly true on the Sabbath and holidays, when public transportation is generally unavailable.

Beyond this, closing Bar-Ilan Street to traffic on the Sabbath both inconveniences and financially harms those members of the public wishing to travel along Bar-Ilan Street on the Sabbath. It harms secular Israelis seeking to use Bar-Ilan Street as a traffic artery connecting various Jerusalem neighborhoods. It particularly harms the secular residents residing in Ultra-Orthodox neighborhoods surrounding Bar-Ilan Street. For them, Bar-Ilan Street serves as a traffic artery permitting them to access their lands directly. Closing Bar-Ilan will compel these members of the public to walk from one end of Bar-Ilan Street to the other—a distance of one kilometer and two-hundred meters—in order to reach their homes. Their family and guests will be forced to do the same. Surely, in the end, part of the secular public will revolt against what they perceive as religious coercion. Truth be told, in the League [1] case, Deputy President Agranat pointed out that the order to close a segment of a street to traffic on the Sabbath "in no way…constitutes religious coercion whatsoever, as the order did not compel petitioner number two to act in a way that runs counter to his views regarding religion.” Id., at 2668; Baruch [2], at 165. To my mind, however, this matter is far from simple. Be that as it may, see 1 Rubinstein supra. [92], at 177, note 14, the subjective sensation that one is being religiously coerced is clearly discernable among some members of the public who are prevented from circulating on Bar-Ilan Street during the hours that it is closed to traffic.

75. Employing legal concepts, how are we to characterize the clashing interests here? We have already seen that freedom of movement on the Sabbath is a constitutional right, which is infringed by street closures on that day. How is the interest infringing on this right to be characterized? It does not have the status of a human right. As noted, the offense to religious sensibilities and the observant lifestyle caused by motor traffic on the Sabbath does not infringe the freedom of religion of the observant public. We are not dealing with a horizontal clash between two conflicting human rights. However, the interests of the observant residents in safeguarding their sensibilities and way of life forms part of the public interest in preserving the public peace and public order. See HCJ 230/73 supra. [10], at 121.

In CA 105/92 supra. [20], at 205, I highlighted this public interest:

The public interest, with which the various human rights often clash, is varied. The expression "public interest" encompasses and includes a rainbow of public interests, with which organized society is concerned. As such, public security and welfare are both included, as is the public trust in public authorities. Similarly, the public interest in the recognition of individual rights and the preservation and promotion of tolerance, among citizens and the authorities and the citizens, is included. The rule of law, the independence of the judiciary and the separation of powers are all clearly public interests.

Likewise, in HCJ 14/86 supra. [35], at 430, regarding the need to balance between freedom of expression and public order, I noted:

Public order is a broad concept that is not easily defined, and whose meaning varies depending on the context. In this context, threats to the state’s existence, its democratic regime, as well as public welfare, morality, religious sensibilities, a person’s right to reputation, and the need to guarantee fair legal proceedings are all included under the rubric of public order.

It appears, therefore, that taking into account religious sensibilities and the observant lifestyle forms part of both the public interest and public order. See also HCJ 806/88 supra. [9[], at 29. At the same time, however, the need to preserve the free flow of traffic on Sabbaths and to allow members of the public—whether the public at large or local residents—to travel freely constitutes part of the public interest and of the public order. As such, both clashing interests can be described as falling under the rubric of the "public interest."

The Relevance of the Clashing Interests

76. Is the Minister of Transportation authorized to weigh all clashing interests and values? More specifically, is the religious factor—as part of the public interest—a relevant consideration in the context of the Traffic Controller’s exercise of discretion? As we have seen, offending feelings in general, and religious sensibilities in particular, is a relevant consideration, provided that it does not constitute religious coercion. This is generally the case. Is this consideration relevant with regard to the Traffic Controller’s authority? In my view, the answer is in the affirmative. The approach which perceives the religious factor as a “general consideration” which may be taken into account is equally applicable with regard to the Traffic Controller’s authority to close Bar-Ilan Street. In exercising this authority, the Traffic Controller must consider the interests of all those who use the street, and who are affected by its closure. This includes the religious interests of those affected by regulations respecting Bar-Ilan Street.

In the League [1] case, which dealt with a street closure for the purpose of preventing disturbances to prayers in a nearby synagogue, Acting President Agranat wrote:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

Id.. at 2668. In a similar vein, in Baruch [2], at 163-65, Acting President Landau noted:

The petitioners’ submission that the respondent exceeded his authority, as per the Traffic Ordinance and Traffic Regulations, by taking into account the religious public’s sensibilities is not convincing…

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic

For our purposes, just as motor traffic along Jerusalem’s King George Street disrupts prayers at the Yeshurun synagogue, vehicles on the segment of HaShomer street, in the heart of Bnei’ Brak, also disturb the Sabbath rest of the local residents in that clearly Ultra-Orthodox area. Safeguarding this interest is not tantamount to religious coercion. Instead, it is merely extending protection to the observant lifestyle.

Hence, the Traffic Controller—for our purposes, the Minister of Transportation—was authorized to take into account the offense to religious sensibilities and the observant lifestyle of the local residents, living around Bar-Ilan Street, as a relevant consideration in exercising his discretion with respect to the partial closing of that street to traffic on Sabbaths and holidays. The key question, however, is how to balance between the relevant religious consideration and the other conflicting considerations. It is to this issue that we now turn.

The Balance Between the Relevant Considerations

77. The key issue in the petition at bar relates to the balance between the freedom of movement and the religious consideration, as well as all other relevant considerations. It is incumbent on the Minister of Transportation to balance safeguarding the religious sensibilities of the local residents against the right of each member of the public to travel on Bar-Ilan Street every day of the week, as well as the public interest in keeping the street open year-round. Acting President Agranat emphasized this point in League [1] at 2668, noting:

The legislature’s objective was to empower the Central Traffic Authority to regulate traffic on city streets…to this end, the vehicles’ proprietors’ and pedestrians’ interest in using public roads for their various needs as well as the legitimate needs of other segments of the public, particularly those residing in the houses adjacent to public roads and those using them were considered. As the District Attorney has argued, the problem to which the Central Traffic Authority must consider in such circumstances is the need to strike a proper balance between these interests.

The Central Traffic Authority is under a duty to address every concrete case in light of the particular circumstances, taking into account all the interests that the street’s closure may affect.  In the end, the problem is one of measure and degree.

In a similar vein, Acting President Landau emphasized the need to balance between conflicting interests in Baruch [2], at 165:

It is necessary to strike a balance between the conflicting interests; this is a matter of measure and degree. It is but one manifestation of the endless problem of how to reconcile two “camps”—the secular and the Ultra-Orthodox—so that they live in peace in mutual respect, so that neither seeks to "conquer" the other or "triumph" at the other’s expense.

Our case also presents the same balancing conundrum, which arises between conflicting values and interests. No one has so argued that the public interest in preventing traffic from circulating on Bar-Ilan Street on the Sabbath is “existential,” and that other interests cannot be weighed against it. Similarly, the view that the public interest in the free-flow of traffic on Bar-Ilan Street on Sabbaths is “existential” and cannot be balanced must equally be rejected.

78. As noted, the proper balance is arrived at through examination of the limitation clause of the Basic Law: Human Dignity and Liberty. The State of Israel’s values as a Jewish state require us to consider religious sensibilities, and indeed attach significant weight to this factor. The essence of the problem is in the State of Israel’s values as a democratic state. We have seen that, in this context, it is proper to take into account the religious feelings of the religious public residing around Bar-Ilan Street, if the Sabbath traffic arrangements aimed at safeguarding these constitute a substantial social need, if allowing traffic to travel on the Sabbath and festivals offends religious feelings in a manner that is severe, grave and serious, and if the probability of this harm materializing is nearly certain. Then and only then does it become possible to say that the harm to religious sensibilities and the observant lifestyle of the Ultra-Orthodox residing around Bar-Ilan Street exceeds the threshold of tolerance which is acceptable in a democratic society.  Is this the case here?

79. To my mind, the harm to the Ultra-Orthodox public’s religious feelings ensuing from the free-flow of traffic on the Sabbath in the heart of their neighborhood is severe, grave and serious. Indeed, to the religious Jew, the Sabbath is not merely a list of the permitted and the forbidden. Rather, the observant Jew perceives the Sabbath as a normative framework, intended to create a particular atmosphere. Our Rabbis, of blessed memory, described this special atmosphere as the additional soul which man is granted upon the entrance of the Sabbath, which leaves him as it exits. Babylonian Talmud, Tractate Beitza 16a, [110]. This rest is intended to bring the routine of daily life to a halt, and relieve man of daily worries. This rest seeks to permit a person to fully dedicate himself to his family and to his most cherished values. Moreover, rather than merely a private or family affair, the Sabbath is a community matter. Thus, an observant community’s expectation is that the Sabbath rest is not restricted to the private domain of its members, but that it will envelop the public realm as well. With the coming of the Sabbath comes rest, not only to one’s backyard but throughout the neighborhood. The hustle and bustle of daily life is replaced by prayer, family walks and the like. A crowded street that traverses the heart of the neighborhood, with the sounds of honking and engines, stands in stark contrast to the Sabbath atmosphere, as the majority of the local residents understand it. In effect, severe, grave and serious harm to a religious Jew observing the Sabbath ensues upon encountering traffic on one’s way to synagogue or to a Torah institute. As usual, the burden of proving the severity of the harm is on the person claiming to have been injured. In the case at bar, this has not been the subject of dispute and was proven in the various affidavits submitted to the Court.

80. It should be emphasized that the excessive harm to religious feelings here is a result of the fact that Bar-Ilan Street is situated in the heart of the Ultra-Orthodox neighborhoods. Prior the Six Day War, Bar-Ilan Street was found at the periphery of the religious neighborhoods. Traffic on the Sabbath traveled along the neighborhood's periphery, so that even if religious feelings happened to be offended once in a while, the offense was negligible. The uniqueness of our case is a function of Bar-Ilan’s location in the heart of the Ultra-Orthodox neighborhoods, so that traffic on Sabbaths causes severe harm to religious feelings. This is also the difference between Bar-Ilan Street and other surrounding streets. While these other streets are also situated next to religious neighborhoods, their location is peripheral and they will therefore remain open to traffic on Sabbaths. The Ultra-Orthodox are offended on those streets also. However that harm cannot be said to surpass the threshold of tolerance expected in a democratic society.

81. The near certainty test is met in this case. Indeed, the severe, grave and serious harm to the religious feelings of the local residents caused by the Sabbath traffic is not a question of probability. It is proven fact. In dealing with the probability of religious feelings being offended as a result of a certain film being screened, in HCJ 806/88 supra. [9], at 41, Justice Goldberg wrote:

The clash between two basic values requires an estimation of the "relative social importance of the various principles" an examination of the probability, force, extent and scope of the harm that one principle causes the other.

The probability test, which ascertains the likelihood of harm, is outside the scope of examination in this instance. There is a need to consider to the probability of the harm as long as we are incapable of establishing the facts. In such cases, it is incumbent on us to estimate the risk of the harm. As such, we accept the "near certainty" test as the proper test respecting the Film and Play Review Board’s authority. In such circumstances, we must estimate the risk that a particular film will endanger the public welfare and whether the level of risk is one of "near certainty."

However, when we can determine ourselves whether a given film offends religious sensibilities or denigrates a person’s reputation, it is not necessary to estimate the likelihood of harm. In such instances, our eyes are capable of seeing and our ears of hearing whether harm of this nature is in fact present.

This is the law in this matter. Beyond "near certainty," absolute certainty was unequivocally proven. It was proven that the religious feelings and lifestyle of the local Ultra-Orthodox residents are in fact severely, gravely, and seriously offended by reason of traffic going through their neighborhood on Sabbaths and festivals.

82. Freedom of movement is not to be restricted absent a “proper purpose.” A purpose is said to be proper if its content and the need it addresses are proper. In my opinion, in terms of content, safeguarding religious feelings and the observant lifestyle constitutes a proper purpose. That conclusion is dictated by the State of Israel’s values as a Jewish and democratic state. It is also prescribed by the special purpose underlying the Traffic Controller’s authority—the religious factor—which although not the sole, or even dominant, objective, is a proper secondary purpose. The most difficult question is whether the need to realize this secondary objective is a “significant social matter.” Mr. Langer, the Acting National Traffic Controller, was initially convinced that the social need to close Bar-Ilan Street on the Sabbath was not significant. It seems to me that, according to an objective standard, the case is borderline. Under these circumstances, there is no basis for interference with the assessment of the Traffic Controller. In effect, had Mr. Langer not changed his original position, there would be no reason to question his decision. Neither is his change of heart, in my view, to be deemed erroneous. Thus, both decisions—whether forbidding traffic along Bar-Ilan Street on Sabbaths or then allowing it—appear to me to be within the zone of reasonableness regarding the need to close the street.

83. Freedom of movement—the right infringed by Bar-Ilan’s closure on Sabbaths—must not be restricted beyond what is strictly necessary. Is this condition met in this instance? This matter is difficult to resolve. This having been said, it appears to me that Bar-Ilan Street’s absolute closure throughout the Sabbath, from beginning to end, is excessive. As the harm to religious feelings and lifestyle is inflicted during prayer times, closing the street beyond those times would infringe the freedom of movement more than is necessary. Indeed, it is incumbent on the authorities to opt for the least restrictive means at their disposal. For our purposes, the least restrictive means would be a partial closure, during prayer times, at which time religious feelings are most offended, rather than imposing an absolute closure. This is undoubtedly the case from the perspective of the secular residents, who would be unable to reach their homes throughout the Sabbath, were an absolute closure to be imposed.

 This having been said, is closing the street to traffic only during prayer hours excessive? To this end, we must distinguish between harm to the interests and values of those secular individuals residing outside the Ultra-Orthodox neighborhoods crossed by Bar-Ilan Street, and the harm caused the interests and values of their counterparts, residing within these neighborhoods. This distinction is vital in light of Bar-Ilan Street’s role as a traffic artery connecting neighborhoods and its providing access to the property of the local residents. 

84. The harm caused to the secular members of the public, residing outside the Ultra-Orthodox neighborhoods serviced by Bar-Ilan Street, who seek to exercise their freedom of movement and right to travel from one end of the city to the other, is not excessive. As pointed out, all that is required of them is a detour, taking no more than two extra minutes. While this is an infringement on their freedom of movement, it is not excessive due to the three following conditions. First, the alternative routes are open to traffic on Sabbaths. Second, Bar-Ilan Street itself is open to traffic on Sabbath, save prayer times. If, in practice, it will not be possible to travel on Bar-Ilan Street at times other than during prayers, the harm to the secular public shall be deemed excessive. Consequently, if the violence on Bar-Ilan Street on Sabbaths will continue during the times that traffic is permitted, this will excessively burden the secular residents’ freedom of movement. Third, Bar-Ilan Street is open to security and emergency vehicles even during the hours that it is closed to traffic. Bar-Ilan Street serves as a traffic artery leading to Hadassa Hospital, located on Mount Scopus. The two extra minutes it takes to arrive through the alternate route are crucial when it comes to saving human lives. The same applies to security vehicles, endeavoring to preserve the public peace. Such vehicles may freely travel along Bar-Ilan Street at all hours.

85. The matter is quite different with regard to the area’s secular residents of Bar-Ilan Street, or those secular members of the public looking to visit family or religious friends living in Ultra-Orthodox neighborhoods. The partial closure of Bar-Ilan Street severely infringes their freedom of movement. The harm is grave as, prior to the closure, secular members of the public, as well as their family and guests, living in the Ultra-Orthodox neighborhoods were able to park their vehicles on Bar-Ilan Street and reach their residences on foot from there. This closure, however, will compel secular residents to park at the northern or southern end of Bar-Ilan Street, and to walk the length of Bar-Ilan. This walk, which is by no means short, does not constitute a reasonable alternative. The alternate routes of Route no. One and Route no. Four are intended to allow traffic to flow from one end of the city to the other. What, however, will become of the secular residing in the Ultra-Orthodox neighborhoods themselves?

86. This question is by no means simple. Closing Bar-Ilan Street to traffic on the Sabbath causes severe harm to the secular residents living in neighborhoods around Bar-Ilan Street. They were also harmed in the past, when the neighborhood's inner streets were closed off, and now, unable to reach their homes, they suffer additional harm. This having been said, the harm in question is narrow in scope as they are perfectly able to travel along Bar-Ilan Street at all hours, save prayer times when the street is closed, including Fridays the Sabbath and holidays.

Is this infringement lawful? Can it not be said that the infringement on the secular residents’ freedom of movement is excessive? Every effort should be made in order to minimize injury to these secular residents. Consequently, it is only appropriate to consider the possibility of granting special permission to the secular residents to use Bar-Ilan Street even when it is closed. Just as security and emergency vehicles are permitted to use the street on the Sabbath, the same possibility should be extended to local secular residents. Undoubtedly, this is the case regarding the physically challenged, see HCJ 5090/96, or those residents whose occupation requires it, such as petitioner number three.

87. In practice, to what degree would the secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan Street be harmed were the street to be partially closed? How many secular residents live in these neighborhoods and how will the street’s partial closure harm them? The evidence before us does not provide a satisfactory answer to any of these questions. Mr. Langer did not examine this matter in drafting his order to partially close the street to traffic. Instead, he relied on the data collected by the Sturm Committee. While the report is in the Court’s possession, we do not have the protocols of the Committee's discussions, nor is there any information regarding the local secular residents—if such information was ever presented to the Sturm Committee. In his decision, the Minister of Transportation relied on the Tzameret Committee’s report, which also does not contain data regarding the secular residents. Responding to our inquiries on the matter, the state informed us that no data respecting the secular residents was in possession of the Minister of Transportation. It emphasized that at no time was the Minister approached by secular residents opposing Bar-Ilan’s closure. The assumption, therefore, was that most local residents were Ultra-Orthodox. Regarding this issue, the petitions before us contradict each other. One petitioner stated before the Court that “there are still numerous secular residents living in the area, such as non-observant elderly couples who are regularly visited by their children on Sabbaths and holidays.” See supra para. 15. In contrast, the petition of the Committee of Tel-Arza and Bar-Ilan Street Neighborhoods stated that “nearly one hundred percent” of the those living around Bar-Ilan Street keep the Sabbath, and that there are less than fifty secular residents in the area.

The Law of Administrative Procedure: Gathering Data and Related Flaws

88. Case law provides that a government decision must be based on and supported by relevant facts. To this end, the authority must gather the relevant data and verify the fruits of its search with extreme care, as noted in HCJ 297/82 Brenner v. Minister of the Interior [57], at 48-49, by Acting President Shamgar:

The decision must always be the product of serious, fair and systematic research…

The decision-making process by the authority must be composed of a number of crucial basic stages. These include the gathering and summarizing of data, verifying the data’s significance—which, in the event of alternative thesis, includes verifying the propositions and ramification of the conflicting thesis—and, finally, summarizing the reasoned decision. This process ensures that the relevant considerations are taken into account, that the arguments submitted are fairly examined, and that the resulting decision will withstand a legal and public critique.

89. What are the ramifications of the government authority’s failure to perform a proper verification? The consequences are a function of the circumstances. Thus, not every violation of proper administrative procedure will result in the administrative decision being struck down. In HCJ 2911/94 Baki v. Director General of the Ministry of the Interior [58], at 304, Justice Zamir wrote:

We must draw a clear distinction between the rule binding the administrative authority and the remedy granted by the Court when that rule is transgressed. The rule is found on one plane and the remedy in another. After the fact, the Court will weigh different considerations than the factors the authority should have weighed.

In a similar vein, in HCJ 2918/93 Municipality of Kiryat-Gat v. The State of Israel [59], at 848, Justice Dorner pointed out:

It is necessary to distinguish between primary rules, guiding the administration’s actions, and secondary rules, regulating the legal results of violating these primary rules and the remedies for such violations.

Indeed, not every flaw causes an administrative decision to be struck down. Generally, only a substantive violation leads to such a result. See HCJ 161/80 San Tropez Hotel Ltd. v. Israel Lands Authority [60], at 711; HCJ 465/93 Tridet v. Local Council for Planning and Building, Herzliah [61], at 635. The effect of a procedural flaw depends on two factors. First, we must ascertain whether the violation of administrative procedure influenced the decision’s content. Second, we must assess what effect striking down the decision will have on individuals and society. See HCJ 400/89 Levitt v. President of the Military Trubunal, Southern District [62], at 711. Thus, Professor Zamir was correct to point out that:

Only a substantive violation of administrative procedure, infringing a legal principle or a human right, is enough to justify the decision’s reversal.

The issue of whether the violation is substantive, which would justify the decision’s reversal, is in every case determined by two considerations. First, whether the violation is likely to have influenced the decision, or, in other words, whether the decision would have been different in its absence. Second, what are the benefits to the parties and society if the decision is struck down.

II Zamir supra.[91], at  683-84.

90. As we have seen, the Minister of Transportation did not make an appropriate factual assessment of the impact of the closure on the secular residents living in the Bar-Ilan Street area. Instead, the Minister related to Bar-Ilan Street as a main traffic artery that did not provide direct access to adjacent land owners, whereas the street also provides direct access to adjacent lands. As a result, the concerns of secular residents living in Ultra-Orthdox neighborhoods who would be harmed by the street’s closure on the Sabbath were not addressed. Let it be noted that the Sturm Committee encountered a similar problem regarding Sabbath and festival street closures in the Har-Nof neighborhood. From an administrative procedural perspective, the Committee acted properly. It called on the secular residents to provide information on their place of residence and mapped out their location. It also marked the roads and access-ways to remain open to the secular residents and their guests. The Minister of Transportation, for his part, did none of these things. Is this flaw substantive? From the perspective of the first consideration—namely, the flaw’s influence on the decision’s content—the flaw in question can surely be said to be substantive. As we have seen, the data regarding the secular residents living in the Ultra-Orthodox neighborhoods around Bar-Ilan Street is completely absent. The flaw is equally substantial from the perspective of the second consideration—the effect of striking down the decision, both generally and specifically. Indeed, striking down the Minister’s decision will preclude the street’s immediate closure. As a result, the severe, grave, and serious harm to the Ultra-Orthodox residents’ religious sensibilities will persist. This however, is inevitable when the freedom of movement is at play, prior to determining an appropriate and factually grounded balance between this right and between harm to religious feelings and lifestyle. 

Additional Arguments

91. Various arguments were raised in written and oral submissions made before the Court. To the extent I have not addressed these arguments in my decision, they are rejected. These arguments do not affect the legal structure of this decision, and they failed to sway my opinion on the matter. 

Conclusion

92. In all that relates to the use of Bar-Ilan Street as a main artery, serving to connect various Jerusalem neighborhoods, the Minister’s decision is within the zone of reasonableness. In contrast, the Minister’s decision is flawed in its failure to address the plight of the secular residents living in Ultra-Orthodox neighborhoods and, as such, must be struck down. There is no alternative save to declare the Minister’s decision ordering the street’s partial closure null and void. It will be incumbent on the Minister to reconsider his policy respecting Bar-Ilan Street’s partial closure, bearing in mind that it is a traffic artery, providing direct access to the adjacent lands.

Additional Comments

The Tzameret Committee

 93. While I did not address the Tzameret Committee’s recommendations in my judgment, this in itself no way reflects my opinion regarding their importance. Indeed, the Committee’s recommendations are most important, and my hope is that they will be seriously considered. The Tzameret Committee was set up as per the Court’s suggestion, based on our understanding that the Sabbath traffic issues in Ultra-Orthodox neighborhoods can only be resolved by way of agreement and compromise.  The problem is both sensitive and grave. It relates to the larger problem of Sabbath traffic in Jerusalem and to religious-secular relations in these matters. These problems, by their very nature, best lend themselves to a social rather than legal solution. Social consensus, based on compromise, is by far preferable to an imposed judicial decision, as President Shamgar noted in Hoffman [39], at 354-55, which dealt with prayer at the Western Wall:

All this leads us down the treacherous road of balancing between conflicting persuasions, convictions and opinions. In this context, it is far better to recall that the exclusive focus on the "miracle cures" that our generation expects to be handed down in Court, is not necessarily the appropriate solution or the desired cure for all our ills. These solutions are imposed and judicially ordered, rather than agreed upon in instances where experience seems to suggest that understanding and discussion between proponents of opposing viewpoints, although at first glance appearing more difficult, is far more fruitful.

While the Tzameret Committee operated precisely in this spirit, a compromise was not reached and a social covenant was not struck. Thus, we rule on the matter for lack of choice. This having been said, the Court cannot adopt the Tzameret Committee’s views in our judicial decision. Our concern is with Bar-Ilan Street’s closure to traffic on the Sabbath. Thus, while permitting public transportation on the Sabbath in a different place is likely to constitute a proper social balance, it is nonetheless irrelevant to reaching a judicial decision. Indeed, not all that is relevant in the social or political sphere is equally relevant in the legal sphere. For instance, the Court itself proposed that the problem of closing Bar-Ilan Street be resolved by opening Yam Suf Street, as a basis for agreement and compromise. While this suggestion may be an appropriate social compromise, it has no any bearing on a judicial ruling. As a social compromise was not successfully reached, our judicial ruling is inevitable. Such a ruling is anchored in relevant considerations exclusively. To this end, the Tzameret Committee’s recommendations are merely of secondary import.

“The Slippery Slope”

94. The following argument was made before the Court: if Bar-Ilan Street is closed to traffic on Sabbaths, even partially, the domino effect will be powerful. Additional traffic arteries will be closed, as will main roads. The entrance to Jerusalem will soon follow suit, as will streets across Israel.

As a judge, it is not for me to provide a political response to these concerns. My response can only be legal, and it is the following: any decision to close a street, road, or city entrance to traffic will have to be analyzed on a case by case basis. Thus, the legality of a particular closure does not imply that a different street’s closure is legal. We judges are quite capable of distinguishing between different streets, between one closure and the next. In this vein, in HCJ 606/93 supra. [41], at 26, Justice Cheshin correctly noted:

One of our roles as judges—and a difficult one at that—is  knowing how to distinguish between essence and periphery, between one case and another, between various nuances. The fact that a particular case is difficult does not justify that we refrain from attempting to distinguish it from other cases.

This is the law for our purposes. We are addressing the matter of Bar-Ilan Street, and that matter alone. I have concluded that there are reasonable alternatives to Bar-Ilan Street with regards to its use as a traffic route connecting various parts of the city—as opposed to its use as an access way to the homes of local secular residents.

What then will be the law when the issue of Sabbath traffic on a different traffic artery arises? Such a case shall be evaluated according to the same measure employed in the case at bar, no more and no less. I am not prepared to change the legal measure for future fears that have yet to materialize. Such fears are based on speculation. The “slippery slope” argument is a difficult one, which we must always address with a certain degree of skepticism. See F. Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1986) [107]. Thus, while it may very well be that the slippery slope is indeed quite perilous, the slippery slope argument is by far more dangerous.

The Lack of a Legal Standard

95. It has been argued that, because the Minister of Transportation failed to set forth a framework of criteria for the exercise of his discretion, that his decision is flawed. Indeed, it is unfortunate that he did not set out such criteria. It is appropriate that the government authorities set out criteria for the exercise of their discretion. See 2 Zamir supra. [91], at 780. These would provide the administrative authority with the opportunity to set proper policy in a conscious and carefully planned manner. Such criteria help prevent discrimination, allow for long-term planning, and subject the exercise of discretion to review. This having been said, I am not convinced that the lack of independent guidelines here is sufficient to invalidate the Minister’s decision. The closure of main traffic arteries is by no means a routine matter. Each case is evaluated individually, on its own merits. Even so, it is appropriate that the Minister of Transportation to set guidelines in these matters.

96. The lack of independent guidelines was felt was in relation to the choice of alternatives to the closed route. Here, the Court was informed that there were alternate routes to Bar-Ilan Street, one of these being through Route no. Four, the other being Route no. One. Both these roads pass Ultra-Orthodox neighborhoods. We heard arguments asserting that that there is no basis for preferring Bar-Ilan’s Ultra-Orthodox residents’ religious feelings and the observant lifestyle over those of their counterparts residing around Route no. One and Route no. Four. According to which criteria did the Minister exercise his discretion in this instance? Moreover, what will become of Bar-Ilan Street’s closure in the event that demands to close these two alternate roads on the Sabbath will arise? According to which criteria will the Minister of Transportation act under such circumstances? These are important questions indeed. In my view, the answer to them is to be found in the material before the Court. As to the first question, we emphasized the difference between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

With respect to the second question, it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened. This position is shared by the Minister of Transportation who noted:

For as long as the road in closed...Golda Meir Boulevard (Ramot Road) shall remain open, as will the entrances to the city.

See para. 25 of the Minister’s response brief. Let us add Route no. One to this statement. Clearly, it is best that the Minister prescribe a general formula for these purposes, which relates to all alternate routes. It is our hope that, in the future, this will be done.

97. Related to the issue of the proper legal standard is the question of how requests to close streets for religious reasons are to be dealt with. To this effect, the Tzameret Committee distinguished between various categories of roads. The Committee recommended that the authorized local and central bodies decide the matter. It also discussed when a reasonable alternate route is required and when it is not. In addition, it proposed that an appeals board be set up, which would enable decisions about street closures to be appealed. In this regard, the Minister’s decision was:

It is incumbent on the relevant actors to examine these recommendations in detail. If, subsequent to an examination of this nature, these professionals recommend that the recommendations be implemented, and in the event that I see fit to accept them, it will be necessary to change the law accordingly.

The matter, however, is left to the discretion of the Minister of Transportation. It is appropriate that these suggestions be positively weighed. Particularly important is the appeals board, which, if set up, will enable interested citizens to appeal decisions. Indeed, were such an appeals board in existence today, we would have perhaps learned the number of secular residents living in Ultra-Orthodox neighborhoods around Bar-Ilan. It is our hope that these issues will be decided speedily, allowing the Traffic Controller to decide afresh with respect to Sabbath street closures while also granting the right to appeal these decisions. Even so, it is clear that—from an administrative procedural perspective—the lack of this appeals mechanism will not influence the validity of the decisions.

98. It has been argued before the Court that the matter of Sabbath street closures must be regulated by statute. This approach is indeed proper. The subject matter is important and it is appropriate that it be enshrined in legislation. Moreover, it is also appropriate that the legislature prescribe primary arrangements and leave secondary determinations to administrative authorities.

While this is how a constitutional democracy operates, this is not the question placed before us. Our question is whether the existing legal regime, which endows the Traffic Controller with the authority to determine primary arrangements respecting the flow of traffic—such as the matter of Sabbath street closures—is illegal because the primary arrangements are not enshrined in legislation. This question is to be answered in the negative. We are not to substitute the desired law for the existing law. Many are the matters in our lives, which in the past were regulated by secondary legislation but were in fact worthy of being anchored in primary legislation. Suffice it to cite the matter of recruiting Yeshiva students to the army. It has been argued that this last issue is an important one which would best be anchored in primary legislation. With this the Court agreed. Nevertheless, we held that the lack of primary arrangements prescribed by statute does not invalidate the secondary legislation in this respect. See Ressler [33], at 501. This too is the law in the case at bar. While this is not desirable, it is nonetheless legal.

Violence

99. For a considerable amount of time now, Ultra-Orthodox factions have engaged in violent activities on Bar-Ilan Street. Stones were thrown at passing cars, and police intervention was required, Sabbath after Sabbath. There are those who believe that this violence has succeeded in bringing about a new perspective regarding freedom of movement on Bar-Ilan Street. This is to say that the street’s partial closure will, to a certain extent, be tantamount to rewarding this violence, as Justice Landau so accurately described in Baruch, at 165 [2]:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within. I am fearful that this issue can serve as an obvious example of such destruction, for it gives the impression that the riots and demonstrations which took place pressured the government into searching for a new solution to the problem.

This having been said, the fact that it was the violence that pushed the matter to the fore, and that precipitated the matter’s review, does not, in and of itself, provide sufficient reason to strike down the decision—provided that its content was not influenced by the violence. Justice Landau insisted on this point in Baruch, at 165 [2], holding:

How shall the Court, in hindsight, deal with the unfortunate fact that the administrative arrangement in question was reached only after violence? Certainly, no court would validate an invalid arrangement for fear that voiding it will result in renewed violence. Nor will it, on the other hand, strike down an arrangement, which appears both valid and appropriate, only because it was motivated by an attempt to find a deal with violence. The proper response to illegal activities is an appropriate police reaction, and the enforcement of the penal law.

Indeed, we must distinguish between this violence and the administrative authority exercised in its wake. All legal means must be employed to fight the violence, see HCJ 153/83 supra. [22], at 406, and every person’s freedom of movement must be protected. “Maintaining an arrangement does not imply surrender to those threatening to violate it. Rather, it is extending shelter and protection to the victims of such violence-mongers.” HCJ 166/71 Halon v.Head of the Local Council  of Ousfiah [63], at 594. (Berenson, J.) Freedom of movement in Israel must not be allowed to fall prey to violence.

100. As for the exercise of administrative discretion, such discretion is deemed flawed when it is influenced by the violence on the street. Compare HCJ 549/75 supra. [40], at 764. The balances between the various relevant considerations must be struck on the basis of their respective weight. The violence on the street must not influence this weight. A government authority whose path is influenced by violence on the street is destined to falter. In this respect, Justice Silberg, in HCJ 155/60 Elazar v. Mayor of Bat-Yam [64], at 1512, correctly pointed out:

Today, there may be demonstrations and protests by various religious factions; tomorrow, the anti-religious sectors may be the ones accused of running amok and disturbing the peace… this phenomenon is a Sword of Damocles dangerously dangling over us, leading to the surrender of public institutions to the terror on the streets.

Justice Landau, in HCJ 512/81 The Archeological Institute of Hebrew University, Jerusalem v. Minister of Education and Culture [65], at 543, spoke in a similar spirit:

Tolerance and patience are indeed necessary, as is considering the feelings of the other side. This by no means implies that one should surrender to the pressure from illegal demonstrations and the violent behavior of extremist groups, seeking to impose their views and will on government authorities, whose authority they do not recognize.

This having been said, the proper exercise of discretion is not to be invalidated merely because violence raised an awareness of the problem. Such is the case here. I am convinced that the decision of the Minister of Transportation was taken with a proper understanding of freedom of movement and its influence on the Ultra-Orthodox public’s religious sensibilities. As such, his decision was not influenced by the violence, except for the fact that it was the violence which brought the matter to the Minister’s attention.

101.  The Minister’s decision was to partially close Bar-Ilan Street on Sabbaths. We have seen that this decision strikes a proper balance between the conflicting considerations regarding the flow of traffic within the city. As noted, the full closure of the street would excessively infringe the freedom of movement. This being the case, the decision to close the street to traffic during certain hours is premised on the fact that it will be open for the remainder of the day. If the violence will continue, however, and if it will affect the free-flow of traffic during the hours when vehicles are permitted to travel, then secular residents will likely refrain from driving on Bar-Ilan for fear of being attacked. If this scenario materializes, the delicate balance struck shall be undermined. Under such circumstances, there will be no choice but to fully reopen Bar-Ilan to traffic on the Sabbath, with the police strictly enforcing the law.

Tolerance

102. Tolerance is among Israel’s values as a democratic state. It is by virtue of tolerance that rights may at times be infringed on in order to protect feelings, including religious sensibilities. Tolerance is also one of the State of Israel’s values as a Jewish state, as noted by Justice Elon, in Neiman [18], at 296:

This is the doctrine of government in our Jewish heritage—tolerance for all, of each and every group, to each opinion and each world-view. Tolerance and mutual understanding ensure that each individual and every group has a right to express its views.

Hence, tolerance serves as a measure for striking the proper balance between various clashing values, as I noted in CA 294/91 supra. [19], at 521:

Tolerance constitutes both an end and a means. It is in itself a social end, which every democratic society must aspire to fulfill. It equally serves as means, as a tool for balancing between social goals, and allowing for their reconciliation when they clash with each other.

How is one to be tolerant towards those who are not?  In the petitions before us, we repeatedly heard the argument that the Ultra-Orthodox residents are not tolerant of their secular counterparts. They are not prepared for any compromise whatsoever, as tolerance would dictate. An example of their unwillingness to compromise is the fact that they rejected the Court’s proposal regarding the closure of Yam-Suf Street. It was argued that they view tolerance as a one-way street—to serve their interests, absent any compromise on their part.

103. It cannot be denied that these contentions do have a certain basis in the facts presented. The Ultra-Orthodox’s refusal to compromise regarding Yam-Suf Street was a difficult blow. In truth, tolerance should be mutual, as President Shamgar wrote in Hoffman [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

What then is the law when certain groups in society are intolerant? Are they then unworthy of tolerance? To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

 

 

Judicial Review

104. The Minister of Transportation was faced with a difficult situation, which can legally be dealt with several ways. Thus, he would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper decision, striking an appropriate balance between the various considerations to be taken into account. This, however, was not the Minister’s decision. Instead, he opted for a partial closure of the street on Sabbaths. He was authorized to do so in all that regards the use of Bar-Ilan as a traffic artery without direct access to adjacent land users. His decision to this effect is within the zone of reasonableness. Under these circumstances, there isn’t any place for the High Court’s intervention. In fact, the question is not how the Court would act, if it were in the Traffic Controller’s place, but rather if the latter acted as a reasonable Traffic Controller would have. My answer to this question is in the affirmative. This, however, is not the case with respect to the use of Bar-Ilan Street as a traffic artery which also provides access to adjacent land users. In this respect, the administrative process was flawed and the decision adopted deviated from the realm of reasonableness. In this regard, the Court has no choice but to intervene.

 A Final Word

105. Long have I traveled down the treacherous road that is Bar-Ilan. The case before us is by no means simple. From a legal perspective, it is most difficult. A constitutional democracy will hesitate before it infringes human rights in order to safeguard feelings. A delicate balance between conflicting considerations is required, and this balance is not in the least bit simple. The case before us is difficult from a social perspective. Attempts to reach an agreement and to strike a compromise have all failed. This being the case, the solution must be found in a judicial ruling, which is quite unfortunate. Nevertheless, in President Landau’s words in Dawikat [3], at 4 “as judges, this is our role and our duty.”

The Result

106. The final result is as follows: a reasonable alternative to Bar-Ilan Street was found in all that concerns travel arrangements from one end of the city to the other. Under these circumstances, the partial closure of the street during prayer times on the Sabbath, as per the Minister’s decision, strikes an appropriate balance between freedom of movement and the Ultra-Orthodox local residents’ religious sensibilities and observant lifestyle.

 

Consequently, I would have rejected the petition and revoked the order nisi had the matter of the local secular residents and their families not arisen. Clearly, this presumes that three conditions are met. First, the alternative routes must be open on the Sabbath. Second, Bar-Ilan Street must remain open to traffic on the Sabbath during the hours when traffic is permitted, and the free-flow of traffic must not be hampered by violence. Third, Bar-Ilan Street should remain open to emergency and security vehicles even during prayer times.

The factual situation, however, is quite different. There is a problem with the traffic arrangements regarding the local secular residents, living around Bar-Ilan Street—they, their family and loved-ones, and all secular residents who visit their religious friends on the Sabbath. The interests of these individuals were not taken into account. Nor was a proper factual basis prepared. In this respect, the Minister of Transportation’s decision was made in violation of proper administrative procedure, as it failed to distinguish between the different sectors of the population residing in the areas in question. Thus, Bar-Ilan Street was partially closed to all traffic on the Sabbath. Under these circumstances, I suggest that the Court reject the petition in HCJ 5434/96 and make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96 absolute, so as to strike down the Minister’s decision to partially close Bar-Ilan Street and return the matter to him. In his new decision, the Minister will take into account the interests of the local secular residents and their guests, as this judgment instructs. These

 

interests will be considered in accordance with an appropriate factual basis, according to the conditions set out in this judgment.

Under the circumstances, no order for costs shall be made. 

Justice T. Or

The Minister of Transportation decided to close a section of Jerusalem’s Bar-Ilan Street, measuring 1.2 km., to motor traffic during prayer times on Sabbaths and Jewish holidays. Was this decision lawful? This is the issue in the petitions before us.

Opening Comments

1.   My judgment was written prior to having had the opportunity to examine the judgment of my colleague, the President. As the President elaborated on the relevant facts and procedures, I will not revisit them. Initially, I only addressed those facts that were relevant to my position. However, after reading the President’s judgment, I felt it necessary to add three additional brief comments for the purpose of clarifying my position.

2.   To be quite frank, I would have preferred it had the various parties in the case at bar come to an arrangement, one that could have spared the involvement of this Court. This was the reason for our recommendation that a committee be set up in order to help the parties strike a compromise. To my dismay, there efforts were fruitless. As such, we must deal with a matter which is the subject of fierce public controversy.  Whichever way we decide, there will be those who will not be satisfied, and who will regard our decision as harmful.  No verdict is capable of satisfying everyone.  To the extent that we discharge our judicial duty to review the Minister of Transportation’s decision in accordance with the legal criteria used for assessing the legality of administrative decisions, criticism is to be expected from one side or the other.  As has become the norm, the criticism will be of the result reached by the Court, or by any one of the presiding judges. With the exception of a precious few, not many will be particularly interested in the legal reasoning underlying any of the opinions. We have grown accustomed to the fact that the rulings of this Court have sensitive political or social ramifications.

Even so, despite our awareness of these implications, we are not at liberty to refrain from deciding matters that demand the attention of this Court. As difficult as the task before us may be, and despite the criticism of those whose claims will be rejected, we have no alternative but to discharge our duty and rule according to the law applicable to the facts of the case, each judge according to his ability, understanding and conscience.

This having been said, let us proceed to the matter at bar.

Bar-Ilan Street

 

3. Bar-Ilan Street’s importance as a traffic artery is at the heart of our deliberations and is the key to resolving the matter. The road passing through Bar-Ilan Street connects the northeastern section of Jerusalem to the city's western section and with the entrance to the city. As is indicated in the brief submitted by the Traffic Controller, Bar-Ilan Street “begins at the entrance to the city, passes through the Ultra-Orthodox neighborhoods and ends in the neighborhoods located in the northern part of the city.” The road in question is wide, with two lanes in each direction. In certain sections, the road boasts three lanes.

The fact that the road in question is one of Jerusalem’s most central is undisputed. It serves both those entering Jerusalem and those living in the city’s western neighborhoods, such as Bet HaKerem, Kiryat Hayovel and Kiryat Menachem, allowing them to reach the northeastern part of the city.  The road also serves those in the northeast who wish to reach the western par of the city, or who wish to exit the city.

We do not have exact statistics regarding the percentage of the population served by this road. Even so, all agree that the neighborhoods served by it are large. These neighborhoods house tens of thousands of residents, if not more.

4.   Due to both its size and the significant population that it serves, the volume of traffic on the road is substantial. Mr. Michael Nackman, the manager of the City of Jerusalem’s traffic departments and engineering service, submitted specific numerical data relating to the flow of traffic. From his report, dated October 6, 1996, submitted to the Tzameret Committee, it emerges that on Sabbaths—from sunset on Friday to a little after sundown on Saturday—a significant number of vehicles use the road. The engineer’s data indicate that, between January 1, 1996 and March 30, 1996, the road was used by 13,216 vehicles on the Sabbath. This constitutes 27.1% of the average traffic during weekdays of the same period.  The statistics for the next three months are similar. During that period, the average number of vehicles driving on the road on the Sabbath was 13,714, which constituted 28% of the average number of cars driving on the road during that week.

I must further mention that surveys conducted over another period, between July 1, 1996 and July 27, 1996, showed an increase in the volume of traffic on weekdays, while the volume of traffic on the Sabbaths decreased. I do not think that this decrease in the volume of Sabbath traffic should be taken into account. As indicated by the Traffic Controller, Mr Langer, in his testimony before the Court on the August 15, 1996, “today, after a period of extended violence, there are many people who are afraid to use the road and in fact avoid using it…thus, the data of the last few Sabbaths is not relevant, since it is the product of pressures that do not reflect the regular traffic volume." To this I add that, for a number of years, serious controversy has surrounded Bar-Ilan Street and there are many people who avoid traveling on it on Sabbaths.  As a result, even the surveys conducted during the first half of 1996 do not accurately reflect the real potential volume of travel on the Sabbath. 

5. Thus, Bar-Ilan Street is a central traffic artery—a fact which equally holds true on the Sabbath. The road’s centrality as a traffic artery is also evidenced the letter the Central Traffic Controller, Mr. Langer, to the Mayor of Jerusalem. This letter will be cited below. Moreover, in his testimony before this Court, Mr. Langer also referred to Bar-Ilan Street as a central traffic artery, which connects important parts of Jerusalem and serves significant portions of the population, a large part of which uses the road on the Sabbath as well.

6.   We emphasized that Bar-Ilan Street is a central traffic artery. The road segment under discussion is surrounded by residential buildings on both sides.  For quite a few years now, these buildings house primarily religious and Ultra-Orthodox residents. This being the case, inner streets in the areas along Bar-Ilan Street are closed to traffic on the Sabbath and Jewish festivals.  Even so, and despite the local population, no restriction was ever imposed on Sabbath and holiday traffic on Bar-Ilan Street itself. The Minister of Transportation, however, recently decided to close the road to traffic on Sabbaths and festivals, during “prayer times.” The three petitions here attack this decision.

7.   Having described Bar-Ilan Street, we can now proceed to dealing with the petitions themselves. First, we will outline the normative framework within which the Minister adopted his decision. Then we shall decide whether the Minister’s decision was reasonable in accordance with the proper balance to be struck between the relevant considerations.

The Normative Framework—The Competent Authority

8. The legally competent authority in our case is the Traffic Controller. The Traffic Regulations-1961 identify the authority who has the jurisdiction to prescribe arrangements of the nature before us. Regulation 16 authorizes the Traffic Controller to determine the placement of traffic signs and road arrangements. Under the Regulation, the Traffic Controller is authorized:

              (1)   To determine the design of traffic signs, their types, sizes, colors, forms, meanings, manner of placement and signals;

(2) To determine traffic arrangements or to exempt from their use generally or in a particular case.

Moreover, under the Traffic Regulations, the Traffic Controller also serves as the Central Traffic Authority. In this regard, Regulation 1 provides:

Central Traffic Authority—The Traffic Controller appointed for any area in the State, or a person vested with the authority of the Central Traffic Authority, for the whole area of the state or a part thereof.

Regulation 17 enumerates the Central Traffic Authority’s powers. Under this regulation, the Central Traffic Authority is permitted to allocate powers to the Local Traffic Authority to determine traffic arrangements. If these regulations are not complied with, the Central Traffic Authority is empowered to implement them itself.  The following is language of the Regulation:

17. (a) The Central Traffic Authority is permitted to direct the Local Traffic Authority regarding the determination of traffic arrangements, their alteration, termination, and maintenance.

(b)        Where instructions as stated in subsection (a) are given, and the Local Traffic Authority does not comply therewith, the Central Traffic Authority may set out such traffic arrangements, which shall be regarded as if though they had been established, indicated, activated or terminated by the Local Traffic Authority.

Who is the said Local Traffic Authority? The notice regarding the appointment of traffic authorities (Y.P. 5730-2281) provides that the head of the Municipal Authority will function as the Local Traffic Authority. The bounds of the Local Traffic Authority’s powers are set out in Regulation 18 of the Traffic Regulations, and includes posting traffic signs and indicators. As indicated in section 18(b), there are certain arrangements that the Local Traffic Authority is only empowered to determine “when set out, in writing, by the Central Traffic Authority.”

 In accordance with the Traffic Controller’s order, the Central Traffic Authority determined that its local counterpart would be permitted to determine traffic arrangements under section 18(b) in the Jerusalem area, with the exception of “main thoroughfares and the city center.” As it is undisputed that Bar-Ilan Street corresponds to the definition of a “main thoroughfare,” the authority to determine the traffic arrangements in the location is vested in the Traffic Controller.

The Normative Framework—The Minister of Transportation in his Capacity as Traffic Controller

9.   As we have seen, the Traffic Controller is the statutory authority charged with making decisions regarding Bar-Ilan Street. These petitions here were directed against the Controller’s decision to close Bar-Ilan Street during certain hours on Sabbaths and Jewish festivals, for a four month trial period.

After the hearings of the petitions began and the orders nisi and interim orders against the Traffic Controller were issued, the Minister of Transportation decided to exercise the powers vested in him under section 42 of the Basic Law: The Government, and to assume the Traffic Controller’s powers regarding the issues under discussion here. The Minister explained his decision in section 10 of his additional affidavit. In the Minister’s own words:

In light of the Court’s decision, which linked the closure of Bar-Ilan Street to the setting of comprehensive policy regarding Sabbath traffic in Jerusalem and across the country—policy predicated on a social covenant between the various sectors of the population—and bearing in mind that in accordance with that decision I established a public committee, that made recommendations to me regarding the broad issues involved, I have seen it fit to make a linkage between the various aspects relating to road closures. It is for this reason only, and until the entire issue is resolved, that I have decided to arrogate the Traffic Controller’s authority in all matters relating to the decision to close Bar-Ilan Street, under Regulations 16 and 17 of the Traffic Regulations. 

In exercising this authority, the Minister decided that: 

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day”.

The terms “Bar-Ilan Street” refer to both Bar-Ilan and Yeremiyahu roads, including the section stretching from the Shamgar intersection to the Shmuel HaNavi intersection.

10. While the personal identity of the empowered individual changed when the Minister assumed the powers of the Traffic Controller, the nature of the authority and its scope remained the same.  Clearly, there is a difference between the Minister and the Traffic Controller. His experience is different and his perspectives are also liable to be different. This, however, does not change the powers that the Minister assumed from the Controller. Indeed, the normative context relevant to the exercise of these powers remains unaffected, as does the purpose for which the authority was initially bestowed.  Similarly, the framework of considerations relating to the exercise of the authority remain unchanged. See HCJ 5277/96 Hod Matechet Ltd. v. Minister of Finance [66], at 867. The only thing that changes is the personal identity of the entity in whom the authority is vested.

So notes Professor Zamir in his book, 2 The Administrative Authority 586-87 [91], when discussing an example of the Minister of Transportation appropriating the Traffic Controller’s authority.  On this subject, Professor Zamir writes:

In my opinion, it is preferable, both academically and practically, to say that the assumption of authority, as well as its delegation, does not transfer authority from one organ to another. Instead, it merely adds another organ to the administrative authority. The Traffic Controller is the natural locus where these powers vest. It is there that the authority in question is surrounded by all of the pertinent considerations, related to the essence of the Traffic Controller’s function and to special provisions relating to the Controller’s relationships with other authorities. Consequently, there is no justification for uprooting the authority from its natural locus and transferring it to the "foreign environment" of a different authority...

Likewise, difficult problems are liable to arise between the two authorities involved were the assumption of authority to have the effect of transferring powers from one authority to the other.  For instance, is the assuming authority...entitled to strike down or alter a decision made by the original authority? This question arises because, generally, a decision may only be struck down or altered by the same authority that adopted it.

Prof. Zamir further notes that this difficulty may be resolved by presuming that a Minister who assumes the powers of an administrative authority embodies that statutory authority. Thus, “when the Minister of Transportation assumes and exercises the Traffic Controller’s authority, he is regarded as the Traffic Controller. The Minister is permitted to do anything that the Controller is empowered to do, and he is under the same duties as the Controller.” Id. I fully concur with these words which, in my opinion, are appropriate for the issue before us. They suggest that, in order to ascertain the legality of the Minister’s decision’s here, we must examine the framework of considerations that the Traffic Controller, as a statutory authority, was permitted to consider.

11. Another point must be made. Our concern is with the Minister of Transportation’s decision, in his capacity as Traffic Controller. The Minister is a religious person. He was elected to serve as a Member of Knesset on behalf of a party whose goals are religious. Naturally, this fact is liable to influence the policy that the Minister adopts.

Nevertheless, this fact must not be allowed to alter our assessment of his decision’s legal validity. The issue before the Court is whether the Minister made reasonable use of the authority which he appropriated from the Traffic Controller. Issues regarding the exercise of statutory authority are not decided by reference to the person who holds the position. Rather, any assessment of reasonableness is normative, and focuses on whether an act is an act that a reasonable authority, responsible for that particular matter, would be permitted to take. The issue here is whether the decision reasonably balances between the values at stake.  The substance of these values and their relative weight are not affected by the personal identity of the individual exercising the authority. As Justice Barak stated in HCJ 389/80 supra. [30], at 439-40:

Unreasonableness is measured in accordance with the standard of the reasonable person. This is an objective test. The question is not what the authority actually did, but rather that which it ought to have done.  In this context, the reasonable person is the reasonable civil servant, in the place and position of the civil servant who actually made the decision at issue.  The question is, therefore, whether a reasonable civil servant, in the situation of the civil servant who adopted a particular decision, would have likely adopted the decision in question, under the circumstances....

The administrative authority is obviously not identical to the actual clerk whose decision is being reviewed, despite the significant degree of “subjectification” of the “objective” authority, which does not operate in a vacuum, but rather under concrete circumstances.

Justice Barak revisited this point in Ganor [16]:

Reasonableness is not a personal matter, but a substantive one. It is not the reasonableness of he who actually adopted the decision that renders the decision reasonable, but rather the reasonableness of the decision itself that allows the person adopting it to be deemed reasonable.

This being the case, the Minister’s own worldview should not influence our judicial review. The judicial review is, first and foremost, forged from the considerations that the Traffic Controller ought to have taken into account in exercising his authority in the matter before us. With these preliminary remarks, I shall now proceed to the examination of these considerations.

The Normative Framework—The Traffic Controller's Discretion

12. In this case, we are dealing with the Traffic Controller’s authority in his capacity as the Central Traffic Authority. This authority relates to the proper regulation of road traffic, indicated by the specific definition of the term “signpost,” as it appears in the Traffic Regulations. The term is defined as “any indication, sign or signs, including a traffic light, as determined by the Central Traffic Authority, which was positioned or posted with the Traffic Authority’s authorization or consent in order to regulate road traffic or in order to warn or guide pedestrians.”

The basic purpose that these signs are intended to serve is the regulation of road traffic. The regulation of traffic requires extensive technical expertise. See HCJ 398/79 Abdalla v. Mayor of Nazareth [67], at 526. First and foremost, it involves the ability to make professional decisions which will create a well organized, balanced transportation system, one that guarantees the optimal levels of efficient, speedy and safe traffic movement.  The central consideration here must be ensuring safe and efficient transportation. This is the central consideration that the Traffic Authority must take into account when exercising its powers. 

This Court pointed this out in Abdalla, supra. [67]. There, in deliberating the legality of a decision of the Traffic Authority, the Court held, Id. at 525, that “in positioning signs, the Authority must be guided exclusively by transportation considerations.” The Court clarified the matter of transportation considerations:

The matter of signs, including their posting and their removal, are not static issues. Rather, their change is a function of what is required in order to fulfill the objectives which the Traffic Ordinance is designed to regulate. Thus, what may have been suitable yesterday in terms of the requirements of traffic arrangements in a particular area may no longer be appropriate in light of the prevailing circumstances, and may be even less suited to tomorrow’s needs, given the changes in the numbers of cars, the character of the area, population density and other such changes, occurring on a daily basis.

See also HCJ 379/71 Levy v. The Municipality of Petach-Tikva [68], at 788; HCJ  112/88  The Local Committee for Planning and  Building,  Ramat-Gan v. The  District  Committee  for  Planning  and Building,   Tel-Aviv District [69]

Indeed, the Minister of Transportation himself spoke similarly in a Knesset debate (session number ten, of 10.7.1996, at 433), stating:

The considerations guiding the Traffic Controller in deciding to close a given street must, first and foremost, be professional, traffic-related considerations.

13. This Court has emphasized that the central considerations of the Traffic Authority’s powers must be professional and traffic-related. This does not, however, imply that the Authority is precluded from taking more general considerations, which touch on the influence of road-traffic on other interests, into account. Indeed, the broad administrative legal rule remains that “the fact that the executive branch takes general public considerations into account, even when these stray from the specific area it is charged with, does not invalidate the decision.” See HCJ 612/81 supra. [13], at 301. This broad principle is equally applicable to the Traffic Controller. Thus, the Court held that, in approving bus lines, the Controller need not limit his considerations to transportation factors—he may also take into account the public interest in the efficient use of public funds. In another case, HCJ 1869/95 Gasoline Import Company v. Minister of Transportation [70],     the Court held that in prescribing regulations for the transport of petrol, the Controller may also consider factors related to free competition. Id. at 569-70.

This general principle also relates to the feelings of the religious public, which are legitimate considerations for the Traffic Controller to take into account. Thus, for instance, the League [1] case dealt with the Traffic Authority’s decision to close part of the road adjacent to the “Yeshurun” Synagogue on Sabbaths and Jewish holiday, since the worshippers were disturbed by traffic. In its decision, the Court ruled, Id. at 2668, that it was permitted to take religious feelings into account:

There can be no doubt that the respondent was taking into account a religious interest in considering the fact that motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably. There is no fault in that—just as there is no fault in considering cultural, commercial, or health interests, provided that they affect a significant part of the public.

A similar approach was taken in Baruch [2], a case dealing with the Traffic Authority’s decision to close part of Hashomer street in Bnei Brak to motor traffic on Sabbaths and holidays. In that instance, Acting President Landau ruled that the Traffic Controller was permitted to take the feelings of the local population into account and further held that “ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.” Id.

I will revisit these two judgments and discuss them at length below.

14. In this context, we should mention that, although religious considerations and the matter of religious sensitivities are legitimate factors, they cannot become the central element in the Traffic Controller’s decision. The Controller should, above all, consider transportation-related and professional factors. Other, more general factors, including consideration of the observant public’s religious sensibilities, are peripheral and cannot prevail over transportation considerations. The “religious” consideration, being peripheral, cannot become the central factor in the Controller’s decisions regarding the regulation of traffic. Thus, as more importance is accorded to transportation-related considerations pulling in one direction, proportionately less weight will be accorded to religious sensitivities pulling in the opposite direction.

This Court adopted this line of thought as far back as Lazerovitz [5]. In Lazerovitz [5], the Court held that it was within the Food Controller’s authority to “weigh many factors, including economic, financial, sanitary, psychological and, in certain cases, even religious factors.” Id. at p.55. The Court, however, qualified these comments, stating that these factors must be limited to cases where the actions of the Food Controller were “seriously and faithfully geared towards fulfilling his legitimate functions as a Food Controller regulating food consumption, in which case there was no fault in incidentally taking religious considerations into account." Id. at 55-56.

From this it is clear that professional considerations must be the primary considerations guiding the Traffic Controller. General considerations of religious needs are peripheral and cannot overshadow the specific considerations central to the powers of an administrative authority. We rendered a similar ruling in HCJ 1064/94 supra,.[52]. The issue there concerned Regulation 273 of the Traffic Regulations. That regulation dealt with the certification of licensing centers, that were to check vehicles for their mandatory annual license test.  In that context, the Court said, Id. at 817:

We may identify two central factors which the respondents should have considered. The first is road safety—the maintenance of vehicles in proper working order. The second involves encouraging free enterprise.

In weighing these factors, the Court granted greater weight to the purpose underlying the regulation. There, this purpose was guaranteeing the safety of motor vehicles. This was the central consideration, forming the very kernel of the grant of authority. Considerations relating to free enterprise were permitted, but only as incidental to the central consideration. In the event of a conflict between the two considerations, the specific consideration would prevail over the general desire to encourage free enterprise.

This is also the rule here. In other words, while the Traffic Controller was permitted to take the religious sensitivities of the observant community into account, this consideration cannot form the basis of his decision. Instead, the Controller’s considerations must be primarily based on transportation considerations.

15. We have examined the framework in which the Controller must exercise his discretion. We have seen that the Controller is not limited to transportation considerations, and may consider general values which are affected by his decisions. For our purposes, three central values demand our attention—the freedom of movement, the freedom from religion of those who wish to freely travel on the Sabbath, and the right of the religious public not to have their religious sensibilities offended. I will briefly relate to each of these values.

Freedom from Religion

16. “Every person in Israel enjoys freedom of conscience, belief, religion and worship. This freedom is guaranteed to every individual in an enlightened democratic society, and is therefore guaranteed to every person in Israel. This constitutes one of the basic principles upon which the State of Israel was founded.” HCJ 292/83 [47], at 454. The public’s right to freedom from religion is also included within the ambit of the freedom of religion and conscience. “It is a supreme principle in Israel, based on both the rule of law and this Court’s rulings, that Israel’s citizens and its residents are guaranteed freedom of religion and freedom from religion.” HCJ 3872/93 Meatrael [6], at 506 (Cheshin, J.) I noted, in same case, that “the notion of freedom of religion, on the one hand, and freedom of conscience, including freedom from religion, on the other, is expressed by the phrase “each man shall live by his faith.” Cf. Habbakuk 2:4 [111] See Meatrael [6], at 197. Justice Berenson made reference to this same principle in HCJ 287/69 supra. [53], at 364:

It is true that people must respect each other’s feelings, including religious sensibilities and beliefs and, wherever possible, refrain from infringing them. This is a supreme moral imperative, in the absence of which organized community life would not be possible. But this imperative applies to all. Just as Reuben must respect Simon’s religious feelings, so too must Simon respect Reuben’s free way of life, and refrain from attempting to force his ideas and beliefs on his neighbor.

In a similar vein, I wrote in Meatrael [6], at 501:

It seems to me that in striking the delicate balance between freedom of religion and freedom from religion, it must be properly remembered that the mere fact that a certain segment of the population holds particular beliefs and opinions and has different behavioral patterns does not warrant preventing them from continuing to think, believe and behave in accordance with those different beliefs, patterns and customs, even if they offend another section of the public.

Closing a road to traffic on the Sabbath is, to a certain extent, religious coercion of the secular population, who is not observant of the Sabbath. A road closure prevents motorists from using the road of their choice. It may prevent them from reaching the home of a local resident or bar them access to the road’s speed and convenience. Justice Vitkon emphasized this point in Baruch [2], at 166:

I am distressed by the trouble caused to the public that does not observe religious commandments or does not see the use of vehicles as transgressing the sanctity of the Sabbath. I am convinced that closing the road constitutes religious coercion with respect to that population.

Obviously, I agree that freedom from religion is neither the single nor the exclusive interest at stake. Indeed, freedom from religion is not absolute and must be balanced against other values, with which it may conflict. To this effect, my colleague, Justice Barak, stated in Ressler  [33], at 501, that  “the need to guarantee freedom of religion and prevent religious coercion does not preclude us from considering the needs of the religious population.” In a similar vein, in HCJ 6111/94 Guardians of the Tradition v. Committee of Chief Rabbis [71], at 105-06, I noted that:

A person's right to freedom of conscience, including freedom from religion, is not absolute and, at times, may be overridden by other considerations…

Quite often, a conflict may arise between those wishing to live a secular lifestyle and others desirous of maintaining a religious way of life. 

As such, we must examine other interests which bear on the dispute here.

Freedom of Movement

17. In Israel, freedom of movement is guaranteed as a basic right. See HCJ 672/87 supra. [54], at 709 (Barak, J.) It includes each and every person’s right to exit the State. See Cr. Motion 6654/93 supra. [55], at  293. It also encompasses a person’s freedom to move freely throughout and across the State of Israel. See HCJ 153/83 supra.[22], at 401. As such, this freedom also includes every individual’s freedom to travel “freely in areas intended primarily or exclusively for traffic and transit.” PL. Cr. A 6795/93 Aggadi v. The State of Israel [72], at 701. This right is essential to individual self actualization. It has not lost any of its significance in modern times.  Of late, we have been witness to the development of electronic modes of communication that “shorten” the distance between places and allow people to perform tasks from their homes, for which, in the past, they had to leave their place of residence. This includes both work and academic studies. As the Chief Justice of the American Supreme Court noted, freedom of movement “may be as close to the heart of the individual as the choice of what he eats, or wears, or reads.” See Kent v. Dulles, 357 U.S. 116, 126 (1958) [85].

Justice Berenson, addressing the matter of motor traffic on Sabbaths and festivals in CA 217/68 supra. [12], at 363, also insisted on the fundamental nature of freedom of movement:

The use of private vehicles is becoming increasingly indispensable for maintaining the economy and meeting the social and cultural needs of both individuals and society, particularly in light of the lack of public transportation on Sabbaths and holidays.  

Bar-Ilan Street’s closure to traffic constitutes an infringement of this basic freedom, as Acting President Landau pointed out in Baruch [2] supra., at 163:

Halting traffic because of the wishes of the Ultra-Orthodox infringes the freedom of movement of those interested in using their vehicle as they wish on Sabbaths and holidays.

 This having been said, this right, like freedom from religion, is not absolute. For example, it may retreat in the face of the freedom to demonstrate, as Justice Barak clarified in HCJ 148/79 supra. [24], at 177-78.

Harm to the Sensibilities of the Religious Public 

18. The harm caused to the feelings of the religious public residing on and around to Bar-Ilan Street, must also be taken into account. Of course, “only the Knesset can impose the observance of religious commandments. Not only must this authority to coerce be prescribed by primary legislation, it must also be specific and explicit.” Meatrael, supra [6] at 507 (Cheshin, J.). This having been said, "The observant are entitled to and worthy of protection, as is any other group in Israel, and freedom of religion gives rise to the need for such protection.” Id. As a result, religious feelings are also entitled to protection. Our jurisprudence recognizes the need to safeguard these feelings as part of the public order, in its broad sense, as held by President Barak in HCJ 14/86 supra. [35], at 430:

"Public order" is a broad concept, which is difficult to define, and whose definition varies depending on the context in which it is defined. In the context at bar, public order includes threatening the state’s existence, harming the democratic regime, public peace, morals, religious sensibilities, a person’s reputation, and fair judicial proceedings, as well as other matters that touch on the issue of public order.

This consideration also served as a basis for the Court’s decision in Baruch, supra. [2], dealing with the decision to close Hashomer street on Sabbaths and Jewish holidays. It therefore follows that religious feelings are a factor that an administrative authority may take into account. Nevertheless, our case law remains apprehensive of this element. See HCJ 230/73 supra. [10], at 119 (Eztioni, J.).

The Ultra-Orthodox residents living in close proximity to Bar-Ilan Street argue that motor traffic on that street on the Sabbath and festivals offends their religious sensibilities. I do not dispute that these individuals are in fact offended as a result of the stark contrast between their Ultra-Orthodox lifestyle and traffic on the Sabbath. It reflects the local residents’ profound belief in the sanctity of the Sabbath and their commitment to this idea. We must not forget that “religious perspectives are deeply intertwined with each individual’s conscience.” HCJ 806/88 supra. [9], at 39. Similarly, the harm caused to the Ultra-Orthodox public reflects the fact that members of that population residing on Bar-Ilan Street are a “captive audience” of sorts, compelled to witness the desecration of the Sabbath against their will. As a result, in principle, the right of the Ultra-Orthodox public not to be offended is worthy of consideration.

Understandably, the protection extended to religious feelings is not a value that developed in a vacuum. Nor is it an absolute value. The protection accorded this value must take into account the existence of other circumstances. In the final analysis, it is a question of balance, the subject to which we now turn.

Balance 

19. Balancing between different values is often difficult, given the difficulty involved in identifying the proper weight that must attach to each individual value. At this juncture, we shall recall that, in striking the appropriate balance, it is incumbent upon us to consider the fact that “to a certain extent, a democratic society recognizes harm to religious feelings as an injury. Only in this manner will it be possible for different religious viewpoints to coexist. ” See HCJ 806/88 supra. [9] (Barak, J.)

The question is therefore whether the Minister’s decision reflects a reasonable balance between the relevant considerations. We shall recall that “reasonableness refers to weighing all the relevant considerations and attaching the proper weight.” Ganor supra. [16], at 513. This and more: “the very fact that the administrative authority took all the relevant considerations, and only those, into account is not sufficient to ensure the decision’s reasonableness. Even a decision that took all the relevant considerations into account shall be deemed unreasonable if it failed to attach the proper weight to the various factors.” HCJ 4267/93 A.M.I.T.I- Citizens for Efficient Government v. The Prime Minister [73], at 464.

From these statements, as well as from our analysis above, we see that, in reviewing the Minister’s decision, the Court must examine whether the solution chosen confers the appropriate weight on the central factor of transportation, which constitutes the fundamental normative consideration relevant to the arrangement before us.

In addition, it is incumbent upon us to evaluate whether the chosen solution is the product of a proper balance between the interests at stake. In so doing, we must examine whether the solution is a balanced one, capable of preventing infringements on certain interests, while ensuring that this does not come at the expense of interests lying on the other side of the debate. Thus, it is necessary to examine whether the solution adopted both prevents such inequality as would result from preferring one interest over the other, as “considering the feelings of A, at B’s expense, is tantamount to inequality: A will continue living the lifestyle of his choice, while B will be compelled to live in a manner that goes against his beliefs, in other words, he will be forced to endure religious coercion.” Meatrael supra. [6], at 501. In the final analysis, we must recall that “the matter is one that involves balancing legitimate interests related to closing or opening the street in question.” Baruch supra. [2], at 166-67 (Vitkon, J.).

The issue to which I will now turn is whether the Minister’s decision strikes the requisite balance.

20. In evaluating the solution for which the Minister opted, I feel that three fundamental matters regarding the reasonableness of the Minister’s decision must be emphasized. The first is the character and importance of Bar-Ilan Street as a main traffic route. Second, we must examine the harm to the local secular residents and to the rest of the public served by Bar-Ilan Street on the Sabbath. Third, we must examine the lack of any change in the objective data that would justify a change in a long-standing arrangement.

To my mind, these factors were not given the weight that they deserve. I shall now address them.

21. The road’s character and importance. Above, we dwelt at great length on the nature of Bar-Ilan Street. We saw that the street is public property, which remains at the public’s disposal. It is a road accommodating a significant amount of vehicles, including on Sabbaths, despite recent violent incidents disrupting the free-flow of traffic in the area. We have also seen that this road serves the population inhabiting Jerusalem’s largest neighborhoods. In effect, the street is the principal link between these neighborhoods. As such, the road is the main road for all those entering the city from outside, whose destination is one of Jerusalem’s northeastern neighborhoods. For some of these people, the Sabbath is the only day of the week when it is possible to visit Israel’s capital. It is a main road, constituting a chief traffic artery, not a local inner street. As the Traffic Controller suggested in his letter to the Minister of Transportation, “the Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week.”

22. This fact is of utmost importance. In balancing, significant weight attaches to the issue of whether we are dealing with the private or public domain:

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

Meatrael supra. [6] at 508 (Cheshin, J.). Justice Cheshin clarified that “protection may be extended to the observant individual’s ‘extended’ household.” Id. However, as far as we broaden the scope of the “private domain,” it would still not include a public road like Bar-Ilan. For our purposes, we are not dealing with an inner street, connecting other local neighborhood streets. Instead, we are dealing with a main street, serving a very large population and a significant number of vehicles daily, including on the Sabbath. A road such as this cannot be considered the “private” domain of the community residing in its vicinity, nor can this community dictate its use. It belongs to the public at large. As such, it cannot be expropriated from the public, either in whole or in part.

23. This was the policy adopted by the Ministry of Transportation. We have already seen that the Ministry has decided that traffic arrangements on Bar-Ilan Street and similar streets shall be determined by the Traffic Controller, not the Local Council. This teaches us that roads such as these are not considered to be part of the private domain, even broadly defined. Rather, they are deemed to be public property. Consequently, a national traffic authority, rather then a local one, was appointed to preside over it.

Moreover, from the outset, the Ministry’s policy regarding traffic arrangements reflected this distinction between the private and public realm, as implied from the Traffic Controller’s statements at the meeting held on August 15, 1996. On that occasion, the Controller addressed the policy of Sabbath street closures, asserting: “to the best of my knowledge, no other traffic arteries are closed…as a rule, traffic arteries must remain open. The act of closing a traffic artery is most drastic.” See page 12 of the meeting’s protocol.

I am convinced that this policy is appropriate. In my opinion, it reflects the proper balance between the needs of all communities. The neighborhood's inner or side streets, situated alongside Bar-Ilan, are closed to traffic on Sabbaths and holidays throughout the day. This is appropriate. The population residing in the vicinity of these streets is essentially Ultra-Orthodox. Under these circumstances, the value of preventing offensive to religious feelings prevails. In this manner, the religious community’s needs, its sensibilities and lifestyle are to be taken into account. Closing these side streets, while allowing the main street—on which many wish to travel on Sabbaths—to remain open, is a compromise between the needs of Jerusalem’s secular community, including the needs of those coming to visit the capital from every corner of the country, and the needs of Bar-Ilan’s Ultra-Orthodox public. We must not forget that “in a society that includes those of different faiths, as well as those with no faith at all, it is only appropriate that mutual understanding reign. A pluralistic society such as ours requires mutual tolerance. A compromise is necessary.” HCJ 6111/94 supra. [71], at 105. The emphasis is on the mutuality of the tolerance. With all the consideration that the religious feelings of the local residents warrant, this factor is not the only one to be taken into account; a compromise is necessary. It is also necessary that there be understanding and tolerance on the part of the Ultra-Orthodox for the needs of those who does not observe the Sabbath and for whom the use of Bar-Ilan Street is essential.

Such a compromise reflects the fact that consideration of the needs of the Ultra-Orthodox community has its limits. These limits are premised on the imperative to also consider the needs of another community, one which shares Jerusalem with the Ultra-Orthodox. Consideration of these needs demands that main streets, like Bar-Ilan, remain open. In this manner, the wishes of the observant community are properly recognized, while the nature of the road in question—an important traffic artery—is also taken into account.

To my mind, and in this I disagree with my colleague, the President, this balance in no way deviates from the “threshold of tolerance” required of the Ultra-Orthodox population in a pluralistic and democratic society such as ours. With no disrespect intended towards the genuineness of the latter’s feelings, the proper balance between the interests does not allow the harm to these feelings to outweigh traffic considerations and the interest in keeping Bar-Ilan Street open to the public at large. This and more: harm to religious feelings cannot prevail over every individual’s basic freedom to travel freely in the public realm, in accordance with his wishes, where the place in question was intended for public use.

24. In order to highlight the street’s importance, it is appropriate to revisit the Traffic Controller’s statements in his letter to the Mayor of Jerusalem, Mr. Olmert, dated November 29, 1994. The letter in question, as noted, was written on the heels of “media publications and incidents on the street,” with the intention that discussions regarding the proposed closure of Bar-Ilan Street to traffic on Sabbaths take place. The Controller was aware of the Ultra-Orthodox demands to close the street to traffic on Sabbaths. In this context, the Controller suspected that Jerusalem’s City Council would decide to close the street, which would require his approval. The Controller decided to pre-empt such an attempt and apprise Mr. Olmert of his position. The following are the contents of the Controller’s letter:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This is a clear position, premised on the importance of Bar-Ilan Street.

After the Traffic Controller wrote to the Mayor and received a response, he revisited the matter in a second letter to the Mayor dated January, 3 1995. In this second letter, he highlighted the need to secure the Central Traffic Authority’s consent to Bar-Ilan Street’s closure:

The following is a response to your letter attached herein.

In July of 1992, in accordance with regulation 18(b) of the Traffic Regulations-1961, the Central Traffic Authority determined the areas that fell within the jurisdiction of the City of Jerusalem, including the authority of the Local Traffic Authority to prescribe traffic arrangements.

A map marking the roads that were removed from the Local Traffic Authority’s jurisdiction, by virtue of the same Regulation, is attached to this notice. Bar-Ilan Street is among those roads removed from the Local Authority’s jurisdiction.

As such, Bar-Ilan Street is subject to the provisions of Regulation 18(c) of the Traffic Regulations-1961. Any traffic arrangement touching on Bar-Ilan, particularly one envisioning its closure, must be approved by the Central Traffic Authority.

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

These two letters set forth a clear and unequivocal position, according to which the Traffic Controller would not consent to the closure, as required by Regulation 18(c) of the Traffic Regulations. 

During oral arguments August 15, 1996, the Traffic Controller was questioned regarding the change in his position, after having decided to close Bar-Ilan Street at certain hours on Sabbaths and Jewish holidays. He did not reiterate Bar-Ilan’s importance. Rather, he stated that, following a conversation with the Minister of Transportation, it became clear to him that his original position failed to give proper weight to the harm that Sabbath traffic on Bar-Ilan Street caused the local residents. I will not expand on the impression that the Controller’s words made on this Court. Suffice it to say that his statements were not convincing. Indeed, his views regarding Bar-Ilan’s importance on Sabbaths and festivals—in terms of transportation—did not change. As noted in his letter dated November 29, 1994, the Controller was already well aware of the harm caused to the religious sensibilities of the local Ultra-Orthodox residents. It seems that the only factor that precipitated the Controller’s sudden decision to consent to Bar-Ilan’s partial closure on Sabbaths was his willingness to conform to the opinion of his supervisor, the Minister of Transportation. There was no change in the relevant considerations that would justify such a change in position.

25. The Local Secular Population. No one disagrees that the majority of residents living on and around Bar-Ilan Street are religious. Likewise, all agree that a local secular population does exist, whereas detailed data as to its precise size has not been set forth. Nevertheless, it is clear that its size is not negligible.

Petition HCJ 5090/96, brought in part by local secular residents, argues that “numerous secular residents still live in the area, including many non-observant elderly couples who, on Sabbaths and festivals, are visited by their children,” see para. 15 of the brief. Furthermore, this petition submitted, see para. 26, that “many of the local residents, being elderly, are not able to walk long distances and will therefore prefer to stay home [if Bar-Ilan is closed-off]. This would be tantamount to de facto house arrest for all those who do not believe that using one’s vehicle on the Sabbath constitutes a desecration of the Sabbath."

For our purposes, it is sufficient to presume that closing Bar-Ilan Street on Sabbaths and Jewish holidays will not only cut off traffic from one end of the city to the other, but will also block passage to those who, residing on and around Bar-Ilan Street, use the road to reach their homes and those of their loved ones.

26. Petition 5090/96 describes the distress experienced by two of the secular residents living in the area. Petitioner number three, Mrs. Avinezer, resides on Tzefania Street, a street adjacent to Bar-Ilan, and works at Hadassa-Ein Karem Hospital. Her work requires her to be on standby in case of a terrorist attack. As most of Tzefania Street's residents are Ultra-Orthodox, the street is closed on Sabbath, and petitioner number three, on weekends, is compelled to park her vehicle approximately three hundred meters from her home. Closing Bar-Ilan Street as well would force petitioner to park her vehicle over a kilometer away from her house.

Petitioner contends that her work sometimes requires her to reach the hospital as soon as possible. Thus, the petitioner fears that compelling her to park at a significant distance from her home “will prevent her from continuing in her position as terrorist attack standby personnel, while reducing the hospital’s willingness to employ her for this important position.”

Moreover, the petitioner fears that, in addition to interfering with her work, Bar-Ilan’s closure will disrupt her personal life as well. The petitioner is a single woman who eats her Friday night dinner and Sabbath lunch at her brother’s family’s home in Jerusalem.  Were she compelled to park her car about a kilometer away from her residence, as per the Minister’s proposed plan, she argues that she would have to “march over five kilometers on Sabbaths in order to continue with her regular routine…this would be particularly difficult in seasons where the weather would render this even more difficult.”

27. Let us proceed to the case of petitioner number four in HCJ 5090/96, Mr. Gabay. Mr. Gabay is a disabled IDF veteran, who has difficulty walking. His parents live on David Street, which crosses Bar-Ilan Street, in the heart of the area closed to traffic. He and his family customarily visit them, at times on Fridays and other time on the Sabbath, during the hours that the Minister decided to close the street to traffic. Petitioner argues that enforcing this arrangement will prevent him “from seeing his parents on Sabbaths and holidays, or, in the alternative, will make it quite difficult for them to meet, causing severe physical and emotional suffering.” See para. 24 of the petition.

28. As noted, the Court was not presented with any detailed information regarding the number of additional secular residents living in the area, and the manner in which the Minister’s decision is liable to affect them and their families. It was argued that a significant number of the secular residents were afraid to voice their opinions. These examples here, in and of themselves, point to the concrete possibility that harm will come to these residents. They point to a serious threat to their quality of life, to their ability to properly lead their lives and perhaps even to their occupations. It would not be inaccurate to say that the above harm is made particularly severe by the fact that these petitioners have not been given the option to be heard. According to the material before the Court, the Minister failed to turn his attention to their plight.

29. It seems to me that this failure to address the issues pertaining to the secular residents constitutes a defect in the Minister’s decision. Indeed, the positions of petitioners three and four, both as individuals and as members of the relevant group to which they belong, were not given any weight.

  I am therefore convinced that proper weight, and indeed, to my mind, significant weight, should have been given to the issues raised by the secular residents living on and around Bar-Ilan Street. This, however, was not done. There is no mention of the magnitude of this problem in either of the respondents’ briefs.

The only response found in these briefs is that the relevant balance is to be struck between two communities. I do not find this response convincing. It implies that Bar-Ilan’s secular residents form part of a more or less homogenous group, whose needs were taken into account by the Minister. This however is not the case. In his decision, the Minister considered the situation of the secular members of the public who use Bar-Ilan Street in order to get from one end of Jerusalem to the other and the alternatives available to them. He did not, however, distinguish between the secular public generally and the local secular residents, living on and around Bar-Ilan Street. The latter have additional, specific needs. Moreover, the harm to these residents is intensified in light of the fact that, due to the closure of most of the streets adjacent to it, Bar-Ilan is the only road open to traffic on Sabbaths and holidays, in the area in question.

Nevertheless, the fact that the street will be closed only partially, and only during particular hours that are specified in advance, can be seen as a mitigating factor. This is to say that local residents, and those wishing to reach them, have but to plan in advance. This however does not solve the problems associated with unanticipated trips, which are at times necessary. Nor does it solve the problem of the complications to the Sabbath routines of the local secular residents, and it fails to mitigate the fact that their freedom of movement is severely infringed as a result of the Minister’s decision.

30. The Absence of Any Change in the Original Conditions. Acting President, Justice Landau pointed out in Baruch supra., [2] at 166, that “we are dealing with interests of various segments of the population, whose characteristics may change. We will not do justice by weighing interests that no longer reflect the current situation.” A change in circumstances is likely to justify altering the existing arrangements, even with respect to matters touching on freedom of religion and worship.

This having been said, we must bear in mind that “extending protection to the feelings of one part of the population is liable to infringe on the feelings of another part.” Meatrael supra. [6], at 500. Indeed, the fact that we are dealing with the subject of a sharp public controversy cannot be ignored. Moreover, we must remember that deciding such cases involves determining the character of the area and the city and, at times, even the character of the country. The case here has potential ramifications on the character of Israel’s capital, Jerusalem, whose character is important to each and every Israeli citizen.

Furthermore, we must also recall that the decision to be rendered does not deal with a minor change. Instead, at issue is a sharp and drastic change to Sabbath traffic arrangements. Let us remember that, according to the Traffic Controller’s statements, the policy of the Ministry of Transportation is that roads of this nature should remain open on Sabbaths. See p. 12 of the meeting protocol dated August 15, 1996. The Minister’s decision, however, seems to indicate that this policy has been abandoned. To a certain extent, his decision has the effect of creating a new norm to balance the interests of the various communities involved.

Absent social consensus on these issues, any deviation from the existing arrangement involves harming one of the sides to this public debate. At times, harm of this sort may be justified under the circumstances. However, a decision to depart from the existing arrangements must be anchored in particularly well-grounded considerations. It must express a basic and substantive transformation in the facts on the ground. 

31. Did a substantive change occur in the area in the last few years? The material before us suggests that the answer is in the negative. Indeed, the composition of the local population has not changed of late. For years, the great majority of the street’s residents have been Ultra-Orthodox.  For years, the street’s character was what it is today. For years, alternative routes to Bar-Ilan have existed.

Even the Traffic Controller, who serves as the supreme professional authority for these purposes, cannot identify any change in the facts which could have sparked a change in his position. He attributes his drastic change to the fact that “when I asserted that the street was not to be closed I failed to give the proper weight to the depth of harm that motor traffic on Sabbath on Bar-Ilan Street causes the local Ultra-Orthodox residents.” See para. 12 of the Controller’s affidavit dated 12.7.1996. I have already addressed the change in the Controller’s position. I merely wish to emphasize that, even according to the Controller himself, there has been no change in the facts on the ground.

It is not the existence of alternate routes that sparked the authority’s change in position. We have seen that in November of 1994 the Traffic Controller was convinced that it would be improper, from a professional, traffic-related perspective, to close Bar-Ilan on Sabbaths and holidays, despite the existence of alternate roads. It would not be excessive to repeat his statements to this effect, according to which:

The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

This position, as the Traffic Controller noted in his affidavit of July 29, 1996, is anchored in “clear traffic-related considerations.” Nothing has changed from this point of view. If so, what occurred that would justify a change in the authorities’ position? What caused the Traffic Controller, who staunchly opposed the idea of closing Bar-Ilan in November of 1994, to support the closure less than two years later? What caused the Minister of Transportation, Mr. Levy, to adopt a decision so different from that of his predecessor, Minister Yisrael Keisar, who only in July of 1996 determined that “the Traffic Controller’s professional opinion is that the road is a main traffic artery not to be closed on the Sabbath” and that “the decision will be made on a professional basis?” See appendix 8 of the response brief of respondents 3-6 in HCJ 5016/96, summarizing the meeting between the Minister and the residents of Bar-Ilan Street on January 10, 1996. 

32. The Tzameret Committee, which addressed the developments in the area, noted in page 33 of its report:

After the Six-Day War, Bar-Ilan Street evolved from a peripheral street at the northwestern part of the city, to a road connecting Jerusalem’s newly built Jewish neighborhoods.… The area has become the heart of the Ultra-Orthodox concentration on both sides of Bar-Ilan Street. Although demonstrations by Ultra-Orthodox groups on Bar-Ilan Street, all the way back to 1988, can be considered a turning point in the debate, the street's one-time closure in honor of the Satmar Rebbe’s visit in 1994 is what led to increased efforts among Ultra-Orthodox factions to close the street to traffic.

The municipal elections of 1993, which granted the Ultra-Orthodox community decisive influence, gave rise to expectations in that community that the street would in fact be closed to traffic on the Sabbath. Moreover, the existence of alternate routes further strengthened the feeling that the secular public should give in to the demands of the local Ultra-Orthodox residents and refrain from traveling in their midst.

The Traffic Controller explained his change of heart in terms of the magnitude of the harm caused the Ultra-Orthodox residents. However, there is no reasonable basis for presuming that any change has occurred in the intensity of this harm over the years. The desecration of the Sabbath involved in travel has always existed. The Ultra-Orthodox residents' position regarding the desecration of the Sabbath is well-known, and has not changed over the years. Nor was there a change in the size of the local Ultra-Orthodox community. As such, it is difficult to suppose that the Traffic Controller was not aware that the Sabbath traffic gravely offends the local residents’ sensibilities and lifestyle. Indeed, it is no secret that streets in different parts of the country, particularly those adjacent to Bar-Ilan, are closed for precisely this reason.

33. Hence, the change must be found somewhere else. It is indeed quite difficult to ignore the impression that the true change lies in the Ultra-Orthodox community's unwillingness to accept genuine mutual compromise. In addition, a clear escalation is apparent in the tactics used by quite a few members of the Ultra-Orthodox community in order to force a change in the situation, including the use of threats and violence. Moreover, there has also been a change in the extent of this community's political power, both locally in Jerusalem and nationally.

Violence does not constitute a proper consideration worthy of being attached any weight, and this has been repeatedly confirmed by our jurisprudence. See, for instance, President Landau's statements in HCJ 512/81 supra, [65], at 543, insisting that it is “absolutely forbidden” to take violence into account. From this perspective, the case at bar is not dissimilar to HCJ 549/75 supra. [40], which involved the Film and Play Review Board's decision to sanction the screening of the film “Night Watcher” in theatres. The Board revoked this permission after a second deliberation, and the film was barred. In his opinion, Justice Vitkon addressed the decision to abandon the original decision, stating, at 764:

In my opinion, it is improper to deviate from the original conclusions simply because of the inability of certain factions to reconcile themselves with the Board's decision. Is the Board not aware that with every sensitive issue—whether sexuality, nudity, violence or offense to religious sensibilities—there will always be a minority, or perhaps even a majority, who will prefer that such a film not be publicly screened? However, he who believes that such a film should nonetheless be presented, is by the same token convinced that these objections, although sincere, should not be taken into account. This is the "other side" of mutual tolerance required in pluralist societies. If these objections give rise to the possibility of violent outbursts, this is a matter for the police to deal with in order to protect the public and preserve law and order. It is not, however, a consideration that should in any way influence a Board member to censor a film which, in his original opinion, was worthy of being screened.

To this, I will also add that developments regarding the Ultra-Orthodox community's standing in Jerusalem and its political clout cannot be allowed to influence the proper balance here. The proper balance must consider the facts on the ground and the local population's composition. It must take into account the road's size and importance. It cannot be influenced by the political clout of those who do not live adjacent to Bar-Ilan Street.

34. I summarize: none of the data presented before us can possibly justify deviating from the arrangement customary on Bar-Ilan Street for years now. No relevant change in the situation on the ground was pointed out. No consideration liable to prevail over considerations of transportation was shown. Moreover, I reiterate: the fact that the Minister is a religious, observant man is not a factor or reason that can justify closing Bar-Ilan Street on the Sabbath.

35(a). We have described the essence of the debate. We have examined the Minister’s decision and the applicable standards. We have surveyed the defects in the Minister’s exercise of discretion. We conclude that, according to the proper standards, the Minister’s decision does not reflect a reasonable exercise of the authority vested in him. Indeed, the Minister failed to take into account all the relevant considerations and did not give the proper weight to all factors.

(b) It seems to me that the Minister did not give proper weight to Bar-Ilan Street’s nature and character. His decision suggests that it is not clear whether he considered all the relevant data regarding the scope of traffic on that street. In any event, this data is not set out in the Minister’s brief. One way or the other, the Minister did not consider the fact that he is dealing with a main traffic artery, which cannot be viewed as a “private domain,” belonging to the Ultra-Orthodox community living alongside it. As such, the Minister did not give proper weight to positions of professionals charged with the matter—professionals who originally claimed that, from a traffic perspective, Bar-Ilan must necessarily remain open on Sabbaths and Jewish holidays.

(c) The Minister took into account data indicating that those seeking to reach Jerusalem’s northern neighborhoods from the entrance to the city will be able to reach the northeastern neighborhoods even subsequent to Bar-Ilan’s closure. According to this data, closing the street will lengthen the travel time between the city’s entrance to the Sanhedria Intersection by 1.5 km, or two minutes, via Route no. Four. The residents of western neighborhoods, such as Beit HaKarem and Yiryat Yovel would also have access to Route no. 4. The Traffic Controller further notes that the northern neighborhoods’ residents have the option of directly exiting the city via Route no. Four to Tel-Aviv or via the Modi’in Road (Route no. 443). As for the additional time such a detour would take, the Tzameret Report suggests that it is similar to the extra time it would take to reach the city’s northwest. See the Tzameret Committee Report, at 166.

I believe it is difficult to see these facts as changing the balance in the matter before us.

First, this description is no solution for those seeking to reach the Bar-Ilan Street area on Sabbaths, neither for those who live there nor for those who wish to visit the local residents.

Second, I am not convinced that the extra travel-time is negligible. Thus, in Baruch [2], a detour of two and a half additional kilometers was understood by Acting President, Justice Landau as a factor acting against allowing the Traffic Controller’s decision in that matter to stand. This was also Justice Vitkon’s view. Nevertheless, both these judges upheld the decision, essentially because the resulting harm was limited to no more than fifty vehicles. Id. at 166. Needless to say, the matter before us is dramatically different. As noted, the road in question in central to Israel’s capital, serving not only Jerusalem’s residents but all those visiting the city. In light of the above, I do not believe that the availability of Route no. Four renders the Minister’s solution of choice palatable from a traffic perspective. We recall that, despite the existence of Route no. Four, the Controller’s professional opinion, from the end of 1994 to March of 1996, was that Bar-Ilan should not be closed.

Third, in HCJ 5090/96, the petitioners contend that the detour, Route no. Four, “passes through Shuafat Ridge, a recently built Ultra-Orthodox neighborhood, and adjacent to the Ramot neighborhood, itself containing a significant number of Ultra-Orthodox residents. It is no secret that the Ultra-Orthodox residents of Shuafat Ridge and Ramot also desire this street’s closure.” See para. 19 of the petition. To this we should add that the area where Route no. Four connects with the Shmuel HaNavi Intersection is also populated by Ultra-Orthodox residents. With this in mind, it is difficult to see the detour via Route no. Four as offering a reasonable alternative to Bar-Ilan’s users.

Indeed, it would appear that rerouting traffic to Route no. Four merely redirects the harm from one street's (Bar-Ilan) Ultra-Orthodox community to that of another, the alternate route, which is equally Ultra-Orthodox. Moreover, rerouting Sabbath traffic to the alternate route intensifies the desecration of the Sabbath, by increasing the requisite travel time.

(d) The Minister decided that Bar-Ilan Street would be closed during certain hours on Sabbaths and Jewish holidays. He imposed an intermittent closure of the street to traffic on those days or, in the colorful words of Justice Cheshin, a “zebra” like closure. Thus, for part of the Sabbath, the street would remain open, while it would be closed for the other. Part white, part black, with every person deciding what they feel is which. At first glance, this approach seems to consider the needs of those who wish to use the road on the Sabbath. Upon closer examination, however, it becomes apparent that this arrangement is riddled with difficulties. Knowing that the road will be closed during certain hours, motorists will fear not being able to reach it in time, which will undoubtedly deter many of them from arriving in the first place. Furthermore, the Minister decided that the road will be closed for a period following the entrance of the Sabbath and for a period prior to its end. These times, however, vary with the calendar, and not all are familiar with them. As such, a partial closure is liable to become quasi-absolute.

Beyond this, there is an additional practical difficulty. The material submitted to us suggests that the road will turn into a pedestrian walkway of sorts for the Ultra-Orthodox during the hours that it is closed to traffic. In light of the members of the local Ultra-Orthodox community’s sworn testimony, detailing their staunch belief that the street should remain closed throughout the Sabbath, it is quite difficult to see how the road can be safely cleared of pedestrian traffic so as to allow motorists to use it during the times reserved for such use. This fact too is liable to effectively turn the Minister’s decision to one that brings Sabbath motor traffic on Bar-Ilan Street to an absolute halt.

(e) And so, I believe that as things stand, the Minister’s decision to close the street, even partially, in order to spare the religious sensibilities of the Ultra-Orthodox public, fails to reflect a reasonable balance between the relevant considerations. In truth, the harm to the religious public’s sensibilities is beyond question. However it seems to me that, under the circumstances, and in light of other factors, this harm does not justify the Minister’s decision to close the street. To my mind, the Minister’s decision fails to strike a reasonable compromise between the various interests. This being the case, I am convinced that the decision is unreasonable and must be struck down.

36. My conclusion is not altered by the recommendations of the committees that addressed the matter of Sabbath traffic on Bar-Ilan Street, nor by our case law on similar issues. I will now turn to briefly examine both these issues.

The Committees

37. The first committee to broach the matter was headed by Mr. Elazar Sturm. This committee was set up by the Mayor of Jerusalem in December of 1994 to examine traffic arrangements in Jerusalem. The Committee’s recommendations were published in 1995, and touched on a number of Jerusalem streets, including Bar-Ilan. The Committee recommended that Bar-Ilan be closed to traffic on days of rest during prayer times only—105 minutes on the Sabbath eve, four hours on Sabbath morning, and 105 minutes before the end of the Sabbath.

In retrospect, it became clear that this Committee was misled by inaccurate data regarding the volume of traffic on the road. Thus, appendix 9 to the respondents’ response in HCJ 5016/96, which summarizes the meeting that took place on February 13, 1996 at the Minister’s office, with the participation of the Mayor of Jerusalem and Mr. Sturm, indicates that the latter believed that there is a decrease in the volume of traffic on the Sabbath—from 15,000 vehicles to only 3,500. Moreover, he was under the impression that only 700 vehicles would be affected by the street’s closure during prayer times. In addition, the Traffic Controller’s affidavit of July 29, 1996 indicates that the Sturm Committee felt that traffic on Bar-Ilan Street on Sabbaths amounted to only 12% of weekday traffic.

38. Comparing this data with the data that surfaced following a subsequent professional examination reveals that the original data was erroneous. It appears that the volume of traffic weekdays stands at about 50,000 vehicles—over three times the data presented before the Sturm Committee. On Sabbaths, traffic on Bar-Ilan stands at over 13,000 vehicles, once again three times the figure presented to the Committee. That figure constitutes 28% of weekday traffic, not 12% as the Sturm Committee believed. Over 5,000 vehicles pass through Bar-Ilan Street during prayer times on the Sabbath—over seven times more than the Sturm Committee had estimated! As such, the Sturm Committee’s conclusions cannot be seen as carrying any weight for our purposes. These conclusions are based on faulty and unreliable data.

39. The second committee to deal with the issues at bar was the committee chaired by Dr. Tzvi Tzameret (“the Tzameret Committee”). This committee was set up on August 27, 1996, on the heels of the hearings of these petitions. The committee report stated that:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

This decision was adopted by a majority of five Committee members, with one abstaining and two opposing. A short time thereafter, however, it became clear that the parties were substantially divided as to the proper interpretation of the recommendation. Three of the members who supported the decision, Professor Eliezer Schweid, Professor Galia Golan and Dr. Tzvi Tzameret, stated that they had supported the proposal based on the understanding that it was intended to make way for the institution of public transportation in Jerusalem on Sabbaths. In contrast, one of the proposal’s other supporters, Professor Daniel Shperber, rejected this interpretation, saying that the expression “status quo” was meant to recognize every secular person’s right to desecrate the Sabbath, but to not recommend instituting public transportation on that day.

40. As such, the committee's recommendations cannot be perceived as truly reflecting the views of the actual majority of Committee members.  In effect, no consensus had crystallized among the members as to the possibility of closing Bar-Ilan on Sabbaths. As such, the Minister cannot rely on this Committee report, and it would appear that of this he is aware. In his brief, the Minister stated that, in light of the statements of three of the Committee members, the recommendation does not reflect “a social consensus between the various segments of the public regarding Sabbath traffic.” See paragraph 22. In a similar vein, the Minister made the following statements in the Knesset (on November 6, 1996, sitting 35) (appendix 2 to the additional affidavit from November 13, 1996 in HCJ 5025/96) “I do not wish to rely on the Tzameret Committee’s report at this juncture as its members each have their own interpretation."

To this I will add that the committee's recommendations are not based on a normative solution to the problem of Bar-Ilan Street. Rather, it is a social compromise, the fruit of negotiations conducted among the committee members. Moreover, the other matter discussed by the committee—the issue of public transportation on the Sabbath—is unrelated to the question of Bar-Ilan Street’s closure, except according to three of the Committee members. It gives rise to problems of a completely different character. Thus, the committee's recommendations cannot be seen as a normative source to support the reasonableness of the Minister’s decision.

Case Law

41. My conclusions remain unaltered even in view of this Court’s previous rulings in which it refrained from interfering with the authority’s decision to close other roads.

         (1)   The League [1] case dealt with the Traffic Controller’s decision to close segments of Jerusalem’s King George Street and Shmuel Hanagid Street, adjacent to the Yeshurun Synagogue, to traffic on Sabbaths and Jewish holidays. The road segments were closed during the morning hours because “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. To this end, it was taken into account that “the Yeshurun Synagogue is a large, central synagogue in Jerusalem, serving a significant community of worshippers. Moreover, the alternative to motorists would only require them to travel an additional 300 meters.” Id. 

The Court held that the Traffic Controller was authorized to take these considerations into account, despite the fact that the factor in question was of a religious character. In its judgment, the Court considered the significant disturbance caused to the large community of worshippers and the fact that motorists would only have to travel an additional 300 meters. In that situation, the Court held that an appropriate balance between the conflicting interests had been struck.

I do not feel that that decision has any influence on the result to be reached here. The street in that instance was not a central traffic artery like Bar-Ilan. Nor did that matter deal with the harm to the residents living in the segments to be closed. We will recall that the balance in the case before us must be struck in accordance with the concrete circumstances of the matter, as this Court has held, Id. at 2668:

The Central Traffic Authority is under a duty to examine each concrete case according to its special circumstances, taking into account each interest likely to be affected by the street closure, for better or worse. In the end, the problem is one of degree and extent.

Having found that the circumstances here are substantively different from the League [1] case, it is clear that the conclusion reached by the Court there is not binding here. To this I will add that, in contrast to the League [1] case, the matter of synagogues was not a central consideration in this instance. Advocate Mandel, learned counsel for the Minister and Traffic Controller, submitted that her client, the Minister, did not attach any significant weight to those synagogues along Bar-Ilan Street:

While there may also be a few synagogues along Bar-Ilan Street, priority was given to allowing the religious population to live an observant lifestyle. (protocol of the hearing of January 12, 1996, at 5).

(B) The Baruch [2] case involved the Traffic Controller’s decision to close a 300 meter segment of HaShomer street in Bnei Brak to traffic on Sabbaths and Jewish holidays. The road in question was “within an Ultra-Orthodox community, on both sides.” Id., at 161. One of the two Ultra-Orthodox neighborhoods adjacent to the road had been only recently built. The road forming the subject of controversy connected two main roads—Geha Road and Jabotinsky Drive. Getting around the closed segment involved traveling 2.5 additional kilometers.

The Court upheld that decision, with the majority of justices emphasizing that very few members of the secular public were likely to be harmed. Acting President Landau pointed out that, while the decision restricted motor traffic on Sabbath around the clock, and required motorists to travel an additional 2.5 kilometers, the closure involved “discomfort to only a very limited segment of the public, the owners of only about fifty private vehicles…this as measured against disturbing the Sabbath rest of a large population in what is the heart of the of the Ultra-Orthodox community." Id. at 165. In a similar vein, Justice Vitkon pointed out that “the number of local residents wishing to see the street closed on Sabbaths and festivals far outweighs the few interested in protecting their freedom of movement, and even these will not be denied that freedom but only have it minimally restricted.” Id. at 167. Justice Etzioni there limited himself to a general comment, and stated that  the Court is not to interfere with the Traffic Controller’s decision, as the latter “issued the order only after seriously weighing several factors, taking into account all the interests and data respecting the locals, particularly in light of the recommendations of the public committee” Id.

This description clearly reveals that the central factor in the Court’s decision was the negligible size of the secular public whose freedom of movement was affected. Under the circumstances, the Court upheld the decision to close the street to traffic on the Sabbath. As described above, the situation before us is not at all similar to the situation there. We are dealing with a main road, which connects entire parts of Jerusalem to each other. How can a main road such as Bar-Ilan be seriously compared to a road serving a mere fifty people? As we have seen, the number of motorists affected is a crucial issue in the case here.

42. In light of the two decisions cited above, the position of the Minister of Transportation here represents a dramatic change. Upholding the Minister’s decision in this case would be tantamount to setting a new norm, according to which it will be possible to close main traffic arteries, of significant importance, whenever the feelings of the local religious community are offended. As a result, the secular public will have no choice but to become accustomed to routine travel along detour routes on the Sabbath.

Truth be told, this matter requires us to weigh the circumstances pertaining to it, and it alone, as I have done in my judgment. Nonetheless, balancing the interests and considerations relevant to the dispute also sets a precedent for the future. This precedent will be relied on in other cases. The word of the Court is heard from afar. Thus, in proceeding to rule in this case, it is incumbent on us to take a holistic, contextual approach, aware of the road our that decisions pave. If in the past, we were asked to rely on the League [1] and Baruch [2] cases—cases where special circumstances justified Sabbath street closures—our decision in this instance will undoubtedly be cited in the future. If we uphold the position of the Minister in this instance, we will be adopting a new approach, according to which offense to religious feelings is primary and takes precedence over other factors. Thus, the tolerance and compromise required of Sabbath observers shall disappear and traveling along detours shall, by the same token, become routine. So it will be, even when the street to be closed on the Sabbath is a central traffic artery.  For obvious reasons, I shall bring no specific examples, but I do foresee the imminent closure of additional main roads in Jerusalem on the Sabbath, simply because the particulars relating to those roads are no different from the circumstances at bar.

Certainly, these statements are not meant as a warning against a “slippery slope,” not that that argument should be minimized. Rather, my fear is that the application of this new norm will have practical ramifications, today and certainly in the future, on Sabbath street closures in Jerusalem.

43. I feel it necessary to make an additional comment with regard to this matter. Among the conditions cited in the Minister’s decision was the condition that the entrance to Jerusalem remain open. The need for setting out a condition such as this, intended to calm those wishing to reach Jerusalem by car on Sabbaths and holidays, is in itself worrisome. Did anyone even fathom that the entrance to the city would actually be closed to traffic on Sabbaths? It is unthinkable that the entrance to Israel’s capital would be closed to the nation’s citizens, wishing to visit it on Sabbaths and holidays. The Minister’s decision seems to suggest that the entrance remaining open is somehow contingent on Bar-Ilan Street’s partial closure. I will not deny that I fear the dynamic likely to ensue in the wake of this decision.

44. I will now summarize my opinion. I have concluded that the Minister’s solution is unreasonable, and that this Court’s intervention is required. This conclusion is based on data specifically pertaining to Bar-Ilan Street, which shows that the road in question is central, and serves a large number of secular motorists on the Sabbath. As such, the harm to the sensibilities of the local Ultra-Orthodox residents must give way to the motorists’ freedom of movement.  

The Ministry of Transportation’s professional experts also based their opinions on the road’s centrality. I have deemed the Minister’s decision unreasonable by virtue of his failure to raise any concrete reason that could serve as a basis for his decision to deviate from his own professionals’ unequivocal opinion. Nor did he offer any basis supporting the substantial change in the previous long-standing arrangement. As such, I believe that no significant weight should attach to the argument that alternate routes are available, particularly since these professionals were well aware of this and, nonetheless, unequivocally opposed the closure.

My conclusion is also based on the fact that the harm caused to those members of the public wishing to reach the Bar-Ilan Street area on Sabbaths and holidays was not considered. Nor was proper weight attached to the harm caused the local secular residents, living on and around Bar-Ilan Street.

Based on these grounds, I have concluded that the Minister’s decision deviates from the parameters of reasonableness, and that this Court’s intervention is required.

Epilogue

45. It is no secret, and indeed self-evident from the material before us—especially from the report of the Tzameret Committee—that, prior to the adoption of the arrangement prescribed by the Traffic Controller on July 10,1996, serious disturbances occurred on Bar-Ilan Street. This problem was raised in an earlier petition. See HCJ/ 4712/96 Meretz-Democratic Israel Faction v. Commander of the Jerusalem District, Israel Police [74], which discussed the police decision not to permit a secular march in the area. There, Id. at 82, we cited the opinion of the Jerusalem District Police Commander:

In this last year, the police have been faced with attempts by Ultra-Orthodox elements to disturb the peace on the Sabbath on a weekly basis. Every Sabbath, hundreds of Ultra-Orthodox individuals gather to block the road. They call out, screaming at passing vehicles. At times, there are attempts to throw stones at passing vehicles, or to place roadblocks.

I revisit these statements, bearing in mind the respondents’ claims in support of the street’s closure. The response affidavit submitted by respondents numbers 7-16 in HCJ 5016/96, who are also respondents 8-17 in HCJ 5025/96 and respondents 6-15 in HCJ 5090/96, cites our decision in Baruch [2]. There, we stated that the Court will not strike down an otherwise proper arrangement merely because violence was used prior to its adoption. In the same breath, however, the respondents proceed to argue that the violence in the area must be “a determinative consideration regarding Bar-Ilan’s closure on Sabbaths and holidays.”

Likewise, respondents numbers 11-20 in HCJ 5016/96, who are also respondents in HCJ 12-21 HCJ 5025/96 and respondents 10-19 in HCJ 5090/96, argue that there is a serious fear that a failure to close Bar-Ilan “is liable to result in serious violent confrontations between extremists on both sides, thereby fanning the flames and dragging all of Jerusalem into an unending cycle of violence.” These respondents then turn to the “stormy demonstrations which occurred on Bar-Ilan Street in July-August of 1996, during which many police offices and protesters were injured.” Respondents submit that these events demand a rule in which freedom of movement takes a backseat in order to prevent near certain harm to the public order. 

It appears that these respondents are unfamiliar with the entirety of our statements in Baruch [2]. There, Id. at 165, we stated that, even though an otherwise proper arrangement will not be struck down because attempts to achieve this arrangement employed violence, a country of law and order simply cannot allow itself to be subject to violent pressure tactics:

In a law-abiding country such as ours, the physical pressure of illegal demonstrations and violent protests must never be allowed to impose solutions. Violence breeds violence and a country that allows such violence to succeed will destroy itself from within…

How should the Court, in retrospect, relate to the unfortunate fact that that the administrative arrangement in question was reached following violent outbursts? Clearly, no court would uphold an illegal arrangement for fear that striking it down will lead to renewed violence. On the other hand, nor would it strike down an otherwise proper and suitable arrangement merely because of the violent incidents that preceded it.

We are not dealing with a near certain probability of harm to the public order. Instead, our concern is with an overt threat to use violent tactics to disturb the public peace, the likes of which have already been employed, if the respondents’ demands regarding Bar-Ilan Street are not met.  Contrary to some of the respondents’ submissions, not only is this factor not a decisive factor in whether we should uphold the Minister’s decision, it is not even a proper one. It is no coincidence that the Minister failed to advance this particular argument in his briefs. As we noted in Baruch [2], this line of reasoning is an invitation to street violence to overwhelm the decision-making process. It is tantamount to placing a gun against the authorities’ forehead. It encourages anarchy to replace the rule of law. As such, this consideration may not be taken into account by a democratic regime.

46. This line of reasoning, advanced by respondents, brings me back to the statements cited by my colleague, Justice Turkel, in Meretz supra. [74], at 835. The statements were written by Professor David Hed, in The Limitations to Tolerance and Freedom: The Liberal Theory and the Struggle Against Kahanism, regarding tolerance:

Tolerance contains a paradox, as it requires that violence not be used against views and behavior that are considered unjustified. Why must we tolerate views and speech that seem completely erroneous and indeed loathsome?

In general, the answer to this question is that this is the only way to maintain a pluralistic society, in the absence of consensus regarding political, religious or moral values.

These statements are equally applicable here. In effect, mutual tolerance and compromise are the recipe for maintaining communal life in a society of many shades such as Israeli society, particularly in a place as complex as Jerusalem. The duty to be tolerant, however, is not a one-way street, to which only the secular community is subject. This duty also binds the Ultra-Orthodox community, who demand that their religious sensibilities and lifestyle be respected. Tolerance is equally required of this public, in the face of activities which may not be to their liking. Only by way of mutual tolerance will it be possible to attain true coexistence, which reflects an authentic compromise. To this effect, President Shamgar wrote in Hoffman supra. [39], at 354:

Tolerance and patience are not one-way norms, but broad, multi-dimensional imperatives…tolerance is not to be invoked only to collect rights, but rather, as a measure for recognizing one’s fellow’s entitlements…tolerance must be mutual. Shows of strength that surface from violent groups are not worthy of such tolerance.

In a similar vein, in CA 105/92 supra. [20], at 211, Justice Barak stated:

Tolerance is a central value in the public order. A democratic society seeking to fully maximize the wants of each individual will end up unable to satisfy even the minority of those aspirations. Ordered communal life is naturally premised on mutual forbearance and mutual tolerance.

An arrangement attained by force is no compromise. Nor does it reflect tolerance. Instead, it demonstrates power, and converts the decision-making process into a pattern of surrender to the use of violence. Justice Silberg highlighted the dangers of such a pattern in HCJ 155/60 supra. [64], at 1512:

Today, it is argued before us that the religious sector is likely to engage in demonstrations and protests; tomorrow, it will be argued that anti-religious sectors will run wild, disrupting the peace if the city gives in to their religious counterpart’s demands. This line of argument is a sharp and very dangerous sword, liable to result in the surrender of public institutions to the terror on the street.

To my dismay, it seems that the Minister’s decision here constitutes a very dangerous development. Prior to the decision, the objective facts in the Bar-Ilan Street area remained unchanged. The professional opinion of the authority charged with the matter was clearly and unequivocally against the closure. The only change was an increase in violent activity by the Ultra-Orthodox in the area; they have employed violent tactics, which have become routine and systematic.  It is against this backdrop that the Traffic Controller made his new decision.

Therein lies the danger. Numerous points of contention exist in the area of secular-religious relations, including the problem of traffic on Sabbaths and Jewish holidays. Thus, the fact that the decision here was the product of the violent pressure may signal that disturbing the peace is likely to pay off. As I noted in Meretz supra. [74], at 830 “surrendering to those threatening violence shows weakness and encourages additional threats and violence, until it becomes difficult to foresee when and under what circumstances such violence will cease.” It is incumbent on the authorities to break this vicious cycle, before it is too late. It must send a clear message that violence does not pay off.

47. My colleague, the President, believes that the violence on Bar-Ilan Street did not influence the Minister’s decision. My colleague distinguishes between cases in which violence actually caused the change in policy, and between cases where the violence served “only” to raise the matter, and bring it to the authority’s attention.

For me, this distinction is a difficult one. It is problematic in terms of the lesson that must be sent to those who believe that violence can help them achieve that which they could not obtain under ordinary circumstances.

To this end, it is important to emphasize exactly what occurred in the case before us. The Traffic Controller’s original position was that Bar-Ilan Street should not be closed, even partially. This was a reasonable position, which would not have required the Court’s intervention. This is also the view of my colleague, the President, see para. 104 of his opinion, who, in discussing the various options which the Minister was authorized to select, noted:

[h]e would have been authorized to decide to continue with the status quo. In other words, Bar-Ilan Street would have remained open to traffic. This would have been a proper

 

decision, striking an appropriate balance between the various considerations to be taken into account.

 

What happened in the case before us? Although the state of affairs on Bar-Ilan Street prior to the Minister’s decision was both reasonable and appropriate, and though all the relevant data remained unchanged, the surge of violence caused the issue to be “reconsidered.” Even if it could be said that the violence did no more than lead to the matter being reconsidered, this is sufficient for those who employed it. I fear that this violence will have far-reaching implications.

This being the case, if my opinion were to be accepted, the petitions in HCJ 5016/96, HCJ 5025/96 and HCJ 5090/96 would be upheld, and the orders nisi made absolute, and the Minister’s decision to partially close Bar-Ilan Street to traffic on Sabbaths and holidays would be declared null and void. I would reject the petition in 5434/96 which requested that Bar-Ilan Street be closed at all hours of the Sabbath and Jewish holidays.

 

I would not make any order for costs under the circumstances.

Justice M. Cheshin

Before me are the opinions of my colleagues, President Barak and Justice Or. Both are well-reasoned. Both are beautiful legal tapestries. In my heart I always knew which opinion I would prefer. Now, in my own words, I shall attempt to explain the reasons for my choice. 

The Minister’s Decision and the Sturm Committee Report

2. On one of the first days of November 1996, the Minister of Transportation, Rabbi Yitzhak Levy, decided to close Jerusalem’s Bar-Ilan Street to motor traffic on Sabbaths and Jewish holidays during specific hours, essentially prayer times. In the Minister’s own words:

Bar-Ilan Street will be closed to traffic on the Sabbath and Jewish festivals during prayer times, in accordance with the Sturm Committee’s recommendation.  For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St, on Sabbaths and Jewish festivals.

The closing times shall be from one and three quarter hours before the entry of the Sabbath, from one and three quarter hours prior to the termination of the Sabbath and between the hours 07.30 - 11.30 during the Sabbath day.

The Minister made this decision in his capacity as Traffic Controller, after assuming the Controller’s powers as per section 42 of the Basic Law: The Government. This decision is before the Court for review. The result turns on the effect of this decision, which we know was the Minister’s. In other words, while we know that the hand signing at the bottom of the decision was the Minister’s, the voice and authority behind it are the Traffic Controller’s. Indeed, the Traffic Controller remains Traffic Controller even if the Minister temporarily fills his shoes.  Needless to say, we are reviewing the Traffic Controller’s decision, the issue being whether the Traffic Controller was authorized to close a street to traffic for a significant period of time, every Sabbath, for what are essentially religious reasons.

3. The decision in question speaks for itself. The Minister of Transportation informed us that he decided to close Bar-Ilan Street to traffic “in accordance with the Sturm Committee’s recommendations.” The Minister decided to adopt the Sturm Committee’s recommendations as is, including the committee’s reasoning. Otherwise, why would he even raise the Sturm Committee’s name to begin with? The question we should be asking is what prompted the Minister to adopt the committee’s recommendations and why did he see fit to do so?

4. First and foremost, the Sturm Committee was not established by the Minister of Transportation, nor did it report to him. Rather, the committee was established by and reported to Mr. Ehud Olmert, the Mayor of Jerusalem. Its report was also presented before Jerusalem’s City Council, which served as a basis for the Council’s decision of October 30, 1995. What then prompted the Minister to pull out the Sturm Committee’s recommendations from the archives, dust them off and revive them? I have searched long and hard but failed to find a clear reason for this course of action.

Second, anyone reading the Sturm Committee’s report will learn that it can speak in vague generalities. For instance: “the Committee believes that the problem of Sabbath Traffic deeply divides Jerusalem’s population and that appropriate solutions must be found.” The Committee also stated that:

Testimony before the Committee reflected broad agreement and understanding among individuals of all social and political colors, religious and secular. There was agreement and understanding regarding requests to foster an atmosphere which conforms to the sensibilities of religious neighborhoods, while bearing in mind the needs of others

These statements are accurate and well known. However, to conclude from this that it is proper to close Bar-Ilan Street—as per the Sturm Committee’s recommendation and the Minister’s decision—is quite far-fetched. In effect, the Committee’s report bears no trace of any in-depth analysis dealing with Bar-Ilan Street’s closure, and the Committee’s majority failed to supply a proper response to Ya’acov Rubin’s minority opinion, which staunchly opposed Bar-Ilan Street’s closure. Rubin, himself a religious man, carefully reasoned his reservations regarding the majority’s recommendation, and I have yet to see or hear a worthy response to his dissent. 

Third, the Tzameret Committee’s report, unlike the Sturm Committee’s report, presents us with an in-depth and detailed analysis of Bar-Ilan Street’s closure. How is it that the Minister failed to consider the Tzameret Committee’s observations regarding Bar-Ilan Street?  While the Minister was authorized not to agree with the Tzameret Report, he was not permitted to ignore the findings of a committee that he himself appointed. How could he possibly have ignored these thought-out statements and go directly to the Sturm Committee’s report? Let us also recall that the Sturm Committee’s report was submitted two years prior to the Minister’s decision.

Fourth, as my colleague, Justice Or, noted in paragraphs 37 and 38 of his opinion, the Sturm Committee relied on erroneous data as to the volume of traffic on Bar-Ilan Street. While it would not be accurate to say that faulty data necessarily leads to erroneous conclusions, it is clearly improper to adopt the committee's findings without verifying the impact of the faulty data. To the best of our knowledge, no such verification was conducted.

Fifth, when the Sturm Committee’s report was submitted, the Traffic Controller opined that “it would be unthinkable to close Bar-Ilan to traffic on Sabbaths or on any other day.” It would stand to reason that the Minister, acting as Traffic Controller, would attempt to explain the statements made by the Traffic Controller two years prior. Unfortunately, no such explanation was offered.

5. Finally, while the Sturm Committee did recommend that particular streets be closed to traffic on the Sabbath and holidays, it further recommended that other streets not be closed. Indeed, the Committee proposed that Yam Suf Street remain open for “it serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods.”

These recommendations were presented to Jerusalem’s City Council on October 30, 1995. In its decision regarding Bar-Ilan Street, the Council held that it lacked the authority to order Bar-Ilan’s closure—“The Jerusalem City Council cannot close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.” As for Yam Suf Street, the City Council decided to close it partially, without explaining why it saw fit to stray from the Sturm Committee’s recommendations. From that very day, Yam Suf Street has remained partially closed to traffic on Sabbaths and holidays, in accordance with the decision of the Mayor and the City Council and contrary to the Sturm Committee’s recommendation. Both the Mayor of Jerusalem and the City Council sharply deviated from the Sturm Committee’s recommendations, a deviation for which we have found no explanation.

The Minister of Transportation has decided to adopt the Sturm Committee’s recommendation regarding Bar-Ilan Street’s closure. If so, than why did he not further add and instruct that Yam Suf Street be opened, in accordance with the Sturm Committee’s recommendation? For the recommendation to close Bar-Ilan Street was made simultaneously with the recommendation not to close Yam Suf Street. These recommendations are connected. If the Minister saw fit to adopt the one, why did he fail to adopt the other? The reasons for this are unclear and have not been presented to this Court.

6. During the hearings, it was proposed that Bar-Ilan Street be closed, in accordance with the Sturm Committee’s recommendations, provided that Yam Suf Street be opened. In other words, the Court suggested that the Sturm Committee’s recommendations be fully implemented—with regard to both Bar-Ilan Street and Yam Suf Street.  Petitioners accepted this proposal, while the Minister requested additional time to examine it. Later, the Minister informed us of his refusal to accept the proposal, stating that “there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.”

I admit that I do not understand this answer. First of all, no one suggested that reopening Yam Suf Street was intended to ease Bar-Ilan Street’s closure. Not even the Sturm Committee argued this point. Rather, all that the Committee said was that this street “serves a significant number of motorists from the Ramot Eshkol and Givat HaMivtar neighborhoods." These words remain uncontradicted.  Second, it was clear to all that this quid pro quo—closing one street and reopening another—was intended to form the basis for mutual concessions and mutual tolerance. Did the petitioners not share the Mayor of Jerusalem’s awareness of the fact that Yam Suf Street was not meant to serve as an alternate route to Bar-Ilan Street? Anyone who reads the Mayor’s letter to the Minister of Transportation will learn and understand—a street that has been closed will not be reopened.

A final word: putting aside the Mayor of Jerusalem’s position, we have yet to hear a proper answer from the Minister as to why he decided to adopt only the restrictive parts of the Sturm Committee’s recommendations, while rejecting other parts. For my part, it is my belief that the burden of explaining and clarifying this lies with the Minister. No explanation, however, was either seen or heard.

The Tzameret Committee

7. In his brief of November 6, 1996, the Minister of Transportation discussed the Tzameret report and its recommendations at length. To the best of my understanding, the Minister decided not to make use of the Committee’s recommendations due to the differences of opinion which arose among its members regarding Sabbath traffic arrangements.  Later on, he decided to rely on the same part of the Committee’s recommendations directing Bar-Ilan Street’s closure on Sabbaths and holidays during prayer times. This left me confused: did the Minister make use of the Tzameret Commission’s report or did he not?

8. The following was the Tzameret Committee’s recommendation, submitted by a majority of five members, with two members dissenting and one abstaining:

Taking into account the needs of the Ultra-Orthodox community, we hereby recommend adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic on Sabbath and holidays during prayer times, provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.

Anyone reading this recommendation will see that it is divided into two parts. The first part orders that Bar-Ilan Street be closed on Sabbaths and holidays during prayer times. The second part is contingent on the first—Bar-Ilan may be closed “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.”

This second part served as a sharp point of contention among the Committee members, shattering the consensus respecting Bar-Ilan Street’s closure expressed in the first part. As soon as the ink on the report was dry, everyone began to offer their own view as to what was included in the report. After the dust settled, we were left with two opposing camps, each denying the other’s point of view. Some Committee members believed that Bar-Ilan Street should not be closed unless public transportation was instituted on Sabbaths. Other Committee members interpreted the report as precluding public transportation from being introduced. I presume that each and every Committee member argued in perfectly good faith—how could I presume otherwise? Even so, we do not have an unequivocal recommendation made by the Committee.

9. Had the Minister informed us that he did not see any need to consider the Tzameret Committee’s recommendations, as they were not unequivocal, I would have been silent. However, in his brief, the Minister found it appropriate to contest the second part of the recommendation, a course of action which prompts me to speak out. Regarding this second part, the Minister had the following to say:

The Committee’s recommendation regarding Bar-Ilan Street’s closure is two-fold: the first part is clear; the second is ambiguous and subject to multiple interpretations. 

And further on:

The said condition…is more opaque than transparent.

In conclusion, the Minister stated:

In light of the data presented, no one among the committee believed that the closure of Bar-Ilan Street on Sabbaths and holidays was completely inappropriate.

Five remaining members recommended that, taking into account the needs of the Ultra-Orthodox population, Bar-Ilan Street should be closed on Sabbaths and Jewish holidays during prayer times. Two Committee members believed that Bar-Ilan Street should be closed to traffic throughout the Sabbath and holidays. One member abstained.

Moreover, the Minister stated:

And so it is that, to my understanding, the majority of the Tzameret Committee members believed that an appropriate balance between the freedom of movement and  the lifestyle of the Ultra-Orthodox community residing around Bar-Ilan Street justifies adopting the Sturm Committee’s recommendation, according to which Bar-Ilan Street shall be closed during prayer times on the Sabbaths and Jewish holidays.

And more:

From the above it appears that, were I to adopt the Committee’s recommendations regarding street closures throughout the country, and effect the proper statutory changes, nothing would prevent a decision to close Bar-Ilan Street to traffic on Sabbaths and Jewish holidays.

Furthermore:

The above suggests that the majority’s recommendations are not contingent on instituting public transportation.

Under these circumstances, the recommendation before me cannot be said to reflect a social consensus between the various segments of the public regarding Sabbath traffic.

The following is my own interpretation of the Minister’s statements: the recommendation to close Bar-Ilan Street is unequivocal and clear, whereas the subsequent condition is ambiguous and opaque. Therefore, says the Minister, I have decided to adopt the clear and ignore the ambiguous. Furthermore, seeing as how the majority of the Committee members supported Bar-Ilan’s closure, I shall adopt their statements to this effect and order that the street be closed.

10. This interpretation of the Committee’s recommendations is erroneous. Suffice it to say that a reading of the Tzameret Committee’s report and its appendices—which stretch out over dozens of pages—clearly reveals the strong bond between the first and second part of its recommendations. There is no need to delve any further in order to see that the first part of the recommendation cannot survive without the second. The two are as one. Both are like limbs of the same body; amputating any part is tantamount to killing the whole. The Tzameret Committee’s recommendations constitute one whole, as Professor Galia Golan explained in her letter to the Minister dated November 3, 1996, which I cite below:

While I was prepared to sign the Committee’s report, this step was quite difficult for me, due to the decision to close Bar-Ilan Street during prayer times which, in practice, means the street’s complete closure on Sabbath. Nevertheless, as stated, I was prepared to sign by virtue of the “package deal”—the secular public would approach the Ultra-Orthodox in the spirit of compromise provided the latter would approach the secular in the same spirit. The street would be closed provided that arrangements would be made for public transportation in Jerusalem on Sabbaths in accordance with the public need and the status quo. It was also understood that certain cultural activities that do not involve the public desecration of the Sabbath, such as the supervised opening of the Jerusalem Theatre, be allowed.

Since the publication of the Committee’s report, it became clear to me that there was no—nor will there be—any “package deal.” No changes to public transportation or cultural activities on the Sabbath will be made. The Committee’s findings only lead to Bar-Ilan Street’s closure and will not bring about any additional changes.

I cannot shut my eyes and ears and convince both myself and others that the Committee’s conclusions are to my liking when I know that, in practice, they will not be implemented in their entirety. The secular public is once again making concessions, for the umpteenth time, without obtaining anything in return, despite the conditions spelled out by the Committee, which forms the basis of its conclusions. If this condition is not brought to fruition, the entire structure that the Committee attempted to construct, based on mutual consideration and tolerance, crumbles.

As such, so long as I am not in any position to enforce this condition and implement the Committee’s recommendations in their entirety and simultaneously, I will refrain from signing the report. I will be prepared to sign if and when it will become unequivocally clear to me that the decision to close Bar-Ilan Street during prayer times will only be implemented together with the rest of the Committee’s conclusions.

The Minister was entitled to say that the Tzameret Committee’s recommendations were not to his liking, due to Professor Golan’s statements and those of other Committee members, such as Dr. Tzvi Tzameret and Professor Eliezer Schweid, and that he therefore decided to ignore the committee report. However, I would think that the Minister was not permitted to assert that the conditions set out by the Committee are opaque and can be ignored, while also concluding that the majority of Committee members recommended Bar-Ilan’s closure. It is clear to all that some Committee members believe that the recommendation to close Bar-Ilan was contingent on the existence of public transportation on the Sabbath. Without the support of the condition the whole edifice collapses. How then can the Minister claim that his decision to close Bar-Ilan is based on the Committee's recommendation?

11. Furthermore, the Minister of Transportation discusses the Tzameret Committee's “majority” and “minority” opinions, in an attempt to prove that most Committee members supported the closure. In addition to the Minister’s statements cited above, he also asserted:

The majority’s recommendation regarding the closure of Bar-Ilan Street during prayer times on Sabbaths and Jewish holidays is conditional, the condition being that the closure is contingent on "arrangements being made to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo."  

The said condition…is more opaque than transparent.

Three of the majority Committee members set out the condition in a manner lacking any factual basis whatsoever.

I for my part fail to understand the Minister’s preoccupation with the issue of majority and minority views. Indeed, while the matter of majority and minority may well arise with respect to bodies composed on a democratic or representative basis it has no place in a body assembled according to neither of these methods. The Tzameret Committee was not composed on a democratic or representative basis. The Minister of Transportation informed us that the Committee’s composition reflects a balance of opinions and views in the matter of religious-secular relations. Thus, the Minister writes that half of the Committee is “composed of religious individuals: two representatives of the Ultra-Orthodox community, two other religious representatives and four others defined as "not religious." Needless to say, this composition is not "democratic." If the committee is supposed to represent the interests of Bar-Ilan Street’s residents, the committee should have included a greater number of Ultra-Orthodox members. Conversely, if the starting premise was that the Committee should reflect the composition of Israel’s population, then it should have included a greater number of non-observant individuals.

In recommending that the Committee be set-up, we meant a committee capable of reaching a “social consensus between various communities.” We further added:

Such an agreement would quite naturally be premised on mutual patience and tolerance and on a long-term understanding regarding the future of Jerusalem. Rather then focusing solely on the issue of whether to close Bar-Ilan Street, it would relate to expected social dynamics and their effect on the secular-religious relations in the coming years. On the basis of this agreement, it would be possible to find long-term solutions for the various problems that these petitions raised.

See supra, para. 27 of Justice Barak’s opinion. And further on:

This lead to our proposal that a public committee be established, whose members would provide a balanced reflection of the spectrum of views and perspectives on secular-religious relations. The committee’s goal would be to strike a social covenant for secular-religious relations. The committee’s recommendations would be considered by government agencies, which would assist them in determining policy in traffic matters, including the potential closure of Bar-Ilan Street.

Id., at para. 28. While it may only take one side to torpedo an understanding or covenant, it takes two to create such a covenant. Here, one of the sides involved—the non-observant side—will only agree to such a covenant on the condition that public transportation on the Sabbath be made available. The other side does not agree to this. What then is the point of discussing majorities and minorities? Indeed, only a unanimous agreement or, in the alternative, an agreement reached by a clear and overwhelming majority, can lead to a social covenant. Clearly, unanimous agreement was not to be found, nor was there a clear and overwhelming majority. In the absence of agreement, calculating majorities and minorities is rather pointless.

12. It would appear, however, that for the Minister to base his decision on the Tzameret Committee’s report was tantamount to relying on a broken reed. Cf  Isaiah 36:6 [112] The Minister's efforts to rely on the committee's recommendations trapped him in a web of errors.

Interim Summary

13. Essentially, neither the Sturm Committee’s report nor the Tzameret Committee’s report and their respective recommendations can legitimize the Minister’s decision to close the street. In light of the Minister’s choice to base his decision on such a faulty foundation, the decision must be struck down.

14.  With these remarks in mind, let us further examine the Minister’s decision on its merits, this time ignoring both committees’ recommendations and limiting ourselves to the substantive considerations raised by the Minister in his capacity as Traffic Controller. We shall present the factors weighed by the Minister in reaching his decision and subsequently proceed to interpret, explain, and analyze.

The Decision on its Merits

15.  I have read the Minister’s brief dated November 6, 1996 very carefully. I have further read the brief of the Traffic Controller, Mr. Alex Langer, dated July 29, 1996. For all intents and purposes, the Minister’s brief is a continuation of Mr. Langer’s submissions, and both may be read as one. A reading of both these briefs teaches, without a shadow of a doubt, that the main consideration guiding the Minister in his decision was the threat that the local observant population’s feelings would be offended. In the Minister’s own words, as stated in his brief:

I have examined the Tzameret Committee’s report and the briefs submitted to this Court, as well as the Traffic Controller’s recommendations. The problem related to offending the religious population living on and around Bar-Ilan Street is both complex and most familiar—a matter which I have discussed repeatedly with the Traffic Controller, in the wake of his decision of July 10, 1996.

The additional material presented to the committee does not reveal any traffic-related reason that changes the balance between the harm to the religious lifestyle and between the infringement of the secular public's freedom of movement.

The Minister refers to the Traffic Controller’s decision of July 10, 1996—in other words, Mr. Langer’s brief of July 29, 1996—and clearly and unequivocally expresses the need to prevent any harm from coming to the feelings of the observant residents. Let us now read a few lines from Mr. Langer’s brief:

I have balanced between the freedom of movement of those asking to use this street on Sabbaths and holidays and the interest in safeguarding the feelings of the religious residents living on Bar-Ilan/Yirmiyahu Street and in its vicinity. In exercising my powers as Central Traffic Authority, I am authorized to take interests of a religious character into account when they affect a significant segment of the population.

The dilemma before me raises a conflict between legitimate interests. On the one side is the respect owed the Sabbath, as understood by a significant proportion of the local residents, living in the neighborhoods along the road. On the other side are the rights of all the city’s residents, in general, and the residents of the northern neighborhoods in particular, to use the existing and convenient road for their purposes.

The former demand that the road be completely closed to traffic on Sabbaths while the latter request that it remain open on Sabbath, as on any other day of the week.

On the one hand, there is harm to the religious sensibilities of a large population, for whom Sabbath traffic on its streets is extremely offensive. On the other hand, a significant number of people are inconvenienced by having to refrain from traveling along this road on Sabbaths and holidays. As noted, the additional travel time resulting from the street closure is a mere few extra minutes. It should be emphasized that we are not dealing with interference with the freedom to reach one’s destination. Rather, the restriction concerns the right to get from point A to point B a particular way. To employ a metaphor, a one-way street, or a dead end restricts the right to travel along it freely but does not constitute an infringement on freedom of movement since alternate routes permit motorists to reach their destination of choice.

In light of this, I believe that, at this stage, Bar-Ilan Street should be closed to traffic when the majority of the religious public is on its way to and from synagogue, times when the offensiveness of passing traffic is amplified.

To my mind, there is no need to elaborate: the Sabbath is what prompted the Minister of Transportation to decide as he did.

16. We have quoted the Minister and the Traffic Controller at length, and for good reason. We do so because the briefs of other respondents—this is the case regarding the petitioners in HCJ 5434/96—repeatedly raise arguments as to the pressing need to close Bar-Ilan Street on Sabbaths and holidays. The Court’s concern, however, is with the reasoning underlying the Minister’s decision. Thus, before jumping into the legal deep, we insisted on clarifying in which direction we were headed and what we were searching to find.      

17. The question before us is two-pronged. First, was the Minister (in his capacity as Traffic Controller) authorized to take into account the Sabbath observance factor and the local residents' religious feelings in making his decision to close Bar-Ilan Street? Second, if the Minister was in fact authorized to take these factors into account as he did, was he permitted to attach determinative weight to this consideration as he did? Is the Sabbath factor capable of outweighing all the other considerations that point to the need to leave Bar-Ilan Street open to traffic all week long, including on Sabbaths and holidays (with the exception of Yom Kippur, of course)?

Prior to turning our minds to this question, let us make the following general comment regarding the Minister’s decision, on its merits.

18. It would appear that the Minister’s decision is one that attempts to reconcile the irreconcilable. In deciding to close Bar-Ilan Street to vehicular traffic during specific hours and not others, the Minister carved the Sabbath to pieces or strips. An analogy may be drawn to one driving down a tree-laden road with the sun peering between the trees and leaves, intermittently lighting his way, alternating with the shade from the trees. A moment of sunshine, followed by a moment of shade, and again. In no time, the driver will become dizzy and in the future will want to drive down a different road in order to avoid this dizzying experience.

The manner in which the Minister has chosen to close Bar-Ilan Street—in pieces and strips—will prompt motorists to prefer alternate routes throughout the Sabbath. This is all the more true as the opening and closing hours of the street are a function of the entrance and exit of the Sabbath—times that, as we all know, change on a weekly basis. In fact, those asking that the street be closed throughout the Sabbath may be justified in arguing the Sabbath cannot be divided. Whatever the case may be with regard to that argument, it appears that the Minister’s decision will effectively result in the street’s closure throughout the Sabbath, at all hours. In effect, the street closure is a clear and certain prescription, leading to a single conclusion—Bar-Ilan Street will be closed to motorists and will appear closed throughout the Sabbath, from a little before sundown on Friday to the appearance of the first stars on Saturday night. This is how the Minister’s decision must be understood and as such it shall be examined.

19. At this juncture, we may turn our attention to the merits of the Minister's decision, bearing in mind that, from his perspective, the Sabbath factor was the determining consideration. In our opinion, the Minister exceeded the proper boundaries of reasonableness or, if you will, he exceeded his authority in deciding to close Bar-Ilan Street on Sabbaths and holidays. First, he attached excessive weight to the religious consideration. Second, he subjected the public domain to an improper arrangement. Third, he expropriated property that belongs to the public and turned it into private property. Let us now analyze these points, one by one, in order.

The Religious Consideration in an Authority’s Exercise of its Discretion      

20. In Meatrael [6], both Justice Or and I dwelled on the role of discretion in the decision of a government authority. I have but to repeat that which was said in that instance: Israel is a democracy under the rule of law. The fact that religious commandments are not the law in Israel, unless passed into law, is a supra-principle enshrined in our law. Even when a religious commandment is passed into law it is only binding by virtue of its statutory status. Our law also provides for freedom of religion and freedom from religion. An individual’s right to observe religious commandments is fully protected provided, of course, that he does not, in so doing, disrupt public order or violate the country’s laws. At the same time, an individual is entitled not to have religious commandments coerced on him against his will. Only a Knesset statute can order otherwise. After the enactment of the Basic Law: Human Dignity and Liberty even a Knesset statute is subject to the permanent restrictions prescribed by the Basic Law.

Our law is separate from religion and religious commandments are not binding unless enshrined in statute: “the principle of the separation between religion and state will guide and direct our laws. Only in accordance with a statute passed by the Knesset can a religious commandment be enforced. It may only be enforced in a manner that is both explicit and specific, in addition to being set out in primary legislation.” Meatrael [6], at 507. In other words: “considerations that have their source in religious commandments are not to be taken into account by government authorities unless the Knesset provides otherwise.” Id. For this reason, a city is precluded from forbidding the sale of non-Kosher meat or pork by virtue of the powers conferred on it by the Municipal Ordinance [Revised Version]. See HCJ 122/54 Axel v. Mayor of Netanya [75]; HCJ 72/55 Mendelson v. Municipality of Tel-Aviv/Jaffa [76]. Similarly, the Food Controller’s authority to forbid pig-farming was not recognized in Lazerovitch [5]. See also 1 A. Rubenstein, The Constitutional Law of the State of Israel (1997) [92]

This basic principle is found in the separation between religion and state. Of course, this is “an ‘Israeli-style’ separation: a separation involving a unification of sorts.” See Meatrael [6], at 506. The significance of the principle of separation of religion and state is that religion will not be imposed on the citizen and resident unless enshrined in statute. The religious system does not form the country’s law—its commandments are not the binding law of the state unless infused with the power of statute by the Knesset.

21. The aforementioned suggests that religious considerations cannot properly take center-stage or prevail over other legitimate considerations. In other words, taking into account religious considerations is deemed improper when these attempt to take center-stage among the considerations being weighed by a government authority. This was the case in Axel [75], Mendelson [76] and Lazerovitch [5]. See also Crim. A 217/68 supra. [12]. This is not the case when religious considerations merely play a secondary role, with all that that implies regarding the authority’s exercise of its discretion. While at times it may be difficult to distinguish between primary and secondary considerations, in general, we are capable of distinguishing between what is central and what is peripheral. Thus, for example, we will not hesitate to rule that the main objective of the Import-Export Ordinance [Revised Version]-1979 is economic, see Meatrael [6]; that the central goals of the Municipalities Ordinance [Revised Version] are general municipal objectives, rather than religious ones, see Mendelson [76] and Axel [75]; and that the Traffic Ordinance’s [Revised Version] primary objectives are traffic and transportation oriented goals.

Following this approach, it is possible to explain and interpret the rules set out in the Yeshurun Synagogue case, HCJ 174/62 [1] and the Baruch [2] case. In Yeshurun [1], the Court held that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Yeshurun [1], at 2677; that the “Yeshurun Synagogue is Jerusalem’s largest and most central synagogue, housing a large community of worshippers on Jewish holidays and Sabbaths,” Id., and that the inconvenience caused motorists due to the prohibition to drive near the synagogue is minimal. For these reasons, the Court agreed to close the streets near the synagogue on Sabbaths and Jewish holidays during the morning hours. The differences between the case at bar and that particular case are many. I will stress the following three differences. First of all, regarding motor traffic, King George Street and Shmuel HaNagid Street (the streets closed to traffic in the Yeshurun Synagogue [1] case) pale in comparison to Bar-Ilan Street. We were unaware of the exact number of vehicles passing through King George Street during prayer hours when the Yeshurun Synagogue [1] case was decided; we do know, however, that thousands of vehicles pass through Bar-Ilan Street.

Second, in the Yeshurun Synagogue [1] case, the city requested that the streets neighboring the synagogue be closed to traffic during the morning hours alone—not on Friday evening, on Sabbath morning, or at the end of the Sabbath, which, in practice, is tantamount to closing the street to traffic throughout the Sabbath. Thus, our case involves a full closure, rather than one during the morning hours. Third, the plight of the local residents was not at issue in Yeshurun [1]; here we know that closing Bar-Ilan would burden these residents. Above all, let us recall the following: the Yeshurun [1] case was decided in 1962 and, if we will try to look back, we will certainly remember what Jerusalem was like in those days, prior to the Six-Day War, and the number of vehicles to be found on Israel’s streets back then. Thus, in comparing the year 1962 to the year 1997, the differences between these two cases become clear.

Let us now turn to the rule in Baruch [2], the Bnei Brak case. While the case involved the closure of a road throughout the Sabbath, a careful examination of the reasoning underlying the decision reveals that the Court failed to comment on the closure’s effect on through traffic. The Court turned its attention exclusively to the plight of the local residents—both the Ultra-Orthodox and the non-observant. The Court addressed the harm caused the first group if the road would remain open to motor traffic and the harm caused the second group if it were in fact closed. In the words of Acting President Landau, Id. at 165:

In this case, we are dealing with the discomfort caused a limited number of residents, possessing about a mere fifty private vehicles…against the harm to the Sabbath rest of a significant population concentrated in the heart of the Ultra-Orthodox community.

Justice Vitkon’s statements, Id. at 167, were similar:

From the perspective of the number of local residents, those interested in the street’s closure on Sabbaths and holidays by far exceeds the number of those interested in freedom of movement, bearing in mind that the latter’s freedom of movement is not negated but merely restricted in a manner which does not pose any significant burden. This being the case, I am in favor of granting the petitioner’s request.

The case at bar, however, is quite different, if only for the fact that there are thousands of vehicles passing through Bar-Ilan Street. Baruch [2] by no means dealt with the same volume of through traffic. In truth, while the road closed in that instance was referred to as a “traffic artery,” the Court did not go any further to address the nature of the road in question or the effect that closing it would have on passing traffic. To this let us add and recall that the authorities made no effort to inquire into the number of those non-observant residents living on and around Bar-Ilan Street whom the closure would potentially harm. How can we then learn from the Baruch [2] case in this instance?

22. In Meatrael [6], the Court distinguished between the exercise of discretion regarding religious considerations and those involving human welfare, stating, at 507:

Considerations regarding the observance of religious commandments per se are not appropriate administrative matters unless prescribed by law. The considerations of man, qua man, however, are most legitimate. Such is the nature of democracy, in which the individual’s welfare and ability to flourish are of paramount importance. Where various segments of the population battle each other and the interests at stake are intertwined, the matter of setting priorities is self-evident. Weighing the interests inevitably leads to the need to decide between values, each pulling in its own direction. In balancing these interests we shall find it possible—and indeed our duty—to consider individual interests, or those of different sectors of the population, provided that we do not coerce the other into observing religious commandments. Religious commandments, qua religious commandments, shall not be imposed upon those who are not observant of them.

The Yeshurun [1] and the Baruch cases illustrate human welfare considerations being taken into account, following the Court’s finding that "the authority’s actions aimed at preventing harm to the religious sector will not cause significant harm to the secular segment of the public.” Meatrael [6], at 500. The same cannot be said in our case, where we are dealing with thousands of motorists served by Bar-Ilan Street.       

23. On the subject of freedom of religion and freedom from religion: the history of mankind presents countless instances of religious coercion, which directly infringe the freedom of religion. This was the case with orders to bow down to various images, to forcefully convert from Judaism to Christianity or Islam, to eat a certain proscribed food item. Freedom from religion, however, is quite different. An example of infringing one's freedom from religion is imposing a duty to pray against one’s will. Generally, however, infringements on freedom from religion are indirect and therefore often difficult to identify. It is therefore included in the general rights vested in the individual. Indeed, because of the difficulty in pinpointing an infringement of this sort, religious considerations may at times prevail over other conflicting considerations.  A case in point: Baruch [2], where a street closure forced motorists to take a longer road, and raised the question of whether the motorist's freedom from religion had been infringed. In Justice Vitkon’s opinion, Id. at 166:

The street closure constitutes religious coercion against this secular public, seeing as how the closure is not limited to prayer times at the local synagogue…the closure is imposed throughout the day.

By contrast, Justice Etzioni opined, Id. at 167:

I would not go so far as to say that the fact that some of the residents are precluded from using a segment of the road amounts to a certain degree of religious coercion, as my honorable colleague, Justice Vitkon, suggests. This is not a case of religious coercion as there is no absolute prohibition on travel on the Sabbath. Rather, we are dealing with a limited restriction, which does not harm the secular public’s sensibilities or its conscience, but merely inconveniences it.

In Yeshurun [1] the Court agreed with Justice Etzioni’s opinion, Id. at  2668, stating that the ban on traffic in the synagogue’s vicinity does not in any way constitute “religious coercion whatsoever, as the order in no way compels the petitioner to act against his conscience or views regarding religion.”

I, for my part, tend to agree with this last statement. To say that compelling a motorist to lengthen his road-time infringes his freedom from religion is, to my mind, stretching both language and substance. An observant Jew can be said to be devout, but it is difficult to say of one who is not observant that he is “devout” in his non-observance. In other words: the fact that individuals are barred from traveling in the synagogue’s vicinity during prayer times, which indirectly lengthens travel-time, constitutes coercion and infringes on the individual’s freedom to drive next to the synagogue whenever his heart desires. Even so, it would be difficult to deem this arrangement as infringing freedom from religion. An infringement of freedom—yes; an infringement of the freedom from religion—rather doubtful.

In light of these difficulties, freedom from religion is often “swallowed up,” so to speak, by an individual’s general right to freedom. It is for this reason that we prefer to speak of the authority’s power and the boundaries of the considerations that it is entitled to take into account. In other words, freedom from religion lays hidden under the doctrines of the authorities’ discretion and under an individual’s general right to freedom, as guaranteed by our country’s laws. This is the source of the aforementioned rules, according to which an administrative authority is precluded from taking into account religious factors as a principal consideration unless explicitly permitted or instructed by the legislature.

24. In Israel, every individual is entitled to the constitutional rights of both freedom of religion and freedom from religion. Subject to the Basic Law: Human Dignity and Liberty, or the Basic Law: Freedom of Occupation, an authority can only take religious considerations into account—as a primary consideration—by virtue of a statute. An administrative authority must be empowered by a statute—not by a regulation—if its wishes to take religious considerations into account. Neither may religious considerations be made primary considerations with regard to the enforcement of laws. See HCJ 1520/91 Vilensky v. National Labor Court [77], at 513. The Traffic Ordinance [Revised Version] was intended to regulate traffic and transportation arrangements. It was not meant to advance religious issues or matters of faith. Thus, if the Traffic Controller believes that traffic on Bar-Ilan Street on the Sabbath offends the religious sensibilities of the local observant residents, and decides to close the road to traffic throughout the Sabbath in order to avoid causing this offense, it is incumbent upon him to ask the Knesset to enact a statute authorizing him to do what he feels is necessary. The arrangement must take statutory form and only an explicit Knesset statute is empowered to authorize the Traffic Controller to act as he wishes. The individual’s right to freedom of religion and freedom from religion are protected in both the private and public realm. If society seeks to limit this freedom, it can only do so by Knesset legislation.

The Private Realm Belongs to the Individual and the Public Realm to the Public

25. As a general rule, the private realm belongs to the individual and the public realm to the public. A person’s home is his and his family’s; city streets belong to the entire community. This is also the case in relations between religion and state. Every person has the right to freedom of religion and freedom from religion in the private domain. The state and its emissaries must safeguard and protect this freedom using all means available to them. This is the case respecting the private domain and it is equally the case regarding the public domain. In both these realms the state will protect the individual’s right to freedom of religion and freedom from religion. By definition, this right signifies that no one will be religiously coerced.

26. Our concern is with these two sets of pairs: individuals and the community, in the private realm and in the public domain. Both these pairs relate to each other in certain ways. We can be sure of the following, subject to statute and constitution: neither an individual nor the community can impose on another in the latter's private domain. Similarly, in the public domain, an individual will not be allowed to impose his will on another or on the community. Our case raises a question with regard to the connection between the individual and the community in the public domain. Is the public entitled to force its religious customs on the individual who finds himself in the public realm, in their midst, and thus negate that individual’s right to freedom in the public domain? The Court touched on this issue in Meatrael [6], at 508, stating:   

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

All this is to say that a heavy burden lies on the community whenever it seeks to deny the freedom of an individual situated in the public realm.

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

Let us emphasize: at present, we are dealing with the expansion of the private domain only with regard to the public desecration of the Sabbath. We shall not, however, consider expanding the private realm in respect to any other matter involving the imposition of religious customs in the public domain. Thus, in regard to any other matter, the public domain remains public and the observant residents living in the area have the same rights as anyone else—no more. The same would apply to opening a pub in the center of a Muslim village or a movie theatre on the Sabbath in the heart of an observant neighborhood. See Meatrael [6], at 508.

All these matters may be examined from the perspective of the relevant administrative authority. We ask ourselves whether the authority acted within the confines of its jurisdiction and within the boundaries of reasonableness when it chose to expand the private domain with regard to the public desecration of the Sabbath, or when it forbade opening a pub or a movie theatre in a certain neighborhood. We, however, prefer to peer underneath the exercise of discretion and examine the relevant conflicting interests. The central issue is whether there is authority to coerce an individual to do—or refrain from doing—a certain act in the public domain, when the reason for coercion is rooted in religion.

28. The matter at bar does not involve the ordinary exercise of administrative discretion. Had we been dealing with placing a no-entry signpost for purely traffic-related considerations or with closing a certain roadway for construction purposes, we would be examining the Traffic Controller’s exercise of his discretion through the prism of administrative law. This, however, is not the case when the Traffic Controller turns to “extra-traffic” considerations, such as religious matters. In this instance, a constitutional consideration of the first rank comes into play. A constitutional consideration requires constitutional analysis and the ordinary rules of administrative law are not fit for the challenge. Whether we like it or not, we are within the realm of constitutional law and the Traffic Controller’s discretion is not the same as it would be understood by administrative law. Of course, constitutional considerations constitute the foundation of our entire legal system—they permeate it through and through. See 1 I. Zamir supra. [91], at 103. But, in our case, the constitutional aspects of the case at bar are prominent. As an aside: seeing as how we are dealing with a constitutional struggle, the fact that the Traffic Controller changed his mind becomes peripheral.

29. The individual’s “extended” home may be said to include his home’s surroundings. Do these surroundings include a street the likes of Bar-Ilan? To this end, the statements of the Traffic Controller, Mr. Alex Langer, in his letter of November 29, 1994, addressed to the Mayor of Jerusalem, are most pertinent:

In light of publications in the media and the situation on the street itself, I found it appropriate to apprise you of our position on the matter. The Ministry of Transportation considers Bar-Ilan Street to be a main traffic artery, connecting Jerusalem’s northern neighborhoods to the city’s center and south, every day of the week. It would be unthinkable to close this route to traffic on the Sabbath or on any other day. Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Let us be well aware of the fact that Bar-Ilan Street is a “main traffic artery” and therefore “[i]t would be unthinkable to close this route to traffic on the Sabbath or on any other day.” So it was when the Traffic Controller spoke according to his conscience, employing sharp language such as “unthinkable” to illustrate his view. Let us offer our own view on this matter: the Traffic Controller spoke as he did without even being asked his opinion. His statements revealed that he had heard or read of the Sturm Committee’s intention to recommend that Bar-Ilan Street be closed on Sabbaths and holidays, which outraged him, prompting him to write to the Mayor as he did. When a person speaks frankly he exposes the contents of his heart.

The Traffic Controller felt the need to reiterate his position, and followed up his first letter with another, just a few months later, expressing his point of view unequivocally. He wrote the following to the Mayor of Jerusalem on November 3, 1995:

As I have already stated in my letter dated November 29, 1994, I will not agree to Bar-Ilan Street’s closure on Sabbaths and holidays, or on any other day.

The Traffic Controller took a similar stance on March 27, 1996, in a meeting between the Minister and Bar-Ilan’s residents. In summarizing the meeting, it was announced—in the Traffic Controller’s professional opinion, that Bar-Ilan Street is a central traffic artery which must not be closed on the Sabbath.

Later on, the Traffic Controller announced that he had changed his mind, a matter on which we have yet to comment. Nevertheless, the clear words spoken by him cannot be retracted, namely, that Bar-Ilan Street is a “main traffic artery” and that it would be “unthinkable” to have it closed on Sabbaths and holidays. These words are not mine—they are the Traffic Controller’s own. Moreover, these statements are quite significant seeing as how our case involves a constitutional matter of first rank. We are not dealing with the ordinary exercise of discretion as a routine administrative issue—such as a decision to reroute traffic to the right or left—but with a matter involving relations between religion and state. As we have seen, a matter such as this demands both constitutional and statutory attention.  The instant that matters of religion—of either religious freedom or coercion—are involved, we follow and live by statute and the constitution, not by the Traffic Controller’s instructions. For this very reason, as noted, the fact that the latter changed his mind will only be given minimal weight.

30. From the Traffic Controller’s statements we learn that Bar-Ilan Street is a “main traffic artery” that should not be closed—neither on the Sabbath nor on any other day. Applying these words to our own case, Bar-Ilan Street is the public domain, and not in the formal sense alone. For even those alleys between the houses are part of the public realm. But Bar-Ilan Street is the core of the public domain—in both name and substance. Bar-Ilan Street is by no means the private domain; it is public domain, in the truest sense of the concept. Each and every individual has an equal right in it: those living in its vicinity and those who do not. Bar-Ilan Street is the main road, the King’s Highway along which the King and his people shall travel. The Traffic Controller is not permitted to compel the individual not to use a road such as this.

31. In describing Bar-Ilan, the Traffic Controller did not use the phrase “main traffic artery” in vain. An artery is a blood vessel infusing man with life. Bar-Ilan Street is a main traffic artery. Thus, in deciding to close the street to traffic, the Minister infringed a constitutional principle. This principle provides that a government and administrative authority is precluded from restricting an individual’s freedom in the public realm for religious reasons. And so, government authorities renounce the freedom to take religious considerations into account unless specifically authorized, at which time these factors are to remain peripheral. For our purposes, the Minister of Transportation deviated from that which is permissible by attaching determinative weight to religious considerations and by imposing religious commandments on the public domain—on a central traffic artery belonging to the public.

Perhaps there will be those who will inquire what became of the rule in Yeshurun [1] or in Baruch [2]. To them I provide the following answer: at a certain point quantity becomes quality. At times, a little difference can mean a lot; a straw may break the camel’s back. The two precedents above dealt with a “small quantity.” By contrast, the case at bar, stated in these terms, involves a very large quantity. The Court in Baruch [2] stated that a mere fifty private vehicle owners were liable to be negatively affected by the closure—those fifty as compared to hundreds of thousands here.

On Expropriation and Individual Rights

32. The private realm is the individual’s. Neither an individual nor the public can infringe the individual’s right to his private domain unless explicitly empowered to do so by statute or by the Constitution. And what of the rights of the public and the individual in the public realm? They have the right to walk through the public domain, to drive through places intended for that purpose, to travel on roads and through fields—a right generally known as the liberty or freedom of movement. Nevertheless, the public domain is the public’s home, and each member of the public can use it provided that he or she behaves as one does in public—respecting their fellow’s right to do the same, while refraining from causing the public realm any harm. The liberty of movement in the public realm is subject to these rules.

How then does a person travel in the public domain? There was a time when people traveled on foot or rode on animals:

And Bilam arose in the morning and saddled his ass and rode with the princes of Moab. And God’s anger was kindled because he went: And the angel of the Lord stood in the way for an adversary against him. Now he was riding upon his ass, and his two servants were with him.

Numbers, 22:21-22 [113]. So it was in the days of old. Today, the car has replaced the donkey. Freedom of movement, however, remains the freedom to walk in the public realm, to ride donkeys or to drive cars. See Crim. A 217/68 supra. [12].

The value attaching to freedom of expression is of the highest order. Deputy President Ben-Porat stated that freedom of movement was equal in weight to freedom of speech, Dahar [23], at 708, and of course it is unnecessary to elaborate on the value attaching to the latter freedom. Moreover, freedom of movement is a descendant of freedom—freedom, as we all know, being of primal importance:

The right to life and to all things upon which life depends—the right to breathe, to drink, to eat—is the source of all rights. Second in rank is freedom.

HCJ 606/93 supra. [41], at 25. Such is freedom of movement and this is its place in the hierarchy of individual rights in the public realm.

My colleague, Justice Or, elaborates on the subject of freedom of movement, concluding that in our case, in the internal struggle between clashing interests, freedom of movement prevails. While I do agree with him, my agreement is accompanied by a certain feeling of discomfort. Why? Freedom of movement, like other recognized individual freedoms, is not crafted of one clay. Instead, under the umbrella of each and every freedom, we find a plethora of freedoms. Take, for example, freedom of expression; an accepted position is that commercial expression is not afforded the same degree of protection as political expression, which is more closely guarded. See HCJ 606/93 supra. [41]. This is also the case for freedom of movement. In other words, not every matter that may claim to fall under that heading is worthy of the same degree of reverence and protection. Freedom of movement, first and foremost, implies the individual’s primary personal freedom. As per section 5 of the Basic Law: Human Dignity and Liberty, “[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise” except in accordance with the limitations set out under section 8 of this Basic Law.

Alongside personal freedom we find freedom of movement, as it is commonly understood—the individual’s liberty to roam throughout the land, from top to bottom, from left to right, from one end to the other of the public realm. This is freedom of movement in all its wonder, in all its glory. In this context, let us, for instance, recall the provisions found in Regulations 109,110 and 125 of the Defense [Emergency] Regulations-1945, authorizing the Military Commander to restrict the individual’s rights in the public sphere.

Is this the freedom of movement at issue here? I would find it difficult to agree. First of all, the intended prohibition only applies to motoring on Bar-Ilan Street. It is permitted to enter Bar-Ilan Street provided one is traveling on foot. Secondly, the time it takes to travel down the alternate routes is not much longer than the time it would take to go down Bar-Ilan Street. In conjunction, these two factors render make the following conclusion practically inescapable: the issues raised in this case are at best peripheral to freedom of movement: far from its core, possessing no greater strength than any other peripheral right.

The matter, however, does not end here. The reason being that, in our opinion, there is no need to project the case as fitting exclusively within the doctrine of freedom of movement in the public realm. The matter should be understood more broadly, namely in the context of the individual’s rights in the public sphere, with freedom of movement being only one of its manifestations. Each and every individual in society has a vested interest in the “public domain”—a public property interest of sorts—which implies that society is prohibited from expropriating this interest unless expressly authorized by statute or by the Constitution.

A parable: a man owns a large ranch. In order to facilitate getting around his extensive piece of property, he paves roads and paths inside the ranch. The ranch is private property, as are the roads and paths. Suddenly, strangers, without having acquired any right in the property, disturb this man and prevent him from continuing to use the paths or roads on his farm. The man will take these strangers to court and win his case against them, seeing as how they trespassed on his property. The case will not raise the issue of freedom of movement—the freedom to move about the farm. Instead, the man will argue his right to his private property. That is the parable and here is its lesson: the individual has a public property interest of sorts in the public domain and no one has the right to infringe on this interest—this right, among other freedoms, implies freedom of movement.

33. And so, for instance, “designated property”, which the Property Law-1969, § 107 defines as “public property designated to be used for the public’s benefit,” including rivers, riverbeds, roads, railways and sewers. The law designates how such property is to be dealt with, “to ensure that the public is not driven from property intended for its benefit.” See Y. Weissman, Property Law 276 (1993) [95]. Furthermore, “the purpose of these rules is to ensure that this property will continue to serve the public interest for which they are intended.” Id. at 285. Needless to say, roads, by their very nature, are intended for the public’s benefit, Id. at 280—and for the public in its entirety, not just a certain part thereof. Thus, whoever deprives the public of its rightful property and grants it to an individual or to a certain segment of the public only—as did the Minister in this case—infringes on the public’s rights. Through his actions, the Minister expropriated from the public that which he was not permitted to expropriate. See also H. Klinghoffer, Administrative Law 141 (1957) [96].

This was also the case in ancient Roman Law. Indeed, ancient Roman Law classified goods that were not considered private into various categories, including Res Ominum Communes, which included air, running water, the sea and its beaches, and Res Publicae, which referred to property belonging to the nation as a whole, namely those goods owned by the state and designated exclusively for public use. See R.W. Leage, Roman Private Law 154 (3rd ed. 1961) [106]; Dr. S. Eizenstat, Roman Law, its History and Doctrine 143 (1954) [98], explaining that these goods “were at every Roman’s disposal and were extended special legal protection.”

This is also the law under the Anglo-American system. Since time immemorial, the law in England has been as follows:

In a highway the King hath but the passage for himself and his people.

1 Roll. Abr. [Rolle’s Abridgment, 1688] 392, cited in 21 Halsbury The Laws of England [108], at 78, n. 2. Justice Wills, in Ex parte Lewis (1888) [88], at 197, commented on the nature of the public’s interest in public roads:

[A] right for all Her Majesty’s subjects at all seasons of the year freely and at their will to pass and repass without let or hindrance.

The public’s right to passage on public roads has priority over the rights of adjacent property-owners; it has priority over it and overtakes it:

Speaking generally, the public have the right of free and unobstructed passage over the whole of a public highway…But the right of the public is a higher right than that of the occupier, and if the user by that occupier, though reasonable so far as the particular business carried on by him is concerned, in fact causes a serious obstruction to the public, then the private rights of the occupier must yield to the public rights, and the Court will interfere by restraining the continuance of  the obstruction.

Vanderpant v. Mayfair Hotel Co., 1 Ch. 138, 152-53 (1930) [89]. Hence, a public road belongs to the public not the individual and not to those residing in its vicinity. The public has the right to use the road as it wishes, at any time.

This is also the law in the United States. In cases where a public road passes through a residential neighborhood, the local residents are not given any priority over outsiders, as the New York Court of Appeals held in a widely cited case:

Bearing in mind the principle above mentioned that political subdivisions and municipal corporations hold the fee of streets for the benefit of the whole people, it follows that residents of a particular area in a town or village do not possess and cannot be granted proprietary rights to the use of the highways therein, in priority to or exclusive of use by the general public.

People v. Grant, 17 N.E.2d 542, 544 (1954) [86]. In NYS Public Emp. Fed. V. City of Albany, 527 N.E.2d 253, 255 (1988) [87], the Court further stated:

Historically, English highways were said to be the King’s and impeding their use was proscribed for his right was one of passage for himself and his subjects….Tailoring the English rule to democratic concepts, the common law in New York has restricted local regulation by impressing a public trust upon the streets. The right to use of the highways is said to rest with the whole people of the State, not with the adjacent proprietors or the inhabitants of the surrounding municipality.

And further on, at 256:

The general rule is clear: residents of a community have no greater right to use the highways abutting their land—whether it be for travel or parking—than other members of the public.

I believe there is no need to elaborate on the subject. Bar-Ilan Street is part of the public domain. As such, it belongs to the collective, the public—not to its residents or those living in its vicinity.

Finally, and closest to us, Jewish Law states as follows in the Mishna Baba Bathra 6:7 [114]:

He whose field is traversed by a public path and he closed it, substituting [another path] at the side, forfeits that which he has given, and [that which he has appropriated as] his does not pass into his possession.

In more modern words, as translated and interpreted by Shimon Ben-Shemen in his modern commentary to Tractate Baba Bathra 92b (1981) [115]:

He whose field is traversed by a public path [a road which the public had always used] and he closed it [the field owner appropriated segments of this public road] substituting another path [by carving out a different route for the public to use, at the edge of his field] forfeits that which he has given [to the public users], and his [the road that was originally public, and which the field owner wished to take from the public and make it his own] does not pass into his possession [both roads are deemed public].

From this we learn that the public roads belong to the public. The public, and each one of its members, is authorized to use these roads even if they happen to cut through an individual’s private property. An individual is prohibited from taking a public road and appropriating it even if he grants a part of his land to be used as an alternate road. One who attempts to appropriate a public road by carving out an alternate route in his field actually renders both roads public property.

A debate arose among the Rabbis of the Talmud regarding the interpretation of the Mishna. Why and for what reason is an individual not entitled to offer an alternate route in exchange? The public is in no way negatively affected by the exchange.  In response, three rabbis offered three different approach. See Babylonian Talmud, Tractate Baba Bathra 99b-100a [116].

The first approach: “Rabbi Zevid said in the name of Raba: It is a decree [that he is not allowed to substitute another path for the one already used by the public] lest he assign to them a crooked path.” In other words, there is a fear that the field owner may provide an alternate route of lesser quality than the original road.

The second approach: "Rabbi Mesharsheya said in the name of Raba: [Our mishna deals only with the case where] he gives them a crooked path." According to this approach, the Mishna is only discussing a case in which the alternate road is actually of lesser quality. If, however, the alternate route is of equal quality, it may properly serve to replace the original road.

The third solution: “Rabbi Ashi said: Any path [that runs] along the side [of a field] is crooked.” In other words, in practice, any alternate route that the field owner proposes to grant will actually be inferior. As such, he is not authorized to replace the original route.

In summary: the public domain may not be expropriated even if the public is offered an alternative in exchange.

For our purposes, the analogy is clear: the Minister of Transportation was prohibited from expropriating the right of the public to use Bar-Ilan Street. This rule applies a fortiori to our case—if an individual is precluded from expropriating a public road even if he grants a piece of his own property in exchange, all the more so in our case, where both roads—Bar-Ilan Street as well as the alternate route—are actually  public property.

34. The principle that “[t]here shall be no violation of the property of a person,” as per section 3 of the Basic Law: Human Dignity and Liberty may also apply to the individual’s right to public property. It is most appropriate that this principle—if not in language than in spirit—apply to the individual’s right to public property. An individual is not to be deprived of his property “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.” Basic Law: Human Dignity and Liberty, § 8. An individual’s right to the public domain is similar to his right to his private domain.

35. In his affidavit, the Minister explains that the alternate road to Bar-Ilan Street will lengthen motorists’ journey by merely a few additional minutes. Therefore, the Minister contends, on one hand we have the Ultra-Orthodox residents who claim that allowing traffic on Bar-Ilan Street on the Sabbath gravely offends their religious sensibilities. On the other hand, according to the Minster, motorists will only be inconvenienced by a few additional minutes. Anyone, insists the Minister, would understand that there is no contest between these "competing" rights. I do not agree.

I would agree that the competing interests, as the Minister asserts, are not of equal weight, as less weight attaches to the matter of convenience than to the observant community’s offended feelings. This, however, is not the issue. Instead, the issue is whether the Traffic Controller was authorized to expropriate the public interest in public property. The answer is no—the Traffic Controller was not so authorized. Each and every member of the public has the right to pass through Bar-Ilan Street, unhindered, in accordance with his wishes. Bar-Ilan Street is public property and as such may not be expropriated, unless by statute.

Take, for example, a given central traffic artery. The Traffic Controller allots the local residents parking spots on land forming part of the road itself. This road is so wide that no one senses this expropriation. Would the Traffic Controller be permitted to act so? No one will defend his actions—public property is public property and no one is allowed to expropriate it, except under authorization of statute. How then is Bar-Ilan Street any different from this traffic artery? If traffic on Bar-Ilan Street, or any other street, would be prohibited for the purpose of installing pipes for public use, no one will deem this an expropriation—street-closures for such purposes are provided for in traffic laws. The consideration underlying the closure is traffic-related, pure and simple. This is not the case when religious factors come into play, and demand that a road be expropriated from the public for the benefit of a few.

36. For our purposes, the Ultra-Orthodox residents living on and around Bar-Ilan Street passionately object to the petitioners’ claims. They advance the following argument: why do the petitioners object to the closure of Bar-Ilan Street during prayer times when they agree to street-closures in their areas? Take Jerusalem’s Ben-Yehuda Street, which was turned in to a pedestrian promenade, Tel-Aviv’s Dizengoff Street, which is closed to traffic on Sabbaths, and Netanya’s Herzl Street, which becomes a pedestrian walkway on the Sabbath. As per their brief of July 26, 1996, submitted on behalf of the residents of Tel-Azra and Bar-Ilan/Yermiyahu Street:

It was possible to close Ben-Yehuda Street, a central traffic artery, and to turn it into a pedestrian promenade. It was also permitted to close Tel Aviv’s Dizengoff Street on Sabbaths, despite its being a central traffic artery, in order to allow for coffee house clients to quietly enjoy themselves. Nevertheless it would be “unthinkable” to close Bar-Ilan Street on Sabbaths even though the absolute majority of its residents demand this closure, as Sabbath traffic offends their sensibilities, disrupts prayers in the local synagogues and threatens the welfare and security of the neighborhood children, crossing the street throughout the day.      

Are the local residents asking for that much? All in all, they ask that their street become a pedestrian walkway on the Sabbath, or at least, as per the Sturm Committee’s recommendation, during prayer times.

Further on in their affidavit, these same residents point out that:

About one-hundred per cent of the residents in the area of Shmuel HaNavi Street and Yirmiyahu Street, up to Shamgar Street, are either religious or Ultra-Orthodox. Their sensibilities are to be heeded and their lifestyle respected, above that of those invading their neighborhood.

Do these respondents honestly believe that Bar-Ilan Street may be analogized to these streets, which they offer as examples? The difference between these stands out for all to see: while traffic was absolutely prohibited on Ben-Yehuda Street, and at certain times on Dizengoff and Herzel Street, these streets remained the public’s in their entirety, open for all members of the public to use and enjoy. The public domain remained public and the individual’s interest in public property remained unchanged. While the public will be precluded from driving through these streets, they will nevertheless be able to enjoy sitting on a terrace in a coffee shop on it. The matter of Bar-Ilan Street however, is as different as it can be. Once closed, that street is effectively expropriated in favor of the local residents, thereby turning the public domain into the domain of some of the public. Surely, the respondents do not seriously believe that that the inhabitants of the rest of Jerusalem’s neighborhoods will come take a stroll down Bar-Ilan Street.

37. A basic principle of law is that there is no expropriation without compensation, unless the legislature explicitly stated otherwise:

When dealing with legislation empowering the authorities to infringe on the citizen’s property rights, the legislation is not to be interpreted in a manner allowing for such harm without compensation, unless it is clear and obvious that the legislature intended to deny the right to compensation.

HCJ 150/69 Reich v. Head of the Antiquities and Museums Administration [78], at 209 (Cohen, J.). This was the law even prior to the enactment of the Basic Law: Human Dignity and Liberty and certainly remains so after the right to property has been enshrined in article 3 of this Basic Law, and the enactment of the limitation clause, in section 8 of the Basic Law. There is no expropriation without compensation. He who takes must give something in return—quid pro quo.

38. I felt it necessary to state this well-known rule in order to discuss the recommendations of the Tzameret Committee. The majority there recommended closing Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs, within the framework of the existing status quo.” Each Committee member and party to the petition interpreted this last condition differently. Had the Committee been composed of seventy members rather than seven, we would have heard seventy interpretations of the decision. In his affidavit of November 6, 1996, the Minister disagreed with a number of Committee members—with Dr. Tzameret and Professors Schweid and Golan—regarding the meaning of the condition set out, opining that it is “more opaque than it is transparent” and that these three members’ interpretation of it “is totally unfounded.” Forgive me if I cannot agree with the Minister’s opinion.

39. I assume that there is no internal link between closing Bar-Ilan Street and instituting public transportation in Jerusalem on the Sabbath. Instituting public transportation on the Sabbath will not solve the difficulties created by Bar-Ian Street’s closure, just as not closing Bar-Ilan will not compensate for the lack of public transportation for Jerusalem’s non-observant residents who do not have access to a private vehicles. This in itself is a problem, yet unrelated to the matter of Bar-Ilan Street. This problem was examined in Professor Galia Golan’s writings prior to the Tzameret Committee’s publication of its report. See para. 10 supra.

The fact is that instituting public transportation on the Sabbath was intended to serve as an outstretched hand for peace within the context of the social covenant to be struck between the observant and the non-observant sector—give and take, a mutual exchange, a quid pro quo. This is how one shows good will to his fellow in order to foster trust. For this reason, I am not convinced that the Minister’s conclusion that instituting public transportation on the Sabbath “would have the effect of…disrupting the existing status quo” is correct. The matter of preserving the status quo is not relevant here. I for my part assert that we should focus on quid pro quo rather than on the status quo. Let us for a moment assume that instituting public transportation on the Sabbath would in fact “disrupt” the status quo ante. Does closing Bar-Ilan Street not also disrupt it? Indeed, as I stated in Meatrael supra [6], at 506, the “status quo” that everybody keeps referring to “is unlike any other status quo.” It is an “Israeli-style status quo.” And how is an “Israeli-style status quo” defined?

An Israeli-style status quo is an imprecise, nebulous and flexible concept: all those who invoke it will mold it in their image, to suit their purposes. It is like clay in its creator’s hands—it may be molded, stretched out, or constricted.

Id. at  506-07. What reason is there for us to discuss the status quo ante? Let us instead speak of a social covenant, a covenant struck in honesty and good faith, whereby each side both gives and receives. One party agrees to Bar-Ilan Street’s closure while the other consents to making public transportation available. Expropriation on the one hand, compensation on the other. Give and take, quid pro quo.

40. This was the reasoning underlying the proposal made by this Court, according to which Yam Suf Street would opened to traffic as a result of Bar-Ilan Street’s closure. The City of Jerusalem and the Minister of Transportation rejected the proposal, invoking the lack of any connection between prohibiting traffic on Bar-Ilan Street and permitting it on Yam Suf Street. In the Minister’s own words:

Professionals in the field and the Ministry of Transportation agree with the City of Jerusalem that there is no significant traffic connection between closing Bar-Ilan Street and reopening a segment of Yam Suf Street. Yam Suf is not an alternate route to Bar-Ilan.

Nevertheless, this response fails to address the Court’s proposal. Never did the Court contend that there was any link between the license and the prohibition. Speaking for myself, I can say that my own intention was to promote a showing of good will, to foster rapprochement between the parties, to extend an outstretched hand for peace. Thus, when examining the response submitted by the Mayor of Jerusalem and the Minister of Transportation, which claimed that “to the best of my understanding, as a Local Traffic Authority, it is appropriate that things be left as they are now with respect to the segment of Yam Suf Street in question,” we were at a loss as to why. And so, even the flicker of good will that the Court hoped to nurture was extinguished.

On the Independence of the Empowered Authority’s Exercise of Discretion

41. A short time following Israel’s independence, the Supreme Court set out a rule regarding the independence of an authority’s decision making powers. See HCJ 70/50 Michlin v. Minister of Health [79], at 323-24. While this ruling is widely cited in various contexts, our concern at present is limited to one aspect—an administrative authority’s decision that it took in accordance with instructions that it received from the Minister appointed over it.  In order not to stray unnecessarily, let us, for the moment, assume that the appointed Minister was permitted to assume the authority’s powers. See section 1 of the Government Authorities and Judiciary Ordinance (additional provisions)-1948, and section 42 of the Basic Law: The Government. The established law is that the authority may not base its decision on the Minister’s instructions. The authority is independent. Consequently, if it is shown that the authority decided as it did because the Minister instructed it to do so, the decision will be struck down, by reason of the fact that the discretion was not independently exercised. We all recall the Court’s decision in HCJ 74/51 The National Center of Contractors Associations v. Minister of Commerce and Industry [80]. In that instance, the appellants’ counselors argued that Mr. Noy, the empowered authority, based his decision on government policy rather than his own discretion, which would invalidate his decision. The Court rejected this argument, stating at 1550:

Having seen and heard Mr. Noy on the witness stand, we are left with the impression that he is a competent individual and we reject the argument that he merely carried out the will of others, without exercising his own discretion.

While it appeared that the government made an important policy decision, a decision of this nature does not bind the administrative authorities.  It was purely its good fortune that Mr. Noy happened to agree with its position.

42. This rule regarding the independence of the administrative authority— particularly from the responsible Minister—was the subject of extensive criticism. First among the critics is our distinguished teacher, Professor H. Klinghoffer, in his article An Empowered Authority’s Internal Guidelines—Their Validity, 3 Hod HaMishpat 38 (1948) [104]. This view was shared by many distinguished scholars, such as Professor B. Bracha in his book, 2 Administrative Law 604 (1996) [99] and Dr. Y. Dotan in his book Administrative Guidelines [99]. The Court found different ways to narrow this rule, to avoid it, even to ignore it. Even so, to the best of my knowledge, the rule has remained intact and Professor Bracha believes that “changing the rule requires legislative intervention.” supra. [98], at 102-03. I do note, however, that while I may agree with Professor Bracha’s words regarding the rule itself, I am not certain that I share his views on this last point.

43. In the case at bar, the Traffic Controller, in November 1994, at the time speaking freely, felt that it would be "unthinkable” to close Bar-Ilan Street on Sabbaths and holidays. Approximately a year and a half later, following conversations with the Minister of Transportation, the Traffic Controller changed his mind most drastically. So he declared before this Court, in response to our inquiries.

It is with great interest that I read the Traffic Controller’s brief. I listen to his oral explanation carefully. I further read the protocols from arguments before this Court. Subsequent to all these efforts, I was convinced that it is proper to reverse the so-called “independence” rule. I will not lay out the whole issue, but only part, in saying the following: when the Minister is permitted and authorized to assume an authority’s powers, he is equally allowed to direct that authority and instruct it as to how it is to decide. Judicial review will then examine the decision on its merits—not in view of the decision-maker’s identity.

 

A Final Word

45. I have said my piece, as have my colleagues, each in his own way. The majority opinion will be the decisive one. Such is the way of the law since time immemorial. Life, however, is stronger than a judicial ruling, particularly when it involves long-standing, dynamic human relationships. No society may exist absent tolerance and patience between men. Hatred and jealousy is a recipe for disaster. The Court sought to pave the way for a social covenant—however unsuccessfully. We can now only hope that in the end wisdom will prevail and end in a handshake. Our hope is not yet lost.

After These Words…

45. Having said that which I just did, I will add a few words that are for their part unnecessary to deciding this case. I would have refrained from making the following comments had some of my colleagues not first broached them. I refer to the matter of the Tzameret Committee’s recommendations regarding street-closures—both present and future.

46. The third chapter of the Tzameret Committee’s recommendations was entitled: “Recommendations Regarding Sabbath and Holiday Street-Closures Nation-Wide.” The text itself featured rules instructing us how to go about closing Israeli roads: a “local street” shall be closed in such and such a way; “an internal thoroughfare” this way; “an intercity road” that way, and so on. Each of the roads were given their own label; authorities responsible for ordering street closures were set out as were procedures for dealing with street closures; appeals boards were set up, as were times and dates. My colleague, the President, presents a few of these recommendations in paragraph 36 of his judgment and the rest are, of course, found in the Tzameret Committee’s report.

Until now, streets were closed one by one, individually—a few here a few there. Henceforth, the Committee proposes to write the book on

 

street closures, as though roads were paved, surfaced, and opened only to be closed. Under this line of thinking, street closures will no longer be an exceptional matter in isolated instances, as they were until now. Instead, street closures shall become the norm. And so it will be every Sabbath and every holiday.

47. For my part, I find it difficult to accept that such norms be set out in this country. Since the issue was not raised for the Court to rule on in this case, I will not elaborate on the matter, nor will I examine it on its merits. Suffice it to say that there is cause to believe that if we were to follow this path, both administrative guidelines and regulations would prove insufficient for this purpose. Only a statute can regulate the matter. There are those who would even deem that insufficient.

The Ruling

48. Were my opinion to be adopted, petitions HCJ 5016/96 and HCJ 5025/96 and HCJ 5090/96 would be granted and the Minister’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbaths and holidays would be struck down. This would also include the revocation of

 

the order nisi granted in HCJ 5434/96.

Deputy President S. Levin

1. I had hoped that setting up the Tzameret Committee would allow us to foster a general social consensus between the various sectors of the population regarding Sabbath traffic, a consensus on the basis of which we could also resolve the matter of Sabbath traffic on Bar-Ilan Street in particular. Our hopes, however, were shattered, leaving no other alternative than for this Court to rule on a divisive political issue.

While the Court was dragged into making decisions of this nature against its will, it cannot dodge its responsibility or the need to decide.  Our decision is not a political one. It is a judicial ruling for the purpose of which we set aside our personal views regarding which measures should properly be taken in the political and social realm. Nor are we at liberty to opt for compromise, according to which practical solutions, such agreeing to the closure of a particular street on the Sabbath in exchange for the institution of public transportation on that day in other parts of the city. While these are solutions that could have been reached through negotiations, they are not possible solutions on the legal plain. The Court’s ruling is judicial as it is premised on judicial review of the decision of the Minister of Transportation, having assumed the Traffic Controller’s powers, as expressed in his brief dated November 6, 1996. The decision should be read bearing in mind the Traffic Controller’s decision of July 10, 1996 regarding Bar-Ilan Street’s temporary closure on Sabbath during prayer times. The Minister’s decision is an administrative one, and it is in this capacity that it is attacked before us today. The tools at our disposal for the purpose of examining the Minister’s decision are derived from administrative law and our examination shall be conducted on the following five levels:

                      (1)   The Minister’s decision and its components;

                      (2)   The various interests that the Minister was under a duty to take into account in making his decision;

                      (3)   The factual basis required for the purpose of determining the existence of each of the relevant interests and their respective scope;

                      (4)   Weighing the Minister’s decision both from the perspective of the relevant factual basis and from that of the balance between the various relevant interests and their scope;

                      (5)   Our operative decision.

The Minister’s Decision

2. The Minister of Transportation thought it proper to accept the part of the Tzameret Committee’s recommendations adopting the Sturm Committee’s decision to close Bar-Ilan Street to traffic during prayer times on Sabbath and holidays. The Minister offered his opinion regarding the “protocol for dealing with requests for street-closures”, according to which type B3 roads such as Bar-Ilan would only be closed when a reasonable alternative was available. The Committee recommended that, in matters concerning roads the likes of Bar-Ilan, the burden of making decisions of this sort be shifted to the local authority. In consequence, the local authority would decide whether to close roads to traffic in areas where the overwhelming majority of the population has expressed its wish to this effect, subject to the availability of a reasonable alternate route. Furthermore, the Committee set out guidelines regarding how to deal with requests to close roads, including the right to appeal before a public committee. On the basis of these recommendations, the Minister decided to close Bar-Ilan Street on Sabbaths and holidays.

The fact that the said recommendations were contingent on what was defined as an “arrangement to ensure the mobility of the secular public in accordance with its needs in the framework of the status quo” did not escape the Minister. Even so, he opined that these recommendations were opaque and that differences of opinion arose between some of the Tzameret Committee members as to their significance. Accordingly, the Minister decided to only adopt the first part of the Committee’s decision, unconditionally. To this end, the Minister consulted with the Traffic Controller, who supported the decision, provided that Bar-Ilan Street’s closure during prayer hours be contingent on Golda Meir Boulevard and the entrance to the city remaining open to traffic on Sabbaths and holidays, and that the lane reserved for public transportation on Jaffa Street be opened to all private vehicles on those days.

The Minister reviewed the Committee’s report and its appendices and discussed them with the Traffic Controller prior to making his decision of July 10, 1996, as per the brief he submitted to this Court and in accordance with the Traffic Controller’s suggestion. The Minister’s summarized his decision:

The additional material presented before the Committee and its recommendations reveal that there is no traffic-related justification for changing the weight attaching to the harm caused to the religious lifestyle of the residents as compared to that attaching to the infringement on the secular public’s freedom of movement on the road.

Even so, the Minister decided that Bar-Ilan Street would be closed to traffic on Sabbaths and Jewish holidays during prayer times, in accordance with the Sturm Committee’s recommendations.

3.  We elaborate on the Minister’s decision in greater detail, dwelling on the following three points: first, the Sturm Committee recommended, with Committee member Ya’acov Rubin dissenting, that Bar-Ilan Street be closed during prayer times. It also recommended that Yam Suf Street remain open as “that street serves a significant population from the neighborhoods of Ramat Eshkol and Givat Ha’Mivtar and serves as a central traffic artery for the residents of these neighborhoods.” The previous Minister of Transportation accepted the Traffic Controller’s professional opinion that Bar-Ilan Street was not to be closed by reason of it being a central traffic artery. At the same time, the Jerusalem City Council decided to close Yam Suf Street and other streets that the Sturm Committee recommended should remain open.

Second, within the context of the negotiations conducted between the parties, the Court suggested that the parties examine the possibility of reopening a segment of Yam Suf Street to traffic. The closure or reopening of Yam Suf Street was under the jurisdiction of the Local Traffic Authority, which was not so inclined, stating that professionals in the Ministry of Transportation accept that “there is no significant traffic connection” between closing Bar-Ilan Street and reopening a segment of Yam-Suf Street, as the latter is not an alternate route to Bar-Ilan.

Third, during her pleadings before this Court, Ms. Mandel was asked why her client, the Minister, decided to only close Bar-Ilan Street during prayer times. She replied that the purpose of the closure was to permit the Ultra-Orthodox public the opportunity to pray undisturbed. In response to our queries, Ms. Mandel further informed us that the Minister decided as he did following “an additional evaluation of all the relevant interests as well as the harm caused religious sensibilities of those residing in the street’s vicinity. Both this evaluation and the decision’s reasonableness need to be examined in light of the existing alternatives.” Moreover, Mrs. Mandel asserted that the Minister did not consider the issue of violence. However, if circumstances were to change and the violence were to continue, she assured the Court, the Minister would revisit his stance.

Finally, when the respondents were asked whether the Minister had access to data regarding the number of non-Ultra-Orthodox residents living on and around Bar-Ilan Street, they replied that exact data was not available to him. Instead, he “dealt with percentages” and in any event, the majority of the population residing in Bar-Ilan Street’s vicinity is Ultra-Orthodox. The fact that the Minister lacked any factual basis for determining the number of secular families liable to be harmed by his decision was also raised in the Court’s meeting of August 13, 1996.

4. The Relevant Interests

The authorities are permitted to weigh and take into account three central factors when deciding on the complete or partial closure of a given road. The first is a transportation-related factor, which includes the public’s interest in entering and exiting a particular road for passage and each individual’s freedom of movement. The second involves the feelings and sensibilities of the majority of local residents living alongside the road, if they request that it be closed to traffic, in order to ensure that their neighborhood's particular character is preserved, whether their reasons are religious or not. The third factor is the interest of the “minorities” residing alongside the road (and their visitors) who claim the unqualified right to reach their homes at all times and to travel from them in their vehicles undisturbed. Additional interests to be taken into account include access to security vehicles during emergencies.

The relative weight of these factors is not to be determined in advance in any given case. The more central the road, as in the case of a main traffic artery, the greater the weight attaching to the traffic factor. Nevertheless, these factors may be balanced in the event that reasonable alternate roads are available to the public. Case law also recognizes that the second factor as one that may be taken into account. Thus, for instance, in Baruch [2], at 163, the Court held that:

Ensuring the Sabbath rest, in accordance with the lifestyle of the interested public, is within the Traffic Controller’s authority to regulate road-traffic.

Hence, even the proper weight attaching to the second factor is likely to vary depending on the circumstances, as a function of the size of the population whom road traffic is liable to offend, and their interest in preserving their lifestyle of choice in their immediate surroundings.

Just as the balance between the first two factors varies, so too does the weight of the third factor depend on the circumstances. The centrality of the citizen’s freedom of movement, following the enactment of the Basic Law: Human Dignity and Liberty, and even prior to it, requires the guarantee that this right not be denied, even if other significant considerations justify restricting traffic on Sabbaths and holidays.

When do these remarks apply? When the residents of Bar-Ilan Street are involved (the third factor). In such a case, it is possible that the rights of those individuals for whom Bar-Ilan Street serves as a throughway may be limited in light of the rights of the majority of residents living along the road (the second factor), provided proper and reasonable alternate roads are available. However, I cannot accept the argument that if the neighborhood's character changes after a given individual moves in, and, because of this, restrictions were imposed on the road on which he resides, he must necessarily adjust to these restrictions even if they touch on his right to access his home or travel from it.

Bearing in mind these preliminary remarks, the issue in this case is whether the balance struck by the Minister between the conflicting interests cited above is appropriate.

5. At this juncture, let us elaborate on another matter in further detail. The conflict forming the subject of this petition lead to violent clashes between religious and secular, raising the question of whether allotting significant weight to the second interest is not tantamount to rewarding violence. It has already been held that although violence should certainly not be rewarded, the fact that there were violent outbursts does not negate our ability to consider the legitimate interests of those relevant elements irrespective of the violence. See Baruch supra, [2].

As the Court was informed, the Minister’s decision was not influenced by the violence. This having been said, since any judicial arrangement involving the balancing of interests depends on the presumption that the arrangement will be respected, the Minister will be compelled to revisit his position absent proper implementation.

Once again, it has been argued that the partial closure of a given road to safeguard the local residents’ feelings and sensibilities is likely to serve as a precedent for further closures, in places where the balance of interests resembles Bar-Ilan Street, in the end allowing determinative weight to be given to the second factor while ignoring the first or the third. Hence, we are prompted to inquire why Bar-Ilan Street’s residents should be given priority over the religious residents of other alternate routes, which perhaps were less vocal in invoking their rights. My answer to this is that the proper balance between the various elements must be preserved in every case and every limitation on the right of passage, if at all relevant, must be made contingent on the availability of appropriate, reasonable alternate routes.

6. The Factual Basis

The factual basis underlying the Minister’s stance is composed of the Tzameret Committee’s report and its conclusions, the Sturm Committee’s recommendations, and the Traffic Controller’s opinion submitted before the Tzameret Committee. In addition, the Minister consulted with his team of professionals. He also had access to petitions submitted by numerous citizens, religious schools, and the religious residents of Bar-Ilan Street.

The previous Minister of Transportation met with the residents of Bar-Ilan Street. The Minister had at his disposal the professional opinion of the Traffic Controller, Mr. Langer, according to which the Ministry was to treat Bar-Ilan as a main traffic artery, which connected Jerusalem’s northern neighborhoods to its center and south every day of the week. Mr. Langer further added the following pointed statements:

It would be unthinkable to close this route to traffic on the Sabbath or on any other day.

Arrangements to close streets on the Sabbath are only feasible on local streets, following a careful examination, and certainly not on important, central arteries.

Following the elections of May 1996, the present Minister of Transportation assumed his position and convinced Mr. Langer to alter his original decision by considering the full depth of the harm caused to the local Ultra-Orthodox resident's sensibilities. While the traffic-related data remained essentially unchanged, the decision itself was altered due to the fact that a new element, unrelated to traffic matters, was added. While the Traffic Controller apprised us of his reasons for the change, his explanation left us disappointed. The Traffic Controller should be a traffic expert—not an authority on the degree of consideration to be given to religious factors. There is no doubt that the current Minister’s decision is “ideological” in nature, and that his ideological stance differs from his predecessor’s. This having been said, to my mind, there is no flaw in a decision being “ideologically motivated,” provided that it respects the requirements set forth by law. Accordingly, the Minister was careful to respect the law when assuming the Traffic Controller’s powers. An examination of his decision reveals that he tried to balance the relevant elements. This is the mark of an appropriate course of action. Even so, it is incumbent upon us to decide whether the final result reflected an appropriate balance.

The Minister also based his conclusions on the Sturm Committee’s recommendations—a Committee set up by the City of Jerusalem. The Committee’s purpose was to reach a compromise solution, not necessarily identical to a judicial solution. Thus, the Committee’s recommendations are to be accorded weight even though the protocols of its sessions were not preserved. In retrospect, it became clear that following the previous Minister’s refusal to close Bar-Ilan Street in accordance with its recommendations, a few other streets, which the Sturm Committee had decided would remain open to traffic, were closed. As such, Bar-Ilan Street’s closure will not fully correspond to the Sturm Committee’s recommendations.

The solutions proposed by the Tzameret Committee members are oriented towards compromise and do not reflect a legal solution. From all the proposals made to him, the Minister chose to conclude that the Committee does not, under all circumstances, rule out the closure of Bar-Ilan Street. He was, however, not prepared to accept the conditions set out by a number of Committee members in this regard. The issue of whether the Minister was authorized to act as such shall be addressed below. It does appear that a certain amount of weight does attach to this conclusion as well.

Prior to making his decision, the Minister also commented on the Traffic Controller’s position, as set out in his last letter of June 11, 1996. The letter reveals that the traffic related data remained unchanged, save the fact that the number of motorists using Bar-Ilan Street on Sabbaths, as compared to weekdays, dropped slightly. In his letter, the Traffic Controller also instructed that Golda Meir Boulevard “is an essential link in the network of streets, available during the hours that Bar-Ilan Street is scheduled for closure,” and that, on Sabbaths, traffic in both directions will be permitted on Jaffa Street, as an additional lane will be opened to traffic, providing convenient access to Road no. One, and to Jerusalem’s northern neighborhoods.

Among all the material before the Minister, data regarding the secular residents of Bar-Ilan Street was nowhere to be found; nor were any recommendations made as to how their rights were to be safeguarded. While data of this sort is found in the petition of HCJ 5434/96, it naturally requires the Traffic Controller’s independent verification. Data regarding concrete harm to the secular residents resulting from Bar-Ilan Street’s closure is available with respect to two of the petitioners in HCJ 5090/96.

Additionally, the material in the Minister’s possession failed to address how the recommendations before him would be implemented in light of the threats and attacks made. The matter of how the threats and attacks influenced the decision itself and are liable to affect its implementation was not given any attention.

Was the Minister’s Decision Appropriate?

7. I feel it necessary to make the following two comments prior to proceeding under this heading: the first comment is that the issue here is not what decision the Court would have made but rather if there is cause to intervene with the Minister’s exercise of his discretion. In this vein, the Minister is given substantial leeway. Thus, it only proper for the Court to consider intervening with this discretion if the Minister ignored central factors which he was under a duty to consider, or if he drastically deviated from the proper relative weight attached to factors taken into account. The second comment deals with the fact that this present case does not give rise to the issue of the State of Israel’s duality as both a Jewish and democratic state, as the Minister saw fit to premise his decision solely on the need to safeguard the street’s residents’ right to pray undisturbed. Thus, the Minister may have also considered this factor if the offense involved members of different faiths, Muslim or Christian, for instance.

8. We have yet to define the term “traffic artery.” The “Guidelines for Planning City Streets,” published by the Ministry of Building and Housing and the Traffic Controller, and submitted to the Tzameret Committee, distinguished between a "intercity road," an “arterial road,” a “collector road,” and a “local street.” The “traffic artery” was defined as a “road found at a neighborhood's periphery, which connects various neighborhoods, directs traffic and reroutes it from the intercity highways to the network of collector roads." Although the Tzameret Committee debated whether Bar-Ilan Street was in fact a “traffic artery,” I am prepared to presume that it is such. The current Traffic Controller referred to it as such and it corresponds to the definition cited above.

Under these circumstances, the issue of whether there is a proper balance between the traffic element and the local residents’ sensibilities arises. Whoever opines that the first element always prevails over the second will believe that the order nisi should be made absolute. To my mind, while significant weight attaches to the fact that a given street meets the definition of “traffic artery,” this weight is not determinative. A “traffic artery” is by no means untouchable and it is possible that the authorities will give importance to safeguarding the right to pray and worship unhindered even if the street involved is a “traffic artery,” provided that the weight attached to the latter factor is not excessive. In the case at bar, two public committees recommended that, under certain conditions, it would be possible to close Bar-Ilan Street during prayer times. Although their recommendations were submitted in the public realm, from a legal standpoint the Minister was nonetheless authorized to determine that circumstances justifying limiting traffic on Bar-Ilan Street could in fact arise. I do not believe that this determination exceeds the legitimate bounds of the Minister’s discretion.

The next step is to analyze the proper relationship between the first and second factor. In light of Bar-Ilan Street’s centrality from a traffic perspective, the Minister is only authorized to limit traffic on the Sabbath in a limited fashion, not exceeding what is necessary and taking into account the alternate routes available to the public. The Minister consulted with the relevant traffic professionals, who also considered the “religious” factor. He concluded that imposing traffic restrictions is possible from a traffic standpoint and justifiable only during specific hours, rather than throughout the Sabbath. I agree that, in so doing, the Minister “stretched” the permissible to its limits. As a result, any change in circumstance is likely to necessarily alter his decision. This having been said, generally speaking, I have concluded that, from an administrative point of view, this exercise of discretion is not to be struck down, as it was exercised bearing in mind both the first and second factors. In any event, the petition in HCJ 5434/96 should be denied.

Even so, it appears that the Minister failed to consider the interests of the local secular residents, for whom Bar-Ilan Street is more than a throughway, as it is the road to their homes. Accordingly, in my opinion, their interest must prevail over the right of the majority of the locals to pray undisturbed. Not only was data regarding the number of secular residents, some of whom may be deemed the “silent minority," not at the

 

Minister’s disposal, but these residents were not even guaranteed access to their homes during the hours that the traffic limitations were scheduled to be in place. As has already been explained above, I cannot accept the argument that it is incumbent on the secular residents to change their

 

lifestyle and way of reaching their places of residence following a change in the character of the street.

Needless to say, the Minister’s decision contained two presumptions. First, the Minister assumed that violent elements would not sabotage the decision’s practical application and, second, he assumed that alternative routes would remain available to the public. It is sufficient for one of these presumptions to falter for the entire decision to collapse.

9. The Operative Result

For the reasons detailed above, I join in the President’s opinion.

 

Justice E. Mazza

Like my colleagues, the President and Deputy President, I too believe that our review of the Minister’s decision to order the partial closure of Bar-Ilan Street should not give rise to a question of ultra vires but, rather, should be exclusively limited to the matter of the decision’s reasonableness.

Our premise is that the Traffic Controller has the authority to order the closure of a street to traffic on the Sabbath and Jewish holidays, in order to safeguard the religious lifestyle of the local residents, when the street scheduled for closure cuts through the heart of their neighborhood. This authority is not limited to “internal” streets. It equally applies to traffic arteries. Accordingly, despite the fact that Bar-Ilan Street is, first and foremost, a “traffic artery,” the Traffic Controller has the authority to order its closure.

This having been said, I concur with the conclusions of my colleagues, the President and Deputy President, that the Minister’s decision in the case is blatantly unreasonable and must therefore be struck down. The President’s reasoning, with which the Deputy President concurs, is also acceptable to me.

However, in order to ensure that my position is perfectly understood and in order to further emphasize that which appears to be worthy of particular emphasis, I wish to comment on the three following subjects: the Minister’s erroneous reliance on the Tzameret Committee’s recommendations, the fact that the Minister ignored the needs of the secular minority constitutes sufficient reason to strike down his decision, and the significance of his assumption of the existence of alternate routes to Bar-Ilan Street.

The Tzameret Committee’s Recommendations

2. The Minister’s decision was rendered on the heels of the Tzameret Committee’s recommendations and anchored in the adoption of part of the Committee’s recommendations. As understood by the Minister, this recommendation corresponded with those made by the Sturm Committee. In so supposing, the Minister followed a path, which, to my mind, lies beyond the legitimate array of options proposed by the Tzameret Committee.

In its recommendations, the Tzameret Committee distinguished between setting out a general arrangement to deal with requests to close streets and formulating a concrete position regarding the conditions for closing Bar-Ilan Street. Between these two options, there was no middle ground. The institution of a general arrangement, as per the Committee's first recommendation, is of a legal character. However, the Committee’s stance with respect to the conditions to be met for closing Bar-Ilan Street merely reflected an attempt to present a compromise proposal of a public-political nature, probably meant to provide a rapid, out-of-court solution to a difficult and painful social problem.

 In light of this distinction, it was incumbent on the Minister to relate to the Tzameret Committee’s recommendations in only one of two ways. On one hand, the Minister could have informed the Court of his intention to set up a general arrangement to deal with requests to close roads and to prescribe an arrangement identical or similar to the one that the Tzameret Committee proposed. The Minister then could have declared that he would revisit the matter of Bar-Ilan Street’s closure in the context of this general arrangement. On the other hand, the Minister could have agreed to base his decision regarding the closure of Bar-Ilan Street on the Tzameret Committee’s recommendations. In my opinion, it would have been best for the Minister to opt for the first alternative. Nevertheless, he was entitled to select the second.

The Minister, however, chose a third way. On the one hand, he took it upon himself, with the assistance of his Ministry’s professionals, to examine the Committee’s recommendation regarding a general arrangement for street closures. On the other hand, he decided to close Bar-Ilan Street immediately. The Minister based this last decision on the assumption that “in light of the data presented to it, none of the Committee members excluded the possibility of closing Bar-Ilan Street on Sabbaths and holidays;” and that only a minority of the Committee members understood the decision to close of the street as predicated on “provided arrangements are made to ensure the mobility of the secular public in accordance with its needs.”

In so deciding, the Minister erred, as the condition in question was in fact part of the majority’s recommendation, reached with the support of five of the Committee members. The report that the majority submitted reveals this to be so. As such, the recommendation should have been accepted or rejected as is, without addressing the differences of opinion that later emerged among the Committee members. I, for my part, am convinced that the adoption of only part of the Committee’s recommendations—a Committee which, let us recall, was only established for the purpose of proposing a potential solution to a pressing social problem—cannot be deemed a proper administrative decision. This being the case, I join in my colleague's, Justice Cheshin, criticism of the decision, set out in paragraphs 10-11 of his judgment. To my mind, the significance of this is that the Minister’s decision must be examined on its merits, without any reference to the Tzameret Committee’s recommendations and, even more so, to the recommendations of the Sturm Committee. Indeed, an examination of this nature was conducted in the opinions of the President and the Deputy President.

Ignoring the Needs of the Secular Minority

3. In deciding whether to exercise his power to close a street, the Traffic Controller is confronted with two conflicting considerations—the “traffic” considerations, on the one hand, and the “religious” factor on the other.

Accordingly, exercising this power to close streets is contingent upon finding a suitable balance between the public’s traffic-related interest in using Bar-Ilan Street and the local residents’ religious interest in the street’s closure. In this balance, the most significant weight will always attach to the traffic interest. As such, in the absence of a reasonable alternative, capable of meeting the motorists’ traffic needs, the Traffic Controller must refrain from closing the road. The religious factor alone cannot be determinative.

This rule applies to all decisions of this nature, whether regarding a local neighborhood street or a road serving as a traffic artery. Even a local street is a public road, and should not be treated like the local residents’ private property, not even as the property of the “majority” of its residents. The difference between an internal street and one constituting a traffic artery lies exclusively in the size of the public likely to be harmed by its closure. Thus, closing an internal neighborhood street, which goes through a religious neighborhood, will interfere with the transportation needs of the secular minority residing there, including the needs of the friends and relatives of those residents. Clearly, however, closing a traffic artery negatively affects the entire public by interfering with their transportation needs. As such, particularly significant weight will attach to traffic-related considerations.

This having been said, a quantitative comparison is liable to mislead. We must recall that the needs of the general public do not necessarily correspond to the transportation requirements of the local residents. This is particularly true when dealing with a road that is both a central traffic artery and a local access-way. The closure of such a road is contingent on the availability of a reasonable alternate route that will both serve the public as a whole as a traffic artery, and also provide the residents with local access.

Bar-Ilan Street, as defined in the Minister’s decision, constitutes a central traffic artery which also provides direct access to adjacent land users. It therefore follows that we are in fact dealing with a road that is both a traffic artery and a local access-way. Closing such a road is contingent on meeting the transportation needs of all those served by it. In his decision, the Minister pointed to roads that, in his opinion, constitute a reasonable alternative to the arterial traffic on Bar-Ilan. However, as his decision’s content indicates, the Minister failed to ascertain the needs of the local secular population, nor did he propose any alternatives capable of meeting their needs. While no data was submitted regarding the size of the local secular population in question, this, in my opinion, is unimportant. For the purposes of this decision, I am prepared to assume that an overwhelming majority of these neighborhoods are in fact Ultra-Orthodox and do wish for the street’s complete closure on Sabbaths, and that the number of secular residents is negligible. Even so, the balance of considerations requires that a suitable alternative for the needs of this small minority be found prior to closing Bar-Ilan Street. As my colleague, the President, has rightly held, this flaw in the Minister’s decision is sufficient to require that it be struck down.

The issue of whether the needs of the local residents lend themselves to alternative solutions is for the Minister to decide. Consequently, in the absence of concrete alternatives, it is incumbent on the Minister to consider normative alternatives, such as instituting an arrangement that would permit allowing traffic to pass through during the times that the road is closed, if a request to this effect is submitted by a permanent local resident of one of the surrounding neighborhoods. So long as a concrete alternative, capable of meeting the needs of the local residents, is not found, or a normative alternative is not established, there is no basis to support a decision to close Bar-Ilan.

The Existence of an Alternative to a Traffic Artery

4. The Minister’s decision to order the closure of Bar-Ilan Street during prayer times included the following condition:

For as long as the road is closed, Golda Meir Boulevard (The Ramot Road) shall remain open, as will the entrances to the city.  A lane for private vehicles shall also remain open on Jaffa St. on Sabbaths and Jewish festivals.

This condition is based on the presumption that the roads named provide a suitable alternative to Bar-Ilan Street as a traffic artery. The Minister’s presumption relies on findings produced by the examinations conducted: each of the above roads constitutes a detour around Bar-Ilan Street. Driving through those streets lengthens the trip in each direction by approximately two minutes at most. From a purely traffic-related perspective, I judge these alternatives acceptable in that they are capable of providing a proper detour for Bar-Ilan traffic.

The matter, however, does not end here. Alternate routes must be selected according to a standard set out for this particular purpose. Judging from the evidence submitted to the Court, it does not appear that the Minister set out such a standard for choosing these roads. In other words, the roads selected to serve as alternate routes were not examined from any other aspect save their length in comparison to Bar-Ilan’s. An important issue, which was not examined, is whether the population residing along these roads is also composed of individuals whose religious sensibilities are liable to be offended in a manner identical to the harm that prompted the Minister to justify his decision to close Bar-Ilan Street. Quite simply, had this examination been conducted, and revealed that those residing along some or all of the roads selected as alternate routes are overwhelmingly Ultra-Orthodox, the Minister would have been compelled to revisit his choice and reevaluate whether these alternatives are in fact suitable in light of these circumstances. It would be unthinkable for the Minister to reroute a massive amount of traffic to these alternate routes while risking that the local residents, like their counterparts on Bar-Ilan Street, will in turn demand that their Sabbath observance be granted the same respect as their neighbors along Bar-Ilan.

My colleague, the President, distinguishes

between streets that go through the heart of an Ultra-Orthodox neighborhood—where  thousands of Ultra-Orthodox individuals reside on both sides of such streets—and roads that are found at the neighborhood’s periphery.

See supra para. 96 of his decision. Indeed, this difference may be cause for distinguishing between Bar-Ilan Street and other roads that merely border on or are adjacent to Ultra-Orthodox neighborhoods. This possible distinction, however, was only set out in the President’s judgment, while the Minister’s own briefs do not even mention it.

At first, I believed that even a defect of this sort is cause for striking down the Minister’s decision. Eventually, I became convinced that I could join in the President’s conclusion holding that, if and when one of the roads cited as alternate routes in the present decision will be itself scheduled for closure, that specific decision shall be examined on its own merits. Of course, a decision of this nature will necessarily reopen the issue of Bar-Ilan’s closure itself.  The President’s conclusion is based on the assumption that:

it is clear that, as soon as we consider the possibility of closing the alternate route, the issue of the original route’s closure resurfaces. Our concern is with complementary solutions. It is possible to partially close Bar-Ilan Street provided that an alternate route remains open to traffic on the Sabbath. However, the moment that the alternate route is closed to traffic on Sabbath, Bar-Ilan Street must be opened.

Id. Let me offer two additional points in support of this position.

First, I emphasize that the Tzameret Committee’s holding was that “a road deemed to serve as a reasonable alternative to a closed street shall

 

not be closed unless a reasonable alternative, capable of replacing both the first road and the second, is found.” The second is the following clarification: the Minister may one day find himself in a position where he cannot refuse to close one of the alternate routes to Bar-Ilan without violating the balance struck between the interests of the local populations and, for reasons of equality—equality between different Ultra-Orthodox communities—will be equally unable to reopen Bar-Ilan Street. In such a situation, the Minister would not be authorized to order the closure of the alternate routes. Rather, he would be obliged to reopen Bar-Ilan Street, while also leaving the alternate route open to traffic. And so, the failure to set a standard for selecting alternate routes as part of the administrative procedure for dealing with a request to close a road engenders numerous difficulties.  The Minister would be well-advised to take advantage of the delay granted him by our decision in order to fill this missing link.

5. Accordingly, and given my agreement with the President’s other conclusions, I hereby join in his opinion.

Justice D. Dorner

1. I agree that the petition should be granted, as per the opinion of my colleague, Justice Or.

I believe that that the Minister of Transportation's decision is unreasonable, as stated in my colleague's opinion. In addition, however, the decision should be deemed invalid simply because it fails to conform to his statutory authority.

2. As noted, the Minister of Transportation, using the discretion granted to him by the Traffic Controller, ordered Bar-Ilan Street to be closed to traffic during prayer times on Sabbaths and Jewish holidays. The Minister made the closure contingent on the fact that Golda Meir Boulevard and the entrances to Jerusalem remain open. Likewise, the Minister premised Bar-Ilan’s closure on the fact that the lane normally reserved for public transportation on Jaffa Street would be opened to private vehicles.

Truth be told, Bar-Ilan Street is not really a “street.” Rather, it forms part of a central traffic artery, segments of which are referred to by different names—starting from Yirmiyahu Street, going through Bar-Ilan and Harel Brigade Streets all the way to Eshkol Boulevard. A mere glance at a Jerusalem city map reveals that this route forms the sole connecting route directly linking the entrance to the city, Jerusalem’s northwest, and its northeast.

The primary alternative selected by the Minister is not an intersection comparable to the one that was closed. Rather, these two connected roads allow motorists to bypass the closed road. This alternative route begins at the city’s northwestern entrance in the “Mei Niftoah” area connecting to Eshkol Boulevard via Golda Meir Boulevard, and cuts through the heart of the Ultra-Orthodox neighborhoods of Kiryat Shva,  Kiryat Balaz, Kiryat Tzanz, Ezrat Torah, Tel-Azra and Sanhedria. Violent demonstrations have occurred in this area in the past against Sabbath traffic. Let us also emphasize that along the Jaffa Street alternate route, particularly in the area around HaTurim Street, an Ultra-Orthodox population also resides.

3. The Traffic Controller, in his capacity as the Central Traffic Authority, is the authority empowered to establish traffic arrangements, particularly street closures. His authority derives from Regulation 17 to the Traffic Regulations. The Traffic Regulations were regulated by virtue of section 70(1) to the Traffic Ordinance [Revised Version], providing:

The Minister of Transportation is permitted to enact regulations regarding:

                      (1)   Traffic arrangements, and rules for the use of roads by vehicles, pedestrians and others;

Does this provision allow Bar-Ilan Street’s closure for the purpose of preventing harm to religious sensibilities?

It is no secret that an administrative authority is held to exercise its discretion exclusively for the purpose behind the empowering statute. To this end, Justice Barak’s comments in HCJ 953/87, 1/88 supra. [4], at 324, are most appropriate:

A government authority is not free to set goals for itself in whose name it is permitted to exercise its discretion. Statutory discretion must be exclusively exercised within the framework of the statute’s objective. Indeed, even if the statute explicitly provides that the discretion is absolute, this still implies the authority’s duty to pursue the objectives of the law.

See also 2 I. Zamir, supra, [91], at 744-45.

Thus, various administrative orders and decisions were struck down on the basis of this principle, including, for example, the Food Products Supervision Order (Pig Farming)-1954, adopted for religious reasons under a statute whose purpose was to ensure distribution of food products in times of emergency. See Lazerovitch [5], at 55. Similarly, we struck down a decision making the grant of permits for importing food products to Israel contingent on obtaining kosher certification, a decision which was made under legislation with an economic purpose. See HCJ 231/63 Retef, Food Supplies v. The Minister of Commerce and Industry [81]. We also struck down a municipality’s decision to change a zoning plan with the intention of preventing a Christian Center from being established, see HCJ 392/72 Berger v. The District Committee for Planning and Building, Haifa [82], at 772, and invalidated a decision to proscribe the import of non-kosher meat, adopted under a statute having economic purposes. Meatrael [6], at 503-04, 509.

This Court has equally held that a municipality, empowered by statute to regulate municipal matters via by-laws, cannot enact such provisions in order to further religion. As such, the Court has held that a municipality may not advance religious goals unless it was authorized explicitly by statute. Thus, for instance, a by-law prohibiting pig farming and the sale of pork for religious reasons was struck down. Mendelson, supra [76], at 752. Similarly, a municipality’s refusal to grant a butcher shop a permit due to the fact that it sold non-Kosher meat was struck down, Axel, supra [75], at 1532. A gas-station owners’ conviction for opening their business on the Sabbath, in violation of a municipal by-law was overturned. Crim. A 217/68, supra [12]. This approach is clearly reflected in President Olshan’s comments, in Axel, supra [75], at 1531-32:

The conflict is between those who perceive the prohibition regarding the eating of pork as holy or as inextricably liked to our national identity and those who believe otherwise. On the heels of this conflict, we find another difference of opinion—the argument between those who think it right to coerce this prohibition upon the whole of society and those who believe that there is no place for coercion of this nature in a democratic state and that the matter of observance should be left to each and every individual’s own conscience.

This problem is a general and national one, not particular or limited to a specific location. Its resolution is left to the national legislature’s exclusive authority, unless the legislature finds it appropriate to delegate its decision-making authority in this matter to the local authorities.

A democratic regime is characterized by the fact that the power to limit individual freedom is derived from the People’s will. Accordingly, this power rests with the central institution authorized to speak and decide in its name; namely, the legislature.

The power to limit individual freedom, vested in the legislature, also includes the authority to empower others, such as municipalities, ministers, administrative authorities and so on and grant them the power to limit individual freedom within specific jurisdictions. In such cases, the empowered authority indirectly draws its power from the People’s will.  This being the case, it is incumbent on the legislature to bestow such powers explicitly and unequivocally, particularly when the matter involves a problem of national proportions rather than a local one. In cases of this sort, the granting of such powers is not to be presumed unless the intention to bestow such powers is obvious and clearly reflected in the statute’s formulation or in its clearly set out objectives.

4. On the heels of this ruling, which held that imposing restrictions on human rights for religious reasons is within the exclusive purview of the legislature—the Knesset—certain statutes seeking to balance between various considerations in this area were passed.

Thus, for instance, the Local Authorities Law (Special Empowerment)-1956, authorized the local authorities to restrict or prohibit the sale of pork and pork products for consumption within their jurisdiction through bylaws. However, the consumption of pork, its import and export or its sale in restaurants was not prohibited. And so, the Law for Amending Municipal Ordinances (number 40)-1990, empowered a municipality to prohibit places of entertainment from opening on Sabbaths and Jewish holidays within its jurisdiction due to religious tradition. Most recently, subsequent to the Court’s striking down the government’s decision to prohibit the import of non-kosher meat in Meatrael I [6], an “override clause” was incorporated into the Basic Law: Freedom of Occupation. This clause allowed for the Meat and Meat Products Law-1994, to be enacted. While this statute proscribes the import of non-kosher meat to Israel, the sale of such meat in the country is not prohibited. A petition attacking this statute’s validity was rejected and its constitutionality was upheld. See HCJ 4676/94 Meatrael Ltd. v. The Knesset [83].

5. The above case law distinguishes between establishing arrangements regarding religious matters—which is within the Knesset’s jurisdiction—and between taking individuals' interests into account, including their religious sensibilities, a matter that can fall within the province of an administrative authority. Parallel to this distinction is the line drawn between the private and public domain, a point made by Justice Cheshin in Meatrael I [6], at 508:

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

Indeed, within the private domain, individuals and families are free to determine how to live their lives, within the bounds of the law and provided, of course, that their neighbor remains unharmed. They are free to protect their way of life and sensibilities from being offended. Moreover, our case law recognized the existence of similar rights on the community level. Thus, for instance, the Court permitted administrative authorities to consider factors relating to the protection of the community’s lifestyle and the religious sensibilities of its members in its decision-making process, even absent statutory authorization to this effect.

Case law of this sort sanctioned the closure of a street segment bordering Jerusalem’s central synagogue during the morning hours of the Sabbaths and Jewish holidays in League [1], subsequent to the city’s Transportation Committee’s Chairman’s conclusion that “motor traffic on the streets, on festivals and Sabbaths, disturbs the concentration of the worshippers of the Yeshurun synagogue, preventing them from praying comfortably.” Id. at 2667. Similarly, the Court sanctioned the closure of a road in Bnei-Brak, a city whose population is overwhelmingly Ultra-Orthodox, in Baruch [2]. On the basis of these precedents, one hundred and twenty Jerusalem streets, situated in essentially Ultra-Orthodox areas, were closed-off.

In contrast, in the broad, social-public area, our case law made a point of insisting on the principle that religious considerations may only be taken into account in the context of an arrangement set forth by the legislative branch, or by virtue of a specific empowering statute.

6. For our purposes, even if we were to apply the above stated case law regarding the community level to the Traffic Ordinance [Revised Version], it would not be sufficient to authorize the closure of a central traffic artery for religious reasons, an artery whose closure was deemed, by the Traffic Controller in his letter to the Mayor of Jerusalem, to be “unthinkable, whether on the Sabbath or any other day” from a traffic perspective. A central traffic artery by no means belongs to those residing alongside it. Rather, it serves all the city’s residents, including those taking advantage of their day of rest to visit Jerusalem. Those residing alongside a traffic artery such as Bar-Ilan are to expect that a major public road will not be expropriated for their own private needs, in order to safeguard their sensibilities. Nor can they expect it to be limited in order to preserve their particular lifestyle, absent a statutory provision explicitly instructing otherwise.

7. For the Ultra-Orthodox, seeing Jews traveling anywhere in their cars on the Sabbath, let alone the Holy City of Jerusalem, is most offensive.  Indeed, even the very thought of it offends their religious sensibilities as “all of Israel are each other’s guarantors” Babylonian Talmud, Tractate Nedarim 39a [117]—all Jews are responsible for one another. Needless to say, the offense is further exacerbated when the Sabbath desecration occurs before their very eyes. On the other hand, closing off the main road is liable to offend the secular public’s sensibilities, interfering with their wish to travel freely on Sabbaths and holidays. As noted by Justice Or in Meatrael I [6], at 500:

Extending protection to the feelings of one part of the population is liable to infringe the feelings of another part.

A complex balancing exercise such as this, between the feelings and needs of two segments of the population, must be left to the legislature.

By its very nature, a statute sets out general norms and includes a standard, the product of a balance struck between various and continuing conflicting interests. In the absence of a statutory arrangement regulating the matter at bar, the Minister’s decision in our case may only be characterized as accidental and arbitrary, sparked by violent

 

demonstrations. Nor is it premised on any clear standard. It does not promote equality as it is likely to increase the already significant volume of Sabbath traffic on alternate routes, which for their part house an equally Ultra-Orthodox population. In which way are Bar-Ilan’s residents’ religious sensibilities more worthy of protection than those of their counterparts, living along the alternate routes, which the decision also harms? How shall the authorities that ordered Bar-Ilan’s closure and rerouted Sabbath traffic to the alternate routes react if those living in the latter’s vicinity shall protest against the increase in traffic? The Minister’s decision fails to provide answers to any of these questions.

8. We should not here expand the Traffic Controller’s powers and permit him to resolve this difficult public debate, when doing so entails bypassing the legislative branch and lacks any clear, equality-promoting standard. Such an extension of our existing case law would indeed be a leap I am unwilling to take.

Accordingly, in my opinion, the petitions in HCJ 5016/96, 5025/96 and 5090/96 should be granted and the Court should strike down the decision to close Bar-Ilan Street on Sabbaths and Jewish holidays during prayer times. The petition in HCJ 5435/96 requesting that the closure be broadened should be denied.

Justice Ts. Tal

As President Barak mentioned, the dispute is essentially a social, value-laden struggle; its outer cover alone is that of the law. As such, it does not lend itself to judicial resolution particularly well.  Hence, this Court proposed to establish a public committee, in the hope that it would be capable of finding an appropriate out-of-court solution. This hope, however, was dashed, forcing the Court to rule.

The fact that the petitioners are almost entirely public figures, who have come to fight the battle of those who drive on Sabbaths and holidays, only serves to further emphasize the value-laden nature of this dispute. Thus, on the one hand, there are the residents of the neighborhoods adjacent to and surrounding Bar-Ilan Street, for whom the phenomenon of motor traffic on the Sabbath is like a dagger thrust into their heart. On the other hand are the petitioners, who are concerned about their freedom of movement and freedom from religious coercion.

In all innocence, I assumed that public persons of the highest rank, like the petitioners, would be most sensitive and tolerant to the plight of the local residents and would not insist on their right to violate the Sabbath in the heart of these neighborhoods, before the local residents’ very eyes, and those of their children.

After all, the Minister’s decision, both in its original form according to the Sturm Committee and in its final form in accordance with the Tzameret Committee, was not to close the road for the entire day.  Instead, the road would only be closed for a few hours, when the intensity of the affront to the residents' sensibilities was at its peak.  On the face of it, it would seem that the petitioners themselves ought to have regarded this decision as striking a proper balance between their right to use the road on the Sabbath, and the right of the local population to a respite from the terrible defilement of all that is holy to them, for at least a few hours of the day.  Furthermore, even during the hours during which the road was to be closed, motorists would have at their disposal alternate roads, which do not lengthen their travel time by more than a minute or so.  It would seem to me that the most elementary of manners, together with a level of tolerance befitting public figures, would have dictated this solution.  

Unfortunately, the voices of discord have prevailed, sounding furiously in our midst.

At this juncture I will also allow myself to criticize the violence that occurred during the demonstrations on Bar-Ilan Street. Indeed, I believe that it was precisely the violent actions of some—perhaps a very small minority—of the Sabbath-observing public, that hardened the hearts of the petitioners and sealed their ears from hearing the honest cry of the true Sabbath. This is not the way of the Torah—“Her ways are ways of pleasantness, and all her paths are peace." Proverbs 3:17 [118]. Stoning motorists is in itself a desecration of the Sabbath, and can very well endanger the motorists’ lives.

Conceivably, the petitioners too might have seen the justice of the balance reflected in the Minister’s decision, were it not for the violence and the riots.

Even so, given the gravity of the damage caused to the local residents’ lifestyle and sensibilities, I would have expected people of such merit to display understanding and tolerance.

2.   An additional comment regarding the Jewish Law aspects of the issue is appropriate. Just as the dispute is essentially not a legal one, it is by no means clear to me that the Minister’s position is grounded in Jewish Law.  For if the closing of the road on the Sabbath, albeit partially, involves lengthening motorists’ driving time, thereby increasing the amount of time during which the Sabbath is desecrated, I have my doubts as to whether Jewish Law would endorse such a proposal. This was also the reason for the proposed compromise offering to close Bar-Ilan Street in exchange for the reopening of Yam Suf Street. If closing Bar-Ilan involves desecrating the Sabbath in any case, it makes no difference which alternate road is selected. In such a case, the detour which leads to greater social consensus is preferable to merely closing Bar-Ilan Street.  It is a pity that this proposal, which the petitioners accepted, was rejected, of all people, by the Minister and the religious sector.

3. Unfortunately we did not succeed in achieving a tolerance-based resolution of the dispute.  The petitioners claimed that they were prepared to display tolerance, had “the other side” done the same. My colleague, President Barak, has already responded to this claim, in para. 103 of his judgment:

To my mind, it is incumbent upon us to be consistent in our understanding of democracy. According to the democratic perspective, the tolerance that guides society’s members is tolerance of everyone—even towards intolerance, as I wrote in HCJ 399/85 supra. [25], at pp. 276-277:

The democratic regime is based on tolerance…tolerance of our fellows’ deeds and views. This includes tolerance of those who are themselves intolerant. Tolerance is the force that unites us and permits co-existence in a pluralistic society such as ours.

It is incumbent upon us to be tolerant even of those who are intolerant of us, due to the fact that we cannot afford to be otherwise. Because if we are not tolerant of the intolerant we shall undermine the very basis of our collective existence, premised on a variety of opinions and views, including those that we disagree with, and including the view that tolerance is not mutual.

Moreover, the “tolerances” here are not equivalent. The “tolerance” involved in the slight inconvenience caused by a detour cannot be compared to the “tolerance” required to withstand the fatal blow dealt the Holy Sabbath and the local population’s way of life. To better illustrate this point, I will risk using an extreme example, but as is the way of any caricature, it is purposely exaggerated in order to emphasize its point.  I recall the poem of Heinrich Heine in which Jacob says to Esau (freely translated):

For thousands of years we have tolerated one another in brotherhood; you tolerate the fact that I breathe, and when you rage, I tolerate your fury.

4.   We were not so fortunate as to see the matter resolved the way of tolerance. We must therefore assess the issues from a judicial perspective. My colleague, the Honourable President, praises the Sabbath, to the extent of saying that the Sabbath:

It is a cornerstone of the Jewish tradition and a symbol, an expression of the Jewish message and the character of the Jewish people. Deprive Judaism of the Sabbath, and you have deprived it of its soul

These comments are well said and worthy of their author. But, in the President’s eyes, the Sabbath conflicts with freedom of movement, which in his view is a derivative of human dignity.  I beg to differ. While freedom of movement is indeed a basic right, it is, in my opinion, not included in the Basic Law: Human Dignity and Liberty.  There are important rights which were not enshrined in the Basic Law, and not by inadvertence. In my opinion, great caution ought to be exercised when attempting to read rights, which are not expressly mentioned, into the Basic Law. The Supreme Court of the State of Israel protected basic rights long before there was a Basic Law, and will presumably continue to do so in the future.

Freedom of movement is indeed one of the most crucial freedoms, even if not derived from Human Dignity.  Even so, like almost all other freedoms, freedom of movement is relative rather then absolute.  A mere glance shall reveal how this right is circumscribed in all places, at all times, in accordance with the needs of the place and the time. The Sabbath, on the other hand, in the view of  “the Nation that Sanctifies the Seventh Day,”[1] is almost an absolute value, superceded only by considerations relating to the saving of a life, or the fear of endangering lives. I will limit myself to only a few examples:

The Sabbath is an “Eternal Covenant” and an “Eternal Sign” between God and the Jewish People. See Exodus 31:16-17 [119]:

And it shall come to pass, if ye diligently hearken unto Me…[to] hallow the sabbath day, to do no work therein; Then shall there enter into the gates of this city kings and princes sitting upon the throne of David, riding in chariots and on horses, they, and their princes, the men of Judah, and the inhabitants of Jerusalem: and this city shall remain for ever…But if ye will not hearken unto me to hallow the sabbath day, and not to bear a burden, even entering in at the gates of Jerusalem on the sabbath day; then will I kindle a fire in the gates thereof, and it shall devour the palaces of Jerusalem, and it shall not be quenched.

Jeremiah 17: 24-27 [120]. The other prophets also rebuked the nation in respect of the Sabbath. See Ezekiel 20 [121]; Amos 8 [122]; Nehemiah 9,10,13 [123]. In the words of the Talmuds: “Great is the Sabbath, for it is equal to all of the commandments." Jerusalem Talmud, Tractate Brachot 1:8 [124] and “Jerusalem was destroyed only because of the Sabbath was desecrated therein." See Babylonian Talmud, Tractate Shabbat 119b [125].

The Sabbath’s supreme value is not limited to the religious sphere. It also also extends to the national and universal planes. In the words of Ahad Ha’Am, in Al Parashat Derachim, part 3, at 30:

Whoever feels an authentic connection with the life of the Jewish people throughout the generations, cannot conceive of the Jewish people without the Sabbath. One could say without any exaggeration that, more than the Jewish people have kept the Sabbath, it was the Sabbath that kept the Jewish People.

See also The Book of the Sabbath 10-11 (1934) [126]:

The Sabbath is the greatest creation of genius of the Jewish spirit and anyone who violates it, has harmed the nation’s very heart.

The very division of the week into seven days, universally accepted, though it has no basis in astronomy, is evidence of the Sabbath's antiquity and its universality, as remarked by Rabbi Yehuda Halevi. I would also refer to the important book of Prof. Abraham Joshua Heschel The Sabbath: Its Meaning for Modern Man (1951) [127].

Consequently, “freedom of movement,” which is an important basic right, is confronted by the “Holy Sabbath,” which is an almost absolute obligation upon the Jewish people.

5. Actually, there is no conflict here between “freedom of movement” and the Sabbath. Nobody, and certainly not the Minister of Transport, is attempting to negate or deny the petitioners, or any other person, this freedom. The confrontation is between a slight impingement upon the freedom of movement and that of a mortal wounding of the feelings and way of life of the local population.

And it is in this context that I must take issue with my colleague, the President, who places “individual rights” on a higher plane than injury to a person’s feelings. In my opinion, there is no place for this a priori determination. In each and every case, the right must be weighed against the depth of the feeling.  The scale is both social and value-laden. Each person, every population, possesses a system of rights and sensitivities.  There are cases in which individuals, or even the public at large, will impute greater weight to feelings than to rights. What is patriotism if not a feeling? What are love, hate, brotherhood, neighborliness, aesthetics, art, and poetry if not feelings? During its entire history, our nation has proved that it is prepared to sacrifice its most basic right, the right to life, on the altar of the feeling of sanctity of the Sabbath and the commandments. “Why are you going out to be stoned? ….for I kept the Sabbath.” See Midrash Leviticus Rabbah 32:1 [128].

Furthermore, as stated, the holiness of the Sabbath and the intensity of the affront to the feelings of the local population are confronted only by a measure of inconvenience in exercising the right of the freedom of movement.

6. My colleague, Justice Or, reminded us that freedom of religion also entails freedom from religion. The question, however, does not even arise. The Minister is not, Heaven forbid, attempting to force the petitioners to observe the Sabbath.  They are free to travel on the Sabbath as they please, subject to a minor limitation during certain hours.

7. In light of the above, to the extent that our concern is with those using Bar-Ilan Street for transportation alone, I would not only dismiss the petition, but grant the petition of the Association for the Rights of the Religious Community in Israel and instruct that the Bar-Ilan Street be closed throughout the Sabbath. To this effect, let me mention that within the compromise proposal, where I suggested that Yam Suf Street be reopened in return for Bar-Ilan Street’s closure, the petitioners were prepared to have Bar-Ilan Street closed throughout the entire Sabbath.

8.   We are therefore left with the problem of the local residents who do not observe the Sabbath.

To my mind, the petition of Ms. Avinezer does not pose any problem. As noted, the commandment of the Sabbath always gives way to considerations of saving lives or to counter the threat of such situations arising.  Thus, as a nurse who works in a hospital and therefore inevitably deals with saving lives, Ms. Avinezer’s vehicle, bearing the appropriate markers, will be able to come and go unhindered, like any other security and emergency vehicle. Indeed, according to the Minister’s decision the “closure" will be effected by way of signposts—not roadblocks.

As for the petitioner Mr. Gabay, who is physically handicapped and requests to visit his parents who live on David Street on the Sabbath, he will be able to do so during the hours in which the street is open as per the Minister’s decision.  Although this may pose a slight inconvenience, as he may have to change his schedule slightly, such an inconvenience is trivial with respect to the matter at hand.

It seems to me that this also serves to answer the plight of the other secular residents. In other words, even if such people will have to limit themselves during the hours that the closure is imposed, the restriction is a relatively minor one, which in the circumstances is not unreasonable. After all, if we accept to take alternate routes and bear temporary restrictions for various other reasons, why should we be unwilling to subject ourselves to similar limitations for the sake of the Sabbath?

It should be recalled, in this context, the brief that was submitted by Advocate Simcha Meron. There, it was claimed that petitioners searched, but could find no secular residents in the area along Bar-Ilan St. This affidavit was never contradicted. And it is quite plausible. Thus, for instance, a claim that no secular people reside in the neighborhood of Mea Shearim would be believed. It would seem that the areas under discussion too have also gone through this process of “natural selection” of sorts, whereby the neighborhood remains overwhelmingly Ultra-Orthodox. My colleagues fear that perhaps there are secular residents who do not dare show themselves for fear of repercussions.  We, however, are a Court that can only rule on the basis of the evidence before it. A decision cannot be based upon fears and conjectures.  The fact is that the two private petitioners, Avinezer and Gabay, were not intimidated and did come forward.

Rather than dwelling on the possibility of there being silent secular residents, it is incumbent upon the Court to rule according to the certainty of the existence of thousands of offended and wounded Ultra-Orthodox residents.

The very volume of traffic on the street even on the Sabbath, estimated at about 13000 vehicles, puts to rest the fears of my colleague, Justice Or, that numerous drivers refrain from using the road on the Sabbath, for fear of violence. While I am prepared to assume that there are such people, I also believe that there are well-mannered, sensitive drivers who refrain from driving on the road out of good manners, not out of fear. The Court, however, can only base its decision on the facts as they are presented to it, not on speculation—and the fact is that thirteen thousand drivers are not afraid to drive down Bar-Ilan.

If we examine the Minister’s decision in terms of his exercise of discretion, then the words of this Court, in HCJ 4769/90 Zidan v. Minister of Labor and Welfare [84], with regard to secondary legislation, are appropriate:

In all that regards the exercise of judicial review respecting the reasonableness of secondary legislation, the case law has developed rules which serve as a brake and guarantee against excessive judicial intervention regarding the validity of legislation. These rules are based on principles of judicial policy aimed at defending legislative norms that were prescribed by the administrative authority by virtue of their prima facie powers.

A well-known rule is that the Court will not interfere with the discretion given an administrative authority, nor will it put itself in the shoes of that authority, unless the unreasonableness goes to the very heart of the matter and where it is almost certain that according to a correct measure of reasonableness the authority could not have decided as it did. In such instances, it is incumbent on the Court to show restraint and not put itself in a situation wherein it effectively replaces the administrative discretion with its own.  It has therefore been held that only extreme unreasonableness will warrant judicial interference with the validity of secondary legislation.

9. While my six colleagues are all of the opinion that the orders nisi should be made final, three of them—Justices Or, Cheshin and Dorner—feel that they must be made unconditionally final. In other words, in their view, the orders ought to be made absolute even if the local secular residents in question suffer no damage as a result of the closure. The other three judges—President Barak, Deputy President Levin and Justice Mazza—are also of the opinion that the orders must be made final, but they have left the Minister the option of first verifying the matter of the local secular residents. For their part, they are prepared to uphold the Ministers decision only with respect to the “traveling motorists.”

10. If my opinion were to be accepted, the Court would grant the Association’s petition in HCJ 5434/96 and, a fortiori, dismiss all of the other petitions. 

However, since mine remains a lone voice, and in order not to render the Minister’s decision unsalvageable in the event that a solution to the plight of the local secular residents is found, if such a plight does in fact exists, I will add my consent to the President’s judgment, for pragmatic reasons only.

*******

In consequence, by majority opinion, with Justice Tal dissenting, the Court has decided to dismiss the petition in HCJ 5434/96  and to make the orders nisi in HCJ 5016/96, 5025/96 and 5090/96  absolute, in the sense that the Minister’s decision to close Bar-Ilan Street, albeit partially, is null and void.

Bearing in mind the contents of section 10 of Justice Tal’s judgment, we hereby decide, by a majority opinion, with Justices Or, Cheshin and Dorner dissenting, that the operative part of our decision is contained in paragraph 106 of the President’s judgment.

Under the circumstances, no order is made for costs.

13 April 1997.       

 

[1]  From the Sabbath prayers.