The Supreme Court sitting as the High Court of Justice

 

 

HCJ 10662/04

HCJ 3282/05

HCJ 7804/05

 

Before:

The honorable President D. Beinisch

 

The honorable Justice M. Naor

 

The honorable Justice E. Arbel

 

The honorable Justice E. Rubinstein

 

The honorable Justice S. Joubran

 

The honorable Justice E. Hayut

 

The honorable Justice U. Fogelman

 

 

 

Petitioners in HCJ 10662/04:

1. Salah Hassan

 

2. Sawt el-Amel/The Laborer’s Voice – Defending the Rights of Workers and Unemployed

 

3. Adalah – The Legal Center for Arab Minority Rights in Israel

 

 

Petitioners in HCJ 3282/05:

1. Meirav Ben-Nun

 

2. Yael Be’er Salaman

 

3. Chen Hazan-Gilboa

 

4. Sigalit Bakar

 

5. Avigayil Avihu

 

6.  Mechuyavut -- Commitment to Peace and Social Justice

 

7. Itach – Women Lawyers for Social Justice

 

 

Petitioners in HCJ 7804/05:

Idit Edan

 

 

v.

 

Respondents in HCJ 10662/04:

1. National Insurance Institute

2. Ministry of Industry, Trade and Labor

 

 

Respondents in HCJ 3282/05:

1. National Insurance Institute

2. Minister of Social Affairs

 

 

Respondents in HCJ 7804/05:

1. National Labor Court

2. National Insurance Institute

 

 

 

 

Petitions to grant an order nisi

 

Date of hearing:

11 Heshvan 5772

(November 8, 2011)

 

On behalf of the Petitioners in HCJ 10662/04

Sawsan Zahr, attorney at law

 

 

 

On behalf of the Petitioners in HCJ 3282/05

Keren Shemesh Perlmutter, attorney at law; Netta Ziv, attorney at law

 

 

On behalf of the Petitioners in HCJ 7804/05

Eduardo Wasser, attorney at law

 

 

On behalf of the Respondents in HCJ 10662/04, HCJ 3282/05 and HCJ 7804/05

Chani Ofek, attorney at law; Orna Rosen-Amir, attorney at law; Carmit Naor, attorney at law

 

 

Judgment

 

President D. Beinisch:

 

Preface

1.          The petitions before us deal with the policy of the National Insurance Institute, under which the ownership or use of a vehicle precludes eligibility for an income support benefit. Initially, the petitions were directed against the entire gamut of arrangements that reflected that policy, as they were in effect in 2004, when the first petition was filed (HCJ 10662/04). After an order nisi was granted in the original petitions, the Income Support Law, 5741-1980 (hereinafter: the Income Support Law or the Law) was amended and the policy that was challenged in the petitions was established in section 9A of the Law. Following that development, the Petitioners requested leave to amend their petitions, challenge the constitutionality of section 9A of the Income Support Law. The main claim made in the petitions is that section 9A (b) establishes a conclusive presumption that anyone who owns or uses a vehicle is deemed to have an income the size of the benefit and, therefore, he is not eligible for an income support benefit. This presumption, by virtue of which the benefit is denied, is alleged in the petition to be an unconstitutional violation of the right to a minimum dignified subsistence.

 

The Petitioners

 

2.          The Petitioner in HCJ 10662/04 is married and the father of five children. The Petitioner has received an income support benefit since October 2001. The Petitioner submitted an application to the National Insurance Institute (hereinafter: the NII) to approve his use of a vehicle for the purpose of transporting his blind daughter without having to forfeit his income support benefit, to which he was entitled at that time. His request was refused because the Petitioner did not prove a medical need of the type that would enable him to possess a vehicle under the Law, while receiving an income support benefit. The petitioner was joined by Sawt el-Amel/The Laborer’s Voice and Adalah – The Legal Center for Arab Minority Rights in Israel (hereinafter: Adalah), which also represented the Petitioners in this petition.

 

3.          The Petitioners in HCJ 3282/05 are five single-parent women, who, due to the provisions in section 9A of the Income Support Law concerning the ownership or use of a vehicle and, prior to that, the parallel provision in the National Insurance Regulations, were denied the income support benefit. For that reason, Petitioners 1-3 were required to repay the amounts they had received as a benefit from the National Insurance, the claim for the benefit by Petitioner 4 was denied and monies were deducted from the benefit of Petitioner 5. The Petitioners were joined by Mechuyavut -- Commitment to Peace and Social Justice and Itach – Women Lawyers for Social Justice (hereinafter: Itach), which also represented the Petitioners in this petition. The Petitioner in HCJ 7804/05 was also a single-parent at the time the petition was filed, and her income support benefit was canceled when it was learned that she maintains a joint household with her ex-husband and makes frequent use of his vehicle.

4.          Each one of the women Petitioners before us has a harsh and complex life story. All are single-parents who were shouldering the burden of supporting and caring for small children at the time the petition was filed. Some of the Petitioners earned their livelihoods by working in jobs for meager pay and others had no livelihood at all and subsisted from the income support benefit and/or solely from child support payments. In their petition, the Petitioners claimed that the use of a vehicle enabled them to go to work and, for some of them, even lowered the cost of travel compared with public transportation. Petitioner 1, a single-parent of two who has a hearing handicap, required a vehicle for the purpose of caring for her children and for transporting the equipment she requires for her work. She alleges that the cancellation of the income support that she received from the NII led her to give up the vehicle in her possession and to stop working. However, when it came to light afterwards that she uses her parents' vehicle about three times a month, her income support benefit was canceled altogether, which left her and her children to live solely from child support payments and the child allowance totaling NIS 1,841 per month. At the time the petition was filed, Petitioner 2 lived in a remote town without any public transportation, and she required a vehicle to obtain basic services of food, health and education for her son, who suffers from a chronic disease. Over the years she had worked and received income support pursuant to the Income Support Law. When it came to light that she was regularly using a vehicle owned by her mother, her benefit was canceled retroactively and her debt to the NII was set at NIS 114,000. Petitioner 3 also required a vehicle due to lack of frequent public transportation to her place of residence. During the period of time in which she required the income support benefit, the business she owned failed, she divorced her husband and was caring for a-year-old baby. Her benefit was also canceled when it came to light that she was using her ex-husband's vehicle. The decision to cancel her benefit ultimately compelled her to move her place of residence to a central location where she could manage without the use of the vehicle. With regard to Petitioner 4, it was alleged that travel on public transportation required her to change four bus lines on every trip to her workplace and to take her child – who, at the relevant time, was a year old infant – along with her. The Petitioner's claim for the income support benefit was denied because of the vehicle that was placed at her disposal by her family, who financed most of the expenses. Petitioner 5 also required a vehicle to reach her workplace – various prisons in the north of the country, which are not accessible by public transportation. As long as she used her father's vehicle, and due to the father's medical disability, her income support benefit was not canceled. After her father sold his vehicle, and the Petitioner began to use the vehicle of one of her acquaintances, her income support benefit was canceled. Cancellation of the benefit compelled her to quit her job and submit a claim for a full income support benefit. That claim was approved and Petitioner 5 received an income support benefit for a period of time until she no longer needed it.

 

5.          The petitioner in HCJ 7804/05 was divorced and the mother of a little girl at the time the petition was filed. Her income support benefit was canceled after the NII came to the conclusion that she was running a joint household with her ex-husband (which, in itself, does not negate eligibility for an income support benefit, but requires examination of the eligibility of such a nuclear family) and, accordingly, the debt to the NII was said at about NIS 17,000. Afterwards, it transpired that the Petitioner also made frequent use of her ex-husband's vehicle and the Regional Labor Court ruled that even though there was not enough evidence of the existence of a joint household, the Petitioner should be denied the benefit due to the use of a vehicle. The National Labor Court agreed with the conclusions of the Regional Labor Court regarding the use of the vehicle, but added, above and beyond the necessity, that the gamut of evidence indicated the existence of a joint household (NII Appeal 300/03 Idit Idan– National Insurance Institute (unpublished, March 15, 2005)). In the petition, the Petitioner challenged the arrangement established in the law and requested that we vacate the judgment of the National Labor Court.

 

The normative basis

             Before we discuss the main claims raised by the parties in the petitions before us, we will describe the normative basis required for the matter.

 

The purposes of the Income Support Law

6.          The Income Support Law, which establishes the arrangement that is attacked in the petitions, was enacted in 1980. Its intricate provisions create the last safety net available to residents of the state who suffer privation. The main purpose of the law is to support residents of the state who find themselves in a situation in which they cannot obtain their basic needs. As established in the explanations to the Income Support Bill, "The purpose of the proposed law is to ensure every person and family in Israel, who are unable to provide themselves with the income required for subsistence, of the resources to obtain their basic needs" (Bill 1417 of September 30, 1979, 5740, at p. 2 (hereinafter the Income SupportIncome Support Bill); see also Abraham Doron and Johnny Gal “The Income Support System in Israel in a Comparative International Perspective," 58 Social Security 5, 5-6 (2000) (hereinafter: Doron and Gal); for details on all the welfare systems available to the needy population, see Ruth Ben Israel, Social Security, at 898-899 (2006) (hereinafter: Ben Israel)). That support is implemented by means of a differential benefit that is adapted to the age and family status of the applicant. Beginning in 2006, the benefit has been derived from a basic amount that is updated each year in accordance with the rate of the rise in the economy’s Consumer Price Index, which enables it to be updated and adapted according to the economic situation and the cost of living in Israel (see the definition of "the basic amount" in section 1 of the Income Support Law, and the benefit rates established in the second addendum to the Law. In the past, it was updated according to the average salary in the economy – see section 1 of the Law; Ben Israel, at p. 872).

 

7.          The basic presumption inherent in the Law is that the best way to achieve and ensure a minimum dignified subsistence is by working. This presumption reflects two complementary aspects of the Law: first, an assurance income benefit is given only to someone who is not capable of supporting himself on his own. The nature of the benefit, by definition, is residual: it is only given to a resident of the country who does not receive sufficient income from working, a pension or another source of income, and does not have sufficient resources to cover his basic subsistence (Income Support Bill at pp. 2-3). Second, the supplementary aspect of providing alternative income to an individual is to prevent a situation in which that income becomes, in itself, an incentive not to work. The purpose of the benefit is to provide the individual with subsistence during the intermediate period in which he finds himself without resources, but not to prevent him from reentering the job market. To the contrary – the state wants to encourage its residents to work, and not to remain needy and dependent on public support for a lengthy period of time. The Law therefore strives to ensure that the benefit will be a temporary – and not a permanent – alternative to working (cf.: Doron and Gal, at pp. 8, 23-24; Arieh Lieb Miller “Income Support Laws in Israel Compared with the Law in West Germany, Labor Law Yearbook A91, 92-93 (1989); Ben Israel, at pp. 843-845). It should be noted that along with the income support benefit, which is designed to help those who cannot support themselves, the Income Support Law also enables the provision of an income supplement benefit, which is designed to help individuals who have succeeded in finding jobs, but whose pay is low and is not sufficient for basic subsistence.

 

8.          The two main tests that establish a person's eligibility are derived from these principles: the income test and the employment test. The income test, which is the focal point of the petitions before us, delineates rules for quantifying and estimating the income of the benefit applicant. Its purpose is to examine whether the applicant has sufficient income to cover his basic subsistence needs, or he requires the benefit. The rules for examining different incomes, quantifying them and considering them in the decision on granting the benefit are established in Chapter D of the Law and the Income Support Regulations, 5742-1982 (Ben Israel, at pp. 872-874; National Labor Court Hearing 43/04-162 Haviv Dahan– National Insurance Institute, Labor Court Judgments 15 351 (1984)). The employment test makes eligibility for the benefit contingent upon the applicant's making every possible effort to find work that provides income, which exceeds the amount of the benefit (and, in the language of the Law, he has maximized his earning power). Therefore, the applicant must be lacking in sufficient work or be unfit for work (pursuant to a list of exemptions set forth in section 2 (a) of the Law and in the First Addendum): and if he is able to work, he must be willing to accept any work offered to him by the Employment Service that is compatible with the state of his health and physical fitness (Ben Israel, at 880; National Insurance Appeal 232/99, Idit Uri v. National Insurance Institute, Labor Court Judgments 38 157, 163-168 (2002); hearing no. 41/91-3 Ahias Meir – Employment Service, Labor Court Judgments 13 61 1981)). Therefore, the purpose of the employment test is double: it ascertains that the benefit applicant is, indeed, in need of assistance from the state and is not choosing a life of willful unemployment and, concomitantly, it refers the individual to obtaining assistance by finding work, thereby improving his chances of extracting himself from the cycle of poverty and advancing toward self-fulfillment and becoming self-supporting. The employment test therefore gives expression to the second purpose of the law, whereby state support of the individual is intended to be a temporary arrangement, by virtue of, and after which, the individual can recover and stand on his own two feet.

 

9.          In addition to these two substantive tests, the Law also specifies conditions of residency and age. The residency condition focuses on the boundaries of the social safety net for residents of the state who hold residency status for at least two consecutive years. The age condition limits the benefit to residents over 25 years of age, on the assumption that at a younger age, the person can usually support himself or he is still dependent on others – mainly members of his family – and, therefore, he should not be deemed as someone who requires support from the state. Alongside this rule, exceptions were established that also enable the benefit to be granted to someone who is below the threshold age. By their nature, those exceptions were designed to provide a response to situations in which the circumstances of the applicant’s life attest to the fact that he is incapable of supporting himself, notwithstanding his youth.

 

The ramifications of ownership or use of a vehicle for entitlement to the benefit

 

10.        Based on the purposes of the Income Support Law, the provisions of the law that were enacted establish the significance of ownership or use of a vehicle with regard to eligibility for the benefit. The main chapter dealing with the benefit and its rate is Chapter C of the Income Support Law. Section 5 (B) in Chapter C of the Law states:

Rate of

the benefit

The benefit for an eligible person who has an income shall be an amount equal to the difference between the benefit to which he would have been entitled under subsections (A) or (E) if not for the income, and the income.

 

This section reflects that the income test is conducted individually for each benefit applicant, in order to assess his eligibility for the benefit and the rate of the benefit that he will receive, if he is found to be eligible. "Income," for the purpose of calculating eligibility for the benefit and the amount of the benefit, is defined in Chapter D of the Law, in sections 9 – 12 (B). These sections enumerate a long series of data that must be taken into account when determining the income of a benefit applicant. Among these data, for example, the applicant's direct income is examined – including, e.g., other pensions paid to him, maintenance payments or payments made to someone undergoing vocational training, and "indirect" payments, such as income from property. Chapter D also enumerates income that will not be taken into account in the income test, among them, for example, the child allowance and grants to discharged soldiers. 

 

Among the provisions listed in Chapter D of the Law, the relevant provision to the matter at hand is set forth in section 9 (A) (5) as follows:

 

Income

9 (A). In this Law,

“Income” means income from sources set forth in section 2 of the Ordinance [the Income Tax Ordinance – D.B.], even if it was not generated, produced or received in Israel, including…

 

(5) Amounts that shall be deemed income from property that is a vehicle as stated in section 9A

(emphasis added – D.B.).

 

             Section 9(A)(5) therefore shows that in calculating the income of the benefit applicant, income from property that is a vehicle must also be taken into account. It should be emphasized that the Petitioners before us are not attacking the constitutionality of section 9(A)(5), i.e., the actual determination that a vehicle can be taken into consideration in determining a person's income. Their claims focus on the concrete arrangement determined in this matter in section 9A, which specifies the situations in which a vehicle will be deemed property from which monthly income is generated and the significance of this income on the rights to the benefit. The following is stated in section 9A(a) and 9A (b):

Special provisions in the matter of property that is a motor vehicle

9A. (a) In this section, "vehicle" means a motor vehicle as defined in section 1 of the Transportation Ordinance that is owned by the claimant or used by the claimant or his child who is with him, except for a motorcycle.

 

(b) In the matter of this Law, subject to the provisions of subsection (c), a vehicle is deemed property from which monthly income is generated in an amount that is no less than the amount of the benefit that would have been paid to the claimant if not for the provisions of this subsection.

(emphasis added – D.B.)

 

The insertion of the sections – section 5(b) and sections 9A (a)and 9A (b) – leads to the conclusion that anyone who owns or uses a vehicle is not eligible for an income support benefit, as his “income” from the vehicle is deemed equivalent to the amount of the benefit that would have been paid to him if he did not own or use a vehicle. The meaning, therefore, is that the benefit applicant is deemed to have an income that is above the income threshold that entitles him to the income support benefit and, therefore, as someone who does not need the assistance of the state. It should be noted that at the start of adjudication of the petitions before us, section 9A (b) did not contain the connection of use of a vehicle even though, de facto, the NII interpreted section 9A as also precluding the regular use of a vehicle. The section was amended in 2007, during adjudication of the petitions, and this interpretation was established in the Law, so that now, both ownership and use of a vehicle are deemed a presumption that precludes granting the income support benefit.

 

11.        Section 9A (c) continues and establishes a series of exceptions for which the income support benefit will not be denied to someone who owns or uses a vehicle. This section was also amended during adjudication of the petitions before us, so the range of exceptions set forth therein was expanded. Prior to the amendment, the exceptions focused on cases in which the vehicle is required by the benefit applicant for medical reasons. In 2007, two more exceptions were added to the Law (sections 9A (c) 6 and 9A (c) 7)), which enable payment of the income supplement benefit under certain conditions, even to someone who is working and using a vehicle, or to someone whose earnings ceased a short time before the time for which the benefit is claimed. Section 9A (c), which enumerates the exceptions to the rule of ownership or use of vehicle, states as follows:

9A. (c) A vehicle shall not be deemed property from which income is generated if one of the following conditions is fulfilled –

 

(1) (deleted)

 

(2) The claimant or a member of the claimant's family requires the vehicle for the purpose of medical treatment provided outside their home, pursuant to a prearranged treatment program or at least 6 times a month for a period of time exceeding 90 consecutive days, all pursuant to the rules and conditions established by the minister; in this matter, "family member" means someone whom the claimant drives to medical treatment, as stated in this section, who is the claimant's spouse, son, daughter or parent, provided that the family member as stated does not have an additional vehicle.

 

(3) The claimant, his spouse or child is disabled in his legs and receives payments from the state treasury for maintaining the vehicle and, with regard to someone who does not receive payments as stated – a qualified doctor, as defined pursuant to the provisions of section 208 of the Insurance Law, determined that he requires transportation due to his being disabled as stated, pursuant to the rules, conditions and the period of time determined by the minister.

 

(4) The child of the claimant is paid an allowance pursuant to the provisions of Part 6 of Chapter 9 in the Insurance Law.

 

(5) The vehicle registration was deposited with the authority authorized to issue that same registration, and as long as the registration is deposited, one of the following conditions is fulfilled:

 

    (a) The claimant is not capable of working at any job whatsoever due to illness, provided that the period of time in which the vehicle shall be deemed property from which no income is derived as stated in subsection (b) does not exceed six months from the date on which he submitted a claim for the benefit.

 

    (b) The vehicle is a tractor as stated in the Transportation Regulations, 5721-1961, provided that the tractor is not in use and the claimant has a farm that is not operational.

 

(6) The claimant has a monthly income from the sources set forth in section 2 (1) or (2) of the Ordinance [the Income Tax Ordinance – D.B.], in an amount that exceeds 25% of the average salary, and if he or his spouse have reached retirement age – in an amount that exceeds 17% of the average salary, the claimant does not have an additional vehicle and the vehicle meets one of the following conditions:

 

     (a) The engine volume does not exceed 1300 cc and in the month for which the benefit is paid, seven or more years have passed since its year of production.

 

     (b) The engine volume does not exceed 1600 cc and in the month for which the benefit is paid, twelve or more years have passed since its year of production.

 

(7) The claimant does not have a monthly income from the sources set forth in section 2(1) or (2) of the Ordinance [the Income Tax Ordinance – D.B.], or his income as stated is less than the amounts at the beginning of paragraph (6), provided that all the following conditions are fulfilled:

 

     (a) In the month for which the benefit is paid or the two months preceding it, the claimant was dismissed from his job; in this matter, “dismissed” includes resignation under circumstances that would entitle him to unemployment pay for the first 90 days from the date of termination of the job, pursuant to the provisions of section 166 (b) of the Insurance Law.

 

     (b) In the month for which the benefit is paid, the claimant does not have an additional vehicle, and his vehicle fulfills the provisions of paragraph 6(a) or (b).

 

     (c) In the ten months preceding the month in which the claimant was dismissed, the claimant was paid a benefit under this Law and the claimant fulfilled the conditions set forth in paragraph (6).

 

              Therefore, the meaning that emerges from all the aforementioned sections is that a benefit applicant who owns or uses a vehicle, and whose situation is not included in one of the exceptions, is not entitled to receive an income support benefit.

 

              The constitutionality of that arrangement is the issue to be decided in the petitions before us.

 

The Petitioners' arguments

 

12.         The Petitioners in HCJ 10662/04, the Petitioners in HCJ 3282/05 and the Petitioners in HCJ 7804/05 (hereinafter, for the sake of convenience, we will term all of them together: the Petitioners) submitted their arguments separately, but the petitions were heard together. Even though not all the Petitioners challenged the same aspect of the Law, there is a series of pivotal arguments that is common to all of them and we will focus on those below.

 

13.         The main argument that arose in the pleadings of the Petitioners is that section 9A (b) of the Income Support Law establishes a conclusive presumption that denies the benefit to someone who owns or uses a vehicle. According to the argument, this presumption violates the right to a minimum dignified subsistence, since it denies a person’s' right to an income support benefit even if, under the circumstances of his life, the user’s ownership of a vehicle does not attest to the fact that he possesses the means for a minimum dignified subsistence. The categorical denial, it was argued, prevents examination of whether the user’s ownership of a vehicle attests to an exceptional standard of living, and it applies whether the use or ownership entail only small expenses, or they are required for a minimum dignified subsistence. The Petitioners point out that such a need may arise due to illness, residence in a remote area with no public transportation connection, or due to a desire to go to work. It was further argued that the violation of the right to a minimum dignified subsistenceis increased in cases of denial of the benefit because the income support benefit lies at the core of the protection of human dignity. Therefore, when analyzing the violation of the right, it was argued that the lack of the benefit should not be balanced against other means that the state provides or may provide to its citizens, since other government support is not stable like the income support benefit and, in some cases, is also not established in law. The Petitioners in the three petitions did not argue that the ownership or use of vehicle is a vital component of a minimum dignified subsistence, but they did argue that the use of a vehicle can help them to lead normal lives: to appear at the employment bureaus, to search for new jobs, to access medical treatment, and to maintain social lives. The Petitioners in HCJ 10662/04 (who are represented by Adalah – The Legal Center for Arab Minority Rights in Israel), added that for the Arab recipients of the benefit, who constitute 26% of all the benefit recipients, the use of public transportation cannot serve as an alternative to the use of a vehicle, since most of the Arab villages have no regular and frequent public transportation at all.

 

14.         Another argument made in the petitions, particularly in HCJ 7804/05, is that the legislature did not address the question of what constitutes "use" of a vehicle, for which the income support benefit will be denied – even though it is now expressly established       in section 9A (a) of the Law. According to the arguments, the tests that were formulated in the rulings of the Labor Court greatly expanded the definition of the use so that, in fact, any use of a vehicle leads to denial of the benefit, even if it is not equivalent to the use made by an owner. It was further argued that the exceptions that were added to the Law in 2007 do not mitigate the violation of the right, for several reasons: first, because they are relevant to only a small number of needy people who earn at least 1,850 shekels a month (an amount equivalent to 25% of the average salary in the economy, as stated in the exceptions) and possess an old vehicle. Second, many benefit applicants utilize a vehicle that belongs to family members or acquaintances, and they cannot affect its value. Third, there are many groups that are not working at all but the use of a vehicle is still vital to running their own lives and fulfilling their parental duties. Finally, many benefit applicants, primarily women, do not hold permanent jobs and, therefore, their income varies from month to month in a manner that does not enable them to regularly rely on the existence of the exception. For all these reasons, the Petitioners argue that the exceptions added to the Law do not resolve the problem arising from the fact that a conclusive presumption has been established in the Law which denies receipt of the benefit.

 

15.         We will note that a dispute arose between the Petitioners and the Respondents on the question of the constitutional review that should be implemented in this case. According to the Respondents – whose position will be described in detail below – the mechanism of judicial review of the violation of social rights and the conditions of eligibility for social rights should be limited, and it should be separated from the judicial review of the constitutionality of civil and political rights. The Petitioners, particularly the petitioners in HCJ 3282/05, opposed the constitutional analysis model proposed by the Respondents. They argue that the proposed model – which endeavors to focus the constitutional examination on the stage of determining whether a right has been violated – does not allow for effective judicial review of laws that violate the right to a minimum dignified subsistence. Moreover, the Petitioners conceded the Respondents' detailed argument, whereby the interest protected by the Law should be defined as the interest of preventing a life of existential deprivation only in regard to those persons who find themselves in that condition because of reasons beyond their control, but they argue that that last  component of duress should not be added to the definition of the right itself. In their opinion, the requirement of duress must be examined as part of the examination of the purpose of the legislation and the proportionality of the violation, while an examination of the circumstances under which a person finds himself in a state of existential deprivation and an examination of the existence of the conditions justifying his extraction from that deprivation, must be made, only after it has been proven that the person is suffering from existential deprivation and that his right not to live in such a manner has been violated. The Petitioners further argued that since the examination of whether the benefit applicant suffers from existential deprivation because of reasons beyond his control is founded on a factual system that is based on various eligibility tests, which include, inter alia, an examination of the family's situation, the requirement to maximize earning power and to conduct a detailed test of income – there is also a practical logic in conducting it at this stage of examining compliance with the tests in the limitations clause, and not at the stage of determining violation of the right. To this the Petitioners added that the position whereby a condition of duress must be read into the definition of the right to a minimum dignified subsistencereflects the outlook whereby people choose a life of poverty and that the individual has a scope of autonomy in choosing his economic status. Such a position, it was argued, ignores the fact that people's economic situation is also derived from the social status into which they were born and to their ethnic, religious and sectoral affiliation. It was argued that emphasizing the individual's scope of choice in circumstances where his ability to choose is limited undermines the state’s obligation to adopt arrangements that narrow the social gaps.

 

16.         With regard to the conditions of the limitations clause, the Petitioners focus their arguments on the conditions of proportionality. With regard to the first subtest, it was argued that there is no rational connection between the use or ownership of a vehicle and the purpose of the law, since no income – even conceptual – could be generated from the use they made of the vehicle. The Petitioners pointed out the fact that from a factual standpoint, the family support that was given to the benefit applicant by placing a vehicle at her disposal several times a week cannot, for the most part, be converted into a monetary payment, and that such assistance is equivalent to the assistance provided by the family in minding and caring for the children – assistance that is given by means of existing personal and family capital. It was further argued that the fact that a conclusive presumption from which there could be no deviations had been established for a basic matter such as a subsistence benefit, is contrary to the natural rules of justice and, hence, is not proportional.

 

17.         The Petitioners further argued that the second subtest, the test of the means with the lesser violation, does not exist in this matter either. The main argument that was made in this matter is that with a conclusive presumption that cannot be refuted and from which there can be no deviations, the legislature should have chosen a means that allows for the assessment of the economic value of the use of a vehicle and deduction of that value from the amount of the monthly benefit. The Petitioner in HCJ 7804/05 emphasized that a person who works and receives a vehicle from his employer is entitled to deduct the value of the benefit generated by the vehicle pursuant to the rate for deducting the benefit in accordance with the income tax regulations, while someone who uses a vehicle that he did not receive from his employer, even if such use is required for his work, is denied that benefit completely. The Petitioners further argued that the law does not comply with the third test of proportionality either. They  argue that the Respondents' insistence on quantifying the family assistance given to the benefit applicants constitutes a negative incentive for family members to help one another, and attests to the state's shirking its responsibilities vis-à-vis the individuals. Additionally, the savings and efficiency attained by the sweeping denial of the benefit do not match the damage caused by denial of the benefit from those who need it for a minimum dignified subsistence.

 

18.         It should be noted that the Petitioners in HCJ 10662/04 chose to focus their petition on the claim of discrimination, whereby Amendment 28 to the Income Support Law, in which two exceptions that are set forth in sections 9A(c)6 and 9A(c)7 of the Law were added, discriminate between recipients of the Income support benefit and the income supplement benefit. This is because these sections enable recipients of the income supplement benefit, under the conditions set forth therein, to possess a vehicle without losing their benefit, and do not allow for a similar arrangement for recipients of the income support benefit. The Petitioners argue that this arrangement discriminates in an arbitrary and comprehensive manner between recipients of the income support benefit and recipients of the income supplement benefit, and violates the constitutional right to a minimum dignified subsistence, and the right to property by recipients of the income support benefit. This discrimination, it was argued, is not for a proper purpose. The Petitioners are not protesting the concrete arrangements set forth in these sections but, rather, are asking to apply it, mutatis mutandis, to the group of income support recipients as well.

 

The Respondents’ arguments

 

19.         The Respondents focused their responses and the affidavit in response on the question of whether section 9A (b) of the Law does, indeed, violate the right to a minimum dignified subsistence. According to the Respondents, section 9A (b) embodies the "pure" socioeconomic policy of the legislature. This policy, it was argued, is not given to judicial review because it establishes a series of social rights that have not reached the status of basic rights. Only a narrow and very limited part of this policy is covered by the constitutional right to dignity in the sense of the right to not live a life of existential deprivation caused by duress and, according to the Respondents, the current case does not fall within the boundaries of the right at all.

 

20.         The Respondents argue that a distinction should be made between the constitutional analysis in a claim of violation of a civil right and the constitutional analysis in a claim of violation of a socioeconomic right, in two main ways. First, the scope of the constitutional right should be limited and the interest protected by law should be narrowly defined as the interest of preventing a life of existential deprivation caused by duress. Second, the Respondents believe that the constitutional examination should be focused on the first stage and the question of whether the protected right has been violated at all should be examined. They argue that the importance of focusing on the stage of the violation is designed to delineate the boundaries of the right to a minimum dignified subsistence, and to ascertain that the judicial review is applied only to the core of the right, and not to its marginal parts, to which an economic policy can be applied that is not subject to constitutional judicial review. Accordingly, it was argued, the Court must examine only the existence of the rational connection between the conditions of the eligibility (i.e., the ownership or use of a vehicle) and the interest protected by the Law. This test is a test of relevancy – i.e., it is sufficient that there is some connection of relevancy (absence of arbitrariness) between the protected interest and the means for constitutional review so that the Law will stand the test of constitutionality. According to the Respondents, focusing on the first stage of the constitutional examination (i.e., at the stage of the violation) "does not render the constitutional analysis superfluous but, rather, moves the substantive tests that are implemented in the second stage, to the first stage of determining the existence of the violation" (affidavit in response on behalf of the Respondents, dated November 12, 2009, at p. 8).

 

21. As to the essence of the Petitioners' arguments, the Respondents argue that the rationale underlying denial of the benefit from someone who owns or uses a vehicle is the high cost and the significant expenses entailed in maintaining a vehicle. According to the Respondents, calculations of the monthly cost of maintaining a vehicle, based on the statistical models, indicate that the monthly expense is very close to the amount of the average benefit and, therefore, justifies denying eligibility for the benefit. This rationale encompasses the presumption, pointed out by the Respondents, that it is highly possible that the vehicle’s maintenance expenses are funded from the benefit recipient’s independent income, which he did not report to the National Insurance Institute at the time his eligibility for the benefit was examined. Hence, it was argued, since the income test is the main test for examining eligibility for the benefit, denying the benefit is justified where there is a basis for assuming that the benefit applicant has unreported sources of income. According to the Respondents, this rationale is also valid in cases in which the vehicle is not owned by the benefit applicant and another person pays for the ongoing expenses of maintaining the vehicle. In such a situation, they argue, the benefit applicant should be deemed to have been given the amount of the vehicle's value and the amount of the value of the vehicle's use by the vehicle's owner. The Respondents emphasize that in many cases, the vehicle is made available by family members, who are obligated under Israeli law to care for members of their family. Therefore, it was argued, we should not encourage a reality in which the public treasury finances the existential needs of a person, thereby enabling others to finance needs that are not of an existential nature.

 

22.         From the standpoint of the right to dignity, which is the main right under examination, according to the Respondents, the interpretive model for extending the scope of the right to dignity is the model of existential deprivation caused by duress. According to that model, the constitutional obligation of the state arises only where a danger is created that a person will be forced, because of reasons beyond his control, to live in existential deprivation. When an individual can be required to make a proper change from a normative standpoint, a range of choices opens up before him, which negates the assumption that he is forced to live in a state of existential deprivation. This interpretive model ascribes a limited and narrow meaning to the right to not be forced to live in existential deprivation, which relies, according to the argument, on the fact that that right is derived from the right to human dignity.

 

The questions that must be decided

 

23.         The petitions before us raise the constitutional question of the arrangement established in section 9A(B) of the Law. The main question to be decided by us is whether this arrangement – which means a universal denial of the right to the income support benefit for anyone who owns or uses a vehicle (and whose case does not fall within the realm of one of the exceptions set forth in the Law) – violates a constitutional right. If we find ourselves responding to this question in the affirmative, we must further examine whether that violation fulfills the requirements of the limitations clause and, therefore, constitutes a permitted violation. This pivotal question raises a series of "derivative" questions, which are also required for the decision. These encompass the question of the scope of the violated right, which is the right to a minimum dignified subsistence(or, by its other names: the right to minimal subsistence conditions or the right not to live in existential deprivation), and the question of the connection between it and the right to dignity. In the wake of the position presented by the Respondents, the question also arises as to what judicial review model should be applied in examining the constitutionality of a law that is alleged to violate social rights, and if, as argued by the Respondents, a different constitutional model should be adopted with regard to the violation of social rights. These are the questions that we will deal with first.

 

The stages of judicial review

 

24.        Since the enactment of the new Basic Laws in 1992, the generally accepted constitutional examination in our legal system is divided into three main stages (see, among many others: HCJ 6821/93, United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49 (4) 221 (1995) (hereinafter: the Mizrahi Bank Case); HCJ 1715/97, Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367 (1997); HCJ 6055/95, Tzemah v. Minister of Defense, IsrSC 53 (5) 241 (1999); HCJ 4769/95, Menahem v. Minister of Transport, IsrSC 57 (1) 235 (2002) (hereinafter: the Menahem Case); HCJ 1661/05, Gaza Coast Regional Council v. Knesset, IsrSC 59 (2) 481 (2005) (hereinafter: the Gaza Coast Case); HCJ 6427/02, Movement for Quality Government in Israel v. Knesset, IsrSC 61 (1) 619 (2006) (hereinafter: the Movement for Quality Government Case). In the initial stage, the question of violation is examined, during which the Court examines whether the relevant law violates a right or rights that are established in the Basic Laws. If the answer to this is negative, the constitutional examination comes to an end (see, e.g., the analysis of the question of violation of the right to dignity in HCJ 366/03, Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60 (3) 464 (2005) (hereinafter: the Commitment Society Case). If the answer is affirmative, meaning that the existence of a violation has been proved, the constitutional analysis proceeds to the second stage: examining the constitutionality of the violation.

 

             A constitutional examination of the violation of the basic right is conducted by applying the requirements established in the limitations clause in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. A violation that fulfills the requirements of the limitations clause is a permitted violation of basic rights. Such a permitted violation reflects the concept that basic rights are not absolute and, under certain conditions, may be violated (see, e.g., the Mizrahi Bank Case, at 433; Gaza Coast Case, at 545). A constitutional violation of the basic right concludes the stages of constitutional review and the law is declared to be constitutional. If it is found that a law violates a basic right in a way that does not fulfill the requirements of the limitations clause, the third stage commences, which is the stage of determining the remedy. In this stage, the Court determines the result of the unconstitutional law (see, e.g., HCJ 7505/98, Corinaldi v. Israel Bar Association, IsrSC 53 (1) 153, 162-163 (1999); Criminal Appeal 586/94, Azor Sports Center Ltd. v. State of Israel, IsrSC 55 (2) 112, 133-134 (2001)).

 

             As noted by President A. Barak in the Movement for Quality Government Case: “This division into three stages is important. It is of assistance in the legal analysis. It is intended ‘to clarify the analysis and focus the thinking’... It clarifies the basic distinction, which runs like a golden thread throughout human rights law, between the scope of the right and the degree of protection afforded to it and its de facto realization” (id., 670). This division into stages laid the foundations for a uniform judicial review of violation of all of the rights encompassed by the Basic Laws which, as a result, achieved a constitutional, supra-legal status. This division circumscribed the boundaries of constitutional discourse, as part of the limitations imposed by the establishing authority on the legislative authority’s use of its power to violate rights set forth in the Basic Laws. This division also created the analytical basis for a distinction between the conceptual scope of constitutional rights and the scope of the protection given to them by the limitations clause. In fact, given the many years that have elapsed and the large number of judgments dealing with constitutional analysis, it can be stated that this division has become a basic axiom of constitutional law in Israel.

 

25.        Nonetheless, the Respondents have devoted most of their energies to establishing the argument for adopting a different method of constitutional analysis for examining the petitions before us – a method of analysis that is affected by the fact that the right scrutinized by the constitutional examination is the right to a minimum dignified subsistence. Their main argument is that the judicial review of legislation alleged to violate that right should be limited, compared with the judicial review exercised for other rights, so that the examination would focus solely on the first stage – the examination of violation of the right. At the same time, the Respondents argue that considerations taken from the second stage of constitutional review should be “imported” into the first stage of the examination. In other words, the Respondents think it appropriate to make use of some of the tests in the limitations clause, even at the stage of examining the violation of the right.

 

             Several reasons for this argument were cited. First, the Respondents argue that the restricted format in which the right to exist with dignity has been recognized in our legal system – a minimum dignified subsistence – requires the application of stricter criteria than usual in examining the violation of a right, and that the Court should reduce the transition to the second stage of the constitutional examination. Second, the Respondents argue that the methodology used for the constitutional analysis of socioeconomic rights should be different from that used by the Court to examine other basic rights, because legislation that deals with allocating resources for socioeconomic issues does not usually involve constitutional aspects, while, on the other hand, it reflects determinations that concern pure policy. As such, the Court, as a general rule, should reduce the exercise of judicial review in legislation that affects the right to minimal conditions of existence, in contrast to other basic rights. Both of these reasons should be rejected.

 

The distinction between civil and political rights and socioeconomic rights

 

26.        First we will examine the Respondents' argument that a different constitutional model should be applied when we examine a social, or economic right, in contrast to a civil or political right. This argument requires us to address the nature of the rights and the historical background that led to the current development with regard to the status of the social rights.

 

             It is customary to classify the historical development of human rights into two "generations" of rights. The first generation encompasses human rights that are called "civil-political" and the second generation encompasses human rights that are called  "socioeconomic." At the heart of the first generation rights, which developed at the time of popular uprisings for democratization at the end of the 18th century, was the desire to limit the power of government. Accordingly, these rights are characterized by the fact that the obligation of the government facing them is “negative” in nature and proclaims that the government must not impair the life of the individual, interfere in his actions, or restrict his liberty. In the second generation, the social concept developed, whereby rights that impose “positive” obligations on the government to care for the individual, to protect him against violations of his rights by others and to promote his welfare must also be recognized (Yuval Shany, "Economic, Social, and Cultural Rights in International Law," Economic, Social, and Cultural Rights in Israel, 297, 302-304 (edited by Yoram Rabin and Yuval Shany, 2004) (hereinafter the book will be termed: Economic, Social, and Cultural Rights in Israel and the article will be termed: Shany); Guy Mundlak, "Socioeconomic Rights in the New Constitutional Discourse: From Social Right to the Social Dimension of Human Rights" (Yearbook of Labor Law 7, 65, 93 (1999) (hereinafter: Mundlak), Theodor Meron, On a Hierarchy of Human Rights, 80 AJIL 1 (1986). A kind of "intergenerational struggle" developed between the two generations of rights, over the priority to be given to each one of the generations in national and international law. In international law, this issue found expression in the splitting of the international human rights covenant into two separate covenants: the International Covenant on Civil and Political Rights, 1966 and the International Covenant on Economic, Social and Cultural Rights, 1966 (hereinafter: the Covenant on Social Rights). The two covenants were ratified by Israel in 1991.

 

27.        Behind the concept that there is competition between social rights and political rights, is the supposition that the two types of rights are inherently different from one another and are exercised at the expense of one another. One of the arguments akin to the arguments made by the Respondents in the petitions before us is that while social rights impose an "affirmative" obligation on the state, the political and civil rights impose a "prohibitive" obligation. The former, so the argument goes, must be limited in their implementation because they require the allocation of state resources, which ultimately come from the pockets and property of the state's citizens. In practice, a natural limitation applies to the exercise of those rights because they are always dependent upon the resources available to the government and their implementation is connected to allocation of the state's resources (see, e.g., HCJ 3071/05 Gila Louzon v. Government of Israel (not yet published, July 28, 2008) (hereinafter: the Louzon Case); and Ruth Gabizon “On Relations Between Civil-Political Rights and Socioeconomic Rights" in: Economic, Social, and Cultural Rights in Israel 23, 42 (hereinafter: Gabizon); Shany at p. 304)).

 

28.        Even though that is the traditional approach, it is not the only approach. Over the years, critical voices have been increasingly heard to the effect that the dichotomous classification of social rights as "positive" and political rights as "negative" is far from reflecting the practice of exercising human rights and that every human right actually has positive and negative aspects alike (C. Taylor, What’s Wrong with Negative Liberty? 2  Philosophy and the Human Sciences: Philosophical Papers 211, 215, 221, 228-229 (1985); S. Holmes and C.R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes, 35, 39, 44-48 (1999)). Thus, "defending civil-political rights may entail the imposition of positive obligations and public expenses no less than those required to protect socioeconomic rights, and handling socioeconomic interests may only require refraining from interfering." (Gabizon at p. 42-44; see also Aharon Barak, Preface, in Economic, Social, and Cultural Rights in Israel 5, 7). Take, for example, the right to life, which heads the list of civil and political rights in the Covenant on Political Rights. In order to preserve human life, the state is required "to implement actions” at the broadest scope: for that purpose military forces are established to protect the lives of the citizens from outside threats; for that purpose, police forces are established to protect the lives of the citizens from crime and the undermining of the social fabric; for that purpose the state is required to restrain its power and act with caution – and the means of caution cost a great deal of money in themselves. Similarly, the right of a person not to be discriminated against and not to be treated with prejudice also requires the allocation of considerable resources at times. Sometimes the right to equality is only of a negative nature but many times it imposes a positive obligation on the state to rectify discriminatory wrongs in the society and make facilities, services and public functions fully accessible to all members of the population (HCJ 4541/94 Miller v. Minister of Defense, IsrSC 49 (4) 94 (1995); HCJ 7081/93 Botzer v. Maccabim-Reut Local Council, IsrSC 50 (1) 19 (1996)). This is also the case with regard to other classic civil-political rights, such as the right of expression. For the purpose of exercising the right, the state is required to protect anyone who says things that are not to the public's liking and maybe attacked or threatened because of his words. Therefore, the police are required, as a matter of course, to allocate public resources for the purpose of safeguarding protests and marches and for the purpose of protecting the freedom of expression of public personages and political figures. This is also the case when the state itself has not prohibited expressing opinions, nor has it intervened or interfered with their expression (see in this context: HCJ 153/83 Levi v. Southern District Police Commander, IsrSC 38 (2) 393 (1984); HCJ 2557/05 Majority Camp v. Israel police (not yet published, December 12, 2006)). The most prominent example of the political right that requires the state to allocate resources might be the right to vote and to be elected, in which enormous resources are invested, from the actual holding of elections every few years to the resources required to ensure the accessibility for every person to exercise his right to vote (see, e.g., Gabizon, at p. 42). Therefore, these examples attest to the fact that even when the state itself is willing to fulfill its part and to refrain from action, it may still be obligated to take action to protect the exercise of civil and political rights. With that in mind and according to the accepted outlook today, there is no basis for distinguishing clearly and unequivocally between social rights and political rights based on the positive or negative obligations of the state or based on the question of allocating resources. The ostensible gaps between the rights are mainly the result of historical evolution and not of real differences between the rights themselves. Indeed, "affirmative" and "prohibitive" alongside one another are integral parts of the protection of human rights, whatever their nature may be.

 

29.        Moreover, insofar as there is a certain distinction between civil-political rights and social rights – if only in the scope of the positive obligations that is generally imposed on the state in each one of the groups of rights – the question still remains as to whether that justifies deviating from the constitutional review model that was established among us more than two decades ago? In my opinion, the answer to that is negative. There are several reasons for that conclusion.

 

             First, we must remember that precisely in the context of the right to dignity that lies at the heart of the petitions before us, the constitutional obligation imposed on the legislature is an expressly positive obligation, in accordance with section 4 of Basic Law: Human Dignity and Liberty, which establishes that "All persons are entitled to protection of their life, body and dignity" (for the two aspects of the right to human dignity, see the Commitment Society Case at p. 749 and also below). Against the obligation is the right, and alongside it is the judicial remedy, and those are not subject, in the Basic Law, to a constitutional examination that differs from the one given to the other rights established therein. Therefore, the distinction that the Respondents wish to make has no basis in the internal structure of the Basic Law.

 

             Second, it seems that the Respondents' arguments rely in principle on the claim that exercising the right to a minimum dignified subsistencerequires the allocation of resources that may "overflow" into areas which, in essence, are a policy decision that is not given to judicial review. But this reason also does not justify the application of a different model of judicial review of social rights. It is a well-known rule that the Court will not intervene in questions of pure policy, but it would be proper to examine the constitutionality of various actions, even if they have, or might have, budgetary ramifications. No one disputes the fact that the exercise of many rights entails budgets available to the state and the manner of their allocation. This is certainly the case with regard to the exercise of social rights (See the Louzon Case, paras 10-11 of my judgment). In effect, even the Covenant on Social Rights establishes that the state is not exempt from implementing the measures that are essential for exercising those rights, but it recognizes the fact that the state's ability to promote those rights depends on the resources at its disposal (see section 2 (1) and section 11 of the Covenant on Social Rights). Indeed, the positive protection of human rights – civil, political or social – tends, as a rule, to require ongoing sources of funding which may, by nature, be limited by, and dependent on, the financial situation of the state and the scope of the resources at its disposal (see: Barak Medina, The State's Duties to Provide Basic Needs: From a “Discourse of Rights” to a “Public Finance Theory” in Economic, Social and Cultural Rights in Israel 131; see also section 2 (1) of Covenant on Social Rights). But in a legal system in which the relativism of human rights is preserved, as in our system, the place for arguments about budgetary constraints and conflicting interests is generally in the second stage of the constitutional examination, which examines the purpose of the violation of the right and its proportionality. That stage provides a broad platform for justifying a violation of the right for reasons of lack of budgetary resources, and those considerations should not be transferred to the first stage of examining the essence of violation of the right.

 

             Third, accepting the Respondents' position may lead to the application of a different constitutional model with regard to two violations of exactly the same right. The right to human dignity is a prominent example of that because of the many facets of that right. "The right to human dignity," noted President A. Barak “… constitutes a collection of rights that need to be protected in order that dignity may exist…These rights are likely to be included within the framework of  “civil” (or “political”) rights, and even within the framework of “social” (or “economic”) rights (the Commitment Society Caseat p. 481). Indeed, the right to dignity encompasses a variety of rights. Some of them are derived from it and some of them express the basic meaning of the term "human dignity." In our legal system, the right to equality, under certain conditions, has been declared an integral part of the right to human dignity, as has the right to family life (see: the Movement for Quality Government Case; HCJ 7052/03 Adalah – Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61 (2) 202 (2006); hereinafter: the Adalah Case). Alongside those rights, the right to a minimum dignified subsistencehas been recognized. Can some legal basis be found for the argument that a violation of one aspect of human dignity will lead to the application of one model of judicial review, and a violation of another aspect of human dignity will lead to another model of judicial review? Clearly, the answer to that is negative. Such selective application is inconsistent and has no part in the prima facie distinction between the rights, in the language of the basic laws, or in the tradition of constitutional law in our legal system.

 

30.        I also cannot accept the additional argument made by the Respondents that the narrow scope of the right to a minimum dignified subsistencejustifies narrowing the constitutional analysis to the first stage – the stage of the violation. First, the "safety belt" that is required, according to the Respondents, to prevent a situation in which the constitutional protection will be broadened and will be "stretched" to cover rights that are not established in the Basic Laws, exists in the narrow definition of the right. There is no theoretical reason to apply different and stricter rules of analysis to the right, which, in any case, is narrowly defined. Second, this argument – insofar as it is designed to indicate the difficulty of lifting the burden of the violation of a right that is narrowly defined – states the obvious. In any case, when a court exercises judicial review on legislation, at the first stage the burden of proving the fact that the law violates the right rests with the petitioners (see, e.g., the Commitment Society Case, at p. 484, 491-492; the Movement for Quality Government Case, at p. 671-672) and there should be no transition to the second stage of examination if no violation of the right has been found. Moreover, adopting the Respondents' approach means passing the burden of proof to the Petitioners almost completely. If we accept their approach, the Petitioners would have to prove both the violation of the right and the relevancy of the means that were chosen in the legislation. However, the burden of proving the relevancy or, in other words, the rational connection test, is generally that of the Respondents as part of the customary division of the burden in constitutional law. Changing the rules of the constitutional examination in the case before us means releasing the Respondents from the need to prove the constitutionality of the means that were chosen by them.

 

31.        The argument made between the lines by the Respondents, to the effect that the ambiguity of the social rights makes it difficult to pinpoint their violation and, therefore, justifies the application of stricter tests in the first stage of the constitutional review, should also be rejected. Like the arguments pertaining to the distinction between "positive" and "negative" aspects or between "affirmative" and "prohibitive" obligations, the arguments about ambiguity that are ascribed precisely to social rights should also be rejected. Ambiguity is not a problem reserved only for social rights (and it is doubtful whether the argument in itself is accurate: for developments in the concretization of the social rights in international law, see Shany, at p. 321-325). This court has struggled more than once with the issue of the scope and boundaries of political and civil human rights. Does freedom of expression also spread its protection over pornographic expression? Does affirmative action constitute a violation of equality or does it express a relevant distinction? What are the boundaries of the right to privacy in the workplace (see, e.g., HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women, and 11 others v. Council for Cable TV and Satellite Broadcasting, IsrSC 58 (3) 65, 79, 82 (2004); HCJ 454/94 Israel Women's Lobby v. Government of Israel, IsrSC 58 (5) 501 (1994); Labor Court Appeal 90/08 Inbar – State of Israel – Supervisor of the Employment of Women Law (not yet published, February 8, 2011)). These are but a few examples of the inherent difficulty of examining the scope of rights of all kinds. The theoretical difficulty is basically interpretive. It does not pertain to the distinction between civil rights and social rights but, rather to the distinction between the essence of the right and its marginal aspects. The more the violation pertains to issues at the core of the right, the easier it is to discern the violation and the protection of the right will be expanded, and vice versa when we are dealing with the marginal aspects of the right. Pinpointing the "geometric location" of the violation of the right is in the purview of the court as an interpretive action, whether the matter involves civil rights or social rights.

 

             Indeed, decisions on the scope and boundaries of social human rights are sometimes complex and since they are new rights in our legal system they have not yet been given sufficient legal interpretation in this Court. Even the academic and legal discourse on social rights developed at a slower pace and there are many reasons for that, but this is not the place to discuss them. The ambiguity will, therefore, be removed as the Court addresses the interpretation of the social rights. Indeed, in the words of Prof. Guy Mundlak, “The problem is one of cause and effect. The more social rights are pushed outside the walls of judicial forums due to their inferiority and due to the problem of ambiguity, the more the ambiguity of their meaning will increase. The best way to clarify the ambiguity is by a judicial confrontation with the meaning embedded in those rights. This is not an unknown type of judicial task. It is hard to imagine private law in Israel without ambiguous terms that have been clarified comprehensively in case law, such as reasonableness, good faith and negligence” (Mundlak, at p. 99).

 

             Therefore, the very fact that we are dealing with the right to dignity, which encompasses the right to a minimum dignified subsistence, does not justify applying a different judicial model for constitutional review. We will therefore turn to analysis of the alleged violation of the right to a minimum dignified subsistence, in an orderly manner.

 

Violation of the right

32.        In the first stage of the constitutional examination that is customary in our legal system, as stated, we must examine whether section 9A(b) of the Income Support Law violates the right to dignity and, in its framework, the right to a minimum dignified subsistence. The answer to that question requires us to interpret and determine the scope of the constitutional right to dignity in the context adjudicated by us and the provision that allegedly violates that right. We will begin, therefore, with the interpretation of the right to dignity; we will move on to interpretation of the provisions of section 9A(b); and, finally, we will examine the relationship between the right to dignity and the Income Support Law, and its ramifications for analysis of the violation of the right.

 

On human dignity and the right to a minimum dignified subsistence

33.        The right to human dignity is established in Basic Law: Human Dignity and Liberty (hereinafter: the Basic Law). The Basic Law establishes, as stated, both the prohibition on violating the right to dignity and the obligation to protect it:

Purpose

1.A

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

Preservation of life, body and dignity

2.

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

 

 

…

Protection of life, body and dignity

4.

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

 

 

…

Application

11.

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

 

             A person’s right to dignity under the Law is a right with two facets: a negative facet, which proclaims that violation of the right must be prevented, and a positive facet, which imposes an obligation on the government authorities to protect the right. In the words of President A. Barak, "The two aspects, the negative (passive) aspect and the positive (active) aspect are different parts of the whole, which is the constitutional right to dignity. They both derive from the interpretation of the right to dignity, as enshrined in the Basic Law. Neither aspect takes precedence over the other” (the Commitment Society Case, at p.749).

 

34.        A series of judgments has already established that human dignity, in the constitutional sense, also encompasses and includes the right to a minimum dignified subsistence. This Court held that human dignity includes the right to a minimum dignified subsistence, both in cases that raised the negative aspects of the right and in cases that raised the positive aspects of the right (cf.: HCJ 161/94 Atari v. State of Israel (unpublished, March 1, 1994); Leave for CA 4905/98 Yosef Gamzu v. Na’ama Yishayahu IsrSC 55 (3) 360, 375-376 (2001); Leave for CA 5368/01 Pinchas Yehuda v. Attorney Yosef Teshuva, Receiver, IsrSC 58 (1) 214 (2003); HCJ 4128/02 Adam, Teva Va-Din – Israel Union for Environmental Defense v. Prime Minister of Israel, et al., IsrSC 58 (3) 503, 518 (2004); HCJ 5578/02 Rachel  Manor et al. v. Minister of Finance et al., IsrSC 59 (1) 729, 736 (2004) (hereinafter: the Manor Case) Administrative Petition Appeal 3829/04 Yisrael Twito, Chairman, Mikol Halev Association v. Jerusalem Municipality, IsrSC 59 (4) 769, 779 (2004); HCJ 1384/04 BetZedek Association – American-Israeli Center for Promoting Justice in Israel. Minister of Interior (unpublished, March 14, 2005); HCJ 4634/04 Physicians for Human Rights v. Minister of Internal Security, paragraph 12 of the decision of Justice A. Procaccia (not yet published, February 12, 2007); the Commitment Society Case, at p. 482-484). Indeed, the extension of human dignity to the right to a minimum dignified subsistenceis now understood and this position has already been established in our case law (see: A. Barak, Legal Interpretation – Constitutional Interpretation, 423 (1994) (hereinafter: Barak, Constitutional Interpretation): "Human dignity assumes a minimum of human subsistence… This concept is shared by all models with regard to human dignity").

 

35.        The right to a minimum dignified subsistenceis at the heart and core of human dignity. A life of starvation and homelessness and a constant search for help are not a life of dignity. A minimum dignified subsistenceis a condition not only for preserving and protecting human dignity, but also for exercising other human rights. There is nothing poetic about living in poverty and deprivation. Without minimal material conditions, a person cannot create, aspire, make his own choices and exercise his liberties. In the fine words of Justice Y. Zamir, “Human rights must not be just for those who have enough. Every person must have enough, so that he or she can enjoy human rights, in actuality and not just by law." (HCJ 164/97 Conterm Ltd. v. Ministry of Finance, Customs and VAT Division, et al., IsrSC 52 (1) 289, 340 (1998); and see also Gabizon at p. 45: "A person who struggles to attain minimal subsistence conditions does not have the real freedom to strive to achieve any goals").

 

36.        In their arguments, the Respondents claimed that the right to a minimum dignified subsistenceis a right derived from the right to human dignity and, as such, it does not enjoy the scope of protection given to the right to human dignity as a right that is expressly enumerated in the Basic Law. I believe that the right to a minimum dignified subsistenceshould not be deemed a right that is derived from the right to human dignity but, rather, should be viewed as a right that constitutes a genuine expression of human dignity. The right to a minimum dignified subsistenceis not, as argued by the Respondents, a right that expands the content and scope of the constitutional right to dignity but, rather, it is rooted very deeply in the core of the constitutional right to dignity (see the analogy used by Judith Karp: "The value ‘human dignity’ can be viewed as being surrounded by circles of content. As though the legislature had cast the ‘human dignity’ stone into the smooth waters of the lake of the Basic Law, and when it touched the water it created ever-widening circles that strike one another on their margins and are filled by one another, and each circle is the result of another, and they flow into one another and move away from their source until they fade away.” Judith Karp, "Questions on Human Dignity According to the Basic Law: Human Dignity and Liberty,” Mishpatim 25 129, 136 (1995); see also Hillel Sommer, The Non-Enumerated Rights: on the Scope of the Constitutional Revolution, Mishpatim25 257, 329-330 (5757)). Can the right to dignity exist without respecting a person's right to minimal conditions of human subsistence? Doesn’t a person’s right to not live in hunger, without a home and without the ability to cover himself with clothing express his human dignity? Indeed, among the many meanings that can be given to the concept "human dignity," particularly when emphasis is placed on the word "human," the most fundamental of them is the one pertaining to the unique dignity of man, to the most essential conditions of his survival. If we have defined the fundamentals of the right to dignity metaphorically, as reliant on the fact that man was created in God’s image, it appears that that image is harmed, first and foremost, if he is reduced to abject, humiliating poverty.

 

What is the connection between the Income Support Law and the right to a minimum dignified subsistence?

 

37.        What is the connection between the right to a minimum dignified subsistenceand the Income Support Law, whose purposes and structure we discussed above? As I noted above, the right to a minimum dignified subsistenceis inherent in the core of human dignity. The obligation of the government authorities is-à-vis the right is twofold, as indicated in sections 2 and 4 of the Basic Law, which state that they must preserve it from violation and ensure that it is protected. This obligation can be fulfilled in many ways. It is implemented by a variety of means, systems and arrangements in Israeli law – all closely connected to the resources available to the state and the manner in which they are allocated. Protection of the right is woven into the welfare legislation like a golden thread, inter alia, by providing state health insurance to every resident, free education, and providing public housing to the needy under certain conditions. The income support benefit provided under the Law is only one of the mechanisms that ensure protection of a person's right to a minimum dignified subsistence, however, it has a pivotal position in protecting the right. As an income-replacing benefit, it is designed to enable those who are eligible to receive it to procure what they need for their basic and minimal subsistence. In the absence of another means, such as purchase coupons or direct supply of vital commodities, it has no substitute. The importance of this is so great that I doubt whether it does not have ramifications for the protection and preservation of other human rights, such as the right to life (see: Yosef Katan, The Problem of Poverty: Causes, Components and Coping Mechanisms, Review of Professional Literature 7, 11-12, 45, 75 (2002); Lia Levin, A "coalition of exclusion": Non take-up of social security benefits among people living in extreme poverty. Access to social justice in Israel,225, 225 [sic] (2009)).

 

38.        In view of the network of welfare mechanisms available in Israel and the relative place of the Income Support Law in those mechanisms, it can be established that the Income Support Law is designed to complete the protection of the right to a minimum dignified subsistence(cf.: the words of President A. Barak in the Commitment Society Case, at p. 483-484). The law is designed to ensure the residents of Israel with the minimum resources they require to satisfy their vital needs when they are unable to do so themselves. The purpose of the law is, therefore, to ensure a minimum dignified subsistence. There is no debate about this purpose among the Respondents and the Petitioners. While the Income Support Law is not the only means utilized by the state for exercising the right to a minimum dignified subsistence, it is one of the main means for protecting it. The importance of the income support benefit in ensuring a minimum dignified subsistenceis the basic reference point for deciding the petition before us.

 

Does section 9A(b) violate the constitutional right to a minimum dignified susbsistence?

 

39.        Section 9A(b) relies on the test established in section 9A(5) of the Law, whereby a vehicle is property that must be calculated in the income test of a person applying for a benefit. This income, by its nature, is not considered income in the regular sense of the word, because it does not refer to income such as income generated from work or from income-yielding property. Income from a vehicle is conceptual income. It is based precisely on the concept of the expense that is required for the purpose of maintaining and using a vehicle and that expense is calculated as though it was part of the income of the benefit applicant – under the presumption that the person must have sufficient income to finance the expense.

 

However, section 9A(b) establishes a fiction. The fiction lies in the incontrovertible presumption that the amount of income "produced" from the vehicle is equal to at least the amount of the benefit. The meaning of this is clear: the very ownership or use of a vehicle is sufficient to lead to denial of the benefit. In such a case, the benefit applicant is held to be someone whose income attests to the fact that he does not require the safety net provided by the state.

 

40.        The question asked in the petitions before us is whether this arrangement violates the right to a minimum dignified subsistence. The answer to that is affirmative. The arrangement violates the right to a minimum dignified subsistencebecause it establishes a categorical rule whereby anyone who owns or uses a vehicle will not be eligible for the income support benefit, with no connection to the individual question of whether that same person does, indeed, have income in an amount that will ensure his ability to exercise his right to a minimum dignified subsistence. Hence, it is clear that when the income support benefit is denied to someone who needs it for the purpose of minimal subsistence, the right to a minimum dignified subsistenceis violated.

 

41.        No one disputes the fact that ownership of a vehicle or use of a vehicle may help in estimating a person's income. The Petitioners did not dispute the assertion in the Law that a vehicle is property from which income is generated, and justifiably so. A vehicle is, indeed, a possible means for estimating income. Accordingly, the ownership or use of the vehicle has a certain economic significance, which can be estimated and quantified for the purpose of including it in the test of a person's income. The problem that lies in the conclusive presumption is not actually the need for ownership or use of a vehicle as a component in estimating a person's income but, rather, in the fact that it becomes the only component in determining the estimated income. The ownership or use of a vehicle – because they are held to be income of at least the same amount as the benefit – obviate the need to examine a person's economic state more thoroughly. The meaning is, therefore, that ownership or use of a vehicle become threshold conditions for eligibility for the benefit. That threshold condition is unequivocal and incontrovertible. It is sufficient to prove ownership of a vehicle or regular use of another person's vehicle in order to deny the benefit.

 

42.        This result violates the right to a minimum dignified subsistencefor all the benefit applicants who, in actuality, do not have sufficient income for minimal subsistence. That is the situation, for example, in cases in which the benefit applicant does not have a vehicle of his own but makes some use of the vehicle of another person – a relative or acquaintance. In such a situation, for the most part, the benefit applicant does not bear the regular payments for maintaining the vehicle (such as payment of the insurance and vehicle registration), nor does he enjoy the potential income that exists by the very ownership of a vehicle. Where a person also uses the vehicle of another person and, at most, pays for token gasoline expenses, what is the justification for ascribing to him the whole gamut of costs borne by the owner of the vehicle? According to the Respondents, even in a case of use of a vehicle, those users should be deemed to have been given the value of the ownership in money. That claim is dubious, in my opinion. After all, it cannot be said that the possibility given to a person of using a vehicle that is owned by another attests necessarily to the fact that the vehicle owner has the ability to assist the benefit recipient in other ways. More than once, a person will enable another person to make use of property (including a vehicle) in their possession because, at that time, he does not need it for his own purposes, even if he is unable to give the other person direct assistance – financial or otherwise. In a situation in which a person makes use of the vehicle of a relative or acquaintance when they do not need it, without the vehicle being placed at his disposal for him to use on a regular basis, we cannot conclude that those who assist him necessarily possess the means to give that person alternative income equivalent in value to the vehicle, with its various expenses. At most, the family assistance can be deemed to be equivalent in value to income in the amount of the value of the actual use made of the vehicle which, in itself, may be significantly less than the value of the minimum income.

 

             As such, it emerges that the provisions of section 9A(b) of the Law may lead to denying the benefits to individuals who need it and do not have alternative source of income, nor the ability to obtain such sources from others. The fact that section 9A(b) of the Law ostensibly enables any use of a vehicle to deny eligibility for the benefit – and the National Labor court judgment interpreted this to mean that using a vehicle only twice a week will also lead to that result – strengthens that apprehension.

 

43.        The situation of the petitioners in HCJ3282/05 demonstrates the problem with the conclusive presumption and the violation that it causes. Most of the Petitioners did not own vehicles but made use of a vehicle that was made available to them by relatives or friends. Petitioner 1, for example, was denied the benefit after it was proven that she used her father's vehicle three times a month, and no more. After cancellation of the benefit, the Petitioner was left to support herself on NIS 1,800 a month from child support and child allowances. The benefit of Petitioner 2 was canceled after it transpired that she made regular use of a vehicle owned by her mother, notwithstanding the fact that she lived in a remote town without any public transportation. No effort was made to quantify the value of her use of the vehicle, in order to examine whether she was, indeed, given assistance in the amount of the benefit. Petitioner 3 was forced to move to another place of residence so that she would not have to make use of a vehicle, and only then was she found eligible for the benefit. All the Petitioners argued that they did not have alternative sources of income and they did not bear the expenses of maintaining the vehicle, except for extremely limited gasoline expenses.

 

             Among them all, it seems that the case of Petitioner 5 demonstrates, more than anything, the main difficulty inherent in the conclusive presumption and the negative results that its implementation may generate. Petitioner 5 worked for her livelihood and was found eligible for the income supplement benefit because her income from work was not sufficient. She used the vehicle to reach her job in various prisons in the North that are not accessible by public transportation. As long as she used her father's vehicle, her benefit was not canceled because of her father's disability. When her father sold his vehicle, one of her acquaintances enabled her to use his vehicle and this led to cancellation of the benefit. As a result, she was forced to resign from her job and submitted an application for a full income support benefit (instead of the income supplement that she had received beforehand). The result of canceling the benefit that was paid to Petitioner 5 was, therefore, not only a blow to her ability to stand on her own two feet, but also a violation of one of the purposes of the Income Support Law ­– encouraging people to go out to work.

 

44.        In the nature of things, we must assume that the aforementioned violation of the right to a minimum dignified subsistencedoes not extend to all the benefit applicants. Indeed, there may be benefit applicants who have sufficient income to supply their own basic needs and, therefore, canceling the benefit as a result of the conclusive presumption does not harm their ability to live with dignity. However, it can harm anyone to whom the aforementioned presumption does not apply and the use of a vehicle does not prove that he is not in need of income support. As a result, the conclusive presumption established in section 9A(b) violates the right to a minimum dignified subsistencewith regard to some of the benefit applicants, even if it does not violate the rights of all of them. This is a real and significant violation. Considering the pivotal place of the income support benefit in the network of welfare mechanisms in Israel, denying the benefit means denying the last safety net for those who need it the most.

 

45.        This harsh result is exacerbated by the fact that the conclusive presumption established in section 9A(b) is contrary to the customary manner of examining eligibility for an income support benefit in Israel – by means of an individual examination that is conducted for each and every benefit applicant, the purpose of which is to assess the extent of their need for the benefit. As part of the individual test, the NII examines, inter alia, the age of the benefit applicant, his income, his assets and the various payments made to him by the state. In the individual examination, the family unit to which the benefit applicant belongs is also examined and NII representatives examine the applicant's ability and desire to integrate into the job market. All these are designed to present the NII with a detailed picture that is as accurate as possible regarding the applicant's status, to ensure that the benefit is given to those who really need it. To enable the NII to stay abreast of the situation, section 20 of the Law also instructs the benefit applicants and recipients to notify the NII in writing within three days of any change that occurs in their family status and income, and any other change that might affect their eligibility for the benefit or the rate of the benefit.

 

             However, contrary to the individual examination of a person's income, the presumption set forth in section 9A(b) creates a categorical rule whereby the ownership or use of a vehicle is equivalent to income in the amount of the benefit. Irrespective of a person's actual income, from the moment it is proven that he owns or uses a vehicle, the NII deems him someone who has a sufficiently high income and, therefore, he does not require assistance. In practice, the ownership or use of a vehicle obviate the need for the other income tests established in the Law, and there is no real need for an individual examination of the benefit applicant and for examining his true economic ability, because, in any case, the same fiction that is inherent in section 9A(b) cannot be refuted by it.

 

             It is important to clarify that in our decision, that section 9A(b) of the Law violates the right to a minimum dignified subsistence, we did not address the definition of what a minimum dignified subsistenceis, what it includes, or what it should include. The starting point for our discussion is that the state has an obligation to determine what the minimum subsistence conditions are, and to establish the welfare system accordingly (see, in this context, the judgment of the German constitutional court BVERFG, A7: 1BVL 1/09, 1BVL 3/09, 1 BVL 4/09 from 09.02.2010. For an abstract of the judgment in English, seehttp://www.bundesverfassungsgericht.de/en/press/bvg10-005en.html). For the purpose of this discussion, we assume that that is, indeed, what was done for the purpose of determining the overall welfare system provided by the state, which also includes the Income Support Law, based on that determination. We therefore assume that the entire gamut of welfare arrangements provided in Israel supplies the "package" required for a minimum dignified subsistence. Within the "package" of welfare services, the income support benefit plays a pivotal role. Without it, and without other sources of income, the needy cannot attend to the most basic conditions of subsistence and, as such, its denial leads immediately to violation of their right to a minimum dignified subsistenceas part of their right to human dignity.

 

47.        It is also important to explain that this conclusion of ours is not meant to determine that a vehicle cannot serve as an estimation of income, and the Petitioners did not dispute the legislature's determination that a vehicle should be deemed property from which income is generated. This conclusion should also not indicate that ownership or use of a vehicle constitutes a condition for a minimum dignified subsistence. However, it should be recognized that a vehicle, under certain circumstances, is not a luxury and can help in the search for work and in getting to the workplace. This is particularly true in places in which public transportation is undeveloped. The violation created by the law does not lie in the concept of the vehicle as property for which the cost of the benefit from the ownership or use can be quantified. The violation occurs as a result of the conclusive presumption set forth in the Law, whereby any case of ownership or use is viewed as though the owner or user of the vehicle has income at a level that removes him from the circle eligibility for the benefit. Such a presumption ignores the individual data of each and every case, and ultimately leads to denial of the benefit without distinction, even from someone who, without having received it, could not have attained a minimum dignified subsistence. The result is, therefore, that section 9A(b) violates the right to a minimum dignified subsistence.

 

The argument of duress

 

48.        Before we go on to examine the compliance with section 9A(b), I think it proper to address one of the main points made by the Respondents in the written and oral arguments. When discussing the interpretation of the right to a minimum dignified subsistence, the Respondents argued extensively that another element should be read into the right, and that is the element of duress. In their opinion, the state's constitutional obligation to provide the safety net in the Income Support Law arises only when there is a danger that the person will be forced, because of reasons beyond his control, to live in existential deprivation. They argue that that situation obtains as long as there is no mode of action that the individual can take, which would prevent his reaching existential deprivation. In contrast, when a life of existential deprivation is the result of choice – a choice which, from a normative standpoint, would be advisable to demand that the individual implement – the state's constitutional obligation does not apply and, in any case, the right to a minimum dignified subsistencehas not been violated.

 

49.                   According to the argument, the need to examine the question of whether the individual was forced to live in existential deprivation or he had the option of making another choice is based on the narrow scope of the right to a minimum dignified subsistence, and it rests on three main elements: first, as a policy based on just distribution between the general public and all those receiving support, due to the fact that provision of the benefit entails taking from the public, it is appropriate to reduce the scope of the constitutional obligation. Second, a policy that promotes just distribution internally among those receiving support, requires releasing the state from the need to support those who can take care of themselves. Third, as a matter of policy, the Income Support Law aspires to increase participation in the job market. Hence, the right to benefit from the last safety net will be available only to someone who is forced to live in existential deprivation, i.e., someone who, even with reasonable diligence, cannot integrate into the job market.

 

According to the Respondents, the ownership or use of a vehicle are expressions of the range of choice available to the Petitioners in the petitions before us. According to the argument, each and every one of the petitioners – and anyone else in a similar situation – has the option of choosing between ownership or use of a vehicle (which would lead to denial of the benefit) and forgoing ownership or use of a vehicle (which would result in receiving the benefit). Therefore, anyone who, of his own free will, chose to maintain ownership of a vehicle or to continue to use the vehicle of another, cannot be said to have been forced to live in existential deprivation and, as such, the state is not obligated to provide him with the last safety net. This argument is based on the presumption inherent in the law – which we addressed above – whereby ownership or use of a vehicle has economic value that is estimated to be at least equivalent to the value of the benefit.

 

50.        The argument of duress appears, at first glance, to be captivating, but a closer look shows that there is no connection between the argument and the Petitions before us. Indeed, no one disputes that the state should only be obligated vis-à-vis someone who does not choose on his own to live in existential deprivation. This argument in itself was not at all disputed by the parties to the petitions before us. The Petitioners, like the Respondents, believe that the state is only obligated to distribute its resources to those in a state of existential deprivation by force and not by choice. But they objected to the inclusion of the duress requirement as part of the definition of the right to a minimum dignified subsistence.

 

51.        The requirement of duress is also accepted, in one form or another, in international law and, as argued by the Respondents, also in some of the countries that have established the right to a minimum dignified subsistencein their constitutions.

 

             For example, in interpretive comment 12 to the Covenant on Social Rights, paragraph 15 states that "Whenever an individual or group is unable, for reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States shall have the obligation to fulfill (provide) that right directly." (Committee on Economic, Social and Cultural Rights, General Comment 12, Right to adequate food (Art. 11), U.N. Doc. E/C/12/1999/5 (1999), at paragraph 15 (the first emphasis was added, the second emphasis was in the original, D.B.)). Even though the requirement of duress or "for reasons beyond their control" appears to be justified on a theoretical level, on a practical level the distinction between choice and lack of choice is not at all simple. The question of what constitutes circumstances that are the result of free choice and circumstances that are the result of duress and constraint is often complex. Where is the boundary between free choice and social structure? After all, the possibilities of choice are affected, inter alia, by the environment in which the person grew up – his family, economic and social status. This raises the question, which was also recognized by the Respondents, of how to identify the choices that should be decided in the autonomous sphere of the individual. These are complicated questions. They raise problems of various types, and they are not easy to decide. However, they do not arise in the matter before us because in the choice offered to the benefit applicants by the Respondents– vehicle or benefit – they do not attest to the existence or nonexistence of the element of duress. As we explained in detail above, according to the Respondents, and in accordance with the provisions of the Income Support Law, a vehicle serves as an estimation of income of at least the amount of the benefit. This means that the ownership or use of a vehicle proves that the benefit applicant has income in the amount of the benefit. As such, that benefit applicant is not eligible for the benefit because he cannot satisfy the income test set forth in the law, i.e., he is deemed to be someone whose income is higher than the threshold entitling him to the benefit. In that state of affairs, what is the advantage in the requirement of choice, which ostensibly serves to prove the existence or nonexistence of duress? If the conclusive presumption (the problematic nature of which we addressed above) is correct, and a person has income in the amount of the benefit, what is the difference if he chooses a vehicle or he chooses to do without it? Either way, he will not be found eligible for the benefit because of the income test. And if the conclusive presumption is incorrect, i.e., the existence of a vehicle is not sufficient to estimate a person's income and is insufficient to attest to his neediness, then what is its relevance in determining eligibility for the benefit? Why is it used at all in the income test? The purpose is not to prohibit men and women from driving a vehicle. If that is the case, why force a person to make the choice and give up the use of a vehicle if the vehicle does not prove his neediness? Hence, the question of coercion in itself is not up for discussion in the petitions before us.

 

Does the violation of the right meet the conditions of the limitations clause?

 

52.        Once we found that the provisions of section 9A(b) of the Income Support Law violate the constitutional right to a minimum dignified subsistence, we are compelled to examine whether the violation is lawful. That examination is conducted in accordance with the conditions set forth in the limitations clause in section 8 of the Basic Law: Human Dignity and Liberty, which states as follows:

 

Violation of rights       8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose and to an extent no greater than is required, or by law as stated, by virtue of express authorization in such a law .

 

             The provisions of the limitations clause express our constitutional concept, whereby human rights are relative and no human right is absolute. Therefore, the legislature may, under certain conditions, violate constitutional rights. These rights are set forth in the limitations clause and express the balance in our constitutional law, between the constitutional rights of the individual and the needs, interests or rights that may justify the violation of those rights.

 

53.        Four cumulative conditions are specified in the limitations clause to examine the constitutionality of a norm that violates a human right, which is protected by the Basic Law: Human Dignity and Liberty. The first condition is that violation of the constitutional right is implemented under law or by virtue of express authorization in a law. The second condition is that the violating the law befit the values of the State of Israel. In that context, the intention is to the values of the State of Israel as a Jewish and democratic state, in accordance with the Purpose clause set forth in section 1A of the Basic Law: Human Dignity and Liberty (see HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits Department, Ministry of Labor and Social Affairs, IsrSC 60 (1) 38, 53 (2005)). The third condition specified in the limitations clause is that a violation of a constitutional right must be for a proper purpose. The fourth condition is that the violation must be to an extent no greater than required. If one of those four cumulative conditions is not fulfilled, it means that the violation of the protected constitutional right is unlawful and the piece of legislation that establishes the violation of the right is unconstitutional. We will therefore turn to examining whether the violation of the constitutional right to a minimum dignified subsistence, which is caused by the provisions of section 9A(b) of the Income Support Law, meets the conditions of the limitations clause.

 

54.        With regard to the first condition specified in the limitations clause, which requires that the violation of the constitutional right be "by law" – everyone agrees that section 9A(b) of the Income Support Law fulfills that condition. The Petitioners did not elaborate on the question of the existence of the second condition in the limitations clause – which requires that the piece of legislation befit the values of Israel as a Jewish and democratic state and, indeed, it does not raise any problems in the petitions before us.

 

55.        The third condition established in the limitations clause is that the piece of legislation that violates a protected constitutional right must be for a proper purpose. The purpose of the law will be deemed proper if it is designed to promote human rights or realize an important social or public objective (see the Menahem Case at p. 264). In the framework of that test, the nature of the violated right and the extent of the violation, inter alia, must also be taken into consideration, because the more significant the violation of the right, the more important and vital the social objectives must be to justify it (see HCJ 6304/09 Lahav – Bureau of Organizations of Self-Employed and Businesses in Israel v. Attorney General (not yet published, September 2, 2010), paragraph 107 of the judgment).

 

56.        The Respondents' position shows that the purpose of section 9A(b) of the Income Support Law is to ascertain that the state's support is given to those who need it, and to prevent a situation in which a person receives the income support benefit from the state when he actually has other income (including conceptual income). The Respondents wish to deduce the existence of that income from the fact that a person owns a vehicle or uses a vehicle on a regular basis and, therefore, he can ostensibly bear the ongoing costs entailed in the possession and use of the vehicle. The test of ownership and use of a vehicle are therefore designed to serve as an indirect estimate of the "real" income of an individual who claims that he is entitled to the income support benefit. The Respondents further argue that section 9A(b) of the Income Support Law leads to the fact that the support that a needy person receives from others (relatives or friends) will be channeled first and foremost into satisfying his existential needs, since Israeli law "does not encourage a reality in which the public treasury finances the existential needs of a person, thereby enabling others to finance other needs that are not of an existential nature" (affidavit in response at page 15).

 

57.        In my view, section 9A(b) of the Income Support Law fulfills the requirement of the proper purpose. Preventing the abuse of the state support and welfare system and endeavoring to ensure that the state support is given only to those who need it the most are proper social purposes. Indeed, the state's financial resources are not unlimited and it may try to ensure that the financial support that it provides will reach those who need it to the greatest extent. This is particularly true when the state support system is financed from public funds and expresses the mutual involvement among individuals in the society. Mutual involvement has two aspects: alongside the public support of a needy individual is also the legitimate requirement that individuals who have sufficient income for a minimum dignified subsistencedo not abuse the public support system and not become a burden on other individuals in the society. Moreover, as explained above, the calculation of the ownership or use of a vehicle for the purpose of testing a person's income is legitimate and there is nothing wrong, in principle, with weighting those characteristics in the income test established in the Law. The question is whether the assessment of income from ownership or use of a vehicle is implemented in a manner that does not violate, to a greater extent than necessary, the right to a minimum dignified subsistence. We will now address this issue, which is the pivotal question that arises at this stage of the constitutional examination.

 

58.        The fourth condition for examining the constitutionality of the provision of a law that violates a constitutional right, which is protected by the Basic Law: Human Dignity and Liberty, is that the right be violated "to an extent no greater than is required." This condition deals with the proportionality of the violation of the constitutional right. The proportionality requirement examines the relationship between the proper purpose of the Law, which has been found to befit the values of the State of Israel, and the means chosen by the legislature for the purpose of implementing that purpose. The proportionality of the violation of the constitutional right is established according to the three subtests that have been recognized in the case law of this Court. Only if the violation of the constitutional right meets the three subtests will the violation of the constitutional right be deemed a proportional violation.

 

             The first subtest in the cause of proportionality is the test of the rational connection. This test examines whether the means chosen by the legislature does, indeed, fulfill or contribute to fulfilling the purpose of the provision of the law whose constitutionality is in question. The second subtest is the test of the means with the lesser violation. This test examines whether the means that violates the constitutional right to the smallest degree was chosen among all the possible means for fulfilling the legislative purpose. The third subtest is the test of proportionality "in the narrow sense." This test examines the existence of a proper ratio between the benefit arising from the piece of legislation that violates the constitutional right, and the damage caused by the violation of that right (see, e.g.: the Movement for Quality Government Case at p. 706-708; the Gaza Coast Case, at p. 550).

 

             It is also important to note that the use of the three subtests described above does not necessarily lead to a situation in which the legislature is entitled to choose only one means (if any) to fulfill the (proper) legislative purpose. Generally, the legislature can choose the most suitable means for fulfilling that purpose from among a variety of proportional means. The range of possible choices available to the legislature in these circumstances is called the "range of proportionality," and the Court will intervene in the legislature's decision "only when the means chosen by him deviates significantly from the boundaries of the legislative maneuvering space available to him, and it is clearly disproportional" (see HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, paragraph 46 of my judgment (to be published, 19.11.2009) hereinafter: the Prisons Privatization Case).

 

59.        Is the legislative means chosen by the legislature in section 9A(b) of the Law – a conclusive presumption whereby the ownership or use of a vehicle is equivalent to income in the amount of the income support benefit – within the range of proportionality?"

 

             First we will analyze the first subtest of the proportionality, which is the rational connection test, in which we must examine whether section 9A(b) of the Income Support Law fulfills the legislative purpose for which it was enacted. It is important to note that this test does not require that the means chosen will fulfill the legislative purpose in full. It is sufficient that there is a "genuine correlation" between the means chosen and the purpose (see: the Movement for Quality Government Case at p. 508; HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC 56 (3) 640, 666 (2002)). Similarly, absolute certainty that the means chosen will fulfill its purpose is not required, but on the other hand, just a slight or theoretical probability cannot suffice either (see: the Adalah Case, at p. 323). The rational connection test is based to a large extent on the factual basis available to the legislature, as well as life experience and plain common sense (see Aharon Barak, Proportionality in Law – Violation of the Constitutional Right and its Limitations, 382 (2010) (hereinafter: Barak – Proportionality)).

 

             As stated, the legislative purpose of section 9A(b) is to ensure that the income support benefit is given to those who really need it and not to those who have sufficient income or the ability to generate such income. Can the conclusive presumption fulfill that purpose? In other words, can the ownership or use of a vehicle serve as a suitable estimate for identifying the individuals who have income (including potential income) aside from the income support benefit and, therefore, their minimum dignified subsistence may be fulfilled even without the benefit? The answer to this question is mainly affirmative however, it is not without some doubts. Indeed, the use of a vehicle is generally accompanied by significant expenses, even when the vehicle in question is old and also when the amount of travel is significantly less than the average in Israel. We can assume that in view of the significant expenses entailed in maintaining a vehicle (including insurance, gasoline and ongoing maintenance), the ownership or use of a vehicle may serve as a certain indication of the fact that the person has additional sources of income aside from the income support benefit or, alternatively, that that person is receiving assistance from others which is also equivalent to income.

 

60.        Therefore, the very ownership or use of a vehicle as an estimate of income and neediness is not arbitrary and unreasonable. The conclusive presumption set forth in section 9A(b) is a test that can fulfill the legislative purpose, if only because there is a "genuine correlation" between it and the purpose, even if there is no “absolute certainty” that the presumption has fulfilled its purpose. However, we cannot ignore the fact that there may be cases in which the ownership of a vehicle, and particularly the use of a vehicle by someone who is not its owner, does not attest to income that is equivalent to the income support benefit, for example, in circumstances in which the cost of maintaining the vehicle is lower than the rate of the income support benefit. The arguments of the respondents themselves indicate that certain circumstances are extremely possible: according to the calculation appearing in the affidavit in response, the average monthly cost of maintaining a used vehicle that travels 10,000 km a year (as at October 1, 2008) is NIS 1,161 for a vehicle with a 1300 mL engine, and NIS 1,324 for a vehicle with a 1600 mL engine. In contrast, the rates of the income support benefit on the same date range between NIS 1,537 for an individual under the age of 55, to NIS 2,574 for a couple under the age of 55 with two children. The last update notice of the Respondents indicates that the benefit rates are even higher now – between NIS 1,632 and NIS 2,044 for an individual, and between NIS 2,447 and NIS 3,549 for a couple with a child (the amounts are similar to those for a single parent with a child). Up-to-date data on the cost of using a vehicle were not provided. Even though we can assume that the cost of maintaining the vehicle has also increased in the time that has passed, the data that were provided shows that there may be a very significant gap between the cost of maintaining the vehicle and the amount of the income support benefit (which ranges between approximately NIS 200 for an individual who possesses a vehicle with 1600 mL engine, to NIS 1,400 for a couple with two children who possess a vehicle with a 1300 mL engine). This does not justify deeming maintenance of a vehicle, in and of itself, as attesting to income equivalent to the benefit. To this we must add the argument that we addressed above, that there may be cases in which the option given to the benefit recipient – to use a vehicle owned by another person – does not mean that the vehicle owner has the ability to assist the benefit recipient in other ways.

 

61.        Nevertheless, when it was found that the use of a vehicle can constitute a certain estimate of income, and because the rational connection test does not require complete fulfillment of the legislative purpose, and it also recognizes the possibility of the existence of some uncertainty with regard to the extent of fulfilling the purpose, I have reached the conclusion that in the circumstances of the matter, the provision in section 9A(b) of the Income Support Law intersects with the rational connection test (see Barak – Proportionality, at pp. 380-382), even if barely so. However, the doubts that arise about the correlation between the means and the purpose will accompany us to the next test of proportionality – the test of the means with the lesser violation of the right.

 

62.        The function of the second subtest of proportionality is to examine whether, among all the possible means for fulfilling the legislative purpose, the means that violates the constitutional right the least was the one that was chosen. The comparison is conducted with regard to other means that might also fulfill the legislative purpose. In this context, it is important to note that:

 

            The second subtest of proportionality does not merely examine whether there is a measure that violates the protected constitutional right to a lesser degree, but it requires us to examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar degree as the measure chosen by the legislature (see the Prisons Privatization Case, paragraph 46 of my judgment)

 

Moreover, the obligation imposed upon the legislature as part of the second subtest is not to choose a means that is absolutely the least harmful. The legislature must choose – among the reasonable options at his disposal for fulfilling the legislative purpose – the option that violates the constitutional right to the smallest extent. (see the Adalah Case, at pp. 324-325). In the case before us, the provisions of section 9A(b) of the Income Support Law do not satisfy this test for the simple reason that establishing a conclusive presumption whose result is the absolute denial of the income support benefit to someone who needs it for a minimum dignified subsistence, in circumstances in which means can be used that violate the right to a lesser degree (if at all) – is not proportional.

 

63.        As we have seen above there are individuals who fall into the realm of the conclusive presumption established in section 9A(b) even though the (proper) purpose of the section – preventing payment of the benefit to someone who has access to sufficient means to ensure a minimum dignified subsistence– does not apply to them. Those individuals also do not comply with the exceptions established for the presumption set forth in section 9A(b) of the Law. In the absence of suitable exceptions, establishing a conclusive presumption in which the ownership or use of a vehicle is equivalent to income that is at least in the amount of the income support benefit, does take into consideration the individuals who make use of a vehicle that is of less value – sometimes significantly less – than the value of income in the amount of the benefit. This is the case either because their expenses for maintaining the vehicle are less than the benefit to which they would be entitled if not for the vehicle, or because the assistance they are receiving from others by means of use of the vehicle cannot be converted into other assistance that would ensure their minimum dignified subsistence. With regard to those individuals, the question arises as to whether the purpose of the legislation in question could have been fulfilled in other ways, which violate the constitutional right to a minimum dignified subsistenceto a lesser extent.

 

64.        It appears that the answer to that question is affirmative. There are several reasonable possibilities that could fulfill the legislative purpose underlying the provisions of section 9A(b) of the Income Support Law, with a lesser violation, and even no violation at all, of the constitutional right to a minimum dignified subsistence. For example, a non-conclusive presumption could have been established that would give a benefit applicant, who possesses or uses a vehicle, the opportunity to prove that his ownership or use of vehicle does not attest to the fact that he has other income (or potential income). Alternatively, a mechanism that assesses the value of the use of a vehicle could have been established (when it does not involve a vehicle owned by the benefit recipient) according to the frequency of its use, and reducing the rate of the benefit accordingly and in a graduated manner.

 

             Another possibility available to the legislature (when the matter involves a vehicle owned by the benefit recipient) is to establish a hierarchy that takes the vehicle's value into account, so that the benefit would be denied only to someone whose vehicle exceeds a certain value which, together with the ongoing maintenance expenses, can reflect the financial status of the benefit recipient. This was done, for example, by the legislature in Germany. In the German welfare system, there are a number of social grants. The social grant that is conceptually closest to the income support benefit in Israeli law is given to someone who has the potential to return to the job market, and it is granted after a year in which the recipient is given a benefit that is close to the unemployment benefit provided in our system. That benefit – which is called "lack of employment benefit II" in German law – is established in The Second Book of the Code of Social Law (SGB ii). In accordance with German law, in making the decision on granting this benefit, all the property in the individual’s possession must be estimated. The grant is given to anyone whose property value does not exceed the amount specified in the law, which depends on the age of the benefit applicant (which ranges between €3,100 and €9,900). However, German law establishes that there are types of property that are not deemed part of the total property calculated for the purpose of granting the benefit. Among these assets are a "reasonable vehicle." In 2007, the German Supreme Court, which deals with social welfare matters, ruled in Bundessozialgericht, AZ: B 14/7b AS 66/06, 06.09.2010 that a vehicle whose cost does not exceed €7,500 constitutes a "reasonable vehicle," which is not taken into account in estimating the amount of the grant. When the value of the vehicle is higher than that amount, the difference between the value of the vehicle and the reasonable amount is calculated as part of all the property that is weighted in the grant evaluation. The reason for this arrangement, as indicated in German case law, is the importance ascribed to ownership of a vehicle as a means for promoting the individual's return to work and leaving the cycle of neediness. For that reason, the individual must be given the possibility of possessing a vehicle of reasonable value without losing the grant. It should be noted, however, that the attitude to a vehicle in the provision of other grants under German law changes according to the purpose of the grant (see, e.g., in this context, the judgment of the Saxon Administrative Supreme Court in the case Sächsisches Oberverwaltungsgericht, AZ: 4 D 228/09, 29.06.2010). Another possibility in this matter was raised by the Petitioner in HCJ 7804/05, who proposed offsetting the value of the benefit produced by the vehicle from the income support benefit according to the rate at which the benefit is deducted under the Income Tax Ordinance.

 

             In the nature of things, the aforementioned possibilities are only possible examples. They are not an exhaustive solution. We can even assume that within the legislative maneuvering space available to the legislature, there are other arrangements that could fulfill the legislative purpose, while violating the constitutional right to a minimum dignified subsistenceto a lesser extent. The main point is that these alternative means would also have fulfilled the proper purpose of preventing payment of a benefit to a person who has other income (including potential income) that ensures his minimum subsistence needs, while violating the protected constitutional right to a lesser extent. In this matter, I would like to emphasize the fact that the state refrains from providing data, statistical or otherwise, to show that other modes of examining, estimating and quantifying are not possible and cannot replace the conclusive presumption. Thus, no information was presented to us about the estimated costs of an arrangement for individual examination or arguments about other arrangements that were examined and ruled out due to one shortcoming or another. All that was argued was that the state is not able to supervise the individual use of vehicles – at the same time that extensive use is now made of private investigators who, in effect, are supervising the scope of vehicle use.

 

65.        In this context, I cannot accept the Respondents' argument that the fact that the basis for usage is not defined in the Law allows for flexibility that blunts the conclusive presumption. To my mind, the absence of the definition in the Law neither adds to nor detracts from this matter. If we say that the Labor Courts are free to interpret the term "use" – and even if we were to interpret the term in the framework of the petitions before us – that would not change the fact that from the moment a person is found to be using a vehicle, he is deemed to have income in the amount of the benefit. The problem, as I noted above, is not in quantifying the income from ownership or use of a vehicle. The problem lies in the fact that the ownership or the use – in accordance with the definition that was accepted by the Labor Courts – employ that same conclusive presumption whereby the eligibility of a benefit applicant is denied because he is deemed to have income equivalent to at least the amount of the benefit. Moreover, we cannot except the Respondents’ argument that section 9A(b) should not be deemed to have established a conclusive presumption because it specifies exceptions. Indeed, we welcome the fact that the legislature saw fit to add additional exceptions to the list of exceptions in the Law during adjudication of the petitions before us, but their applicability remains limited. The exceptions apply only to someone who is compelled to utilize a vehicle because of medical necessity or someone who is in the work force (who was recently dismissed) and is found eligible for payment of income support. As noted by the Petitioners in HCJ 3282/05, even if the exceptions were valid before their petition was filed, except for Petitioner 4, none of them would have been included in them because even the Petitioners who were working at that time did not meet the income threshold required by the exceptions in order to be eligible for exemption from section 9A(b).

 

66.        It seems that the case before us further demonstrates the problem inherent in applying universal arrangements to cases in which eligibility for any state assistance is denied. Universal arrangements, by their very nature, do not take into account the individual status of each and every person. They are based on statistical tests and an assessment that is applied in a uniform manner without distinction. They are inherently problematic because they can ignore the circumstances of concrete cases. The Court has addressed this problem more than once. Thus, in the case that adjudicated a universal arrangement, which denied the candidacy of anyone older than 35 for police service in the Israel Prison Service and in the Customs and VAT Division, the following was ruled:

 

            The employer will find it difficult to satisfy the ‘smallest possible harm test’ if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security, IsrSC 58 (2) 358, 367 (2004); and the further HCJ 5627/02 Ahmed Saif v. Government Press Office, IsrSC 58 (5) 70, 77 (2004); HCJ 2355/98 Israel Stamka v. Minister of Interior, IsrSC 53 (2) 728, 779 (1999); IsrSC 3477/95 Israel Ben Atiya v. Minister of Education, Culture and Sports, IsrSC 49 (5) 1, 15 (1996); the Adalah Case, at p. 325-330).

 

Indeed, there are cases in which an individual examination will not attain the legislative purpose. In such situations, there is no choice but to establish a universal arrangement. However, that is not the case in the matter before us. In the Income Support Law, the legislature, was aware of the importance of establishing a clear and individual mechanism. That is appropriate for the importance of the right in question, and the pivotal nature of the income support benefit in protecting the right (cf. in a closely related matter, which dealt with the denial of food stamps to the needy, the importance ascribed by the United States Supreme Court to reducing the scope of the violation and eliminating the universal arrangement: United States Department of Agriculture v. Moreno, 413 U.S. 528, 543 (1973); and see further: Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 899 (1990); Aptheker v. Secretary of State, 378 U.S. 500, 504, 515 (1964)). Indeed, the mechanism for examining income, which is established in the Law, ensures that a meticulous individual examination will be conducted for each person who claims an income support benefit. Since that is the case, and an individual examination is conducted in any event to examine the other components of a person's income, I am not convinced that there is any justification for transitioning to a universal arrangement precisely with regard to the ownership or use of a vehicle.

 

67.       The state further argues that the comprehensive nature of the arrangement is justified, since it is difficult to quantify the cost of vehicle usage on an individual basis, because it cannot supervise the vehicle usage habits of each benefit applicant. We cannot make light of that problem. It can justify less harmful violations of the constitutional right, such as establishing a hierarchy for quantifying – even if imprecisely – the value of the vehicle usage, or establishing a non-conclusive presumption that transfers the burden of proof to the benefit applicant, to prove the exact nature of the use he makes of the vehicle. Indeed, a more precise estimation can be made – albeit not absolutely precise – of the value of the vehicle usage, in a way that will make it easier for the state to implement the income test without absolutely denying the individual's right to a minimum dignified subsistence, as is now done through the conclusive presumption established in section 9A(b) of the Law. The Respondents did not provide us with data showing that the problem they indicated cannot be resolved by alternative, less harmful means and, as such, there is no choice but to conclude that the universal arrangement that is expressed in the conclusive presumption is unjustified and the second test of proportionality is not satisfied in the petitions before us.

 

68.       Therefore, the conclusive presumption established in section 9A(b) of the Income Support Law, which leads to full denial of the benefits to anyone who possesses or uses a vehicle beyond the limited and non-exhaustive exceptions delineated in the Law, is an inflexible and unsuitable means that unnecessarily violates the constitutional right to a minimum dignified subsistence. Once we found that the provision in section 9A(b) of the Income Support Law does not satisfy the second subtest of proportionality, it is sufficient to determine that its violation of the right to a minimum dignified subsistenceis not proportional and, therefore, does not meet the conditions of the limitations clause of section 8 of the Basic Law: Human Dignity and Liberty.

 

69.       Nevertheless, and above and beyond the requirement, we will also address the third subtest of proportionality, which is the test of proportionality in the narrow sense. This test centers on the question of the ratio between the public benefit produced by the piece of legislation that violates the constitutional right, and the damage caused to the constitutional right by that same piece of legislation (see the Prisons Privatization case, paragraph 50 of my judgment). This is a test of moral balance that places the clashing values against one another and balances them by their weight (see the Adalah Case at p. 331).

 

             In the circumstances of the case before us, the state argues that the public benefits from the savings in state resources by simplifying the work of the welfare institutions and preventing the provision of public monies to those who are not entitled to the benefit and wish to defraud the welfare institutions. Opposite that is the damage caused to all those who are in need of the income support benefit for the purpose of fulfilling their right to a minimum dignified subsistence, but do not receive it because of the conclusive presumption. This is an extremely serious violation of the core of the right of someone who, in any case, is at the bottom of the socioeconomic ladder and needs the benefit as the last safety net against starvation and poverty. Under those conditions, it is hard to accept that the savings alone – which are partially attainable with less harmful means – exceed the harm caused to individuals whose right to live with minimum human dignity is violated. Indeed, we cannot deny that this means streamlines the work of the welfare services – universal arrangements always tends to be simple to apply and to implement, compared with individual rules of examination. However, the ends do not justify the means. As I have already noted in the past, " ‘efficiency’ (whatever the meaning of this concept is) is not a supreme value, when we are dealing with a violation of the most basic and important human rights that the state is obliged to uphold (see the Prisons Privatization case, paragraph 55 of the judgment). This is true, in general and in particular, when we are dealing with examining a person's income, which is implemented in any case – as noted – on an individual basis.

 

             For all the above reasons, the provision in section 9A(b) that leads to denial of the income support benefit to a person who possesses or uses a vehicle and does not comply with one of the exceptions established in section 9A(b) – is not proportional and, therefore, does not satisfy the test of constitutionality.

 

70.        As we have reached the finish line, and we have established that section 9A(b) cannot stand because of the disproportional violation of the right to a minimum dignified subsistence, there is no more need to discuss the argument of discrimination made by some of the Petitioners. We will also note that we do not accept the argument on the merits because there is a relevant difference between the group of income support recipients and the group of income supplement recipients, which is based on the nature and purposes of the Law.

 

The remedy

 

71.        We have found that the provision in section 9A(b) of the Income Support Law, whereby ownership or use of vehicle must be deemed income that is no less than the amount of the benefit, disproportionately violates the right to a minimum dignified subsistence. Denying the last safety net required to ensure a minimum dignified subsistenceto those who need it the most, and in a universal and comprehensive manner, contradicts the Basic Law: Human Dignity and Liberty. This calls for a declaration of the invalidity of section 9A(b) of the Income Support Law.

 

             In the nature of things, in view of the fact that the state will have to formulate an alternative arrangement in place of the arrangement whose repeal we are ordering, section 9A(b) should not be repealed immediately and it is advisable to give the legislature time to formulate a new arrangement. In view of the importance of the right in question and the mortal blow dealt, in the meantime, to someone in need of the income support benefit as the last safety net, who is not receiving it, that timeframe cannot be prolonged. Therefore, I propose to my colleagues that we order that the declaration of repeal go into effect on September 1, 2012, six months from the rendering of our judgment, and that it be effective from that date onwards. It should be noted that the new arrangement, whatever it may be, can be established in principle by authorization in primary legislation, but the individual arrangements can also be established in secondary legislation. In the interim, until a new statutory arrangement goes into effect, the NII would do well to establish interim arrangements that take into account the rulings in this judgment, including applying a narrow interpretation to the term "use" that is set forth in the Law.

 

72.        Before concluding, I would like to note that the Petitions before us were conducted at the level of the principles. We did not address the individual issues of the Petitioners and, in any case, we are not the appropriate judicial forum for such an examination, which requires proceedings from the outset, both before the NII and before the competent courts. However, considering the battle conducted by the Petitioners over many years to change the legal situation, and in view of the result they have achieved, it is fitting to enable the Petitioners, insofar as the issue is still relevant, to resubmit their cases to the NII. This is especially true with regard to the Petitioners whose eligibility was denied retroactively.

 

73.        In conclusion. I propose to my colleagues that we rule that the order nisi become an order absolute in the sense that we will declare the repeal of section 9A(b) of the Income Support law due to its unconstitutionality, which will go into effect within six months of this day, on September 1, 2012.

                                                                        The President

 

Justice M. Naor

 

I agree that an order absolute should be issued in the format proposed by the President. In my view as well, the difficulty lies in the fact that the presumption established in section 9A(b) of the Income Support Law, 5741-1980, is a conclusive presumption that leads to full revocation of the benefit to the owners or users of a vehicle (except for the exceptions listed in the Law). Indeed, the ownership or use of a vehicle can constitute an indication of one's financial situation. So can a high standard of living that is prima facie inconsistent with the declared sources of income (cf. in connection with bankruptcy: CA 404/87Vasing v. Verker, IsrSC 44 (2) 593 (1990)). Indeed, a conclusive presumption facilitates a fast and simple decision on the benefit application by the authority. That is its advantage. However, a conclusive presumption may violate the constitutional right which, in my opinion, is the most important of the constitutional rights – the right to a minimum dignified subsistence. A solution for the violation – even if it is a violation of the constitutional right in only some of the cases – must be found. The solution may lie in reversing the burden. There may be other solutions that are not necessarily based on the ownership or use of a vehicle. The solutions that must be explored are those that would examine the true status of someone who wishes to receive a benefit without using the fictions inherent in conclusive presumptions, which do not always reflect the actual situation.

 

                                                                        Justice

 

Justice U. Fogelman

 

I concur with the comprehensive judgment of my colleague, President D. Beinisch, and the comments of my colleague, Justice M. Naor.

 

             I concur with the ruling of my colleague, the president, and her reasoning, that there is no practical reason to apply a different model of constitutional review to the social human rights that are established in the Basic Laws, as distinguished from other basic rights.

 

             No one disputes the importance of the distinction between the various stages in the constitutional review model. The first stage, on which the state focused its arguments in the context of the Knesset's legislation before us, which is under constitutional review, is the stage that examines the existence of a violation of a constitutional right that is protected in the Basic Law: Human Dignity and Liberty. In the second stage, the protection provided by the Basic Law with regard to that violation is examined by means of the tests in the limitations clause. I accept the state's position that we must avoid over-expanding the sphere of the constitutional right. A sweeping expansion of the boundaries of the constitutional right in the first stage, and "automatic" transition to the limitations clause tests whenever there is a claim that a piece of legislation violates it, may lead, in the final analysis, to erosion of the protection granted by the Basic Laws (cf.: CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village, IsrSC 49 (4) 221, 471 (1995); HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 419 (1997)). However, that is not the case before us.

 

             As noted by my colleague the president, this Court has already ruled that the right to dignity, which is established in sections 2 and 4 of the Basic Law: Human Dignity and Liberty, also extends to the right to a minimum dignified subsistence. I also believe that said right is at the core of the constitutional right to dignity. I also believe that the arrangement established in section 9A(b) of the Income Support Law, 5741-1980 violates the right to a minimum dignified subsistence, since it also leads to the categorical denial of the income support benefit to someone who does not have sufficient income for minimum subsistence. I also believe that the arrangement established in that section (the conclusive presumption that the ownership or use of a vehicle is equivalent to income in the amount of the benefit) is not proportional, since the purpose of the law can be attained by a means with a lesser violation, such as a presumption that is not conclusive. Please note: this does not rule out the state's position that the ownership of a vehicle and, in the appropriate cases, also the use of a vehicle, may constitute a reliable indication of a person's economic status. However, in establishing a universal arrangement by way of establishing a conclusive presumption that does not enable the authority to thoroughly examine the facts and prevents a benefit applicant from proving that ownership or use of the vehicle is not equivalent to income in the amount of the benefit in the special circumstances of his case, disproportionately violates the right of some of the benefit recipients to a minimum dignified subsistence.

 

For those reasons, I agree that the order nisi should be made absolute, as proposed by my colleague the president.

 

                                                                        Justice 

 

Justice E. Arbel

 

            Human dignity is a complex concept that encompasses many and varied values – some of a physio-existential nature, and some of an emotional-spiritual nature. Violation of human dignity may find expression in emotional humiliation and contempt, and it may find expression in denying physio-existential needs, without which a person cannot subsist with dignity. Take away the roof over a person's head, his food, water and basic medical treatment, and you have taken from him the ability to exist with dignity and to fulfill his existence as a human being (CA 9535/06 Abu Musa'ed v. Water Commissioner(unpublished)).

 

1.         In the petition before us, a question was raised regarding the constitutionality of the arrangement established in section 9A(b) of the Income Support law, 5741-1980, 991 LSI 30 (1980) (hereinafter: the Law or the Income Support Law), which states that anyone who owns or uses a vehicle is deemed to have income in the amount of the income support benefit and, therefore, is not eligible for the benefit. At the core of this issue is the question of whether this section violates the constitutional right to a minimum dignified subsistence.

 

          I concur with the comprehensive judgment of my colleague, the president, on the constitutional aspect therein and her determination that section 9A(b) of the Law disproportionately violates the constitutional right to a minimum dignified subsistence, for the reasons she cited. If I have seen fit to add my own words, it is only on a number of points.

 

2.       I agree with my colleague, the president, that the methodology of the constitutional review of socioeconomic rights should be no different from that utilized by the Court to examine other basic rights, as well as the fact that there is no reason to narrow the judicial review of legislation that affects the right to a minimum dignified subsistence, as distinguished from other basic rights.

 

3.          The source of the right to a minimum dignified subsistencelies in the nucleus of the basic right to human dignity which was given constitutional recognition in the Basic Law: Human Dignity and Liberty. The right to a minimum dignified subsistenceis found, as stated by the president, in the core and nucleus of human dignity. In my opinion, the right to a minimum dignified subsistenceis rooted deeply in the core of the constitutional right to dignity – to human dignity:

 

             Indeed, in Israeli law, it is becoming an entrenched view that that human dignity as a constitutional right also encompasses the right to minimum human subsistence, which includes shelter, basic food and elementary medical treatment, and that the state is obligated to ensure that a person’s standard of living does not drop below the threshold required to live with dignity (AdminA 3829/04 Yisrael Twito, Chairman, Mikol Halev – Kikar Lechem Association for Reducing the Social Gap in Israel v. Jerusalem Municipality, 59(4) IsrSC 769, 779 [2004]).

 

             The Income Support Law is a central means, among other welfare laws, which is designed to ensure a minimum dignified subsistence. The purpose of the Income Support Law is to ensure that every person and family in Israel, who are unable to provide themselves with the income required for subsistence, will receive the resources to supply their vital needs (see the Income Support Bill, 5740-1979, para. 2). The insertion of section 9A(5) and sections 9A(a) and 9A(b) in the Law leads to the fact that anyone who owns or uses a vehicle is not eligible for the income support benefit, because his "income" from the vehicle is deemed to be in the amount of the benefit that would have been paid if he did not own or use a vehicle. The result is that the very ownership or use of a vehicle is sufficient to lead to the denial of the benefit. The assumption is that the income of the applicant is high and attests to the fact that he does not need the safety net provided by the state. I agree with the president that this arrangement arbitrarily violates the right to a minimum dignified subsistence. The unequivocal rule under which anyone who owns or uses a vehicle is not entitled to an income support benefit, with no connection to the question of whether that person does, indeed, have income that would ensure his right to a minimum dignified subsistence, is arbitrary and is not based on an individual examination suited to the status of the applicant. Like the president, I believe that there may be cases in which the use of a vehicle does not necessarily indicate the fact that that person has independent income, due to which he is not eligible for the last safety net provided by the state, in whole or in part. That is the case when the vehicle serves as a tool for producing a certain income, but does not come under the exceptions in the Law, and when a person makes use of a relative's vehicle and bears only small expenses, when his relatives cannot help him in an alternative manner and in another way. As such, I concur with the conclusion that this is an expansive threshold condition which results in a disproportional violation of the right to a minimum dignified subsistenceof the person who is denied the benefit.

 

4.          My colleague, the president, criticizes the sharp division between civil and political rights and social and economic rights, between a "positive" right and a "negative" right. I agree with her that the division is not dichotomous and, in any case, the two types should be recognized as supra-constitutional rights in a democratic welfare state. Indeed, in contrast to the civil-political rights, the social rights pertain primarily to the conditions of a person's subsistence on the socioeconomic-cultural level. However, there is an inseparable connection between them because without the existence of social rights, a person would find it extremely hard to exercise his civil rights. Without food, water, housing, healthcare and education, it would be difficult for the individual to give content and true meaning to his civil rights. He would have trouble exercising the right to vote, to freedom of expression, to freedom of occupation and the right to property.

 

5.          Indeed, insofar as the matter involves exercising rights in a manner that requires the allocation of substantial resources, the need for restraint has been recognized by the Court. Thus it was ruled that when a case involves matters of budgetary policy connected to the state economy, the Court acts with great restraint in its judicial review for two main reasons: one – judicial interference in economic policy may have real ramifications for the stability of the economy and its proper functioning. Second – the issue of establishing economic policy is the responsibility of the public authorities, whose job it is to formulate it on the basis of their expertise and the relevant data in their possession, and they bear the public responsibility for the results (HCJ 4769/95, Menahem v. Minister of Transport 57(1) IsrSC 235, 263 [2002]; HCJ 4885/03 Israel Poultry Farmers Association v. The Government of Israel 59(29) IsrSC 14, 60 [2004]; HCJ 6407/06 Doron, Tikotzky, Amir, Mizrachi, Attorneys at Law v. Minister of Finance, para. 66 (unpublished, Sept. 23, 2007)).

 

             The restraint that the Court imposes upon itself in these matters stems from the perception that the distribution of the state's resources must be arranged comprehensively by the legislator, who has the required lateral view for handling such issues. A comprehensive arrangement by the legislator is also required in the matter of the social rights that have not yet been established in a Basic Law that enjoys a constitutional status. Recognizing these rights in the form of a Basic Law is particularly important in a democratic state that views itself as a welfare state and endeavors to ensure human subsistence to every person and a minimum dignified subsistencewithin the concept of "human dignity" (Ayala Procaccia, Supreme Court Justice Emeritus, “Social Rights in Law” delivered at the Knesset conference "Basic Law: Social Rights, Social Justice in the Knesset?"  to mark the International Human Rights Day (Dec. 6, 2011), http://www.acri.org.il/he/?p=18275).

 

6.          Social rights are recognized sporadically and gradually, either by way of the ordinary legislation of rights, which only deals with certain rights, or by way of case law, which develops slowly and randomly, in dependence on whether a petition is filed and merits recognition of a social right (see, e.g., HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance (unpublished, Dec. 12, 2005); CA 4905/98 Gamzu v. Yeshayahu 55(3) IsrSC 360 [2001]; CA 9535/06 ; HCJ 11044/04 Solomatin v. Minister of Health (unpublished, Jun. 27, 2011); HCJ 1181/03 Bar Ilan  University v. National Labor Court (unpublished, Apr. 28, 2011); HCJ 3071/05 Louzon v. Government of Israel (unpublished, Jul. 28, 2008)). This situation still leaves dark pockets of poverty, hardship, discrimination and a lack of equality in the allocation of state resources.

 

7.          With the aforementioned in mind, the Court cannot refrain from conducting a constitutional review of the violation of these rights, in order to protect those who need it. The Court deems itself obligated to protect the rights of those who come through its gatesCVJH

, when those rights are violated by existing legislation. The Petitioners who assembled in the petitions before us are downtrodden and shoulder the burden of subsistence. They are at the bottom of the socioeconomic ladder and in need of the benefit as the last safety net against hunger and poverty. Because of some use or other that they make of a vehicle, usually not their own vehicle, the benefit is denied them. The result at which we have arrived in our judgment is, first and foremost, a response to their cry for help and the cries of others like them. We are not ignoring the fact that there are other groups in society in distress, aside from the petitioners before us, who are living below the poverty line at an even lower rung on the ladder. However, the matter of the petitioners is the one that has come before us and we must provide a response to it.

 

             The distress of one group cannot infringe and obscure the needs of another group. The Court can only address the matters that come before it. It does not choose these matters and does not catalog them. For that reason, inter alia, the aforementioned rule was established, regarding the restraint practiced by the Court when it discusses the distribution of resources to the various strata in society. However, in cases in which the Court discovers a disproportional violation of the social rights of a particular group, in a manner that undermines the minimum subsistence conditions of that group, it is obligated to intervene, notwithstanding the restraint to which it usually subjects itself. That is the case before us.

 

             In conclusion, I would emphasize again that it is important to ensure human subsistence to every person. Recognition of social rights in the form of a Basic Law is the only way to lay the proper normative foundation for providing basic constitutional protection for those rights, and for clarifying their supreme status and the obligation to honor them.  That should be done sooner rather than later.

 

 

                                                                        Justice

 

Justice E. Hayut

The right of every person to a minimum dignified subsistenceis, indeed, a social right that is enumerated with the most important constitutional rights. The judgment of my colleague, the President, analyzes with wisdom and sensitivity the issue that has been set before us in these petitions with regard to this right, and I concur with what is stated therein. In paragraph 35 of her judgment, my colleague, the president, quotes from the pertinent and apposite words written in this context by Justice Y. Zamir at HCJ 164/97 Conterm Ltd. v. Ministry of Finance, Customs and VAT Division, et al., IsrSC 52 (1) 289, 340 (1998), when he said “...Every person must have enough, so that he or she can enjoy human rights, in actuality and not just by law."  That message is echoed in a poem by poet Dalia Ravikovitch, "Declaration for the Future," which I have seen fit to present here:

 

Declaration for the future

 

A person, when he's hungry

or insecure,

he will make compromises,

he will do things

he never dreamt of in his life.

 

Suddenly he's got a crooked back,

and what happened to his back

that it got so crooked?

Loss of pride.

And his smile is frozen

and both hands filthy,

or so it seems to him,

from coming in contact with moist objects

whose touch he cannot escape.

 

And he has no choice,

or so it seems to him,

and it's a marvel

how for years he'll forbear,

 

and merely record the annals of his life

within,

year after year.

 

 

             Therefore, the result, according to which an order absolute will be issued in these petitions in the version proposed by my colleague, the President, is accepted by me

 

                                                                        Justice

 

Justice E. Rubinstein

 

A.          I concur with the opinion of my colleague, the president, and the comments of my other colleagues.

 

B.          Minimum subsistence is the core of the Income Support Law, 5741-1980. It represents a worthy social concept whereby the public spreads a safety net at the feet of any person in Israel so that he will not fall into the shame of hunger. The explanation to the law (Bills, 5740, 2), noted by the president, states that the purpose is "to ensure that every person and family in Israel, who are unable to provide themselves with the income required for subsistence, will receive the resources to supply their vital needs.” This concept has been well entrenched in Jewish tradition throughout the generations and the State of Israel, as a Jewish and democratic state, would not be able to adhere properly to its values if it had not designed such a safety net. It integrates into the social security system which is structured in the National Insurance Law (Consolidated Version), 5755-1995, and in other extensive social legislation. It is clearly one of the values of the State of Israel – the "value of the human being," which is mentioned in section 1 of the Basic Law: Human Dignity and Liberty – and it is found in the sphere of charity, from those same "foundations of liberty, justice and peace in light of the vision of the prophets of Israel," on which the state was founded according to the declaration of independence. Even without my citing references, no one would dispute the fact that someone who does not have enough for minimum subsistence has lost his dignity as a person, and he comes under sections 2 and 4 of the Basic Law: Human Dignity and Liberty. In Administrative Petition Appeal 3829/04 Twito v. Jerusalem Municipality, IsrSC 59 (4) 769, 779, Justice Procaccia wrote," Indeed, in Israeli law, the concept is taking root that human dignity as a constitutional right also encompasses the right to minimum human subsistence…and the state is obligated to ensure that a person’s standard of living does not drop below the threshold required to live with dignity.” See the references, id. I concurred with her opinion in that judgment, which was written in 2004, and my opinion has even strengthened since then. This purpose of the legislation justifies exercising fairness, which is doubtlessly a guiding factor for the Knesset and the public authorities.

 

C.          The question at hand focuses on whether the categorical provision – the conclusive presumption – in section 9A(b) of the Income Support law, i.e., "In the matter of this law, subject to the provisions of subsection (c), a vehicle is deemed to be property from which monthly income is generated, the amount of which is no less than the amount of the benefit that would have been paid to the claimant if not for the provisions of this subsection." Subsection (c) enumerates the exceptions that have been inserted over the years in amendments to the Law in 5761 and 5767, which were designed to soften the conclusive presumption, such as in the case of requiring a vehicle for the purpose of medical treatment or in cases of disability or other cases of limited income and a small or old car. I do not minimize those and it is clear that, over the years and after lessons learned, the legislature took steps toward helping those in need of income support in amendments to the legislation. Still, in reviewing the cases in the petitions before us, which were filed by people at the bottom of the socioeconomic ladder whose use of a vehicle does not raise them at all to the level of someone who has attained a minimum dignified subsistence if they are denied income support, it is clear that they must be entitled to a safety net, and denying them the income support, even if that is not done willingly, is disproportional in a manner that justifies intervention. I admit that I hesitated initially out of respect for the Knesset and the knowledge that, in its legislation, it has also softened the requirements with regard to vehicles, as stated. However, the constitutional examination with all its stages, as enumerated by the president and, ultimately, "the power of the locked door" facing the Petitioners, against the possibilities for individual examination, where such an examination is already built into the Income Support Law (see Part C), tips the balance in favor of the decision that we have reached. It should be emphasized that we are not trying to say, under any circumstances, that possession of a vehicle will not constitute a criterion for an eligibility test. Our approach lies within the realm of ensuring a minimum dignified subsistence by means of individual examination, and we are dealing with a situation in which, as stated, there is an existing and built in feasibility of individual examination, which is not unattainable.

 

D.          I believe that it is appropriate to write briefly about the vehicle and its place in human existence in Israel in our time. We are living in a dynamic reality, of which the legislature is also aware, in which something that was perceived as a luxury in the past, as the provenance of a select few, has become common to all. This can be said of the electric refrigerator, which has long since been called a "Frigidaire" after a certain model of refrigerators and which 60 years ago began to replace the ice boxes. At that time, it was considered a financial achievement by someone who purchased one. The same is true of the telephone for which my parents, may they rest in peace, waited their turn for about six years before they received one (they did not have any "connections") and, of course, the television which, since it appeared in Israel in 1968, was initially a luxury and a source of pride to anyone who purchased one. Eventually the personal computer, the mobile telephone and the Internet, which were not even imagined by our forebears, but by us as well, and now they are the provenance of the masses. It would be difficult to imagine our lives – and not just the lives of the wealthy, but far wider circles – without them. The vehicles that we are discussing in this matter are very similar.

 

E.          Indeed, in days past, a vehicle was a luxury to most people. In the high school in which I studied in the old north of Tel Aviv around 1960, only the school principal and the parents of one of the students in my class had a car. My parents were from the middle-class and they lacked nothing by the standards of that time, as was the case with most of my classmates, but they did not have a car nor even a driver’s license. The next generation – my generation – was the first generation of drivers and vehicles, and that was also the case in my wife's family and the families of most of my friends. Since then, a great deal of water has passed under the bridge and today it is hard to impart these stories to our generation, which is stuck in traffic jams and exasperatedly seeking parking spots in the cities. I have written these lines in order to emphasize that it is clear to everyone that a vehicle is no longer what it once was, even if it is not an existential matter as a rule.

 

F.          Indeed, these issues have also arisen in Knesset discussions in this very context. Amendments to the Income Support Law in 5761 and 5767 were implemented at the initiative of Members of Knesset (see the Income Support Bill (Amendment 13) (Motor Vehicle), 5758-1998 and the 5758 Bill, 350, and the Income Support Bill (Amendment 29) (Vehicle as Property That Does Not Generate Income), 5767-2006, Knesset Bills 5767, 119). In a meeting of the Labor and Welfare Committee on December 6, 1999, which discussed the 5758 Bill, MK Nissim Zeev said (p. 3) "Just as a Frigidaire was once something special, and a computer, today these things (vehicles – A.R.) are a routine part of life. However, the Ministry of Finance representative responded "I think that saying that a car is no longer a luxury…is view from an ivory tower.” In one of the discussions, the legal advisor to the National Insurance Institute noted (minutes of the meeting of the Labor, Welfare and Health Committee on October 31, 2011), "If we now say that subsistence includes a vehicle, we have to view the ramifications of that statement from the standpoint of the scope of payments. The perception of Israeli society may be that the time has come to view this as part of subsistence." In bringing the 5761 Bill for a second and third reading, the chairman of the Labor, Welfare and Health Committee, MK David Tal (January 1, 2001) noted that "The ownership of a vehicle in the circumstances discussed in the bill no longer constitutes a sign of wealth or luxury. In certain cases, the ownership of a vehicle is even crucial for subsistence, even if it involves a very poor family, for example, and families living on the periphery, for whom a vehicle provides the only possibility of reaching their workplace and keeping their jobs" (Record of the 15th Knesset, session 3, p. 2342). Likewise MK Taleb El-Sana (“Maintaining a vehicle these days is not a reason to deny the right” p. 2343)). On the other hand, Minister of Finance A. Shochat noted that this would contribute to creating circles of people who would not go out to work (2343). We see that the discussion in the committee and the plenum ranges between a more social oriented approach and an economics oriented approach, even though it would be reasonable to assume that everyone wants the circle of employment to expand, and the parliamentary reality which, by its nature, requires compromises, has created balances. As stated, a vehicle in itself is not necessarily and generally an existential matter, of course, and that should be emphasized. But the constitutional question is whether the results of the balances in the law are not disproportional, considering the matter before us, and the Court can only address what it sees – and, for the sake of constitutional proportionality, is there no room to turn the issue of the vehicle and its use into a criterion instead of a padlock? It seems that a vehicle as a criterion and as a basis of examination, instead of the locked door, is a proportional way that does not impair the minimum dignified subsistence in cases like the ones before us.

 

On the examination stage

 

G.          I concur with the president and my colleagues who believe that even when we are dealing with social and economic rights, there is no reason for moving the constitutional stage of examining balances to the stage of delineating the right itself. I concur with the position once voiced by President Barak, that the public interest must be taken into consideration in the framework of the conditions of the limitations clause… and not in the framework of determining the scope of the constitutional right itself" (HCJ 7052/03 Adalah v. Minister of Interior, unpublished, paragraph 105); A. Barak, Proportionality in Law – Violation of the Constitutional Right and its Limitations (5770) 102, 114). The founders of the Basic Law did not make any distinction between socioeconomic rights and other rights. We should remember that section 3 of the Basic Law: Human Dignity and Liberty, which deals with property rights – a socioeconomic right of the highest order – is at the same level as the other rights in the law which are of a different nature. Indeed, in HCJ 466/07 Galon v. Attorney General (unpublished) I had the opportunity to recall (in paragraph 8), that "Not every right or privilege that provides protection to one extent or another for human dignity in its broadest sense, comes within the realm of the constitutional right." Clearly the Court, which does not have a purse – or a sword – in the words of Alexander Hamilton, one of the fathers of political thought in the United States in its infancy (The Federalist 78), can only practice caution in imposing an actual financial expense upon the Knesset and the government. To that approach of such restraint we must adhere. However, the place of the examination is not at the stage of determining the scope of the right but, rather – as in every constitutional examination – at "the stage of the limitations clause," and, in this case, at the bottom line – proportionality – and that has been found to be defective.

 

On poverty and a minimum dignified subsistence in Jewish law

 

H.          It is impossible in such a matter not to cite the Jewish legal sources and the world of Judaism in this matter. The Bible is strewn with private and public obligations to the poor. This can be found in the Torah and repeatedly in the Prophets, and even more so in the Writings – and not just once or twice, but many times. Those that we will cite here are but a drop in the ocean. "You should not abuse a needy and destitute laborer, whether a fellow countrymen or a stranger in one of the communities of your land. You must pay him his wages on the same day, before the sun sets, for he is needy and urgently depends on it, else he will cry to the Lord against you and you will incur guilt" (Deuteronomy 24:14-15); and of the gifts of the field it is stated, “You shall leave them for the poor and the stranger, I the Lord am your God.” (Leviticus 19:10); the prophet Isaiah said (Isaiah 49:13) “For the Lord has comforted his people and will have mercy upon his afflicted.” The prophet Ezekiel says of the righteous man (Ezekiel 18:7) that "… he has given bread to the hungry and clothed the naked…"; It is written in Psalms "Happy is he who is thoughtful of the wretched, in bad times may the Lord keep him from harm" (Psalms 41:2); “…he hears the cry of the afflicted” (Job 34:28).

 

Below are words that I had occasion to write in Administrative Petition Appeal 3829/04 Twito v. Jerusalem Municipality (pp. 781-782):

 

    The public's obligation to its poor is established in the biblical ethos, which is cognizant of the fact that “… For there will never cease to be needy ones in your land” (Deuteronomy 15:11) i.e., poverty is a phenomenon that frequently accompanies human society. "It is to share your bread with the hungry, and to take the wretched poor into your home, when you see the naked, to clothe him and not to ignore your own kin” (Isaiah 58:7; I would add, as a personal note, that this passage is engraved on the tombstones of my grandmother and my mother, may they rest in peace). Food, shelter, clothing – these are man's obligation to others as kindness and certainly as obligations of the society. “The wretched poor,” says Midrash Raba, “are homeowners who have lost their dignity and their assets” (and there are other interpretations). If we wish, caring for the poorest of the poor will ensure that the human dignity – a basic right in our legal system – of the weakest part of society, is not violated. And the Babylonian Talmud states, “Rabbi Elazar said, ‘The effecter of charity (someone who causes others to give to the poor – A.R.) is greater than the doer, because it is stated, ‘The effect of righteousness is peace’” (Emphasis added – A.R.) (see also Maimonides, Gifts to the Poor, 10:6).

 

    (2) Social justice is an established element of Jewish law. It has been emphasized by the prophets of Israel: "Zion shall be saved in the judgment: her repentant ones, in the retribution" (Isaiah 1:27). Charity is established in the commandments but we should not confuse the concept of charity and kindness, which is a voluntary act, with the public-social obligation. The halachic approach to the public aspect is that "Charity is to be enforced;” in other words, people are required to give for charitable purposes, in amounts commensurate with their means (see the Shulchan Aruch, Yoreh Deah, Marks 247-248; and Aruch Le-shulchan of Rabbi Yechiel Michal Epstein. Russia, 19th-20th centuries, Yoreh Deah, particularly end of Mark 250).In the modern world, charity has been translated in part into the obligation of taxes which, aside from the expenses for security and other matters, also includes social issues. However, the individual is still obligated to pay a tithe, i.e., to give charity, and, in principle, he is restricted to not expending more than one fifth (two tenths) for that purpose. Law and charity are intertwined: "He has told you, O man, what is good and what the Lord requires of you: only to do justice and love goodness and to walk modestly with your God" (Micah 6:8); and our sages addressed this (Babylonian Talmud. Sukkah, 49b): ‘Rabbi Elazar said, to do justice – this is the law; to love kindness – this is the performance of kind deeds; and to go discreetly – this is taking out the dead and bringing a bride to the nuptial canopy,’ i.e., social obligations.

 

    (3) The author of the Book of Principles (Rabbi Yosef Albo, Spain, 15th century) notes that ‘Doing justice includes all the laws between man and his fellow man, and the love of kindness includes performing all types of kind deeds’ (article 3, chapter 30).  Indeed, the stranger, the orphan and the widow, the weaker parts of society from time immemorial ("Cursed be he who subverts the rights of the stranger, the fatherless, and the widow," Deuteronomy 27:19) are given massive protection in the Torah. And the most worthy charity for the needy is that which enables him to rehabilitate himself economically: "There are eight categories in giving charity as follows: In the highest category is one who strengthens a fellow Jew in need (who is poor – A.R.) by a gift, or loan, or offer of partnership, or employment. This sets him on his feet so that he does not require charitable aid" (Shulchan Aruch, ibid.,249, 6). See also the text of the Hafetz Chaim, Loving Kindness (to which I will return – A.R.

 

    (4) The approach is immersed in mutual responsibility: "Let a man consider that every moment he seeks his livelihood from the Holy One Blessed Be He, and even as he desires that the Holy One Blessed Be He shall hear his cry, so let him hear the cry of the poor. Let him further consider the fortune is a wheel that keeps turning in the universe, and the end of man is that he or his son or his son's son will come to a similar state (of neediness, Heaven forbid – A.R.) – men take pity on those love shown pity for others" (Rabbi Moshe Isserles, in his commentary on [Shulchan Aruch] ibid., 247, 3). See also the series of articles in edition no. 1 of Bema’aglei Tzedek – Paths of Righteousness, Journal of the Torah, Thought and Social Justice (Nisan 5764). It should be noted, however, that the needy person also has obligations (see Babylonian Talmud, Baba Metzia 78b).

 

    (5) The commandment of charity has public aspects, such as providing food for the poor (Baba Batra, 8b). ‘We have never seen or heard of a Jewish community that does not have a charity fund” (Rambam, Gifts to the Poor, 9, 13). See also Rabbi E. Afarsemon, Rabbi D. Wiskott and Rabbi Yechiel Ozeri, "Allocating Resources and Treatment Priorities in Public Medicine," Melilot, Volume I, 5758-1958, 11).

 

    (6) We can obviously see that the public's obligation vis-à-vis the needy among them is rooted in the Jewish legal ethos.

 

See also the words of former Justice M. Cheshin in AFH 11230/04 Twito v. Jerusalem Municipality (unpublished).

 

I.           The Rambam, in Hilchot Yom Tov, 6, 18, reminds everyone enjoying the jubilation of the holiday, “And when he eats and drinks, he must feed the stranger and the orphan and the widow along with the other wretched indigents.” On the classification of the poor and the tests of poverty in Jewish law, see Aviad Hacohen, Gladdening the Poor and Gifts to the Indigent in Parshiot Vemishpatim, Jewish Law in the Portion of the Week, 2011, 272-277; M. Weinfeld, Law and Justice in Israel and Among the Nations (5748). In his comprehensive book, Loving Kindness, the Hafetz Chaim discussed the public's obligation to maintain a charity fund in every city (chapter 16) and, inter alia, (p. 206) “and the collar hangs upon the necks of everyone… for the many who carry out the precept [of giving charity] are nothing like the few who carry out the precept”. At the end of the book, he also addresses the fact that “the requirement to perform acts of charity and righteousness varies according to the recipient and according to the giver” (p. 331).

 

In his preface to the book, the Netziv (Rabbi Naftali Zvi Yehuda Berlin of Volozhin) says: “The rule of charity is the existence of the world, and as it is written (Psalms 89:2), ‘Your steadfast love is confirmed forever’, and this is the duty of humankind and this is the form thereof... The people of Sodom were doomed to extinction because they did not support the poor and the needy and they behaved corruptly and inhumanly... Besides being commanded to do charity on the basis of one human being’s duty to another, we are also commanded to do so by the Torah.”

 

J.           And, indeed, as Dr. Michael Wygoda has noted in his comprehensive article, “Between Social Rights and Social Duties in Jewish Law” [Hebrew], in Economic, Social and Cultural Rights in Israel (Y. Rabin, Y. Shany, eds., 5765-2004) 233, 249-250, the duty of helping the weak “has not merely remained the duty of the individual; rather, it has become one of the principal duties of society and the community; in the words of Moses Maimonides (Gifts to the Poor, 9, 3), ‘We have never seen nor heard of an Israelite community that does not have a charity fund’”; the institution of the charity fund began in the days of the Mishnah; see discussion and references, ibid. see also Y.D. Gilat, “‘Open Your Hand to the Poor and Needy Kinsman’ – The Precept of Charity: Legal Obligation or Generosity” [Hebrew], Parashat Ha-Shavua 179, and in his words there: “... The precept of charity entails two things: the precept of charity by the individual, which is based on the generosity of the giver, and is not to be enforced; and the ‘public’ duty of charity, which is founded on the mutual consent of the city’s residents, and is often also forcibly collected”; see references, ibid.

 

Respect for fellow human beings in Jewish ethical theory

 

K.          Jewish ethical theory emphasizes a point listed in the Mishnah (Aboth 6:6) among the 48 things by virtue of which the Torah is acquired: “bearing the burden with the other” – the duty of lending one’s heart and one’s hand to sufferers, and, in the words of the interpreter, Rabbi Pinchas Kehati, “he sympathizes with his fellow and helps him, whether physically or financially or with good counsel and proper instruction”. This concept was strongly expressed by Rabbi Yerucham Levovitz, the mashgiach (spiritual counselor) at the Mir Yeshiva between the two World Wars, in his articles which appeared in his book, Knowledge, Wisdom and Ethics [Hebrew], Volume I (5727-1967). In his words, “Respect for fellow human beings is the highest point” (2, 33); it is (34) “the middle post which runs from one end to the other, encompasses the entire Torah, all of which is but a matter of respect, respect for the Deity and respect for fellow human beings”; and furthermore (35), “that this matter of respect for fellow human beings, respect for the image of God, this is the form of the entire Torah”. Bearing the burden with the other, in his words (27), is “to feel his fellow’s sorrow in every possible way... because feeling a person’s sorrow, feeling all of his pains... requires a great deal of heartfelt attention and observance, to the point of bending oneself down to feel the burden of the weight”. And in another place (50): “that bearing the burden is the virtue of empathizing with all of the sufferer’s sorrow and agony, being troubled by all of his troubles, and feeling as if those stabbing pains are stabbing into his own flesh”. I shall add that Rabbi J.D. Soloveitchik sees the image of God in respect for fellow human beings (The Lonely Man of Faith, 15).

 

L.          What is before us is a halachic duty, and not only a mere “ethical counsel”; and this applies in cases where binding norms – laws – “are sometimes pushed aside and given the status of an ‘ethical counsel’, which is ostensibly less binding” (see my article, “Halachah and Ethics for Everyone: The Life and Work of the ‘Hafetz Haim’” [Hebrew], Blessing for Abraham (a compendium of articles in honor of Rabbi Prof. A. Steinberg), 5768-2008, 461, 467). This also gives rise to the duty toward the poor, “sufficient for whatever he needs” (Deuteronomy 15:8), which was interpreted in the Talmud (Babylonian Talmud, Kethuboth 67b) as “You are commanded to maintain him, but you are not commanded to make him rich” – although, in certain cases, the duty extends to providing a certain degree of comfort, as in the case of persons who have lost their assets, as described there; see Maimonides, Gifts to the Poor, 7, 3: “You are commanded to give to the poor man according to what he lacks”; and with regard to eligibility for charity in this regard, see Rabbi N. Bar Ilan, “The Eligibility of the Poor for Charity” [Hebrew], Tehumin II (5741-1981), 453; Rabbi S. Aviner, “Your Luxuries Do Not Come Before Your Fellow’s Life” [Hebrew] , Tehumin LXIX (5769-2009) 54; Rabbi S. Levi, “Giving Charity to a Poor Person Who Is Able to Earn a Living” [Hebrew], ibid., 57.

 

Guaranteed minimum income – charity by the public

 

M.         Guaranteed minimum income is in the nature of charity and righteousness done by the legislators – that is, the public – for the needy. The Torah (Deuteronomy 15:7-8) teaches us: “If, however, there is a needy person among you, one of your kinsmen in any of your dwellings in the land that the Lord your God is giving you, do not harden your heart and shut your hand against your needy kinsman. Rather, you must open your hand and lend him sufficient for whatever he needs.” Maimonides, in his legal treatise Gifts for the Poor (7, 1), says: “It is a positive commandment to give charity to the poor of Israel according to the needs of the poor, as far as the giver can afford”; it should be noted that this precept also applies to resident aliens (Leviticus 25:35), as well as to “your kinsman”.

 

N.          Maimonides further says (ibid., 10, 1): “We are obligated to be more observant of the commandment of charity than of any other positive commandment, for charity is the sign of the righteous of the seed of Abraham, as Scripture states: ‘For I have singled him out, that he may instruct his children [...] by doing what is just and right’ [Genesis 18: 19]. And the throne of Israel cannot be established and the true faith cannot stand, except for charity, as Scripture states: ‘You shall be established through righteousness’ (Isaiah 54:14). And Israel will not be redeemed except for charity, as Scripture states: ‘Zion shall be saved in the judgment; her repentant ones, through charity’ (Isaiah 1:27).” See also Sefer Ha-Hinnuch [the Book of Education, a list of the 613 positive precepts of Judaism], Precept No. 479 (“to give charity according to one’s means”) and Precept No. 66 (“lending to the poor – the root of this precept is that God desired that God’s creatures be accustomed to and trained in the characteristic of kindness and mercy, for it is a praiseworthy characteristic”).

 

On the importance of doing and encouraging work

 

O.          In the present case, at least one of the Petitioners (paragraph 5 of the judgment by Supreme Court President Beinisch) was forced to resign from her work under circumstances which involved “the attribution [of use] of the car”. We have seen, however, that the highest level of charity in Judaism – and, as set forth above, there are eight such categories of charity – is helping a poor person find work; see also Aruch ha-Shulhan, Laws of Charity, 249, 15, by Rabbi Yechiel Michal Epstein (Russia, 19th-20th centuries), who adds: “And in our time, in many cities, there are societies which assign Jewish boys to craftsmen [to learn a trade], and this is a very great thing, as long as they supervise them to ensure that they walk in the paths of God, pray every day, and be faithful to Heaven and to their fellow human beings.”

 

P.          And Rabbi Judah the Hassid (Book of the Hassidim, 5635-1875) said: “There is charity which is not recorded as charity, but is considered by the Creator, Blessed Be He, as excellent charity. For example, a poor man who has an object to sell or book that no one wants to buy, and a person buys it from him, or a poor man who wants to write... There is no greater charity than this, that he should make efforts at writing and you should let him do so...”. The importance of giving one’s fellow human beings not only respect, but work as well, is also indicated by the interpretation given by the Sages and by Rashi [Rabbi Shlomo Yitzhaki] to Exodus 21:37, “When a man steals an ox or a sheep, and slaughters it or sells it, he shall pay five oxen for the ox, and four sheep for the sheep”. Rashi explains: “Rabbi Johanan ben Zakkai said: ‘God took pity on human dignity. An ox walks on his own feet, and the thief did not suffer the indignity of carrying him on his shoulders – he pays five; a sheep, which he carried on his shoulders – he pays four, because he suffered indignity.’ Rabbi Meir said: ‘Come and see how great the power of work is: an ox, which he took away from its work – five; a sheep, which he did not take away from its work – four.’” See also N. Rackover, The Greatness of Respect for Fellow Human Beings: Human Dignity as a Supreme Value [Hebrew] (5759-1999), who cites, inter alia, the regulations of “not shaming those who have not” (pp. 145-148); see also E. Frisch, “Rashi’s Interpretation of the Payment of Four and Five – a Diachronic and Synchronic Study (Education to Values through the Teaching of Commentary)” [Hebrew], Peraqim VII (5741-1981), Schein College of Education, Petach Tikva, 155, 159-160, with respect to work and the importance thereof; see also Wygoda, ibid., 261 ff. Accordingly, if anyone finds a possibility for a poor person to earn a bit of a living, even if it involves some slight use of a car, this should not block the poor person’s way to a guaranteed minimum income; it is sufficient for the car to constitute one of the criteria for examination, in line with the outcome of our ruling.

 

Summary

Q.          Jewish law is saturated with the duties of charity, which begin with the individual and continue with the public. This is one of the values of Israel as a Jewish and democratic state, as set forth above, and the ruling in the present case emphasizes this point.

 

Before closing

 

R.          This ruling was handed down on the last day of Supreme Court President Dorit Beinisch’s term in office. Throughout the years of her public service – almost 50 years, in the Office of the Attorney General and the Supreme Court – she made many contributions to administrative and constitutional law in Israel. Among other positions, she served as Director of the Department of High Court of Justice Cases and the Attorney General of Israel, as a Justice and as the President of the Supreme Court. These lines express appreciation for her work and the blessing which it conferred upon Israeli law – inter alia, as a trailblazer for women, as the first woman to serve as Attorney General of Israel and as the President of the Supreme Court. Supreme Court Vice President Menachem Elon, when he retired, stated that the Hebrew word for “retirement” (gimla’ot) comes from the same root as the Hebrew word for “redeemer” (hagomel); and, indeed, those who retire in good health and are satisfied with the work they have done may praise the Redeemer of Israel [a reference to the Deity] for having come out in peace. I would like to wish President Beinisch much satisfaction in her future endeavors as well.

 

Justice

 

Justice S. Joubran:

 

1.          After reading the comprehensive opinion of my colleague the president, I saw fit to add my opinion to hers and to state, as she did in her opinion, that section 9A (b) of the Income Support Law, 5741-1980 (hereinafter: the Income Support Law) violates the constitutional right to a minimum dignified subsistenceto an extent that exceeds the required and, therefore, it should be repealed. In view of the importance of the issue at hand, and the legal questions that arise, I will add a few brief comments.

2.          Human rights, civil and social alike, have had a pivotal place in the Israeli legal system since its inception. Human rights, as an integral part of the basic principles of the legal system, were borne in mind by the Court when it interpreted the law, even before the Basic Laws on human rights were enacted. They were also borne in mind by the legislative authority, which gave legal validity to many of those rights, either in its guise as a legislative authority or in its guise as a founding authority. In this context, it should be noted that, as the president stated in her opinion, the distinction between civil rights and socio-economic rights originates in the historical development of the two systems of rights, and is not a substantive distinction (paragraphs 26-29 of her opinion). Clearly, each one of the human rights imposes "affirmative" obligations and "prohibitive" obligations on the state, in accordance with the context and circumstances of the matter. There is, therefore, no difference between the right to freedom of expression, the right to equality and the right to life – and the right to health, the right to education and the right to a minimum dignified subsistence. However, all human rights differ from one another in their extent and the scope of the legal and constitutional protection afforded them.

 

3.          It is well known that human rights, civil and social, are not absolute rights and they must be balanced – among themselves, and with opposing interests and values. The task of balancing the various human rights, and balancing human rights and other social values, is not a simple matter. The legislative authority is frequently faced with this balancing endeavor, and it must do its job while keeping in mind all the constitutional norms pertaining to the matter, as well as the public's interest. The legislative authority has the ability to gather the data and to examine the issue in depth, while considering all the direct and indirect ramifications of its decision, and it is the authority that most closely reflects the will of the people at any given time. In that framework, it is not for the Court to replace the legislative authority. The role of the Court is a narrow one and its only duty is to ensure that the legislative act honors the constitutional principles of the law, which reflects the basic views of the Israeli public. In that context, in our legal system, the limitation clause established in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, has been recognized as an auxiliary tool to be borne in mind by the legislative authority when it endeavors to strike a balance between the violation of a protected constitutional right and the public’s interests and needs. It should be noted that, like the president, I believe that there should be no distinction, in the constitutional examination, between the manner of examining the protection of constitutional "civil" rights and the manner of examining the protection of constitutional "social" rights (see paragraph 29 of the president's opinion).

4.          Like civil rights, the social rights have been developed in Israeli law by the legislative authority and the courts. In another matter, in connection with violation of the right to equality, I noted that "The particular law creates a legal framework that reflects the manner in which the legislators decided that it was advisable to contend with a constitutional violation in a given context" (Leave for Civil Appeal 8821/09 Parhansky v. Layla Tov Productions Ltd. (not yet published, November 16, 2011); see also HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz, IsrSC 58 (5) 749, 778-779 (1994)).  That also holds true for social rights. In a long series of legislative acts, from the first days of the state, the Knesset formulated the relationship between the social rights and competing social interests. Thus, the legislature determined the scope of the right to health, inter alia, in the State Health Insurance Law, 5754-1994, the scope of the right to education in legislation such as the Compulsory Education Law, 5719-1949, and so forth. As part of the formulation of the social rights in Israel, a long series of social laws were enacted which establish arrangements that protect the right to a minimum dignified subsistencein accordance with the welfare policy in the State of Israel. These arrangements include disability and old age pensions, financing and operating public welfare services and many others. The Income Support Law was also enacted in the framework of this array of legislation. This law establishes the last social security system designed to assist someone who is unable to secure his own subsistence. In this manner, the Knesset established one of the mechanisms that it deems fitting for exercising the right to a minimum dignified subsistence.

5.          For many years, before the enactment of the Basic Law: Human Dignity and Liberty, this large-scale task of formulating the socioeconomic rights of the citizens and residents of the State of Israel was the responsibility of only the legislative authority and the executive authority. While the actions of the executive authority were subject to judicial review, even before enactment of the Basic Law, the actions of the legislative authority were protected from judicial review, and the main contribution of the judicial authority to formulating the rights established in the Law was made by developing the law and its interpretation. Enactment of the Basic Law: Human Dignity and Liberty, which gave expression to the constitutional concept of the Knesset in its role as a founding authority, granted a constitutional – supra-legislative status to the right to human dignity. The change in the legal status of the right to dignity required the Court to develop the Israeli constitutional law, while meticulously maintaining the duty of mutual respect between the branches of government. The Court was required to infuse content into the constitutional right and also to examine the weighty questions that arise when a piece of legislation is examined through the tests of the limitation clause.

 

6.          In this framework, the right to exist with dignity has been adjudicated before this Court in several cases, and there is seemingly no need to elaborate on its importance. Thus, it was stated that "… the human right to dignity is also the right to conduct one‘s ordinary life as a human being, without being overcome by economic distress and being reduced to an intolerable poverty. This is the outlook according to which the right to live with dignity is the right that a person should be guaranteed a minimum of material means, which will allow him to subsist in the society where he lives." (HCJ 366/03, Commitment to Peace and Social Justice Society v. Minister of Finance, IsrSC 60 (3) 464,. 482 (2005); and see also HCJ 5578/02 Manor v. Minister of Finance, IsrSC 59 (1) 729, 738 (2004)). The right to a minimum dignified subsistenceis what enables a person's material existence. As such, this right is of utmost importance and constitutes the cornerstone of a person's right to dignity and, sometimes, even to all the other rights. We know that poverty and hardship create a vicious cycle from which it is difficult for even the strongest to extricate themselves. This is a reality that creates feelings of alienation and lack of identification and smothers the hope for change. Without minimum living conditions, a person cannot exercise his freedom. Without minimum living conditions, a person cannot live a full and autonomous life and cannot become an active part of his society and his community. The following was written in this context:      Living in extreme poverty is analogous to a prolonged war of existential survival. Human beings who are forced, for various reasons, to live in the shadow of profound economic deprivation are constantly occupied with the attempt to find their next source of nourishment, a roof under which they can live and their ability to contend with extreme weather conditions… Many research papers indicate the fact that life in extreme poverty is closely connected to negative phenomena, both for the people existing in its shadow and for the society as a collective within which heavy economic deprivation exists… Societies in which extreme poverty exists contend with particularly high rates of domestic violence, drug abuse, debt and petty crime (Lia Levin, A "coalition of exclusion": Non take-up of social security benefits among people living in extreme poverty," 225, Access to Social Justice in Israel, Johnny Gal and Mimi Eisenstaedt, Ed., 2009)).

 

            Moreover, this reality of poverty and hardship has been threaded more than once through the other schisms that divide the society and cause the development of hostility and animosity between those who have plenty and those who cannot obtain even the most basic commodities.

 

7.         As part of the legal formulation of the right to a minimum dignified subsistence, there are two main questions facing the legislators, by which the right is also examined by the Court. First, the question of the scope of the right is examined. In other words, the question of defining the threshold for minimum subsistence – the existence of which the state is obligated to ascertain among all its residents. Second, the question of whether the means that were formulated to ascertain that all residents of the state enjoy that level of subsistence are examined, to see if they are fulfilling their role properly.

 

8.         In the present proceeding, only the second question requires our decision, since the Petitioners made no claim regarding the amount of the income support benefit. The question, therefore, pertains only to the manner of identifying those entitled to the income support benefit. The Respondents’ argument in this context is that maintaining or using a vehicle attests, in an absolute and universal manner, to the fact that the vehicle owner or user is not entitled to the income support benefit. This is because the conclusive presumption established in the Law reflects the assumption that the financial burden of maintaining a vehicle cannot be met by means of the income support benefit alone, and that the vehicle owner has additional income that has not been reported. In the context of vehicle usage, the meaning of the argument is that a benefit applicant did not correctly report his options for financial assistance in his immediate environment. My position, like the position of the president, is that this conclusive presumption violates the right to a minimum dignified subsistenceand is a violation that cannot stand.

 

9.         It should be noted that my opinion, like the opinion of the president, that there is nothing wrong with examining the assets of a benefit applicant for the purpose of evaluating his economic ability and to ascertain the veracity of his claims in everything pertaining to his financial status (paragraph 41 of her opinion). However, it is worth emphasizing in this context that the sole purpose of examining the assets is to check the real income of the benefit applicant. The manner in which a person spends the amount of the benefit lawfully given to him is completely within his discretion. Even though the state provides someone who is unable to provide for himself with a minimum dignified subsistence, it is not entitled to violate his autonomy and his choices by intervening in the way in which the benefit is used. If a person can reduce other expenses and save some of the benefit monies that are lawfully allocated to him in order to keep or use a vehicle, that fact cannot nullify his rights to the benefit as long as such savings do not attest to concealed assets and income.

10.       Violation of the right to a minimum dignified subsistencein this case, which stems from the conclusive presumption established in the Law, forces a person to choose between possession or use of a vehicle (even if those do not necessarily attest to the fact that he possesses unreported sources of income) – and receiving the benefit. This violation is particularly grave in cases in which the vehicle serves its owner (or someone who uses it) for basic daily needs, which are not included in the exceptions set forth in the Law. There are many areas of the country in which, without a vehicle, people cannot reach the grocery store, the health clinic or educational institutions. In that context it should be noted that even though a vehicle is not necessarily a basic product that is included in the right to a minimum dignified subsistence, it would be advisable to view this right as obligating the state to provide some means of transportation to its residents. This obligation, which is the positive aspect of the right to freedom of movement, places a particularly heavy burden where the state wishes to deny the use of a vehicle to residents who have no other means of transportation. Hence, denying the possibility of using a vehicle in those areas is an extremely grave violation. It should further be noted in this context that I have not disregarded the Petitioners' argument that the areas in which access to public transportation is particularly scarce are the peripheral areas and, in particular, the regions of Arab villages, and that too could cloud the issue of the constitutionality and proportionality of the section. In any case, once we determined in this proceeding that this section should be repealed due to its violation of the right to a minimum dignified subsistence, I need not delve deeply into this issue.

 

11.        As my colleague, the president, has elaborated on the details of the violation caused by the section, and as I have also briefly mentioned the extent of this violation, I will only add a few words with regard to the disproportionality of the section. It should be noted that there is no disagreement between the president and me with regard to the proper purpose of the section, which is preventing fraudulent receipt of the benefit, based on the general purpose of the Law, which is providing a benefit that will allow for a minimum dignified subsistenceto someone who cannot obtain it for himself. Similarly, and in my opinion, the Law conforms to the values of the State of Israel and there is a rational connection between the means set forth in the Law and the purpose that it endeavors to promote.

12.        In her opinion, my colleague, the president, states that the section does not pass the second subtest of the requirement for proportionality, which is the test of the less harmful means. In her opinion, an individual examination of the benefit applications can lead to fulfilling the purpose to the same extent with less violation of the right to a minimum dignified subsistence. The question of the manner of examining the second subtest has yet to be fully clarified in the case law of this Court. In general, there are those who assert that the guiding principle in examining this subtest is that the alternative means must fulfill the purpose of the legislation to the same extent (see: Aharon Barak, Proportionality in Law – Violation of the Constitutional Right and its Limitations, 399 (2010); HCJ 7052/03 Adalah v. Minister of Interior, IsrSC 61 (2) 202, 344 (2006) and at similar costs (see HCJ 466/07 MK Zehava Galon v. Attorney General (unpublished, January 11, 2012) (hereinafter: the Dual Citizenship Law case), in paragraph 38 of the judgment of Justice E. E. Levy)). In my view, in the case at hand, we cannot establish with certainty that an individual examination meets that threshold. Even without the Respondents providing actual data in the matter, it is clear to all that an individual examination would cost more than a general denial of the benefit. Similarly, it is reasonable to assume that the chance of receiving the benefit fraudulently increases where the presumption is not conclusive.

 

13.        I discussed the difficulty inherent in this concept of the subtest in the Dual Citizenship Law case:

 

             In this matter, the question may arise about the extent to which the alternative means must fulfill the purpose of the law –must the fulfillment be complete and identical or can we suffice with a high extent of fulfillment, albeit not identical (id., paragraph 12).

 

            And regarding the costs, I noted in HCJ 1213/10 Nir v. Speaker of the Knesset (not yet published, February 23, 2012) that:

 

             In my opinion, the concern is that the requirement of identical fulfillment without additional costs is liable to empty this subtest of content and to lead, almost always and inherently, to the conclusion that no means has a more proportional alternative (id., paragraph 48).

 

And that also holds true in the case before us, in which this issue arises. In this matter, I have seen fit to concur with the president's opinion, and to determine that the Law is unconstitutional for the reason that it does not pass the test of the less harmful means.

 

14.       With regard to the extent of fulfillment of the purpose, it seems that the purpose of the section is fulfilled to a lesser extent in the framework of individual examination. However, examination of the alternative means on the backdrop of the Income Support Law as a whole, shows that the alternative means may fulfill the purpose of the Law to an extent that is not less (and perhaps even more) than the manner in which it is fulfilled by means of the present section. As stated, the purpose of the Income Support Law is to allow anyone who is eligible for income support to receive the benefit. The presumption established in this section is an auxiliary mechanism for identifying those entitled to the benefit. Notwithstanding the fact that that mechanism prevents those who are not eligible from receiving the benefit, it also prevents many of those who are eligible from receiving it. As such, the mechanism established in this section impairs fulfillment of the internal purpose of the Law. The question before us, in the context of the second test of proportionality, is whether, on the whole, the purpose of the legislation is fulfilled to the same extent. In other words, we must examine whether the excessive violation in fulfilling the purpose of the particular law (which arises from excessive exclusion), which stems from the presumption, exceeds the violation that would be created by fulfilling the purpose of the same law if individual examination were to be adopted. The burden of proving that the purpose of the law would, indeed, be fulfilled to a lesser extent if the alternative mechanism were to be adopted, was not met by the Respondents in the case before us. Furthermore, even if the costs of the particular examination would make the mechanism for implementing the Law more expensive, that extra expense is not expected to be very significant because, in any case, with the current mechanism, the state operates a system of personal monitoring in order to ascertain the nonuse of a vehicle, which entails expenses that are not negligible. In any event, the Respondents also did not meet the burden of proving that the alternative means would fulfill the purpose with significantly higher costs.

 

15.       Finally, I believe, as does the president, and for the same reasons, that the section does not meet the third subtest, which is the test of proportionality in the narrow sense. As noted above, the income support mechanism is among the last of the assistance mechanisms available in Israel for a person who is not capable of supporting himself. As such, it is advisable to employ extreme caution when a person is denied this last protective mechanism. It is clear that the damage caused by a person who fraudulently obtains a benefit to which he is not entitled is immeasurably smaller than the damage that would be caused by a person being left without the minimum means of subsistence. It should be noted in this context that it is a well-known phenomenon that precisely the neediest are those who have trouble meeting the threshold of proof required for receiving state assistance, and the state is obligated to endeavor, to the best of its ability, to reduce the number of people entitled to the benefit who do not receive it (see, inter alia, Netta Ziv, "Law and poverty – what is on the agenda? Proposal for a legal agenda for those who represent people living in poverty," Alei Mishpat, D 17 (5765); Amir Paz-Fuchs, "Over accessibility and under accessibility to socioeconomic rights, "Din Vedevarim, E 307 (5770)). It should further be noted that even though there is always a fear that people who are not entitled to the benefit will receive it, in the case of the income support benefit, this concern is relatively limited. This benefit, even if it constitutes the breath of life for those who need it, does not allow for a life of wealth and abundance, and I doubt whether many would be willing to live at the minimum subsistence level if they are able to live at a higher standard of living, only for the purpose of exercising their eligibility to the benefit. In any case, even if someone would do such a thing, that is the reason that the authorities are given broad powers to investigate the benefit applicants and, if necessary, to prosecute anyone who defrauds the state authorities.

            

16.        In view of everything stated above, I concur with the opinion of the president.

                                                                        Justice

 

             Decided as stated in the judgment of President D. Beinisch, that the order nisi will become an order absolute in the sense that we declare the repeal of section 9A (b) of the Income Support Law, 5741-1980, due to its unconstitutionality. The repeal will go into effect within six months of this date, on September 1, 2012.

 

In the circumstances of the matter, there is no order for costs.

 

Given this day, 5 Adar 5772 (February 28, 2012).

 

 

The President   Justice      Justice      Justice

 

 

Justice             Justice      Justice

 

 

_________________________

Thiscopy is subject to editorial and textual changes10041690_N04.docAB

InformationCenter Tel; 02-65936666, websitewww.court.gov.il

HCJ  10203/03

 

"Hamifkad Haleumi" Ltd.

v

1.         Attorney General

2.         Broadcasting Authority

3.         Second Authority for Television and Radio

4.         National Labour Court                                           

 

 

The Supreme Court sitting as the High Court of Justice

[20 August 2008]

Before President D. Beinisch,  Justices  A. Procaccia, E.E. Levy, A. Grunis,

 M. Naor, S. Joubran, E. Hayut

 

Petition for order nisi to the Supreme Court sitting as the Supreme Court of Justice.

 

Facts: The petitioner is a private company working for the promotion of political program to solve the Israeli-Arab conflict. It applied to the respondents for permission to expose the public to the central principles of its political program by way of advertisements on television and radio. Due to the political contents of the advertisements the Authorities rejected the applications, relying on, respectively, Broadcasting Authority’s Rules - (Advertisements and Notifications on Radio) and the  Second Authority Rules (Ethics in Advertising in Radio Broadcast)  and (Ethics in Television Advertising) (hereinafter-the Rules).

The petitioner contested this refusal in the High Court of Justice, claiming that the Rules unconstitutionally infringed his right to freedom of political expression, which is a part of his right to human dignity, and was thus unconstitutional and invalid. The infringement did not comply with the conditions of the limitation clause because neither the Broadcasting Authority Law nor the Second Authority Law authorize any infringement of the freedom of expression, and a prohibition on broadcasting a political advertisement would not serve any legitimate public interest, because there are no grounds for distinguishing between other media avenues in which political content is permitted, and the advertising media in which it is prohibited. Moreover, the Rules are disproportionate, in terms of its various subtests, specifically in terms of their ability to attain their purpose and of being the least harmful means of achieving the purpose of the violation.

\

The respondents claimed that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to broadcast the political messages of the petitioners at the time, place, and manner requested by the petitioner, and the petitioner has no vested right to transfer information specifically by way of advertisements. The regular broadcasting framework is the appropriate framework for exercising freedom of speech, because the broadcasts must comply with the duty of balancing between different viewpoints, as opposed to the advertising framework which could be unfairly exploited by those with financial power. The law contains an express general authorization for prohibitions and restrictions on the broadcast of advertisements, leaving the specification of particular restrictions to the discretion of the administrative authority. Furthermore, channeling political speech into the appropriate framework of regular broadcasts, which is subject to the fairness doctrine and the duty of balancing, protects the equality of opportunity to present political opinions, and prevents a situation in which extensive dissemination of opinions is granted to those with financial means. Invalidation of the rules would undermine this doctrine which does not apply to the advertising framework, and enable the financially powerful bodies to purchase advertising time and be more effective in influencing social and political discourse without being subject to the restrictions attendant to the duty of balance prescribed by the Law. Moreover, imposing a blanket restriction is the most effective way of achieving the purpose, because invalidating the existing rules and imposing specific regulation would drag the regulator into the realm of political censorship.

 

Held: In a majority opinion, the petition against the legality and constitutionality of the Rules of the Broadcasting Authority and the Second Authority for Television and Radio, prohibiting broadcast of advertisement carrying political contents, was dismissed.

Per Justice Naor: The constitutionality of the Rules in this case must be decided based on the two stage examination: the first stage examines whether the Rules prohibiting political content in advertisements violate a right protected in the Basic law, and the second stage examines whether the Rules satisfy the requirements of the limitations clause.

In the case at hand, the Rules violate the freedom of political expression, which constitutes a violation of the constitutionally protected value of human dignity.  With respect to the second stage however the Rules satisfy the requirements of the limitation clause, insofar as the authorizing sections of the relevant legislation authorize the regulator to restrict the contents of the advertising broadcasts by conferring the authority to establish content based “restrictions” and “prohibitions” on the broadcasting of advertisements. Despite the absence of primary legislation determining the limits of its powers,  the legislative provisions establish requirements to ensure fair and balanced expression of all views to the public, and as such justify regulation of the communication marketplace and the Rules are consistent with that overall purpose and the fairness doctrine, that has been adopted in Israeli law, and they effectively achieve that purpose in a proportionate manner.

Per Justice Levy, The opposition to political advertisements is also and primarily supported by the fundamental consideration of the maintenance or at least the prevention of further deterioration, of the character of public discourse in Israel. Opening the broadcasting realm to political content poses a substantive danger to the quality of political discourse in Israel, and the relevant rules of the broadcasting authorities should be interpreted first and foremost with the goal of distinguishing between political expression and its commercial aspect. This form of analysis enables a synthesis between the purpose and the means adopted to achieve the appropriate purpose in a proportionate manner are satisfied by the ban on political advertising.

Per Justice Joubran, concurred with Justice M. Naor and held that  enabling the broadcast of political expressions on disputed  matters in the framework of paid advertisements would, in practice, spell the demise of the fairness doctrine in Israel, and given that the fairness doctrine is thoroughly anchored in the primary legislation, the rules satisfy the requirement of “explicit authorization”.

Per Justice Procaccia – Having reference to the two stage examination for purposes of constitutional review, held that in the case at hand, the prohibition on political advertisements does not violate the constitutional right to freedom of speech, including the freedom of political expression. The existence of a constitutional right to freedom of speech, including political expression does not necessarily mean that every possible means of expression is included in the right. According to its purpose, the scope of the right to political expression does not extend to expression in the form of paid advertisements by way of public media authorities. Political expression is given an extensive platform in the framework of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention

Per President Beinisch (dissenting view) - The authorization to establish limitations on the contents of advertising broadcast in the Broadcasting Authority Law and the Second Authority Law are general. The immense importance of freedom of political expression for the individual and for society and its contribution to the democratic process affects not only its constitutional status, but also the scope and degree of the protection given to such expression, and given that the absolute violation under the Rules significantly and severely violates the freedom of political expression, the general authorization does not suffice. The establishment of that kind of prohibition requires an explicit authorization that determines the fundamental principles governing the particular prohibition, even if only in general terms. As such, the absolute ban on the broadcast of political advertisements in the Rules was established without the appropriate statutory authorization, and as such in contravention of the first condition of the limitations clause.

Per Justice Hayut – Concurs with the President’s position that in the absence of an explicit authorization in primary legislation, rules restricting freedom of expression cannot stand, but in the case in point, section 86 (a) of the Second Authority Law satisfies the requirement of explicitness, and provides a statutory anchor for the Second Authority to prohibit political advertisements. The asymmetry thus caused between the Broadcast Authority and the Second Authority with respect to the same politically based advertisements is undesirable and points to the need for a standard statutory arrangement.

 

Petition rejected

Legislation Cited

Broadcasting Authority Law, 5725-1965, ss. 2,3,4,7(2) 25A (a)(1), 25A (b)2, 33, 85,

Broadcasting Authority (Amendment No. 8) Law 5753-1993,

Second Authority for Television and Radio Law, 5750-1990, 5, 5 (b)(7),5 (b) (10),  22, 24(a)(6). 46(a),46(a)(3), 47, 81, 86, 86(1), 88,

Basic Law: Human Dignity and Liberty, s.8

Basic Law: The Judiciary, s. 15 (d)(2)

Basic Law: Freedom of Occupation

Israeli Cases Cited

[1]     HCJ 259/84 M.I.L Israeli Institute for the Choice Product and Business Ltd v. Broadcasting Authority [1984], IsrSC 38(2) 673.

[2]     HCJ 1858/96 Assam, Investments Ltd v. Broadcasting Authority 1999], (not reported).

[3]     HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [1997], IsrSC 51(2) 790.

[4]     HCJ 226/04 Neto M.A Food Trade Ltd v. Second Authority for Television and Radio (2004), IsrSC 59(2) 519.

[5]     HCJ 7012/93 Shammai v. Second Authority for Television and Radio [2004] IsrSC 48(3) 25.

[6]     HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [2001], IsrSC 46(2) 701.

[7]     HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [1996] IsrSC 50(3) 379.

[8]     HCJ 4644/00 Jaffora Tabori Ltd v. Second Authority for Television [2000] IsrSC 54(4) 178.

[9]     HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd v. Committee for Cable Broadcasts and Satellite Broadcasts [2005], IsrSC 59(6) 21.

[10]   HCJ 951/06 Stein v. Commissioner of Israel Police [2006] (not reported). 

[11]   HCJ 4541/94 Miller v.Minister of Defense [1995] IsrSC 49(4) 94; [1995-6] IsrLR  178

[12 ]  HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior  [2004] (unreported)

[13]   HCJ 1661/05 Gaza Coast Regional Council v.Knesset [2005], IsrSC 59(2) 481.

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

[15]   CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 431; [1995] (2) IsrLR 1

[16]   HCJ 2194/06 Shinui- The Center Party v. the Chairman of the Central Elections Committee [2006] (not yet reported).

[17]   HCJ 4804/94 Station Film Co. Ltd. v. Film Review Boar [1997], IsrSC 50(5) 661.[1997] IsrLR 23

[18]   HCJ 6962/03 Media Most Company Ltd v. Council for Cable and Satellite Broadcast [2004], IsrSC 59(3) 14.

[19]   HCJ 806/88 Universal City Studios Inc v. Films and Plays Censorship Board [1989], IsrSC 43(2) 22; IsrSJ X 229

[20]  HCJ 2245/06 Dobrin v. Prisons Service  [2006] ( not reported).

[21]  HCJ 4593/05 United Bank Mizrahi Ltd v. Prime Minister

[2006] (not yet reported).

[22]   HCJ 606/93 Kiddum Yezumot v. Broadcasting Authority (1981)[1993], (IsrSC 48(2) 1.

[23]  HCJ 5432/03 SHIN, Israeli Movement for Equal Representation of Women v. Council for Cable TV and Satellite Broadcasting (2004), IsrSC 58(3) 65.

[24]   CA 723/74  Ha'aretz Daily Newspaper Ltd. and Others v. The Israel Electric Corporation Ltd. and Another [1977], IsrSC  31(2) 281.

[25]   PPA 4463/94 Golan v. Prisons Service Authority [1996]136, [1995-6] IsrLR 489

[26]   HCJ 5016/96 Horev v. Minister of Transport [1997], IsrSC 51(4). [1997] IsrLR 149

 [27] HCJ 6396/93 Zakin v. Mayor of Be’er Sheva 1999], IsrSC 53(3) 289.

 [27]  HCJ 11225/03 Bishara v. Attorney General -[2006] (1) IsrLR 43

[28]  HCJ 6226/01 Indoor v. Jerusalem Mayor  [2003], IsrSC 57(2) 157.

[29]   CA 4534/02 Shoken Network Ltd. v. Herzkowitz [2004], IsrSC 58(3) 558.

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

[31]   HCJ 2481/93 Dayan v. Wilk  [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324

[32]   HCJ  2557/05 Mateh Harov v. Israel Police [not reported].

[33]   LCA 10520/03 Ben-Gvir v. Dankner [2006].

[34]   LCA 2687/92 Geva v. Walt Disney Company [1993], IsrSC 48(1) 251.

[35]   HCJ 6126/94 Szenes v. Broadcasting Authority [1999], IsrSC 53(3) 817, [1998-9] IsrLR 339

[36]   HCJ 6893/05 Levy v. Government of Israel [2005], IsrSC IsrSC 59(2) 876.

[37]   HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [2006] (not yet reported).

[38]   HCJ 953/01 Solodkin v. Beth Shemesh Municipality [2004], IsrSC 58(5) 595.

[39]   HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd v. Second Authority for Television and Radio [1996] IsrSc 49(5) 751.

[40]   HCJ 4520/95 Tempo Beer Industries Ltd v. Second Authority (1995) (not published).

[41]   HCJ 7144/01 Education for Peace v Broadcasting Authority (2002), IsrSC 56(2), 887. Peace Block v. Broadcasting Authority

 [42]  HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for Twelfth Knesset [2003], IsrSC 57(1) 750.2117

[43]   HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security  [2004], IsrSC 58(2) 741.

[44]   HCJ 5936/97 Dr. Oren Lam v. Director General, Ministry of Education and Sport [1999], IsrSC 53(4) 673.

[45]   HCJ 3267/97 Rubinstein v. Minister of Defenseשגיאה! הסימניה אינה מוגדרת. [1998], IsrSC 52(5) 481, [1998-9] IsrLR 139

[46]  HCJ 6971/98 Paritzky v. Government of Israel [1999], IsrSC 53(1) 763.

[47]   HCJ 11163 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel [2006] (not yet reported) [2006] (1) IsrLR 105.

[48]   HCJ 10338/03 Wesh Telecanal Ltd v. Minister of Communications [2006].

[49]   HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior Adalah [2006] (not yet reported) [2006] (1) IsrLR 443

[50]   HCJ 4769/95 Menahem v. Minister of T0ransport [2002] IsrSC 57(1) 235.

[51]   HCJ 2888/97 Novik v. Second Authority for Television [1997], IsrSC 51(5) 193.

[52]   HCJ 6218/93 Cohen v. Israel Bar Association  [1995], IsrSC 49(2) 529.

[53]   HCJ 1/81 Shiran v. Broadcasting Authority [1981], IsrSc 38(3), 365.

[54]   HCJ 399/85 Kahane v. Managing Committee of the Broadcasting Authority [1987], IsrSC 41(3) 255. 

[55]   HCJ 4915/00 Reshet Communications and Production Company v. Gov’t of Israel [2000], IsrSC 54(5) 451.

[56]   HCJ 5933/98 Documentary Creators Forum v. President of the State (2000) IsrSC  54(3) 496.

[57]   AAA 3307/04 Kol Acher BeGalil v. Misgav Local Council [2005],

[58]   CrA 71/93 Flatto Sharon  v. State of Israel [1984], IsrSC 38(2)757.

[59]   HCJ 7833/96 Melnik v. Second Authority for Television and Radio [1998], IsrSC 52(3) 586.

[60]   HCJ 73/53 Kol Ha’Am Ltd. V. Minister of the Interior [1953], IsrSC 7, 871.

[61]   HCJ 316/03 Bakri v. Film Censorship Board [2003] IsrSC 58(1) 249 [2002-2003] IsrLR 487

[62]   HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [2007] (unreported).

[63]   HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v Director of Sabbath Work Permits [2005], (unreported).

[64]   HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance [1997], IsrSC 51(4), 367.

[65]   HCJ 1893/92 Reshef v. Broadcasting Authority [1992], IsrSC 46(4) 816.

[66]   HCJ 3434/96 Hoffnung v. Knesset Speaker [1996], IsrSC 50(3) 57

[67]   HCJ 8035/07 Eliyahu v. Government of Israel [2008], (not yet reported) IsrLR 2008

[68]   HCJ 757/84 HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1987], IsrSC 337.

[69]   CA 723/74 Ha’aretz Daily Newspaper Ltd. v. The Israel Electric Corporation Ltd  (1977), IsrSC 31(2) 281.

[70]   HCJ 9596/02 Pitzui Nimratz, Experts for Realization of Medical Rights and Insurances v. Minister of Justice (2004), 792.

[71]   CA 506/88 Shefer v. State of Israel (1993), 87.

[72]   HCJ 337/81 Miterani v. Minister of Transportשגיאה! הסימניה אינה מוגדרת. (1983), IsrSC 37(3), 337.

[73]   CA 524/88 Pri HaEmek Agricultural Cooperative Society Ltd v. Sedei Yaakov Workers S   Settlement Ltd [1991] IsrSC 48(4) 529.

[74]   HCJ 144/72 Lipevski-Halipi v. Minister of Justice [1973], IsrSC 27(1) 719.

[75]   CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006], (not yet reported). [2006] (1) IsrLR 320

[76]   HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures [2002], IsrSC 56(6) 25, 25

[77]   HCJ 11163/03  Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [2006] [2006] (1) IsrLR 105.

[78]   HCJ 256/88 Medinvest Herzliya Medical Center v. CEO of. Minister of Health [1989]  IsrSC 44(1) 19.

[79]   HCJ 2740/96 Chancy v. Supervisor of Diamonds [1997]), IsrSC 51(4) 481

 [80] HCJ 7083/95 Sagi Tzemach v. Minister of Defense [1999], IsrSC 53(5) 241, [1998-9] IsrLR 635

[81]   HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [2006] (not yet reported

[82]   HCJ 3648/97  Stemkeh . v. Minister of the Interior [1999] IsrSC 53(2) 728.

[83]   HCJ 5503/94 Segel v. Knesset Speaker [1997] IsrSC 51(4) 529.

[84]   LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents [2006] (not yet reported)

[85]   CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[86]   CrimA 2831/95 Alba v. State of Israel [1996] IsrSC 50(5) 221.

[87]   HCJ 1435/03. A v. Haifa Civil Servants Disciplinary Tribunal [2003] IsrSC 58(1) 529

[88]   HCJ  326/00 Municipality of Holon v N.M.C. Music Ltd [2003], IsrSC 57(3) 658.

[89]   HCJ 3420/90 The Daily Newspaper Union in Israel v. The Minister of Education and Culture [1991], IsrSC 48(2) 24.

[90]  HCJ 1/49 Bajerno v. Minister of Polic [1949], 2 IsrSC 80,82)

[90]   HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [2002] IsrSC 56(5) 393.

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

[92]  HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

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

[94]   HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [1998] IsrSC 52(2) 193

[95]   HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[96]   HCJ 2223/04 Levi v. State of Israel [2006] (not yet reported).

[97]   HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[98]   HCJ 8487/03 IDF Invalids Organization v. Defence Minister (2006) (not yet reported).

[99]   HCJ 11956/05 Suhad Bishara. v. The Ministry of Construction and Housing (2006) (not yet reported).

[100] HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [1998], IsrSC 52(4) (1998).

[101]     HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner (2006) (not yet reported). [2006] (2) IsrLR 331

[102]   HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330

 

 

For the Petitioner –                 Motti Arad, Hila Goldberg

For Respondents 1 – 2                         Avi Licht

For Respondent 3 –                  Yair Eshael, Liat Benmelekh, Nachi Ben-Or

 

JUDGMENT

 

Justice M. Naor

Are the prohibitions on the broadcast of an advertisement with a political subject, as prescribed in the Broadcasting Authority (Radio Advertisements and Announcements) Rules 5753-1993, and in the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules 5759-1999,  void in that they are an unconstitutional violation of freedom of speech? This is the question confronting us in this petition.

The facts

1.    The petitioner is a private company that incorporated in Israel in 2002.  It promotes an initiative for a permanent solution to the Israeli-Palestinian conflict. In the framework of this initiative, Mr. Ami Ayalon, who until 6.12.2004 served as the chairman of the petitioner’s directorate, together with Mr. Sari Nusseibeh formulated a document entitled the “Declaration of Principles” (hereinafter: "the Document"). The petitioner sought to expose the Israeli public to the contents of the Document and to encourage the public to sign it. To that end, the petitioner prepared advertisements for radio. The advertisements directed the listeners to the petitioner’s Internet site and to a telephone number from which they could obtain further details concerning the initiative (hereinafter: "the advertisements"). The wording of the six advertisements, all sharing a similar conception, was attached to the petition.  One reads as follows:

‘Ami Ayalon

I say to you: the political reality in this region can be changed.

               A declaration of principles has been signed between Israeli and Palestinian citizens.

               It preserves our red lines, which are a Jewish democratic state without the right of return. We have partners on the other side and many of them have signed. Join us now .... Together, you and I can [bring about] change.

Hamifkad Haleumi – Citizens Sign an Agreement.

Telephone: 03-9298888 or Internet www.mifkad.org.il’

Respondent 2 (hereinafter: "the Broadcasting Authority"), which is responsible for broadcasting programs and advertisements on national radio stations, approved broadcast of the advertisements on channels B, C and 88FM from 14 – 28 September 2003. On 19 October 2003, respondent 3 (hereinafter: "the Second Authority"), which is responsible for the broadcast of programs and advertisements on the regional radio stations, announced its refusal to approve the advertisements, in that they dealt with a “political issue which is the subject of public controversy”, and because their entire "purpose was to 'enlist support' for a particular position on an issue which is the subject of public controversy.” The Second Authority directed the attention of the Broadcasting Authority to its decision, in the wake of which the Attorney General, on 29 September 2003, instructed the Broadcasting Authority to discontinue the advertisements because they dealt with “a political-ideological matter which was the subject of public controversy”. On 21 October 2003, the Broadcasting Authority notified the petitioner that it could no longer approve the broadcast of the advertisements on national radio. On 23 October 2003 the petitioner lodged appeals against the decisions of the Broadcasting Authority and Second Authority. On 13 November 2003 the Second Authority dismissed the appeal, and on 16 November 2003 the petitioner received the answer of the Broadcasting Authority Appeals Committee, which likewise dismissed the appeal that had been lodged.

The original petition and the granting of order nisi

2. On 16 November 2003 the petitioner filed a petition (hereinafter: "the original petition") contesting the decisions of the Broadcasting Authority and the Second Authority prohibiting the broadcast of the advertisements, arguing that they were void due to their grave and unconstitutional violation of the petitioner’s freedom of speech. The next day the petition was heard by the Court (President Barak, and Justices Türkel and Hayut) together with an additional petition. As noted by the petitioner (s. 154 of its summations), it was proposed at the hearing to separate the two petitions: HCJ 10182/03 T.L. Education for Peace Ltd. v. Broadcasting Authority (judgment in which was given on 25 November 2004 (hereinafter: HCJ 10182/03 Education for Peace)) would focus on the question of whether the specific advertisement under discussion complied with the Rules; and the hearing of the present petition would concentrate on the question of the constitutionality of the Rules themselves, with the petitioner demanding to disqualify the Rules on the assumption that the specific advertisement does not comply with them as they currently stand.  In the course of the hearing the petitioner therefore requested to limit the remedies sought in the original petition. Following receipt of the response to this request, on 29 July 2004 an order nisi was granted (Justices Cheshin, Rivlin and Hayut) as requested for the three heads of the original petition. The order was directed at the Broadcasting Authority and the Second Authority, ordering them to show cause why the Court should not issue the following declaration:

1. The refusal of respondents 2 and 3 to allow the broadcast of the petitioners’ advertisements, as per the formulation requested in the application attached to this petition as appendix A ... is unlawful in view of its unconstitutional violation of the petitioner’s freedom of speech. Accordingly, the decisions of respondents 2 and 3 should be reversed and the advertisements permitted.

2.            Section 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993, which prohibits the broadcast of advertisements "on a matter which is the subject of public political-ideological controversy”, is invalid, since it unconstitutionally violates freedom of speech.

3. Section 5 of the Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 which prohibit the broadcast of an advertisement “regarding a matter which is the subject of political or ideological controversy” are invalid by reason of their unconstitutional violation of freedom for speech.

            The amended petition and the expansion of the bench

3.         On 6 December 2004 Mr. Ami Ayalon resigned from his position as chairman of the petitioner’s Board of Directors. Following this, the petitioner submitted a request to amend the original petition. On 26 January 2005 the Court (Justices Rivlin, Hayut and Adiel) granted the petitioner’s request and ordered that an amended petition be filed (hereinafter: "the amended petition"). On 27 January 2005 the same panel decided that the hearing should be held before an expanded bench, and on 1 February 2005 the amended petition was filed. On the same day President Barak ruled that the amended petition would be heard by an expanded bench. On 29 November 2005 the amended petition was heard by the expanded bench (President Barak, Deputy President Cheshin, and Justices Beinisch, Procaccia, Naor, Hayut and Adiel). The parties persisted in their request that the Court decide on the fundamental question of the constitutionality of the Rules. Following the retirement of President Barak and Deputy President Cheshin, and in view of the petitioner’s request, on 29 April 2007 the petition was heard by a new bench (President Beinisch, and Justices Procaccia, Levy, Grunis, Naor, Joubran and Hayut). The petitioner again requested that a ruling be given on the fundamental issue of the constitutionality of the rules. The hearing focused on ss. 2 and 3 of the order nisi (regarding the constitutionality of the Rules). The petitioner no longer insisted on s. 1 of the order nisi (permitting the broadcast of the advertisements as specified in the petition), because the petitioner and the Broadcasting Authority had already agreed, on 25 November 2004, on a new format for the advertisement, which was approved for broadcast on the Voice of Israel.

            This brings us to the decision on the issue of the constitutionality of the Rules, and we will begin with a description of the existing statutory arrangement.

            The normative framework – advertising in broadcasts of the Broadcasting Authority 

            4.         The Broadcasting Authority is a statutory corporation, established by virtue of the Broadcasting Authority Law, 5725-1965 (hereinafter: "Broadcasting Authority Law"). The Broadcasting Authority Law authorized the Broadcasting Authority to broadcast advertisements that are presented to the public as a government service (ss. 2 and 3 of the Law; see HCJ 259/84 M.L.I.N. Israeli Institute for the Choice Product and Business Ltd. v. Broadcasting Authority [1], at p. 673). As elucidated below, the Law explicitly authorized the Broadcasting Authority to broadcast advertisements on the Voice of Israel radio station; with respect to television advertising, the Law permitted only sponsorship advertisements, subject to certain limitations (see Yuval Karniel, The Law of Commercial Communication, at p. 162 (2003)).

            Regarding television broadcasts it has been held that “the Broadcasting Authority Law contains no provision, explicit or implied, authorizing the Broadcasting Authority to broadcast commercial advertisements, and according to the nature and the purpose of the Law, no such authority may be attributed to it. Nonetheless, this Court is not prepared to vacate the Broadcasting Authority’s decision to broadcast service advertisements aimed at increasing public awareness on various national, public subjects, and  sponsorship advertisements intended as an acknowledgement on the Authority’s part of the assistance given by a particular commercial company in the production of the program, provided that it involves no direct advertising message” (see HCJ 1858/96 Osem Investments Ltd. v. Broadcasting Authority [2], para. 6).

            Regarding radio broadcasts, the Broadcasting Authority (Amendment No. 8) Law 5753-1993 added Chapter Four A to the Broadcasting Authority Law. When that amendment came into force, Basic Law: Human Dignity and Liberty was already in force, though in fact, the petitioner did not challenge the amendment, but rather the rules of the Broadcasting Authority that were made by virtue thereof. In the said chapter, the Broadcasting Authority was granted explicit statutory authorization to broadcast advertisements and announcements on radio (only) for payment. Section 25A(a)(1) of the Broadcasting Authority Law provides as follows: 

‘The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: “advertisements and announcements”), and commission them, prepare them or produce them by itself or through one or more other people, as determined by tender.’

Accordingly, s. 25A(b)(2) of the Broadcasting Authority Law (hereinafter: "the Broadcasting Authority authorization section", and see also s. 33 of the Broadcasting Authority Law) authorized the Management Committee of the Broadcasting Authority to prescribe rules regarding prohibitions and restrictions on the broadcast of advertisements and announcements on radio:

‘25A. Advertisements and Announcements on Radio

              ….

(b) The management committee shall determine, in consultation with the Director General, rules concerning - 

         …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’.

            This distinction authorizing the Broadcasting Authority to broadcast advertisements on radio but not on television has ramifications for the sources of funding of the Broadcasting Authority as a public broadcasting agency, since “broadcasts on Channel One are funded primarily by the television fees paid by all citizens of the State who own a television set” (HCJ 6032/94 Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 808; see also “Report of the Committee for Examining the Structure of Public Broadcasting in Israel and its Legal and Public Status” (1997) at p. 59 (hereinafter: "Structure of Public Broadcasting Report")). Accordingly, it was determined that to the extent that the Broadcasting Authority seeks to expand its funding sources through advertisements on radio and television, it must do so by way of legislation (see Reshet Communications and Productions Company (1992) v. Broadcasting Authority [3], at p. 809). Indeed, the authority to broadcast advertisements on radio and television is, as stated, grounded in legislation, and the prohibition on radio broadcasts of advertisements also has its source in legislation, i.e. in s. 25A(b)(2) of the Broadcasting Authority Law.

            5. By virtue of s. 25A(b)(2) of the Broadcasting Authority Law, the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993 (hereinafter: "Broadcasting Authority Rules" or "the Rules") were laid down.  Section 1 of the Broadcasting Authority Rules provides the following definitions of “advertisement” and “announcement”:

‘“Advertisement” – an advertising broadcast, sponsorship broadcast, or an announcement, broadcast on radio in consideration for payment to the Authority.

“Announcement” - the relaying of information to the public.’

            Section 4 of the Broadcasting Authority Rules specifies those advertisements the broadcast of which is prohibited:

‘The Director General will not approve the broadcast of an advertisement prohibited under Chapter C. In addition to the provisions of Chapter C, he is authorized to deny approval for the broadcast of an advertisement that is publicly or morally reprehensible or offensive to good taste or to public order, or damaging to the public.’

            The relevant section in Chapter 3 of the  Rules, referred to in s. 4 above, is s. 7(2) which establishes the prohibition on the broadcast of party propaganda or a matter that is the subject of public political or ideological controversy:

‘7.It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters.’

By virtue of the section of this rule relating to a broadcast on a matter that is the subject of public political or ideological controversy, the Broadcasting Authority disallowed the petitioner’s radio advertisements, in accordance with the instructions of the Attorney General (see also s. 8 of the Broadcasting Authority Rules, which relates to sponsorship advertisements on radio).

In this context it is also important to mention s. 4 of the Broadcasting Authority Law, which establishes the principle of balance in programs of the Broadcasting Authority:

‘4.  Ensuring Reliable Programs

The Authority shall ensure that programs accommodate the appropriate expression of different approaches and points of view current among the public, and that reliable information is transmitted.’

The Normative Framework – Advertising in Broadcasts of the Second Authority

            6. The Second Authority is a statutory corporation, established by virtue of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "Second Authority Law"). Its role is the presentation and oversight of broadcasts in accordance with the provisions of the Second Authority Law (s. 5; see also I. Zamir, Administrative Authority, vol. 1  (1996) 395; and see HCJ 226/04 Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 522).

It will be stressed that as public corporations, both the Broadcasting Authority and the Second Authority are “subject to full judicial review, similar to any other administrative authority. As a body fulfilling a public function under law, in the words of s. 15(d)(2) of Basic Law: The Judiciary,  the public corporation is subject to the review of the High Court of Justice and to the laws of public administration” (Zamir, Administrative Authority, at pp. 400-401). "The public media – television and radio - operate in Israel by virtue of legislation. From the perspective of Israeli law they are governmental bodies"(Aharon Barak, "The Tradition of Freedom of Speech and its Problems”, Mishpatim 27 (1997), 223, 237).    

Unlike the Broadcasting Authority, the broadcasts of the Second Authority are executed by broadcasting franchisees (hereinafter: “franchisees” and see s. 5 of the Second Authority Law). The franchisees are subject to the oversight of the Second Authority (s. 5 of the Law). The broadcasts themselves are at the franchisees’ expense, and s. 81 of the Second Authority Law provides that the franchisee “is permitted to include advertisements within the framework of its broadcasts in consideration for payment at the rate that it determines” (hereinafter: “the framework of advertisements”). One of the franchisees’ main sources of funding is the broadcast of advertisements (Hanna Katzir, Commercial Advertising (2001) at p. 168).  In accordance with the recommendations of the Report of the Committee for Investigation into a Second Television Channel in Israel (1979), the framework of advertisements was likewise subjected to the statutory arrangement (see Report, at pp. 41-43).

The Second Authority Law states that the Second Authority is authorized to prevent “prohibited programs” (s. 5(b)(10) of the Second Authority Law) as well as prohibited advertisements, as stated in s. 86 of the Second Authority Law, which provides as follows:

‘A franchisee shall not broadcast an advertisement  –

(1)          On subjects the broadcast of which is prohibited under section 46(a);

(2)          On behalf of a body or organization the aims of which, all or in part, involve subjects as aforesaid in paragraph (1) or labor disputes.’

            The relevant sub-section of s. 46(a) of the Second Authority Law, to which the said s. 86(1) refers, lays down prohibitions on broadcasts (that are not advertisements) involving party propaganda, and includes additional prohibitions prescribed by the Second Authority Council in its rules:

‘A franchisee shall not broadcast programs that contain -

   …

   (3)       party propaganda, except for election propaganda that is permitted by law;

   (4)       a breach of a prohibition set by the Council in its Rules, under another provision of this Law.

            Sections 24(a)(6) and 88(2) of the Second Authority Law (hereinafter: “the authorizing provisions of the Second Authority”) authorize the Council of the Second Authority to make rules concerning subjects of advertisements, the broadcast of which prohibited:

24. Establishing Rules

(a)          The Council, on its own initiative or at the request of the Minister and subject to the provisions of the First Schedule, or the Second Schedule where applicable by virtue of the provisions of section 62C, shall make rules concerning broadcasts, their execution, and oversight thereof, as it deems necessary for realizing the purposes of this law, and including in matters of -

…

Prohibited programs as stated in section 46;

…

The subjects, style, content, scope and timing of advertisements that are permitted under this Law;

 

88.  Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, and inter alia, concerning the following matters:

The format of advertisements and the mode of their presentation;
  Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities.'

7.    Accordingly, the Second Authority Council enacted the Second Authority for Television and Radio (Ethics in Radio Advertisements) Rules, 5759-1999 (hereinafter: “Second Authority Radio Rules”), pursuant to ss. 24 and 88 of the Second Authority Law. Section 5 of the Second Authority Radio Rules establishes the prohibition on advertising that imparts a political, social, public or economic message that is the subject of public controversy:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The Second Authority disqualified the petitioner's advertisements under this rule (an identical rule appears in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertisements) Rules, 5754-1994).  The Second Authority's decision, dated 19 October 2003, noted that indeed, "further to the above, and beyond that which is necessary, we feel that the said advertisement constitutes real party propaganda, which is prohibited under s. 46(a)(3) of the abovementioned Second Authority Law as well."  However, as noted, s. 46(a)(3) was not the reason for the disqualification, and it was added only as an extra precaution (on the sanction against a franchisee who broadcast on a matter that was prohibited, see s. 49(a) of the Second Authority Law).

            In this context it is important to mention s. 47 of the Second Authority Law, which establishes the obligation of balance in the Second Authority's programs:

'47. Providing the Opportunity for Response

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, proper expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules on providing an opportunity to respond in a manner fitting the circumstances, for those who are, or are liable to be, directly harmed by the programs.'

Regarding the duty of balancing, see also s. 5(b)(7) of the Second Authority Law, which determines that in the fulfillment of its obligations, the Second Authority shall act "to broadcast reliable, fair and balanced information"; s. 5(b)(6)  sets one of its obligations as "giving expression to the cultural diversity of Israeli society"; and s. 46(c) of the Second Authority Law states with respect to franchisees that "a franchisee shall not, in its programs, directly, or indirectly, in writing or in any other form, give any expression to its personal views, and if it is a body corporate – the views of its directors or of interested parties therein."

The Question that Arises in the Petition: The Constitutionality of the Rules

            8.         As we have said, the amended petition seeks the invalidation of s. 7(2) of the Broadcasting Authority Rules and of s. 5 of the Second Authority Rules, on grounds of unconstitutionality.  We will quote the Rules once more:

S. 7(2) of the Broadcasting Authority Rules:

‘7.          It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

                                    …..

 Party propaganda or a broadcast on a matter that is the subject of a public political or ideological controversy, including a call for a change in the legislation concerning these matters.'

Section 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules, 5754-1994 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994  are identical in their wording:

'A franchisee shall not broadcast an advertisement that imparts a message on a political, social, public, or economic matter that is the subject of public controversy.'

The parameters of the dispute – two clarifications

At the outset of our discussion, it is important to clarify two matters.

First, the concern of both this petition and the order nisi of 29 October 2004 is the question of principle – the constitutionality of the Rules, and not the applied question – whether and how the advertisements violate the Rules. As we said, in the hearing of 17 November 2003 the petitioner already agreed to a point of departure whereby the advertisements violated the Rules (and it will be noted that on 25 November 2004, the petitioners and the Broadcasting Authority reached an agreement regarding the wording of a new advertisement, which was approved for broadcast on The Voice of Israel).

It will be emphasized that the question of the constitutionality of the Rules was not decided in HCJ 10182/03 Education for Peace (by the panel comprising President A. Barak, and Justices Y. Türkel and E. Hayut), which dealt only with the interpretation and the application of the Rules. As stated there, “our assumption is that the prohibiting provisions that require interpretation were enacted for a proper purpose, and their violation of the freedom of speech does not exceed the proportionate violation that is required to achieve the underlying purpose of the prohibition" (ibid, para. 8). This assumption will be examined in the present petition.

Secondly, in our case the question is not whether an advertisement on a subject of public political controversy as defined in the Rules (hereinafter: “political advertisement”) also constitutes party propaganda as per the opening section of s. 7(2) of the Broadcasting Authority Rules and s. 46(a)(3) of the Second Authority Law. The parties' pleadings focused on the “political” content element of the petitioner’s advertisements and not on the petitioner's prima facie “party” character element.  Furthermore, on the factual level, the Broadcasting Authority’s decision did not rely on the grounds of "party propaganda", whereas reliance upon those grounds in the Second Authority’s decision was only an added precaution. Accordingly, in the framework of the petition we are not required to consider invalidation on the grounds of "party propaganda". Consequently, we are not required to consider the factual aspects of the petitioner’s apparent connections with political parties, nor need we consider the nature and character of “party propaganda” by way of advertisements other than during the pre-election period or in the context of elections (for interpretation of the term “party propaganda”, see HCJ 7012/93 Shammai v. Second Authority [5], at p. 33). In that case the Court did not adopt a position regarding the Second Authority Rules – see para. 7 of the judgment. On the other hand, regarding interpretation of the term “election propaganda”, see HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee [6], at p. 701). Indeed, the subject of propaganda broadcasts is regulated in separate legislation, which  permits the broadcast of propaganda under certain conditions immediately prior to elections (See Elections (Modes of Propaganda) Law, 5719-1959, which inter alia imposes restrictions on radio and television  broadcasts (ss. 5, 15, 15A, and 15B,  and see also s. 16D(b);  see also Elections (Modes of Propaganda) (Propaganda Broadcasts on Regional Radio in the Elections for Local Authorities) Rules, 5758-1998; see further in Katzir, Commercial Advertising, at pp. 257-259). In our case, as noted, the decisions of the Broadcasting Authority and the Second Authority were not based on these grounds of invalidation. In any case, in view of the wording of the order nisi that was issued, the question of the constitutionality or the interpretation of the provisions regarding propaganda does not arise here.

It will be emphasized that in HCJ 10182/03 Education for Peace, too, the Court did not consider the question of whether party propaganda can be attributed to a body that is not a “party” as defined in s. 1 of the Parties Law, 5752-1992, but some of whose members have a party-political identity (see HCJ 10182/03 Education for Peace, para 10).

10. We will therefore consider only those grounds of invalidation relating to "a broadcast on a matter that is the subject of public political or ideological controversy" (as per the wording of the Broadcasting Authority Rules); or a broadcast "imparting a message on a political, social, public, or economic matter that is the subject of public controversy" (as per the wording of the Rules of the Second Authority). This is the focus of the discussion in the petition.

The petitioner’s claims

11. The petitioner claims that the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. Freedom of speech is not merely a basic right, but a constitutional right by virtue of Basic Law: Human Dignity and Liberty. It is argued that by virtue of their political character, the advertisements are protected under the rubric of freedom of political, rather commercial expression, even though the means is advertising. The advertisement is a form of political expression, and as such is entitled to the highest possible degree of protection within the scale of protections of freedom of speech.  It was further argued that the respondents are not intended to serve as a platform only for those views that enjoy public consensus; they must serve as a platform for the expression of the full spectrum of views and beliefs in a society, and this too – not only in the framework of the broadcasting of programs but also in the framework of the advertisements that are broadcast. In the words of the petitioner: “Advertising time [which] is a strip of transmission that constitutes, in effect, a free platform for the public, in the framework of which it can acquire “air time” for the airing of its opinions and beliefs…. Advertising time in the media is the modern town square in which any person who so wishes can set up his own soap-box, stand on it, and voice his controversial political opinions in an attempt to win over his audience (paras. 42 and 44 of the petitioner’s summations).

The petitioner maintains that the Rules violate a constitutional right protected by Basic Law: Human Dignity and Liberty, and that they were enacted after the enactment of the Basic Law (in 1993 and 1999); therefore, they must satisfy the conditions of the limitation clause (s. 8 of the Basic Law).

The central argument in this context is that the first condition of the limitation clause is not satisfied, i.e. that the violation be “by law or according to said law by virtue of explicit authorization therein.” The petitioners claim that neither the Broadcasting Authority Law nor the Second Authority Law authorize any violation of the freedom of speech, and that to the extent that such authorization exists, its interpretation must reflect the importance of the constitutional right. The petitioner raised no arguments relating to the second condition.  Regarding the third condition of the limitation clause – that the violation be for a proper purpose – it was argued that the prohibition on the broadcast of a political advertisement would not serve any legitimate public interest.  The public interest that might be relevant – equality of opportunity to present political opinions – does not merit protection. According to the petitioner, there is no presumption that certain types of political views enjoy broader financial support than other views. It was also argued that in any case, economic equality between entities seeking exposure for their political views through other media, such as the printed press, the internet, billboards, notice-boards, and direct mailing to addressees does not exist; nevertheless, there is no prohibition on “political” broadcasts via such avenues. This indicates that a restriction specifically on radio and television advertising requires special justification, which would provide a satisfactory explanation for the distinction between radio and television on the one hand, and the other media mentioned above.  At all events, our concern here is with a vertical balance between the applicant’s freedom to publish a political expression and the interests of those with limited financial means who are not able to do so. Here, the balance tilts in favor of the applicant’s freedom of speech in publishing his political expression. Another public interest that is arguably relevant – the interest of balance and objectivity in the state broadcasting media – does not merit protection either. According to the petitioner, this argument is not valid in relation to the Broadcasting Authority, because the advertisements are included in the broadcasting slot intended for advertisements and can be identified as such, so that the listener knows that the opinion expressed in the advertisement is not that of the Broadcasting Authority. The argument is similarly inapplicable to the Second Authority, because the regional radio stations are not owned by the State (even though they are subject to the oversight of the Second Authority). The petitioner also rejects the argument concerning the “captive audience” that is forcibly exposed to the advertisements, saying that in any case, political opinions are conveyed to the public via all the printed and electronic media, and this is the desirable situation which should be encouraged.  Finally, the petitioner claims that the Rules do not satisfy the fourth condition of the limitation clause, i.e. the condition of proportionality.  In this context it was argued that the Rules are sweeping and absolute to the extent that they disqualify any advertisement on a publicly controversial subject, without determining criteria for such disqualification and without specifying exceptions. The petitioner claims that “in order to protect the interests specified in the respondents’ summations, it would be more correct to establish a framework for and restrictions on the broadcast of political advertisements, and not to ban them absolutely".  There are three ancillary tests for proportionality, and the Rules fail the first and the second of them. Regarding the first test (the test of suitability), it was argued that the means employed by the Rules fail to achieve their purpose, because the political opinions that are barred from broadcast are presented and disseminated to the public via all the other media. Regarding the second test (the test of the lesser harm) it was claimed that the means selected by the Rules do not represent the less harmful solution, since it would have been possible to formulate more specific rules that included criteria for disqualification and exceptions to disqualification, instead of the absolute and sweeping ban on all political advertisements.

The petitioner argues that invalidation of the Rules will enable a person holding a political opinion whose view did not receive exposure (or sufficient exposure) in regular broadcasts to express his views at his own expense in a recognized framework of political advertisements. In its absence, his access to the public is blocked and he is condemned to silence.

As for the concerns expressed by the respondents in their response (as elucidated below), the petitioner’s response is that political advertisements in the overall framework of advertising broadcasts can occupy only a “minute percentage” of the air time of the broadcasting channels relative to total broadcasting time, so that the concerns expressed by the respondents are not as serious as claimed.

Therefore, according to the petitioner, the Rules violate freedom of speech and do not satisfy the conditions of the limitation clause. The obvious remedy is the invalidation of the Rules due to their unconstitutionality.

Arguments of the Broadcasting Authority

12. The Broadcasting Authority concedes that the “petitioner has a right of access to the media, as part of its right to freedom of speech” but argues that the right to freedom of speech does not impose an obligation on the Broadcasting Authority to “broadcast the political messages of the petitioners at the time, the place, and in the manner that the petitioner wishes.” This is because the specific broadcasting slot for advertising (hereinafter: "framework of advertisements") was not intended to serve as a platform for voicing controversial political opinions. To constitute a framework for advertisements is not one of the functions of the Broadcasting Authority.  It is strictly an ancillary power, intended to enable the Broadcasting Authority to enlist additional funding for its programs. "Its purpose is to improve the economic balance" of the Broadcasting Authority. Hence, the Broadcasting Authority is authorized to broadcast advertisements, but is not obligated to do so. This is what distinguishes advertisements from the regular programs of the Broadcasting Authority (hereinafter: "the programs"). The Broadcasting Authority is both authorized and obligated to broadcast programs (see s. 3 of the Broadcasting Authority Law, which prescribes the functions of the Authority).  As such, the programs themselves are the basic framework for realizing the petitioner's freedom of speech. The petitioner's material is actually political speech in the “guise” of commercial advertising, but the framework of advertisements "is totally inappropriate for political speech." Consequently, the petitioner's advertisements cannot be approved within that framework.  As stated in the response: "The petitioner is entitled to have its message heard, but the respondents have the discretion to determine the mode of realization of this right, within the framework allocated for political speech in the programs of the Broadcasting Authority … [and not] in the framework of broadcasts intended primarily for commercial advertising.  … The major avenue for the broadcast of expressions is in the programs of the Broadcasting Authority ... which is the marketplace of ideas and the locus of expression. The ancillary framework of commercial advertising has its own objectives."

Furthermore, the Broadcasting Authority argues that the programs are also the appropriate framework for exercising freedom of speech, because programs must comply with the obligation of achieving balance in the presentation of different viewpoints (see s. 4 of the Broadcasting Authority Law). Permitting the broadcast of advertisements of a political character within the (unique) framework of advertisements alongside the (regular) programs undermines that obligation. It may well transform the framework of advertisements into an alternative platform aimed entirely at circumventing the regular framework of programs, which is subject to the obligation of ensuring balance.  This could confer an unfair advantage upon those with the economic power to advertise over those who are unable to do so: "Commercial advertising … allows the wealthy and the powerful to gain exclusive control of the message: not only the contents of the message but also its mode of presentation, the frequency of transmission, the broadcasting hours and the type of program."  As such, the point of departure for the statutory arrangement as a whole is that "this is not an efficient marketplace of ideas in which all of the opinions vie for the viewer’s heart … . The variety of viewpoints, the complexity of the issues, the time constraint, and the importance of the medium require the establishment of rules that will assist in the creation of a marketplace of opinions that is efficient, reliable and fair." An efficient marketplace of ideas can be attained by way of “an obligation to ensure reliable and balanced broadcasting that reflects the entirety of opinions on a given issue.” In this context it was further argued that the recognized exception to the principle of balance is the law governing the pre-election period, which permits the broadcast of political advertisements directly to the public. However, these party political broadcasts, too, are subject to regulation and oversight by the Chairman of the Central Elections Committee (see Elections (Modes of Propaganda) Law, 5719-1959).

In its summations, the Broadcasting Authority did not adopt a clear position on the question of whether freedom of speech is a constitutional right protected by Basic Law: Human Dignity and Liberty.   Nevertheless, its position is that the Rules meet the conditions of the limitation clause.  Regarding the first condition, it was argued that s. 25A (entitled "Radio Advertisements and Announcements") explicitly authorizes the Management Committee of the Broadcasting Authority to prescribe rules, inter alia on the subject of "prohibitions and restrictions on the broadcast of advertisements and announcements," and by virtue of that explicit authority the Rules were made. In this context it was argued that the contention that the Rules must be established in primary legislation should be rejected. An explicit general authorization that leaves the details of the particular restrictions to the discretion of the Broadcasting Authority as an administrative authority is sufficient.  Regarding the third condition it was argued that the Rules were designed to protect the value of equality of opportunity to present political opinions and to prevent a situation in which a person with financial means could achieve more extensive dissemination of his political views than one who lacked those means.  By the same token, they were designed to protect the value of objectivity of the state broadcasting media by subjecting programs to the obligation of ensuring balance. In this sense, the Rules separate the framework of advertisements from that of programs.  This separation will lead to an efficient and equality-based marketplace of political views. As for the fourth condition, it was asserted that the first ancillary condition (the test of suitability) was fulfilled: the Rules channel the political speech into an appropriate framework, i.e. that of regular programs.  Likewise, the requirement of the second ancillary test (the test of the lesser harm) is met. The imposition of a uniform blanket restriction is the most effective way of achieving the purpose, and there is no way of creating any other effective regulation mechanism. A different mechanism which includes qualifications and exceptions is liable to drag the Broadcasting Authority into the political arena. In this context it was mentioned that other frameworks exist for such expression, whether in the Broadcasting Authority itself (in the programs) or external to it (in the other media, such as the print media etc.).  Similarly, the third ancillary condition is also satisfied (the proportionality test, in the "narrow sense"). The benefit from the restriction exceeds the harm caused by the violation of freedom of speech, for our concern is not with preventing expression but rather with channeling it into the framework of regular broadcasts.  

Arguments of the Second Authority

13.  Naturally, the arguments of the Second Authority resemble those of the Broadcasting Authority. I will dwell briefly on these arguments to the extent that they differ from or add to the line of argument of the Broadcasting Authority.

The Second Authority claims that its Rules are justified and that they satisfy the criterion of constitutionality.  In its summations the Second Authority addressed two main concerns in the event of the Rules being invalidated. The first is that invalidation of the Rules would undermine the obligation of ensuring balance in broadcasts, because it would be the financially powerful elements who would purchase advertising time and who could most effectively influence the social and political discourse, unburdened by the constraint of balance prescribed by the Law (which applies only to programs and not to advertisements). It is the obligation to ensure balance in programs that provides the response to the freedom of political expression. The second concern is that invalidation of the Rules will lead to bias in news coverage, since franchisees are liable to avoid publishing news items that may dissuade certain elements from advertising with them, and elements of this nature are even liable to exert pressure upon them in that context. In other words, an economic incentive may be created for franchisees to alter the contents of the programs themselves so as not to jeopardize potential income from advertisements on behalf of various political elements.  Another concern, shared by the Broadcasting Authority, was that invalidation of the existing Rules and a requirement of detailed regulation of the subject are liable to force the regulator to engage in political censorship. Hence the existing position, under which there is a general and uniform prohibition and which distances the regulator from the area of political censorship, is preferable.

According to the Second Authority, "any restriction on broadcasting violates freedom of speech to some extent."  However, it believes that the principle of freedom of speech in advertising is weaker than in other forms of expression. The reason is that "expression" in the framework of advertisements, which is by nature a commercial framework, is accorded the (weak) protection of commercial expression and not the (strong) protection of political expression.

It was further argued that the electronic media in Israel constitute a limited resource. The advertisements that are broadcast over that media are an even more limited resource, in view of the regulatory restrictions on advertising time (see s. 85 of the Second Authority Law which deals with the scope of advertising broadcasts). This necessitates regulation in accordance with the principles of fairness and balance. In the framework of advertisements, however, it is impossible, on a practical level, to fulfill the obligation of ensuring balance, which is inherently linked to political expression.

The Second Authority further argued that its Rules satisfy the requirements of the limitation clause. Regarding the explicit statutory authorization, the argument is that ss. 24(6) and 88(2) of the Second Authority Law authorizes the Second Authority to impose restrictions on advertisements.  The Second Authority contends that s. 88(2) of the Law (the section is entitled “Rules for Broadcasting Advertisements”) authorizes the Council of the Second Authority to establish rules to regulate various restrictions pertaining to advertisements, inter alia regarding entire subjects in relation to which advertising is prohibited. By virtue of this explicit authorization, the Council of the Second Authority enacted the Second Authority Rules that impose restrictions on the broadcast of advertisements both on radio and on television.  Regarding their purpose, it was asserted that the Rules were intended to protect the obligation to ensure balance and the objectivity of the broadcasts. They were intended to prevent a situation in which “money talks”. The principle of balance is of particular importance in the context of a limited public resource such as radio and television broadcasts which have a limited number of channels.  As for proportionality, it was argued that the Second Authority Rules do not restrict freedom of expression in relation to a controversial matter per se, but rather, they restrict its transmission via the “platform” of commercial advertisements. The petitioner has no vested right to relay information specifically by way of advertisements; it may relay the information to the public in the framework of regular programs (subject to the obligation of balance) or in the framework of advertising in other media (such as the print media).

Deliberation and Decision

The test of constitutionality is also applicable to administrative guidelines

14. The Rules of the Broadcasting Authority and of the Second Authority (hereinafter: “the Rules”) are in fact administrative guidelines (HCJ 15/96 Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403; cf: Y. Dotan, Administrative Guidelines (1996), at p. 45)).  The Chairman of the Broadcasting Authority is signed on the Broadcasting Authority Rules and his signature is accompanied by the confirming signature of the Minister of Communications. The Rules of the Second Authority are signed by the Chairman of the Second Authority. These Rules too, which guide the exercise of administrative authority, are subject to judicial review of their constitutionality (see Zamir, Administrative Authority, at pp. 115-116; see also Aharon Barak, The Judge in a Democracy (2004) at p. 370). The criteria for judicial review are those set in the limitation clause:

‘The criteria prescribed in the limitation clauses of s. 8 of Basic Law: Human Dignity and Liberty and in s. 4 of Basic Law: Freedom of Occupation also apply to a violation of basic rights by an administrative authority.  In other words, an authority’s violation of rights must be by law, or in accordance with the law by virtue of explicit authorization therein; it must be consistent with the values of the state, for a proper purpose and to an extent that does not exceed that which is required' (HCJ 4644/00 Jafora Tabori Ltd. v. Second Authority for Television [8], at 182A; and see also HCJ 7200/02 D.B.C. Satellite Services (1998) Ltd. v. Committee for Cable Transmissions and Satellite Transmissions [9], para. 26).

Indeed, “it goes without saying that that which is forbidden to the legislator under the limitation clause is likewise forbidden, a fortiori, to an administrative authority” (Zamir, Administrative Authority at p.115) and that “the administrative authorities must exercise those powers that allow them to violate constitutional basic rights -  including powers rooted in laws that preceded the Basic Law – in accordance with the criteria established in the limitation clause” (HCJ 951/06 Stein v. Commissioner of the Israel Police [10]). There are two reasons for this rule: first, basic rights in Israel should be protected on the basis of like criteria, irrespective of whether the legal norm whose validity is being examined is a law or some other legal norm. Secondly, the arrangement set out in the limitation clause — which distinguishes, inter alia, between the purpose of the violation of the right and the extent of the violation — is fundamentally suited to all legal norms, and not only statutes” (HCJ 4541/94 Miller v. Minister of Defense [11], at p. 138, {232}; see also HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior [12]).

The stages of the constitutional test

15.   As we know, constitutionality is examined in three stages (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [13], at 544-549): the first stage examines whether the rules violate a human right enshrined and protected in the Basic Law. If the answer is no, the constitutional examination ends.  If the answer is yes, we proceed to the next stage. The second stage examines the question of whether the violation of the constitutional right is lawful. At this stage, the question is whether the rules that violate human rights satisfy the requirements of the limitation clause. If the answer is yes, the constitutional examination ends. On the other hand, if the answer is no, we proceed to the third stage. This third stage examines the consequences of the unconstitutionality.  Let us therefore proceed to our constitutional examination.

16. The first stage of the constitutional examination: the violation of a constitutional right

The first stage of the constitutional examination examines whether the rule violates a human right protected by a Basic Law.

In our case, two questions present themselves at this first stage (see HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [14]): the first is whether the Broadcasting Authority Rules and the Second Authority Rules violate freedom of speech. The second is whether the violation of freedom of speech is a violation of freedom of speech only as recognized in our common law, or whether it also constitutes a violation of human dignity as anchored in Basic Law: Human Dignity and Liberty. We will begin with the first question.

Do the Rules violate freedom of speech?

            17. Judicial review will be required only if it is found that the rule substantially violates protected rights. A trivial violation [de minimis] is not sufficient:

‘In principle, it seems to me that any violation or restriction of a basic right should be considered, and that the constitutional examination should move on to the second stage (in which the question of whether the violation or restriction was legal is examined). It should, of course, be assumed that if the violation or restriction is not substantive, it will be easy to show that the conditions of the "limitation clause" are satisfied’ (Aharon Barak, Interpretation in Law, vol. 3: Constitutional Interpretation, 469 (1994); see also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at p. 431 {236-237}).'

            Both parties agreed that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. The petitioner sought to express itself via an advertisement to be broadcast on national and local radio. The respondents prohibited the broadcast of the advertisement on national and local radio. Expression – in the manner sought by the petitioner – was prevented, constituting a violation of freedom of speech. The violation in this case is not a trivial matter. Indeed, freedom of speech is "a right in the form of a ‘liberty’. It includes the right to receive information and to respond to it, to listen and to be heard, to see and to listen… . The scope of freedom of speech extends to all the forms and modes of expression and to all of the contents of expression” (HCJ 2194/06 Shinui - the Center Party v. Chairman of the Central Elections Committee [16]).  “‘Expression’ in this context is any activity seeking to convey a message or meaning. It extends to a political, literary or commercial expression” (HCJ 4804/94 Station Film Co. Ltd. v. Films and Plays Review Council [17], at p. 674 {34-35}. This form of expression was prevented in the case at hand.

    The answer to the first question is therefore in the affirmative.

  Here it should be mentioned that the framework of advertising does not constitute a goal per se. It was created as a financial aid in the framework of distributing the funding sources amongst the media market (HCJ 6962 Media-Most Co. Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 25).  On the other hand, since "freedom of speech does not distinguish between the different means of expression” (HCJ 806/88 City Studios Inc. v. Films and Plays Censorship Board [19], at p. 36, {248} then in addition to the funding aim, the framework of advertisements also provides a means of expression for payment. In our case, the Broadcasting Authority Rules do not, prima facie, designate the framework of advertisements exclusively as a means of imparting a commercial message (“advertisement, sponsorship broadcast or announcement that are broadcast on radio as against payment to the Authority”). By contrast, the Second Authority Law apparently does designate the framework of advertisements for the imparting of an exclusively commercial message (“the broadcast of a commercial advertisement as defined in Chapter 6 of the Law”, which prescribes, in s. 81, that “the franchisee is permitted to include in the framework of its broadcasts, advertisements for consideration at a rate that it determines”). However, the exclusive dedication of the framework of advertisements to the imparting of a purely commercial message is not sufficient in my view to negate the violation of freedom of speech in that framework.

For it to be possible to say that there has been absolutely no violation of the right to expression in the present matter, it must be said that this right does not exist in the case of a funding-related means of imparting a commercial message. However, freedom of speech does not distinguish between the different modes of expression, and “a person does not need a law to grant him freedom of speech. He has that freedom without a law” (Zamir, Administrative Authority, at pp. 50-51). It is the administrative authority that requires statutory authorization in order to restrict a human right and violate it (per Justice A. Procaccia in HCJ 2245/06 Dovrin v. Prisons Authority [20], para. 16). Thus, explicit authorization by law is required for any limitation or violation of freedom of speech, even in the framework of advertisements, which are indeed a means of funding. Therefore, the prima facie exclusive dedication that I referred to above does not suffice as grounds for claiming that freedom of speech was not violated, and at all events there must be an explicit limiting rule, which will be examined in accordance with the criteria of the limitation clause as a condition for its validity and its effect.

19. My conclusion is that the petitioner’s freedom of speech in the framework of advertisements has been violated. Is this a violation of political freedom of speech or rather, commercial freedom of speech? This question is important both at the first stage of the constitutional examination, which has just taken place, involving a demarcation of the constitutional parameters of the right itself, for “political freedom of speech is not the same as commercial freedom of speech” (Station Film Co. Ltd. v. Films and Plays Review Council [17]); Jafora Tabori Ltd. v. Second Authority for Television [8], at p. 181), and at the second stage of the examination which will be undertaken below, involving a demarcation of the extent of protection given to a constitutional right (HCJ 4593/05 United Mizrahi Bank Ltd. v. Prime Minister [21], para. 13; HCJ 606/93 Kiddum Yazamut U-Molut (1981) v. Broadcasting Authority [22], at p. 13; HCJ 5432/03 Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], per Justice Dorner, at  para. 13).  

How then should we classify the “expression” that was violated – is it political or commercial?

20. My view is that the content of the expression that was prevented in this case is political, whereas the framework is commercial. The dominant components for classifying the expression are the contents of the expression (political or commercial), the character of whoever or whatever is making the expression (a political or commercial body), and the aim of the expression (political or commercial).  On the other hand, I would attach lesser importance to the technical means or external framework via which the expression is conveyed.  What must be examined is the dominant effect of the broadcast from the perspective of the viewer (regarding propaganda broadcasts, cf. Zwilli v. Chairman of the Central Elections Committee [6], at pp. 704-705; regarding the distinction between commercial and other forms of expression in which exceptional use was made of the regular format of commercial advertising, see Karniel, The Laws of Commercial Advertising, at pp. 321-323).  In my opinion, the conclusion that arises from weighing up all these components in the present case is that the petitioner sought to broadcast a political expression, not a commercial one. The Second Authority too, agreed that the petitioner requested to broadcast a “political expression in a commercial context.”

21.  Basic Law: Human Dignity and Liberty does not contain a separate and independent right entitled “freedom of political speech”, but it does contain a separate and independent right entitled “human dignity”. The claim is that the freedom of speech violated by the Rules – i.e. freedom of political expression – is part and parcel of human dignity. Is this claim justified? This is the second question confronting us, which we will now examine.

Does a violation of freedom of political expression constitute a violation of human dignity?

22.  Freedom of speech is included among the basic human freedoms in Israel, as a foundational right and a prerequisite for the existence and faithful observation of most of the other basic rights (CA 723/74 Ha'aretz Daily Newspaper Ltd. et al. v. Israel Electric Corporation Ltd. et al. [24]; Zeev Segal, "Freedom of Speech from the Perspective of Meir Shamgar", Shamgar Volume, Pt.1, 111, 114 (2003); Eli Salzberger and Fania Oz-Salzberger, “The Tradition of Freedom of Speech in Israel" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel  (ed. Michael Birnhack, 2006), 27). Indeed, "recognition of the status of freedom of speech as a basic right existed in Israel long before the enactment of Basic Law: Human Dignity and Liberty" (PPA 4463/94 Golan v. Prisons Service Authority [25], at p. 157-158). 

There are three reasons underlying freedom of speech: the first reason is based on the desire to expose the truth. The second is based on the need to enable human self-realization. The third reasons bases freedom of speech on the democratic regime (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23]; Aharon Barak, “Freedom of Speech and its Limitations”, HaPraklit 40 (1991), at pp. 5, 6 – 10; Ilana Dayan-Urbach, “The Democratic Model of Freedom of Speech”, Iyunei Mishpat 20 (1996), at p. 377; Guy Pesach, “The Theoretical Basis of the Principle of Freedom of Speech and the Legal Standing of the Press”, Mishpatim 31 (2000) 895, at pp. 897-911). Against the background of these reasons it is possible to characterize different forms of freedom of speech, some of which are located at the very heart of the right, and others in its outer coating. A violation of the very heart of the right is not equivalent to a violation at its periphery (HCJ 5016/96 Horev v. Minister of Transport [26], at p. 49{202}).

23.  Indeed, in our case law it has been ruled that freedom of political expression lies at the heart of the right to freedom of speech (Shinui - the Center Party v. Chairman of the Central Elections Committee [16], per Justice Rivlin, at para. 3). “Freedom of political expression warrants maximum protection, both because of its extreme importance from a social perspective as a basic foundation of the democratic regime, and because it is more exposed than any other form of expression to incursion on the part of the government” (HCJ 6396/93 Zakin v. Mayor of Beer Sheva [27], at p. 303). Indeed, freedom of speech “takes on special meaning in the context of political expression in general and in the context of political expression in the framework of the struggle for rights of the individual in particular …. One of the main reasons justifying freedom of speech is the upholding of the democratic regime. Without freedom of speech the democratic regime loses its soul. In the absence of democracy, freedom of speech is lifeless … freedom of speech guarantees the exchange of opinions between members of society, thus allowing opinions to be formed on issues that are on the national agenda (see Zwilli v. Chairman of the Central Elections Committee [6]; see also per Justice E. Hayut in HCJ 11225/03 Bishara v. Attorney General [27], para. 15). “Of all the various forms of protection, the protection given to political expression – which is an essential condition for the maintenance of a democratic process – is particularly broad (HCJ 6226/01 Indor v. Mayor of Jerusalem  [28]).

This brings us to question of whether a violation of freedom of political expression is a violation of human dignity.

24.  Resolution of this question involves interpretation of the nature of the right to human dignity and its scope. In the Shin case, which was heard by an expanded panel of eleven judges, the question was left pending (“Needless to say, the question of whether freedom of speech is included in the rights specified in Basic Law: Human Dignity and Liberty, regarding which differing views have been expressed by the justices of this Court, does not require a decision or consideration in this proceeding” (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 83; but see per Justice Rivlin who ruled in that case that freedom of speech is a constitutional right, ibid, p. 96; President Barak concurred with his view, id.).

25.   Several Justices of this Court have expressed their position on the matter explicitly, holding that freedom of speech is part of the constitutional right to human dignity (see the survey in Katzir, Commercial Advertising, at pp. 4-6). This is the position of President Barak (in CA 4534/02 Schocken Chain Ltd. v. Herzkowitz [29], at p. 564; and see his comments in CA 105/92 Re’em Engineers Contractors Ltd. v. Upper Nazareth Municipality [30], at p. 201; HCJ 2481/93 Dayan v. Wilk [31], at p. 468{341}  and recently in HCJ 2557/05 Mateh Harov v. Israel Police [32], para. 12). This is also the position of Justice Rivlin (LCA 10520/03 Ben-Gvir v. Dankner [33] para. 10), of Justice Procaccia (ibid, para. 13) and of Justice Arbel (ibid, para. 3). It is similarly the position of Justice Mazza (Golan v. Prisons Service Authority [25], at p. 156 and of Justice Meltz (LCA 2687/92 Geva v. Walt Disney Company [34], at p. 264),  and finally, although only hinted at, of Justice Cheshin (HCJ 6126/94 Szenes v. Broadcasting Authority [35], at pp. 865-867, but see his comments in Golan v. Prisons Service Authority [25], at p. 187).

On the other hand, some Justices have held that freedom of speech is not necessarily part of the constitutional right to human dignity.  This was the position of Justice Dorner (in Golan v. Prisons Service Authority [25], at p. 191 and of Justice Zamir (in HCJ 453/94 Israel Women's Network v. Minister of Transport [36]; and see Zamir, Administrative Authority, at p. 113).

The picture that emerges from the judgments I cited taken together is that freedom of political speech is included in the constitutional right to human dignity.

26.  Recently, in Movement for Quality Government in Israel v. Knesset [14], it was held, regarding the right to equality, that human dignity includes only those rights which are materially and closely bound (whether at the core or on the periphery) to human dignity:

 ‘The median model does not limit human dignity exclusively to humiliation and desecration, but neither does it extend it to the entirety of human rights. In the category of human dignity it includes all those aspects thereof that figure in different constitutions as specific human rights, but which are characterized by what we regard as close and material connection to human dignity (whether to the core or at the periphery)…. I believe that the appropriate model for structuring the relationship between human dignity as a constitutional right, and equality is the median model…. The appropriate conception of human dignity which accords a central role to the autonomy of individual will, freedom of choice, a person’s physical and spiritual integrity and the entirety of his humanity – justifies the inclusion within the parameters of human dignity of those aspects of equality that ensure this fitting conception of human dignity’ (per President Barak, paras. 38 and 40).

            This criterion, in my opinion, is also in keeping with the relationship between human dignity as a constitutional right, and freedom of political expression. My view is that the right under discussion – freedom of political expression – is, according to our juridical conception, closely and materially bound to human dignity, for –

‘What is human dignity according to the approach of the Supreme Court? … Human dignity is based on the autonomy of individual will, freedom of choice and a person's freedom of action as a free agent. Human dignity rests on the recognition of the individual’s physical and spiritual integrity, on his humanity and on his value as a human being, regardless of the extent of his utility to others (ibid. at para. 35).

This conception of human dignity invites the conclusion that freedom of political expression is part of the constitutional right to human dignity (see also Barak, "The Tradition of Freedom of Speech and its Problems", p. 231; Barak, Interpretation in Law, p. 427). Indeed, freedom of political expression is an essential component of human dignity. And as mentioned, it has already been held that freedom of political expression is “the “core” of the right to freedom of speech (per Justice Rivlin in Shinui - the Center Party v. Chairman of the Central Elections Committee [16], para.3). As for freedom of commercial expression – in my view this issue does not arise in the matter before us, and I will therefore leave it pending.

27.  The conclusion is that a violation of freedom of speech by the Rules entails a violation of human dignity. The Rules violate those rights and values that are the foundation of human dignity as expressing recognition of the autonomy of individual will, freedom of choice and a person’s freedom of action as a free agent (cf. Dan Birnhack, “Constitutional Genetics: The Methodology of the Supreme Court in Value-based Decisions”, Bar Ilan Law Studies19 (2002), 591, 626). Thus a positive answer is also given to the second question that I posed.

We will now proceed to the second stage of the constitutional examination, at which we examine whether the violation of rights protected by Basic Law: Human Dignity and Liberty is lawful. The “geometric location” of this question is in the limitation clause of Basic Law: Human Dignity and Liberty.

The second stage of the constitutional examination: Is the violation of the constitutional right lawful? 

28.  At the second stage of the constitutional examination, the lawfulness of the violation of the constitutional right is considered.  Indeed, a distinction exists between the scope of the right and its lawful realization; this distinction is the basis of a recurring statement in the case law and in the legal literature to the effect that human rights are not absolute, but rather, of a relative nature (see recently in the context of freedom of speech, per President Barak, Shinui - the Center Party v. Chairman of the Central Elections Committee [16], paras. 8 and 9).

29.  The “balancing formula” which is the basis of the parties' claims is that which is found in the limitation clause of s. 8 of 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 is required, or according to a law as stated by virtue of explicit authorization therein.'

            The limitation clause is the accepted criterion today for achieving a balance between conflicting values. This point was made by President Barak:

 ‘In the petition before us, the values of state security and the maintenance of public order are in conflict with the rights of a person to freedom of movement, freedom of occupation, property and dignity as a human being. The military commander must achieve a balance between these conflicting interests. How should he strike this balance? What is the accepted criterion for achieving the balance? The accepted criterion today, in the wake of the enactment of the Basic Law on human rights, is found in the limitation clause (s. 8 of Basic Law: Human Dignity and Liberty)’ (HCJ 6893/05 Levy v. Government of Israel [36a], at p. 887; and see Horev  v. Minister of Transport [26], at p. 41 {192}).

President Beinisch also dwelt on this point in relation to a violation of freedom of speech:

‘Freedom of speech and demonstration are derived from human dignity, and for that reason the application of s. 8 [of Basic Law: Human Dignity and Liberty] to the exercise of administrative authority is direct (HCJ 8988/06 Meshi Zahav v. Jerusalem District Commander [37], at para.10).

The limitation clause aspires to minimize the violation of a human right (Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], at p. 87). It reflects on “the proper balance between conflicting values and rights which form the background to the actions of the public administration … and it constitutes the background of the appropriate conception of the process of weighing up conflicting values” (per Justice Procaccia, Ben-Gvir v. Dankner [33], para.13). The limitation clause gives expression “to the notion that human rights do not enjoy full protection. This emphasizes the conception that the individual exists as part of a society, and the needs of society and its national objectives may permit the violation of human rights …. There are, however, limits to the restriction of human rights. These are set in the limitation clause” (Gaza Coast Regional Council v. Knesset [13], at pp. 545-546). The limitation clause is the constitutional balancing formula applicable to the current case and evidently, the parties were not in dispute on this (regarding the limitation clause as a constitutional balancing formula, see: HCJ 953/01 Solodkin v. Beth Shemesh Municipality [38], at p. 612f; Birnhack, “Constitutional Engineering”, pp. 623, 627-629; Gideon Sapir, “Old versus New – Vertical Balancing and Proportionality”, Legal Studies 22 at pp. 471, 476).

The limitation clause contains four conditions, all of which must be met. We will examine the conditions in relation to our case, one by one.

Limitation clause - first condition: by a law or according to a law by virtue of explicit authorization therein

30. The first condition for the constitutionality of a rule that violates a human right protected by Basic Law: Human Dignity and Liberty is that the violation be “… by a law … or according to a law by virtue of explicit authorization therein.”  For the readers’ convenience, we again quote the authorizing provisions as prescribed in the primary legislation.

The authorizing provision for the Broadcasting Authority is s. 25A(b)(2) of the Broadcasting Authority Law: 

‘25A    Advertisements and Announcements on Radio

….

(b) The Management Committee shall determine, in consultation with the Director General, rules concerning  -

     (2) Prohibitions and restrictions on advertisements and announcements.’

The authorizing provision for the Second Authority is s. 88(2) of the Second Authority Law:

‘88          Rules for Advertisements

The Council shall make rules concerning the broadcast of advertisements, inter alia, on the following matters:

 (2) Prohibited advertising subject-matter for broadcast as advertisements, in general, under specific circumstances, or by reason of being offensive to good taste or public sensitivities;’

Are the aforementioned rules made "by virtue of explicit authorization" in primary legislation? My answer is affirmative. Although the legislative provisions pertaining to the Second Authority differ from those relating to the Broadcasting Authority, in both cases authorization appears in primary legislation.

31. Regarding the Second Authority Law: this Law authorizes the Second Authority Council to determine prohibited "advertising subject-matter" for broadcast as advertisements. This phrase was construed as authorizing the Second Authority Council to impose prohibitions on the contents of advertisements: “It is clear that the authority to disqualify 'advertising subject-matter' encompasses both the style and the contents of the advertisements” (HCJ 5118/95 Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at  p. 755). Indeed –

'[T]he Council’s authority to impose prohibitions applies not only to the advertising subject-matter, but also to the contents of the advertisements, their format and the manner of their presentation. Furthermore, the choice facing the Council, in exercising its authority, is not necessarily between absolutely permitting and absolutely prohibiting advertisements on particular subjects, but also between permitting them in general and prohibiting them in particular circumstances. This emerges explicitly from the language of s. 88(2) of the Law …. The interpretative presumption regarding … the authorizing law … is that it intended to realize and uphold the basic rights' (HCJ 4520/95 Tempo Beer Industries Ltd. v. Second Authority [40]; see also per President Barak in Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4],  at p. 526A).

Here it should be mentioned that the Rules of the Second Authority, as per their previous formulation relating to both television and radio together (Second Authority for Television and Radio (Ethics in Television and Radio Advertising) Rules, 5754-1994, K.T. 640) (hereinafter: "previous Second Authority Rules") have been approved, on the level of statutory authorization, by this Court (see Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 403). However the previous Second Authority Rules did not include provisions regarding “advertisements on controversial subjects”). These provisions appear in the current Rules.

32.  Regarding the Broadcasting Authority Law: this Law authorizes the Broadcasting Authority to set “prohibitions and restrictions” on advertisements. The phrase "advertising subject-matter" does not appear in the Broadcasting Authority Law, but in my view, the above-said authorization, too, empowers the Broadcasting Authority to set prohibitions on the contents of advertisements (see HCJ 7144/01 Gush Shalom Society v. Broadcasting Authority [41], at p. 891g).  This authority is subject to interpretation; interpretation provides a more complete picture of the authority. This point was taken up by Prof. Zamir:

‘A law without interpretation resembles a sketch of a picture. Interpretation adds colour, depth and soul to the law. A statutory provision that confers authority upon an administrative body without being accompanied by an interpretation of the provision does not provide a full picture of the authority.... The law and interpretation are not the same thing. They are two sources of law, a principal source and a complementary source, but they are linked by a close bond of partnership, as though they were spouses who constitute a family. When complementing a law that confers authority, interpretation changes that authority. It may broaden or narrow the scope of the authority that emerges from a plain reading of the law. It may add tools of implementation to the authority, or restrict it to certain conditions, or channel it for certain purposes. In short, the authority after interpretation is different from the authority before interpretation’ (Zamir, Administrative Authority, at pp. 142-143).

On the interpretative level, my opinion is that the language of the authorization in the Broadcasting Authority Law is very similar to the wording of the authorization for the Second Authority, and requires that the interpretation of both be uniform. Admittedly, the arrangement specified in the Second Authority Law is more detailed than that of the Broadcasting Authority Law, but I accept the State’s position that the difference in wording does not, per se, constitute cause for establishing separate arrangements for the Second Authority and the Broadcasting Authority. The fine linguistic difference between the respective wordings relating to “advertising subject-matter” is not of sufficient interpretative importance to preclude a uniform interpretation, in view of the purpose of the authorization, which we will discuss presently. The purpose of the arrangements is identical, and as such the legal arrangements require similar interpretation.  It is not very logical to permit the broadcast of a political advertisement on one radio channel and to prohibit the same broadcast on a second channel (cf. HCJ 213/03 Herut National Movement v. Chairman of Central Elections Committee for the Twelfth Knesset [42], at pp. 763-764, which compared oversight of propaganda broadcasts on radio and on television, despite the differences in the legal arrangements).

In any case, the authority to totally prohibit a particular activity plainly includes the authority to partially prohibit it: “Even had this not been explicitly stated, it would have emerged from the nature of the authority. Is it conceivable to decide that an authority that is authorized to prohibit a particular action is precluded from prohibiting part of it?" (Tempo Beer Industries Ltd. v. Second Authority [40]). For our purposes, the authority to prohibit the broadcast of an advertisement - in its entirety - includes the authority to prohibit the broadcast of a particular component thereof. This applies to the Second Authority Law as well as to the Broadcasting Authority Law.

33. The authorizing sections relating to both the Broadcasting Authority and the Second Authority explicitly authorize the secondary legislator to restrict the contents of advertisements. They confer authority to establish content-based “restrictions” and “prohibitions” on the broadcast of advertisements. This is an explicit authorization to deal with the said matter by way of restriction or prohibition, and not simply a general authorization to make regulations and rules (cf. HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Internal Security [43]); this constitutes explicit authority to prohibit and to restrict (see Oren Gazal, “Violation of Basic Rights ‘By a Law’ or ‘According to a Law'”, Law and Administration  4, 381, at pp. 396 – 412); and cf. Barak, The Judge in a Democracy, 345; Barak, Interpretation in Law, 504).

34. Our interim conclusion is that both laws explicitly authorize the secondary legislator to make rules that prohibit or restrict advertisements. According to the petitioner, however, the Rules regulate matters for which they have no mandate. They establish primary arrangements that properly belong in primary, not secondary legislation. On this issue, the petitioner invokes the principles laid down in settled case law:

‘Violation of human rights, even when it promotes the values of the State, even if for a worthy purpose, and even when not exceeding the required degree, must be established in a law that prescribes primary  arrangements, and the formal vesting of legislative competence in the executive branch is insufficient.’ (HCJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684b).

The petitioner also refers to HCJ 3267/97 Rubinstein v. Minister of Defence [45], in which the Court stated:

‘The basic rule of public law in Israel provides that where governmental action is anchored in a regulation or an administrative directive, then the general policies and basic criteria pursuant to which the regulation was enacted should be grounded in primary legislation by virtue of which the regulation was enacted or the administrative directive issued. In more “technical" language, under this basic rule, “primary arrangements” that determine general policy and the guiding principles must be fixed in Knesset legislation, whereas regulations or administrative directives should only determine “secondary arrangements” (p. 502) {164}.’

35. I cannot accept the petitioner’s argument that the Rules should be abrogated (to the extent that they apply to the case before us) because they prescribe a primary arrangement that should be established by way of primary legislation.

The argument is appealing, but in my opinion, a reading of the statutory provisions taken together provides its refutation. Indeed, a perusal strictly of those sections of the two Laws concerning advertisements gives no indication of the intention of the primary legislator regarding that which is permitted and that which is forbidden. However, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority. We mentioned the provisions of s. 4 of the Broadcasting Authority Law which concerns “ensuring reliable programs” and which directs the Authority to ensure suitable expression of different approaches and points of view current among the public, and the broadcast of reliable information.  Similarly, regarding the Second Authority, we mentioned s. 47 of the Second Authority Law, dealing with the principle of providing the opportunity to respond and which states that in relation to current events which are of public significance, the franchisee must ensure that proper expression is given to the variety of views prevailing amongst the public; s. 5(b)(7) of the Law under which the Authority must ensure the broadcast of “reliable, fair and balanced information"; s. 5(b)(6), under which the functions of the Authority include ensuring that suitable expression be given to the different views current amongst the public, and  s. 46(c) that prohibits the franchisee or the managers from expressing their personal views. (Similar legislative sections also relate to other communications entities in the Israel media world: see s. 34F(7)(5) of the Communications (Bezeq and Broadcasts) Law, 5742-1982 and ss. 10-11 of the Communications (Bezeq and Broadcasts) (Broadcasting Licensee) Rules 5748-1987)). We will elaborate on these matters below, when we explain our position whereby the Rules were enacted for a proper purpose.

In my opinion, these principles, which deal with programs  –  the "hard kernel" of the functions of the  Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the Rules should be made. The Rules for advertisements must be consistent with the primary arrangement in the primary legislation, and in my opinion – and to the extent that they relate to the matter before us - they are indeed consistent. We are not in a “legislative vacuum” and in my view, the claim regarding the absence of primary legislation in the authorizing law is not relevant here. The subject of advertisements is a subsidiary matter that follows the main matter.

36.  Over and above what is required, I would point out that there can be no sharp and absolute distinction between primary and secondary arrangements. As noted by Vice-President (ret.) M. Cheshin:

‘An absolute separation of this kind between the legislature, which enacts primary legislation, and the executive, which executes and implements, exists only in Utopia, since "the complexity of life in modern society leaves the legislature with no choice other than to transfer some of its powers to the executive branch, mostly by delegating to the government and those who act on its behalf the power to make regulations that contain primary arrangements (praeter legem regulations)" (HCJ 6971/98 Paritzky v. Government of Israel [46], at p. 790) … How do we distinguish between a primary arrangement and a secondary arrangement? The answer to this question is not at all simple, and the line between primary arrangements and secondary arrangements can sometimes be somewhat vague…. Of this it has been said that the substance of the arrangement, its social ramifications and the degree to which it violates individual liberty will all affect the determination as to whether we are dealing with a primary arrangement or a secondary arrangement’ (HCJ 111/63 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israe [47], paras. 30 and 39).

Let us reiterate: advertising is not the principal function of the respondents. Their main function relates to the programs themselves, and the advertisements are simply a means of funding the respondents’ activities.

Furthermore, the media market is a dynamic one (cf. in another context of the communications market, and in relation to cable and satellite broadcasts, HCJ 10338/03 Wesh Telecanal Ltd. v. Minister of Communications [48]).  To require explicit and detailed regulation on the subject of advertisements in primary legislation may well yield cumbersome primary legislation and may occasionally even lead to the regulatory process becoming paralyzed and frozen at a particular point in time, and cause harm to the interests of those active in the area and to the public interest at large due to the inability to regulate all of the activities of the regulator in primary legislation:

‘Indeed, on the one hand, substantial detail in the criteria should not be required, for this would freeze the legal position, and make it impossible to take into consideration the dynamic reality of everyday life. On the other hand, criteria that are so general and abstract that they add nothing will not suffice. According to this line of argument a golden mean must be found which charges the legislature with prescribing criteria that provide sufficient guidance on the one hand, but which are not overly specific to the extent of precluding consideration of the changing realities of life’ (Barak, Constitutional Interpretation, at p. 504).

In summary, the first condition of the limitation clause is satisfied. We now proceed to the second condition.

Limitation clause – second condition: befitting the values of the State of Israel.

37. The second requirement of the limitation clause is that the rule “befits the values of the State of Israel”. It was not argued here that this condition was not satisfied.

38. The third condition (“proper purpose”) and the fourth condition (“to an extent no greater than is required”) are connected. The first establishes the proper purpose, and the second the appropriate means of achieving it. As long as the purpose is not known and as long as it has not been determined that the purpose is proper, we cannot know what the appropriate means for achieving that purpose are (see HCJ 7052/03 Adalah Legal Center for Rights of Arab Minority [49], para. 59 of President Barak’s judgment). We will now address each of these two conditions, beginning with “proper purpose”.

Limitation clause – third condition: proper purpose

39. The third condition in the limitation clause is that a rule that violates a human right anchored in a Basic Law be for a “proper purpose”. It will be recalled that the “proper purpose does not neutralize the possible violation of the right but at the very most, and subject to the fulfilment of the required conditions, renders the violation legal and constitutional” (per Justice Rivlin in Association for Civil Rights in Israel v. Minister for Internal Security [43], para. 3; see also per President Barak in Movement for Quality of Government [14], para. 52; HCJ 4769/95 Menahem v. Minister of Transport  [50]).

The Rules in the case before us represent a balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority must protect (see Gush Shalom Society v. Broadcasting Authority [41], at p. 892). What are the conflicting values in the case before us? What values are the Rules designed to realize? I referred above to the statutory provisions intended to ensure balanced and fair programs. The case law, too, speaks of the importance of fair and balanced programs in keeping with the “doctrine of fairness”. Indeed, the Rules of the Broadcasting Authority and of the Second Authority are “a system of rules that reflects the ‘doctrine of fairness’… which is appropriate for any communication medium worthy of its name” (HCJ 2888/97 Novik v. Second Authority for Television [51], at p. 204d).

The fairness doctrine in Israeli law

40. The fairness doctrine is the underlying justification for the Rules. The doctrine as understood in Israeli law was succinctly described by its “father”, President Shamgar:

‘The fairness doctrine applies to situations in which a number of opinions prevail regarding a public matter that is controversial. If the media, which is subject to this doctrine, provides a platform for those holding a particular view, it is not permitted to discriminate and prevent the expression of other mainstream views. In fact, the fairness doctrine is actually part of the laws of discrimination’ (HCJ 6218/93 Cohen v. Israel Bar Association [52], at p. 541).

            The fairness doctrine has its source in the status of the Broadcasting Authority as a public authority, which is also a platform that is subject to the principle of equality:

‘The regulation of programming on the basis of equality is dictated by the principle of equality (see HCJ 1/81 Shiran v. Broadcasting Authority [53], at p. 386). To be precise: if the broadcast constitutes election propaganda, then at all events it is prohibited. But even if the broadcast does not constitute election propaganda, care must be taken in its transmission to ensure compliance with the principle of equality…. This interpretation-based conclusion is dictated, as stated, by the Elections (Modes of Propaganda) Law itself. It dovetails with the general obligation of the Broadcasting Authority to maintain equality in its programs. It finds expression in the ‘fairness doctrine’ to which this Court has related on a number of occasions…. As such the authority must ensure that its programs – even if they do not contain prohibited election propaganda – must adhere to the principle of equality' (Zwilli v. Chairman of the Central Elections Committee [6], at pp. 705-706).

            The fairness doctrine was extended to include broadcasts of the Second Authority:

‘Our case law contains much discussion of the importance of an independent Broadcasting Authority, which “is not merely a ‘mouthpiece’ but also a ‘platform’ that must guarantee the expression of viewpoints and opinions… [reference has been made to] the Authority’s obligation to guarantee the public’s freedom of speech …. These comments related to the Broadcasting Authority, but whatever holds for the application of freedom of speech to the activity of the Broadcasting Authority also applies by definition to the activity of the operators of the Second Channel and to the Administration of the Second Authority (Novik v. Second Authority for Television [51], at p. 203); and see also Karniel, Laws of Commercial Communication, at p. 70; Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 239-240).

The purpose of the fairness doctrine is to ensure a free “marketplace of ideas” which properly reflects the range of views on the matter under discussion (HCJ 10182/03 Education for Peace, at p. 416c). Indeed, “the rationale of the fairness doctrine is obvious: presentation of the different aspects of a particular issue or event to the community and maintenance of equality or at least a minimal equality, between the different positions, are intended to improve the flow of information and to prevent distortions and entry barriers” (Reichman, at p. 223; and see also Daphne Barak-Erez, “The Individual’s Access to the Media: Balance of Interests and the Freedom of Speech,” 12 Tel-Aviv U. Law Rev. (1987) 183, 196-200 (hereinafter: Barak-Erez)). The fairness doctrine is intrinsically linked to the principle of equality (Shiran v. Broadcasting Authority [53], at p. 373d); Zwilli v. Chairman of the Central Elections Committee [6], at p. 708; HCJ 399/85 Kahane v. Management Committee of Broadcasting Authority [54], at p. 303).

Abandonment of the Fairness Doctrine in the U.S.A.

41. Admittedly, in 1987 the fairness doctrine was abandoned in the U.S.A (Karniel, Laws of Commercial Media, at pp. 67-69; Pesach, “The Theoretical Foundation”, at p. 961; Amnon Reichman, ‘"The Voice of America in Hebrew? The Israeli Court’s Reliance on the American Law of Freedom of Speech" in Be Quiet! Someone Is Speaking: The Legal Culture of Freedom of Speech in Israel (ed. Michael D. Birnhack) 185, at p. 223 (2006 (hereinafter: Reichman)). This development does not, however, alter my view. President Shamgar already ruled on this very matter:

‘I am of course aware that in its native country, the standing of the fairness doctrine has diminished somewhat. I do not think that we are bound to endorse the negative view that has been accepted in the U.S.A.  The fairness of the doctrine exists in its own right, and no change of wind in the U.S.A. need disturb the bounty of its trees. The reality in the U.S.A., with its hundreds of newspapers and thousands of broadcasting stations, and the broad range of choice offered thereby to every individual, differs from the local reality. The question of whether the fairness doctrine is necessary and reasonable must be determined in accordance with prevailing domestic conditions' (Cohen v. Israel Bar Association [52], at p. 542; see also per Justice Strasbourg-Cohen, ibid, at p. 570).

The fairness doctrine in Israel is therefore anchored in a statutory arrangement in primary legislation, both in the Broadcasting Authority Law and in the Second Authority Law (see also the Structure of the Public Broadcast Report, at pp. 40 – 41). It has taken root in Israeli case law, and it has in fact become Israeli-style common law.

42.  It will be mentioned that the principle of equality in programming, whether or not we refer to it as the “fairness doctrine”, operates with even greater force in the statutory arrangements of the European states. For example, Italy recognizes the doctrine of par condicio (equal conditions) whereby in order to conduct the democratic discourse, the media must be equally accessible to all political bodies and must treat them all equally and fairly in terms of the place and time of broadcasting. This Italian legislative arrangement prohibits the broadcast of a political advertisement, other than in specific and exceptional conditions. The par condicio doctrine was anchored in Italian legislation in the year 2000 (in relation to all forms of regular programs that were not within the framework of pre-election propaganda; on political advertising, see s. 3 of Legge 22 Fabbraio 2000). France too has an explicit and total prohibition on the broadcast of political advertisements (see s. 14 of Law no. 86-07 of 30 September 1986, which relates to freedom of the press, and s. 29 of Regulation no. 88-66, of 20 January 1988, which supplements the law and establishes a prohibition on the broadcast of an advertisement that contains elements liable to offend to political, religious and philosophical opinions or beliefs). Below I will relate to the law in Europe, and particularly in England, which is closer to Israel in terms of the media market and its regulation.

The Fairness Doctrine and the Justification for Regulation of Broadcasts

43. The point of departure of the fairness doctrine is that in all that pertains to freedom of speech in the electronic media such as radio and television, the "marketplace of ideas” is not a free and efficient marketplace.

‘The free marketplace may fail. A "constitutional marketplace failure" may eventuate in which a small circle of powerful people dictate and fashion the "marketplace of ideas”’ (Cohen v. Israel Bar Association [52], at p. 540; HCJ 4915/00 Reshet Communications and Production Company v. Government of Israel [55], at p. 471).

This gives rise to the need to “impose limitations on a process that threatens to transform freedom of speech into the special privilege of a minority group, instead of it being a universal right” (Barak-Erez, at p. 186). Limitations are imposed by way of oversight and regulation of programs:

‘In view of the great social importance attaching to the electronic communications media, and against the background of their unique features, the general view is that there is a need for regulation in this area. The aim of governmental oversight is to ensure that the maximum number of opinions and views find expression in the framework of the media and hence protect the “marketplace of ideas”’ (Satellite Services (1998) Ltd. v. Committee for Cable and Satellite Broadcasts [9], paras. 12 -13).

An additional point of departure that justifies regulation in the communication marketplace derives from the conception that “the airwaves are public property and do not belong to any particular individual” (Shiran v. Broadcasting Authority [53], at p. 378), the conception that the electronic media constitute a “public platform” (Cohen v. Israel Bar Association [52], and see Zwilli v. Chairman of the Central Elections Committee [6], at p. 707; HCJ 5933/98 Documentary Creators Forum v. President of the State [56], at p. 515) as well as a “limited resource” (Media Most Company Ltd v. Council for Cable and Satellite Broadcasts [18], at p. 24), and from the conception that the public media – television and radio – “constitute a governmental authority from the perspective of Israeli law” (Barak, "The Tradition of Freedom of Speech and its Problems", p. 237).

It follows that whoever controls the public platform is also subject to obligations. President Barak discussed this point in relation to the affirmative aspect of the freedom of speech:

‘The media is not just a mouthpiece. It is also a platform. It is likely to be perceived as governmental in nature, and as discharging a public function. This is the affirmative aspect of freedom of speech’ (Barak, "The Tradition of Freedom of Speech and its Problems", at pp. 237-240, 247).

Regarding the Broadcasting Authority, Barak stated explicitly:

‘Recognition of the governmental nature of the Broadcasting Authority made it possible … to recognize the obligations of the Broadcasting Authority as a governmental authority. These are the obligation of objectivity in programming, prevention of politicization of the authority, fairness in advertising, equality, reasonability, the absence of conflict of interest, and good faith in its decisions. It is its obligation not to discriminate’ ("The Tradition of Freedom of Speech and its Problems", at p. 238).

For a comprehensive discussion of the possibility - which does not arise in our case - of imposing legal obligations in relation to private newspapers due to their social function, see: Pesach, "Analytical Basis", at pp. 933-962, 975-984, and Aharon Barak, "Private Printed Media", Alei Mishpat, at p. 293 (2002).

44.  In this context I accept the State’s position that the role of regulating freedom of speech for our purposes is to ensure equality in public discourse and to prevent unfair and unequal influence on the listening and viewing public.

Whereas equality is often realized by removing obstacles to expression in fori that are particularly accessible to the public and in which expression is effective (cf: AAA 3307/04 Kol Acher BaGalil v. Misgav Local Council [57]),  sometimes - seemingly paradoxically -  a specifically restrictive act is required to ensure substantive equality between political expressions. On the theoretical level, this approach is based on the democratic theory of the freedom of speech (Dayan-Urbach, at pp. 388-391, 395-404), on the importance of the principle of equality (Guy Pesach, "Resources of Expression – Characterization and Guidelines for their Allocation" in Be Quiet! Someone is Speaking: The Legal Culture of Freedom of Speech in Israel, 299 at pp. 333, 353-354 (ed. Michael Birnhack, 2006)) and on the role of the media as operating in the “public domain” (Pesach, "Analytical Basis", pp. 970-974):

‘The paradigm of discourse … takes a positive view of a certain degree of governmental regulation in the area of communications and expression …. This kind of involvement is regarded as essential in order to ensure proper discourse and a fitting environment for expression in terms of the degree of decentralization, the variety and the multiplicity of opinions and information' (Pesach, "Resources of Expression").

            In this context, where a concern arises that the possibility of purchasing advertising time for the purpose of disseminating political messages may lead to discrimination against those expressions that lack the financial support to enable them to appear in the framework of advertisements, the threat to the preservation of a balance between the different views in society is clear.  In such a situation, the restriction of political expression in the framework of advertisements as prescribed by the Rules, insofar as it is proportionate under the circumstances, is a factor that actually strengthens rather than weakens public discourse. It limits the influence of wealth on processes of choice in society and allays the concern expressed by the State – a concern to which this Court has related in the past:

‘Freedom of election means not only the physical freedom to cast a ballot in the booth, but also, and principally, the complete freedom to experience the voting process as a free person, both psychologically and intellectually. Therefore, any act that could reduce or eliminate, either directly or indirectly, the voter's freedom of thought and his ability express his preferred course of action and his philosophy genuinely, in accordance with his independent judgment – whether due to a benefit that interferes with this freedom or because the opinions of others have been forcibly imposed upon him - violates the basic principle of freedom and independence of choice. Hence, acts such as these are fundamentally improper. A different or more lenient approach to this subject, or acceptance of and succumbing to such acts, would necessarily undermine the democratic process and distort its character, because the inevitable result would be that he who pays the piper would call the tune, in addition to holding the reins of power with all that it implies; there can be no greater perversion of the principle of the democratic system in an enlightened society’ (CrA 71/93 Flatto-Sharon v. State of Israel [58], at p. 766; see also the Report on the Structure of Public Broadcasting, at p. 57).

President Barak also commented on the importance of equality between participants in political discourse and on the persuasive power of capital:

‘Placing a “price tag” on the realization of a right means violating the rights of those who are unable to pay the price' (Mateh Harov v. Israel Police [32], para. 16; this judgment was partially the subject of a Further Hearing, see HCJFH 552/07 Magen David Adom BeYisrael v. Mateh Harov [58a]).

            On the importance of the principle of equality amongst the participants in political discourse and the concern about the undue influence of wealth see below, in para. 53, quotations from the judgment of the House of Lords in 2008, in R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193. 

The fairness doctrine in programs and its effect on the framework of advertisements

            45. In the present case, the respondents’ responses to the petition focused largely on their concern that abrogation of the Rules in such a way as to open the framework of political advertisements to political entities and messages, would lead to domination of the framework of advertisements by those powerful elements who are better able than others to express their positions in political advertisements, thus negating all substance of the fairness doctrine in programs.

In the similar, though not identical, context of election propaganda, President Barak noted in the past:

‘The desire to ensure equality between the parties leads to extending the prohibition on election propaganda, due to fear of the governing parties “gaining control”, one way or another, over the media during the election period. The same applies to the desire to prevent “undue influence” on the elector. Ensuring attainment of this desire - which the mandatory legislator had in mind - also led to the extension of the prohibition on election propaganda' (Zwilli v. Chairman of the Central Elections Committee [6], at p. 703; and cf. Shammai v. Second Authority for Television and Radio [5], para.17).

This concern also exists in relation to advertisements:

‘Public bodies with large advertising budgets may try to acquire immunity against oversight through the use or threat of use of their advertising budgets…. Even where nothing explicit is said, a particularly large and inflated advertising budget confers upon the giant companies a certain degree of immunity, or at least protection against damaging publications…. The natural tendency of some of the advertisers and some of the commercial media [is that] they have no interest in falling out with the advertisers who are the source of their livelihood. This is a serious restriction of the flow of information and of the public’s right to know…. It reveals the influence of the advertisers over the contents of the media…. It is the very heart of the discussion regarding commercial media, its character, and its regulation' (Karniel, Laws of Commercial Media, at pp. 133-136).

This concern is amplified in view of the fact that radio and television broadcasts are very powerful communication media:

‘When the target audience of the expression is the general public, the most effective means of realizing freedom of speech is the communications media, particularly radio and television broadcasts, which reach almost every house in Israel’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 891c. And see, regarding commercial advertising, HCJ 7833/96 Melnik v. Second Authority for Television and Radio [59], at p. 595b; Neto M.A Food Trade Ltd. v. Second Authority for Television and Radio [4], at p. 526).

46. The respondents’ aforementioned concern provides the background for these comments. As noted, the fairness doctrine aims to “neutralize” this concern in relation to regular programs. It was not intended to neutralize the concern in the framework of advertisements. As we held in HCJ 10182/03 Education for Peace, the fairness doctrine is inapplicable within the framework of advertisements:

‘Commercial advertising that realizes the freedom of commercial expression is also subject to rules intended to ensure fairness in advertising from consumer and other perspectives…. However, as noted, the “fairness doctrine” underlying the restrictions and conditions specified in s. 4 of the Broadcasting Law and in s. 47(a) of the Second Authority Law cannot be applied in relation to advertising. As a result, tremendous difficulties arise where advertisements are used for non-commercial purposes (HCJ 10182/03 Education for Peace, at para. 7; cf. in the context of service broadcasts of the Broadcasting Authority, Israeli Association for Prevention of Smoking, at p. 166).

This invites the question of the relationship between the programs, which are subject to the fairness doctrine, and the framework of advertisements, in which the fairness doctrine cannot be applied. In my opinion it is inappropriate to thwart the legislative intention to apply the fairness doctrine in programming by “shattering the boundaries” by means of the framework of advertisements (cf. Zwilli v. Chairman of the Central Elections Committee [6], at p. 707).

47.By its very substance, the framework of advertisements was not intended to provide a platform for the airing of controversial ideological-political views, as decided in Gush Shalom Society v. Broadcasting Authority [41]:

‘The Broadcasting Authority serves inter alia as a forum for the expression of varying positions and views, in the framework of the programs broadcast and the time allotted to them. The Authority is charged with ensuring reliable programming “which provides suitable expression of different approaches and points of view current among the public” (s. 4 of the Law). At the same time, it is clear that by its very essence, the framework of advertisements is not intended as a platform for broadcasting controversial ideological-political views. The broadcast of such opinions in the framework of paid commercials frustrates the preservation of a balance between different views in the framework of the Authority’s programs’ (Gush Shalom Society v. Broadcasting Authority [41], at p. 894).

Indeed, the broadcast of a political advertisement in the framework of advertisements is liable to upset the balance between the different views in the framework of the public programs of the Broadcasting Authority, and undermine the doctrine of fairness in programming. The Rules under discussion are intended to prevent this, and here too, that which is ancillary (the framework of advertisements) is determined by the principal (the programs).

            The comparison between the public platform in the town square in which a person stands on a soapbox and voices his opinions, and between the political advertisement in the media is incomplete. A person who wishes to express his opinion in the town square needs only a megaphone, and perhaps a soapbox, both of which can be used repeatedly, at minimal cost.  The town square is large, and there is usually enough room for all those wishing to have their say. Not so with the broadcast of political matters in the framework of advertisements via the channels of the electronic media. Here funding is required; in other words, this is not really an avenue which is open to all.

48.  In summary: The main purpose of the Rules in our case is to ensure balanced and fair programs. The Rules were intended to prevent erosion of the application of the fairness doctrine in  programs and “the shattering of the framework” by the broadcast of political messages within the framework of advertisements, to which, as stated in Gush Shalom Society v. Broadcasting Authority [41], the fairness doctrine is not applicable. In my view this reason suffices to determine that the Rules satisfy the requirements of the third subtest of the limitation clause, i.e. the condition of a proper purpose.

The means adopted by the Rules to realize this goal is the total prohibition on the broadcast of political messages in the framework of advertisements.  We will now proceed to examine the proportionality of the means adopted.

Limitation clause - fourth condition: proportionality

49. The fourth and final condition for the constitutionality of the violation of a human right protected by the Basic Laws is that the violation be “to a degree no greater than necessary.” This condition comprises three subtests, which will be examined below.

In my view, the State’s argument that the right to freedom of speech does not impose an obligation on the Broadcasting Authority "to broadcast the political messages of the petitioner at the time, place and manner desired by the petitioner” has merit. It has already been held that “freedom of speech is not an absolute value. The mere recognition of an expression as being protected by the freedom of speech does not require that it be granted a platform in every framework …. Not every individual is entitled to realize his freedom of speech through the Authority, with respect to every expression, in every framework, and at any time he wishes” (Gush Shalom Society v. Broadcasting Authority [41], at p. 891). Even the petitioner acknowledges that “certain rules must be set that will permit the publication of political or controversial matters, subject to certain restrictions … including the contents of the message, the manner of its presentation, the frequency of its broadcast, the hours of broadcast etc.”  The petitioner thus recognizes the importance of restricting rules in this area. Hence, the real dispute is only whether the existing, restricting rules are proportionate, or whether different, more lenient rules should be formulated.

A.Limitation clause – proportionality: the rational connection test

50. The first subtest for the proportionality of the violation is that of the rational connection. The means chosen must lead rationally to the realization of the objective. The rational connection is examined by means of the “results test” (per President Barak, Movement for Quality Government in Israel v. Knesset [14], at para. 58), despite the fact that “[i]n most cases it is possible to base the rational connection on experience and common sense. On this basis, it is possible to show that the legislation is not arbitrary, but based on rational considerations” (per President Barak, Adalah v. Minister of the Interior [49], at para. 67).

In our case, a complete prohibition on political advertisements is an effective means for realizing the objective that we discussed above. The conclusion is therefore, that the Rules satisfy the first subtest.

B. Limitation clause - proportionality: the test of the least harmful measure

51.  The second subtest of proportionality of the violation is the test of the least harmful measure. From among the measures available to the legislature, the one chosen must be that which is the least damaging to human rights. The chosen measure need not be the least harmful in an absolute sense, but it must be within the bounds of proportionality:

‘The obligation to choose the least harmful measure does not amount to an obligation to choose the measure that is absolutely the least harmful …. The rational options must therefore be compared, and the option selected must be that which, in the concrete circumstances, is capable of achieving the proper purposes with a minimal violation of human rights’ (per President Barak, Adalah v. Minister of Interior [49], para. 68).

In the case before us, the Rules that were laid down represent the selection of the least harmful measure. We were not shown any other, less harmful measure, capable of effectively achieving the same goal.  Under the circumstances there is no appropriate alternative to a total prohibition. The petitioner proposed an alternative based on “individual examination” of each advertisement in accordance with specific restricting criteria to be laid down in primary or secondary legislation, instead of the total prohibition. For example, it was proposed to set criteria relating to the date of the advertisement and its duration, the number of times it would be broadcast per day, the position of the political advertisement in the cluster of advertisements etc. I have two reasons for rejecting the petitioner’s proposal. First, this kind of "individual examination" already exists by virtue of the binding interpretation of the Rules as determined in HCJ 10182/03 Education for Peace. Secondly, the question is not whether the rules proposed by the petitioner constitute less of a violation of freedom of speech than the blanket prohibition. Rather, the question is whether the same goal, and especially the fairness doctrine, can be achieved using a less harmful measure. After all, “[i]f the less harmful measure is less effective in achieving the proper purpose, it is not a measure that the legislature is obliged to adopt” (per President Barak, Adalah v. Minister of the Interior [49], para. 88). In our case – will the measures proposed by the petitioner realize the goal that we discussed above to the same extent as the full prohibition? In my opinion the answer is negative, and there is therefore no obligation to choose that measure (cf. ibid, para 89). In my opinion the Authority was entitled to choose the complete prohibition for which it in fact opted.

The conclusion is that the Rules also pass the second subtest.

52. Here it should be mentioned that recourse may also be had to comparative law on the subject of the proportionality of a total prohibition on the broadcast of political advertisements. In England a complete prohibition was established in ss. 319 and 321 of the Communications Act, which prohibits the broadcast of political advertisements outside the framework of propaganda broadcasts (see: Ian Walden and John Angel, Telecommunication Law and Regulation 444-447 (2nd Edition, 2005). Following the ruling of the European Court of Human Rights regarding similar prohibitions in other states (in Switzerland, VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI; and in Ireland, Murphy v. Ireland, no. 44179/98, ECHR 2003-IX), the issue recently arose in the context of R (Animal Defenders International) v. Secretary of State for Culture, Media and Sport, [2006] EWHC 3069 (Admin).  Another question that arose was whether English law conformed to the European Convention on Human Rights and Fundamental Freedoms (hereinafter: “the European Convention”). In that case the British Communications Authority disqualified the broadcast of an advertisement of the Organization for the Protection of Animals that protested against the use of monkeys for entertainment purposes in zoos and circuses. The Organization for the Protection of Animals petitioned against this decision in the High Court of Justice - Administrative Court, asking the Court to declare that the total ban "does not comply" with the requirements of the European Convention as incorporated in the Human Rights Act of 1998 in Britain. The Court examined whether the total ban satisfies the requirements of the limitation clause in art. 10(2) of the European Convention, which permits a violation of freedom of speech subject to the fulfilment of three cumulative conditions: the prohibition is established by statute; the prohibition is essential in a democratic society; the prohibition is for purposes of national security or public safety (there are also alternatives relating to additional interests that are not relevant to the present case). The dispute in the Court related to the question of whether the total ban was “essential in a democratic society”. The Court ruled that this condition was satisfied and held that it would not declare that a total ban was in conflict with the European Convention. Some of the rationales that I discussed above are mentioned at length as the basis of the Court’s decision.

Lord Justice Auld ruled that in this context a total ban is justified because a lower-level ban would thwart the general aim of protecting the democratic process:

'79. […] To have attempted to limit the prohibition by a more restricted and more precise definition of such bodies or ends would have defeated the overriding objective of preventing the distortion of political debate, which takes many forms and embraces a vast range of matters of public importance and interest.  Moreover, it would have engendered much uncertainty and scope for litigation, and would have invited evasion by political parties thus disadvantaged to “contract” out their political advertising to other bodies or individuals'.  

Mr. Justice Ousely ruled that the purpose of the total ban was to support the democratic process in a wide sense:

'108.The justification for the view embodied in the legislation is clearly made out.  Does it however demonstrate a pressing social need, to a high level, for this legislation?

109. I take the view that it does.   As I have said, at root the prohibition in s. 321 is aimed at supporting the democratic process in a wide sense, supporting a fair framework for political and public debate and avoiding an undesirable advantage being obtained by those able and willing to pay for advertisements in the most potent and pervasive media.  The prohibition thus achieves a very important aim for a democracy'.

Mr. Justice Ouseley added that a ban at a lower level, limiting political advertisements according to specific criteria, would not achieve its purpose in view of the difficulty of accurately distinguishing between parties, and between types and categories of advertisements:

“103. […] It is also difficult to see what principle underlies an outcome permitting access only to those who have enough to advertise, but not so much as to be over wealthy. I cannot see why under Article 10 those who have money should be denied access to the media accessed by their  opponents - poorer  but not so poor as to be unable to afford access.

…

104. It is clear that part of the justification for the complete ban is the real difficulty of drawing any rational, practicable distinctions between parties, groups and types of advertisements.

…

110. No lesser degree of restriction adequately achieves that aim, by time or group. The democratic process is not confined to election time but extends to all those decisions which Government or the legislature may have to make between times. The existence of parties and groups which would have sought to influence debate through their economic power and willingness to spend money on broadcast advertising is quite clear. The potentially malign effect of over-mighty groups spending in a way which alters the terms of public debate, or of policies, or which alters the votes of legislators and influences electoral outcomes to the disadvantage of those less well-endowed or well-organised is obvious, and at work not only at election times. The power of the broadcast media, pervasive and potent, in that respect is not readily deniable.

111. For the reasons which I have already given, no sound or practicable distinction can be drawn between political parties or groups and social advocacy groups, or between groups by reference to their individual wealth or worth'. 

He further emphasized that the importance of unbiased broadcasting was undisputed, and summed up:

'125. In summary, the necessity for restrictions on political/social advocacy broadcast advertising outside elections periods has been convincingly shown.  It is necessary to protect the rights of others through preventing undue access to the broadcast media based on willingness and ability to pay.  At root it supports the soundness of the framework for democratic public debate.  The broadcast media remain pervasive and potent throughout the period between elections.  The suggested distinction between political parties or groupings and social advocacy groups does not reflect the true political impact of all such advertising.  The completeness of the prohibition avoids arbitrary and anomalous distinctions in practice”.

         On 12 March 2008, the House of Lords, sitting as a panel of five justices, unanimously rejected the appeal filed against the judgment (R (on the application of Animal Defenders International) v. Secretary of State for Culture, Media and Sport [2008] 3 All ER 193).  The leading judgment was written by Lord Bingham of Cornhill, who adopted the basic reasons of Justices Auld and Ouseley. I have chosen to quote a number of comments appearing in the opinion of Baroness Hale of Richmond, which I think are also germane to the case at hand.

            Baroness Hale dwelt upon the fact that the background to the decision was the concern for the tremendous power wielded by television and radio in the molding of public opinion.

'My Lords, there was an elephant in the committee room, always there but never mentioned, when we heard this case. It was the dominance of advertising, not only in elections but also in the formation of political opinion, in the United States of America. Enormous sums are spent, and therefore have to be raised, at election times.'

According to Baroness Hale, democracy is based on equality in voting power. Opinions backed by a greater budget must not be allowed to trample on other opinions purely by virtue of financial differences. The total ban thus expresses the proper balance between the right to freedom of speech and the principle of equality in elections.

'[48] In the United Kingdom, and elsewhere in Europe, we do not want our government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. 'Within the sphere of democratic politics, we confront each other as moral equals' (see Ackerman and Ayres, Voting with Dollars (2003) p. 12). We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.

[49] So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality….

[51] For all the reasons which my noble and learned friend, Lord Bingham of Cornhill, has so eloquently and comprehensively given, I agree that the ban as it operates in this case is not incompatible with the appellants' convention rights.'

In conclusion she clarified that a person seeking to disseminate a political advertisement was entitled to express himself via other means of communication, in which the danger of tilting public opinion was lower. There is no justification for establishing exceptions to a total ban that have no practical application.

'It is a balanced and proportionate response to the problem: they can seek to put their case across in any other way, but not the one which so greatly risks distorting the public debate in favour of the rich. There has to be the same rule for the same kind of advertising, whatever the cause for which it campaigns and whatever the resources of the campaigners. We must not distinguish between causes of which we approve and causes of which we disapprove. Nor in practice can we distinguish between small organisations which have to fight for every penny and rich ones with access to massive sums. Capping or rationing will not work, for the reasons Lord Bingham gives.'

Similar dilemmas arise with respect to political advertisements in the framework of public broadcasting in England. The rationales for justifying the total ban that I referred to above are similar, and as I showed, the discussion of the subject in England, too, is accompanied by an examination of the proportionality of the total ban, as well as an elucidation of the concern about abuse of public broadcasting.

53.  It would seem that in the case law of the European Court of Human Rights, too, there have been developments. 

The case of VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI involved the request of a Swiss association for the protection of animals to publish a response to an advertisement of meat marketers on Swiss television, which would include their opposition to the manner in which pigs were raised. Swiss law prohibits the publication of religious and political advertisements. Based on this law, a private television company banned the advertisement. The matter finally came before the European Court of Human Rights. The Court ruled that this constituted a violation of the association's freedom of speech, and it examined whether the conditions of the limitation clause in the European Convention were fulfilled. The Court ruled that the violation was lawful and that it was for a proper purpose – the provision of equal opportunity for the development of a public platform that was not influenced by wealthy sectors (s. 73 of the judgment). According to the Court, however, the ban was not proportional, and where a 'political expression' - as the particular advertisement was perceived – was concerned, the state had less room for maneuver.

Two years later, however, the same court handed down a decision in Murphy v. Ireland, no. 44179/98, ECHR 2003-IX that concerned a refusal on the part of Irish television to broadcast an advertisement with religious content that was liable to offend public sensibilities. Here too it held that there had been a violation of freedom of speech protected by the European Convention, but this time the Court confirmed the refusal to broadcast the advertisement as complying with the conditions of the limitation clause of the European Convention, distinguishing between the "political" advertisement that was considered in the VgT case and a "religious" advertisement. It held that there was greater latitude when it came to religious advertisements. In its judgment the Court stated that the advertisement was not subject to the rules of equality (in the category of the fairness doctrine that applies to broadcasts) and the fact that the broadcasting time was purchased for consideration operates in an unbalanced manner in favour of religious groups with financial resources. Regarding this, the Court's ruling, similar to the ruling issued in Israel in HCJ 10182/03 Education for Peace, was that there are practical difficulties in the fair and equal implementation of various criteria and distinctions that are made in each and every case, and it is preferable to ban such an advertisement completely:

 '77.  In the first place, the Court would accept that a provision allowing one religion, and not another, to advertise would be difficult to justify and that a provision which allowed the filtering by the State or any organ designated by it, on a case by case basis, of unacceptable or excessive religious advertising would be difficult to apply fairly, objectively and coherently (the above-cited case of United Christian Broadcasters Ltd v. the United Kingdom). There is, in this context, some force in the Government's argument that the exclusion of all religious groupings from broadcasting advertisements generates less discomfort than any filtering of the amount and content of such expression by such groupings.

...

78.  Secondly, the Court considers it reasonable for the State to consider it likely that even a limited freedom to advertise would benefit a dominant religion more than those religions with significantly less adherents and resources. Such a result would jar with the objective of promoting neutrality in broadcasting and, in particular, of ensuring a “level playing field” for all religions in the medium considered to have the most powerful impact.'

54.  My view is that the arrangement for political advertising in Israel is not exceptional in comparison with other arrangements in Europe.  There too it was difficult to find an alternative to a total ban. The rationales specified there to justify a total ban as the least harmful measure, are similar to those I discussed above. As stated, I believe that the balance achieved in the framework of the Israeli legislative arrangement satisfies the second subtest, and it is the least harmful measure. We will now proceed to the third and last subtest.

C.  Limitation clause - proportionality: the proportionality test “in the narrow sense”

55. The third subtest is the proportionality test “in the narrow sense”. “Whereas the rational connection test and the least harmful measure test are essentially determined against the background of the proper purpose, and are derived from the need to realize it, the test of proportionality (in the narrow sense) examines whether the realization of this proper purpose is commensurate with the violation of the human right” (per President Barak, Adalah v. Minister of Interior [49], para. 75; see also  United Bank Mizrahi Ltd. v. Migdal Cooperative Village [15], para. 23).

The third subtest is a “values-based test” (per President Barak, Adalah v. Minister of Interior [49], para.75, and see per Deputy President M. Cheshin, ibid. para. 107).  It is a “test of balancing” between conflicting values and interests according to their weight” (per President Barak, ibid. para. 74). It is an expression of the principle of reasonableness (Levy v. Government of Israel [36a], at p. 890d; see also Horev v. Minister of Transport  [26], at p. 43 {195}). Ultimately, the third subtest requires a reasonable balance between the needs of the public and the harm to the individual:

‘According to [the third subtest] a decision of the governmental authority must maintain a reasonable balance between the needs of the general public and the harm to the individual. The objective of the test is to determine whether the severity of the harm to the individual and the reasons justifying it are duly proportionate (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [59a]).’

What is required, therefore, is a values-based balance of a “reasonable relation between the damage … and the social benefit engendered by the violation” (HCJ 4769/95 Menahem v. Minister of Transport [50], at p. 279; see also per President Barak in Movement for Quality of Government v. Knesset [14], para. 60; and Gaza Coast Regional Council v. Knesset [13], at p. 550). “This values-based balancing … is not new in Israel. It is common in the case law of the Supreme Court since the founding of the State” (per President Barak, Adalah v. Minister of Interior [49], para. 47; see also Barak, The Judge in a Democracy, at pp. 270-274; Sapir, ‘Old versus New,’ pp. 478 – 480, 487; Birnhack, ‘Constitutional Engineering,’ at pp. 620, 639). The values-based balance is therefore the thread running through the rulings of this Court in relation to freedom of speech as well  (Barak, ‘Tradition of Freedom of Speech and its Problems,’ at p. 226; Salzberger, ‘Tradition of Freedom of Speech in Israel,’; and see inter alia the methods of balancing of values in HCJ 73/53I Kol Ha’Am Ltd. v. Minister of the Interior [60], at p. 892; Miller v. Minister of Defense [11] at p. 138 {232}; Horev  v. Minister of Transport [26], at p. 43 {195}; HCJ 316/03 Bakri v. Film Censorship Board [61],  at p. 263e; Solodkin v. Beth Shemesh Municipality [38], at p. 612; Levy v. Government of Israel [36a], at p. 889; per President D. Beinisch in  Meshi Zahav v. Jerusalem District Commander [37], para.10; per President D. Beinisch in  HCJ 5277/07 Marzel v. Commander of Jerusalem Regional Police [62], para. 2).

56. In the present case, the requirements of the third subtest are similarly satisfied, for there is a reasonable balance between the damage to the individual and the benefit to society stemming from the violation.  The violation of the petitioner’s freedom of political expression is not serious, and it is reasonable in relation to the benefit to society from upholding the fairness doctrine. The benefit from upholding the fairness doctrine is considerable. Above we discussed the importance attaching to the values and interests that the Rules are designed to realize. As opposed to this, the damage occasioned by the violation of the petitioner’s freedom of political expression is not great. Indeed, in the framework of the balance of values, the magnitude of the violation of the right must be taken into consideration as well (per President Barak in Adalah v. Minister of Interior [49], para. 65). Many alternatives are available to the petitioner for the publication of the political expression in frameworks suited for political expression, both in the programs themselves, such as news programs, or in political broadcasts which are aired by the Broadcasting Authority and the Second Authority by virtue of their functions and subject to the fairness doctrine (see Zakin v. Mayor of Beer Sheva [27], at p. 303b), and in other advertising frameworks, such as the print and the electronic press. Under these circumstances, the violation of the constitutional right does not carry great weight (cf. Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414). The violation affects equally all those with an opinion that they wish to express in the framework of the advertisements, and this fact, too, has implications for the proportionality of the Rules (cf.  HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd. v. Director of Sabbath Work Permits [63]). In terms of the “effect” that the Rules have on the constitutional human right, it cannot be said that the recourse to a legislative measure causes a grave violation of a human right while the anticipated benefit for the public is negligible (cf. HCJ 1715/97 Israeli Office of Investments Managers v. Minister of Finance  [64], at p. 385). At the very least there is a reasonable balance between the benefit conferred by the Rules and the damage they entail.

57.  I do not accept the petitioner’s approach whereby abrogation of the Rules will enable a person whose political opinion did not receive sufficient exposure in the regular programs, to express his opinion in the framework of advertisements. The petitioner claims that otherwise, such a person will have no access to the public, and will be condemned to silence. I have two reasons for rejecting this approach. First, the holder of the opinion has numerous means at his disposal for expressing his views, outside the framework of the programs of the Broadcasting Authority and those of the Second Authority, and consequently, he is not condemned to silence. In this context we must not underestimate the growing importance and influence of the Internet, which serves as a kind of modern “town square”, the size of which is that of the entire country (see Pesach, "Sources of Expression", 307, at pp. 312-315; and see also Laura Stein, Speech Rights in America: The First Amendment, Democracy and the Media(2006) 81-112).

Secondly, even within the framework of the broadcasts of the Broadcasting Authority and the Second Authority, the holder of a political opinion is not condemned to silence, because the regular programs are governed by the fairness doctrine. If he so wishes, the holder of a political opinion should apply to the Authority with data that supports his claim (Kahane v. Management Committee of the Broadcasting Authority [54]; Gush Shalom v. Broadcasting Authority [41], at p. 894).

58. The conclusion is that the Rules also satisfy the third subtest, and they embody a reasonable and proper balance between freedom of speech and other values that the Broadcasting Authority and the Second Authority are required to protect in their capacity as public broadcast channels (see Gush Shalom v. Broadcasting Authority [41], at p. 892).

59. Having concluded the examination of proportionality, it will be mentioned that the proportionality of the Rules is reinforced by the interpretation of the Rules in HCJ 10182/03 Education for Peace, which permitted the broadcast of political advertisements provided that the focus be exclusively on the factual message (see also in HCJ 1893/92 Reshef v. Broadcasting Authority [65], at p. 820).  Admittedly, in that case the Court dealt with the application of the Rules, and it was not required to rule on their constitutionality, since the point of departure was that they were constitutional (see ibid, para. 8). Nevertheless, the binding interpretation of the Rules in that case may buttress their constitutionality: as we know, “it is preferable to interpret and not to cancel” (Zakin v. Mayor of Beer Sheva [27], at p. 299c).

In my comments above I mentioned that in HCJ 10182/03 Education for Peace, the petitioner and the Broadcasting Authority came to an agreement regarding the wording of the advertisements that would satisfy the case law requirements. The result was that the petitioner was permitted to broadcast an advertisement in accordance with the existing Rules, in a manner that complied with the case law. This is an additional indication of the proportionality of the existing arrangement as explained in HCJ 10182/03 Education for Peace. This practical solution is equally availableto those holding unorthodox opinions (cf. Kahane v. Management Committee of Broadcasting Authority [54]).

60. I am of the opinion, therefore, that the Rules satisfy the requirements of the limitation clause. They do not raise a “constitutional problem”; consequently, in the case before us there is no need for relief or for a constitutional remedy.

Epilogue

61.  Summing up: I accept that the Rules of the Broadcasting Authority and of the Second Authority violate the petitioner’s freedom of political expression. This is a violation of a constitutional right. However, this violation does not render the Rules unconstitutional. This is because they satisfy the conditions of the limitation clause. The arrangement prescribed in the primary legislation and in the Rules is for a proper purpose – ensuring fair and balanced programs in accordance with the fairness doctrine. The violation of freedom of speech is of a degree that does not exceed that which is necessary. As such the petitioner’s constitutional argument is rejected. The Rules of the Broadcasting Authority and of the Second Authority have “passed” the constitutional examination and there are no grounds for us to interfere with them.

If my opinion is accepted, we should deny the petition without an order for costs.

 

 

 

Justice E.E. Levy

1.  I concur with the result reached by my colleague, Justice M. Naor, but my view is based on an additional consideration, which I will discuss briefly.  Personally, I am not convinced that the fairness principle is the only core issue.  Indeed, the importance of substantive equality between concerned parties should not be underestimated; it was referred to by Justice I. Zamir as the “equality of chances” [of the concerned parties] to convey their message to the public for the purpose of influencing its position (HCJ 3434/96 Hofnung v. Knesset Speaker [66], at p. 67). This principle has found expression in a string of legislative acts: the Second Television and Radio Authority Law, 5725-1965; Political Parties Funding Law, 5723-1973, and the Elections (Modes of Propaganda) Law, 5719-1959, as well as the rulings of this Court.

Indeed, even though we know that the great mass of water that has flowed in the stream of political dealings in Israel since its very beginning has occasionally cast doubt on the actual existence of such equality – so that it sometimes seems that despite legal restrictions, the wealthy have found ways to use their wealth to obtain an advantage in the  struggle over public opinion - nevertheless, the importance of ensuring equal allocation of public resources as far as possible cannot be overstated.

2.  In my view, however, the principle of equality can be realized in a way that involves less of a violation of freedom of speech. Apart from an absolute ban on advertisements with political contents, one can think of several options for the allocation of communications resources in a manner that would promote equality among all those seeking to use the media. If this does not happen, it is only because the reason for the prohibition must be sought elsewhere. My view is that the fundamental consideration underlying  the opposition to political advertisements involves the maintenance, or at least the prevention of further degeneration, of the character of public discourse in Israel.

3.  Opening the field of advertising to political content would radically change the nature of public discourse as we know it. I am particularly perturbed by the element of indoctrination that is liable to accompany the advertising media. Marketing ideological views like sausages on the supermarket shelf, in which the frequency of repetition of the jingle singing their praises influences the willingness of people to endorse them, poses a substantive danger to the quality of political discourse in Israel, which even now is not ideal. It may be that in the particular case at hand, the effect would not be extreme, but one can easily imagine how slippery the slope is and how quickly we might find ourselves at the bottom. If we must resign ourselves to a similar phenomenon on the eve of election campaigns, it is only by virtue of express legislative provision, which in like vein attempts to clearly delineate the times at which it is permitted; it does so on the basis of a  purpose that does not exist on a daily basis, namely the need to influence the voting public before it goes to the polls.

It may be argued that regulation restricting the contents or the spirit of broadcast advertisements would help reduce the dimensions of the difficulty. I do not think so. Not only would the application of this kind of restriction not satisfy the advocates of freedom of expression and freedom of political association, but primarily, it would be the commercial interests -  which usually predominate -  that would dictate the regulatory result in the final analysis.  My colleague Justice Naor rightly ruled that the broadcast of these advertisements stems from the need to find funding sources for the activities of the broadcasting bodies.  From my perspective it is immaterial if the advertiser is charged, or if it is allowed to transmit for free, at the expense of time allotted to paid commercial advertising. A concrete example of this is the ubiquitous complaint of commercial broadcasting franchisees, whenever an election period is just around the corner. It is then that they are required to comply with the requirements of the Elections (Modes of Propaganda) Law, and to broadcast election propaganda at the expense of their programs.

4.  I propose that the relevant rules of the relevant broadcasting authorities be interpreted first and foremost with the aim of distinguishing between political expression and its commercial aspect. This form of analysis makes it possible to reconcile the purpose and the means adopted to achieve it on the one hand, with the conditions of the “limitation clause” of Basic Law: Human Dignity and Liberty, which is the appropriate means of examining any government action that violates a basic right or protected interest of the individual, irrespective of whether the examination is based on the provisions of constitutional law, or whether it is based on the rules of administrative law (HCJ 8035/07 Eliyahu v. Government of Israel [67], at para. 6, and references).

5.  It is clear that in the absence of proof of such a violation there is no point, nor any advantage, in invoking these tests.  Nevertheless, I am unable to concur with the conclusion of my colleague, Justice Procaccia, for I believe that in the case before us,  the restriction of the petitioner’s access to such a central avenue of expression,  that offers exposure to a broad public and draws significant public attention, and even the very act of conditioning such access upon payment, violates the petitioner's freedom of expression. I think that the petitioner has successfully cleared the hurdle of proving a violation, but disposing of the remaining hurdles may prove difficult.  Unlike my colleague, the President, my view is that the authorizing language of the Law is sufficiently clear and explicit to enable the secondary legislator to anchor the violation in regulations. It is abundantly clear that the legislation under discussion, which concerns advertising in the media, impacts directly on freedom of expression. As such, the authorization it grants to impose restrictions on those advertisements would seem to be an explicit authorization to impose restrictions on freedom of expression, even though the Laws do not establish criteria for the regulation of those restrictions.  I believe that the legislative intention is sufficiently clear.  The specific question of its appropriateness is a matter for the other components of the judicial examination, i.e. the question of the propriety of the purpose, and the proportionality of the means adopted for its attainment. As I explained above, and bearing in mind that the use of the mode of expression under discussion has yet to strike roots and that television broadcasts anyway provide an extensive platform for political expression, my view is that the foundations of the proper purpose and proportionality are satisfied by the ban on political advertising.

6.    For these reasons I agree that the petition should be denied.

 

 

President D. Beinisch

I have read the opinion of my colleague Justice M. Naor and I concur with significant parts thereof, but I am unable to remain in step with her along the path to the final result.

Like my colleague, I too think that the prohibition on the broadcast of advertisements on political subjects, prescribed in s. 7(2) of the Broadcasting Authority Rules 5753-1993 (hereinafter: “Broadcasting Authority Rules”),  in s. 5 of the Second Authority for Radio and Television (Advertising Ethics in Radio Broadcasts) Rules, 5759-1999, and in s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994 (hereinafter: "Second Authority Rules"), violates the freedom of political expression that is part of the constitutional right to human dignity. I also agree that this violation must be examined from the perspective of the limitations clause. The first condition of the limitations clause is that the violation must be “by law  … or according to … law by virtue of explicit authorization therein.” According to Justice Naor, this condition was satisfied in the current case, for the reasons set out in her judgment. On this matter, my view is different.  In my view, like all the other substantive conditions of the limitations clause, the requirement of “explicit authorization” should be construed in accordance with the entirety of the circumstances, including the nature of the right being violated, its underlying reasons, and the magnitude of the violation.  Bearing in mind that the prohibition on political advertisements is an absolute one, which constitutes a substantial, and grave, violation of the freedom of political expression that is accorded central status in our legal system, my opinion is that the authorization sections in the existing legislation do not constitute “explicit authorization” by law to establish a prohibition in secondary legislation.  This considered, my view is that the Rules with which this petition is concerned were enacted without the appropriate legal authorization, and for that reason, the petition should be granted.  In this context it will be stressed that granting the petition by reason of that defect should not be understood as the expression of a position on the question of whether a total ban on political advertising is appropriate and proportional. My approach is that the issues of the proper purpose and proportionality do not arise in the current circumstances because of the failure to satisfy the condition of “explicit authorization” by law to violate the aforementioned right.

In my comments below I will elaborate on the reasons for my conclusion that the petition should be granted. At the outset, and before addressing the issue at hand, I will discuss the statutory authority of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio. As clarified, the authority to advertise for consideration is not limited to essentially commercial advertisements and in principle is also granted for advertisements intended to take a position on publically disputed political and ideological matters.

Statutory authorization for the broadcast of advertisements for consideration

1.    The Broadcasting Authority and the Second Authority are statutory corporations, established by law, by virtue of which they are authorized to broadcast. Section 25A(a)(1) of the Broadcasting Authority Law (hereinafter:  "Broadcasting Authority Law") authorizes the Broadcasting Authority to broadcast advertisements, as follows:

'25A – Radio Advertisements and Announcements 

 (a)(1) The Authority may broadcast on radio advertisements and announcements for consideration (hereinafter: advertisements and announcements), and commission them, prepare them or produce them by itself or by way of one or more other people, as determined by tender.’

It will be pointed out that the Broadcasting Law contains no provision authorizing the Broadcasting Authority to broadcast advertisements on television, and the authority to broadcast advertisements therefore relates exclusively to radio advertisements (see Osem Investments Ltd. v. Broadcasting Authority [2], para. 6 of the judgment of Justice Strasberg-Cohen).

As for the Second Authority -  s. 81 of the Second Authority for Television Law, 5750-1990 (hereinafter: "Second Authority Law") states that the franchisee may include advertisements in the framework of his broadcasts. This authorization applies to both television and radio broadcasts (see definition of “broadcasts” in s. 1 of the Law). Following is the text of the aforementioned s. 81 of the Law: 

'81. Broadcast Advertisements

(a) The franchisee is permitted to include within the framework of its broadcasts, advertisements for consideration at the rate that it determines.'

What does the term “advertisement” mean in s. 25A(a)(1) of the Broadcasting Law and s. 81(a) of the Second Authority Law? What kinds of advertisements are included in the authorization in principle to broadcast “advertisements” on radio and television?

The Broadcasting Authority Law does not provide a statutory definition of the term “advertisements”. Nevertheless, s.1 of the Broadcasting Authority Rules states that for purpose of the Rules, “advertisement” means “an advertising broadcast, sponsor broadcast, or an announcement, broadcast on the radio for payment to the Authority”. In the same section, “Announcement” is defined as “giving information to the public”. Regarding the Second Authority Law, s. 1 of the Law, entitled “Definitions”, states that a broadcast advertisement is “the broadcast of a commercial advertisement as defined in Chapter F (italics not in original). It is noteworthy that Chapter F of the Second Authority Law is entitled “Advertising”, and it begins with the abovementioned s. 81, which authorizes the franchisee to include “advertisements” in the framework of its broadcasts.

As a rule, the term “advertisement” admits of various meanings in accordance with its context. The meaning of the term “advertisement” in the authorizing sections of the Broadcasting Authority Law and the Second Authority Law is not necessarily identical to its meaning in a different context (cf. per Justice I. Zamir in Zakin v. Mayor of Be’er Sheva [27], at p. 300 ff). On the face of it, the terms “advertisements” and “commercial advertising” in ss. 25A(a)(1) of the Broadcasting Authority Law  and 81(a) of the Second Authority Law may bear more than one literal meaning in accordance with the context. One meaning of “advertisement” is the broadcast of an advertisement for consideration. The person ordering the advertisement pays for the publicity, and acquires the possibility of influencing the wording of the advertisement, its contents and the frequency of its public transmission subject to legal restrictions. According to this meaning, the statutory authorization for advertising on radio and television means sanctioning in principle the commercial vehicle of paid advertising, without limiting, in advance, the contents, the message or the purpose of the advertisement.  Thus, according to this meaning, the "advertisement" that the Broadcasting Authority and the Second Authority are permitted to broadcast is not confined to an advertisement with a commercial purpose and nature; an advertisement may also be intended to convey other messages, including political or ideological messages, provided that the means of imparting the message is commercial/funding-related. Accordingly, to impose restrictions on the message, the contents or the character of advertisements, would require separate statutory provisions.

Alternatively, "advertising" means publicizing a certain product or service, for the commercial purpose of marketing and promoting its sale in public. According to this meaning, the broadcast of advertisements is authorized not only because the means of advertising are commercial, but also because the contents, the character and the purpose of the advertisements are commercial. In other words, according to this meaning, the Broadcasting Authority and the Second Authority are authorized to broadcast  advertisements of a commercial character, intended to promote sales of a product or a particular manufacturer (cf. per Justice M. Elon in Israeli Daily Newspapers Association v. Minister of Education and Culture [68], at p. 389).

It seems that the second meaning of “advertisement” is the common and normal one (see per Justice E. Hayut in HCJ 10182/03 Education for Peace, para.7). Nevertheless, the question confronting us is that of the normative meaning of the word “advertisement” in the authorizing provisions prescribed in s. 25A(a)(1) of the Broadcasting Authority Law, and s. 81(a) of the Second Authority Law.  In their arguments, both the petitioner and the respondents assumed that the term “advertisements” in the aforementioned authorizing provisions bore the first of the two meanings mentioned above.  Both parties refrained from arguing that advertisements dealing with political or ideological matters do not fall within the framework of “advertisements”. The preliminary assumption in court was, therefore, that the term "advertisements" in the abovementioned ss. 25A(a)(1) and 81(a) includes advertisements that are designed to adopt a position on a political matter. This interpretative position is correct.

First, as noted above, the definition of “advertisement” in s. 1 of the Broadcasting Authority Rules also includes an “announcement” which is defined in that section as “giving information to the public.” Linguistically, the definition is a broad one that makes no exceptions with respect to the substance and contents of the information being conveyed.  Section 1 of the Second Authority Law defines advertising as “the broadcast of a commercial advertisement within the meaning of Chapter F”.   This definition, too, is linguistically broad and does not necessarily relate to the contents and purpose of the advertisement. Moreover, s. 25A of the Broadcasting Authority Law and s. 81 of the Second Authority Law stress that the authorization that they grant is for the broadcast of advertisements “for consideration.” This phrase reinforces the conclusion that the authorization was intended specifically to sanction the commercial/funding-related medium, and it is not concerned with imposing limitations on the contents and purpose of the advertisements.   Secondly, regarding their purpose, the authorizing sections are intended to allow the Broadcasting Authority and the Second Authority to recruit additional sources of funding for their broadcasts by means of advertisements.  The aim of the authorization was, therefore, to permit the use of the funding medium of paid advertising, even though the authorizing sections as such did not establish an advance limitation on the contents and the aim of the advertisements. Finally, it will be noted that s. 25A(b) of the Broadcasting Authority Law authorizes the management committee, in consultation with the Director General, to make rules regarding "prohibitions and restrictions on advertisements and announcements."  Section 88(2) of the Second Authority Law states that the Council will make rules on matters concerning the broadcast of advertisements, inter alia relating to “Prohibited advertising subject-matter for broadcast as advertisements ….” These statutory provisions, which will be discussed at length below, support the conclusion that the authorization for the broadcast of “advertisements", as such, does not impose any limitations on the contents and substance of the advertisement, and that in order to impose such restrictions it would be necessary to establish explicit constraints.  In fact, it is one of the restrictions prescribed in the Rules of the Broadcasting Authority and of the Second Authority that is the focus of this hearing, i.e. the restriction whereby advertisements may not be broadcast to impart political or ideological messages that are the subject of public controversy.  It will be noted that if the meaning of the said authorizing sections was that the Broadcasting Authority and the Second Authority are authorized to broadcast, ab initio, only advertisements with a commercial purpose and content, it is doubtful whether a prohibition would have been established on advertisements on political subjects that arouse public controversy.

Thus, the statutory authorization of the Broadcasting Authority and the Second Authority to broadcast advertisements on television and radio is not restricted to advertisements intended to promote the commercial sale of a particular product.  In principle, the Broadcasting Authority and the Second Authority are also authorized to broadcast advertisements intended to convey other messages, including political and ideological messages. Note that this interpretation is compatible with the general principles of our legal system, whereby the application of prohibitions and restrictions on freedom of expression should be limited to the minimum necessary extent (see e.g. per Justice (ret.) M. Shamgar in CA 723/74 Ha’aretz Daily Newspaper Ltd. v. Israel Electric Corporation Ltd [68], at p. 295).  The obvious conclusion is that no restriction on the character, purpose and contents of advertising broadcasts can be derived from the basic authorization provisions in s. 25A(a)(1) of the Broadcasting Authority Law and s. 81(a) of the Second Authority Law. These restrictions were established in the Rules of the Broadcasting Authority and the Second Authority.  One such restriction is the focus of this proceeding.

The prohibition on the broadcast of political advertisements

2.    The dispute between the parties concerns the constitutionality of the prohibition established by the Rules of the Broadcasting Authority and the Second Authority on the broadcast of an advertisement regarding a matter “which is the subject of a public political or ideological controversy” (as per s. 7 of the  Broadcasting Authority Rules) or an advertisement intended for the “imparting of a message on a political, social, public, or economic matter that is the subject of  public controversy” (as per ss. 5 and 11 of the Second Authority Rules).  For the reader’s convenience I will cite the full text of these rules as they were also cited in the judgment of my colleague. Section 7 of the Broadcasting Authority Rules, concerning advertising broadcasts and radio announcements states as follows:

‘7.  Prohibited Advertising

It is forbidden to broadcast an advertisement if, in the opinion of the Director General, it contains one of the following:

…..

(2) Party propaganda or a broadcast on a matter that is the subject of public political or ideological controversy, including a call for a change in the legislation concerning these matters’ (emphasis not in source – D.B.).

Similarly, s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 states the following regarding advertising broadcasts on radio:

'5.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message on  a political, social, public, or economic matter that is the subject of  public controversy.' 

The wording of s. 11 of the Second Authority Rules for Television and Radio (Ethics in Television Advertising) 5754-1994 is identical to that of the aforementioned s. 5, and concerns the prohibition on television advertising regarding controversial topics:   

‘11.  Advertising on Controversial Subjects

A franchisee shall not broadcast an advertisement that imparts a message regarding a political, social, public, or economic matter that is the subject of   public controversy.' 

The parameters of the prohibition on the broadcast of advertisements on controversial subjects were recently considered in the aforementioned HCJ 10182/03 Education for Peace.  In that case Justice E. Hayut held that in accordance with the most restrictive construction of prohibitions and restrictions upon freedom of expression –

'… the test for classifying a broadcast as being controversial should be that of the "dominant component", which examines whether the broadcast is intended primarily to convey information, with no emphasis nor any adoption of a stand on the substantive issue; or whether the broadcast also features a dominant component of persuasion concerning the advantages of the subject that is the focus of the broadcast…. An advertising broadcast may relate to a subject that is essentially a matter of public dispute, but without being controversial in terms of its text, its contents or form, and hence permitted for broadcast' (ibid,  at para. 8; see also: HCJ 1893/92 Reshef v. Broadcasting Authority [69], at p. 820).

 In that case the parties agreed to changes in the texts of the advertisements so that their focus would be the imparting of information to the public concerning a controversial matter, with no element of persuasion or adoption of a stand. It was held that this kind of broadcast is not included in the prohibition under discussion.

The ruling in HCJ 10182/03 Education for Peace invites the conclusion that the prohibition on advertisements regarding publically controversial issues does not apply to advertisements consisting primarily of the imparting of factual information to the public. In terms of both essence and purpose, advertisements included in the prohibition under discussion take a position on a publically controversial political or ideological issue.  Such advertisements are at the center of this hearing. For the sake of brevity I will refer to advertisements of this kind as “political advertisements”.

3.  It will be emphasized that in the course of these proceedings, the petitioner agreed that the broadcasts constituting the subject of the original petition are political advertisements within the meaning explained above. The dispute between the parties does not, therefore, concern the classification of the broadcasts as political advertisements; the principal focus of the discussion is the question of the legality of prohibiting political advertisements.  It is further emphasized that in view of the reasons on which the Broadcasting Authority and the Second Authority based their original decision to disqualify the petitioner’s advertisements, and in accordance with the wording of the order nisi granted on 29 July 2004, the present petition does not concern a prohibition on an advertisement that contains “party propaganda” as stated in s. 43(a)(3) of the Second Authority Law and in the opening clause of s. 7(2) of the Broadcasting Authority Rules (see para. 9 of Justice Naor’s judgment). The present case focuses, therefore, on the constitutionality of the Rules that prohibit the transmission of political advertisements within the meaning elucidated above, i.e. – advertisements whose dominant component is influence, persuasion or the adoption of a position regarding an issue which is a subject of public, political or ideological controversy.

Political advertising as political expression

4.    Political advertising features mixed aspects. On the one hand the messages of political advertisements are imparted to the public via a commercial avenue in return for payment. The external framework is therefore commercial. On the other hand, the entity requesting publication is not necessarily a commercial or business entity. The purpose and message of the advertisement are not commercial but rather political-ideological. Political advertising does not seek to promote a commercial transaction of the sale of a particular item, but rather to promote a political or ideological position among the public. (see Andrew Scott, "'A Monstrous and Unjustifiable Infringement'? Political Expression and the Broadcasting Ban on Advocacy Advertising", 66 Modern L.R. 224, 225 (2003)). These hybrid features raise the question addressed by Justice Naor in her judgment regarding the classification of political advertising as political or commercial expression.

In principle, the distinction between kinds of expressions is not always clear-cut, given that a particular speech may comprise hybrid features. The decision on whether the expression in this case is political or commercial should be based on the test of the “dominant aspect” of the expression from the perspective of the reasonable viewer, listener, or user (cf. Melnik v. Second Authority for Television and Radio [57], at p. 595, per Justice Y. Zamir). In this regard I agree with my colleague Justice Naor that the contents and the purpose of the expression, the motivation for its publication, its target audience, and the character and identity of the entity expressing itself are components of greater significance than the type of medium or the external framework through which the expression is brought to the public’s knowledge.  Bearing this in mind, I too believe that where an advertisement aims to communicate a political-ideological message to the public, and the publicizing entity functions on a public level as opposed to a commercial-business level,  it should be classified as political expression even if the medium of publication is of a commercial character.

5.    The classification of a political advertisement as political expression is significant in terms of the degree of protection accorded to such expression. Indeed, commercial expression, too, is accorded protection in the framework of freedom of speech. Commercial expression realizes the right of the public to receive information, and guarantees business competition between advertisers in the framework of the market of products and services. Commercial expression also enables the personal fulfillment of the individual issuing the publicity and of the public at whom the advertisement is directed, and it is a part of the freedom of occupation.  At the same time, it seems that commercial expression does not constitute a strong realization of the range of possible rationales for freedom of expression. Commercial expression, whose essence and purpose are to promote a commercial transaction for the sale of products, does not make a direct contribution to public dialogue on the subjects on the national agenda.  Considering all these, it was held that the scope and degree of protection granted to freedom of commercial expression are more limited than the protection of freedom of political, literary or artistic expression (on the kinds of legal restrictions on freedom of commercial expression see: per Justice E. Mazza in Maio Simon Advertising Marketing and Public Relations Ltd. v. Second Authority for Television and Radio [39], at p. 755; per Justice I. Zamir in Thermokir Horshim v. Second Authority for Television and Radio [7], at p. 414; and see  Kiddum Yazamot  v. Broadcasting Authority  [22]).

Political expression, on the other hand, lies at the very core of the right to freedom of speech and it constitutes the highest degree of realization of the reasons underlying that right. Freedom of political expression is an essential condition for the existence and development of the democratic regime, which in turn secures other basic rights. It makes possible the exchange of views between the members of society and thus enables them to consolidate their positions regarding matters on the public agenda. Freedom of political expression is also a tool for the individual's self-realization and the crystallization of his world view. Through freedom of speech in general, and freedom of political expression in particular, the individual is able to formulate independent views, to give expression to his own personal credo, to persuade and be persuaded, and to be involved and influential in matters  of concern to the society of which he is a part (see Kahane v. Broadcasting Authority [52], at p. 270 ff.).  All of these affect the constitutional standing of the said right. On this matter  I agree with those who maintain that that there is a close substantive connection between freedom of political expression and human dignity, which is based on the autonomy of will and the freedom of choice of the individual. Accordingly, I too believe that freedom of political expression falls within the bounds of the constitutional right to human dignity (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10, regarding freedom of expression and demonstration(.

The great importance of freedom of political expression for the individual and for society, and its contribution to the democratic process, affect not only its constitutional status but also the scope and degree of the protection accorded to such expression. Our case law has already held that among the different categories of expression, the protection afforded to political expression “… is particularly broad” and that political expression deserves “maximum protection”, albeit not absolute (per Justice D. Dorner in Indoor v. Jerusalem Mayor [28], at p. 164; and see also Kahane v. Management Committee [54], at p. 293). The classification of political advertising as political expression therefore affects the scope and degree of protection given to this form of expression, and we will elaborate below.

Violation of freedom of political expression

6.    As mentioned, the Rules of the Broadcasting Authority and of the Second Authority prohibit the broadcast of political advertisements on radio and television.  This is an absolute ban on the broadcast of advertisements whose dominant component is the adoption of a position on a subject that is the subject of public controversy. This ban violates freedom of political expression, and to my mind the magnitude of the violation is significant. As explained above, the authorization on principle for the broadcast of advertisements on radio also applies to advertisements of an essentially political or ideological nature (see para. 1 above). The unqualified prohibition on political advertisements totally excludes the possibility of utilizing the media’s advertising framework for purposes of persuasion and relaying political messages, thereby giving absolute preference to commercial expressions over political expression in the financial framework of paid advertisements (see Eric Barendt, Freedom of Speech 445 (2005). Considering all this,  my view is that the prohibition under discussion involves a significant, and serious, violation of freedom of political epression.

Here it should be mentioned that the respondents did not dispute that the Rules of the Broadcasting Authority and of the Second Authority violate freedom of speech. Their argument, however, was that freedom of political speech can be realized by way of the regular broadcasting framework as distinct from the framework of advertisements on radio and television.  Bearing that in mind, it was argued that the said right was not violated to a significant degree. I cannot accept this argument. Indeed, the existence of another effective avenue for relaying speech may be a relevant consideration when examining the magnitude of the violation of freedom of speech (see: Cohen v. Israel Bar Association [52], per President Shamgar, which was the minority view with respect to the outcome in that case). At the same time, in the present context it cannot be said that the format of news broadcasts or political programs constitutes an effective, equivalent alternative to the relaying of a political message by way of an advertisement, in which the person commissioning the advertisement can significantly influence its content, its manner of presentation and the scope of its public exposure. Neither can it be claimed that other media in which political advertising is permitted, such as the print media or the Internet, have the same value in terms of publicity as the broadcasting media which has such extensive power of communication. The inevitable conclusion is that preclusion of all possibilities for  persuasion and the conveying of political messages by way of advertisements on television and radio constitutes a significant, and serious, violation of freedom of political expression. As will be explained below, this conclusion is significant for purposes of examining whether the conditions of the limitations clause, which include the requirement that the violation be “by a law … or according to a law … by virtue of explicit authorization therein”, have been fulfilled.

It will be mentioned that the Broadcasting Authority emphasized that the broadcast of advertisements is not part of its duties, being no more than an ancillary power intended to enable it to enlist an additional source of funding for its broadcasts by law. The argument is that the Broadcasting Authority is authorized to broadcast advertisements on radio, but it is under no obligation to do so. In view of the fact that advertisements are broadcast by the Broadcasting Authority by virtue of an ancillary power the purpose of which is financial, and considering the respondents’ position whereby the advertising framework is “inappropriate” for political speech – it is argued that the prohibition on the broadcast of political advertisements does not constitute a serious violation of freedom of speech. I am unable to accept these arguments either.  The various communications media are not just a platform for the realization of freedom of speech of those speaking and of the target audience; the media itself enjoys autonomy with respect to its broadcasts as a substantive component of freedom of speech. It has already been held in our case law that “the right of access [to the media] is not a key to all channels of communication …. The holder of the right does not have freedom of speech at all times, in all forms and in all places" (per President M. Shamgar in Cohen v. Israel Bar Association  [52], at p. 552; see also per Justice (previous title) A. Barak in   Kahane v. Management Committee [54], at p. 268 and in Senesh v. Broadcasting Authorit [35], at p. 846).  Nevertheless, since the Broadcasting Authority and the Second Authority chose to exercise their authority to establish a framework for advertisements on television and radio, the preclusion of any possibility of political advertising constitutes a serious violation of freedom of political expression, considering all the above-mentioned reasons.  It is stressed that the question of whether advertisements are a suitable means for conveying political messages is not relevant when examining the scope and degree of violation of the protected right; rather, it arises in the framework of the examination of the constitutionality of the violation according to the criteria of the limitations clause (cf: Canadian Federation of Students v. Greater Vancouver Transportation Authority, 2006 BCCA 529, par. 131. That case concerned the invalidation of a decision of the public bus company to refrain from placing political advertisements on the sides of buses.  An appeal on the judgment is currently pending in the Canadian Supreme Court).

Examination of the constitutionality of the violation – the Limitations clause

7.    Like all human rights, the right to freedom of speech is not absolute, and at times it must give way to other rights or values or competing interests. As explained in the judgment of my colleague Justice Naor, the relevant balancing formula is that which appears in the limitations clause in s. 8 of Basic Law: Human Dignity and Liberty. This is indeed “the criterion accepted at present for balancing conflicting values” (para. 29). On this matter, I would like to add several comments.

First, the Rules of the Broadcasting Authority and of the Second Authority under discussion have the normative status of secondary legislation. The Broadcasting Authority Rules were made by the management committee, in consultation with the Director General by virtue of the authority under ss. 25A (b)(2) and 33 of the Broadcasting Authority Law. The Second Authority Rules were made by the Second Authority Council by virtue of their authority under ss. 24 and 88 of the Second Authority Law. These Rules were enacted with the knowledge of the Knesset Education and Culture Committee. As such they acquire the normative status of secondary legislation (cf: per Deputy President T. Or in HCJ 9596/2 Pitzui Nimratz, Experts for the Realization of Medical Rights and Insurances v. Minister of Justice [70], at p. 797 and the sources cited there regarding the normative status of the Bar Association Rules.   While the principal aim of the limitations clause was to limit the powers of the primary legislator, it is clear that anything forbidden to the primary legislator would certainly be forbidden to the secondary legislator (see I. Zamir, Administrative Authority, vol. 1, pp. 135, 138, 154). Bearing this in mind, I too am of the opinion that the Rules under consideration should be examined through the spectrum of the limitations clause.

Second, the limitations clause in the Basic Laws on human rights is the tool for assessing the constitutionality of a violation of rights enjoying meta-legal status, in that they are included in the inner core of rights specified in the Basic Laws. Nevertheless, the tests of the limitations clause may also be applicable by virtue of general principles governing human rights, which are part of the “Israeli common law”, and which do not have a status that is entrenched directly in the Basic Laws (see per President Barak in Horev v. Minister of Transport [26], at p. 43 {195}).  Accordingly, even on the view that freedom of political expression is not included in the constitutional right to human dignity, the constitutionality of secondary legislation that violates the aforementioned right must still be examined in accordance with the conditions stipulated in the limitations clause. These conditions are essentially similar to the tests applied in the case law relating to protection of human rights prior to the enactment of the Basic Laws (see my comments in Meshi Zahav v. Jerusalem District Commander [37], at para. 10); see also per Justice D. Dorner in Bakri v.  Film Censorship Board [61],  at para. 10).

Finally, it is noteworthy that counsel for the state argued that in the circumstances of the case, the criteria of the limitations clause should not be applied. The argument is that in order to examine the constitutionality of the prohibition on political advertising, the freedom of speech of the person wishing to advertise much be weighed up against the freedom of speech of the entire state citizenry, who are entitled to receive reliable and balanced information from the media.  According to counsel for the state, this is a horizontal balance between two rights of equal status, which should be based on compromise and mutual waiver of both rights. In light of this, it is argued that the balancing formula prescribed by the limitations clause should not be invoked, because this formula is suited only to a vertical balance between a right and a conflicting interest, and not to a horizontal balance between two rights of equal status.  Counsel for the state based his arguments on the comments of Justice D. Dorner in Shin v. Council for Cable Broadcast  [23], (at para. 19).

I do not accept these arguments.  The petitioners’ freedom of political expression to publish political advertisements is not competing with the right of an individual or a defined group of individuals amongst the public, but rather, with the general public interest of the members of society to receive reliable, balanced information from the media.  As such, the absolute ban on the broadcast of political advertisements requires, in essence, a vertical balance between the individual right and the general public interest, and not a horizontal balance between two rights of equal status, as claimed by counsel for the state. In any case, we are not faced with the question of whether the fundamental balancing formula prescribed by the limitations clause applies only to vertical balances between competing rights and interests or whether it can also be applied to horizontal balances between two conflicting human rights. I will just mention that according to my understanding, the requirements of the limitations clause – and especially the requirements of a  proper purpose and proportionality – may under suitable circumstances also be invoked in cases involving horizontal balancing of competing human rights.  I tend to the view that the tests of limitations clause may also serve for striking horizontal balances between rights of equal status, even if the manner of applying these tests may change in accordance with the category of the conflicting values, their relative weight, the nature of the balance, and the overall circumstances. Under the current circumstances this issue does not require further discussion and it may therefore be left for future consideration (cf: per Deputy President M. Elon in Shefer v. State of Israel  [71], at p. 105; regarding the view that the proportionality tests allow for waiver and mutual compromise between conflicting values, see Gideon Sapir, “Old versus New: Vertical Balance and Proportionality,” 22 Bar-Ilan L. Stud. 471 (2006)).

The Requirement that the violation be “by a law … or according to a law by virtue of explicit authorization therein”

8. The limitations clause in s. 8 of Basic Law: Human Dignity and Liberty, the wording of which is essentially identical to that of s. 4 of Basic Law: Freedom of Occupation, provides as follows:

'There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein' (italics not in original – D.B.). 

The limitations clause specifies four cumulative conditions that must be satisfied for the violation of a protected right to be lawful and to pass the constitutional examination: the violation must be by a law, or according to a law or by virtue of explicit authorization therein; the violating law must befit the values of the State of Israel; the violation of the protected right must be for a proper purpose; and the violation must be “to an extent no greater than is required.” The last three conditions express the principle of the rule of law in the broad substantive sense. Their concern is with the contents of the normative arrangement that violates a human right. Their purpose is to ensure that the violation of the right of the individual is necessary and justified from a substantive point of view, and that it strikes a proper balance between individual rights and the needs of the public.  On the other hand, the provision requiring that the violation be “by a law …or according to a law as stated by virtue of explicit authorization therein” is not concerned with the contents of the legal norm but rather, with the need for its existence. This provision expresses the principle of the rule of law in the narrow,  formal-substantive sense, as we will now explain.

In the circumstances of this case, my position is that the Rules of the Broadcasting Authority and the Second Authority, which establish a total ban on the broadcast of political advertisements, do not comply with the first condition of the limitations clause.  In order to explain my position, I will first consider the meaning of the requirement that the violation of the protected right be “by a law… or according to a law as stated by virtue of explicit authorization therein.” To that end, we must first consider the interpretation of the term  “by a law”  or “according to a law”. I will then discuss the interpretation of the requirement for "explicit authorization" in the law. It will be stressed that the following discussion will focus on the interpretation of the components of the said provision in the present context,  i.e. secondary legislation that violates a protected human right.

"By a law” or “according to a law …”

9.  The first requirement of the limitations clause according to which the violation of the protected right must be "by a law" means that as a rule, the violation of the right must derive its force from primary legislation. Where the violation is dictated by secondary legislation, the administrative authority must show authorization that originates in a legislative act of the Knesset ("according to a law"). This is an expression of the principle of administrative constitutionality, which is a constituent of the principle of the rule of law in the formal sense, whereby the executive authority may only act in accordance with the powers vested in it by law (see Baruch Bracha, Administrative Law, vol.1, 35, 38-40 (hereinafter: Bracha); Zamir, at p. 60). This principle is particularly applicable to powers that involve a violation of basic human rights.  For such a violation of rights, the secondary legislator must receive "explicit" authorization from the primary legislator.  Below we will discuss the meaning of the requirement of “explicit authorization”. 

It will be noted that the phrase "according to a law …" in reference to the violation of a protected right was not included in the original version of the limitations clause at the time of passage of the two Basic Laws concerning human rights in 1992.  It was added to the limitations clause in 1994, in the framework of an amendment to the two said Basic Laws (see: Basic Law: Freedom of Occupation (Amendment) Bill, H.H. 5754 129, that prescribed an indirect amendment to the limitations clause in Basic Law: Human Dignity and Liberty (hereinafter: "the Amendment").  The explanatory note to the Amendment states that "… the existing requirement whereby any limitation of the freedom of occupation must find expression exclusively in primary legislation and not in secondary legislation – is unnecessarily extreme." This clearly indicates that the phrase relating to a violation "according to a law" was intended to enable the secondary legislator to violate human rights subject to the restrictions that we will now discuss.  In that sense, the requirement that the violation be "by a law" or "according to a law" resembles the requirement of "prescribed by law" appearing in the European Convention of Human Rights and in s. 1 of the Canadian Charter. The European Court of Human Rights and the Canadian Supreme Court interpreted the word "law" in this  requirement as permitting a violation of basic rights not only in primary legislation but also in secondary legislation that complies with the other conditions of the limitations clause (see: Peter W. Hogg, Constitutional Law Of Canada  (5th ed., 2007) 123 (hereinafter: Hogg)).

Further to the above it will be mentioned that the requirement that the violation be "by a law" or "according to a law" is an expression of the rule of law not only in the formal sense, but also in the narrow-substantive sense. Accordingly, in order to pass the test of constitutionality, legislation that violates human rights must comply with all of the elements that are essential for the validity of legislation as binding legal norm, including publicity, accessibility, generality, absence of ambiguity, and absence of arbitrariness (see A. Barak, Interpretation in Law,  vol. 3, Constitutional Interpretation, at pp. 480-490 (1995) (hereinafter: Barak, Constitutional Interpretation). Indeed, this interpretation is also consistent with the interpretation of the requirement “prescribed by law" in the rulings of the European Court of Human Rights and the Canadian Supreme Court. In keeping with this interpretation, a norm that violates human rights must be public, accessible and sufficiently clear so that the aggrieved individual, as well as the authority causing the violation, can plan their course of action and conduct their affairs in accordance therewith (see: The Sunday Times v. United Kingdom, 2 EHRR 245 (1979); Hogg, at pp. 122-123, 125-126). Concluding this section, it is noteworthy that in our legal system, the aforementioned requirements, including the requirement that the offending norm be clear and unequivocal, may also be dictated by the substantive components of the limitations clause, including the requirement of a proper purpose and proportionality.

Violation “according to a law" by virtue of “explicit authorization" therein  

10. The provision under which the violation of human rights must be "by a law… or according to a law as stated by virtue of explicit authorization therein" includes an important additional component.  A violation that is "according to a law" must be by virtue of "explicit authorization" in the primary legislation. This requirement is not included in the limitations clauses of the European Convention of Human Rights or the Canadian Charter.  What is the reason for adding the requirement of “explicit authorization” by a law in the limitations clause of the Basic Laws?  The explanatory note to the Amendment of 1994 reveals that the aim was to restrict the possibility of violating human rights by means of secondary legislation. To that end, three cumulative conditions were set that had to be satisfied in order to affirm the constitutionality of the violation of a human  right by way of secondary legislation. First, authorization for such a violation must be in primary legislation (“by a law”); secondly, the authorization in the primary legislation must be “explicit”; and thirdly, the authorizing law, like the secondary legislation itself, must satisfy the substantive conditions of the limitations clause.

It must be said immediately that the requirement for “explicit authorization” by law for the violation of a protected right by way of secondary legislation is not new to us. Even prior to the enactment of the Basic Laws concerning human rights, the case law of this court established that any violation of human rights by way of secondary legislation requires explicit authorization in primary legislation. It further determined that such authorization would be narrowly and meticulously construed in view of the interpretative presumption whereby the primary legislator did not intend to authorize the secondary legislator to violate central basic rights or values. In order to refute that presumption, it was ruled that there must be  explicit and unequivocal authorization in a law. In the words of President M. Shamgar in the context of violation of freedom of occupation:

 ‘A basic right can be neither revoked nor restricted other than by way of explicit statutory provision of the primary legislator, and also, as long as the Basic Law does not determine otherwise, by the secondary legislator who was authorized to do so by the primary legislator ….

In my view, such authorization means  “explicit authorization”, by which I mean exclusively a case in which the primary legislator  states clearly and explicitly, that he authorizes the secondary legislator to make regulations that establish prohibitions or restrictions on engaging in a particular profession ….

To summarise this point, ... secondary legislation draws its force exclusively from the authorizing act of the primary legislator, and in relation to matters concerning the restriction of fundamental rights, in my view the secondary legislator is not authorized to act in that regard unless the primary legislator granted him clear, overt and explicit authority to deal with the said matter by way of restriction or prohibition, as the case may be’(HCJ 337/81 Miterani v. Minister of Transpor  [71], at p. 360; italics not in original – D.B).

As mentioned, this ruling had already struck roots in our legal system in the period that preceded the Basic Laws concerning human rights (see e.g. per Justice (previous title) Barak in CA 524/88, Pri HaEmek Agricultural Cooperative Society Ltd. v. Sde Yaakov Workers Settlement Ltd. [73]). However, it is noteworthy that in the case law that preceded the Basic Laws, less rigorous approaches may be discerned, whereby basic rights may be violated by way of secondary legislation even in the absence of explicit statutory authorization, provided that the authorization for the violation of human rights was clearly implied by the purpose of the authorizing law. In the words of Justice Berinson:

‘[a basic right – D.B.] … can neither be revoked nor restricted other than by way of a clear and unequivocal legislative provision. This is the case a fortiori when executed by the secondary legislator, who can do only that which the sovereign legislator has authorized him to do, and this authorization must be clearly and expressly stated, or at least it must be implied by the general purpose and intention of the law by virtue of which the secondary legislator presumes to act’

 (HCJ 144/72 Lipevski-Halipi v. Minister of Justice [73], at p. 723. On the different approaches taken by this Court during the period preceding the enactment of the Basic Laws concerning human rights, see Oren Gazal-Ayal, “Restrictions of Basic Rights “By Law” or “According to Law” Mishpat Umimshal - Law and Government in Israel 4, pp. 381, at pp. 385-389 (1998) (hereinafter: Gazal).

11.  The enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation created an opportunity for a fresh interpretative perspective of the requirement of “explicit authorization” currently anchored in the limitations clause. Our case law has already established that in keeping with the status accorded to human rights in the Basic Laws, and in view of their spirit, greater weight is assigned today to the obligation to take into account protected human rights (see CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [75], at para. 46 of my judgment). Indeed, as mentioned, the requirement of “explicit authorization” by law seeks to reduce the damage to basic rights by way of secondary legislation, while giving expression to the principle of the rule of law in its formal and narrow-substantive sense. However, the interpretative question arising in this context is this: when is an authorization in a law considered to be “explicit” as stated in the limitations clause? A variety of interpretative questions may arise in this context: is it sufficient for the primary legislator to authorize the secondary legislator to fix an arrangement in a particular area that by its very nature is liable to involve a violation of human rights, or is clearly-stated authorization to violate the relevant protected human right necessary? Is it sufficient that the law contain a general authorization to violate a human right, without determining the substance and scope of the violation, or must the statutory authorization also determine the fundamental criteria for the offending arrangement, in order to direct and define the secondary legislator’s discretion when fixing an arrangement that restricts human rights?

These questions necessitate a balance between different and even conflicting considerations. Two main approaches present themselves in this context. On the one hand, our case law has established that the principles of the separation of powers, the rule of law, and democracy in both its formal-representative sense and its substantive sense, all require that the principal norms and the fundamental criteria for implementing them  be fixed in primary legislation (“primary arrangements”) (see per Justice (previous title) T. Or in HCJ 244/00 New Dialogue Society for Democratic Dialogue v. Minister of National Infrastructures [76], at p. 56 and references cited).

The considerations underlying this basic rule of public law in Israel were discussed at length by  President Barak in Rubinstein v. Minister of Defence  [45] and by Deputy President Cheshin in HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister of Israel [77]. Briefly, this doctrine is based on a conception of representative democracy in which the parliament elected by the people is the principal carrier of the legislative role, enjoying social legitimacy in that capacity. A sweeping conferral of legislative authority on an administrative agency without the fundamental arrangements for exercising such authority being set out in legislation is tantamount to transferring the legislative power granted to the Knesset to the executive branch or one of its offshoots, and may directly contradict the fundamental basis upon which the system of the regime is premised.  According to this conception, it is the Knesset, as opposed to administrative authorities, that must prescribe the fundamental criteria for the violation of basic rights. This is the way to ensure that the Knesset fulfils its constitutional role and that it guides the administrative authorities in their activities that involve violations of human rights. In this way, there will also be a public parliamentary discussion of the relevant constitutional and normative considerations, in a manner that provides a “certain institutional guarantee that basic rights will not be violated except where necessary” (per Justice D. Dorner, Lam v. Director General of the Ministry of Education, Culture and Sport [44], at p. 684; and see further per Justice E. Hayut, Association for Civil Rights in Israel v. Minister of Internal Security [43], at p. 762; per Deputy President E. Rivlin, ibid., at p. 765; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. 1, pp. 127-128, 159ff (2005) (hereinafter: Rubinstein and Medina)).

It will be noted that this conception also underlies the interpretative presumption operative in our legal system, the status of which was reinforced by the enactment of the Basic Laws concerning human rights, whereby it is not the intention of the primary legislator to authorize the secondary legislator to prescribe primary arrangements in secondary legislation (on this interpretative presumption, see:  New Dialogue Society  v. Minister of National Infrastructures [76], at pp. 56-57, per Justice (previous title) T. Or; Rubinstein v Minister of Defence [45], at p. 523 {193}, per President Barak; A. Barak, Interpretation in Law, vol. 2,  Legislative Interpretation, at pp. 527-530 (1993); Rubinstein and Medina, at p. 166). In accordance with this presumption it was held that as a rule, the secondary legislator should refrain from establishing primary arrangements itself and should focus on determining the means for implementation and enforcement of the substantive arrangements outlined by the primary legislator. This ensures that the “democratic-parliamentary regime” is not replaced by a "formal democratic regime” (per President M. Shamgar in HCJ 256/88 Medinvest Herzliya Medical Center v. Director General, Ministry of Health [78], at p. 45).

In this context it is noteworthy that in parliamentary democracies in which the constitutional system protects human rights, the requirement to specify the manner of limitation of rights in primary legislation is anchored within the system.  Thus, in the German legal system, this concept finds specific constitutional anchorage in s. 80(1) of the Basic Law (Grundgesetz). This section stipulates that the federal and state governments may be authorized by law to establish secondary legislation, but the contents, purpose, and scope of the authorization must [also] be determined by law. A similar conception is evident in the case law of the Supreme Court of the United States. Basing itself on the principle of separation of powers, this court ruled that legislative powers are given to Congress, and that delegation of these powers to administrative authorities is conditional upon Congress setting standards to guide the secondary legislator in exercising his authority. In actual practice, it must be said, the Supreme Court of the United States deems sufficient the establishment of broad and general standards in a law, thus weakening the status and the application of the doctrine in the American legal system (see: Mistretta v. United States, 488 U.S. 361 (1989); and Calvin Massey, American Constitutional Law: Powers and Liberties 394-395 (2nd ed., 2005)).

The constitutional considerations discussed so far are likely to support a strict and precise interpretation of the requirement of “explicit authorization” in the limitations clause. Accordingly, in order for secondary legislation that violates protected human rights to be constitutional, a general, comprehensive  blanket statutory authorization concerning enactment of harmful secondary legislation does not suffice. It is necessary to point to a clearly articulated authorization in the law, specifying the nature of the violation of the protected right and its fundamental criteria in the framework of the authorizing statute.

As opposed to this interpretative approach, it could be argued that in the modern reality, the multitude of matters requiring statutory regulation prevents the primary legislator from dealing personally with all the matters that require legislation. According to this argument, the requirement of a clear, detailed authorization in the law for purposes of violating basic rights by way of secondary legislation is liable to lead to cumbersome and slow primary legislation that does not allow for adaptation to the changing circumstances of life and to the needs of time and place. This situation is liable to paralyze the regulatory enterprise, harming the broad public interest and even the protection of human rights. Moreover, a rigid construction of the requirement of “explicit authorization” may overly limit the power of the administrative authorities to exercise broad discretion in the regulation of matters within their area of expertise. Furthermore, it is difficult to determine a clear guideline for distinguishing between  primary and secondary arrangements, and it is thus doubtful whether it is practically possible to single out the primary legislator as being charged with establishing primary arrangements (see para. 36 of the judgment of Justice Naor and her judgment in Association for Civil Rights v. Minister of Internal Security  [43], at pp. 759-760; also see and compare Bracha, at p. 82; Zamir,  at p. 68).  Indeed, this Court has already said that “the complexity of life has forced us to reconcile ourselves to the existence of primary arrangements in secondary legislation…” even though this is not a desirable situation (per Deputy President Cheshin in HCJ 2740/96 Chancy v. Inspector of Diamonds [79], at p. 505).

These considerations may justify a more moderate approach to the requirement of “explicit authorization”, whereby it would suffice for the authorization for violating a basic right to be dictated by the purpose of the authorizing law, without requiring explicit wording or a specific arrangement in primary legislation regarding the substance and scope of violation of the protected right (cf: Gazal, at p. 416). A similar approach prevails in the English legal system, where it was ruled that not only an explicit provision, but also an intention that is necessarily implied by a parliamentary statute, may rebut the interpretative presumption whereby the secondary legislator is not authorized to make arrangements that violate the basic principles of the system (see: A.W. Bradley & K.D. Ewing, Constitutional and Administrative Law 687-688 (14th ed., 2007); P. Craig, Administrative Law 389-390 (5th ed., 2003)).

12.  How should we balance all of the above considerations? What construction should be given to the requirement of “explicit authorization” in the limitations clause, in view of the variety of considerations as stated? It would seem that our response to these questions must be from a broad perspective that takes in the other components of the limitations clause of the Basic Laws. As explained above, the limitations clause expresses a complex conception of the rule of law, in both the formal and the substantive senses. The conditions of the limitations clause are grounded in a delicate balancing of human rights among themselves, and human rights as against the general good. The balancing task does not admit of precise, fixed advance definition, being the product of evaluation and estimation. The task of balancing eludes precise advance definition, for it is the product of relative calculation and evaluation. It must be sensitive to the context in which it takes place (see: Barak, Constitutional Interpretation, at p. 548).

Considering all the above, we have ruled previously that the interpretation and manner of application of the substantive conditions of the  limitations clause - especially the requirements of a proper purpose and proportionality - should be determined in light of all the parameters, including: the area with which the offending legislation deals; the reasons underlying the protected right and its relative social importance; the nature of the violation and its magnitude in the concrete case; the circumstances and the context of the violation; and finally, the nature of the competing rights or interests (see my comments in Menahem v. Minister of Transport [48], at pp. 258-259). Further to this it was ruled that the nature of the violation of the protected right and its magnitude are likely to impact on the examination of the violation from the perspective of the limitations clause. In the words of Justice I. Zamir:  “In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the magnitude of the violation” ( HCJ 7083/95 Sagi T‘;’/.. v. Minister of Defense [80], at p. 262 {657}; see also Menahem v. Minister of Transport [48], at p. 260; Horev v. Minister of Transport [26], at p. 49 {202}).

In accordance with the above, this court has ruled that the greater the social value of the violated right,  and the more comprehensive and severe the violation, the more important and substantive the purposes must be in order to satisfy the requirement of “proper purpose” in the framework of the limitations clause (see e.g. Movement for Quality of Government in Israel v. Knesset [14] at p. 890, per President A. Barak;  HCJ 8276/05 Adalah – The Legal Center for Arab Minority Rights in Israel  v. Minister of Defense [81],  para. 28, per President Barak).

Similarly, regarding the requirement of proportionality it was ruled that “the magnitude of the violated right or  the magnitude of the violation of that right will determine the extent of our strictness with the authority regarding the grounds of proportionality” (HCJ 3648/97  Stemkeh v. Minister of the Interior [82], at p. 777, per Justice (previous title) M. Cheshin; see also HCJ 5503/94 Segel v. Speaker of the Knesset [83], at p. 544, per Justice A. Goldberg; Tzemach v. Minister of Defence [80], at p. 282, per Justice I. Zamir;  Menahem v. Minister of Transport [48], at p. 280 of my judgment; Israeli Office of Investments v. Minister of Finance [64], at pp. 420-423, per Justice Dorner). It will be mentioned that insofar as the requirement of proportionality is concerned, the examination of the nature and extent of the violation are an integral part of the tests of this requirement, especially of the third subtest, in the framework of which  the relationship between the nature and the extent of the violation and the benefit stemming from it is examined (see e.g. LAA 696/06 Alkanov  v. Supervisory Court for Custody of Illegal Residents   [84],  per Justice Procaccia, at para. 21).

Thus, according to the settled case law of this court, the substance of the violated right, the reasons underlying the right and its relative social importance, the magnitude of the violation, and the context in which it occurred, all have implications for the interpretation and the mode of application of the requirements of proper purpose and proportionality that   constitute an expression of the principle of the rule of law in the broad, substantive sense. In my opinion, the requirement of "explicit authorization" by law, which likewise is a manifestation of the principle of the rule of law, should be interpreted in similar fashion (para. 9 above). Indeed, the requirement of “explicit authorization” by law does not have a single, essential meaning. Its application calls for sensitivity to the context and all the circumstances of the case.  Accordingly, the nature of the violated right and its underlying rationales, the relative social importance of the right, the magnitude of its violation, its social ramifications, the nature of the offending authority and the context – should all affect the mode of interpretation and application of the requirement for “explicit authorization” in the limitations clause.

Bearing this in mind, the closer the substantive connection between the violated right and the dignity and liberty of the person, the greater the social importance of the right, and the more serious and comprehensive the violation, the stricter will be  our interpretation of the requirement of “explicit authorization” in the concrete case.  Accordingly, in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context. President Barak dwelt on this issue in his discussion of the basic principle whereby primary arrangements must be fixed by the primary legislator:

 ‘The level of abstraction of the primary arrangement changes from case to case. The greater the violation of individual liberty, the less acceptable is too high a level of abstraction, and an arrangement in primary legislation establishing – even if only in general terms -   the nature or the extent of the violation of liberty is required.  When the object of the arrangement is a complex matter, necessitating great expertise, it is sometimes possible to accept a high level of abstraction ....

Indeed, the nature of the arrangement, its social ramifications, and the degree of violation of individual liberty all affect the scope of the primary arrangement and the degree of detail required thereof’ (Rubinstein v. Minister of Defence [45], at pp. 515-516 {182-184}; see also Supreme Monitoring Committee v. Prime Minister of Israel [47], per Deputy President Cheshin at para. 37-39).

On the other hand, the lower that the underlying rationales of the protected right lie in the scale of social importance, and more minimal the violation of the right in the context and under all the circumstances of the case, the more it becomes possible to interpret the requirement of “explicit authorization” in a flexible and lenient manner.  Under these circumstances the secondary legislation can draw its validity from explicit authorization dictated by the clear purpose of the authorizing law. In other words, where the nature, scope and magnitude of the violation of the protected right are not significant, it is sufficient that the authorization to violate the basic right is an inevitable outcome of the particular purpose of the authorizing law, even in the absence of clear language and of regulation of the main features of the violation in primary legislation (cf: Gazal, at pp. 403-408).

13. This interpretation of the requirement of “explicit authorization”, which is based on the connection to the nature and magnitude of the violation of the protected right, is a suitable one. It creates interpretative coherency and harmony between the various components of the limitations clause, which constitute one integral unit, the purpose of which is to allow a violation of human rights for the purpose of maintaining human rights (see Barak, Constitutional Interpretation, at pp. 486-487). It allows flexibility in accordance with the context and the circumstances, while striking a proper balance between the reasons supporting the establishment of basic criteria in primary legislation for the violation of human rights, and the need for administrative efficiency and for leeway for the secondary legislator as part of the public good and the protection of individual rights (see para. 11 above).

The proposed interpretation also reconciles the varying approaches expressed in the decisions of this court regarding the requirement of “explicit authorization” in the Basic Laws (see para. 10 above).  According to the interpretation discussed above, the requirement of "overt, clear and explicit authorization”, as stated by President M. Shamgar in Miterani v. Minister of Transport [72], at p. 360, applies to secondary legislation that significantly and severely violates fundamental basic rights (cf: Justice Dorner in Lam v. Minister of Sport [44], at para 10, and Association for Civil Rights v. Ministry of the Interior [12], at para. 8). On the other hand, where the violation is insignificant in terms of magnitude and in relation to the relevant right, the requirement of "explicit authorization" is satisfied even if the authorization for violation is "implied by the general purpose and intention of the law," as stated in Lipevski-Halipi v. Minister of Justice [74], at p. 723.

Finally, it will be mentioned that the proposed interpretation is compatible with  the interpretative presumption that we discussed above, according to which the legislature did not intend to authorize the executive branch to establish primary arrangements in secondary legislation.  As we have said, this presumption was reinforced following the enactment of the Basic Laws on human rights (see para. 11 above). And indeed, under the interpretation that we are proposing, secondary legislation that involves a serious violation of major basic rights must draw its validity from a clear authorization in primary legislation that prescribes normative criteria for the regulation of that violation, at least in general terms. This ensures that arrangements involving a significant and severe violation of basic human rights will not be anchored in secondary legislation in the absence of suitable regulation of the matter in a statutory act of the Knesset.

We would also mention that our case law has yet to consider the question of whether after the enactment of the Basic Laws on human rights, the aforementioned interpretative presumption has become a binding constitutional norm that affects the ability of the Knesset to explicitly authorize an administrative authority to determine its own primary arrangements that violate human rights. This question does not arise in the current case, and what I have written in my opinion here does not resolve it (see and compare to other cases in which this question was left pending further examination: Supreme Monitoring Council v. Prime Minister [77], at para. 34, per Deputy President M. Cheshin;  New Dialogue Society v.  Minister of National Infrastructures [76] at p. 58,  per Justice (former title) T. Or; Rubinstein v. Minister of Defence [45], at p. 522-523 {192-194}, per President A. Barak; also see: Rubinstein and Medina, at p. 170).

From the general to the specific

14.  This petition concerns the constitutionality of the prohibition on the broadcast of political advertisements on radio and television. The prohibition appears in the Rules of the Broadcasting Authority and of the Second Authority, which constitute secondary legislation. The statutory authorization for the Broadcasting Authority to make these Rules appears in s. 25A(b)(2) of the Broadcasting Authority Law, which reads as follows:

‘25A. Advertisements and Announcements on Radio

          ….

(b)          The management committee shall determine, in consultation with the Director General, rules concerning - 

              …

(2) prohibitions and restrictions on the broadcast of advertisements and announcements’ (italics not in original – D.B.)

Regarding the Second Authority, the relevant authorization provision appears in s. 88 of the Second Authority Law, which states as follows:

88. Rules for Advertising Broadcasts

The Council shall make rules concerning the broadcast of advertising broadcasts, inter alia, concerning the following matters:

(1) …

(2) Subjects that are prohibited for broadcast as advertisements in general, or in specific circumstances, or by reason of being offensive to good taste or to public sensitivities' (italics not in original – D.B.).

In her judgment, my colleague Justice Naor made the point that the linguistic difference between the two authorizing provisions is not significant and that the Broadcasting Authority and the Second Authority are both authorized to impose restrictions on the contents of advertisements (see pars. 31-32 of her judgment and all the  references there). I agree.  However, the question here is whether the aforementioned statutory authorization constitutes "explicit authorization" by law for purposes of establishing an absolute prohibition on the broadcast of political advertisements. My colleague answered this question in the affirmative. My position on this matter is different.

In both the Broadcasting Authority Law and the Second Authority Law, the authorization to impose restrictions on the contents of advertisements is general. The discretion of the Management Committee of the Broadcasting Authority and the Council of the Second Authority in this context is extremely broad. These authorizing provisions do not specify the particular considerations that the Broadcasting Authority and the Second Authority are permitted to take into account for purposes of setting such restrictions, nor does it specify the nature, the substance and the scope of these restrictions.  Indeed, s. 88(2) of the Second Authority Law provides that the Second Authority is authorized to impose restrictions on the subjects of advertisements "by reason of being offensive to good taste or to public sensitivities," but apart from this the legislature added nothing.

I am prepared to say that the purposes of s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2)  of the Second Authority Law clearly and even necessarily imply an  intention to authorize the Management Committee of the Broadcasting Authority and the Council of the Second Authority to restrict the applicants’ freedom to advertise on radio or television. In appropriate circumstances, this authorization may even constitute “explicit authorization” by law to violate freedom of speech, even though its language is general and it does not prescribe normative criteria for imposing restrictions on the contents of advertisements.  This is the case, for example, in relation to freedom of commercial expression, for which the level of protection is lower than for political expression, or in relation to a violation of freedom of speech - including freedom of political expression  - under circumstances in which the magnitude of the violation is not great.  As explained above, in such circumstances the requirement of “explicit authorization” by law could be construed in a “more lenient and flexible manner” (see and compare: Zakin v. Mayor of Beer Sheva  [27], per Justice I. Zamir,  at para. 9).

This is not the case in the present context.  The prohibition on political advertising prevents absolutely and in advance the broadcast of political advertisements on radio and television, owing to the fact that their goal is to influence the public on a publicly controversial political matter. For the reasons elucidated above, my position is that a total ban on the broadcast of political advertisements severely violates freedom of political expression. The fundamental rationales of freedom of political speech, its immense importance to the individual and society, its crucial contribution to the democratic process, and the magnitude of its violation under the circumstances, should all affect the interpretation of the requirement of “explicit authorization” by law in the current context.

Bearing all the above in mind, my view is that for purposes of a total ban that prevents in advance any possibility of political advertising in the broadcast media, the general authorization in s. 25A(b)(2) of the Broadcasting Authority Law and s. 88(2) of the Second Authority Law is insufficient. Imposing this kind of broad prohibition requires clear authorization by law that determines the basic criteria relating to this prohibition, even in general terms.  It will be pointed out where necessary, the arrangements for implementation of the prohibition on political advertising on radio and television are likely to be made in the framework of secondary legislation, to enable the implementation and enforcement of the prohibition. Similar arrangements operate both in England and in Germany.  In Germany, all sixteen states resorted to parliamentary legislation to incorporate the German Interstate Broadcasting Treaty, which established a total ban on the broadcast of political advertisements other than during election periods (s. 7 para. 8 Rundfunkstaatsvertrag - Interstate Broadcasting Treaty). At the same time, authorization to make rules for the purpose of implementing that prohibition was prescribed by law. In England, the total ban on political advertising in the broadcasting media other than during an election period was anchored in parliamentary legislation – section 321 of the Communications Act, 2003. S. 319(2) of the said Act contains authorization to make rules for the implementation of that particular prohibition.

15.  In their pleadings, the respondents referred to other provisions in the Broadcasting Authority Law and the Second Authority Law that relate to the Authority’s duty to act fairly and to ensure reliable broadcasts that give  expression to the variety of views prevailing in the public (for the specific statutory provisions, see para. 35 of Justice Naor’s judgment). My view is that given the nature and magnitude of the violation of freedom of political expression, these statutory provisions do not constitute “explicit authorization”  by a law to establish the prohibition under consideration. The statutory obligation to maintain fairness in broadcasts may well necessitate a strict regulatory regime for political advertising on radio and television, but it is not, per se, sufficient to constitute “explicit authorization” by law to make a rule that categorically denies the possibility of political advertising.  Establishing such a prohibition requires clear authorization by law that determines the fundamental criteria for the existence of such a prohibition. 

16.  I wish to emphasize here that contrary to the respondents' claims, our conclusion in this case is not inconsistent with previous rulings of the Supreme Court. In HCJ 10182/03 Education for Peace and in Gush Shalom Society v. Broadcasting Authority [41], the constitutionality of the rule prohibiting the broadcast of political advertisements was not at issue; in any case, the rulings in that case have no bearing on the question of whether there is "explicit authorization" by a law for the establishment of the aforementioned prohibition.  The other judgments cited by the respondents in their pleadings dealt with the issue of the constitutionality of the rules that prohibited freedom of commercial speech (see e.g. Tempo Beer Industries Ltd v. Second Authority [40], para. 4, which discussed the constitutionality of the rule prohibiting a “broadcast proposing a competition or campaigns with prizes for drinking" alcoholic beverages). These judgments, which concern restrictions on  freedom of commercial speech, do not contradict our conclusion regarding the absence of "explicit authorization" in a law for establishing the rules under discussion in the present petition, which significantly restrict the freedom of political expression.

Further to the above, it is noteworthy that our conclusion in this case is consistent with the approach of this court in Association for Civil Rights in Israel v. Minister of Internal Security  [43]. In that case, the majority (Justice Hayut and Deputy President Rivlin, Justice Naor dissenting) held that the general authorization established in s. 132(17) of the Prisons Ordinance [New Version] 5732-1972 does not constitute "explicit authorization"  by a law to enact a regulation that restricts the meeting between a prisoner and his lawyer. In that case, Justice  Hayut ruled that "the magnitude of the right that is liable to be violated by the limitations specified in s. 29(b) [the right of consultation with a lawyer – D.B.] and the nature of the violation, necessitate explicit and detailed authorization in primary legislation, and the general authority in s. 132(17) of the Prisons Ordinance is insufficient" (ibid., at p. 768). Deputy President Rivlin added: " In s. 132(17) of the Prisons Ordinance I found no hint of authorization of the secondary legislator to violate the right to counsel. General statements regarding authority to make regulations “in other matters that must be arranged to ensure the effective implementation of this Ordinance” or in matters related to “the proper administration and the discipline of the prisons” are insufficient." (ibid., at p. 768).  We may therefore conclude that in view of the social importance of the right of consultation with a lawyer, and considering the nature of the violation of the said right and its magnitude in the particular circumstances, the majority view of this court is that a general authorization in the Prisons Ordinance does not constitute "explicit authorization" by law for the purpose of a serious violation of the aforementioned right in the framework of secondary legislation. This position is consistent with our conclusion in the circumstances of the case before us, which is that considering the elevated status of freedom of political speech and taking into account the magnitude of its violation, the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, and s. 88(2) of the Second Authority Law do not constitute "explicit authorization" by a  law for the purpose of establishing a rule that prohibits absolutely the broadcast of political advertisements.

17.  The conclusion dictated by the above reasons taken together is that the absolute ban on the broadcast of political advertisements in s. 7(2) of the Broadcasting Authority Rules and ss. 5 and 11 of the Second Authority Rules was established without proper authorization by law. However, under the circumstances I believe that an immediate voiding of the Rules would have undesirable consequences, due to the need for legislative regulation of the subject following a comprehensive examination of all aspects involved. I further note that even according to the petitioner, the broadcast of political advertisements on radio and television requires regulation by legislation of the Knesset. In these circumstances my proposal to my colleagues is to suspend the effect of the invalidition of the said rules for a period of one year to enable the Knesset to address the issue. (On recourse to suspension as a manifestation of the doctrine of relative invalidity, see Association for Civil Rights v. Minister of Public Security  [43], at p. 763 and citations there.)

Comments prior to closing

18.  In view of my conclusion that under the circumstances, the requirement that the violation be by virtue of “explicit authorization” in a law has not been fulfilled, I am not required to decide on the question of whether the substantive components of the limitations clause were present. Even so, I wish to make a few brief comments on the matter.

From the respondents’ pleadings before this Court it emerged that the ban on political advertising on the broadcasting media was designed to ensure the fairness and balance of television and radio broadcasts.  The purpose of the prohibition is to prevent undue and unequal influence on the public-political discourse on the part of financially powerful bodies by means of relaying political messages in the framework of advertisements at a high financial price.  The concern is that the ability to purchase advertising time in order to broadcast political messages may be detrimental to substantive equality in relation to those messages lacking the financial backing that would enable their presentation on that platform.  Such a result may undermine the aspiration for a balanced presentation of the different opinions in society and even lead to a perversion of the democratic process. The parties agreed that this purpose was a fitting one, and Justice Naor elaborated on the reasons justifying this purpose in her judgment.

In the circumstances of this case, the main dispute concerning the substantive components of the limitations clause is over the requirement of proportionality. Evidently, all are agreed that the broadcast of political advertisements over the electronic media is a subject that requires intervention and regulation. The dispute pertains to the extent of intervention and the proper means of achieving the purpose we discussed.  In this regard there are a number of conflicting considerations. On the one hand, the electronic channels constitute a limited public resource. Broadcasts over these channels are a source of tremendous public influence and power. It could be argued that a framework for the broadcast of advertisements that depends on the funding power of those seeking to advertise precludes proper implementation and enforcement of the fairness doctrine; therefore, the means necessary for maintaining a fair balance between the differing views amongst the public is the total preclusion of any possibility of political advertising on radio and television. This is the way to prevent a situation in which “money talks”.  Indeed, as mentioned, the legislation in England and in Germany established an absolute prohibition on political advertising on the broadcasting media. It will be mentioned that in Germany, the constitutionality of that prohibition has never been adjudicated by the Federal Supreme Court.  In England, the House of Lords recently handed down a decision that unanimously denied an appeal filed against a judgment of the High Court of Justice, which held that the absolute statutory prohibition on political advertisements does not contradict art. 10 of the European Convention on Human Rights (see Animal Defenders International v. Secretary of State for Culture, Media and Sport, [2008] 3 All ER 193).

On the other hand, some would argue that establishing a total ban on the broadcast of political advertisements in the electronic communications media constitutes an excessively harmful means, considering the potential contribution of such advertisements to the political-public discourse in Israel. According to this approach, in order encourage pluralism in society, political advertisements ought not to be banned entirely; rather, they should be permitted, subject to certain qualifications.  In this context it should be mentioned that today, political advertisements are published for payment in the print media, on internet sites and on public billboards. Furthermore, it must be recalled that advertisements with political content are in fact broadcast today, if the rule governing the imparting of information to the public can be applied to them. Thus, for example, in the framework of announcements about conferences, assemblies and demonstrations, there is nothing to prevent the broadcast of paid advertisements featuring political contents. Against the background of this reality, a doubt may arise, prima facie, as to whether the fear of a distortion of the public discourse due to the broadcast of political advertisements on television and radio is indeed serious and substantiated. Support for this approach can be found in the ruling of the European Court of Human Rights in the case of  VgT Verein Gegen Tierfabriken v. Switzerland, no. 24699/94, ECHR, 2001-VI.[ ]. In that case, the Court ruled that a Swiss law that established a blanket prohibition on political advertising on radio and television disproportionately violates the freedom of expression protected by art. 10 of the Convention. I should mention that in view of this judgment of the European Court of Human Rights, the British Government at the time refrained from making a declaration in the House of Commons regarding the compatibility of the statutory prohibition on the broadcast of political advertisements with the European Convention on Human Rights (a declaration of this kind is required under s. 19(1)(b) of the Human Rights Act for purposes of a government draft law). See: Joint Committee on Human Rights, Scrutiny of Bills: Further Progress Report – Fourth Report of Session 2002-2003, p. 6-10, Ev 14).

A comparative examination of the position in the United States and Canada reveals that these jurisdictions permit the broadcast of political advertisements, subject to limitations. For example, a number of states in the United States, such as Kansas and Florida, require that these broadcasts be accompanied by an announcement explaining to the listener and the viewer that this is an advertisement, intended to encourage “an informed choice” in the political message that is conveyed to the public by commercial means. The Canadian legislator refrained from establishing a prohibition or restriction on the broadcast of political advertisements when it was not an election period. At the same time, the broadcasting entities themselves established partial limitations for the purpose of regulating the matter. For example, s. 1(f) of the Canadian Code of Advertising Standards states that "[t]he entity that is the advertiser in an advocacy advertisement must be clearly identified as the advertiser" in the framework of the advertisement so that the listener or viewer can know who is behind the advertisement. 

Further to the above, it will be pointed out that an approach that supports the broadcast of political advertisements on radio and television – even if only in a qualified and restricted manner - must address all the aspects requiring attention.  For example, according to such an approach, the question of whether there are alternative means of preventing the excessive domination of certain messages over others (for example, by placing restrictions on the amount of time allocated for political advertisements and the times of their broadcast, the duration of the broadcasts, their frequency and their price, and the position of the political advertisement within the cluster of advertisements) should be examined.  Moreover, the approach supporting the broadcast of political advertisements subject to limitations and qualifications requires that recourse to measures to ensure that listeners and viewers are aware that this is political advertising be considered (this is the purpose of the duty of notice in the U.S.A and in Canada). Another matter that should be considered is the relationship between the regulatory arrangement for the broadcast of political advertisements and the prohibition on the broadcast of "party propaganda", and also the question of the relationship between that arrangement and the broadcast of propaganda by the parties during an election period.  These are sensitive and complex issues that must be examined in depth, and as such they justify primary legislation.

19.  Thus, the question of the proportionality of an absolute prohibition on political advertising has no simple answer.  According to the case law of this court, the question of proportionality is the sort of question that does not have a precise, standard answer, because it requires acts of balancing and evaluation. Taking this into account, this court has acknowledged "room for constitutional maneuver”, also known as the "range of proportionality". The room for constitutional maneuver is determined in accordance with the specific circumstances of each particular case, taking into account the nature of the right and the magnitude of its violation, as opposed to the nature and substance of the competing rights or interests (see my comments in Menahem v Minister of Transport [50], at pp. 281-282 and citations).  Presumably, when regulating the broadcast of political advertisements on Israeli radio and television, the primary legislator will consider the various factors taken into account and the regulatory arrangements that were adopted by other countries. This being so, at this stage I will not adopt a position on the question of the proportionality of the Rules that are the subject of the current petition. 

I therefore propose to my colleagues to rule that the order nisi be made absolute. Accordingly, there should be a declaration of the invalidity – suspended, at this stage – of the prohibition on the broadcast of political advertisements on television and radio as prescribed in s. 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993,  s. 5 of the Second Authority for Television and Radio (Ethics in Radio Advertising) Rules 5759-1999 and s. 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules 5754-1994 – all this,  in the absence of “explicit authorization” by a law for the establishment of that prohibition.  Should my opinion be accepted, the effect of the declaration of invalidity will be suspended for one year in order to enable the Knesset to address the matter.

Concluding Note

20. After writing the above, the opinion of my colleague Justice A. Procaccia arrived on my desk. For the reasons elaborated in her judgment, she believes that the Rules prohibiting paid advertisements of ideological – political expressions should not be viewed as a violation of freedom of speech.  I will just mention that this approach was not mentioned in the parties’ pleadings before us, and the point of departure in this hearing was that the Rules do indeed violate freedom of speech, and therefore they must be examined in accordance with the limitations clause. For the reasons elucidated in my opinion above, I too believe that the Rules violate the freedom of political expression, and I see no reason to add to those reasons. Nevertheless, I would like to comment briefly on the doctrinal-fundamental aspects emerging from my colleague’s judgment.

In her judgment, my colleague Justice Procaccia discussed the importance of the two-stage doctrine in the examination of a constitutional argument.  According to this doctrine, an argument regarding the violation of a constitutional right must be examined in two stages: at the first stage, the internal scope of the constitutional right must be defined.  In view of that definition, the question of whether the right under discussion was indeed violated under the circumstances must be examined. Only if the answer is affirmative do we proceed to the second stage, which is concerned with the degree of protection afforded to the right that was violated. At this stage of the constitutional analysis, the question that must be examined is whether the violation of the right is lawful in accordance with the criteria of the limitations clause.  The two-stage doctrine is clearly dictated by the wording and provisions of the Basic Laws concerning human rights, and constitutes a central tool of analysis in the constitutional rulings of this court.  Indeed, an examination of my own opinion and the judgments of my other colleagues on this bench reveals that we have no argument regarding the two-stage doctrine. However, on reading the judgment of Justice Procaccia, it would appear that there is in fact a dispute concerning the relationship between the two stages upon which the doctrine is based.

The two-stage doctrine is grounded in the conception that the two stages of the constitutional examination affect each other.  Thus, for example, some are of the opinion that the more the court extends the scope of the constitutional rights, so it is liable to narrow the scope of protection afforded to them (see para. 45 of Justice Procaccia’s judgment and citations there). Moreover, the nature of the violation of the protected right and its magnitude will affect the examination of the right in terms of the limitations clause (see para. 12 of my comments above).  The two stages of constitutional examination are therefore closely linked.  This does not, however, alter the fact that analytically and practically, there are two distinct stages of examination. The definition of the internal scope of a constitutional right (or a basic case-law right) is based on factors that influence the substance and dispersion of the relevant right. Usually, the definition of the internal parameters of a right reflects a value-based, normative balance between the right under discussion and other human rights (see: Barak, Constitutional Interpretation, at p. 381). On the other hand, the question of whether the violation of a constitutional right is justified according to the conditions of the limitations clause is based on “external” balances between the protected right and opposing public interests.  In the framework of the external balancing, conflicts arise between values and principles of a public nature which, by virtue of their cumulative weight, justify the violation of a protected human right.

21. I am afraid that my colleague Justice Procaccia has applied the two- stage doctrine in a way that may obscure the distinction between the two stages. In general, the accepted approach in the case law of this court is that a restriction on the manner in which a human right is realized constitutes a violation of the inner scope of the right, and the examination must therefore also relate to the violation of the manner in which a right is realized, as part of the violation of the right. According to this conception the very existence of other means of realizing a relevant human right may reduce the magnitude of the violation of the right, but it does not negate the actual fact of the violation (see and compare e.g. in the context of freedom of occupation: Menahem v. Minister of Transport [50], para. 11 of my judgment). In the circumstances of the present case, my colleague Justice Procaccia agrees that the broadcast of political advertisements for payment may constitute a “special means of realization” of the political expression. At the same time, she argues that this means of realization is not part of the inner scope of the constitutional right of freedom of speech.  Here, Justice Procaccia attached significant weight to the public interests and values forming the basis of the fairness doctrine, which aims to ensure “a free marketplace of ideas” in the media. The background for this is the nature of commercial advertising, which is purchased for payment and is dependent upon the financial abilities of the person commissioning it.

There would appear to be no disagreement amongst the justices hearing this case regarding the status and importance of the fairness doctrine in the communications media. However, the question of principle that arises here is that of the stage at which the said doctrine should be considered in the framework of the constitutional examination. Should the fairness doctrine influence the definition of the internal scope of the right to freedom of speech as suggested by Justice Procaccia’s approach? Or perhaps the appropriate context for consideration of the fairness doctrine is in the framework of the limitations clause, as indicated in Justice Naor’s judgment. My position on this matter is in line with Justice Naor’s position, as stated in para.s 18 of my comments above.

As a rule, when considering a limitation on the manner in which a protected constitutional right is realized, the balance that must be struck is between the relevant protected right and other public interests and values. This indeed is the case before us, in which the primary justification for the restriction - or more precisely, the prohibition - on the realization of freedom of political speech by way of paid advertising lies in the fairness doctrine. The balance here is an “external one” between a constitutional human right and opposing public interests, and in principle, the appropriate context for effecting this balance is within the framework of the limitations clause.  Any other approach is liable to lead to an excessive narrowing of the internal scope of human rights, because the ways of realizing these rights would be in danger of not receiving protected status. Such an approach might also lead to an analytical and practical blurring between the stage of defining the internal scope of human rights and the degree of protection afforded them, since the public interests weighed up in the framework of the requirements of proper purpose and proportionality in the limitations clause might seep into the definition of the internal scope of the rights. Inter alia, this is liable to lead to a heavier burden of proof borne by petitioners claiming a violation of a right, because the consideration given to public factors would be diverted to the first stage of examining whether or not the right was actually violated.

These comments are of a general nature, but they are especially true in relation to the freedom of political expression. In my understanding, the elevated status of freedom of political expression in the democratic system and its important underlying rationales justify viewing the various means of realizing the aforementioned right as being of constitutional status within the framework of the internal scope of the right, and the justification for any violation of them should therefore be examined in the framework of the degree of protection afforded to freedom of speech in accordance with the conditions of the limitations clause.

 

 

Justice E. Hayut

Like my colleagues President D. Beinisch and Justice M. Naor, I too believe that the protected value in the present case is the freedom of political expression, any violation of which must comply with the criteria of the limitation clause in s. 8 of Basic Law: Human Dignity and Liberty. I also accept my colleagues’ position that the petitioner's freedom of political expression was substantively violated when respondents 2 and 3 decided to prohibit the broadcast of the advertisement at issue in this petition, and that according to one of the conditions of the limitation clause, which my colleagues discussed at length, respondents 2 and 3 are required to show that this violation was ”by a law" or "according to a law… by virtue of explicit authorization therein." At this point President Beinisch and Justice Naor part ways.   Justice Naor is of the opinion that the Broadcasting Authority Rules and the Second Authority Rules  (Rule 7(2) of the Broadcasting Authority (Radio Advertisements and Announcements) Rules, 5753-1993; Rule 5 of Second Authority for Television and Radio (Advertising Ethics in Radio Broadcasts) Rules 5759-1999, and Rule 11 of the Second Authority for Television and Radio (Ethics in Television Advertising) Rules, 5754-1994) which prohibit, inter alia, the broadcast of an advertisement that relays a publicly controversial political or ideological message (hereinafter jointly: "the prohibiting rules") were made by virtue of "explicit authorization" as required. In her view, this authorization can be read into the general authorizing provisions of s. 25A(b)(2) of the Broadcasting Authority Law, 1965-5725 (hereinafter: "Broadcasting Authority Law"), and ss. 24(a)(6) and 88(2) of the Second Authority for Television and Radio Law, 5750-1990 (hereinafter: "the Second Authority Law") respectively. According to Justice Naor’s approach, this interpretation of the authorizing provisions in the aforementioned Laws is supported by various provisions in the Broadcasting Authority Law and the Second Authority Law that give rise to a general duty to broadcast balanced programs that fairly reflect the variety of opinions prevailing amongst the public. In her own words:

'Indeed, a reading strictly of those sections of the two Laws concerning advertisements provides no indication of the intention of the primary legislator regarding what is permitted and what is forbidden. In my view, however, one cannot read the provisions concerning advertisements in isolation from the other provisions of the Law, as if these broadcasts were a limb severed from the body of the Broadcasting Authority or of the Second Authority.

….

In my opinion, these principles, which deal with programs – the "hard kernel" of the functions of the Broadcasting Authority and the Second Authority – are the primary arrangement in the light of which the rules should be determined. The rules for advertisements must be consistent with the primary legislation, and in my opinion – and to the extent that they relate to the matter before us – they are indeed consistent. We are not in a “legislative vacuum” and in my view, the argument regarding the absence of primary legislation in the authorizing law does not apply here. The subject of advertisements is a subsidiary matter that is attached to the main matter (para. 35 of Justice Naor's judgment).'

Satisfied that the condition of "explicit authorization" prescribed by the limitation clause has been fulfilled, Justice Naor proceeds to examine whether the prohibiting rules comply with the other conditions of the limitation clause relevant to our case, i.e. whether the Rules were intended for a proper purpose and whether the violation was proportionate and not in excess of that which is necessary. Here too Justice Naor gives an affirmative answer.   Regarding the proper purpose, Justice Naor holds that the Rules were intended to prevent erosion in the application of the fairness doctrine in programs, and the rupture of this doctrine by the relaying of political messages in the framework of advertisements to which it is not applicable. Regarding proportionality, Justice Naor holds that this condition too is satisfied, along with all of its subtests; there is a rational connection between the means chosen and the purpose that the Rules seek to realize; a total prohibition is necessary to realize the purpose for which the Rules were established, and there is a reasonable balance between the magnitude of the violation of the petitioner's  freedom of political speech and the benefit to society from upholding the fairness doctrine. 

2.  The President, on the other hand, opined that the authorizing provisions in s. 25A(b)(2) of the Broadcasting Authority Law and ss. 24 (a)(6) and 88(2) of the Second Authority Law do not constitute "explicit authorization" as required under the limitation clause for the establishment of prohibiting rules, and stresses in this context that -

'... in cases involving a serious violation of a major basic right, clear statutory authorization in the authorizing law establishing general criteria for the essential features of the violation that is permitted by way of secondary legislation will be required. The level of detail required in the authorization will be a function of the magnitude of the violation of the protected right, the nature of the matter, and the overall context.'

On this matter I concur with President Beinisch, and as mentioned in her judgment, I expressed this view in a previous case in which a similar question arose (Association for Civil Rights in Israel v. Minister of Internal Security [43]). This being the case, I too take the view that the order nisi should be made absolute as far as it relates to the constitutionality of the prohibiting rules. Nevertheless, I do not concur with the President regarding the outcome of the petition before us, insofar as it relates to the decision of the Second Authority for Television and Radio (hereinafter: "the Second Authority") to prohibit the broadcasts that are the subject of this petition. The reason is that s. 86(a) of the Second Authority Law, which refers to s. 46(a) of that Law, prescribes a primary arrangement concerning "party propaganda" (which has no parallel in the Broadcasting Authority Law), establishing an explicit prohibition that is relevant for our purposes.  In my view, this prohibition legitimates the decision adopted by the Second Authority in the present case.  My colleague Justice Naor maintained that the reliance of the Second Authority’s decision on the statutory arrangement in s. 86(a) of the Second Authority Law was "over and above what was required," and as such did not require further attention. She further held that in view of the wording of the order nisi of 29 July 2004, the question of the constitutionality or the interpretation of the provisions regarding "party propaganda” does not arise in our case. The President too was of the opinion that the wording of the order nisi and the reasons relied upon by the Second Authority in its initial decision to disqualify the petitioner's advertisements obviated the need to hear the Second Authority’s alternative pleadings, according to which even if the prohibiting rules were to be invalidated, the decision in the present case should not be overturned, even if only because it was also lawfully based on  the provisions of s. 86(a) of the Second Authority Law. 

My view of the matter is different. In his letter of 19 October 2003 to the petitioner’s lawyer, the Second Authority’s legal advisor did indeed stress that the advertisements were disqualified for broadcast in view of Rule 5 of the Second Authority Rules for Radio, whereas the prohibition on "party propaganda" within the meaning of s. 46(a)(3) of the Second Authority Law (to which s. 86 (a) refers concerning advertisements) was mentioned in that letter "above and beyond that which was necessary."  Nevertheless, in rejecting the appeal filed by the petitioner on this matter, the Appeals Committee of the Second Authority Council clearly relied on the aforementioned statutory provision as well, stating as follows:

‘Section 5 of the Rules (Ethics in Radio Advertising) prohibits the broadcast of an advertisement "on a political, social, public or economic matter that is the subject of public controversy." In addition, s. 46(a)(3) of the Second Authority Law, 5750-1990 prohibits the broadcast of party propaganda (Shammai v. Second Authority for Television and Radio [5]). as stated it is not disputed that the programs that are the subject of this appeal promote an initiative which is essentially of a political-ideological nature, with the intention of persuading the public to support the initiative. As such their broadcast cannot be allowed.'

This decision of the Appeals Committee with its reasons was attached as appendix H to the petition, and inter alia was challenged by the petitioner, insofar as it relates to the Second Authority. As to the wording of the order nisi: as opposed to my colleagues, my view is that s. 1 of the Order relates in a general sense to the legal and constitutional validity of the decisions made by respondents 2 and 3, including all that they were based upon, and in any case it does not limit the scope of this hearing to the validity of the "prohibiting rules". This question was specifically addressed in ss. 2 and 3 of the order. Examination of the briefs and summations submitted by the Second Authority similarly indicates that they relate extensively to the issue of anchoring the prohibiting decision in the provisions of ss. 46(a)(3) and 86(a). For all these reasons I think that this question must be addressed, and were my opinion to be accepted, we would accept the claims of the Second Authority on this matter. 

3.  Section 86(a) of the Second Authority Law provides as follows:

 ‘A franchisee shall not broadcast an advertisement  –

(1) On subjects the broadcast of which are prohibited under s. 46(a);

(2)….

Section 46 (a) of the Second Authority Law, referred to in s. 86(1), determines inter alia that -

‘A franchisee shall not broadcast programs that contain -

(1) …

(2) …

 (3)  party propaganda, except for election propaganda that is permitted by law;           

In Shammai v. Second Authority for Television and Radio [5], President Barak addressed the interpretation of “party propaganda”  in s. 46(a) of the Second Authority Law, and in preferring an interpretation that attributed maximal weight to the substance and content of the propaganda over a literal, formal interpretation, President Barak held that -  

‘"Propaganda" refers to an expression, the dominant effect of which – at a level of substantial or near-certain probability – lies in its influence on the viewer and which has no other dominant effect such as artistic, or news-related (see HCJ Zwilli v. Chairman of the Central Elections Committee [6]). It is "party" propaganda if the content directly relates to subjects that are disputed by political parties in Israel. For that purpose, the phrase “party propaganda” (in s. 46(a)(3)) cannot be restricted to (party) propaganda concerning the Knesset elections. "Parties" exist in Israel in relation to matters that are not only at the highest national level (Knesset)’ (ibid, at p. 33).

This ruling has its logic. The underlying rationale for the prohibition of advertisements on publically disputed political matters was elucidated at length in Justice Naor’s judgment, and her comments need not be repeated.   I will briefly add that the "fairness doctrine" is well grounded in the legislation regulating the media market in Israel (see s. 4 of the Broadcasting Authority Law and ss. 5(b)(6), 5(b)(7), 46(c) and 47 of the Second Authority Law) and while it has been argued that the time has come to cancel it and to adapt the legal position in Israel to the developments in this context in the U.S.A (on the significant differences between the Israeli media market and the American media market and the difficulties involved in the cancellation of the "fairness doctrine" in Israel, see Amnon Reichman, “The Voice of America in Hebrew?” Be Quiet, Someone is Speaking  – The Legal Culture of Freedom of Speech in Israel 185, 228-229 (ed. Michael Birnhack, 2006)). At all events, as long as the current statutory arrangement remains in force, and the fairness doctrine lives and breathes within its framework, the primary and secondary legislation in this area must be interpreted as legislation that is designed for its realization. There is no dispute that by their very essence, advertisements are not the appropriate platform for the application of the fairness doctrine; this being the case, it must be ensured that in relation to political and ideological subjects that are publicly controversial in Israel, these advertisements will not be used in order to circumvent this doctrine. In other words, the incursion of publicly controversial matters into advertisements, the air-time of which was paid for and which from the outset are not intended for that kind of content, should be prevented. In HCJ 10182/03 Education for Peace we pointed out the risks involved in this situation:

‘The concern arises that wealthy political bodies will be able to purchase broadcasting time in order to “market” their positions in advertisement form, and in that way purchase an advantage over political rivals with less financial capability’ (ibid, at p. 417).

Aware of that danger, in the case of Shammai v. Second Authority [5] this court interpreted s. 46 of the Broadcasting Authority Law and the term “party propaganda” in a manner that accorded primacy to the substance of the broadcast and not to the identity of the entity seeking its publication (on the separate statutory arrangement applicable to propaganda during an election period see Elections (Modes of Propaganda) Law, 5719-1959; Zwilli v. Central Elections Committee [6], at p. 709). I accept this interpretative approach. It may further be pointed out in this context that on a practical level, franchisees of television and radio programs or of the Second Authority are naturally quite limited in their ability to the identity of the entity seeking to broadcast an advertisement or the identity of the entities directly or indirectly involved in its activities, and this too supports the substantive approach applied by President Barak in Zwilli v. Central Elections Committee [6], which examines the actual content of the matter.  It will be recalled that the advertisements relevant to this petition concern the Israeli-Palestinian conflict and the principles which in the petitioners’ view could lead to its resolution. This being so, it would appear that these advertisements conform to the definition of the term “party propaganda” as interpreted in Shammai v. Second Authority [5], given that they are broadcasts the contents of which “directly relate to subjects that are disputed by [political] parties in Israel” and the dominant effect of which is to influence the viewer or the listener on these topics. As such, according to my approach, s. 86(a) of the Second Authority Law (which refers to s. 46(a) of the same Law) definitely provides a legal basis for the Second Authority’s decision, by stipulating that these advertisements are prohibited for broadcast.  It should be emphasized that this is a statutory arrangement that was enacted in 1990, and it is therefore governed by s. 10 of Basic Law: Human Dignity and Liberty regarding the validity of laws; at all events it seems that the statutory arrangement in s. 86 (a) of the Second Authority Law aims for a proper purpose and satisfies the proportionality tests;  therefore, it does not violate the spirit of the Basic Law and the conditions of the limitation clause in that Law (cf. Stein v. Commissioner of Israel Police [10], at para. 16).

4.  In conclusion, regarding the “prohibiting rules” I concur with the position of the President, that in the absence of explicit authorization on this matter in the primary legislation, the rules that violate the freedom of political expression cannot stand, and the order nisi should therefore be made absolute with respect to the invalidity of the “prohibiting rules”. At the same time, and contrary to my colleagues who were of the opinion that the matter need not be decided, my view is that s. 86(a) of the Second Authority Law is a primary arrangement that provides a legal basis for the Authority’s decision to prohibit advertisements in this case, and I would therefore deny the petition and cancel the order nisi insofar as it relates to the legality of the prohibiting decision of the Second Authority.  This result, whereby the prohibition is valid only with respect to the radio and television broadcasts of the Second Authority, creates an undesirable lack of uniformity between the Second Authority and the Broadcasting Authority regarding those advertisements that constitute “party propaganda”. It is for this reason, combined with all the other reasons given by the President in this context, that it would be appropriate to formulate with all possible speed a uniform statutory arrangement that would apply to the whole communications market, and would address all of the matters addressed by the “prohibiting rules”.  Like the President, I too believe that the effect of the invalidity of the “prohibiting rules" should be suspended for one year to enable the legislature to formulate an appropriate arrangement.

 

 

Justice A. Procaccia

I have read the judgments of my fellow justices carefully. I concur with the conclusion of my colleague Justice Naor, according to which this petition should be denied. However, my path to that conclusion is different, and I would like to present it.
In her judgment Justice Naor assumes that the Rules of the Broadcasting Authority and of the Second Authority (hereinafter: "the Rules") prohibiting political-ideological expression in paid advertisements violate the petitioner's freedom of political speech, and in doing so violate a constitutional right. Nevertheless, in her view, this violation does not render the Rules unconstitutional, since the violation satisfies the conditions of the limitation clause of Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). According to her approach the Rules also satisfy the test in the limitation clause that the violation be "by a law… or according to a law by virtue of explicit authorization therein."
My colleague President Beinisch, too, assumes that the Rules prohibiting paid political-ideological advertisements violate a person's freedom of political expression, which is part of the constitutional right to human dignity, and that this violation should be examined from the perspective of the limitation clause of the Basic Law. In her view, however, the case at hand does not satisfy the first condition of the limitation clause which requires, as a condition for the constitutionality of the violation, that such violation be by a law or according to a law by virtue of explicit authorization therein. According to the President, the concept of "explicit authorization" in primary legislation as stated in the limitation clause is circumstance-dependent, its actual implementation deriving from the conditions and circumstances of the case. Inter alia, weight must be attached to the nature of the violated right, its underlying reasons and the magnitude of the violation. In President Beinisch's view, the absolute prohibition on political advertisements dictated by the Rules is a significant violation of freedom of political expression, which has constitutional standing in the Israeli legal system. Under these circumstances, the general authorizing provisions to enact regulations in the Broadcasting Law and in the Second Authority Law cannot be viewed as satisfying the condition of "explicit authorization" for the competent authority to violate a person's freedom of political expression in the avenue of paid advertising. Therefore, according to this approach, the Rules do not fulfill the first condition of the limitation clause, and the petition should therefore be granted, the Rules should be declared invalid and the Knesset should be in a position to address the fundamental issue raised in this proceeding in the framework of the process of primary legislation.
The approaches taken by the President and Justice Naor proceed from the basic assumption that not providing a platform for political expression in paid advertisements on the Broadcasting Authority and the Second Authority (hereinafter: "the media authorities") is a violation of freedom of speech; hence the need to examine the significance of the violation from a constitutional perspective and to clarify whether the violation satisfies the constitutional test in accordance with the balancing formula of the limitation clause.
I disagree with my colleagues regarding the basic assumption that in the circumstances of this case, the Rules banning paid advertising of political-ideological expression violate the basic right to freedom of speech.

The essential difference in our approaches is reflected in the legal classification of the claim of a right to political-ideological expression by way of paid advertisements. In the framework of a person's broad right to freedom of political expression, is he entitled to realize that freedom by way of an advertisement on the public media? Is political expression in a paid advertisement necessarily included within the broad scope of the constitutional right to freedom of speech, such that its violation is a violation of a constitutional right, necessitating a constitutional analysis of the nature of the violation and the degree of its justification in accordance with the limitation clause? Or, on the other hand, should we say that the constitutional right to freedom of political expression does not establish the right to realize that freedom by way of the broadcast of paid advertisements, and it does not, therefore, give rise to a duty on the part of the media authorities to provide a platform for political expression in that particular broadcasting format. If this is the case, then the regulation of paid advertising tracks to exclude political-ideological expression should not be regarded as a violation of the constitutional right to freedom of political expression. Where there is no violation of the constitutional right to freedom of speech, there is no need to examine the administrative arrangement governing the advertising tracks in light of the conditions of the limitation clause.

6.    My assumption is that the second possibility reflects the correct classification of the petitioner's claims. As such, I see no need for a constitutional analysis of the Rules prohibiting political expression in paid advertisements from the perspective of the limitation clause in the Basic Law. The matter in dispute lies outside the constitutional arena, and therefore it does not involve an analysis of the limitation clause, which is required only for a matter within the purview of the basic right, when the basic right has been violated. In the case before us, the constitutional right to freedom of political expression, the scope of which is particularly broad, does not extend to the right to realize that freedom via the medium of paid advertisements. The broad scope of that constitutional right and the duty of the public media authorities to provide a platform for that expression do not engender the right to claim that the political speech must be expressed within the paid advertising track offered by these authorities. This being the case, the matter lies outside the purview of the constitutional right. Another consequence of this reality is that rules made by the competent authority limiting paid advertisements to matters that are essentially commercial and neutral do not "violate" the constitutional right to freedom of political expression, and do not draw the matter into the constitutional arena. There are no grounds, therefore, for examining the alleged "violation" from the perspective of the balances in the limitation clause. I will elaborate, and will begin with the main foundations of my approach:

(1) The argument that there has been a constitutional violation of a constitutional right requires a two-stage analysis. The first stage addresses the question of whether the violation of the right pertains to a matter situated within the parameters of the constitutional right. If the answer is negative, the constitutional examination stops at the first stage, continuing no further. If the answer is affirmative, one proceeds to the second stage, at which the nature of the violation of the constitutional right is examined in accordance with the conditions of the limitation clause in the Basic Law. While there may be a certain overlap between the factors to be considered at each stage, this does not obviate the need to differentiate them and to draw a clear distinction between the discussion of the scope of the constitutional right, and between the questions relating to the existence of a violation of the right and the degree of constitutional justification for the violation. The discontinuation of the legal-constitutional examination at the first stage may give rise to additional grounds for judicial review, for example, from the field of administrative law.

(2) In our case, in the framework of the first stage of the constitutional examination we must consider whether, within a person's constitutional right to freedom of political expression, he is entitled to demand that a public communications entity provide him with a platform for expression via the medium of paid advertisements. This question aims to classify the claim to a right of expression in that medium, and to determine whether it is included within the parameters of the constitutional right to freedom of political expression, or whether it goes beyond them. This classification involves a determination of the scope of the constitutional right and its limits. Examining the scope of a constitutional right means charting its contours, which define what falls within it and what does not. The definition of the scope of the constitutional right is extrinsic, rather than intrinsic, to the limitation clause.

(3) The definition of the contours of the constitutional right and the resolution of the question of whether or not they include the matter under consideration, directly affect the question of whether there was a "violation" of the constitutional right to freedom of speech. Only where there is a violation of a constitutional right can one progress to the second stage of constitutional examination to consider the significance of the violation in accordance with the balancing formula of the limitation clause. When the alleged violation is external to the constitutional right in terms of its defined scope, we are not required to conduct a constitutional examination of the limitation clause.

(4)   At the first stage of the constitutional examination, the scope of the constitutional right is examined by way of purposive interpretation, to which the question of the appropriate content of the constitutional right is central. Purposive interpretation is influenced by the fundamental values of the constitutional system, the foundations of the democratic system, and the social, value-related and moral goals of Israeli society. Essentially, it is a question of legal policy that guides purposive interpretation in constitutional matters. The purposive interpretation of a constitutional right answers the question of whether a particular matter falls within the area of a constitutional right or outside it.

(5)   Drawing the contours of the constitutional right impacts on the question of whether the alleged violation is of a right that is defined as a constitutional right. If the answer is in the negative, the constitutional discussion is then complete. If the answer is in the affirmative, the question then is whether there was an unconstitutional violation of the right. This too is a question of legal-constitutional interpretation. If there was a violation of a constitutional right, then the examination proceeds in accordance with the balancing formula of the limitation clause.

(6) Defining the contours of the constitutional right is of particular importance in assigning the appropriate specific weight to the constitutional right. An overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of constitutional rights and to their devaluation. The constitutional discussion must focus on the core of the constitutional rights and on the questions relating to the constitutionality of their violation. A constitutional discussion of matters that lie outside the purview of the constitutional rights, or at their periphery, is liable to harm the status of the constitutional rights and the scope and the nature of protection accorded to them.

(7) The right to freedom of speech, including freedom of political expression, is a constitutional right of particular importance in the hierarchy of human rights. A violation of this right is a violation of a constitutional right. Nevertheless, realization of freedom of political expression as a constitutional right, even if it requires a positive act on the part of the public authority, does not necessarily include every possible existing means of realization. Within the framework of realizing freedom of political expression, a person does not have the right to demand that the public communications authorities provide a platform for political expression in paid advertisements for anyone who wants it. Even though the public communications authorities are obligated, by their very existence, to provide a political platform for the range of opinions and views prevailing in the public within their schedule of programs, they are not obligated, ab initio, to allocate a platform for such expression in their paid advertising track, nor are they competent to operate a track of that nature without special legislative authorization. For reasons that will be elucidated below, the issue of political expression in paid advertisements is external to the broad scope of the right to political expression. As such, the administrative regulation of paid advertisements by the communications authorities, which prevents political expression within those broadcasts, does not involve a constitutional violation of the freedom of speech, and there is therefore no need to proceed to the second stage of constitutional examination, involving constitutional adjudication of the balances formula in the limitation clause.

(8)   Beyond the issue of the constitutional violation of the freedom of speech, several other questions that were not raised or considered in the present case may well arise in the context of regulating paid advertisements. For example, on the constitutional level, the question could arise as to whether the petitioner's right to equality in the advertising track was violated in comparison with other commercial bodies who were allowed to advertise, whereas the petitioner was not. Moreover the prohibition in the Rules of paid advertising of political-ideological messages raises questions from the field of administrative law, such as whether such a prohibition gives rise to administrative grounds of disqualification, e.g. discrimination, unreasonableness, or irrelevant or unfair considerations. These issues did not arise directly in this proceeding and as such no basis was laid for judicial intervention in the Rules of the communications authorities.

We will now elaborate on the above.

The constitutional right – its essence and scope

7.    The constitutional right is not an absolute right, but a "relative" one, from two aspects. First, in terms of its scope, the borders of the constitutional right are defined and not all-encompassing. Secondly, even within its defined borders, the constitutional right is not necessarily protected in its entirety. There are circumstances in which the violation of a constitutional right may be considered permitted and justified, due to its conflict with opposing human rights, or due to conflicting values in the sphere of the public interest; this results in the limitation of the protection of the full scope of the constitutional right. This point was made by A. Barak in Interpretation in Law, Constitutional Interpretation, (1994), at pp. 370-371 (hereinafter: Constitutional Interpretation):

'The first aspect of the "relativity" [of the constitutional right – A.P.] reflects the scope of the human right (the problem of scope)… . The second aspect of "relativity" reflects the protection accorded to a human right ("the problem of protection"). It is the product of the constitutional relationship between a constitutional human right and its violation… . The main difference between these two aspects – and hence also between the two kinds of balance – is that the first aspect establishes the scope of the constitutional right. The second aspect does not affect the scope of the right but rather the degree of protection accorded to it.'

In constitutional discourse, the examination of the relativity of the constitutional right in two stages – the scope of the right and the degree to which it is protected – has been dubbed "the two-stage doctrine." This doctrine has been developed in the case law in various contexts.

An example of the application of the two-stage doctrine appears in CrimA 4424/98 Silgado v. State of Israel [85], at pp. 551-2, per Justice Strasberg-Cohen:

'According to the principles that we follow, the constitutionality of a statutory provision is examined in two main stages: in the first of them, the interpreter of the law examines whether the human right anchored in the Basic Law was indeed violated by the statutory provision under constitutional examination. Only if he concludes that this is the case will he proceed to the second stage, at which the question of whether the offending legislation satisfies the requirements of the limitation clause in the Basic Law is examined' (see Barak, Constitutional Interpretation, at pp. 473-4).

The two-stage doctrine has been developed and analyzed in several other case-law rulings: Adalah Legal Center for Rights of Arab Minority v. Minister of the Interior [49], per President Barak, at paras. 41, 52 and 53, and per Deputy President Cheshin, at paras. 34 and 37; Shinui – the Center Party v. Chairman of the Central Elections Committee [16], per President Barak, at paras. 8 and 9; CrimA 2831/95 Alba v. State of Israel [86], at pp 288-289, per President Barak; Movement for Quality Government in Israel v. Knesset [14]. On the distinction between the scope of the constitutional right and the degree of its protection, see also HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [87], at p. 538). The scope of the right is determined in accordance with the interpretation of the wording of the right and its purpose: see e.g. Mateh Harov v. Israel Police [32], at para. 13 (per President Barak) in which it was held that not all aspects of freedom of speech are included in the ambit of the constitutional right to human dignity, and one cannot read into the right more than it can carry. The scope of the right to freedom of speech as a constitutional right that is derived from human dignity must be determined in keeping with the particular meaning that must be attributed to human dignity (see also HCJ 326/00 Municipality of Holon v. N.M.C. Music Ltd. [88], at pp. 664-5; Shin – Israeli Movement for Equal Representation for Women v. Council for Cable and Satellite Broadcast [23], in which the justices expressed doubt as to whether pornographic expression is included in the freedom of speech).

Regarding the two-stage doctrine in Canada, see Irwin Toy Ltd. v. Quebec (1989) 1 S.C.R. 927; R. v. Keegstra (1990) 3 S.C.R. 697; R.M Elliott, "The Supreme Court of Canada and Section 1: The Erosion of the Common Front", 12 Queen's L.J. 340 (1987). Regarding the doctrine in South Africa, see: Woolman & Botha, Constitutional Law of South Africa, 2nd ed. Ch. 34 (hereinafter: Woolman & Botha).

There is a reciprocal relationship between the two aspects of the "relativity” of a human right. The first aspect establishes the contours of the right, and defines the borders of its natural reach. The second aspect is based on these borders and it examines the circumstances in which a violation of the constitutional right exists, and those in which the violation is permitted in order to allow for the realization of conflicting rights and values. This examination establishes the scope of protection accorded to the constitutional right, which does not always follow its contours. A matter situated beyond the borders of the constitutional right anyway cannot be the subject of a “violation” of the right in the constitutional sense, and it is extrinsic to the constitutional protection.

At its first stage, the two-stage doctrine of constitutional examination requires analysis of whether the claim of a violation involves a matter falling within the parameters of the constitutional right. Only if the answer is affirmative is it necessary to conduct a constitutional examination at the second stage, and to clarify whether there was a “violation” of a constitutional right; if there was, the balancing formula in the limitation clause, which answers the question of whether the violation of the constitutional right was justified and permitted, must be invoked. This examination of the limitation clause establishes the protected scope of the constitutional right in circumstances of conflicting values. There may be a certain overlap of the considerations relevant to the first and second stages of the constitutional examination.

9. In my view, our concern is with the first stage of the examination of the "relativity" of the basic right of freedom of political expression, and does not reach the second stage of the constitutional examination, which relates to the nature of the violation of the basic right. The reason for this, according to my approach, is that the petitioner failed to substantiate its claim that its right to freedom of political expression in the public media includes the right to realize that freedom in paid advertisements. The scope of the right to freedom of political expression in the public media does not extend to this particular claim of right, for the reasons that will be elucidated below. This being the case, I believe that the petition should be denied outside the gates of the limitation clause, without entering them. Hence, a discussion of the constitutionality of the Rules against the background of the limitation clause is altogether irrelevant here.

Determination of the scope of the constitutional right

10. The scope of a constitutional right is established by means of purposive constitutional interpretation, according to which the extent of the right is determined. This determination is an interpretative act based on the underlying purpose of the right and the nature of the goals that it is intended to realize (United Bank Mizrahi Ltd v. Prime Minister [21], at para. 10, per President Barak). Purposive interpretation answers the question of what matters are included within the parameters of the constitutional right, and what matters are external to it. This is an examination of the intrinsic nature of the constitutional right and of the matters it includes. Any conduct falling within the bounds of the constitutional right enjoys constitutional status. Conduct external to those parameters does not (Barak, Constitutional Interpretation, at pp. 371-2, 373; Kahane v. Managing Committee [54], at p. 270; Universal City Studios Inc. v. Films and Plays Censorship Board [19], at p. 33 {242}). The scope of the right is determined in its interpretation. The interpretation is constitutional, effected in accordance with the constitutional purpose, and with a broad view of the values of the system.

11. The constitutional purpose is inferred from the language, the history and the fundamental principles of the system (President Barak, United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15], at para. 86 ff.). Every right must be assigned the scope that realizes its purpose. It is not the linguistic borders that determine the scope of the right but its purpose (Barak, Constitutional Interpretation, at p. 376).

In their text, Woolman and Botha address the need to define the scope of the constitutional right utilizing interpretive tools that rely on the value-related purpose of the right, as opposed to a literal interpretation of the scope of the right. They reject the determination of the scope of a right in accordance with the literal interpretative approach, which relies on a literal definition of the right, and endorse the approach of value-based interpretation, for a number of reasons: first, the constitution should be interpreted according to its logic and the values underlying it. Its ambit should not extend to activities that were not designated for protection within the constitutional right, and the aforementioned value-related approach is intended to filter out those kinds of activities and exclude them from the constitutional framework. Secondly, a more rigid purposive approach to the interpretation of the scope of the constitutional right at the first stage of the constitutional analysis commits the state to a higher degree of persuasion in justifying the violation of the constitutional rights at the second stage of the examination; and thirdly, the value-related interpretation would have a welcome effect in reducing the burden of litigation and in decreasing the number of applications to court for the exercise of judicial review.

The scope of the constitutional right – content and manner of realization

12. In determining the scope of the constitutional right, a distinction must be drawn between the borders of the content of the right and the means of realizing the right. One aspect examines the question of the contents of the constitutional right. The second aspect is concerned with the modes of constitutionally realizing the constitutional right. The aspect dealing with the modes of realizing the right is also relevant in determining its borders, for it poses the question of whether every possible means of realizing the right is part of the constitutional right, or whether there are means of realizing rights that are not naturally built into the scope of the constitutional right.

In defining the scope of the constitutional right, therefore, both the contents of the right and the means of realizing the right, which are interwoven, are examined.

The constitutional right to freedom of speech

13. Freedom of speech is one of the most important basic freedoms of a person in Israel. It is a central value without which a free society cannot exist. Freedom of speech comprises a complex of aspects that relate to both society and the individual. One aspect, directed at society, is that freedom of speech is the bedrock of the workings of a democratic regime, based upon the free flow of opinions, ideas and beliefs. Freedom of speech is, indeed, the life-blood of democracy. Without it, a regime of free government based on free choice cannot be established. Another aspect of freedom of speech in this context is designed to bring about the full and complete dissemination of knowledge and information, which is critical for the formulation of an opinion and a position in a democratic regime, and to thereby enable engagement with truth and falsehood. In its other aspect, directed at the individual, freedom of speech is intended to enable a person to express himself and to develop his personality and individuality in an open and free society that accepts, examines, criticizes, and contends with a wealth of human expressions, opinions, ideas, beliefs, styles, tastes and lifestyles. Freedom of expression embraces all walks of life – philosophy, culture, art, policy and the economy, religion and ways of life. It is reflected in all the experiences to which a man is exposed in the course of his life.

Freedom of political expression

The contents

14. Freedom of speech is a broad concept that spans a large array of subjects and areas. In the aspect relating to the democratic process, special normative significance attaches to freedom of political speech among the broad variety of categories of expression in the many realms of life. A democracy without freedom of political expression loses its life force and vitality, paving the way for a regime of secrecy, operating far from the eyes of the individual and far from the public eye as well. Without freedom of political expression, freedom of speech in other areas of life also disappears; culture and human creativity are suppressed, philosophy and thought frozen, and human progress arrested. Along with these, the individual's ability to develop his talents and to realize his individuality disappears. The flow of knowledge and information concerning the actions of the government, which is a critical tool for public criticism of the regime, is interrupted. Hence the exceptional, widespread and broad protection accorded to the freedom of political expression, among the whole range of types and forms of free speech in a democratic regime.

Means of realization

15. Freedom of speech in general in Israel is reflected in diverse avenues of expression – in the printed media, on radio and television, in print, in words, in photographed expression, in a range of media of expression. In a free regime, the channels of expression, including political expression, are broad and varied. Written, broadcast and photographic communication play a central role in the realization of freedom of speech in a democratic society. Indeed – "Freedom of access to the media is, in fact, a condition for realizing freedom of speech, which without access to the media is liable to be stripped of any content and real importance" (Daphne Barak-Erez, "The Individual's Access to the Media – Balance of Interests in the Area of Freedom of Speech", 12 Tel Aviv Law Review 183 (1987), at p. 184). Israeli law recognizes the right of access to the media (s. 47 of the Second Authority Law; s. 4 of the Broadcasting Authority Law; Cohen v. Israel Bar Association [52], at pp. 537-538, and D.B.C. v. Committee for Cable Broadcasts [9]; HCJ 10182/03 Education for Peace v. Broadcasting Authority, at para. 7 of Justice Hayut's judgment). The right of access to the media means ensuring a broad scope for the full and varied expression of the opinions and ideas prevailing in society. The aforementioned right of access also incorporates the doctrine of fairness, by virtue of which the media bodies in Israel are obliged to fairly and faithfully present the full spectrum of prevalent public opinions, while achieving the proper balance between them (Novik v. Second Authority for Television [51]).

16. These two aspects of freedom of speech in the media – the right of access to the communication media and the doctrine of fairness – merge into one principle, which is that of the effectiveness of expression (Cohen v. Israel Bar Association [52], at pp. 547-548). Derived from the state's obligation to protect the rights specified in Basic Law: Human Dignity and Liberty is its duty to protect the effectiveness of freedom of speech by achieving a proper balance in the presentation of the expression in all its forms. Indeed, "[i]t is incumbent upon the democratic regime to monitor the use of the media rigorously, to prevent upsetting the vital balance in the marketplace of ideas and public expression. This applies to the freedom of access and the right of access to the media and to the contents of the broadcasts" (Documentary Creators Forum v. President of the State [56], at pp. 515). (On the approach whereby the protection of constitutional freedom of speech may also necessitate active state interference, see: Jerome Baron, "Access to the Press – A New First Amendment Right" 80 Harv. L. Rev. 1641, 1642-3 (1967)).

17. Political expression is particularly important in the public-state media channels, the role of which is to reflect the diversity of political-social expression in all its forms and quality, in the broadest, most open and most balanced manner, as required in a society based on the unfettered flow of views and information. The question before us is whether the constitutional right to freedom of political expression extends to the right to political expression in paid advertisements. Does this special form of political expression form part of the constitutional right to freedom of speech in the public media, and is it included among the constitutional means for its realization? Does restriction of this form of expression constitute a constitutional "violation", the justifiability of which must be examined in accordance with the limitation clause?

Political expression in paid advertisements – part of the constitutional right to freedom of expression?

18.  The constitutional right to freedom of expression is, in its essence, the freedom to express opinions and ideas unhindered. This means that it is essentially a negative right, at the core of which lies the power and the legal capacity to prevent a violation and constriction of the right to expression, in the broad sense of the concept. The constitutional right to freedom of speech, in its pure sense, does not impose a correlative constitutional duty upon the state to make various forms of expression available to the citizen. Its obligation is to refrain from interfering with the forms of expression that the citizen chooses to employ. In a modern state, however, the borders between positive and negative constitutional rights are often blurred, and in the area of freedom of speech situations may arise in which the state is also required to take positive action in order to enable the exercise of this freedom by the citizens. The area of the modern communication media may be a good example of this.

19. The existence of a constitutional right does not necessarily mean that every possible means of realizing it must be included within the parameters of the right. When the realization of an individual's right is not dependent upon the authority's cooperation, the question arises whether every possible means of individual realization of the right is included within the bounds of the constitutional right. This question is examined by means of purposive interpretation, which looks for the purposes and goals underlying the right and the means of realizing it. When the means of realization of a right depends upon the active cooperation of the public authority, the question becomes more complex: the examination then required is whether the particular means imposes a constitutional duty on the authority to enable the individual to realize the right, or even, under certain circumstances, obligates the authority to take action in that respect. In certain circumstances, purposive interpretation may yield the conclusion that the means of realizing the freedom of speech chosen by the individual, requiring cooperation on the authority's part, is not included within the scope of the constitutional right, and is extrinsic to it. Here, a claim of a violation of right occasioned by the authority's refusal to enable the realization of the right in that particular manner does not mandate constitutional consideration of the nature of the violation, because the normative conduct of the authority is extrinsic rather than intrinsic to the constitutional right. This applies to the case before us, for the following reasons:

20.  First, in examining the scope of the right to freedom of expression in the communications media and the means of its realization, a broad view of the freedom of political expression in the media authorities is required, above and beyond the narrow perspective that focuses on paid advertising. Under the existing legal system, freedom of speech in all its variations, including freedom of political expression, is broadly and fully protected in the context of the functions and obligations imposed on the authorities in the relevant legislation. They must ensure this freedom of expression, and secure a proper internal balance between the diverse aspects of social expression. This obligation of the authorities, which also applies to the provision of full and balanced political expression in the general lineup of programs, is integral to the doctrine of "fairness", which by virtue of statute and case-law is anchored at the basis of the actions of these bodies. The duty of balance and fairness binding the media authorities is designed to provide a full response to the right of expression of the state populace in the framework of the general schedule of programs they broadcast. If they fail to discharge this duty, they can be obligated to do so by way of judicial review of administrative actions.

21.  Secondly, paid advertising in the media authorities, which is the object of the disputed Rules, is not part of the general lineup of programs, which is intended to provide a full response to freedom of speech, including freedom of political expression, in the different fields. The advertising track is an ancillary tool, created and designed purely to serve the fiscal objectives of the media authorities as a means to trim budgetary deficits, in order to enable the media authorities to fulfill their duties and provide a proper and balanced service to the population within the general lineup of programs. In terms of its purpose and objective this track is not intended to promote freedom of expression in any particular area, the framework for realization of which exists in the general lineup of programs. Moreover, according to the principles of customary law, in the absence of explicit authorization in the relevant statutes the media authorities have no authority to introduce and permit paid advertising, in that the track of advertisements is "alien" to the primary roles for which the authorities were established by law.

22. The essence of the constitutional right of freedom of speech is that no statutory source is necessary to grant it or to provide a basis for it. It exists inherently by virtue of its normative, constitutional status. A law is required in order to limit the constitutional right, and not in order to grant it (Zamir, Administrative Authority, vol. 1 at pp. 50-51 (hereinafter: Administrative Authority); Dovrin v. Prisons Authority [20], at para. 16). In the absence of special legislation, the media authorities would not have been competent to establish paid advertising tracks. This is an indication that the broadcast of paid advertisements is not an avenue for the realization of freedom of speech, which has a constitutional, normative status, and the prevention of which is a violation of a constitutional right.

23. Furthermore, even after the regulation of the paid advertisements track by statute, its introduction by the authority is optional. Should it wish – it may introduce it. Otherwise it may cancel it. It cannot be assumed that the right of freedom of speech includes a vested right to demand of the authority, as a constitutional claim of right, that it operate a paid advertising track  and that it allocate a platform for any particular expression by way  of this particular means. It may be presumed that were the authority to decide to cancel its operation of the advertising track, we would be hard put to find a legal source obligating it to change its decision. According to its purpose, therefore, the advertising track does not constitute an avenue of expression. Regulating this track for the purpose of achieving a financial objective does not engender a right to use it as a means of political expression, and it is difficult to regard the prevention of such expression as a violation of the constitutional right to freedom of speech.

24. Thirdly, and deriving from the two other reasons, within the framework of the constitutional right to freedom of speech a person is not entitled to realize freedom of political expression vis-à-vis a media authority specifically by means of a paid advertisement, which requires a positive action on the authority's part, assuming that the system guarantees freedom of political expression in the general lineup of programs designed for that purpose. In the context of the programs, the media authorities are permitted to regulate the range of contents of expression, including political expression, in the various tracks designed to reflect that range in a balanced and fair manner. There is no vested right to demand of the authority, as part of the constitutional right to freedom of speech, that it provide a platform for political expression through a track designated for a different purpose. Thus, for example, just as a person has no right to demand that a political expression be broadcast on a music channel of the Broadcasting Authority, neither can he demand this on the sports or culture channel. This is the case a fortiori with respect to the track of paid advertisements, which from the outset is not part of the general lineup of programs, and the entire purpose of which is to raise  funding rather than to serve as a platform for any particular form of expression, and which also requires statutory authorization to allow it to operate.

25. Fourthly, from a value-based perspective, the Rules preventing political expression in paid advertisements also bar the purchase of air time for the expression of socially controversial ideological messages. In doing so they prevent a distortion of the requirement of balance and fairness in the general lineup of programs, the purpose of which is to grant a platform for expression in the free marketplace of ideas and opinions in a manner that is not dependent on the financial standing of the opinion-holder.

In view of all the above, regulation of the broadcast of paid advertisements in the Rules that prevents political expression in that framework does not amount to a constitutional violation of a constitutional right.

I will now elaborate on these lines of reasoning.

Freedom of speech in the broadcasts of the media authorities and the doctrine of "fairness"

26. The laws that apply to the media authorities for our purposes guarantee, as a fundamental principle, freedom of speech in broadcasts, and proper balance in this medium of expression.

The Broadcasting Authority Law states that the Authority will maintain the broadcasts as a state service (s. 2), and that one of its functions is to "broadcast educational, entertainment, and informational programs in the fields of policy, society, economy and industry, culture, science, and the arts," with a view, inter alia, to "reflect the life, struggle, creativity, and achievements of the state" (s. 3(1)(a) of the Law).

The Second Authority Law defines the functions and powers of the Authority including, inter alia, "the broadcast and supervision of programs in the fields of learning, education, entertainment and information, on subjects of politics, society, economics, culture, science, art and sports" (s. 5(a) of the Law). In the framework of its functions, the Authority must act to "foster good citizenship, and strengthen the values of democracy and humanism…" (s. 5(b)(2)), and "to give expression to the cultural diversity of Israeli society and to the different points of view prevalent among the public" (s. 5(b)(6)), and also "to broadcast reliable, fair, and balanced information" (s. 5(b)(7) of the Law)).

27. The requirement of balance and fairness in giving expression to the diversity of viewpoints among the public applies to the media authorities, and it was established as a statutory duty incumbent upon them.

Section 4 of the Broadcasting Authority Law states as follows:

'Ensuring reliable broadcasts

The Authority will ensure that the programs provide suitable expression of different approaches and opinions current among the public, and that reliable information shall be broadcast.'

S. 47 of the Second Authority Law establishes the duty of balancing as follows:

Providing the opportunity to respond

(a) The franchisee shall ensure that in programs on current affairs, the contents of which are of public significance, suitable expression shall be given to the various views prevailing amongst the public.

(b) The Council will make rules with respect to providing those who are, or who are liable to be, directly harmed by the broadcasts with an opportunity to respond in a manner fitting the circumstances.'

Section 46(c) of the Law prohibits the franchisee from expressing his own personal views in the broadcasts, or those of his managers or interested parties.

28. These statutory provisions bind the media authorities in the framework of their duty to provide a platform for the variety of opinions and viewpoints prevalent among the Israeli public, while ensuring a balanced and fair approach. The media authorities are also obliged to broadcast reliable information. They must guarantee the free flow of ideas and opinions of all shades and types, without requiring a special fee, except for general fees intended to finance the broadcasting enterprise as a whole. The media authorities must ensure equality in their implementation of freedom of speech. Within their obligations of balance and fairness in broadcasts, the media authorities are entitled to regulate the programming schedule, and to that end they may establish different channels, each designated for particular areas of expression in accordance with the different subjects that the media authority presents in its broadcasts. This brings about the formation of a general lineup of programs comprising tracks devoted to matters of policy and politics, economics and the economy; another track for culture and music, a sports channel etc. Assuming that an internal balance in the range of different subjects broadcast is maintained and that the media enables broad and fair expression, it is difficult to find a basis for the assumption that there is a right to demand the broadcast of political messages in the paid service advertisements track as part of the realization of the constitutional right to freedom of political expression in the media. This is true a fortiori for a demand that relates to a secondary track, of a commercial nature, which is not part of the general lineup of programs, which is basically intended to serve as an auxiliary funding tool to cover the Authority's budget, and which was not meant to serve as a platform for free speech.

29. The statutory framework, which guarantees fair and balanced programming, assumes that freedom of speech, including freedom of political expression, is regulated in the context of the lineup of programs of the media authorities by virtue of their statutory obligations. The statutory obligations of fairness and balance in the media are joined by the "doctrine of fairness" – accepted in the media of many of the Western states – that has become part of settled case law in Israel. This doctrine, which bases the duty of the media entities to preserve balance and fairness on the presentation of a variety of ideas and opinions in a free society, has struck deep roots in the Israeli normative system, and is now firmly anchored in both statutory law and settled case law (for an extensive analysis on this subject, see para. 40 of Justice Naor's judgment).

A claim that the obligations of fairness and balance have been violated may constitute grounds for judicial review, on the administrative level, of the manner in which the media authorities exercise their powers within the parameters of public law. Since our assumption is that complete freedom of speech is guaranteed within the context of the general lineup of programs, which regulates the different forms of expression in the different tracks, no foundation was laid for recognition of a right to political expression in a paid advertisement in a commercial track that from the outset was not intended for that purpose, and the prevention of expression in that track should not be regarded as a constitutional violation.

30. From the above it emerges that our assumption must be that freedom of political speech finds its full expression within the context of the general broadcasts alignment of the media authorities, which are required to provide it with a platform, and are obligated to ensure a fair balance of all its varieties, representing the entire spectrum of Israeli society. The violation of these duties by the media authorities may provide grounds for an administrative claim for the exercise of judicial review over the operations of the Media Authority in that particular area.

The assumption that there exists full freedom of political expression in the broadcasts of the media authorities, and that there exists a duty of fairness to which they are subject in regulating that expression, lies at the heart of the approach according to which paid political advertising is not one of the constitutional means available to a person in order to realize his recognized right of freedom of political expression.

The nature of the paid advertisements track

31. The status and the position of the paid advertisements track of the media authorities must be analyzed from the broad perspective of the general lineup of programs of these authorities, and not as an organ detached from the entire system. The particular character of the paid advertisements track, its establishment, its legal foundation, and its overall goals, reinforce the conclusion that its existence does not grant any person the right to demand realization of political expression by way of paid advertisements as part of the constitutional realization of his right to freedom of speech. It follows that the Rules prohibiting political expression in paid advertisements establish a behavioral norm that is outside the "constitutional arena" involving freedom of speech, and not inside it. As such, the claim of violation of freedom of speech in view of the said prohibition is not on a constitutional level, but rather, if at all, on an administrative level, in the realm of one of the recognized grounds for judicial review.

32. Paid advertising, which is the subject of the Rules in dispute, is not an integral part of the programming setup of the media authorities, within which they are required to provide a platform for political expression. The paid advertisements track of the two media authorities is an extra-professional, auxiliary tool, which is not part of their statutory functions and obligations. It is an optional matter, subject to the discretion of the media authority, which may or may not use it, as it wishes. Its entire purpose is to serve as a financial tool for increasing the budgetary income of the media bodies and enabling them to function efficiently in discharging the tasks and duties and imposed upon them. It is not intended to serve as a platform for any particular category of expression, including political expression. Incidental to achieving the monetary goal, and in order to realize it, various bodies – generally commercial – are permitted to relay their messages, without such expression, per se, constituting a purpose of the advertising track. My colleague, Justice Naor, discussed this particular feature of advertisements at length (para. 18 of her judgment).

33. Being extrinsic to the programs framework, the paid advertisements track is not bound by the obligation of balance and fairness that binds the authority as part of its professional duties. In that it is external to the obligations of the authority, and because, in terms of its purpose, it is not intended to reflect the messages of any particular kind of expression, the operation of this track is not subject to the general duty binding the authorities in the context of general broadcasts, to give expression to the range of opinions and trends in Israeli society. Since the advertising track was not, from the outset, intended to provide a platform for the expression of ideological messages, the authorities are entitled to regulate the contents of advertisements in a manner that realizes the funding objectives of advertising in optimal fashion, without violating any duty of balancing and fairness that binds them in relation to programs, which relates to the level of their contents and ideas. The authorities' position in this regard is that paid advertisements, as a funding tool, may legitimately be restricted to matters that are purely commercial and neutral in terms of their social-ideological contents.

34. Not only does the prohibition on extending paid advertising to matters that are publically controversial not violate the freedom of political-ideological expression, but it actually prevents the wealthy from gaining control over opinions and public information in the state. Limiting the advertising track to matters of a commercial-neutral nature actually promotes freedom of expression, rather than conflicting with it. It dovetails in with the functions of the media authorities and the duty of fairness and balance that binds them. This is the background to understanding the underlying rationale of the arrangements governing paid advertising tracks, and their designation for matters which are essentially commercial and neutral (s. 25A of the Broadcasting Authority Law and s. 7(2) of the Broadcasting Authority Rules; s. 81 of the Second Authority Law, and s. 5 of the Second Authority Rules).

35. Furthermore, from a legal perspective, the operation of a paid advertisements track by the media authorities requires special statutory authorization, without which they have neither the power nor the authority to operate this track, in that it is extra-professional vis-à-vis the classic functions of these authorities. Indeed, authorization for the broadcast of advertisements was a later addition to the Broadcasting Authority Law, by way of s. 25A, in 1993. Prior to this amendment, it was legally problematic for the media authorities to operate a track for paid advertisements in the absence of specific statutory authorization. The legal position adopted by the Attorney General and the court was that without special statutory authorization, the media authorities had neither the power nor the authority to broadcast a paid advertisement (Explanatory Notes to the Broadcasting Authority (Amendment No. 8) Bill, 5752-1992, HH. 2114, at p. 220). This was the background to the enactment of the provision in s. 25A of the Law, which authorized the Broadcasting Authority to operate this track. (Regarding the limitations that apply to paid advertisements without special statutory authorization, see also Osem v. Broadcasting Authority [2], at para. 6; Reshet Communications v. Broadcasting Authority [3], at pp. 808-890; Daily Newspaper Association v. Minister of Education [68], and HCJ 3424/90 Daily Newspaper Journalists Association v. Minister of Education [89]). These decisions clearly indicate that specific authorizing legislation is required in order to enable the media authority to operate a track for paid advertising.

Can it be said that as part of the constitutional right to freedom of political expression, a person has the right to demand a platform for expression specifically within paid advertisements, when this activity is not an integral part of the classic functions of the media authority, and when the media authority requires specific statutory authorization to carry it out, and has discretion to decide whether to do so, depending upon the circumstances in accordance with its funding requirements?

36. In this context it should be remembered that a constitutional right does not require statutory expression. It exists by virtue of the values of the constitutional system and by virtue of the Basic Law; even without being reflected in a regular law, it exists by virtue of the constitutional norm it embodies. Indeed –

'When a person has a right, and certainly when he has a constitutional right, a public authority does not need statutory authorization in order to uphold and respect that right. The opposite is true: it requires statutory authorization to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it must satisfy the tests of the limitation clause as a condition for its validity and operation' (Dovrin v. Prisons Authority [20], at para. 16 of my judgment).

(See also in HCJ 1/49 Bejerno v. Minister of Police [90], at pp. 80, 82). It is the violation of a human right that requires an authorizing law that seeks to legitimate the violation (Zamir, Administrative Law, at p. 50). In the absence of statutory authorization to violate the right, the administrative authority oversteps its competence and its authority.

37. In the present case, the administrative authority requires special statutory authorization to enable it to operate a track for paid advertising, for the legal starting point is that without special authorization it cannot operate such a track. This assumption involves a further assumption – that there is no constitutional right to realize the freedom of political expression in paid advertising. Since a person does not have a primary constitutional right to express his messages, irrespective of their contents, in paid advertisements, special statutory authorization is required to vest competence and power in the authorities to operate such a track. Absent that explicit authorization, as stated, the authority would not be able to perform that activity. It follows that the right to freedom of political expression in the media does not encompass expression in paid advertising, and were it not for the special authorization, the authority would not have been permitted or competent to operate that track. This structure of rights and authority also explains why freedom of political expression for paid advertising is not part of the freedom of political expression that is constitutionally protected.

38. Moreover, even assuming the existence of statutory authority for paid advertisements, the authority is an optional one, which the media authority has the discretion to exercise, to ignore, or even to revoke. Since this track is designed for funding purposes, its use is circumstance-dependent, and it is entirely a function of the financial position of the authority. Had the authority not found itself in financial straits, and had it not been granted statutory authorization to operate a paid advertising track, it may reasonably be assumed that it could not have been compelled to operate that kind of track to allow for paid political expression as part of the basic right to freedom of speech. It may further be assumed that in the absence of statutory authorization for paid advertising, a petition seeking to compel the authority to broadcast a paid political advertisement would have been denied. Furthermore, once there is no longer a financial need, the media authority would be entitled to discontinue the use of the advertising track, or even to bring about the repeal of the statutory authorization for paid advertising. It is doubtful whether such repeal would constitute grounds for a claim of violation of the constitutional right to freedom of speech. This is because realization of the right to expression in the media in various areas, including the political-ideological area, is not dependent upon the advertising broadcasts. As such, the regulation of this track and its designation for matters that are commercial and neutral in nature does not constitute a violation of a constitutional means of realizing freedom of political expression. Realization of the freedom of political expression in a paid advertisements track is not part of the right to freedom of expression in the media, and it is not part of the constitutional right that warrants constitutional protection. Consequently, regulation of the paid advertisements track and its designation for particular kinds of messages that are commercial or neutral in nature, and which do not include matters that are politically or ideologically controversial, do not constitute a constitutional violation of the freedom of political expression.

39. Furthermore, from a comprehensive perspective it can be said that limiting advertisements to commercial broadcasts and announcements of a neutral character promotes, rather than violates, freedom of political expression in the broad sense. Precisely by reason of its cardinal, vital importance to the democratic process, political expression should not be a commercial commodity, and to the extent that it is, by its very nature it distorts free public discourse. It may also distort the duty of balance and fairness that binds the media authorities in relation to broadcasts in general. When the wealthy person purchases a public information platform in the media by way of a paid advertisement, while the person of lesser means is unable to purchase broadcasting time in order to relay his views, the inevitable result is a disruption of the required balance in the presentation of ideas and opinions in the ideological arena. This inequality in power of political expression, which derives from the funding capacity of the wealthy party, is a serious violation of the principle of equality and fairness in the media, and it may severely distort the appropriate point of balance in social-political expression that is guaranteed in the general lineup of programs. It was not by chance that the Broadcasting Authorities imposed prohibitions on paid advertising of political and ideological programs. They were motivated by the desire to promote the idea of substantive freedom of political expression, and by their concern for equality in the means of its realization, and not the opposite. The concern for substantive realization of political-ideological expression and balance in the means of its regulation provides a substantive, value-based reinforcement for restrictions established by the Rules regarding paid advertisements of publicly controversial messages. This point was made by Baroness Hale of Richmond in the matter of Regina (Animal Defenders International) v. Secretary of State for Culture, Media and Sport (2008) 2 WLR 781 UKHL 15, handed down in March of this year in the English House of Lords, and cited in the judgment of my colleague, Justice Naor, in her comments on the harm involved in paid political advertisements, where she writes, inter alia:

'So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.'

And elsewhere she clarifies:

'… we do not want our Government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. "Within the sphere of democratic politics, we confront each other as moral equals"… . We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.'

40. In her article, Prof. Aditi Bagchi points out the dangers to freedom of speech that are likely to issue from private parties who acquire control over the means of expression and public information. The dangers looming from this direction are no less than those which the government itself may place in the way of freedom of speech. Therefore, according to this view, in certain cases the state is justified, and possibly even duty-bound, to intervene and take measures to increase freedom of speech, while limiting the dangers of the distortion of freedom of speech that can be caused by private bodies:

'[W]e should not blindly emphasize the dangers posed by state action at the expense of those posed by certain types of private action   Random insults by individual private actors are not likely to affect the political identity of those insulted. But restrictive choices by mass media that influence large numbers of people and claim to respond to the views of the public do pose a substantial threat to those excluded from their forums. This is not to say that these media must affirm all viewpoints, but the rules governing access – rules affirmatively enacted by the government – should ensure that each citizen can consider herself a participant in public discussion.'

And therefore –

'[W]hen private actors wield disproportionate power over public discourse, the state should ensure that all citizens retain the access necessary for their voices or views to count' (Aditi Bagchi, "Deliberative Autonomy and Legitimate State Purpose Under the First Amendment", 68 Albany L. Rev. 815 (2005) 819, 861-962).

41. Restricting the broadcast of paid advertisements to commercial and neutral matters does not jeopardize the balance required for the realization of freedom of political-ideological expression in society. Expanding the broadcasts to include this kind of expression is liable to destroy and fundamentally distort the fairness required of the media, which necessitates providing a platform of expression for the different opinions prevailing in a society, with no dependence on or connection to money and the financial capacity of the opinion holders.

In Summary           

42. Our concern here is with determining the contours of the constitutional right to freedom of political expression and with the question of whether these contours include the right to express a political message in paid advertisements facilitated by the public media authorities. This places us at the first of the two stages of constitutional analysis. Delineating the scope of the constitutional right should answer the question of whether the Rules preventing paid advertisements of political matters violate the constitutional right to freedom of political expression in that medium. This question is answered according to purposive interpretation of the right to political expression and the constitutional means of realizing that right. Purposive interpretation is based on an examination of the values underpinning the right, and not on the basis of the literal scope of the right.

43. From the above analysis my conclusion is that the scope of the right to freedom of political expression, however broad, does not, in terms of its purpose, extend to the right to realize that expression by way of a paid advertisement in the public media. Freedom of political expression in Israel is guaranteed in the framework of the duty of balance and fairness in the general lineup of programs operated by the authorities. It does not extend to the entire advertising track, which from its inception was not intended as a platform for expression, but rather, was introduced for a budgetary-financial purpose. The existence of this track is, from the outset, dependent upon the existence of special statutory authorization granted to the authority for the purpose of its operation, which is dependent entirely upon the will and the financial requirements of the authority. Restricting advertisements to matters that do not arouse public controversy promotes, rather than contradicts, the function served by the media authorities in the protection of freedom of political expression, and their mission to preserve the balance and fairness of socio-political messages in the broadcasts, independent of the finances and the economic ability of the opinion holder. As such, regulation of the advertising track in this manner does not violate a constitutional right, and it does not, therefore, give rise to the need for a constitutional examination of the alleged violation. Consequently, there are no grounds for examining the applicability of the limitation clause, with its various conditions, in our case. We therefore stop at the first stage of the constitutional examination, without crossing the threshold of the second stage. The relativity of the right to freedom of political expression in the public media leaves political expression in paid advertisements outside its borders.

General Comment

44. To complete the picture, I wish make a number of observations.

The normative constitutional system in Israel is young, and it is undergoing a process of gradual development towards its complete formation. At this stage of its development it is especially important to attribute adequate weight to the examination of the relativity of the constitutional right in accordance with the two-stage doctrine, and in so doing, to relate to the natural scope of the right, prior to considering its relativity in terms of the second aspect, which concerns the constitutionality of the violation according to the conditions of the limitation clause. The comprehensive approach whereby almost every matter that is connected literally to the constitutional right falls within the parameters of the right itself rapidly leads the constitutional discussion into the second stage, at which the constitutionality of the violation is analyzed in accordance with the limitation clause. This approach is liable to entail both a theoretical and a practical difficulty. On the theoretical level, it obscures the two-stage doctrine required in the constitutional discourse. On the practical level, it may dilute constitutional rights, and weaken their protection against violation. It is only natural that the more that essentially marginal matters, situated on or outside the borders of the constitutional right, are treated as constitutional matters, the weaker becomes the need to provide effective protection against the violation of the constitutional right, and the more blurred becomes the distinction between the important and the unimportant. Such a process is liable to impoverish the constitutional discourse, diluting its intensity and vitality. It seems to me that the constitutional discourse should focus on the core of basic rights and on the core of the protection they require against violation. As the constitutional rights are developed, care must be taken to define their appropriate borders, to prevent them from being interpreted as all-inclusive and from absorbing matters that do not properly belong within their borders, all within the framework of the constitutional purpose.

45. Delineating appropriate borders for the scope of the basic human rights is likely to reinforce the rights rather than weaken them. It can enrich constitutional discourse and focus it on the substantive protection required for the core of human rights. Delineating the limits of constitutional rights by borders defined according to the constitutional purpose enhances their constitutional protection, and is not detrimental to them. In the words of Deputy President Cheshin in Adalah Legal Center v. Minister of the Interior [49] (para. 41):

'Stretching basic rights in every direction – up, down and to the sides – while referring the interests that are capable of affecting their boundaries to the limitation clause, is liable to have a detrimental effect on constitutional debate, and this is liable to lead eventually to a reduction in the constitutional protection of human rights.'

See also in Bank Mizrahi v. Migdal [15], at pp. 470-471{286}, the opinion of Justice Zamir, who warns against rigid determinations as to what constitutes "property" and what constitutes a "violation of property", based on the concern that "the more the scope of property as a constitutional right is widened, the more it is to be feared that the force of the protection of this right will be weakened." Comments in a similar vein were made by Hogg in his article, "Interpreting the Charter Rights: Generosity and Justification", 28 Osgood Hall L.J. (1990) 817, 819. See also Peter W. Hogg, Constitutional Law of Canada, 5th ed. Vol. 2 (2005), at para. 3.83:  

'There is a close relationship between the standard of justification required under s. 1 and the scope of the guaranteed rights. If the courts give to the guaranteed rights a broad interpretation that extends beyond their purpose, it is inevitable that the court will relax the standard of justification under s. 1 in order to uphold legislation limiting the extended right. For example, if the guarantee of freedom of expression in s. 2(b) were held to protect perjury, fraud, deception and conspiracy – all forms of expression in an extended sense – it would be foolish to require a legislative body to satisfy a high standard of justification in order to regulate or prohibit such obviously harmful behavior.

… Each right should be so interpreted as not to reach behavior that is outside the purpose of the right – behavior that is not worthy of constitutional protection… .'

It could be argued that in terms of the result, there is no difference between the approaches:

'It may well be that it makes little difference in result whether the courts opt for a stringent standard of justification coupled with a purposive interpretation of rights, or for a relaxed standard of justification coupled with a broad interpretation of rights.'

However, as Hogg explains, tremendous importance attaches to this question in terms of the scope of judicial review.

'[I]t certainly makes a great deal of difference to the scope of judicial review. If the rights are broad, and the standard of justification is low, then many more charter challenges will come before the courts, and will fall to be determined under s. 1. Since the standard of justification under s. 1 would be low, it would be difficult to devise meaningful constraints on the process of judicial review. The result would be that judicial review would become even more pervasive, even more policy-laden, and even more unpredictable than it is now. In my view, therefore, the courts should adhere to the strict standard of justification prescribed by Oakes, and should give a purposive (rather than a generous) interpretation to the guaranteed rights. That approach will help to stem the wasteful floods of litigation, to limit the occasions when courts have to review the policy choices of legislative bodies and to introduce meaningful rules to the process of Charter review.'

For additional opinions in the legal literature that support defining the scope of constitutional rights as a means of fortifying them and of preventing their dilution, see: Yves De Montigny, "The Difficult Relationship between Freedom of Expression and its Reasonable Limits", 55(1) Law & Contemp. Prob. 35 ; V. Blasi, "The Pathlogical Perspective and the First Amendment", 85 Colum. L. Rev. 449, 479 (1985); Sidney R. Peck, "An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms", 25 Osgoode Hall L.J. 1 1987. See also Bradley W. Miller, "Justifications and Rights Limitations" http://ssrn.com/abstract=1084468, who supports interpreting the scope of constitutional rights strictly at the first stage of the constitutional examination, inter alia to prevent a devaluation of the rights and a weakening of the constitutional examination at the second stage, which focuses on reviewing the degree of justification for the violation of the right according to the constitutional balancing formula.

A different approach is taken by President Barak, according to whom the main restrictions on constitutional rights should be imposed at the second stage of the constitutional examination, rather than the first stage, which is concerned with defining the scope of the right. According to his approach –

'The starting point should assume a generous definition. The restriction – which might take into account the situation of the case on the periphery of the right or at its core – should be considered within the framework of applying the limitation clause. The balance between the rights of the individual and the public interest or between rights inter se should be made within the framework of the limitation clause' (per President Barak in Adalah Legal Center v. Minister of the Interior [49], at para. 102).

 For a critique of the aforementioned approach of Prof. Hogg, see per President Barak in Bank Mizrahi v. Migdal [15], at pp. 462-3{246-247 }.

46. On the basis of all the above, it cannot be said that the petitioner's constitutional right was violated as a result of the refusal of the authorities, within the framework of the Rules, to broadcast a paid advertisement involving an expression whose content was political-ideological.

Other possible grounds for challenging the Rules

47. Quite another question is whether the manner of regulation of paid advertisements in rules that permit commercial advertisements and bar advertisements of a political-ideological character provides the petitioner with constitutional cause based on the violation of equality between commercial bodies and political bodies, or with cause under administrative law, such as unreasonableness, irrelevant considerations, discrimination, etc. The petitioner did not make any claims to that effect and none were considered in the course of the hearing. As such we need not consider them. I would nevertheless like to relate to the aspect of equality as a possible constitutional claim in the circumstances of this case, which is also connected to the claim of discrimination on the administrative level.

Violation of equality

48.  The petitioner focused on the argument that its right to freedom of political expression was violated by the prohibition that the Rules imposed on the publication of such expression in paid advertisements. I attempted to show why the constitutional right was not violated in a manner that justified constitutional adjudication in accordance with the limitation clause.

For the sake of completion I would add that a claim of violation of equality might possibly have been raised on the constitutional level, its thrust being that the Rules in our case discriminate unlawfully between those expressing themselves commercially, who are permitted to advertise in service broadcasts, and those expressing themselves politically, to whom this channel of expression is blocked. Could it be said that under these circumstances there has been a violation of the constitutional right to equality between the purveyors of different messages, who seek to advertise their messages for payment?

49. Equality is an established foundation of the Israeli legal system. It is a value that lies at the foundation of a society's existence, and a guarantee for a person's development and self-realization. It is essential for the establishment of a democratic regime: Adalah Legal Center v. Minister of the Interior [49]; HCJ 4112/99 Adalah Legal Center v. Tel-Aviv Municipality [91], at p. 415; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [92], at p. 332; HCJ 7111/95 Center for Local Government v. Knesset [93], at p. 503.

50. Nevertheless, the value of equality was not included as a basic right in the Basic Law, and the question has therefore arisen in the past as to whether the right to equality can be classified as a constitutional right that derives from the right to human dignity, and in that capacity granted constitutional protection by virtue of Basic Law: Human Dignity and Liberty.

Israeli case law is divided over whether the right to equality can be derived from the right to dignity. According to some, the right to equality is included in Basic Law: Human Dignity and Liberty as an "unnamed right" (Justice Or in HCJ 5394/92 Huppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [94], at pp. 360-363; Justice Mazza in Israel Women's Network v. Minister of Transport [36], at pp. 521-523, and see all the citations in s. 39 of Adalah Legal Center v. Minister of the Interior [49]). There were some who adopted a restrictive approach in applying the basic right to dignity to the right to equality (Justice Zamir in HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [95], at pp. 205-206 and his comments in Center of Local Government v. Knesset [93], at pp. 510-511). Others sought to restrict constitutional recognition of the right to equality to cases in which the violation of equality amounted to humiliation of another person, in which case, according to this approach, there was an overlap between the right to equality and the core of the right to human dignity (Miller v. Minister of Defense [11], at pp. 146-147 see also HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [96], at pp. 47-48).

51. Ultimately, the case law adopted an "intermediate approach", according to which "human dignity" is not limited to damage to the core of human dignity, but neither does it encompass every human right that can be derived from human dignity. It includes all those rights that are linked to human dignity (whether at its core or at its periphery) by close, significant ties (as per President Barak in Movement for Quality of Government v. Knesset [14], at para. 33). The right to human dignity thus includes those aspects of equality that guarantee protection of human dignity from violation, and that are closely related to it. Human dignity thus extends to those situations in which a violation of equality is inextricably linked to human dignity and to a violation thereof. In determining the scope of the constitutional right to dignity, consideration must be given to the violation of equality as a factor in delineating the contours of the right. This approach was also adopted in later case-law (see HCJ 2223/04 Levy v. State of Israel [97]; 9722/04 Polgat Jeans Ltd. v. Government of Israel [98]; HCJ 8487/03 IDF Invalids Organization v. Minister of Defence [99]; HCJ 11956/05 Suhad Bishara v. Ministry of Construction and Housing [100]).

52. Do the Rules in the present case, which permit paid advertisements in commercial matters but bar advertisements of a political-ideological character, violate equality as a constitutional right? The obvious answer to this question is in the negative, for in the circumstances of this case, even if there is a violation of equality, it is not a violation that is closely linked to human dignity, and as such we find ourselves outside the constitutional purview of Basic Law: Human Dignity and Liberty.

Our assumption for this purpose is that political expression and its messages are regulated by the general lineup of programs as part of the authorities' obligation to ensure balance and fairness in their operation. This stems both from the Broadcasting Authority Law and the Second Authority Law, and from the basic principles of the system. The paid advertisements track was not originally intended to serve as a platform for expression, and it was introduced to serve a financial-economic purpose of the media authorities. Given our assumption that freedom of political expression is maintained and protected, and that the paid advertising track was not intended for the realization of freedom of speech, it follows that the violation of equality is not closely linked to human dignity, and there is therefore no violation of the constitutional right to dignity, in the context of the right to equality.

53. Even if the issue is not the violation of a constitutional right, one ought nonetheless to examine whether there could be a claim of discrimination on the administrative level, as opposed to the constitutional level, that justifies consideration.

Substantive equality is defined as like treatment of equals, and different treatment of those who are different (HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner [101], per President Barak, at para. 11). In order for there to be a violation of equality, it must be proved that there are groups between which there is identity or equivalence in relevant features, and which, despite their similarity, are treated differently (HCJFH 4191/97 Rekanat v. National Labor Court [102], at p. 330, per President Barak).

54. In the case at hand, as far as paid advertising is concerned, there is a substantive difference between the two relevant groups involved – a difference that explains and justifies the contents of the Rules, which permit commercial advertisements of a neutral nature, and prohibit advertisements of a political or ideological nature. The conception underlying the distinction between the two groups is value-based, deriving from the understanding that political-ideological-social expression in the public-national communications media should not be affected by the financial capacity of the opinion-holder, and that allowing political expression to be bought for money not only fails to promote the marketplace of opinions and ideas in a free society, but actually disrupts it, by letting money talk. Permitting paid political advertising means allowing the power to disseminate information on social, political and ideological matters to be purchased. This conflicts with the basic conception whereby free discourse and expression should be available equally to all people, irrespective of their financial abilities – a conception which furthers the democratic process and does not thwart it.

55. Commercial advertisements and other neutral broadcasts for which payment is made do not influence the marketplace of ideas and opinions in the social sphere, and do not distort the free flow of political-ideological expression in the general lineup of programs of the public media, which is not dependent upon financial resources. Opening the track of paid advertising to political expression may well disrupt the existing balance in the open marketplace of opinions and ideas and distort public discourse in view of the concern that financial magnates could assume control of this broadcasting track in the media. This explains the substantive difference between the two groups that are relevant in our case, and justifies the distinction made by the Rules in relating to each group. This distinction between the two groups is particularly valid in view of the fact that the matter involves public media authorities, which operate as statutory corporations by virtue of laws regulating their public activity. This is especially significant in relation to the Broadcasting Authority, which operates its schedule of programs as a statutory state service (s. 2 of the Law).

Political expression is given an extensive platform in the context of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention.

Conclusion

56. In view of all the above, my view is that it was not proved that any of the petitioner's constitutional rights was violated, be it a violation of freedom of speech or a constitutional violation of the right to equality. Nor would there appear to be any administrative cause of action based on discrimination, which, had it existed, may have warranted judicial intervention in the actions of the authorities on the administrative level.

Therefore, and based on the aforementioned reasons, I concur with the conclusion proposed in the judgment of Justice Naor, whereby the petition should be denied on all counts.

.

Justice A. Grunis

I agree that the Rules should not be declared invalid [-as stated in the opinion of my colleague Justice M. Naor. In doing so, there is no need to to take a stand on the relation between freedom of political expression and human dignity.

I have studied the opinion of my colleague Justice Procaccia. I accept her fundamental approach regarding the determination of the boundaries of a constitutional right. I concur with her statements (in para. 6(6) of her opinion) that “[a]n overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of the constitutional rights and to their devaluation” (see also para. 2 of my opinion in Adalah Legal Center  v. Minister of the Interior [49]).  Nevertheless, there is no dispute that there was a violation of freedom of speech in the case before us. I will therefore refrain from expressing a position regarding the approach of Justice Procaccia as far as freedom of speech is concerned. Nor do I think it necessary to adopt a position regarding the relationship between the actual existence of the right and the means of expressing it in the circumstances of this case.

 

 

Justice S. Joubran

I concur with the opinion of my colleague Justice M. Naor, and with the additional comments of my colleague Justice E.E. Levy

1.    First, I will point out that in view of our conclusion, I accept as a starting point – purely for purposes of this hearing – the assumption that the Rules under discussion contain a violation of freedom of expression as a protected basic right. This assumption was accepted by the litigants in this hearing; as such I will not relate to the analysis of my colleague, Justice Procaccia, and prefer to leave that subject for future consideration.

2.    As explained in the opinion of my colleague Justice M. Naor, to enable political expressions on controversial  matters to be broadcast in the framework of paid advertisements will, in practice, spell the demise of the fairness doctrine in Israel.  Concededly, this doctrine applies only to the “regular” framework of broadcasts, and if political advertising is not possible in the framework of broadcast advertisements, the doctrine will not apply to them. On the other hand, opening the  advertising track to broadcasts of political expression will, inevitably, empty the fairness doctrine of any content. It is clear that despite the fact that the air time allotted for advertisements is quite brief in relation to the regular programs, the other features of advertisements -  including the possibility of frequent repetition of a particular message, freedom in formulating the contents of the message, and the very fact of this being a dedicated track for the relaying of messages intended to influence -  increases the weight attaching to them (in this regard the scholar Marshall McLuhan already pointed out that “the medium is the message”). In the public, media-oriented environment of our times, as pointed out by Justice E. E. Levy, there is a serious concern that granting the access requested in the petition will flood the advertising track with political broadcasts of all types, and in doing so divert the central focus of political discourse from “regular” programs to advertising programs. It is clear that all this would directly affect the application of the fairness doctrine, and in fact lead to its revocation.

3.  It is for these reasons that I concur with Justice Naor’s ruling that there is nothing wrong with the fact that the arrangement preventing the broadcast of political expressions in the framework of advertisements is not explicitly anchored in primary legislation. I accept her ruling that this arrangement actually relies upon the general fairness doctrine, and is a direct product of it. In my view, it is sufficient that the fairness doctrine is well anchored in primary legislation to satisfy the requirement of “explicit authorization”.

4. To be precise: the only way of preventing the revocation of the general fairness doctrine, should the petition be granted on its merits, would be to make it directly applicable to advertisements through the creation of a supervisory regime over these broadcasts as well.  However, even assuming that creating such supervision is possible, it is unclear why the petitioner and similar entities would benefit from such an arrangement, and why it would ameliorate the violation of freedom of expression.  It should be remembered that the possibility of being heard, subject to the laws of the fairness, is already available to the petitioner in the framework of the regular programs, without payment. The petitioner contends that in the current situation, entities with unique political views are not given sufficient exposure in the framework of regular programs. However, as mentioned by Justice Naor, the solution to this problem must be found in the existing framework, through recourse to the fairness doctrine itself, and if necessary, by use of administrative processes, as mentioned by Justice Procaccia.

5.  Moreover, opening the advertising track to the broadcast of political expressions would not necessarily solve the problem that the petitioner describes.   On the one hand, the creation of a rigid regulatory regime for oversight of the broadcast of “advertising” political material would deprive this track of its uniqueness, because the main difference between this track and the regular programs would be the component of payment for broadcasting content. However, as stated, the component of payment is itself problematic; the drawbacks of this course of action would therefore appear to outnumber its advantages – in view of the fact that the very regime that allegedly harms the petitioner in the framework of regular programs would harm him again in the framework of advertising broadcasts.

On the other hand, the creation of a more lenient supervisory regime would create a situation in which "money talks", given that broadcasting time is limited by its very nature. In that situation, one form of exclusion would be replaced by another, and here too, opinion holders supported by more limited means would be in an inferior position to their more established competitors.

6.    I wish to clarify that these comments do not imply that the fairness doctrine is a sacred principle from which there can be no diversion. Like any other socio-legal conception it has its drawbacks, and it may even involve a violation of protected basic rights. However, even were it to be claimed that the drawbacks of this conception exceed its advantages, this would not, in my view, lead to its invalidation on the grounds of contradicting Basic Law: Human Dignity and Liberty. On this matter I share the view of my colleague President D. Beinisch, that due to its complexity and tremendous sensitivity, the subject requires thorough study and consideration, and should be dealt with by legislation, even though I disagree with her conclusion on the matter.  Under the circumstances, as stated, I do not find that the current arrangement lacks explicit statutory authorization.  At the same time, I do not find that we have the ability or the possibility of deciding whether the fairness doctrine itself is good or bad, or at least, whether to allow it to be emptied of content.

Petition denied, by majority opinion, as per the judgment of Justice M. Naor.

 

18 Av 5768.

20 August 2008.

 

 

PPA 4463/94

Avi Hanania Golan

v

Prisons Service

 

The Supreme Court

[25 August 1996]

Before Justices E. Mazza, M. Cheshin, D. Dorner

 

Appeal with leave on the judgment of the Tel-Aviv–Jaffa District Court (Justice A. Even-Ari) on 15 July 1994 in MP 142/94.

 

Facts: The appellant asked the respondent for permission to publish articles about prison life in a local newspaper. The respondent refused. The appellant filed a petition in the District Court against this refusal, but his petition was rejected. Leave was given to appeal the District Court’s decision to the Supreme Court.

 

Held: (Majority opinion — Justices E. Mazza, D. Dorner) The respondent has a duty to uphold human rights, and it must make reasonable efforts and devote reasonable resources to do this.

(Minority opinion — Justice M. Cheshin) The respondent’s argument that it is not its task to censor newspaper articles is reasonable, and in view of the character of the appellant and his behaviour in the past, the respondent cannot reasonably be expected to rely on the appellant’s undertaking to restrict himself to writing only about himself. The likelihood that allowing the appellant his desire will lead to infractions of prison discipline is not remote. In view of the very difficult task faced by the prison authorities, they should be allowed a broad discretion in deciding questions of prison order and discipline.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

 

Basic Laws cited:

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 2, 4, 8.

 

Statutes cited:

Knesset Elections Law (Amendment no. 17), 5746-1986.

Prisons Ordinance [New Version], 5732-1971, ss. 1, 42, 43, 47, 56, 56(41), 62A, 71-72F, 131A, 132.

 

Regulations cited:

Prisons Regulations, 5738-1978, rr. 18, 19, 20, 24A, 24B, 25-34, 33, 49, chap. 5.

 

Israeli Supreme Court cases cited:

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

[2]      CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[3]      HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[4]      PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[5]      HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[6]      HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[7]      CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[8]      CrimApp 7223/95 — unreported.

[9]      HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[10]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

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

[12]    HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407l IsrSJ 4 208.

[13]    CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Company Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30.

[14]    HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[15]    HCJ 6218/93 Cohen v. Israel Bar Association [1995] IsrSC 49(2) 529.

[16]    HCJ 215/59 Geller v. Minister of Interior [1959] IsrSC 13 1703.

[17]    HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

[18]    HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[19]    HCJ 96/80 Almalabi v. Prisons Service [1980] IsrSC 34(3) 25.

[20]    HCJ 157/75 — unreported.

[21]    HCJ 454/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[22]    CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[23]    HCJ 881/78 Mutzlach v. Damon Prison Commander [1979] IsrSC 33(1) 139.

[24]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

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

[26]    HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

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

[28]    HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [1996] IsrSC 50(2) 822.

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

[30]    HCJ 7111/95 Local Government Centre v. The Knesset [1996] IsrSC 50(3) 485.

[31]    HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [1994] IsrSC 48(2) 1.

[32]    HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [1995] IsrSC 49(5) 751.

[33]    HCJ 399/95 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

 

Magistrates Court cases cited:

[34]    CrimC (TA) 7036/92 — unreported.

 

American cases cited:

[35]    Procunier v. Martinez 416 U.S. 396 (1974).

[36]    Coffin v. Reichard 143 F. 2d 443 (1944).

[37]    Brown v. Peyton 437 F. 2d 1228 (1971).

[38]    Pell v. Procunier 417 U.S. 817 (1974).

[39]    Jones v. North Carolina Prisoners’ Union 433 U.S. 119 (1977).

[40]    Bell v. Wolfish 441 U.S. 520 (1979).

[41]    Turner v. Safley 482 U.S. 78 (1987).

[42]    Thornburgh v. Abbot 109 S. Ct. 1874 (1989).

[43]    Milwaukee Pub. Co. v. Burleson 255 U.S. 407 (1921).

[44]    Nolan v. Fitzpatrick 451 F. 2d 545(1971).

 

Jewish law sources cited:

[45]       II Kings 4, 8-10.

 

For the appellant — D. Yakir.

For the respondent — Y. Shefer, Senior Assistant to the State Attorney.

 

 

JUDGMENT

 

 

Justice E. Mazza

This is an appeal with leave on the judgment of the Tel-Aviv-Jaffa District Court (Justice A. Even-Ari), in which a prisoner’s petition filed by the appellant (a prisoner at Ashmoret Prison) against the refusal of the respondent (the Prisons Service) to allow him to publish a personal column or articles written by him in the local newspaper Mid-Netanya was denied.

Basic background

2. The appellant is a prisoner currently serving terms of imprisonment to which he was sentenced after he was convicted in two trials: in the first trial the appellant was convicted of the offences of fraud, forgery, impersonation and escape from lawful custody. For these offences, he was sentenced (at the end of 1988) to six years imprisonment and was also given a suspended sentence. This was the fourth substantial term of imprisonment to which the appellant was sentenced; he has a string of past convictions for many offences of the same kind. After the appellant began to serve this term of imprisonment, the appellant escaped from lawful custody, and while he was outside the prison, he proceeded to commit additional offences of fraud. When he was caught, he was brought to trial once again and was convicted of escaping from lawful custody and of the other offences that he committed during the period of the escape. For his conviction on these offences, he was sentenced to an additional term of imprisonment and the suspended sentences were activated. The total term of imprisonment that the appellant was sentenced to serve, under the two sentences, amounts to ten and a half years, starting on 18 November 1988. The appellant served his first year of imprisonment at Ashkelon Prison. Afterwards, he was transferred to Ashmoret Prison, and since then he has been imprisoned there. Because of activity in which he was involved in the past, the appellant was classified as a prisoner in need of maximum protection. Therefore he has been imprisoned, throughout his imprisonment, with a few prisoners of this type, in conditions of isolation from all the ordinary prisoners.

3.    In 1989, while he was a prisoner at Ashkelon Prison, the appellant sent several articles that he wrote to a local newspaper Mikol Makom, which is published in Ashdod. In these he described prison life. The articles were published, and the owner of the local paper (the management of the newspaper Yediot Aharonot) even made a payment to the appellant as the author. In January 1994, the appellant asked the respondent to allow him to publish in the local newspaper Mid-Netanya a personal column, or a series of articles, about life at Ashmoret Prison. His request was refused. The appellant filed a petition against the refusal in the District Court, under section 62A of the Prisons Ordinance [New Version], 5732-1971. But the District Court saw no reason to intervene in the respondent’s decision, and it denied the petition. Now we have before us an appeal, which was filed after leave was duly given.

Disputes as to questions of fact

4.    Two of the appellant’s contentions, in his petition before the District Court, raised a factual dispute. The District Court held that the appellant did not prove either of the two contentions, but the court did not ascribe much importance to this finding; in any event, it is clear that it was not because of the appellant’s failure to prove either of the said contentions that the court decided to deny his petition. I think it advisable to remove these disputes from my path at the outset, since in my opinion too they are unimportant for the purpose of the decision.

5.    The first dispute concerned the question whether, for the publication of his articles in the local newspaper Mikol Makom (while he was still a prisoner at Ashkelon Prison), the appellant obtained permission from the respondent. The appellant argued that Mr Johnny Tester, who was spokesman of the Prisons Service at the relevant time, gave him permission to send articles for publication in this local newspaper. However, shortly afterwards, without any reason being given for this, the permission was revoked, and then he was compelled to stop sending additional articles. The respondent, which denies this contention, based its position on the fact that in the appellant’s personal file at the Prisons Service no documentation was found on the subject of granting the alleged permission. The Court gave the appellant time to file an affidavit in support of his aforesaid contention, but notwithstanding the time that was given him for this purpose, the appellant did not file any affidavit. The District Court concluded from this omission that the appellant had not proved his contention.

I wonder whether, in the circumstances of the case, the decision with regard to this contention should have been based on the appellant’s failure to file an affidavit in support thereof. Did not the appellant name the person at the Prisons Service who, according to him, gave him (and later revoked) the permission; I do not understand what prevented the respondent from ascertaining what this person had to say on the matter. But for the purpose of the proceedings, I will assume that the trial court was correct in its conclusion that the appellant did not prove his contention. What does this imply? In circumstances different from those in our case, I would indeed have inclined to attach some importance to this conclusion. Admittedly, as a rule it is correct to presume that a prisoner, who takes the law into his own hands and acts without permission from the Prisons Service, in a matter which, under the law applying to prisoners, requires permission to be granted, is likely to be found unworthy of receiving the permission, even if according to the ordinary criteria he ought to have been given the permission he seeks. But this is not the case with regard to the appellant’s request. The respondent’s refusal to give the appellant the permission he recently requested was not based on the reason that several years ago (in 1989) the appellant took the law into his own hands, in that he sent articles for publication in the local newspaper Mikol Makom without obtaining permission. The respondent did not even claim that the publication of those articles escaped its attention. In any event, from correspondence between the appellant and the editor of local newspaper Mikol Makom, which was filed in the District Court, it appears that when the appellant was told, by a representative of the respondent, that he was not entitled to send additional articles for publication in the local newspaper, the appellant immediately desisted.

6.    The second factual dispute between the parties concerns the question whether the local newspaper Mid-Netanya has any interest in publishing articles written by the appellant. The appellant’s contention was that recently, before he submitted his request to the respondent, he enquired and found that the local newspaper would be prepared to publish his articles. But the respondent claimed that it had not received any request from any newspaper that was supposedly prepared to publish articles written by the appellant. To prove his contention, the appellant summoned, as a witness on his behalf, the representative of the editor of the local newspaper. This journalist testified that she did not know the appellant. Notwithstanding, she confirmed that about three months earlier the appellant wrote to her with an offer of publishing articles about prison life. When she asked the editor of the newspaper as to her position, the editor advised her to interview the appellant, for the purpose of finding out about him before making a decision whether to publish his articles. According to her, she asked the director of the prison to allow her to interview the appellant. First she was told that ‘the matter was difficult’ and afterwards that the appellant had filed a petition and that, therefore, she should wait. Finally she was summoned to the court to testify, before she succeeded in holding the desired interview. On the main issue, she said that the editor of the newspaper treats the appellant like any new reporter offering material for publication.

Prima facie this testimony implies that the appellant did not sufficiently prove his contention that the editor of the local newspaper Mid-Netanya was indeed prepared to publish his articles. However, an affidavit filed by the respondent, given by its spokesman, obscured the issue. The affidavit stated that this journalist (the witness for the appellant) had already met the appellant in the prison, without stating in the affidavit when she visited, and whether this was before or after her appearance in the court. The affidavit also alleged against the witness that she received permission to visit the appellant and that she used the visit to interview him, without obtaining permission for this as required by the procedure regulating the conditions of meetings between journalists and prisoners. But whichever is the case, the question in dispute is unimportant. The decision as to the right of the appellant to send his writings for publication in a newspaper does not depend at all on whether the newspaper is interested or prepared to publish the material; moreover, it has certainly been proved that the local newspaper under discussion was prepared in principle to examine and decide whether the appellant’s articles merited publication.

The main disputes and the decision in the District Court

7.       In his petition to the District Court, the appellant mainly based his position on the right of freedom of speech. The appellant argued that this basic right is shared also by someone who is a prisoner, and even he (while he is a prisoner) is entitled to realize it. In addition, the appellant relied also on his right of freedom of occupation. In this respect, he argued that his imprisonment in protective custody denies him the opportunity, which is available to other prisoners, of working and taking part in rehabilitation programmes. According to him, the possibility of writing and publishing his articles will improve his condition from various perspectives. In this way, he can give expression to his feelings and escape from the anguish of the remoteness and the isolation. Moreover, with the income that will be paid to him in return for his articles he will also be able to improve somewhat his standard of living in the prison.

8.    The respondent, in its response to the petition, did not expressly deny the appellant’s contention that the right of freedom of speech is shared, in principle, also by prisoners. Notwithstanding, it based its case on its stated policy that as a rule contact should not be allowed between prisoners and journalists. In its view, it is possible to deviate from this rule only in rare cases where there is a manifest public interest in permitting such contact, or when the contact occurs within the framework of press tours initiated by the Prisons Service. On the question whether the appellant has the right of freedom of occupation, the respondent chose to address the matter on a specific level only. The appellant, it argued, cannot be allowed to engage in journalism. Such an occupation, which involves an external employer, can be allowed only within the framework of the rehabilitation plans designed for prisoners. The appellant, as a prisoner requiring protection, does not meet the criteria that determine the degree of suitability for rehabilitation; it necessarily follows that it is impossible to allow him to engage in work, apart from work carried out in full within the prison.

The respondent further argued that the appellant is a persistent offender and therefore cannot be trusted to give a faithful account in his articles of what happens inside the prison. In this context, it was stated that on the two occasions when he succeeded in making contact with journalists, the appellant abused these contacts. First, in 1987, after he escaped from a previous term of imprisonment, the appellant was interviewed by the newspaper Yediot Aharonot. In this interview, which was published in the newspaper under the headline ‘Gangsters run the prison’, the appellant gave false descriptions about what allegedly happened in the prison. On another occasion, the appellant telephoned various journalists from the prison and gave them unfounded reports about the preferential treatment of the Prisons Service authorities to the prisoner Ahmed Yassin; the appellant did this even though he did not know this prisoner at all and never met him. As a result of the report, many journalists contacted the spokesman of the Prisons Service and the governor of the relevant prison and asked them to comment on the information in their possession. As the Prisons Service discovered afterwards, it was the appellant who made contact with the journalists and gave them the false report. In view of this experience, the respondent argued, there are grounds for concern that the appellant — wittingly or even unwittingly — will cause harm by his articles to the Prisons Service, the safety of other prisoners and also his own safety, and the reputation of prison warders and other staff. Moreover, giving the appellant a higher profile, because of his publications in the media, will give him a special status vis-à-vis the prison warders and other prison staff. These, fearing that they will be harmed by him, will be deterred from carrying out their duties and exercising their authority towards him. The authority of those in charge will be diminished, discipline will become lax and the running of the prison will be disrupted. Furthermore, the appellant, who is classified as a prisoner in need of protection, is guarded carefully. By becoming prominent among the prisoners, as a result of his access to publications in the media, he may increase the degree of personal risk to which he is exposed.

The appellant tried to calm the respondent’s fears. He therefore gave notice that he undertook not to write about anyone other than himself, but to speak in his articles only about his personal life in the prison. He also declared that he was aware and agreed that all his articles would be scrutinized by the respondent before they were sent to the editor of the newspaper, and that the respondent would be entitled to disqualify any article whose content, in his opinion, might disrupt the running of the prison, the safety of the prison warders or the prisoners or the reputation of any of them. The respondent’s reply to this was that the task of examining articles was outside the scope of his duties, and that doing this was, from his viewpoint, totally impossible.

9.    In deciding the petition on its merits, the learned judge considered two conflicting interests: the right of the appellant, as a prisoner, to freedom of speech, against the need to maintain order and security in the prison. The trial judge did not address the broader issue, namely whether the stated policy of the respondent in refusing prisoners contact with the media and speaking to the media, is a policy that reflects a proper balance between the two aforesaid interests. For the judge it was sufficient to determine that in the case of the appellant there was nothing wrong in the respondent’s decision. It would appear that the judge thought (although he did not say this expressly) that it was not reasonable to require the respondent to check the appellant’s articles in order to ascertain that their content did not arouse any fear of harm to the running of the prison, discipline, security and additional values. This led, so it seems, to the finding that ‘giving [the appellant] the right of free access to the media would allow him to acquire considerable power’ (emphasis supplied). Later, referring to the judgment of the Magistrates’ Court in the most recent of the appellant’s trials, in which the appellant’s uncontrollable criminal inclination was described, the judge also found that ‘giving a person like the [appellant] the opportunity of acquiring such power will have serious ramifications on the running of the prison’. In the circumstances of the case — the judge concluded — the decision not to allow the appellant to have contact with the newspapers is a reasonable decision.

The arguments in the appeal

10. Learned counsel for the appellant argued before us that the respondent’s refusal to permit the appellant to publish his writings in a local newspaper that is prepared to publish the work is a violation of the appellant’s freedom of speech and his freedom of occupation, and it violates his human dignity. These basic liberties, which are enshrined in the Basic Law: Human Dignity and Liberty, belong to the appellant even when he is a prisoner. Restricting them is permitted only to the extent that is required by the penalty of imprisonment, or according to the accepted rules for imposing such restrictions. The freedom of speech of a prisoner, like the freedom of speech of a free citizen, can be restricted only when there is an almost certain danger of real harm to public welfare or security. In its all-embracing fear that the appellant — wittingly or unwittingly — will publish remarks that will harm the running of the prison and the welfare of the prison warders and the prisoners, the respondent does not show an almost certain danger of such harm, and it does not even comply with less strict tests, such as a real fear or a reasonable possibility of such harm. The respondent’s desire to prevent the publication of criticism of the Prisons Service, or prison conditions, does not justify imposing a prior prohibition of any speech on these subjects. Even the concern for harm to the reputation of a prison warder, or a prisoner, does not justify imposing such a prohibition. This is particularly so in our case, in view of the appellant’s consent to restrict his writings solely to his impressions and experiences of prison life; his undertaking not to refer in his articles, personally, to any of the prison staff or prisoners; and his consent, ab initio, that the respondent may, at its sole discretion, not send to their destination any articles that breach any of these conditions. Counsel for the appellant also argued that, in the circumstances of the case, the appellant should be allowed to exercise also his right of freedom of occupation. Admittedly, as a rule, it is true that the imprisonment of a person prevents him from exercising his right to this freedom in the ordinary sense. However, the appellant merely asks to be allowed to send his writings for publication, whereas the work of writing will be carried out inside the prison. Therefore it is argued that the fact that the appellant is a prisoner requiring protection, or unsuited for rehabilitation programmes that are the only framework in which prisoners are able to work outside the prison, should not have any influence on the considerations leading to the decision on his request.

11. Counsel for the respondent argued that a prison sentence not only denies a person his freedom of movement and thereby restricts his ability to realize his right to personal liberty, but it also prevents him from being able to exercise other basic liberties that he has. Somewhat differently from its position before the trial court, the respondent conceded before us that the fact of imprisonment, in itself, does not deprive the prisoner of those basic liberties that he has, when the imprisonment does not necessitate his being deprived of them. Notwithstanding, it argued that the ability of a prisoner to realize these and other liberties should be restricted to the degree required in order to enable the respondent to carry out the duties imposed on it vis-à-vis the public: to protect the safety and security of all prisoners, to maintain order, discipline and security in the prisons; and to ensure the welfare and security of the staff and prison warders serving in the prisons. The appellant’s desire to publish articles in a newspaper is indeed based on his right to freedom of speech, but recognizing the appellant’s right to do this involves a danger of harm to the running of the prisons, the safety and security of other prisoners and the safety and security of staff and prison warders. Although the respondent recognizes the right of the appellant to express in writing his impressions from his stay in the prison, it regards it as its duty to prevent him from publishing these. Granting the appellant’s request will give him, vis-à-vis both prisoners and warders, a status of a ‘journalist’, and the great power embodied in such a special status may disrupt the discipline that must be maintained in the prison. There is also a fear that the appellant will write and publish things that may incite the prison population, cause disputes between prisoners, or endanger the safety or the reputation of prison warders and other prison staff.

Counsel for the respondent further argues that the appellant may exercise his right to correspond with addressees outside the prison only within the framework of the arrangements set out in the special law for the correspondence of prisoners — in other words, within the framework of the stipulated quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., one every two months), the appellant may send letters also to various newspapers. The appellant is also entitled, like every prisoner, to put his claims in writing (against prison conditions) in applying to various official bodies: the courts, members of the Knesset and the State Comptroller. The respondent does concede that it is no longer the practice to enforce the permitted quota of prisoners’ letters, and that in practice they are permitted to write more than the quota (something which under regulation 19 of the Prisons Regulations, 5738-1978, constitutes one of the benefits that the director of the prison is authorized to allow some or all prisoners). But with regard to the appellant, who wishes to publish articles about prison life, the respondent intends to exercise its authority to the full. Under regulation 33 of the Prisons Regulations, the respondent is authorized to open and examine every item of mail sent by a prisoner and to prevent it being sent to its destination if it is found to contain information that is likely to harm prison security or discipline, or that makes it possible to identify a person, whether a prisoner or a warder, in circumstances in which such information may harm that person or the running of the prison. The respondent says that it is its intention to examine the appellant’s mail and it intends not to allow the sending of letters (or articles to newspapers) that include harmful information. Counsel for the respondent did clarify in his arguments that the respondent’s fears were aroused by the intention of the appellant to send articles to the newspapers about prison life; in other words, had the appellant asked for permission to send articles that he wrote to the newspaper on other subjects, it is most likely that the respondent would have seen no reason to deny him this.

The respondent further argues that even the appellant’s reliance on freedom of occupation cannot give him a right to receive the desired permit. The violation of freedom of occupation is necessitated by his very imprisonment and the conditions of his imprisonment. As a prisoner, the appellant can ask to be employed, but only within the framework of the accepted procedures for the employment of prisoners of his category. Publishing a regular column or articles in a newspaper, in return for payment, constitutes, de facto, working for payment outside the prison. The appellant is not entitled to claim for himself such a freedom of occupation; what is more, the appellant does not meet the suitability requirements for rehabilitation programmes, and it is only within the framework of these that prisoners may be allowed to work outside the prison.

A prisoner’s human rights

12. It is established law in Israel that basic human rights ‘survive’ even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law. As Justice Elon said in one case:

‘It is a major rule of ours that each one of a person’s human rights, as a human being, is retained by him even when he is under arrest or imprisoned, and the fact of imprisonment alone cannot deprive him of any right unless this is necessitated by, and derives from, the loss of his freedom of movement, or when there is an express provision of law to this effect…’ (HCJ 337/84 Hukma v. Minister of Interior [1], at p. 832).

See also the decision in CrimApp 3734/94 State of Israel v. Azazmi [2], at p. 81, also given by Vice-President Elon.

The basic assumption is that the human rights ‘package’ of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is ‘inherent’ to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law. Take the basic human right not to suffer physical harm without one’s consent, which was discussed by Justice Barak in HCJ 355/79 Katlan v. Prisons Service [3], at p. 298:

‘The right to physical integrity and human dignity is also a right of a person under arrest and a prisoner. Prison walls do not separate the prisoner from human dignity. Prison life naturally requires a violation of many liberties enjoyed by the free man… but prison life does not require someone under arrest to be denied his right to physical integrity and protection against a violation of his human dignity. A person under arrest is denied freedom; he is not deprived of his humanity. Performing an enema on a person under arrest without his consent and not for medical reasons violates his physical integrity, tramples his privacy and violates his dignity as a human being… therefore, in order that the prison authorities may perform an enema without the consent of the arrested person, and thereby justify the criminal offence and civil tort of assault, they must point to a provision of statute that allows them to do this.’

But the existence of a power is insufficient. As with any administrative decision, the decision of the authority in charge of prisoners must be reasonable and based on relevant considerations and logical reasons. In other words, even when an express provision of statute gives the authority to violate a human right of a prisoner, the authority may not make use of its power before it examines the matter and is persuaded that, in the circumstances of the particular case, there are real reasons that justify depriving a prisoner of his right or restricting it. Take a person’s human right to choose the type of medical treatment that the person thinks appropriate. This is a natural right that derives from the basic human right of a person to protect his physical and mental integrity and well-being. A person is not denied this right as a result of imprisonment; a violation of this right by the authority in charge of the prisons is possible and permissible only on the basis of an express provision of law and the existence of reasons that justify the violation. As Justice Elon said in PPA 4/82 State of Israel v. Tamir [4], at p. 206:

‘This basic right of a person to his physical and mental integrity and well-being and to choose the medical treatment that he thinks appropriate for preserving them is retained by a person even when he is under arrest or in prison, and the mere fact of imprisonment does not deprive him of any right unless this is necessitated by the actual loss of his freedom of movement, or when there is an express provision of law to this effect. Consequently, when the prison authorities wish to deny the person under arrest or the prisoner of this right, they have the burden of proving and justifying that denying this right is for good reasons and is based on law’ (emphasis supplied).

It is not superfluous to emphasize that suspending a prisoner’s ability to exercise any of his other liberties (except for his right to freedom of movement) is always relative, not absolute. This rule applies not only to those liberties that the prisoner can exercise without necessarily having freedom of movement, but also to those liberties that he can exercise only with this freedom. What is the significance of a prisoner also retaining a right of the latter kind? The significance is that the prisoner has an opportunity to argue that, within the framework of the restrictions required by the imprisonment, he should be allowed to exercise, if only in part, this right too. As an example, let us again consider the right of a person to choose the type of medical treatment he thinks appropriate. Even a prisoner has this right, and by virtue thereof he may prefer to receive medical advice and treatment other than those offered to him by the Prisons Service. But the imprisonment suspends his ability to realize this right, since he does not have freedom of movement. It follows that in practice, and as a rule, the prisoner will indeed be compelled to be satisfied with the medical treatment given to prisoners in the prison. However, suspending his ability to exercise the right of choice that he has is not absolute, but relative; in appropriate circumstances, his request, that he be allowed to exercise his right, is likely to be treated sympathetically. This is the case, for example, when the treatment requested by him is of a type that can be given to the prisoner even inside the prison, and there are no objective reasons that justify refusing him this (see State of Israel v. Tamir [4], at p. 213).

13. In determining the extent of the protection given to the human rights of a prisoner, we must take into account, in addition to the considerations concerning general or special interests, also considerations concerning the imprisonment and the duties imposed on the Prisons Service: the needs of guarding all the prisoners; maintaining order and discipline in the prisons; protecting the rights and safety of other prisoners; the education and rehabilitation needs of prisoners; protecting the safety and the rights of staff and prison warders in charge of running the prisons, and protecting the safety of the prisoners imprisoned in them. The extent of protection of a prisoner’s human rights derives from the necessary balance between the right and other interests, of the individual or the public, which in the circumstances of the case must be taken into account. The premise is that the right deserves protection and should be respected. Denying the right, restricting it or violating it are permitted only on the basis of objective reasons that have a basis in law. ‘The greater the right that is violated, the greater the reasons required to justify this violation’ (per Justice Elon in State of Israel v. Tamir [4], at p. 212). With regard to several basic human needs, which prisoners require, the tendency is not to permit any violation, and these needs include ‘not only the actual right of the prisoner to food, drink and sleep, but also minimal civilized human arrangements as to the manner of providing these needs’ (per Justice Elon in HCJ 114/86 Weil v. State of Israel [5], at p. 492); see also what was said in State of Israel v. Azazmi [2], at p. 82). Everyone agrees that ‘a person in Israel, who has been imprisoned (or arrested lawfully), has the right to be imprisoned in conditions that allow civilized human life’ (per Vice-President H. Cohn in HCJ 221/80 Darwish v. Prisons Service [6], at p. 538); only ‘very serious reasons’ (in the words of Justice Y. Kahan, ibid., at p. 542), such as the need to prevent a real danger to human life, may justify any deviation from the right to prison conditions that are considered essential. This is what happened in Darwish v. Prisons Service [6]: the decision of the Prisons Service that security prisoners should not be given beds but only improved mattresses was explained on account of the fear that they would dismantle the beds and use parts of them to harm warders and other prisoners. When it was ascertained that the fear was a real one and was based on past experience, the majority opinion saw no cause to intervene in the correctness of the decision. Notwithstanding, they ordered an investigation to be made for the purpose of ‘improving, in so far as possible, the quality of the sleeping arrangements of those prisoners whom the Prisons Service was compelled to deprive of their beds’ (per Justice Elon, ibid., at p. 546).

It follows that in determining the extent of the protection given to the human rights of the prisoner, the nature of the violated right is important, and ‘classifying the right according to the aforesaid criterion depends, to a considerable extent, on the attitude of society as to the character and fundamental nature of that right’ (per Justice Elon in Weil v. State of Israel [5], at p. 492). The premise is that a prisoner is entitled to the protection of all of his human rights; a violation of a prisoner’s human right, by the authority in charge of the prison, is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority. However, the more important and central the right being violated, the greater the weight it will be given within the framework of the balance between it and the conflicting interests of the authority. This approach has always guided our decisions. Today, after human rights in Israel have been enshrined in Basic Laws that have a super-legislative constitutional status, we have a greater duty to ensure, even more than in the past, that the human rights of prisoners are respected. Recognition of the constitutional status of human rights requires their practical application in their living conditions. Recognition of their role in ensuring this must guide all the organs of government. The courts have, in this context, a central role. As President Shamgar said in CA 5942/92 A v. B [7], at p. 842:

‘The constitutional message does not focus on the declaration of the existence of a basic right, but on the essence, degree and content of the realization of the right de facto.

Human dignity will not be guaranteed by speaking of it but by giving a real and tangible expression to its protection. In this, an important role is played by the courts that in their decisions must ensure de facto protection of human dignity, of equality, which is one of the elements of human dignity, and the protection of those persons who are unable to protect their dignity without the help of the courts.’

We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation (see CrimApp 7223/95 [8], per Justice Or). Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights. The remarks of Justice Barak in HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [9] are apt in this regard:

‘Indeed, imprisonment by its very nature necessitates a loss of freedom, but it cannot by its very nature justify a violation of human dignity. It is possible to have imprisonment that maintains the human dignity of the prisoner. The prison walls should not separate the prisoner from humanity… a prison may not become a concentration camp, and a prisoner’s cell may not become a cage. Notwithstanding all the difficulties involved, a civilized society must preserve a minimum human standard for prison conditions. It would be inhuman of us not to ensure a human standard for prisoners in our society. The objectives of criminal sentences cannot be achieved by violating the dignity and humanity of the prisoner.’

            Freedom of speech of a prisoner

14. Freedom of speech is numbered among the basic liberties in Israel. Recognition of the status of freedom of speech as a basic right was established in Israel long before the enactment of the Basic Law: Human Dignity and Liberty. In HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [10], Justice Agranat gave freedom of speech the honorary title of a ‘supreme right’ (ibid., at p. 878 {97}). Since this important ruling was given, the ‘freedom of speech is an integral part of our legal ethos’ (per Justice Barak in CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [11], at p. 201). The source from which this recognition sprang was case-law: it is one of the ‘basic rights that are “unwritten”, but which derive directly from the character of our State as a democratic State that aspires to freedom’ (per Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [12], at p. 2415 {216}). Later, however, Justice Shamgar emphasized that the character of freedom of speech ‘as one of the constitutional basic rights gives it a supreme status in law’ (CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Co. Ltd [13], at p. 295 {243}). The Basic Law: Human Dignity and Liberty enshrined the case-law recognition of the constitutional status of freedom of speech. An express opinion to this effect was stated by Vice-President Barak in HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [14] (see his remarks at p. 468 {336}); the same, I think, can be seen in the opinion of President Shamgar in HCJ 6218/93 Cohen v. Israel Bar Association [15]. This, with respect, is also my opinion. Admittedly, the Basic Law: Human Dignity and Liberty does not mention freedom of speech, nor does it define it expressly as a basic right. But this is immaterial: even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?

15. The constitutional basic right of freedom of speech is not taken away from someone when he is imprisoned; a prisoner has it even in his prison cell. As Justice Marshall rightly said (in Procunier v. Martinez (1974) [35], at p. 422): ‘A prisoner does not shed such basic First Amendment rights at the prison gate’. Notwithstanding, it is clear that imprisonment very significantly restricts the ability of the prisoner to exercise his freedom of speech, and the freedom of speech given to him is, in practice, much more restricted than the freedom of speech of a free citizen. Some of the restrictions on a prisoner’s freedom of speech are ‘inherent’ to the imprisonment. Exercising the right of freedom of speech is largely dependent on freedom of movement. Imprisonment distances the prisoner from the society in which he lived. Thus, he is deprived of the possibility of hearing and being heard by those persons or circles with whom he wishes to be in contact in order to exercise his freedom of speech. As a result of the imprisonment, he is also deprived of additional avenues of expression which he could have chosen and developed had he not been imprisoned. The prisoner has no protection against this restriction of his ability to realize in full his freedom of speech. The imprisonment to which he has been sentenced is intended to achieve sentencing objectives: to protect society from him, to deter him from further criminal acts, to reform him and rehabilitate him, and to deter also potential criminals. His removal from society, which results also in a reduction in the prisoner’s ability to realize his right of freedom of speech, is one of the main purposes of the imprisonment; moreover, this distancing is often essential also for achieving its rehabilitative objectives.

But the prisoner’s ability to exercise his freedom of speech is subject also to restrictions whose purpose is to further other unique interests, which are concerned with the proper management of the prisons: achieving the purposes of the imprisonment, maintaining security, order and discipline in the prison, protecting the safety of the prisoners and protecting the safety of prison staff and warders, etc.. These interests are also a part of imprisonment and derive from it, and protecting these also requires imposing restrictions on prisoners’ freedom of speech. These restrictions, which are the product of a deliberate decision of the authority in charge of managing the prisons, make further inroads on the prisoner’s (eroded) freedom of speech; these, to a larger extent than that required by his imprisonment and his loss of freedom of movement, change the normal balance to his detriment. Consider: the ‘normal’ protection of freedom of speech derives, of course, from the balance between the basic right of the individual to exercise this freedom and interests that are essential to society, such as national security and public safety, and other general and important values that the State is required to protect (see A. Barak, ‘Freedom of Speech and its Restrictions’, 40 Hapraklit (1991-92) 5, 13 et seq.); it should also be recalled that, in view of the importance and centrality of freedom of speech, the tendency is usually only to restrict it on the basis of a probability on the level of ‘near certainty’ that exercising the right may cause real harm to an essential interest of the State and the public. A violation of freedom of speech, which properly upholds this balance, is considered and accepted as permissible. This rule, which applies to all citizens, applies obviously also to prisoners. But the freedom of speech of prisoners suffers in two more ways; this is because in determining the extent of the protection of the prisoner’s right to freedom of speech we take into account — in addition to the normal protected interests — not only those restrictions that are a direct consequence of the actual imprisonment and the loss of freedom of movement, but also restrictions intended to further special interests involved in the proper management of the prisons. The additional restrictions imposed on prisoners’ freedom of speech are intended to assist the authorities in charge of the prisons in achieving these goals. The key question, in any decision in this matter, is, what are the proper limits of these restrictions? The question is merely a question of the proper balance between conflicting legitimate interests. How is this balance to be made? It is obvious that applying the norm in this field, as in any other field, is a matter for a decision based on judicial discretion. But what are the criteria for exercising discretion? And when will we say that a restriction on the freedom of speech of a prisoner is ‘reasonable’ in that it satisfies the balancing test?

A comparative perspective

16. The case-law of the United States Supreme Court has formulated, in this matter, several guidelines. Let us consider, in brief, the main points. Some of these may be of assistance to us.

The premise in American law — just like the accepted approach in Israel — is that prisoners, too, enjoy all constitutional rights; if the violation imposed on the constitutional right of a prisoner is unlawful, the prisoner is entitled, like any ‘normal’ citizen, to protection of his right. This was stated in one case as follows:

‘A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion’ (Coffin v. Reichard (1944) [36], at p. 445).

This conceptual approach has guided the courts also with regard to the issue of prisoners’ freedom of speech. But in the field of implementation, various approaches have appeared, some stricter and other more lenient. The strict approach has recognized a wide variety of interests that may establish a justification for imposing restrictions on this freedom. A concise summary of such interests, which apparently represents the stricter approach, can be found in the judgment of the Court of Appeals in Brown v. Peyton (1971) [37]. In that case, Justice Winter said, at p. 1231:

‘… in the case of prisoners incarcerated under lawful process, there are state interests to justify repression or restriction of First Amendment rights beyond the interests which might justify restrictions upon unincarcerated citizens. Prison officials have to confine dangerous men in unpleasant circumstances. They must protect the public at large, prison employees, and also other prisoners, who are almost totally dependent on the prison for their well being. Prison authorities have a legitimate interest in the rehabilitation of prisoners, and may legitimately restrict freedoms in order to further this interest, where a coherent, consistently-applied program of rehabilitation exists. Furthermore, many restrictions on First Amendment rights are undoubtedly justifiable as part of the punitive regimen of a prison: confinement itself, for example, prevents unlimited communication with the outside world but is permissible in order to punish and deter crime; additional restrictions may be imposed as part of the system of punishing misbehavior within prison. Finally, the state has an interest in reducing the burden and expense of administration. It may, for example, place reasonable restrictions on the number of publications received by each inmate in order to limit the burden of examining incoming materials. But the fact that interests of these sorts frequently arise does not excuse the necessity of a showing that they exist in particular cases.’

In several later cases, the United States Supreme Court examined the question whether regulations or administrative rules, which impose restrictions on prisoners’ freedom of speech, pass the test of constitutionality; in a few of these judgments, several criteria for deciding cases were established. In Procunier v. Martinez [35], which considered the constitutionality of censoring correspondence between prisoners and parties outside the prison, two conditions were laid down for permitting the violation: first, that the violation is necessary for furthering an important and substantial interest of the State, which is unrelated to the restriction of the freedom of speech; and second, that the extent of the violation of freedom of speech does not exceed the degree required to further the purpose for which it was imposed. In the words of Justice Powell, at pp. 413-414:

‘Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or the practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.’

The case of Pell v. Procunier (1974) [38], which was considered soon after Procunier v. Martinez [35], examined the constitutionality of the prohibition imposed on prisoners against being interviewed by the media. In this case, the court recognized the existence of additional grounds for permitting the violation of prisoners’ freedom of speech. The rule set out stated that —

‘A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates’ free speech rights must be balanced against the State’s legitimate interest in confining prisoners to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions’ (ibid., at pp. 817-818).

What can be seen from a comparison of the two tests, in brief, is the following: according to each of the approaches a proper balance is required between the freedom of speech and the conflicting protected interest. The difference between them lies in the definition of the nature of the protected interests: are considerations of security, order and discipline or the rehabilitation of the prisoners the only ones that constitute ‘an important or substantial governmental interest’, which are capable of justifying imposing restrictions on the freedom of speech of a prisoner, or are interests arising from all the penological and criminal rehabilitation needs or involved in the needs of the proper management of the prisons (‘legitimate penological objectives of the corrections system’) capable of justifying imposing such restrictions? This issue was considered once again in Jones v. North Carolina Prisoners’ Union (1977) [39], which concerned the constitutionality of the prohibition imposed on meetings of the ‘Prisoners’ Union’, prisoners joining this union and correspondence between them and it; and in Bell v. Wolfish (1979) [40], which concerned the restriction of the right of prisoners to receive hard-cover books if these were not sent to them directly by the publisher or the book club.

The decision as to the proper test was given in Turner v. Safley (1987) [41], in which it was held (per Justice O’Connor) that the test of the constitutionality of the violation of a prisoner’s freedom of speech is whether it is ‘reasonably related to legitimate penological interests’ (see ibid., at p. 89). Relying on a synthesis of the previous case-law, this judgment delineated four main criteria, by means of which the constitutionality of the violation of a prisoner’s human right should be examined (see ibid., at pp. 89-92). For the sake of brevity, I will satisfy myself by quoting the brief synopsis of the remarks from the book of J. W. Palmer, Constitutional Rights of Prisoners (Cincinnati, 4th ed., 1991), at p. 37:

‘… (a) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral government interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional rights that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de minimis costs to valid penological interests being evidence of unreasonableness.’

The ‘rational connection’ test between the restriction imposed on the freedom of speech and legitimate goals in the field of the treatment of offenders and the proper administration of the prisons, which was delineated in Turner v. Safley [41], was adopted by the court in additional judgments (see, mainly, Justice Blackmun’s opinion in Thornburgh v. Abbot (1989) [42], in which it was held that a practice authorizing the prison authorities not to deliver to prisoners publications that were received for them, if they thought that the publications endangered the security of the prison, prima facie stood up to the constitutionality test.

The prisoner’s freedom of speech and the problems faced by the authorities

17. The penalty of imprisonment, which exists in Israel, and the method in which imprisonment is carried out de facto, are different from the ‘corrections system’ practised in the United States. But among the problems that concern the authorities in charge of the treatment of prisoners and the management of the prisons, in Israel and in the United States, there are also quite a few similar issues. There is no difficulty in determining that maintaining order and discipline in the prisons constitutes a legitimate interest of every State. This is certainly also the case in Israel. In so far as something is indeed required to prevent a danger to order and discipline in the prisons, this is sufficient to serve as a ground for restricting the freedom of speech of (some or all) prisoners. Also the need to rehabilitate prisoners — where the success of a rehabilitation programme depends on this — may prima facie justify imposing a similar restriction. With regard to all of these, we can find support, inter alia, in the ruling given in Procunier v. Martinez [35]. But I am prepared to accept that not only maintaining order and discipline in the prisons, but also other considerations deriving from the needs of ‘proper management’, in its wider sense, may sometimes justify imposing certain restrictions. Assuming this premise, and adapting the other elements accordingly, we can avail ourselves also of the criteria established in Turner v. Safley [41]. In this spirit, we can summarize that in order to justify a violation of a prisoner’s freedom of speech (and any other basic right), it is insufficient to show the existence of a conflicting interest that justifies a violation, nor even the existence of a regulation that permits a violation of the right, but it must also be shown that between the provision that allows the violation and the conflicting interest — on account of which it is proposed to violate the right — there is a logical connection and objective proximity. Remoteness or vagueness of the connection are a sign that the violation is unjustified. We must also consider specific questions of balance and proportion: does the extent of the violation of the right exceed the degree necessary for achieving the legitimate purpose that requires the violation? Does the provision that causes the violation leave the prisoner with alternative ways of enjoying his right, or what remains of it? Can the Prisons Service, by adopting reasonable steps within the framework of its limited resources, avoid or reduce the violation? The answer to each of these questions is likely to influence the decision on the question whether the statutory arrangement that allows the violation reflects a correct and proper balance.

Notwithstanding, it is important to emphasize that these rules are only guidelines. They are based on certain assumptions with regard to all the ethical questions that underlie them. They do not determine the weight that should be given to each of the conflicting interests. They do not determine the balancing point at which we should draw the line distinguishing between a permissible violation and a prohibited violation of a prisoner’s human right. The definition of the balancing point is not a matter for a technical decision, but for a judicial decision. This determination is the result of a value decision, based on considerations of social policy. Within the framework of its decision, the court is called upon to determine the relative weight of each of the conflicting interests and to mark the proper balancing point between them. The weight of the conflicting interests is not constant, and even the balance between them is liable to change. What was once correct and accepted is not necessarily correct now as well; and not everything that is acceptable to us and accords with our outlook is likely to be accepted and correct in a decade or two. We can illustrate this with an example from the past. Consider the right of prisoners to participate in elections for the Knesset. A petition to enable prisoners to exercise this important basic right was brought before the court at the end of the 1950s, but was denied on the ground that ‘it is inconceivable that this should be possible from a practical viewpoint, in view of the number of persons in the prisons, and the police forces that will be required for an operation of this kind…’ (HCJ 215/59 Geller v. Minister of Interior [16], at p. 1704). But another petition on the same issue, which was filed approximately twenty years later, resulted in a reversal. Admittedly, even on this occasion the court could not see a practical possibility of granting the relief sought by the petitioners; but this time it decided and clarified that the legislator and the authorities in charge of implementation should prepare themselves at an early date, from a statutory and administrative viewpoint, in order to enable prisoners and arrestees to exercise their right to vote (Hukma v. Minister of Interior [1]). And so, as a result of this judgment, the Knesset Elections Law (Amendment No.17), 5746-1986, was enacted, and this provides an arrangement that enables prisoners and persons under arrest to exercise their right to vote. This is a clear example of a change in ethical approach, which changed the relative weight of the conflicting interests and delineated a new balancing point between them (see the remarks of Justice Elon in Weil v. State of Israel [5], at pp. 492-493).

18. When balancing a basic right of a prisoner against a conflicting interest of the Prisons Service, the proper relative weight should be given to both side of the equation. The greater and the more important the right, the greater and more important must be the opposing interest that is required to overcome it. But the conflict is not always or necessarily symmetrical. Sometimes it will transpire that upholding the right of the prisoner is also beneficial to the public interest. Once again, consider the ability of prisoners to exercise their right to vote. No-one disputes that that this ability realizes an important part of freedom of speech. But the exercise of this right by the prisoner also furthers the goal of rehabilitation, from which not only the prisoner is likely to benefit, but also society. As Justice Elon said in State of Israel v. Tamir [4], at p. 212:

‘Not violating the rights of the prisoner, which he had before he was deprived of his freedom of movement, is in the interests of the prisoner, in order to preserve, in so far as possible, the connection between him and free society, from which he came and from which he is temporarily separated, by the prison walls; it is also in the interests of society, in order to further, in so far as possible, the rehabilitation of the prisoner and thereby to facilitate his return and reintegration into society, of which, even while he is in prison, he is a part.’

It need not be said that the rehabilitation of prisoners is also one of the legitimate interests entrusted to the Prisons Service. It follows that protecting the ability of the prisoner to exercise his right is not always or necessarily in direct conflict with these interests. But let us not ignore the main point: the main significance in recognizing the ability of the prisoner to exercise his right of choice lies in preserving the basic value of human dignity.

19. Let us return to basic principles. Protecting the freedom of speech, as part of human dignity, is the main guarantee for safeguarding the individual’s intellectual freedom. Within the framework of freedom of speech, man realizes his desires and aspirations that are part of his nature and that reflect his intellectual freedom: to be educated and acquire knowledge, to be involved in communal life, to hear the opinions of others and express his own views. Imprisonment denies the individual his freedom of movement, thereby imposing a serious restriction, not merely on his basic right to personal liberty, but on the practical ability to realize his intellectual freedom as he sees fit. Admittedly, imprisonment has no access to the inner sanctum of intellectual freedom — the ability of the prisoner to think, believe, and preserve his humanity. However, as we have already said (in paragraph 15 above), the ability of the prisoner to exercise his right to freedom of speech is far more restricted and limited than the ability of the free citizen. The (restricted) freedom of speech enjoyed by the prisoner should therefore be given the widest protection possible.

This approach is clearly reflected in case-law. Consider HCJ 144/74 Livneh v. Prisons Service [17]. In that case, the court set aside the decision of the prison governor not to allow (the petitioner in that case) to bring into the prison the writings of Marx, Engels, Lenin and Mao Tse-Tung. The governor based his decision on the fear that bringing these books into the prison would incite political arguments between the prisoners. In setting aside this ground, Justice H. Cohn said:

‘We commend the prison governor for being continually mindful of keeping the peace inside the prison. But it has never been said that in order to “keep the peace” he may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (ibid., at p. 689).

Further on, at p. 690, he added:

‘The prison governor has not been given authority to prohibit bringing books into the prison in order that he may choose, according to his taste, what a certain prisoner ought to read and what he ought not to read.’

It is still clear and obvious that the Prisons service has the power to prevent bringing books into the prison. What then is the criterion for deciding when he may exercise this power? This issue was answered by the court in HCJ 543/76 Frankel v. Prisons Service [18]. This petition challenged a decision of the prison governor not to allow two books to be brought in. The court saw no reason to interfere with the decision with regard to one of the books, which was found to contain inciting material. This was not the case with regard to the second book. The decision to forbid this book also was set aside. Vice-President Justice Landau, explained the distinction, and to establish the test he availed himself of the decision of the court in Livneh v. Prisons Service [17], which set aside a decision of the prison governor not to allow the writings of Marx, Engels, Lenin and Mao Tse-Tung to be brought into the prison. The following are the remarks of Justice Landau in Frankel v. Prisons Service [18], at p. 209:

‘Indeed, these writings urge revolution, but reading them does not amount to a near-certain danger to the peace that this court determined as the criterion in the leading decision of Justice Agranat in HCJ 73/53, Kol HaAm v. Minister of Interior. This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend’ (emphasis supplied).

In Frankel v. Prisons Service [18], as stated, the court saw no grounds for intervention in the decision of the prison governor not to allow a book with inflammatory material to be brought into the prison. ‘In the tense conditions that prevail in the prison’ — the judgment says, at page 209 — ‘a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions’. Once the book was found to contain inflammatory material, the court thought that the prison governor had broad discretion to act within the framework of his authority. It should be said that also in other cases where the court decided not to intervene in decisions that harmed the education or entertainment needs of prisoners, the decision was based on the recognition of the existence of security considerations. Thus, for example, in HCJ 96/80 Almalabi v. Prisons Service [19], no fault was found with a decision of the Prisons Service to prohibit prisoners convicted of security offences from having transistor radios. The reasoning underlying this decision was that a transistor radio in the possession of a prisoner convicted of a security offence could be used for transmitting broadcasts and messages that could lead to a breach of order and security inside the prison. The court saw no reason to intervene in the correctness of this consideration.

It follows that the prison authorities have the means that can impose restrictions on some possible expressions of intellectual freedom, but they are allowed to do this, usually and mainly, when there is a near certainty of real harm to public safety, or real harm to keeping the peace, order and discipline inside the prison. It is admittedly possible that, in the process of weighing up the matter, weight will also be given to other interests, which do not derive from security considerations or the need to maintain order and discipline, but which are concerned with the need for proper administration of the prisons in the broad sense (such as administrational efficiency, economy of resources, etc.). But taking into account the importance and centrality of freedom of speech, the relative weight of these additional interests is not great. In general, these alone will be insufficient to deny the right, and they may be considered only in determining the degree to which the prisoner will be allowed to exercise his right.

It need not be said that even when an authority has a solid reason for restricting the freedom of speech of a prisoner — i.e., when there is a real likelihood that the speech will harm public safety or endanger order and discipline in the prison — the authorities must still comply with the proportionality test, and may not violate the right of the prisoner more than is necessary to forestall the risk. The authority must remember that a violation of the freedom of speech of a prisoner is always a further violation, and it is particularly enjoined to resist the temptation of exercising its power unnecessarily or to an unnecessary degree. When it considers making use of this power, the person in authority in the Prisons Service would do well to be mindful of the remarks of Justice H. Cohn in Livneh v. Prisons Service [17], at p. 690:

‘… many evils, which are necessarily involved in prison life, are added to the loss of liberty. But let us not add to the necessary evils, which cannot be prevented, restrictions and violations that are unnecessary and unjustified. The powers given to prison governors to maintain order and discipline must be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without real justification.’

Freedom of speech in writing and publication

20. Writing is one of the more basic forms of speech. As Justice Holmes said:

‘… the use of mail is almost as much a part of free speech as the right to use our tongues… ’ (Milwaukee Pub. Co. v. Burleson (1921) [43], at p. 437).

Naturally, prisoners also have the right to express themselves in writing. The most common form is in the correspondence that the prisoner is entitled to have with his relations and friends. Our case-law has not yet considered the question of the right of a prisoner to express himself in the written media. But I see no reason to distinguish between this form of expression and other modes of expression available to the prisoner. The accepted criteria for restricting the freedom of speech of a prisoner are also appropriate for this form of expression. Note than I am not addressing the question whether prisoners should be allowed free and uncensored access to the media. Nor am I addressing the question whether the media should be allowed free and uncensored access to prisoners. I am considering only one possible channel of all the possible channels of communication between prisoners and the media: the right of the prisoner to send from the prison to a newspaper editor (or another branch of the media) a letter or an article intended for publication, when the prisoner does this in the same way and within the framework of the same restrictions subject to which he is allowed to send other letters.

We should point out that in the United States there is no doubt as to the right of the prisoner to write to the newspapers and even to write critically of the prison authorities and prison conditions. Moreover, the accepted approach there is that criticism of a prisoner about his prison conditions not only upholds the right of the prisoner to express himself publicly (through the media) about a matter that concerns him, but also the right of the public to know about what happens in State prisons, since what happens in the prisons is not open for inspection, and because of the natural tendency of the authorities that administer the prisons to hide from the public even their good intentions to improve the conditions that prevail there. A statement of this approach can be found in the remarks of the Court of Appeals in Nolan v. Fitzpatrick (1971) [44], at pp. 547-548:

‘We need not adopt the broad principle that a prisoner retains all First Amendment rights to conclude, as we do, that he retains the right to send letters to the press concerning prison matters. In so concluding, we rely primarily on the fact that the condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners’ right to speak is enhanced by the right of the public to hear. This does not depend upon a determination that wardens are unsympathetic to the need to improve prison conditions. But even a warden who pushes aggressively for reforms or larger appropriations within his department and before appropriate officials and legislative committees may understandably not feel it prudent to push for more public laundering of institutional linen.’

The court was aware of the argument that publishing the letters of prisoners in newspapers, when the letters contained particularly harsh criticism of prison conditions, was liable to stir up passions among the prison population and create a near-certain danger of a violent outburst and a breach of prison security. In its response to this argument, the court went so far as to say that the way to deal with such an extreme danger was to prohibit bringing into the prison the issue of the newspaper that contains the dangerous publication, and not by refusing ab initio to send it for publication. As the court said, at p. 549:

‘The most that can reasonably be said is that, depending upon conditions in the prison when the letter or news story based on it returns to the prison, some particularly inflammatory letters may create a “clear and present danger” of violence or breach of security. In that extreme case, prison officials can cope with the situation by refusing to admit the dangerous issue of the newspaper to the prison rather than by refusing to mail the letter at the first instance.’

The authority may not censor a letter of a prisoner because its contents are uncomplimentary to the prison authorities, or even contain factually inaccurate information. This, it will be remembered, was discussed by the court in Procunier v. Martinez [35], at p. 413:

‘Prison officials may not censor prisoner correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.’

Also in Pell v. Procunier [38] the court considered the broad right of a prisoner to send letters to the media. In Pell v. Procunier [38], the court found no defect of unconstitutionality in the regulation prohibiting prisoners from conducting face-to-face media interviews, but the prohibition was recognized as reasonable in view of the opportunity available to prisoners to write to the media, a method that was less burdensome than allowing newspaper journalists into the prison (see ibid., at p. 424).

Furthermore, counsel for the appellant argued that, according to the practice in force in Canada, prisoners are allowed to publish their writings in the press. As proof of this contention, he presented to us a series of eight items, written by a prisoner, which were published over a period of approximately two months in The Globe and Mail, which is published in Toronto. The contents of the articles (entitled ‘Life in Prison’) are a harsh criticism of the rehabilitation policy of the authority in charge of administering the prisons and of the effect of this policy on the lives of prisoners.

From the general to the specific

21. The appellant wishes to exercise his right of freedom of speech by publishing his writings in a local newspaper distributed in Netanya. The respondent, the Prisons Service, opposes the application. Do the considerations, upon which the respondent relies in its opposition, reveal a justification for preventing the appellant from publishing his articles in the newspaper? I believe that the answer to this question is no. Let us first say that the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences. In these circumstances, we are not required to decide that the appellant’s freedom of speech gives him a right to write in the press about the running of the prison and the life of prisoners as he sees fit. We are also not required to consider the question whether the interest embodied in the public’s right to know about prison conditions and what happens inside the prisons justifies restricting the authority and power of the respondent not to send a letter or article of a prisoner for publication merely for the reason that it contains criticism of prison conditions or of the Prisons Service. These questions deal with related issues from the field of freedom of speech: does the public’s right to know about what is happening in the prisons justify reducing the restrictions placed on the freedom of speech of prisoners? Does upholding the public’s right imply that the media should be given freer access to prisons and the possibility of communicating with the prisoners? These questions, which are significant in themselves, do not arise in this case and can therefore be left undecided. In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.

22. What, then, is the nature of the respondent’s opposition? Why does it interest him whether the appellant is allowed to send articles to the local newspaper, in the same way that he may send letters to whomsoever he wishes, and to describe in his articles (in the way that he can and is entitled to do in his letters) his life and experiences in the prison?

The respondent’s position is complex. On the one hand, it does not question the right of the appellant to write letters to the newspaper; and if the newspaper decides to do so, it can publish the appellant’s letters in the form of articles; however, the respondent says that the appellant is entitled to do this only within the framework of the quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., sending one letter every two months). On the other hand, the respondent admits that as a rule it no longer enforces the quota of letters that prisoners may send. But it intends to enforce this with regard to the appellant. Its reason for this distinction is that in his writings the appellant intends to describe his life in the prison. Were it not for this, the respondent candidly says, it would see no reason to treat the appellant more strictly with regard to the quota of letters. According to the respondent, if the appellant wishes to write about general matters, it can and is prepared to treat him more liberally. In other words, the main reason for refusing the appellant’s request to be allowed to send his writings to the newspaper is not the writing itself, but the content of the writing. The respondent’s position is based on the fear that publication of articles on prison life will undermine the running of the prisons, cause a breach of discipline and endanger the safety and security of the staff and warders. The respondent sees reason for concern that the publication of articles about the appellant’s life in the prison will result in him being regarded by prison warders and prisoners as having the status of a journalist. Thus he would acquire power not enjoyed by other prisoners. This phenomenon would undermine discipline. It also believes that there is a fear that the appellant’s articles would stir up the prisoners and cause strife between them and the prison staff or amongst themselves. The appellant’s argument that the respondent can allay all these concerns by virtue of its authority to censor and disqualify written material that the prisoners send from the prison is dismissed by the respondent with the response that the task of examining the articles falls outside its duties and that doing this is, from its point of view, wholly impossible.

23. I cannot accept the respondent’s position. Had it based its position solely on the provisions of section 47 of the Prisons Ordinance [New Version], which determines the quota of letters that a prisoner is allowed, we would be required to interpret this provision in order to examine whether the prisoner’s right to correspond with the media is also limited to the same miniscule quota stipulated in the section (sending one letter every two months). However, the respondent admitted that the letter quota of prisoners is no longer strictly enforced. Already in HCJ 157/75 [20] it was stated that the respondent no longer acts de facto in accordance with the provisions of section 47, but ‘allows prisoners to write one letter every two weeks’. If the respondent does not even enforce this quota, it can only be commended for this. But the respondent cannot be allowed to make the argument that it does not enforce the letter quota for most prisoners, but it intends to enforce it vis-à-vis the appellant, and this not necessarily because of the appellant’s desire and request to send articles that he writes to a newspaper editor, but merely because he intends to devote his articles to describing his life in the prison. There is nothing improper in the subject of the letters; and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner. However, the respondent does not trust the appellant to keep his promise to act as he undertakes and declares he will act. I have no difficulty in understanding this. The respondent is neither expected nor required to rely upon the appellant’s word. It has clear authority — and no-one in this case disputes the validity of its authority — to examine and censor the appellant’s articles, and if it discovers that the contents of a particular article pose a danger, on the level of near certainty, to order or discipline, it can withhold the article and prevent it from being sent. The respondent says that this task falls outside its duties and that in practice it cannot perform it. I do not believe that the respondent may make the argument that examining the articles falls outside the scope of its duties, since the authority given to it under regulation 33 of the Prisons Regulations — ‘to open and examine any letter and any other document of a prisoner’ — shows that its duties include also the examination of such articles. Therefore I cannot agree with the learned judge that granting the application of the appellant will give him ‘free access to the media’, thereby ‘enabling him to acquire considerable power’. Subjecting the letters to the prior censorship of the respondent rules out the possibility that the appellant will have free access to any branch of the media. Under such conditions, there is no real basis for concern that the appellant will be able to ‘acquire power’.

24. I could, perhaps, have understood the respondent’s position had it been satisfied with the argument that a limit should be placed on the length or number of the articles that the appellant should be allowed to send to the newspaper. It is not for nothing that the respondent says that there it sees no practical possibility of examining the articles. This is simply because, in view of the many and burdensome tasks that the Prisons Service is required to carry out, the means available to it for censoring the letters of prisoners are not unlimited. It is also conceivable that sending an article intended for publication in a newspaper may justify, from the respondent’s viewpoint, more detailed consideration that that devoted to the ordinary letter. The need to examine long articles, or to do so on a frequent basis, is likely to be difficult for those concerned, and if the burden becomes too heavy, their ability to carry out their other duties properly will be affected. This difficulty raises a common problem: often the authorities face the difficult of finding the resources required by it in order to comply with its duty to uphold basic human rights. But even when the argument is expressly made, it is not usually given much weight. Not long ago I had the opportunity of addressing this question (in HCJ 4541/94 Miller v. Minister of Defence [21], at p. 113 {197}):

‘I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel, at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

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

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3rd ed., 1992, at p. 873.’

These remarks are also relevant in this case. The respondent — like every organ of government — has a duty to uphold basic human rights. It must take this duty into account when allocating and distributing its financial resources. Indeed, to tell the truth, I do not expect that in carrying out its duty, in the case of the appellant, the respondent will encounter any practical difficulties. The writings of the appellant that were originally published in the local newspaper Mikol Makom have been submitted to us. It transpires that all of the appellant’s writings were brief, written in simple language, and dealt with everyday matters of prison life. If the writings of the appellant from now on are similar in format to his earlier articles, the respondent will not need great resources or efforts in order to carry out all the examinations required. Even the quantity of the anticipated articles need be no cause for concern. In any event, the respondent has the power to limit the quantity; had it proposed, in these proceedings, that the appellant should be limited to writing one article a week, I would have seen no reason to disagree with the reasonableness of its proposal.

Freedom of occupation

25. I have reached the conclusion that the appeal should be allowed, on the basis of the appellant’s contention that the respondent’s decision unlawfully violates his freedom of speech. This makes it unnecessary to consider in detail the additional contention of the appellant that the respondent’s decision also violates its right of freedom of occupation. However, although it is not needed for reaching a decision, I feel I should say that even in this respect the respondent’s position did not satisfy me. As a rule, within the limitations necessitated by imprisonment, even a prisoner enjoys the basic right of freedom of occupation, and the restrictions imposed on his right must comply with the conditions of the limitations clause in section 4 of the Basic Law: Freedom of Occupation (see: A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 600). The respondent’s response, it will be recalled, was that the appellant — as a prisoner requiring protection and for that reason prevented from participating in a rehabilitation program and working outside the prison — cannot be allowed to engage in writing for a newspaper, since such an occupation involves an ‘external employer’. I fear that this answer misses the point. The appellant did not ask to be allowed to take part in regular work outside the prison, nor did he ask to be allowed to leave the prison for the sake of his work, like prisoners who are engaged in work within the framework of the rehabilitation programmes. His request was to be allowed to act as a ‘freelance writer’ and to send the articles that he will write inside the prison precincts to the editor of the newspaper. Activity of this kind is similar to a hobby that a prisoner is allowed to enjoy in his free time or in his cell. It is not part of the system of the ordinary activities of prisoners, which the respondent is required to administer, and the rules governing the occupations of the prisoners do not apply to it.

26. If my opinion is accepted, the appeal will be allowed, the judgment of the District Court will be set aside, and the appellant will be granted the relief sought.

 

 

Justice M. Cheshin

I have read with interest the profound and comprehensive opinion of my colleague, Justice Mazza. My colleague has discussed the subject in all its aspects, and has explored every horizon. My colleague has written a kind of Magna Carta of the Israeli prisoner, and this bill of rights includes both basic principles and also rules and doctrines implied by the basic principles. I agree with every word of my colleague, in so far as they serve as a foundation. Notwithstanding, I have difficulty agreeing with the conclusions that my colleague wishes to deduce from the basic principles, which are principles we all accept. Since I do not disagree with colleague as to the infrastructure, I shall not elaborate on the basic principles but I shall concentrate my remarks on applying those basic principles to this case.

The question

2.    The question requiring a decision in this case is very simple: does a prisoner have the right to be a newspaper correspondent, and to write for a newspaper a regular weekly column about everyday life in the prison where he is imprisoned? Does the prisoner have the right to be a journalist, and to send regular and frequent articles about the prison where he is imprisoned to a newspaper — or newspapers? The appellant claims that a prisoner has this right, whereas the respondents reject the appellant’s argument that he has the right. Let us emphasize and clarify from the outset: the question is not whether a prisoner has — or does not have — the right to engage in the profession of journalism while he is in prison. The respondents expressly stated before us that they do not dispute the right in principle of a journalist, who is a prisoner, to send articles to a large-circulation newspaper. This would be the case, for example, were we speaking of articles about cooking or gardening, or articles about art, the Bible or literature. But the appellant is not interested in any of these. He has set his heart on writing particularly about prison life — and only about prison life — and the respondents strongly oppose this. The appellant claims he has a constitutional right. The respondents, for their part, deny he has a right, and they argue that writing for a newspaper, as the appellant requests, might undermine proper prison order and discipline. We must decide between these opposing interests.

On the constitutional rights of a prisoner

3.    When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison. See and compare, for instance, Katlan v. Prisons Service [3]; Darwish v. Prisons Service [6]; Yosef v. Governor of Central Prison in Judaea and Samaria [9]; Weil v. State of Israel [5]. Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly. This is human dignity, in the simple and ordinary sense of the concept.

Moreover, a prisoner is entitled to ‘conditions that allow civilized human life’ (per Vice-President H. Cohn in Darwish v. Prisons Service [6], at p. 539): food to eat, water to drink, clothes to wear, a bed to sleep in, fresh air to breathe, and sky to look at. By way of poetic analogy, let us recall the ‘small attic’ prepared and made for the prophet Elishah by that ‘great woman’, which contained ‘a bed and a table and a chair and a lamp’ (II Kings 4, 8-10 [45]). But other rights enjoyed by a free man must naturally be restricted inside the prison. When someone enters a prison, he loses his freedom; this needs no explanation. But a person does not only lose his freedom thereby, but also other rights, rights that naturally accompany freedom — that accompany it and are secondary to it. Thus, for example, there is the rigid and inflexible daily schedule of a prisoner, whether with regard to hours of sleep, whether with regard to hours of work and rest, whether with regard to eating times and whether with regard to everything that he is allowed to do inside the prison. This is also the case with the inability of a prisoner to continue to engage in his ordinary profession. The same is true of a prisoner’s contacts with the world outside the prison, such as telephone calls or correspondence, and this is so, for example, with regard to family visits to the prison.

4.    All these rights — these and others besides — are reduced automatically when a person enters a prison. The need to ensure the regular running of a prison, including security and order, neither allows nor facilitates recognition of the rights of a prisoner as though he were a free man. A main and basic consideration in the proper and regular administration of a prison is the supreme need to maintain security inside it, to protect the safety of the persons in its precincts — both prisoners and warders — and ensuring strict order and discipline. Below we shall call all of these ‘order and discipline’. The way to accomplish all these objectives naturally implies a clear hierarchy of authority — and persons in authority — and strict obedience to orders given during the daily routine. On a smaller scale, prisons may be compared to an army or police force, but the strictness of order and discipline must be more rigid in the prisons, if only because of the segment of the population in them: a population of persons who have broken the law — some of whom are hardened and tough criminals — a population in which many are embittered and believe that society has done them an injustice and discriminated against them, aggressive and violent persons, persons with low anger thresholds and devoid of any motivation whatsoever to help others or to be helped by others. When we consider this prison population, it will become clear to us that the work of prison warders and administrators is work of the utmost difficulty. We will also realize —and this is directly relevant to this case — that order and discipline are the material of which a prison is built. Without order and discipline, in the broad sense of these concepts — which can only mean strict order and discipline — a prison cannot be run and the whole system will suffer the consequences.

Indeed, a reading of the Prisons Ordinance [New Version] and the Prisons Regulations (below we will refer to these as the Ordinance and the Regulations, respectively), shows us — as we already knew — that order and discipline are the essence of prison administration. The Ordinance and Regulations abound with provisions concerning order and disciple, and we shall mention, by way of example, only a few provisions. The first provision is that of section 56 of the Ordinance, which deals in its 41 subsections with ‘prison offences’. In closing, section 56(41) says the following:

‘Prison Offences

56. A prisoner who does one of the following has committed a prison offence:

(1) …

(41) Any act, behaviour, disorder or neglect that harm good order or discipline, even if they are not set out in the previous paragraphs.’

The second provision we shall mention is that of section 132 of the Ordinance, concerning the authority of the responsible Minister to enact regulations:

‘Minister’s Regulations

132. ...

(1)        ...

(17) Any other matter, with regard to which this Ordinance states that it is possible to enact regulations, and any other matter that must be regulated for the sake of the effective implementation of this Ordinance, the welfare and efficiency of prison warders, the proper administration of prisons and their discipline and the safe custody of prisoners inside the prison precincts and when they are working outside the prison precincts.’

This is also the case with regard to other provisions in the Ordinance and the Regulations, such as the provision of Regulation 18, which says:

‘Purpose of order

18. Order and discipline shall be maintained in the prison strictly, while paying attention to maintaining security and a proper routine.’

This is followed by the provision of regulation 20:

‘Use of reasonable force

20. A prison warder may use all reasonable means, including the use of force, to maintain good order, for the protection of a warder or prisoner and to prevent the escape of a prisoner.’

5.    Before we examine the actual case before us, let us begin by saying that the contacts of a prisoner with the world outside the prison are subject to an express and detailed arrangement in the Ordinance and the Regulations. The broad rule in the Ordinance and the Regulations is that a prisoner does not have an inherent right to be in contact with persons outside the prison, except in so far as the Ordinance and the Regulations give him this right. Thus, for example, section 42 of the Ordinance provides:

‘Prohibition of transfer

42. A person shall not transfer a prohibited object to a prisoner, nor shall he transfer a prohibited object to another person from a prisoner or on his behalf.’

The definition of a ‘prohibited object’ (in section 1 of the Ordinance) is:

‘An object that this Ordinance or the Regulations do not allow to be brought into a prison, to be removed from a prison or to be in the possession of a prisoner.’

In other words: prima facie, a prisoner does not have a right to correspond with persons outside the prison, unless he has an express right to do so. A prisoner is unlike a free person in this respect: a free person may maintain contact with others, unless he is forbidden to do so, whereas a prisoner may not have contact with others who are outside the prison, unless he is permitted to do so. Such is the loss of liberty and such are the implications of this loss. Section 43 of the Ordinance further provides:

‘Prohibition against placing

43. A person shall not place a prohibited object so that it comes into the possession of a prisoner, or the possession of another person on behalf of a prisoner, or by transfer from prisoner to prisoner.’

As to the actual question in our case, section 47 of the Ordinance provides and instructs us:

‘Convicted prisoner

47. (a) A convicted prisoner may be allowed to write a first letter when he is admitted to the prison.

(b) At the end of the first three months of his imprisonment, and thereafter — every two months, he may be allowed visits from friends within the sight and hearing of a prison warder, and he may be allowed to write and receive a letter.’

A convicted prisoner is therefore entitled to send a letter every two months. In practice, the prison authorities are lenient with prisoners, and they allow them to send letters once every two weeks. But the principle remains: the rule is a prohibition against contact with the outside world, and the exception is a relaxation of the prohibition in so far as the Ordinance and the internal procedures allow, at the discretion of the prison authorities. This is true of correspondence and it is true of visits to the prison. See, for example, chapter 5 of the Regulations on the subject of ‘Visits and letters’, which includes regulations 25 to 34.

6.    In order to clarify our remarks and so that they may not be misconstrued, let us add the following: a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack. Notwithstanding, the constitutional rights of a person inside a prison are not like his constitutional rights outside the prison. The force of the constitutional rights inside the prison is not like their force outside the prison, for the reason that inside the prison they must contend with interests that are weightier and stronger than the corresponding interests outside the prison. The constitutional rights may be compared to a beam of light travelling freely through space, which is the constitutional right in its pure form. While it is travelling freely through space in this way, the beam of light encounters a screen that lies as an obstacle in its path. As it passes through the screen, the intensity of the beam of light becomes weaker, and its intensity after the screen is not as it was before the screen. If the beam of light is freedom of speech, the question is to what extent is it weakened when it tries to penetrate the prison walls. Prison walls are the screen, and the screen is: provisions of statute and regulations, the scope of discretion given to the prison authorities, and in addition to all these — the special status of a prison as a prison. All of these were discussed by Vice-President Justice Landau in Frankel v. Prisons Service [18] (see below, in paragraph 9), from which we can learn and understand.

The status that the appellant wishes to acquire for himself

7.    The respondents strongly object to the appellant’s request that he be allowed to be a journalist who writes regularly (a weekly column) about prison life, and they base their denial of his request on reasons of order and discipline. The respondents’ fear is that the appellant’s writing may undermine the proper order and discipline in the prison — order and discipline that are the sine qua non of the proper running of the prison — and this is why they refused the request. The atmosphere in the prison is naturally tense and crowded. This everyone knows, and the respondents fear that by means of his occupation as a journalist continually reporting to the world about what is done in the prison, the appellant is likely to acquire for himself a special status inside the prison — a status whose very existence will undermine all proper order and discipline. Indeed, in this context of a breach of order and discipline the special status that the appellant is likely to acquire arises in several different relationships. Let us examine this matter closely.

8.    First, it arises in the relationship between the appellant and prison warders and staff. All of these will know and understand that, by having a regular channel of communication from the prison to the world outside the prison, the appellant gains excessive power, and this excessive power in itself will give the appellant an elevated status in his relationship with the prison warders and staff. What warder will agree to his being vilified in a newspaper? What warder will not wish to be mentioned favourably in a newspaper? Will it not be merely natural and human for the prison warders to seek to gain access to the appellant and to try to flatter him, each in his own way? And if this is the case, will we be surprised if we find that, within a short time, the appellant — merely because he is a journalist with a weekly column in a newspaper — enjoys privileges that others do not have?

Second, it arises in the relationship between the prison warders inter se. Not only will the prison warders try to give the appellant better treatment, even if only so that he is kindly disposed to them, but through the appellant they may try to settle scores with one another. Thus, for example, one warder may whisper a secret in the appellant’s ear with regard to another warder — a secret that may be true or may be false — if only so that the appellant may publish it in the newspaper. Is this not likely to lead to unnecessary tension among the prison warders?

Third, by virtue of his new privileged status in the prison, various pieces of information will naturally be revealed to the appellant — information that would not have been revealed to him had it not been for the status that he has acquired. It need not be said that this information will give the appellant power whose significance cannot be overstated, in this case not by publishing the information but by refraining from publishing it, in return for receiving various benefits. After all, we know that there are some who make their living from information that they disclose to the public, and there are others who make their living from information that they do not disclose to the public.

Fourth, the appellant will acquire a special status among the prisoners — those who are his friends and those who are not — and one does not need much imagination to understand why this will occur. What we said about the prison warders — in their relationship with the appellant and their relationship with one another — applies to the prisoners a hundredfold.

It would appear that all these scenarios that may occur in the prison are not remote probabilities. They are likely to happen and not imaginary. And if they materialize — even in part — all proper order and discipline in the prison will be undermined, as has happened in the past. Thus, in Pell v. Procunier [38] a regulation (no. 415.071) was made that forbade journalists interviewing specific prisoners. The regulation says:

‘… press and other media interviews with specific individual inmates will not be permitted’ (ibid., at p. 819).

Prisoners and journalists attacked this regulation, claiming that it was unconstitutional. In the course of the hearing, it transpired that, before the regulation was enacted, journalists were allowed to interview prisoners as they wished, and this led to a phenomenon whereby certain prisoners became ‘public figures’, and thereby gained considerable influence over their fellow prisoners. This status, which those prisoners acquired, led to serious infractions of prison discipline, and eventually these infractions of discipline deteriorated until there was an attempted escape from the prison, in which three warders and two prisoners were killed. In order to prevent a repetition of the phenomenon, the competent authorities decided to enact the regulation. Let us cite the remarks of the court itself (ibid., at pp. 831-832):

‘Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish…

In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual “public figures” within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institution’s ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, “during an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23, sec.415.071 was adopted to mitigate the problem.” 364 F. Supp., at 198.’

If it happened there, why can it not happened here too? Who can say that the prison authorities are merely imagining this? Indeed, the possibility is not remote, for if the appellant’s plan succeeds, everyone — warders and prisoners alike — will seek him out, and the prison will hang on his every word. Even if all of this does not happen, some of it will probably come to pass.

On balancing rights and interests

9.    There are two interests struggling for supremacy: on one side, the prisoner’s interest in sending articles to a newspaper about everyday life in the prison, and on the other, the interest of the prison authorities in maintaining order and discipline, which may, in their opinion, be undermined if the appellant has his way. In this context, we should cite the remarks of Vice-President Justice Landau in Frankel v. Prisons Service [18]. Vice-President Landau cites the rule in Kol HaAm v. Minister of Interior [10] — per Justice Agranat — and the test of ‘near certain danger to public safety’ laid down. He goes on to make the following remarks about the type of prison population, the tension that prevails inside the prison, and the discretion that should be given to the prison authorities:

‘This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend. They are not dealing with persons who are free but with persons imprisoned in conditions that create great tension, which make it necessary to adopt effective measures to ensure order and discipline. Alongside this grave responsibility placed on the prison governor, the court must leave him proper discretion when exercising his powers under the law. As for bringing inflammatory written material into the prison, in the tense conditions that prevail in the prison, a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions. Notwithstanding, the prison governor can take into account the composition of the prison population in the prison run by him, and what the governor of one prison, where dangerous criminals are imprisoned, may prohibit, the governor of another prison, where prisoners are held in more liberal conditions, may permit’ (ibid., at p. 209).

See also Almalabi v. Prisons Service [19], at p. 27.

To these remarks let us say that we agree wholeheartedly. Let us apply the remarks which Vice-President Landau made with regard to bringing ‘inflammatory written material’ inside the prison to the special status that the appellant will acquire for himself if he is allowed, as he asks, to be a journalist with a weekly column who writes about prison life Can we say that a decision of someone who has the heavy burden of running a prison falls outside the zone of reasonableness? The answer, in our opinion, is a definite no.

The following are the remarks of Justice Elon in Hukma v. Minister of Interior [1], at p. 833:

‘… when a person who has been arrested or a prisoner have a right, the person with the right is entitled to enjoy his right and to demand the possibility of exercising the right, as long as exercising the right does not conflict with the duty of the prison authorities to deprive him of his freedom of movement and what derives from this duty, i.e., maintaining security rules and order in the prison. For this right is no stronger that any other basic right, which is not absolute but relative, and it is upheld and protected by finding the proper balance between the various legitimate interests of the two individuals or of the individual and the public, interests which are all enshrined and protected in the law…’

See also: Weil v. State of Israel [5], at pp. 490-491; State of Israel v. Azazmi [2], at pp. 81 et seq..

10. The work of the Prisons Service involves many difficulties, and in the words of Vice-President Justice Landau in Frankel v. Prisons Service [18], they must contend with special problems that present themselves to them. In this context, it is appropriate to cite the remarks of the United States Supreme Court about the ‘Herculean obstacles’ facing the staff of the Prisons Service. In Procunier v. Martinez [35], Justice Powell described the work of prison warders in the following manner (at pp. 404-405):

‘Traditionally, federal courts have adopted a broad hands-off attitude towards problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. For all these reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.’

Of course, this difficult work of the staff of the prison authorities does not justify ignoring the constitutional rights of prisoners. But in finding the proper balance between conflicting considerations, we should remember how difficult the task is and how heavy is the burden that the staff of the Prisons Service endure every day and every hour.

11. My colleague, Justice Mazza, mentions the ‘near certainty’ formula — the formula accepted by us since Kol HaAm v. Minister of Interior [10] — and he seeks to apply it to also to this case (see, for example, his remarks in paragraphs 15 and 19 of his opinion). We do not intend to argue with this premise. It is entirely acceptable to us and we accept it into our heart like a cherished child. But at the same time let us realize and understand that the status of an individual — and the status of the authorities vis-à-vis the individual — outside the prison is not the same as the status of an individual, and the status of the authorities vis-à-vis the individual inside a prison. Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison? The analogy to our case is self-evident. Vice-President Justice Landau already discussed it in Frankel v. Prisons Service [18] (see paragraph 9, supra) when he pointed out the charged atmosphere that normally prevails in a prison — and we too will say: the question is not a question of finding the right formula for the discretion of the authorities. The heart of the matter is in realizing and understanding that what happens inside a prison is not the same as what happens outside it, and vice versa.

12. Of course, the harm done to a prisoner may not be disproportionate; there must be a correlation between the anticipated evil and the attempt to prevent it. In the words of Justice Elon in State of Israel v. Tamir [4], at p. 212:

‘… When the prison authorities wish to violate one of the rights of a prisoner, for reasons of balancing one of the prisoner’s rights against the duty of the authorities to deprive him of freedom of movement and to protect the needs of security and the prison, they shall decide upon such a violation unless they have a reasonable explanation and justification for it, for reasons of public security and prison order, which they are liable to maintain, and the extent and degree of the violation shall not be greater than what is absolutely essential on account of these reasons.

…

The greater the right that is violated, the greater the reasons required to justify this violation.’

Moreover, we have been commanded this also in the Basic Law: Human Dignity and Liberty, in section 8 (and also in section 4 of the Basic Law: Freedom of Occupation): we are required to examine whether the violation of someone’s right befits the values of the State of Israel, is intended for a proper purpose, and does so to an extent that is not excessive. See also: CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [22], per President Shamgar, at pp. 342-349, and per Vice-President Barak, at pp. 434-441. However, it seems to us that the respondents’ decision not to allow the appellant to publish a weekly column satisfies all these minimum requirements, both in principle and in view of the character of the appellant.

The appellant wishes to write about his ‘personal life’; the appellant consents to censorship of his articles

13. The appellant argues that the respondents’ fears are unfounded and the weekly column he wishes to publish in the newspaper presents no danger. How is this so? First of all, he claims that he wishes to write a column about his life in the prison, and he promises ‘to write only about his personal life’ (paragraph 9 of the application for leave to appeal). As the record of the trial court says:

‘I agree that my articles may be censored. I undertake that in my correspondence with the press, I will speak only of my personal life.’

In other words, the appellant does not intend to write about anyone else, but only about himself. If that is so, and if that remains the case, why are the respondents concerned?

This argument is no argument, especially when it is made by the appellant himself.

14. First of all, the appellant himself presented his right to write a weekly column to a newspaper as a constitutional right vested in him by law. Even my colleague, Justice Mazza, raised the appellant’s case to the highest level, and from this highest level we will learn the nature of the rights of a prisoner. But if we are dealing with a right of this kind, of what significance is it whether the appellant undertakes or does not undertake to write about one subject and not to write about another subject? If the appellant has a vested supreme right, as he claims, his undertaking is totally irrelevant. Indeed, just as the appellant claims to have a supreme right, so too the respondents claim to have a supreme duty which was imposed on them by statute. If the appellant has a supreme right, it will not be the respondents who determine its scope, but at the same time neither will the appellant determine its scope by means of a supposed ‘undertaking’, made by him, that he will write about this and not write about that. The undertaking of the appellant to restrict his writing to a specific subject cannot therefore be of any significance.

Second, I find the appellant’s argument that he intends to write about ‘his personal life’ problematic, if only for the reason that we do not know what his ‘personal life’ is. Does he intend to search the depths of his soul and write of his ‘thoughts’ — in the style of Marcel Proust — or does his ‘personal life’ also include the prison staff and the prisoners around him — the warders and prisoners who after years and years in prison have become part of his ‘personal life’? Indeed, the concept ‘personal life’ is a very broad term and we cannot know what it contains and what it does not contain.

15. The appellant goes on to ask the respondents: what cause do you have for concern because of a newspaper column that I will publish? After all, I agree that you may examine all the articles that I want to send to the newspaper beforehand. What is more, I agree that you will be entitled to disqualify any articles or parts of articles that may, in your opinion, harm the security, order and discipline in the prisons. If so, what concerns can the respondents have? This rebutting argument was accepted by my colleague, Justice Mazza. As he says (in paragraph 21 of his opinion):

‘… the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences.’

And further on:

‘In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.’

Moreover (in paragraph 23:

‘… and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner.’

We see that the appellant has undertaken to write only about his ‘personal life’, and he agrees that if he does not abide by his undertaking, then the respondents are entitled not to send a particular article or a part of a particular article to its destination, the newspaper.

Reading this, I wonder: does the appellant really intend to make an agreement with the respondents, an agreement in which he undertakes to do certain things — and only those things — while at the same time he ‘concedes’ the authority of the respondents to censor the articles that he will write if he does not abide by what he undertook not to write? For my part, this set of reciprocal obligations that the appellant and the respondents are each supposed to undertake is totally unacceptable. We are concerned with liberties, rights and duties under the law, and this ‘agreement’ that the appellant alleges — an agreement between a prisoner and the authorities — should not be allowed.

Whatever the case, I accept the respondents’ reply that it is not their task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book-publishing house. It is indeed true that the respondents were given a power (under regulation 33 of the Regulations): ‘to open and examine any letter and any other document of a prisoner’, but this power was not originally intended for reviewing a regular column in a newspaper about prison. The power is concerned with letters that the prisoner writes to his family and friends, and the inspection is intended to erase a line or a word, here or there, when a prisoner tries to abuse his right to correspond with persons outside of prison, such as, for example, in order to smuggle drugs or weapons into the prison. But this power of review was not intended for a permanent review of the kind that the appellant wants to impose on the Prisons Service. Everyone will agree that inspecting a newspaper article is not the same as inspecting an ordinary letter that a prisoner writes to his wife. We should also mention that in HCJ 157/75 [20], the court approved a decision of the prison administrators to restrict the length of letters sent by prisoners to two pages only.

16. Moreover, the appellant promised to write only about his ‘private life’, but as we have seen above, this concept of ‘private life’ is fertile ground for disputes that will without doubt sprout in the future. The appellant’s ‘undertaking’ to write only about his ‘private life’ is of no help to him, and in any event, the ‘inspection’ of his writings cannot be of any avail on the scale required.

Indeed, if the appellant is given what he wants, it will not be long before the courts will be compelled to consider — on frequent occasions — the question why and for what reason a certain article was banned, or why a certain passage was deleted from a particular article. That time is not only not remote; it has already arrived. For we see that, alongside the appellant’s arguments in the appeal that he intends to write only about his ‘personal life’ in the prison, we find that he adds the following:

‘23. The respondent’s main consideration, which can be seen throughout the affidavit, is its desire to prevent the publication of criticism that the appellant wishes to utter, namely censorship because of the content of the speech, which is improper.

24. Even the consideration of possible harm to the reputation of members of staff is improper. The reputation of prison staff is no better than the reputation of other persons that may be harmed. They too have the opportunity of suing for any insult to them if it is necessary, but this does not constitute a reason that justifies prohibiting the speech ab initio.’

What is the meaning of this argument of the appellant and how are these remarks consistent with his intention to write only about his ‘private life’? It follows that the ‘private life’ of the appellant includes, apparently, everything surrounding it, including prison warders and prisoners, and if they find themselves injured by the articles that are published in the personal column, they are welcome to go and ask for relief in the court.

The truth is revealed. The appellant intends to serve, in theory and in practice, as an ‘internal auditor’ of the prison — a kind of revisor-general — and within the framework of his weekly column, he will not refrain from writing about anything that, in his opinion, is part of his ‘personal life’. If, then, we do not know what the appellant intends to write, we will not be surprised to find that the personnel of the Prisons Service fear that the appellant’s column in the newspaper may lead to a breach of security, order and discipline. Incidentally, we should mention that under the law in force in England, prisoners are forbidden to mention explicitly the names of prison warders and prisoners. As stated in 37 Halsbury, The Laws of England, London 4th ed., by Lord Hailsham, 752-753, paragraph 1145 (subtitled ‘prisons’):

‘General correspondence may not contain any of the following matters:

(1) ...

…

(12) material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it (a) is for publication in return for payment (unless the inmate is unconvicted)… (d) refers to individual inmates or members of staff in such a way that they might be identified;

…’

If all this were not sufficient, let us also mention that, in his oral pleadings before us, Advocate Yakir also argued on behalf of the appellant that it is not the Prisons Service’s job to ‘censor falsehoods’, and it would be ‘improper’ if ‘false information’ were deleted from articles that the appellant intends to send to his newspaper. The public ought to decide — the public, rather than the Prisons Service (see also the remarks of my colleague, Justice Mazza, in paragraph 20 of his decision). After all this, does the appellant continue to argue seriously that he is prepared to accept prior inspection of his articles? I think not.

17. Moreover, the appellant’s deeds — shortly before the proceedings and during the proceedings — cast considerable doubt on his declarations and his good faith. In order not to elaborate on a description — the matter is lengthy and wearisome — let us cite some of the remarks of the trial court in this respect. The following were the remarks of Justice Even-Ari in his decision refusing the appellant’s application:

‘… An inspection of the interview that was published in Yediot Aharonot on 20 November 1989 shows that prima facie the petitioner has indeed added insult to injury — not only has he escaped from lawful custody and returned to his life of crime, but he also besmirches the Prisons Service in an interview entitled “The gangsters run the prison”.

… Later in the proceedings, it became clear that the petitioner telephoned various journalists and distributed various information about what supposedly was happening in the prison, and the spokesman of the Prisons Service was required to respond to the various enquiries of journalists, all of which while the petition was sub judice.

… It transpires that the petitioner is interested in a prisoner called “Ahmed Yassin”. He does not know him at all and has never met him, but he asks for the intervention of the media in his case and even in the petition that is sub judice before this court (see exhibit B).

Prima facie it would seem that the petitioner is still trying to make headlines — and he is spreading stories about a security prisoner whose case is very sensitive. Prima facie this is a sensitive case where unauthorized involvement may result in serious consequences. This constitutes irrefutable evidence of the irresponsible approach of the petitioner and prima facie strengthens the position that the petitioner should not be allowed the right of free access to the various branches of the media…

… The newspaper interview that was published in Yediot Aharonot shows the petitioner’s method in approaching the press. The respondent’s decision to prevent the petitioner having access to this media channel is prima facie reasonable and logical. This consideration is a normative one, intended to prevent unrest inside the prison.

… It is clear to us that giving the petitioner the right of free access to the media will allow him to acquire great power, and allowing a person like the petitioner (for a description of the petitioner’s character, see CrimC (TA) 7036/92 [34]) to acquire such power will have serious implications for the running of the prison. Therefore I think that denying the right to contact the press, in the circumstances brought before us, is reasonable.’ (parentheses supplied).

See a more detailed consideration of the matter in paragraph 7 of the opinion of my colleague, Justice Mazza. With regard to what was said by the Magistrate Court about the appellant, Justice Even-Ari was referring to the remarks of Justice E. Beckenstein concerning the appellant, that: ‘I have no doubt that we are dealing with an accused who, even if he is currently serving a prison sentence for offences of the same kind, uses every minute of prison leave given to him in order to commit more offences, for it is in his blood.’ Why then should the respondents put faith in the appellant?

18. In view of all this, taking into account the offences for which the appellant is serving his sentence in the prison, it is hardly surprising that the respondents are not prepared to accept the appellant’s statements at face value. We should remember that the appellant is currently serving a prison sentence of ten and a half years for offences involving fraud, forgery, impersonation and escaping from lawful custody. The appellant has a terrible criminal record. He has many convictions for offences of the same kind, and he has previously served three prison sentences. Some of the offences for which he is serving his current sentence were committed when he escaped from lawful custody. What more can one expect of the respondents?

19. In this context we should add that the appellant — like any prisoner — is entitled to write to the court, Government ministers, members of the Knesset and the State Comptroller (the Public Complaints Commissioner). He may write whatever he pleases, and no-one will restrain him. Moreover, the prisons have an internal review system and this too is open to the appellant, just as it is for any other prisoner. See, for example, sections 71-72F and section 131A of the Ordinance and regulations 24A and 24B of the Regulations. Similarly, the appellant is permitted to write to the newspapers (‘letters to the editor’) — within the framework of the quota of letters that he is entitled to send — naturally with certain restrictions that are required because he is a prisoner in prison. In other words, the respondents are not intending to cut the appellant off from the world, to hold him incommunicado. They merely object to the weekly column that he wants to write, and they have explained in detail their concerns.

On Israeli and American case-law

20. My colleague reviews at length and in detail case-law made in Israel and the United States, and he wishes to learn from them in our case. As for me, I have not found in this case-law any authority that supports my colleague’s approach. With regard to Israeli case-law, I have not found even one case that resembles this one. All the judgments concern a violation of human dignity — ‘dignity’ in its plain sense — or cases where the court was required to consider whether the discretion of the prison authorities was reasonable or unreasonable in the circumstances of each particular case. Wherever it was found that the respondents’ discretion was unreasonable, the Court granted the petition. With regard to human dignity, let us mention Katlan v. Prisons Service [3] (performing an enema on a person under arrest); Darwish v. Prisons Service [6] (denying beds to prisoners, for fear that they would use them to do harm; the petition was denied by a majority); Yosef v. Governor of Central Prison in Judaea and Samaria [9] (harsh prison conditions violating human dignity); Weil v. State of Israel [5] (the right of a prisoner to intimacy with his spouse); State of Israel v. Azazmi [2] (harsh prison conditions violating human dignity). One is led to ask: can the rights in these cases be compared to the ‘right’ of a prisoner to write a weekly column in a newspaper?

As to cases in which the court found that the discretion of the prison authorities was unreasonable: for example, in Livneh v. Prisons Service [17], the governor of the prison refused to allow the petitioner to bring various books into the prison, on the ground that these were likely to lead to incitement. With regard to the framework for the discretion of the prison governor, the court held that:

‘… no-one disputes that under regulation 44 of the Prisons Regulations, 5727-1977 [today regulation 49 of the Regulations], a prisoner is not entitled to bring books into the prison, unless the prison governor allows them to be brought into the prison. It follows that the governor is given discretion to allow or to forbid bringing a certain book into the prison; this Court will not interfere with his discretion, as long as he exercised it in good faith and in a reasonable manner’ (square parentheses supplied).

On the merits, the court thought that the prison governor did not act reasonably, and it therefore held the governor liable to grant the petitioner’s request.

In Frankel v. Prisons Service [18], supra, the petitioner was not allowed to bring two books into the prison. At the end of the hearing, the petition was granted with respect to one book and denied with respect to another. Again, the court only considered the reasonableness of the prison governor’s discretion. The same is true of all the other cases, in some of which the petitioners were found to be justified and in some of which no justification was found for intervention in the discretion of the respondents, all of which according to the usual and proper criterion of the reasonableness of the discretion; see, for example, HCJ 157/75 [20] (the Prisons Service is entitled to restrict the length of outgoing letters); HCJ 881/78 Mutzlach v. Damon Prison Commander [23] (not providing compulsory education for prisoners); Almalabi v. Prisons Service [19] (the prohibition against a prisoner having possession of a transistor radio); State of Israel v. Tamir [4] (supplying drugs to a prisoner on a prescription of a doctor who is not working for the Prisons Service).

With regard to the case-law that my colleague cited from the United States, I think that it contains nothing that changes the general picture. The basic considerations are known to all, and I do not find that the Prisons Service has departed from the general guidelines laid down by the courts in the United States (even if those guidelines were to bind them). This is especially so when the courts in the United States are not unanimous. Moreover, where prisons are the issue, I think that we should caution ourselves against drawing analogies from other legal systems, as long as we do not know that the sociological and psychological background there and here are identical, or at least very similar. In the final analysis, the legal norm reflects — at least in part — a given social position, and we should be careful not to draw analogies in matters that are not universally the same.

The Basic Law: Human Dignity and Liberty and freedom of speech; the Basic Law: Freedom of Occupation

21. My colleague, Justice Mazza, holds that the Basic Law: Human Dignity and Liberty ‘enshrined the case-law recognition of the constitutional status of freedom of speech’ (paragraph 14 of his opinion). How is this so? The Basic Law does not mention freedom of speech by name or by implication. ‘This is immaterial’, says my colleague:

‘Even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?’ (ibid).

I will not enter into an argument with my colleague over this possible interpretation of the Basic Law: Human Dignity and Liberty, but at the same time I will not deny that there are other possible interpretations. The question does not allow of a simple solution, and the answer does not present itself to us as if of its own accord. The subject incorporates not only the meaning of the concept of ‘human dignity’ in its linguistic, moral, political, historical and philosophical senses, but also — or should we say, mainly — the meaning of the concept in the special context of the Basic Law: Human Dignity and Liberty. This special context — which is bound up with the relationship between the organs of the State — can also directly affect the sphere of influence of ‘human dignity’. In our case, we have not considered the whole picture, or even part of it, and I will caution myself against hasty decisions and obiter dicta on issues so important and far-reaching as the question of the interpretation of the concept of ‘human dignity’.

22. Finally, the appellant claims he has a right of freedom of occupation — a right which he argues is given to him by the Basic Law: Freedom of Occupation. This argument was cast into the air of the court as if it were self-evident, and without counsel for the appellant trying to establish it on firm ground. Moreover, the right to freedom of occupation — like a person’s right to freedom of speech, and in fact any other right — is a right that must contend with other interests that oppose it and seek to reduce it. The interests that are capable of overriding freedom of speech in this case are the very same interests that can lead to a restriction of the right of freedom of occupation as well. In any event, our case lies in the valley between the freedom of speech and freedom of occupation, but its centre of gravity lies in the freedom of speech. We have dealt with this at length and we will say no more.

23. Were my opinion to be accepted, we would deny the appeal.

 

 

Justice D. Dorner

1. I agree with the opinion of my colleague, Justice Mazza.

My colleague examined the wider issues. He showed that prisoners are also entitled to freedom of speech, and that a violation of this right — as with the other basic rights to which prisoners are entitled — ‘is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority’ (see paragraph 13 of his opinion). My colleague discussed the principles involved in making the balance, and he reached the conclusion that in our case the violation of the appellant’s freedom of speech is unlawful.

My colleague, Justice Cheshin, agrees with the principles outlined by Justice Mazza, but his conclusion is that the concern of the respondent — the Prisons Service — that publication of the appellant’s articles is likely to harm prison discipline overrides the appellant’s basic right to freedom of speech, and that in order to dispel this fear the respondent need not trouble to read the articles, as the appellant suggested, in order to disqualify only those articles whose publication is expected to result in real harm to prison order and discipline.

2.    In my opinion, the test of rhetoric about basic human rights, including basic rights retained by prisoners, lies in the willingness of society to pay a price in order to uphold them. I discussed this in one case:

‘A basic right, by its very nature, requires society to pay a price. Where no price is paid for the exercising of an interest, there is no significance in enshrining it as a right, and certainly not as a constitutional basic right…

… in our democratic regime, which recognizes individual liberty as a basic right, society waives, to a certain extent, the possible protection of public safety’ (CrimFH 2316/95 Ganimat v. State of Israel [24], at p. 645).

In our case, if a certain amount of trouble that may be caused to the prison authorities is sufficient to deprive a prisoner of his right to freedom of speech, there is no meaning to the declaration that a prisoner retains this basic right.

3.    Admittedly, no-one disputes that in a conflict between the freedom of speech and prison order and discipline, the right of the prisoner to freedom of speech yields. However, the status of freedom of speech as a basic right means that a violation thereof is permitted when it befits the values of the State of Israel, is for a proper purpose and is to an extent that is not excessive. Compare section 8 of the Basic Law: Human Dignity and Liberty (hereafter also — the Basic Law); the remarks of Vice-President Barak in HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [25], at p. 760 {488}, and what I wrote in Miller v. Minister of Defence [21], at p. 138 {231}.

4.    In our case, no one disputes that the respondent has the authority to restrict the freedom of speech of prisoners, and that maintaining discipline in the prison is a proper purpose for exercising his authority. Notwithstanding, a violation of a prisoner’s freedom of speech will not be permitted unless it is to an extent that is not excessive for maintaining discipline in the prison.

5.    This rule of proportionality is complex, and includes several elements. See, for instance, HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [26], at pp. 435-436; HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [27], in the opinion of Vice-President Barak. In our case, the following requirements are particularly relevant:

First, a violation of freedom of speech will be permitted, as a rule, only when there exists a probability on the level of near certainty that allowing the speech will lead to a real and serious violation of order and discipline in the prison. This test is implied by the preferred status of the freedom of speech, since in conflicts between competing rights it has the status of a ‘supreme right’ (per President Agranat in Kol HaAm v. Minister of Interior [10], at p. 878 {97}).

This test applies also to the freedom of speech of prisoners. See the remarks of Vice-President Landau in Frankel v. Prisons Service [18], at p. 209. This is also the position of my colleague, Justice Mazza (see paragraphs 15 and 19 of his opinion), and even my colleague, Justice Cheshin, agrees with this (see paragraph 11 of his opinion).

The near certainty test is not mere words. It reflects the price that society is prepared to pay in order to realize the freedom of speech of the prisoner, for the practical significance is that the possibility of a violation which is not on the level of near certainty or an anticipated violation which is small rather than real and serious will not give rise to a sufficient ground for a violation of the prisoner’s freedom of speech.

The court addressed this issue in Livneh v. Prisons Service [17], at p. 689. In that case a prisoner was not permitted to bring certain books into the prison, on the ground that reading them might prompt political arguments between the prisoners, which would lead to unrest, thereby disrupting prison discipline. The prisoner’s petition was granted. Justice H. Cohn wrote as follows:

‘… But it has never been said that in order to “keep the peace” he [the prison governor] may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (square parentheses supplied).

Second, denying the freedom of speech is contingent on it being impossible with a reasonable effort to allay or reduce the fear of a disruption to prison discipline, by means that do not involve a violation of freedom of speech or that violate it only minimally. See what I wrote in HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [28]. In this matter, a mere financial outlay or burden entailed in these efforts cannot, if they are reasonable, justify a violation of a basic right. See the remarks of Justice Mazza in Miller v. Minister of Defence [21], at pp. 113-114 {197-198}.

Third, the burden of proof, both with regard to the likelihood of a violation of prison discipline and its seriousness and with regard to the impossibility of removing or reducing this fear with a reasonable effort rests with the authority. See what I wrote in Miller v. Minister of Defence [21], at pp. 135-136 {209}.

6.    It should be emphasized that criticism of detention conditions, even if the authority considers them to be incorrect, is not in itself a ground for violating freedom of speech. Care must be taken that maintaining discipline in the prison does not become a cloak for silencing a prisoner so that the public do not become aware of prison conditions, which prisoners certainly do not need to learn from the newspaper. It is well known that the Prisons Service does not refrain from contact with the press through the spokesman of the Service or senior employees of the Service. The prisons also conduct planned press visits as part of the public relations of the Service, which wants to present itself at its best. In these circumstances, preventing a prisoner from expressing any criticism he may have is unfair, and may even harm the public, which is entitled to be exposed to the entire ‘marketplace of ideas’. The remarks of Justice Shamgar in CA 723/74 [13], at p. 298, are relevant in this context:

‘The existence of basic rights is not disputed when matters run smoothly and the various authorities merit compliments only. The true test of freedom of speech occurs when confronted with forceful and unpleasant criticism.’

7.    My colleague, Justice Mazza, also relied on the Basic Law: Human Dignity and Liberty. In his view, even without an express provision the freedom of speech is included in the right of human dignity, within the meaning thereof in sections 2 and 4 of the Basic Law. See section 14 of his opinion.

I agree that a violation of a prisoner’s freedom of speech because he is a prisoner violates human dignity within the meaning thereof in the Basic Law. It is another question whether freedom of speech in general is protected by the Basic Law. This question is a part of the broader question whether human rights that are not expressly mentioned in the Basic Law can or should be incorporated into the Basic Law by interpreting the word ‘dignity’, thereby opening the door to judicial review of statutes that violate these rights. This question is not at all simple. See I. Zamir, Administrative Power, Nevo, 1996, at pp. 112-113.

In case-law various approaches have been expressed in this regard in obiter dicta. See, for instance, the remarks of Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [29], at p. 522 {448} on the one hand, and the remarks of Justice Zamir, ibid., at pp. 535-536 {467-468} on the other; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}.

The question of freedom of speech has also been considered in case-law. Justice Zamir’s reservation in Israel Women’s Network v. Government of Israel [29] also referred to freedom of speech. By contrast, an opinion has been expressed that ‘today it is possible to deduce freedom of speech from the protection conferred on human dignity and liberty in the Basic Law: Human Dignity and Liberty’ (per Justice Barak in CA 105/92 [11], at p. 201; see also Y. Karp ‘Some Questions on Human Dignity according to the Basic Law: Human Dignity and Liberty’, 25 Mishpatim (1985), 129, 144).

8.    Freedom of speech is a central basic human right and I do not believe that in Israel it can be regarded as being part of the right to dignity. Indeed, the Israeli legislator did not intend to incorporate the freedom of speech in the right of dignity. Quite the reverse.

Knesset Member Rubinstein, who sought to promote the enshrining of basic rights in Basic Laws by enacting Basic Laws with regard to those rights for which it was possible to obtain national consensus, proposed several Basic Laws, each of which referred to different rights. Inter alia, alongside the draft Basic Law: Human Dignity and Liberty, he submitted a draft Basic Law: Freedom of Speech (Divrei HaKnesset (Knesset Proceedings) 121, 1991, at p. 3748). At the Knesset debate on this draft, Justice Minister Dan Meridor said:

‘If there is one central principle of democracy that is no less important, and possibly more important, than election mechanisms and other mechanisms, it is the freedom of speech. A state which has regular elections, and which has many other characteristics that are similar to a democracy, but which does not have freedom of speech, is not a democracy. A state which does not have freedom of the press is not a democracy. Consequently, this is one of the most significant basic rights that characterize a free society’ (ibid., at pp. 3732-3733).

In the year 5754 (1993-1994), the Constitution, Law and Justice Committee of the Knesset submitted the draft Basic Law: Freedom of Speech and Assembly to the Knesset three times. The first two drafts were not approved on first reading, whereas the third draft was approved on first reading but was not submitted for a second reading.

Apparently, the national consensus required for enshrining freedom of speech in a Basic Law had not yet been reached, and the draft Basic Law: Freedom of Speech has not been enacted until today. In such circumstances, it seems doubtful to me whether it is possible, or at any rate appropriate, to confer super-legislative status on freedom of speech generally, by incorporating it in the right of dignity. In this matter I wrote, with respect to the principle of general equality, the following:

‘Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions’ (Miller v. Minister of Defence [21], at p. 132 {223}).

See also, Y. Karp ‘The Basic Law: Human Dignity and Liberty — A Biography of Power Struggles’, 1 Mishpat Umimshal (1992), 323, 338.

Nonetheless, there are cases where a violation of an individual’s freedom of speech constitutes a violation of his right of dignity, within the meaning of the Basic Law: Human Dignity and Liberty. When denying freedom of speech humiliates the individual and violates his dignity as a human being, there is no reasonable way of interpreting the right of dignity prescribed in the Basic Law so that this humiliation is not deemed to violate it. See and compare the remarks of Justice Zamir in HCJ 7111/95 Local Government Centre v. The Knesset [30], at pp. 496-497; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}, where I referred to the distinction between the principle of general equality and the prohibition of discrimination against groups.

However, not every violation of freedom of speech involves humiliation. For instance, it has been held that freedom of speech also includes freedom of commercial expression. See HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [31]; HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [32]. Notwithstanding, a violation of freedom of commercial expression, for example by banning an advertisement, does not usually involve humiliation, and is therefore not a violation of the right of dignity within the meaning thereof in the Basic Law. The disqualification of a newspaper item, as distinct from a literary work or an opinion, also does not usually violate human dignity. In this matter, there are grounds for examining what is the main reason underlying the principle of freedom of speech in the context of the specific speech under consideration. It is well-known that, alongside the importance of freedom of speech for human self-realization — a violation of which is a violation of human dignity — it is also required for uncovering the truth, upholding the democratic process and safeguarding social stability. See HCJ 399/85 Kahana v. Broadcasting Authority Governing Board [33], at pp. 270-277, and the sources cited there. With all the respect due to the social reasons that underlie freedom of speech, these are not necessarily derived from human dignity. An act that violates freedom of speech shall be deemed to violate the right of human dignity, within the meaning of the Basic Law: Human Dignity and Liberty, only if it clearly violates the ‘personal’ basis for freedom of speech, as distinct from the social reasons underlying it.

The ‘silencing’ of a prisoner by his warders because he is a prisoner violates his dignity. Prisoners, in the words of Justice Haim Cohn, ‘are considered by the public as devoid of dignity, as though their criminal acts show that they chose to exchange their dignity for disgrace’ (H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, Hapraklit - Jubilee Volume, Israel Bar Association, 1994, 9, 33). What underlies the denial of freedom of speech to a prisoner is the assumption that because he is a criminal he is devoid of dignity — an inferior person. Such a denial therefore violates the basic right enshrined in the Basic Law: Human Dignity and Liberty.

10. From the general, let us return to the specific: in our case, the authority has not complied with even one of the requirements I listed above (in paragraph 5) concerning proportionality. As stated, the main concern raised by the respondent is that the status of the appellant as a ‘journalist’ will give him the power to praise or criticize the prison warders, and as a result he will obtain preferential treatment to which he is not entitled, he will sow discord among members of the staff and cause unrest among the prisoners, thereby compromising prison discipline. This concern may, apparently, be allayed or significantly reduced by preventing the mentioning of names of prison warders in the articles. As stated, the appellant has gone further and is prepared to submit his articles to the respondent’s censorship. The respondent’s refusal to devote the time required for this censorship is inconsistent with his duty to make a proper effort in order to prevent a violation of a basic human right. Unlike my colleague, Justice Cheshin, I do not think that —

‘… it is not their [the prison authorities’] task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book publishing house’ (paragraph 15 of his opinion —square parentheses supplied).

In my opinion, it is a clear duty of government authorities in the State of Israel to do what is necessary to safeguard basic human rights. This is certainly the case with regard to the duty of prison warders to ensure that the basic rights of the prisoners under their authority are upheld, while minimizing violations of prison order and discipline. This role is no less important than any other role imposed on the Prisons Service, and it must ensure that the warders are trained to carry it out, just as it ensures that they are trained to carry out their other tasks. In our case, there is even an explicit provision — regulation 33 of the Regulations — which requires the respondent to carry out its role in balancing between the safeguarding of prisoners’ freedom of speech and the need to maintain prison order and discipline.

Moreover, the fact that in 1989 the appellant published articles about his life in prison without the respondent showing that this publication resulted in a disruption of prison order and discipline, indicates that the respondent’s fear, which is based on speculation only, does not have a sufficient basis. Most certainly we cannot conclude from past experience that there is a near certainty that publishing the appellant’s articles will significantly and seriously disrupt prison discipline.

I therefore agree with the opinion of my colleague, Justice Mazza, that the appeal should be allowed.

 

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

10 Elul 5756.

25 August 1996.

 

HCJ 721/94

El-Al Israel Airlines Ltd

v.

1. Jonathan Danielowitz

2. National Labour Court

 

The Supreme Court sitting as the High Court of Justice

[30 November 1994]

Before Vice-President A. Barak and Justices Y. Kedmi, D. Dorner

 

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

 

Facts: The first respondent, who is employed by El-Al as a flight attendant, has a stable relationship with another man. Under a collective agreement, El-Al gives every permanent employee a free aeroplane ticket, every year, for that employee and his/her spouse (husband or wife). Under a collective arrangement, a free ticket is also given to a companion recognized publicly as the employee’s husband/wife. The first respondent asked El-Al to give him a free ticket for his companion, but his request was denied.

 

Held: (Majority opinion — Vice-President A. Barak, Justice D. Dorner) Not giving the respondent a free ticket for his same-sex companion amounted to discrimination, since a distinction on the basis of the difference between a heterosexual and a homosexual relationship is unjustified in the context of employee benefits.

(Minority opinion — Justice Y. Kedmi) Linguistically, only a heterosexual couple can be called a ‘couple’; the concept of the ‘couple’ linguistically only applies to an union of male and female that can, conceptually, have children. Therefore a distinction between a same-sex companion and an opposite-sex companion is a distinction between persons who are fundamentally unequal, and this does not amount to discrimination.

 

Petition denied, by majority opinion (Vice-President M. Shamgar and Justice D. Dorner), Justice Y. Kedmi dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 7, 8.

Contracts (General Part) Law, 5733-1973, ss. 14, 31.

Criminal Law Ordinance, 1936, s. 152(2).

Employment Service Law, 5719-1959, s. 42.

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

Equal Employment Opportunities Law (Amendment), 5752-1992.

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

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

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

National Insurance Law [Consolidated Version], 5728-1968, s. 8.

Penal Law, 5737-1977, s. 351(3).

Penal Law (Amendment no. 22), 5748-1988.

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

 

Israeli Supreme Court cases cited:

[1]      FH 13/84 Levy v. Chairman of Knesset Finance Committee [1987] IsrSC 41(4) 291.

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

[3]      EA 2/88 Ben-Shalom v. Central Elections Committee for Twelfth Knesset [1989] IsrSC 43(4) 221.

[4]      HCJ 114/78 Burkan v. Minister of Finance [1978] IsrSC 32(2) 800.

[5]      HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 150.

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

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

[8]      HCJ 507/81 Abu Hatzira MK v. Attorney-General [1981] IsrSC 35(4) 561.

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

[10]    HCJ 693/91 Efrat v. Director of Population Registry at Ministry of Interior [1993] IsrSC 47(1) 749.

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

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

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

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

[15]    HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

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

[17]    HCJ 30/55 Committee for Protection of Expropriated Nazareth Land v. Minister of Finance [1955] IsrSC 9 1261.

[18]    CrimA 112/50 Yosipof v. Attorney-General [1951] IsrSC 5 481; IsrSJ 1 174.

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

[20]    CrimA 224/63 Ben-Ami v. Attorney-General [1964] IsrSC 18(3) 225.

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

[22]    HCJ 4169/93 — unreported.

[23]    HCJ 410/76 Herut v. National Labour Court [1977] IsrSC 31(3) 124.

 

Israel National Labour Court cases cited:

[24]    NLC 33/25-3 Flight Attendants Association v. Hazin [1973] 4 IsrNLC 365.

[25]    NLC 44/85-0 – unreported.

 

American cases cited:

[26]    Welsh v. United States 398 U.S. 333 (1970).

[27]    Califano v. Westcott 443 U.S. 76 (1979).

[28]    Boutilier v. Immigration Service 387 U.S. 118 (1967).

[29]    Nemetz v. Immigration & Naturalization Service 647 F. 2d 432 (1981).

[30]    Braschi v. Stahl Associates Co. 544 N.Y. Supp. 2d 784 (1989).

[31]    Yorkshire Towers Co. v. Harpster 510 N.Y. Supp. 2d 976 (1986).

[32]    Two Associates v. Brown 502 N.Y. S. 2d 604 (1986).

[33]    E. 10th St. Assoc. v. Estate of Goldstein 552 N.Y. Supp. 2d 257 (1990).

 

English cases cited:

[34]    Dyson Holdings Ltd v. Fox [1975] 3 All E.R. 1030 (CA).

 

European Court of Human Rights cases cited:

[35]    Norris Case 142 Eur. Ct. H. R. (Ser. A) (1988).

[36]    Modinos v. Cyprus Case 259 Eur. Ct. H. R. (Ser. A) (1993).

 

Canadian cases cited:

[37]    Schachter v. Canada (1992) 93 D.L.R. (4th) 1.

[38]    R. v. Turpin [1989] 1 S.C.R. 1296.

[39]    Vriend v. Alberta (1994) 6 W.W.R. 414.

[40]    Egan v. Canada (1993) 103 D.L.R. (4th) 336.

[41]    Haig v. Canada (1992) 94 D.L.R. (4th) 1.

[42]    Layland v. Ontario (Consumer Protection & Commercial Relations) (1993) 104 D.L.R. (4th) 214.

[43]    Canada (A.G.) v. Mossop [1993] 1 S.C.R. 554.

 

Jewish Law sources cited:

[44]       Genesis 1, 27; 1, 28; 2 24; 5 2; 6 19.

 

For the petitioner — Y. Winder, A. Ben-Israel

For the first respondent — S. Donevitz, O. Kalmaro

 

 

JUDGMENT

 

 

Vice-President A. Barak

A collective agreement and a collective arrangement confer a benefit on a ‘spouse’ (husband or wife) or a ‘companion recognized as a husband/wife’ of an employee. Is this benefit conferred also on an employee’s same-sex companion? That is the question before the court in this petition.

The facts and the litigation before the Labour Court

1.    The first respondent (the respondent) works as a flight attendant for the petitioner (the El-Al company). Under the collective agreement, every (permanent) employee is entitled to receive free (or discounted) aeroplane tickets for himself and his ‘spouse (husband/wife)’ once a year. Under a collective arrangement (entitled ‘professional guidelines’), aeroplane tickets (as of 1 January 1986) are given to ‘a companion recognized as the husband/wife of an employee of the company if the couple live together in a joint household as husband and wife in every respect, but they are unable to marry lawfully.’

2.    The respondent applied (on 21 January 1988) to the petitioner with a request to recognize his male companion as his ‘companion’ for the purpose of receiving an annual free or discounted aeroplane ticket. In his request, the respondent explains that he has a stable and long-term relationship (since 1979) with another man. The relationship involves, inter alia, running a joint household and cohabiting in a private apartment purchased jointly. The respondent’s request was refused.

3.    The respondent applied to the Regional Labour Court. He asked the court to declare him entitled to receive free or discounted aeroplane tickets for his male companion, just as El-Al gives these to its employees’ spouses. According to a procedural agreement, it was agreed that the court would first consider the underlying question whether an El-Al employee is entitled to a free or discounted ticket for a same-sex ‘companion’. On this question, the Regional Labour Court (Justice Lubotsky and public representatives Ozeri and Pinchas) held that the provision of the collective agreement (which confers the right to the benefit on a ‘spouse’) does not confer a right on a companion of an employee, and this does not involve improper discrimination. However, the provision of the collective arrangement conferring a benefit on persons recognized as a couple (despite their being unable to marry lawfully) but not conferring the same benefit on a same-sex couple (who are also unable to marry lawfully) is a discriminatory provision. This discrimination is prohibited by the provisions of the Equal Employment Opportunities Law, 1988. Under the provisions of this law (in s. 2) — as amended in the Equal Employment Opportunities (Amendment) Law, 1992 — an employer may not discriminate against any of his employees in their conditions of employment ‘on the basis of sex, sexual orientation, personal status or their being parents.’ Because of this prohibited discrimination, the discriminatory provision in the collective arrangement was disqualified. By virtue of the procedural agreement, the Regional Labour Court went on to consider whether the respondent in fact cohabits with his companion.

4.    El-Al appealed to the National Labour Court. The National Labour Court (President M. Goldberg, Vice-President S. Adler, Justice Y. Eliasof and public representatives R. Ben-Yisrael, Abrahamovitz, Friedman and Galin) dismissed the appeal.[*] It was held that the respondent does not fall into the category of those entitled to a discount under the collective agreement, since the expression ‘spouse (husband/wife)’ does not include a same-sex companion. It also held that the respondent does not fall into the category of ‘persons recognized as the husband/wife of an employee’ in the collective arrangement, since a recognized companion, in the context of the collective arrangement, does not include same-sex companions. Notwithstanding, the court held that this position constitutes improper discrimination on the basis of sexual orientation, contrary to the principle of equality set out in the Equal Employment Opportunities Law, as amended in 1992. This improper discrimination, contrary to provisions of the law, gives the respondent (as of 2 January 1992) a right to demand for himself the benefit that was not conferred on him for discriminatory reasons.

5.    The petition before us is directed against the decision of the National Labour Court. El-Al (the petitioner) asks for a ruling that its refusal to give the respondent an aeroplane ticket for his companion does not constitute improper discrimination under the Equal Employment Opportunities Law as amended in 1992. El-Al’s contention is that this law — in the 1992 amendment — added an additional type of prohibited discrimination (‘sexual orientation’) but it did not confer rights to receive benefits that an employee was not previously entitled to receive. The respondent argued before us that there is no reason why we should intervene in the National Labour Court’s judgment, which ruled that a cause of action based on discrimination was created by the Equal Employment Opportunities Law, justifying giving aeroplane tickets for the respondent’s companion as of the date when the law was amended (on 2 January 1992).

The interpretive construction

6.    The respondent (the flight attendant, the employee) may base his argument to receive the benefit (a free or discounted ticket) for his companion on two legal constructions. According to the first construction, his right is founded on the collective agreement that gives benefits to ‘a spouse (husband/wife)’ and on the collective arrangement that gives a benefit to ‘a person recognized as the husband/wife of an employee.’ According to this construction, the term ‘spouse’ (in the collective agreement) and the term ‘recognized companion’ (in the collective arrangement) should be interpreted according to their purpose to include also a spouse of the same sex and a recognized companion of the same sex. The respondent’s right to receive the benefit is contractual, and it is founded on the text of the collective agreement and the collective arrangement, just like the respondent’s right to receive the benefit for himself. This legal model is interpretive in nature. It is intrinsic to the actual text. In this the respondent’s right to receive benefits — for his companion and for himself — derives from the legal meaning of the contractual text that is chosen from among its various linguistic meanings. Naturally this right accrues to the employee when the conditions entitling him to it are fulfilled.

7.    The interpretive construction was rejected by the Labour Courts. They held that the (legal) meaning of the term ‘spouse (husband/wife)’ in the collective agreement does not include same-sex companions. The National Labour Court pointed out that —

‘In the case before us, the parties to the collective agreement expressly showed that they did not mean a same-sex companion. The collective agreement says “spouse (husband and wife)”. The words “husband and wife” attached to the term spouse show that the parties used the term spouse in its narrow sense. It follows that this expression in the collective agreement does not include recognized companions and same-sex companions who are indisputably not “husband and wife”.’*

With regard to the term ‘person recognized as a husband/wife’ in the collective arrangement, the National Labour Court held that this does not include persons of the same sex who cohabit. The National Labour Court pointed out that the ‘term “recognized companion” does not appear by itself, but it is accompanied by the words “as husband/wife”.’* This use of language shows ‘that the intention of the drafter was not to include persons of the same sex.’*

The statutory construction

8.    A second legal construction is also available to the respondent. This construction starts with the premise that the contractual right to receive a benefit is conferred only on a companion who is not the same sex as the employee. According to this construction, the contractual arrangement (the product of the interpretive construction) is a discriminatory arrangement that is contrary to the Equal Employment Opportunities Law (as amended in 1992). The remedy given to the respondent as a result of this discrimination is not to nullify the contractual arrangement — a remedy that he did not request at all — but to make a (judicial) order based on the provisions of the law to correct the discrimination. The respondent will therefore be entitled to the benefit for his companion by combining the discriminatory contractual provision with the corrective statutory provision. This construction is not interpretative. It is extrinsic to the actual text. Its existence derives from the combination of (A’s) contractual right and the statutory mandate to prevent discrimination (against B). The resulting right of the employee arises on the day that the statutory prohibition against discrimination on grounds of sexual orientation came into force (i.e., on 2 January 1992). It may be called a statutory (or extrinsic) construction. The National Labour Court accepted this construction, and this is what El-Al is attacking before us. Analyzing this legal model must be done in two stages: first, whether the contractual arrangement (the product of the interpretive construction) is (improperly) discriminatory because of sexual orientation; second, what remedy should be given to an employee who has been the victim of (improper) discrimination on the basis of sexual orientation?

9.    The respondent did not reargue the interpretive construction before us. Indeed, this construction — which, as stated, was rejected by the National Labour Court — is complex (cf., with regard to the term ‘spouse’, FH 13/84 Levy v. Chairman of the Knesset Finance Committee [1]; see also C. A. Bowman, B. Cornish, ‘A More Perfect Union: A Legal and Social Analysis of Domestic Partnership Ordinances,’ 92 Colum. L. Rev. (1992) 1164; R. Elbin, ‘Domestic Partnership Recognition in the Workplace: Equitable Employee Benefits for Gay Couples (and Others),’ 51 Ohio St. L. J. (1990) 1067). We would have been compelled to decide this, had the respondent insisted on his (contractual) right to receive a benefit from the date when these (contractual) rights were created. As we have seen, the respondent accepts the decision of the National Labour Court that his right is based on the argument of discrimination on the basis of sexual orientation, relying on the amendment (of 2 January 1992) to the Equal Employment Opportunities Law. As a result, we do not need to consider the interpretive construction. I therefore presume — without deciding the issue — that the respondent does not have a (contractual) right under the collective agreement and the collective arrangement to receive the benefit for his companion. On this basis, I will now examine the statutory construction, with its two questions (is discrimination present; what is the proper remedy). I shall begin with the first question.

The right to equality and its violation

10. Equality is a fundamental value in Israeli law. ‘It is the heart and soul of our whole constitutional regime’ (Justice Landau in HCJ 98/69 Bergman v. Finance Minister [2], at p. 698 {18}) and ‘it is part of the essence and character of the State of Israel’ (Vice-President Justice Elon in EA 2/88 Ben-Shalom v. Central Election Committee for the Twelfth Knesset [3], at p. 272). ‘…The rule that one may not discriminate against persons on the basis of race, sex, nationality, ethnicity, country of origin, religion, beliefs or social status is a fundamental constitutional principle which is counted among our fundamental jurisprudential perspectives and constitutes an integral part of these’ (Justice Shamgar in HCJ 114/78, Motion 451, 510/78 Burkan v. Minister of Finance [4], at p. 806). Considerations of justice and fairness underlie the principle of equality. ‘The principle of equality… has long been recognized in our law as one of the principles of justice and fairness…’ (Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [5], at p. 521 {150}). Equality is a central element of the social contract upon which society is based (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa; Labour Party in Tel-Aviv-Jaffa Municipality v. Tel-Aviv-Jaffa Municipal Council [6], at p. 332). Indeed —

‘Discrimination is a plague that fosters a feeling of unfairness and frustration. It harms the sense of belonging and constructive motivation to participate in, and contribute to, social life. A society that practices discrimination is not a healthy society, nor can a state in which discrimination is practised be called a civilized state’ (Justice Bach in HCJ 104/87 Nevo v. National Labour Court [7], at p. 760 {150}).

11. The principle of equality is entrenched in Israel in a number of normative structures. First, it is a principle of case-law — the product of  ‘Israeli common law’ — that has been recognized and developed by the courts in Israel. This principle reflects on the (objective) intention of every piece of legislation and acts as a criterion for its interpretation. ‘The fundamental principle, which constitutes a legislative goal for all the acts of the legislature, is the principle that everyone is equal before the law… legislation should therefore be presumed and interpreted as intending to achieve this purpose, not to undermine it.’ (HCJ 507/81 Abu Hatzira MK v. Attorney-General [8], at p. 585. See also HCJ 301/63 Streit v. Chief Rabbi [9], at p. 612). The case-law principle of equality reflects on the law’s ‘fundamental concepts’ (such as reasonableness, justice, equality and public policy) and constitutes a normative element in establishing the scope of their application (see HCJ 693/91 Efrat v. Director of Population Register at Interior Ministry [10]). A discriminatory collective agreement may therefore be contrary to public policy and be disqualified as a result (see Nevo v. National Labour Court [7] and L.C.J. 3-25/33 Flight Attendants’ Committee v. Hazin [24]). The case-law principle of equality is a normative basis for recognizing the right of equality as a human right in Israel. It leads to the formulation of case-law rules based on it — such as the rule of spouses’ joint property ownership (see HCJ 1000/92 Bavli v. Great Rabbinical Court [11]).

12. Second, the principle of equality is incorporated in Israeli legislation. This began with Israel’s Declaration of Independence, which provides that the State of Israel shall treat its citizens equally ‘irrespective of religion, race or sex’. It continued in legislation that creates equality in specific relationships. Thus, for instance, the Women’s Equal Rights Law, 1951, provides that ‘women and men shall be subject to the same law for every legal act...’ (s. 1). The Employment Service Law, 1959, prohibits discrimination by the Employment Service when referring a person for employment (s. 42). The Equal Remuneration for Female and Male Employees Law, 5724-1964, aims to ensure equality in employees’ salaries. Special legislation is intended to allow corrective preferential treatment for women (see section 18A of the Government Corporations Law, 1975). Another law — which is the relevant one in this case and which we will discuss separately — is the Equal Employment Opportunities Law. This development culminated in the enactment of the Basic Law: Human Dignity and Liberty, which entrenched equality as a super-legislative constitutional right, within the framework of human dignity:

‘Today the principle of equality can be entrenched in the Basic Law: Human Dignity and Liberty. Such entrenchment implies the elevation of the principle of equality to a constitutional, super-legislative normative status’ (per Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 362).

13. Needless to say, equality does not confer an absolute right. The human right of equality — like every other human right — is a relative right. The principle of ‘equality is not an absolute but a relative principle’ (per Justice Or in Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 361); the limits of extending the principle of equality are determined by an (internal) balance between the whole spectrum of human rights and by the public interest (see A. Rubinstein, The Constitutional Law of the State of Israel, Shoken, 4th edition, 1991, at pp. 199, 299). The right to equality may be restricted by virtue of other appropriate values (see HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [13], at p. 13 {32}, and cf. s. 8 of the Basic Law: Human Dignity and Liberty). Indeed, sometimes equality is not completely protected. Equality may be lawfully restricted if this is consistent with the values of the State of Israel, is for a proper purpose and if equality is not restricted more than necessary.

14. The factual premise is that people are different from one another. ‘...No person is completely identical to another’ (Justice S. Levin in HCJ 141/82 Rubinstein v. Knesset Speaker [14], at p. 148 {67}). Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society. In Justice Or’s words, discrimination is ‘different treatment without an objective justification’ (Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [12], at p. 360). President Agranat discussed this and pointed out:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that those differences justify this. In this context, the concept of “equality” therefore means  “relevant equality”, and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [16], at p. 35).

Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness. Justice Witkon discussed this and pointed out:

‘What is discrimination? Not every distinction between different groups of people is called “discrimination”; the concept of discrimination includes the idea of unfairness in treating equals unequally’ (HCJ 30/55 Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17], at p. 1265).

Discrimination — which, as stated, is the opposite of equality — means unfair, unjust and arbitrary treatment (see CrimA 112/50 Yosipof v. Attorney-General [18], at p. 490 {183}).

15. As we have seen, the contractual regime at El-Al gives a male or female employee a right to receive a benefit (a free or discounted aeroplane ticket) for a wife or husband or recognized companion (male or female), provided that they are of the other sex. Does this constitute discrimination against a companion of the same sex? As we have seen, the test for equal and discriminatory treatment is the question whether the difference in sex is relevant to the issue. This relevance is examined on the criteria of arbitrariness, fairness and justice. The basis for giving a benefit to an employee for a spouse or a recognized companion lies in the attitude that there are reasons for giving a benefit — such as an aeroplane ticket — to an employee for the person with whom he lives and shares a common household, from whom he is separated when he leaves on his flights and to whom he returns when he finishes his work. This is the criterion that both a spouse and a recognized companion have in common. The purpose of the benefit is not to strengthen the institution of marriage. Indeed, El-Al gives the benefit to an employee living with a recognized companion, even when that recognized companion is lawfully married to someone else. The idea underlying the giving of the benefits is therefore cohabitation for a certain period (specified in the collective arrangement), which is evidence of a firm social unit based on a life of sharing. In this context, it seems clear to me that denying a same-sex companion this benefit amounts to discrimination and a violation of equality. Indeed, the only reason for denying the benefit to a same-sex companion is sexual orientation. There is no other reason. This difference is not at all relevant to the issue before us (supporting a firm social unit, based on a life of sharing). In the case before us, we are dealing with a distinction that is arbitrary and unfair: is parting from a same-sex companion easier than parting from a companion of the opposite sex? Is living together for persons of the same sex different, with regard to the relationship of sharing and harmony and running the social unit, from this life of sharing for heterosexual couples?

16. One might argue that a life of sharing and harmony between persons of opposite sexes (whether as husband and wife or as recognized companions) is so different in its character from a life of sharing and harmony between persons of the same sex that any legal regime giving a benefit to the former relationship does not discriminate against the latter relationship. Although this argument seems to me problematic, I am prepared to reserve judgment, since the question that we must ask is not whether one relationship (a life of sharing and harmony between persons of opposite sexes) is different on any criteria from the other relationship (a life of sharing and harmony between persons of the same sex). As stated, I am prepared to assume that in various social contexts this difference does indeed exist. The question that we must ask is whether the difference in the relationship is relevant to the issue before us. The ‘issue before us’ is the social unit, the life of sharing and harmony that justify, in El-Al’s opinion, giving a benefit to a (permanent) employee in the form of an aeroplane ticket which will enable him to take with him the person with whom he cohabits. In this respect, the difference between a life of sharing between persons of different sexes and a life of sharing between persons of the same sex is clear and blatant discrimination.

Discrimination on the basis of sexual orientation

17. We have seen, therefore, that giving a benefit to a (permanent) employee for a spouse or recognized companion of the opposite sex and not giving the same benefit for a same-sex companion amounts to a violation of equality. What is the nature of this discrimination? Indeed, all discrimination is prohibited, but among the different kinds of discrimination there are varying degrees. The severity of the discrimination is determined by the severity of the violation of the principle of equality. Thus, for example, we consider discrimination on the basis of race, religion, nationality, language, ethnic group and age to be particularly serious. In this framework, the Israeli legal system attaches great importance to the need to guarantee equality between the sexes and to prevent discrimination on the basis of sex (see HCJ 153/87 Shakdiel v. Minister of Religious Affairs [19]; Poraz v. Mayor of Tel-Aviv-Jaffa [6]). It may be said that the discrimination in the appeal before us is based on improper considerations of sex. Conversely, it may be argued that discrimination on the basis of sex does not exist, since the same benefit is conferred on (permanent) male and female employees. This argument, in itself, does not strike me as convincing. However I do not need to decide the issue, since there can, I think, be no doubt that the discrimination in this case is based on the ‘sexual orientation’ of the (permanent) employee. This discrimination — against homosexuals and lesbians — is improper. It is contrary to equality. This emerges clearly from the provisions of the Equal Employment Opportunities Law. This law, as amended in the Equal Employment Opportunities Law (Amendment), states (in s. 2):

‘(a) An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex, sexual orientation, personal status or their being parents with respect to any of the following:

(1)  giving employment;

(2)  conditions of employment;

(3)  promotion in employment;

(4)  training or professional studies;

(5)  dismissal or severance pay.

(b) For the purposes of subsection (a), making irrelevant conditions shall also be regarded as discrimination.

(c) Discrimination shall not exist under this section when it is required by the character or nature of the job or position.’

In explaining the provision about the prohibition of discrimination on the basis of sexual orientation, the chairwoman of the Labour and Welfare Committee, Mrs O. Namir, pointed out:

‘I hope that adopting the proposed law will contribute towards treating men and women equally, regardless of their sexual orientation, allowing them to live according to their sexual orientation as equal citizens in every respect, and affording them the legal protection enjoyed by every other group.’

This provision does not deny the differences between human beings. These differences are natural. This provision states that the different sexual orientation of persons shall not be relevant in employment, unless this is required by the nature of the job. Indeed, with regard to conditions of employment, the employer must be impartial to his employees’ sexual orientations. He must determine the conditions of employment only in view of the criteria required by the nature of the job. Therefore if a benefit is conferred on an employee having a long-term and permanent relationship with a woman, that benefit should be conferred on an employee who has a long-term and permanent relationship with another man. Thereby the employer implements the principle of equality. Thereby he is prevented from invading the privacy of the employee (cf. s. 7 of the Basic Law: Human Dignity and Liberty). Conferring a benefit on a permanent employee for his recognized companion and not conferring it on a permanent employee for a same-sex companion (who complies with all the requirements of a recognized companion apart from the requirement of sex) amounts to discrimination in conditions of employment because of sexual orientation. This discrimination is prohibited. Consider A, a permanent employee of El-Al, who shares his life for several years with a woman B. They cohabit and run a common household (as required by El-Al for complying with the conditions of a recognized companion). A is entitled to an aeroplane ticket for B. Now consider A who lives in the same way with a man C. They too cohabit and run a common household. A is not entitled to an aeroplane ticket for C. How can this difference be explained? Does the one carry out his job as an employee differently from the other? The only explanation lies in A’s sexual orientation. This amounts to discrimination in conditions of employment because of sexual orientation. No explanation has been given that might justify this discriminatory treatment. There is nothing characterizing the nature of the job or the position that justifies this unequal treatment (see s. 2(c) of the Equal Employment Opportunities Law). To be sure, it is possible that El-Al thinks that a (permanent) employee who lives with a (same-sex) companion behaves ‘improperly’. It is possible that someone at El-Al thinks that this joint lifestyle should not be encouraged. We need not examine this argument on an ethical level. Whether or not we agree with it, it does not amount to a justification that negates the existence of the discrimination. Indeed, the discrimination is not determined merely by the will and intention of the person creating the discriminatory norm. It is determined by the effect that it has in practice (see Nevo v. National Labour Court [7], at p. 759; Bavli v. Great Rabbinical Court [11]). Occasionally we can justify a violation of equality — which, as we have seen, is not an absolute but a relative right — on the basis of a proper purpose. Such grounds must be very substantial and relevant. A very great weight rests on someone who tries to discharge this burden. In the case before us, the burden has not been discharged. No attempt has even been made to discharge it. All that we have heard is that same-sex companions who cohabit are not like companions of different sexes who cohabit. Thereby they indicated to us the difference that exists between the different situations. In doing so they did not negate the discrimination, and they certainly did not point to a proper purpose that might justify it (see M. N. Cameli, ‘Extending Family Benefits to Gay Men and Lesbian Women,’ 68 Chi-Kent L. Rev. (1992-93) 447.

The remedy for a violation of the right to equality

18. I have therefore reached the conclusion that the legal regime created by the collective agreement and the collective arrangement, with regard to the benefit conferred on an employee to receive a (free or discounted) aeroplane ticker for a spouse or recognized companion (of the opposite sex), discriminates against an employee living with a same-sex companion. Now we must turn to the second question requiring a decision, namely the remedy to which an employee who has suffered discrimination is entitled. Case-law has established that a discriminatory contractual regime may support a claim that the provision in the contract is contrary to public policy and is therefore invalid (see Flight Attendants Association v. Hazin [24]). This invalidity may cause the whole contract to be invalid. In most cases, there is no reason to invalidate the whole contract, and it is sufficient to invalidate the illegal part by severing it from the lawful part (see ss. 14 and 31 of the Contracts (General Part) Law, 1973). Thus, for instance, in Nevo v. National Labour Court [7] the contractual regime provided that the ‘retirement age for a pension is 65 for men and 60 for women’ (ibid. at p. 753). The Supreme Court held that this amounts to discrimination against women. It was held that the proper remedy — which the petitioner sought in that case — is striking out the invalid part. The result is that the part of the employment agreement providing that ‘the retirement age for a pension is 65’ remained valid. The Court thereby used a technique of severance. This technique is not possible in the case before us. Indeed, had the collective agreement and collective arrangement provided that a permanent employee is entitled to a benefit for whoever is his companion, except a companion of the same sex, it would have been possible to strike down the limiting provision, and so re-establish equality. But the contractual text in our case is different. It does not allow operating on the body of the text and severing the healthy part from the unhealthy part. What, then, is the remedy to which the petitioner is entitled?

19. As we have seen, a possible remedy is voidance of the contractual arrangement regarding the benefit. The result, from the respondent’s perspective, will be a case of ‘Let me die with the Philistines’ (Judges 16, 30): the respondent will not receive a benefit, but neither will recognized companions of the opposite sex. This outcome is not reasonable in the circumstances. Why should recognized companions of opposite sexes suffer a material loss? What wrong have they done? The National Labour Court rightly pointed out that the petitioner himself did not seek this remedy.

20. The appropriate remedy in this situation is to confer the benefit also on same-sex cohabitees. This remedy is recognized in the comparative literature. It was developed mainly in the case of laws that are contrary to the principle of equality laid down in a constitution. In American constitutional literature it is called the  ‘extension’ of the existing text. In Canadian constitutional literature it is called ‘reading into an arrangement’ or ‘reconstruction’ of the text. These terms are not accurate ones. The judge does not change the existing text, nor does he reconstruct it nor add to it. The judge does not do anything to the existing text. What the court does is different. It determines that as long as the existing text remains as it is — and as stated the judge does not do anything to it — similar benefits must be given to an additional group that is not mentioned in the text. Conferring this benefit derives directly from the principle of equality, which is a normative principle to which the text is subservient and to which it must conform. It can be seen then that the court does not implant an additional organ into the body of the text infected by improper discrimination. The court determines, however, that by virtue of the principle of equality — as long as the discriminatory contractual arrangement remains unchanged — a relief of conferring a benefit also on the victims of discrimination is required in order to remove the discrimination.

21. As we have seen, this relief is recognized by American constitutional law. In the case of Welsh v. United States (1970) [26] a statute exempted a person from military service because he was opposed to war for reasons of religion or faith. The petitioner asked for an exemption for reasons of conscience. A number of judges held that the exemption for reasons of religion or faith extends also to an exemption for reasons of conscience. Justice Harlan, however, disagreed. In his view, an exemption for reasons of conscience was not included in the statute. In this the statute violated the provisions of the Constitution. The proper remedy, in the judge’s opinion, was not nullifying the exemption for reasons of religion or faith but granting an exemption, based on the Constitution itself, for reasons of conscience. Justice Harlan writes, on page 361:

‘Where a statute is defective because of underinclusion there exist two remedial alternatives; a court may either declare it a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by exclusion…’

He continues at p. 364:

‘While the necessary remedial operation, extension, is more analogous to a graft than amputation, I think the boundaries of permissible choice may properly be considered by the legislative pronouncement on severability.’

Since that case, American courts tend to grant this remedy (see R. Bader-Ginsburg, ‘Some Thoughts on Judicial Authority to Repair Unconstitutional Legislation’ 28 Clev. St. L. Rev. (1979) 301; B. K. Miller, ‘Constitutional Remedies for Underinclusive Statutes: A Critical Appraisal of Heckler v. Mathens,’ 20 Harv. C.R.-C.L.L. Rev. (1985) 79. This remedy appears to the court natural and appropriate and preferable to nullification. One of the cases involved a statute that gave assistance to needy families. The statute provided, inter alia, that the support would be given to a family where the mother did not work and the father had worked previously but was now unemployed. A family where the father did not work and the mother had worked previously but was now unemployed was not included among the recipients of the support. The court held that the statute unlawfully discriminated against families where the father did not work whereas the mother had worked but was now unemployed. Against this background arose the problem of the remedy: whether to nullify the support for the family that was entitled (because of the discrimination inherent in the arrangement) or to extend the application of the statute to a family that was not included in it. It was held that the family which was the victim of discrimination should be added (Califano v. Westcott (1979) [27]).

22. The Supreme Court of Canada has a similar approach. It often tends to ‘read in’ to the statute provisions that will negate the unconstitutional nature of the statute. Justice Lamer wrote in Schachter v. Canada (1992) [37], at p. 12:

‘…extension by way of reading in is closely akin to the practice of severance. The difference is the manner in which the extent of the inconsistency is defined. In the usual case of severance, the inconsistency is defined as something improperly included in the statute which can be severed and struck down. In the case of reading in, the inconsistency is defined as what the statute wrongly excludes rather than what it wrongly includes. Where the inconsistency is defined as what the statute excludes, the logical result of declaring inoperative that inconsistency may be to include the excluded group within the statutory scheme. This has the effect of extending the reach of the statute by way of reading in rather than reading down.’

23. These remedies are appropriate in the constitutional sphere. They promote the purpose underlying the constitutional arrangement. They make it unnecessary to nullify legislation. The use of this remedy is not mechanical. We must consider in each case whether extension is possible. We must examine whether it is simple to implement, and whether it does not involve excessive intervention in the legislative fabric. We must consider the budgetary ramifications. Indeed, a benefit conferred by law to a marginal group does not justify granting a constitutional remedy by extending the remedy to a large and significant group. Neither should we adopt this technique to impose obligations on sectors of the population in whose favour the law has discriminated by not imposing these obligations on them.

24. These remedies — which were developed in the constitutional sphere — can be applied in the field of collective agreements and collective arrangements. They create a contractual regime that is subject to a supreme normative principle of equality. This principle derives its supremacy (with respect to collective agreements and arrangements) from the Equal Employment Opportunities Law. This principle of equality applies — by virtue of the express provisions of the Equal Employment Opportunities Law — also in private law. It is not merely a principle of public law. It obliges every employer not to discriminate against any of his employees in the fields of private law. Indeed, with regard to the prohibition of discrimination because of sexual orientation — just as with regard to other kinds of discrimination — the law establishes a mandate that obliges the employer. By virtue of this normative mandate — which is of supreme status with regard to collective agreements and arrangements — the employer is forbidden to discriminate against any of his employees with regard to conditions of employment. When a contractual arrangement drawn up by him involves prohibited discrimination, the contract is tainted with illegality. It may be voided by virtue of the provisions relating to invalid contracts. To prevent it being voided, we may demand — as an alternative remedy — that the employer refrains from the prohibited discrimination. This is achieved by compelling the employer to confer the benefit on the employee who is the victim of the discrimination. This does not change the agreement between the parties. We do not thereby read into the contract what is not there. We thereby merely remove the discrimination and comply with the normative mandate not to discriminate. Indeed, the basic fact is the discriminatory contractual arrangement. The contents of this are determined by the parties to the contract, and they control it and can change it. As long as the discriminatory contractual arrangement remains unchanged, the supreme normative mandate — which derives from cogent law — exists alongside it and compels the employer to act with equality. Indeed, just as by virtue of the normative supremacy of the constitution (or the entrenched Basic Law) the scope of applicability of a provision of a law may be extended, so too can the normative power of the law extend the scope of applicability of provisions in a collective agreement or a collective arrangement. By virtue of this normative supremacy, the contractual regime must modify itself to comply with the principle of equality (in our case, the prohibition against discrimination in conditions of employment because of sexual orientation). This modification does not require cancelling the existing contractual arrangement. This modification is achieved by conferring a benefit — which originates not in the contractual arrangement but in the principle of equality that extends the contractual arrangement to equivalent situations — on the class that is the victim of discrimination. This extension is suitable for the contractual model. It adds a small group of beneficiaries and does not therefore impose a significant budgetary burden. Justice is done, and justice is seen to be done.

The petition is denied. The case is remanded to the District Labour Court, as stated in the judgment of the National Labour Court. The petitioner shall pay the costs of the first respondent in a total amount of 10,000 NIS.

 

 

Justice Y. Kedmi

The question we must decide in this case is: does the concept ‘spouse’ used in the employment agreements include same-sex companions or not? My esteemed colleague, the Vice-President, answered this in the affirmative. Unfortunately, I cannot agree with that conclusion. The following are my main reasons:

1.    ‘Spouse’: the conceptual significance in the social sphere

(a) The linguistic concept of spouses, who together form a ‘family’, expresses, in the social sphere, an union of two individuals of opposite sexes to form a ‘couple’; a ‘couple’, in this context, has since the origin of man until the present represented a joining of two individuals of opposite sexes. This is the case here and throughout the world, and the Book of Books gives decisive proof of this: ‘And God created man in His image, in the image of God He created him; male and female He created them’ (Genesis 1, 27 [44]).

This is the case with man and it is the case with the animals, and the story of Noah’s ark leaves no doubt about this: ‘You shall bring two of each into the ark to preserve with you; they shall be male and female’ (Genesis 6, 19 [44]).

There is of course nothing to prevent the term ‘couple’ expressing a ‘quantity’ of two individuals; but we are not dealing here with the quantitative meaning of the concept but with its substantive meaning in the social sphere.

To give the concept ‘couple’, in the context discussed here, a different meaning from the linguistic meaning that it has always had is impossible. ‘A different meaning’ of this concept would deprive it of its essence; once again we are not speaking of a ‘couple’ that builds a family, incorporating a ‘husband’ and a ‘wife’, but a ‘couple’ that expresses a ‘quantity’ of two individuals who have come together, whatever their sex is.

In Hebrew the concepts of ‘husband’ and ‘wife’ are inseparably associated with the concept of ‘family’; you cannot have a ‘family’ unless two companions of different sexes are its basis (‘a heterosexual couple’).

(b) The relationship that turns two individuals — of opposite sexes — into a ‘couple’, in its linguistic-social meaning, is characterized by the decision of the two to have a joint lifestyle; ‘joint’, in this context, inter alia and especially, expresses family life whose primary purpose — and from a conceptual viewpoint it is impossible otherwise — is to bring children into the world: ‘And God blessed them, and God said to them: be fruitful and multiply and fill the earth…’ (Genesis 1, 28 [44]).

Thus it is no coincidence that the concept ‘couple’ is, in Hebrew, derived from the root meaning ‘intercourse’; the ‘couple’ and ‘intercourse’ are one, and only where these exist can we speak of a ‘family’.

Admittedly not every couple is ‘capable’ — or wishes — to bring children into the world, and not every ‘couple’ becomes such in order to bring children into the world. But these ‘exceptions’ in this context cannot undermine the fundamental conceptual meaning of the concept ‘couple’; therefore a precondition for two people being a ‘couple’ is that they are of different sexes.

(c) The heterosexual ‘couple’ is what creates the basic family unit; and, as stated, there is no ‘family’ in the social meaning of the word, unless a heterosexual couple forms the basis of it.

It is indeed possible to change the meaning of basic concepts such as ‘couple’ and ‘family’. However the change must primarily be a conceptual change of basic epistemological meanings; the language that has existed from ancient times does not recognize a ‘couple’ and a ‘family’ that are not heterosexual, except as an exceptional phenomenon that requires a descriptive supplement alongside the use of these concepts, which lose their original meaning where we do not refer to a joining of the two sexes.

(d) It is indeed possible for ‘two persons’ of the same sex to adopt for themselves external characteristics that describe a ‘couple’ and a ‘family’ as stated, and to imitate — in so far as they can — the behaviour pattern of ‘spouses’ and even to establish in practice a ‘family’. But they do not become a ‘couple’ and a ‘family’ in the fundamental meaning of these terms in our language; and language is, in the end, the mirror that reflects our society.

In order for two people to become a ‘couple’ that establishes a ‘family’, in the conceptual-epistemological meaning of our language — and it is a common language that forms the basis of our existence as a society — it is an essential and necessary condition that the two individuals who comprise a ‘couple’ come from opposite sexes.

In this regard, it is irrelevant that two individuals of the same sex, who join into a ‘couple’, do so because their natural sexual orientation does not allow them to be ‘spouses’ in the conceptual sense accepted in our language, namely that of persons of the opposite sex. It is not the ‘capacity’ to be a spouse, in the said basic epistemological meaning, that matters, but the sex of the partner. The criterion for two persons to be a ‘couple’ — according to the epistemological meaning of the concept — does not lie in the lifestyle led by the two persons but, primarily, in their being of different sexes.

(e) The aforesaid should not be regarded as a position deriving from a conservative religious outlook: religion did not dictate the meaning of the concept ‘couple’ in the epistemological sphere, but life itself dictated it; and the reality that reflects life is what lies at the basis of the expression ‘couple’ and this is what gave it the aforesaid meaning in the social sphere.

(f) It should be emphasized:

(1) The concept ‘couple’ — whose components are a ‘husband’ and ‘wife’ — is not necessarily connected with the institution of marriage. Use can be made of the concept ‘couple’ both with regard to a ‘married couple’ and an ‘unmarried couple’, so long as the joining of the spouses makes them a ‘couple’ within the meaning set out above.

(2) There is nothing to prevent adjectives being added to the concept ‘couple’ in its basic social meaning, such as married and unmarried; the adjective ‘married’ does not affect the basic meaning of the concept ‘spouse’ which expresses, in the context under discussion, two individuals of opposite sexes forming a social unit, based on sexual collaboration, whose nature is determined by its original purpose.

(3) In consequence — and more will be said about this below — there is no reason why ‘recognized companions’ should not be regarded as ‘spouses’, since they comply with the basic condition of an union of two persons of different sexes into a family unit, within the basic meaning of this expression as aforesaid. Recognized companions are not a ‘married’ couple but they do constitute a ‘couple’ and a ‘family’; as such, there is no fundamental conceptual difficulty in applying to them legal arrangements prescribed for a ‘married’ couple, and treating them, socially and linguistically, as a ‘couple’ in every respect.

(4) In these circumstances, in the language of human beings — all human beings — the word ‘couple’, in a social context, expresses an union of two individuals of opposite sexes, for a ‘joint life’ in the primary meaning of the word as aforesaid; and if we wish to change the meaning of the concept, we must do so, first and foremost, in the sphere of the basic linguistic concepts of our language and determining this change, expressly, in legislation relating to this issue. Without an express determination, the law gives expression to the linguistic meaning of the concepts to which it refers, unless it states the contrary.

The law speaks in human language, since it is intended for human beings; wherever we wish to deviate from human language and speak in the ‘language of the law’ — this should be done in accordance with an express, clear and unambiguous provision of the legislator. In the present context, this must be a provision that deliberately changes the linguistic significance of the term ‘couple’ in the social context and gives this concept, for the purpose under discussion, another meaning, materially different from its meaning in current usage.

2.    Marriage and the institution of recognized spouses

(a) As a rule, wherever we speak of a ‘couple’ — in the social sphere — the initial impression created in the conscience of the listener or the reader is one of a ‘married’ couple; for ‘marriage’ is what grants legal — and social — recognition to the joint life of the ‘spouses’ as a family unit, in the aforesaid primary meaning.

(b) However, as stated, it is not the external, formal framework of marriage that gives a ‘couple’ its traditional, literal meaning as aforesaid: a ‘couple’ in the sense discussed here, may be ‘married’ or ‘unmarried’, but it must always be a ‘couple’; and you do not have a ‘couple’ in the meaning discussed here unless the two individuals who form it are of opposite sexes. Linguistically, there is no ‘other’ couple in the social sphere; and language is what underlies human communication, and it is the means whereby people express their thoughts.

So marriage, as a legal institution, does not give the linguistic term ‘couple’ its content and conceptual meaning; it merely adds to it social recognition as a family unit in the community, and grants the two individuals forming it — the man and the woman — rights and duties in the legal sphere.

(c) For this reason — and this too has already been said — wherever a ‘couple’ complies with the basic definition of the concept — namely, wherever we are speaking about an union of two individuals of different sexes for a joint lifestyle as a family unit within the meaning set out above — there is no logical difficulty in regarding them as a ‘married couple’ for the purpose of duties and rights that the law prescribes for a ‘married’ couple; regarding the two as a ‘couple’ forms the basis whereby the law confers rights and imposes duties on a married couple.

By contrast, wherever we are speaking of two persons who have joined together for a joint lifestyle as a ‘pair’ that is not a ‘couple’ within the aforesaid basic linguistic sense, logic does not allow us to regard them from a legal viewpoint as if they were a ‘couple’, because they constitute something ‘else’. The ‘married’ couple and ‘recognized companions’ are a ‘couple’, whereas two persons who have joined for a joint lifestyle and are of the same sex are not a ‘couple’ but a ‘pair of friends’.

3.    The collective agreement and the collective arrangement

(a) Now let us turn from the general to the particular. The collective agreement, whose provision we are interpreting, speaks of a ‘spouse (husband/wife)’ (emphasis added); the term ‘spouse’ should be given the traditional linguistic meaning, whereby it refers to individuals of different sexes forming a ‘couple’ as set out above.

The addition ‘husband/wife’ is not intended to tell us that we are referring to spouses of different sexes, since for this we do not need any addition, and use of the term ‘spouse’ is sufficient. The addition is intended to clarify that this agreement refers to spouses who are married to one another, for they alone are called ‘husband’ and ‘wife’; the supplementary addition in the collective arrangement referring to a ‘companion recognized as a husband/wife’ proves that this is indeed the case. Had it not been for this supplement, the words ‘husband/wife’ in the collective agreement could have been interpreted as restricting ‘spouse’ to a ‘married’ couple only, and it would have been necessary to clarify that they are referring also to a ‘couple’ that is not married but which is merely recognized publicly as such.

(b) The addition of ‘recognized companion’ in the collective arrangement does not break away from the framework provided in the collective agreement: both refer to a ‘couple’ and ‘spouses’ in the basic social meaning of the concept ‘couple’, as aforesaid; distinguishing between ‘couples’ on the basis of marriage has more than a hint of discrimination. A married couple and an unmarried couple are fundamentally ‘equal’, in so far as the meaning of the concept ‘couple’ is concerned; distinguishing between them on the basis of ‘marriage’, which merely constitutes a formal, external mark of the framework of their joint lifestyle as a ‘couple’, amounts to improper ‘discrimination’ and not a permitted ‘distinction’. This is sufficient to justify the supplement in the collective arrangement, which intends to prevent improper and forbidden discrimination between ‘couples’.

(c) By contrast, introducing a pair made up of two individuals of the same sex (‘a same-sex couple’) into the said provisions of the agreement and the arrangement amounts to planting a foreign type of plant — something that is not a ‘couple’ — in a field that contains only couples, whether married or unmarried.

A same-sex ‘couple’ is not a ‘couple’ within its basic linguistic meaning, and it should, in my opinion, be referred to, linguistically, as a ‘pair’; the argument that it is a victim of discrimination in comparison with other ‘couples’ is unfounded: the married and unmarried couples are couples, and distinguishing between them constitutes discrimination, whereas the ‘pair’ is not a ‘couple’, and distinguishing between it and a ‘couple’ (married or merely publicly recognized) is not discrimination. So long as the linguistic and social meaning of the concept ‘couple’ is unchanged, a ‘pair’ will not become a ‘couple’: the latter ‘combine into one’ (‘Wherefore a man shall leave his father and mother, and shall cleave to his wife, and they shall become one flesh,’ Genesis 2, 24 [44]), whereas the former will always remain two.

4.    The interpretive aspect

(a) The means of communication between human beings is language, and a precondition for understanding between persons having a discussion is that the words, expressions and concepts that form the language have a stable linguistic meaning.

(b) As stated, the law speaks to human beings in human language: and the word is, first and foremost, the basis for interpretation of its provisions. The concepts ‘couple’ and ‘spouses’ and the linguistic relationship between them and ‘family’ are primarily linguistic concepts, whose meaning — in so far as the social sphere is concerned — is, as stated above, an union of two individuals of opposite sexes to share their lives in a family unit, when this sharing is characterized, inter alia, by intimacy designed, conceptually, to ensure the continuation of life.

(c) The same is true of interpretation of the law, and likewise with regard to interpretation of a legal document: a ‘couple’ requires the union of two individuals of opposite sexes; this is true even when the two are incapable in practice or unwilling — for whatever reason — to be intimate for the purpose of ensuring the continuation of life.

(d) Indeed, one of the fundamental rules of statutory interpretation is that the law is interpreted in order to achieve the purpose for which it was legislated; mutatis mutandis, a legal document is interpreted so as to achieve the intention of the parties to it.

Where the language is clear, we would fail in our duty if we were to deviate from the agreed linguistic meaning by which people plan their lives, and give the concepts used by the law or the agreement a different meaning from the one that they have in the world of language.

5.    The Equal Employment Opportunities Law – discrimination

(a) I wholeheartedly agree with the illuminating remarks of my esteemed colleague — the Vice-President — with regard to the significance of the principle of equality and the duty to realize and apply it.

However, as my esteemed colleague noted — when citing Boronovski v. Chief Rabbis [16] and Committee for Protection of Expropriated Nazareth Lands v. Minister of Finance [17] — you cannot violate the principle of equality unless you have ‘equals’; where you have persons who are not equal, treating them differently compared with others who are different from them should not be regarded as improper discrimination, but merely as a permissible distinction.

(b) My esteemed colleague found that same-sex couples are ‘equal’ to heterosexual couples; from here, it was naturally easy to reach a conclusion of ‘discrimination’ between the two types of ‘couples’, where one is entitled to a benefit and the other is not.

I do not accept this position. In my opinion — following what I have said until now — we are dealing with two ‘couples’ that are completely different in nature; the one — the heterosexual (whether married or unmarried) — is a ‘couple’, whereas the other — the homosexual — is merely a ‘pair’; therefore conferring a benefit on the one does not constitute discrimination when not conferring the benefit on the other.

(c) The common denominator that makes the two ‘couples’ — the homosexual and the heterosexual — ‘equals’ for the purpose of the principle of equality, lies, according to my esteemed colleague, in the fact that the characteristic marks of the joint lifestyle of the two are equal; both run a common household, both form a family unit, and both live within a social framework based on a life of sharing and harmony; prima facie, they only differ from one another in one external-formal factor, which is merely that the homosexual couple cannot marry.

My esteemed colleague adds: ‘the inability to marry’ is a factor that also distinguishes married spouses from ‘publicly recognized’ companions; and this distinguishing factor did not prevent a total comparison between the latter and the married spouses.

(d) According to my thinking, a sharing and harmonious relationship — as pointed out by my esteemed colleague — is insufficient to make a homosexual couple a ‘couple’ within the meaning that this concept has in our language in the context discussed here, because it lacks an element essential to ‘being a couple’, namely that the spouses must be of opposite sexes. The formal ‘inability’ to marry — by a formal marriage — does not put the homosexual couple in the same category as the heterosexual ‘publicly recognized’ unmarried couple; the latter is a ‘couple’ within the linguistic meaning of this concept, whereas the former is not.

The distinction between the heterosexual couple — including ‘publicly recognized companions’ — and the homosexual couple is based on the fundamental nature of the concept ‘couple’; the first is a ‘couple’ because it is comprised, as stated, of two individuals of opposite sexes, whereas the second is otherwise; the fact that the homosexual spouses maintain a social framework ‘similar’ in its external characteristics to that of the heterosexual couple — the natural family unit — does not make them a heterosexual couple.

As stated, an essential factor — which is an indispensable condition in this context — for converting two individuals enjoying a life of sharing and harmony into a ‘couple’, within the meaning of the term in the Hebrew language, lies in them being ‘of one flesh’ and their being able — conceptually — to fulfil the precept of ‘being fruitful and multiplying’. The ‘married’ couple and the ‘publicly recognized’ couple meet this basic requirement, and they are therefore ‘equal’ for the purpose of examining an allegation of discrimination; whereas the homosexual couple, which does not meet the said basic requirement, is different from them in the said respect.

(e) My esteemed colleague is aware of a substantive difference that distinguishes, conceptually, between the two ‘couples’ as stated, but according to his approach this difference has no implication for the case before us; this is because in his opinion El-Al decided to confer a benefit on its employees ‘in the form of an aeroplane ticket enabling the employee to take with him the person with whom he shares his life’ (emphasis added), and for this purpose there is no difference between the two couples.

Even this narrow and restrictive approach to the problem before us does not, unfortunately, enable me to agree with my colleague. Admittedly we are concerned with the interpretation of El-Al’s decision. However, this decision does not speak of granting an aeroplane ticket to a person who ‘lives together with the employee’ (emphasis added) but to ‘the employee’s spouse’ (emphasis added); the linguistic difference between the two speaks for itself. As I have already stated, in my opinion the concept ‘couple’ in our language — in the social sphere considered here — expresses the union of two individuals who share their lives, which makes them physically into ‘one flesh’ in the primary sense of the expression; ‘He created them male and female… and He called their name man…’ (Genesis 5, 2 [44]); whereas the union of two individuals that ab initio cannot, physically, become ‘one flesh’ as stated, and who conceptually cannot achieve the said purpose, creates a couple quantitatively (since there are two), but not qualitatively (since the two cannot become one, within the framework of the commandment of being fruitful and multiplying).

(f) In my opinion, all we have before us is the language of the collective agreement — and in the supplement found in the collective arrangement — namely: ‘spouse (husband/wife)’ in the agreement, and ‘the person publicly recognized as husband/wife of the company’s employee’ in the arrangement; I do not think that we may read instead of these: ‘whoever lives together with the employee’ and even not ‘whoever forms a family unit with the employee’.

We are not dealing with a ‘life of sharing’ or a ‘family unit’, but with spouses within the basic conceptual meaning that this concept has in our language; these are always heterosexual, as long as language does not change its meaning.

5.    With regard to the allegation of discrimination between a ‘homosexual couple’ and a ‘heterosexual’ couple, there is no place in my opinion for considerations of social justice; the distinction between these two does not lie in the employees’ sexual orientation, but in the distinction between a ‘couple’ and a ‘family’ and those who do not constitute either a ‘couple’ or a ‘family’, within the meaning given to these terms in our language. Even single employees — whether ‘heterosexual’ or ‘homosexual’ — have close friends with whom they would like to spend their vacation abroad; yet no-one claims that they are discriminated against in that they are refused the benefit merely because they do not commit themselves to a formal framework of ‘a joint lifestyle’ with those friends.

El-Al saw fit to confer a benefit on ‘spouses’ that constitute a ‘family’ within the meaning thereof in the language which we use to communicate with one another; this does not constitute discrimination on the basis of ‘sexual orientation’, since we do not regard the homosexual spouses as included in the linguistic concepts ‘couple’ and ‘family’. We have here a distinction between a ‘spouse’ and someone ‘who is not a spouse’, and it may be argued that from a sociological and social viewpoint there is discrimination between ‘couples’ and those who are not ‘couples’; however, discrimination on a basis of ‘sexual orientation’ is not present here.

6.    More regarding the distinction between ‘couples’

(a) Heterosexual couples share a complete mutual commitment to sharing and stability, each to the other and both to the framework of the couple, in all spheres of life. The law gives validity to this commitment, since society, as such, has a profound interest in preserving the framework of the couple — which forms the basis of the organizational structure of human society — and ensuring its stability.

Society has adopted in this respect the approach that regards spouses becoming ‘one flesh’ — that is capable, conceptually, of achieving the mission of ‘being fruitful and multiplying’ — as a condition for making two people who unite for a life of sharing into a ‘couple’; language expresses this with the meaning it attaches to ‘couple’ and ‘family’. At the same time, society created rules to give a seal of social recognition to the framework of the ‘couple’, and it protects it and intervenes when a couple wishes to dissolve the framework, and it even seeks to prevent the dissolution whenever possible.

The said protection and intervention are achieved with legal tools; and the law — following language, which reflects social consensus — attaches the said meaning to ‘couple’ and ‘family’, but not to the homosexual couple.

(b) The recognition of the heterosexual couple that is ‘publicly recognized’ as a ‘couple’, even though it does not have all the legal guarantees of mutual commitment and stability, derives from the existence of the basic social requirements for the existence of a ‘couple’ — namely, an union of two individuals of opposite sexes as ‘one flesh’, who are able, conceptually, to ensure reproduction — and when these exist, there is no social justification for ignoring the de facto existence of the family unit and the spouses comprising it; on the contrary, it must ensure that the mutual commitment and stability of the unit are protected, even without the formal status of marriage.

The rules granting ‘mutual benefits’ to publicly-recognized heterosexual couples just like to married couples — in the circumstances provided by law — are based on a desire to give expression to the mutual commitment and ensure the stability of the family unit created by the publicly recognized ‘couple’, not necessarily by formally entering into the institution of marriage.

(c) This case of the homosexual couple is different: on the one hand, the substantive condition of different sexes is not met, and without this, one cannot speak physically of ‘one flesh’ and conceptually of reproduction and continuation of life, and therefore it does not constitute the same fundamental unit that lies at the basis of the organizational structure of human society; on the other, the partners do not have the same mutual commitment to the stability and continuity of the partnership that might induce society to recognize them as a ‘special’ couple and fit them in alongside the ‘typical’ couple at the basis of the social structure.

When society reaches the conclusion that a homosexual unit should also serve as a basic ‘unit’ of the social structure alongside the heterosexual couple, and when it determines rules for its creation, formal recognition of its existence and the guarantee of the mutual commitment between its constituents to partnership and stability, then the linguistic-conceptual meaning of the term ‘couple’ and ‘family’ in this context will change, and the homosexual couple will be included in the new linguistic framework alongside the heterosexual couple.

But as long as there is no such social consensus, the homosexual couple is not included within the framework of a ‘couple’ in our language, and it is not recognized as one of our society’s nuclear units; consequently its formation, the mutual commitment of its constituents to the partnership and its stability, and the rights and duties of those involved in it are naturally not regulated by our law.

(d) The change required here is therefore a basic conceptual change in our social outlook regarding the substance of the basic social unit, counted among the elements of our society’s organizational basis. The expression of what appears to be ‘tolerance’ towards exceptional cases and an attempt to prevent apparent social discrimination against those exceptional cases on the basis of what is exceptional about them cannot replace the fundamental conceptual change necessary for equating the homosexual couple with the heterosexual couple.

7.    Different conceptual attitudes in different cases

(a) According to my approach, there is no reason to attach an ‘independent’ and different meaning to the concepts ‘couple’ and ‘spouse’ in different contexts of sharing lives in society. I do not accept the approach that says that these concepts should be examined separately in the field of labour relations, in the field of social legislation, in the field of residency and citizenship, in the field of property law and obligations, in the field of taxation, etc..

In my opinion, as stated, in current circumstances, from the linguistic-social viewpoint, the words ‘couple’ and ‘spouse’ have only one conceptual meaning, namely two individuals of opposite sexes who have united into a framework of a joint life, which is based on the physical ability to become ‘one flesh’ and the conceptual ability to fulfil the commandment of being fruitful and multiplying; the removal of this two-fold characteristic from the framework of the definition of the concept ‘couple’ amounts to a nullification of the meaning that this concept has in the language of consensus that we use as an organized society.

(b) Destroying the linguistic-conceptual meaning in one sphere naturally leads to departing from it in other spheres, and the social framework built on an existing agreed meaning is undermined. The term ‘couple’, in this context, will lose its conceptual meaning in our language, and the focus of this meaning, which today derives from the heterosexuality of the spouses, will become a personal decision to have a life of quasi-family sharing at a particular time, where the sex of the spouses will be left to one side. There is nothing to prevent this result being reached, if it is deemed correct to go in this direction. However, this must be done by giving a ‘different’ meaning to the linguistic concept ‘couple’; this is not for us to do, but for whoever is authorized to change the Hebrew language, even if only in the legal sphere.

(c) Let me not be misunderstood: my approach does not seek to challenge the increasingly prevalent social recognition of the sexual orientation of individuals who wish to build their lives with persons of the same sex, nor do I wish to place obstacles in the path of those individuals to prevent their self-fulfilment in accordance with their orientations. All that I want is to refrain from the destruction of a conceptual ‘barrier’, linguistic chaos and communication that suffers from ‘misunderstandings’, by deviating so sharply from the meaning of basic concepts, which are the foundation of society and facilitate its operation in the way that we currently live.

For generations the concept ‘couple’ has been used in the social context to express a heterosexual couple. It was used in this way both orally and in writing, and it was used in this way in determining social arrangements and legal norms. If we try to introduce a change in this matter, this ought to be done in a straightforward way and not in a roundabout fashion; for we are dealing with human language, and we are obliged to respect it and protect the stability of its contents.

8.    Summary

(a) A ‘heterosexual’ couple — whether married or unmarried — is a ‘couple’ within the conceptual meaning of the word, whereas a ‘homosexual’ couple is not.

(b) For this reason, we are not dealing conceptually with ‘equal’ couples, and therefore the distinction made between the heterosexual couple and the homosexual couple is merely a ‘distinction’, and not ‘discrimination’.

(c) There is no basis for partial and limited recognition of the institution of the ‘homosexual’ couple; yes — with regard to labour agreements; no — in other areas, such as taxation, personal status, citizenship, giving testimony, etc..

A change in the meaning of the concept of ‘spouse’ must be general and all-encompassing, and it ought to be done in a way that everyone is aware of the new meaning given to it and its ramifications.

(d) An employer may offer a ‘benefit’ only to heterosexual couples without being guilty of discrimination, because the homosexual couple is not a ‘couple’, and the distinction between employees who are ‘spouses’, in the said basic linguistic sense, and employees who are not, is a ‘distinction’ and not ‘discrimination’.

(e) The discrimination that the respondent alleges in this case, is merely an ‘appearance of discrimination’, and it derives from what clearly appears to be ‘social injustice’. However, every distinction in distributing benefits to employees involves ‘social injustice’; the principle of equality as a defence against discrimination was not intended to address this.

Were my opinion accepted, the petition would be granted and the judgment of the National Labour Court’s decision would be reversed.

 

 

Justice D. Dorner

1.    The French philosopher, Michel Foucault, discussed the influence of social norms — reflecting what is accepted, ‘normal’, and what changes from time to time and from society to society — on the application of transcendental and formal laws (legal norms).

‘…le pouvoir de la Norme… est venu s’ajouter à d’autres pouvoirs en les obligeant à de nouvelles délimitations; celui de la Loi… et du Texte…

…le pouvoir de la norme fonctionne facilement a l’intérieur d’un système de l’égalité formelle, puisque a l’intérieur… la règle, il introduit… des différences individuelles’ (M. Foucault, Surveiller et Punir (1975) 186).

In translation:

‘… the power of social norms joins with other forces — the law and the text — and imposes on them new limitations…

… the power of social norms acts well within a system of formal equality, since it introduces… individual differences into… the rules.’

It seems to me that we cannot decide the petition before us without referring to the changes that have taken place with regard to social norms in Israel respecting homosexuality.

2. The respondent demanded that the petitioner recognize the man with whom he shares his life as a ‘spouse’ for whom he is entitled to receive an aeroplane ticket as of 1989, by virtue of the collective agreement. The Labour Court accepted the claim on the basis of the Equal Employment Opportunities Law (Amendment). The law, which came into effect on 2 January 1992, added to s. 2(a) of the Equal Employment Opportunities Law (hereafter — ‘the Equal Opportunities Law’) a prohibition against discrimination against employees because of their sexual orientation. The Labour Court held that the law changed the existing law and gave the respondent a right that he did not have before it was enacted, and that therefore he is entitled to receive the aeroplane tickets from the date that the amendment came into effect.

My colleague, Vice-President Barak, presumed — in the absence of any contrary argument by the respondent — that the respondent’s right does not derive from the collective arrangement itself. In Justice Barak’s opinion, the respondent’s right derives from the amendment, which reflects the principle of equality and the prohibition of discrimination against employees on the grounds of their sexual orientation.

My colleague, Justice Kedmi, is of the opinion that the expression ‘spouse’ cannot be given a different meaning in different laws. In his view, this expression has only one meaning: a man and a woman who unite for a joint life. This definition is accepted both from a linguistic viewpoint and a social viewpoint. It follows that without an express provision in the law that a same-sex life-partner is a ‘spouse’, a life-partner of the same-sex should not be given the benefits to which a ‘spouses’ is entitled on the basis of a provision prohibiting discrimination against the employee himself because of his sexual orientation.

3.    I agree with the result reached by the Vice-President. However, in my opinion, the respondent’s right does not derive only from the Equal Opportunities Law, but also derives from the general principle of equality that has, for some time, been a part of our labour law.

In my view, the original version of the Equal Opportunities Law reflected the principle of equality but did not establish it. Thus, for instance, in Nevo v. National Labour Court [7], a provision that provided a different retirement age for men and women was disqualified on the basis of the principle of equality. This disqualification was based on the legal position prior to the Equal Retirement Age for Female and Male Employees Law, 5747-1987, which made the retirement age the same for women and men, while preserving the right of women employees to early retirement. Cf. also the remarks of Justice Mazza in Israel Women’s Network v. Government of Israel [5], at pp. 521-522 {150}.

Similarly, the amendment also did not change the existing law about equal rights for homosexuals, but merely gave expression to them. Consequently, had the respondent insisted on his original claim to receive the benefits for his spouse since May 1989, which was before the enactment of the amendment, I would have granted his request. Conversely, if not for the development of social norms in Israel which no longer totally oppose homosexual relations, it is possible that the Equal Opportunities Law would have been interpreted narrowly, similarly to the interpretation of my colleague, Justice Kedmi, which would not give the respondent the benefits that he claimed.

4.    The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks. Justice Wilson discussed this in the Canadian case of R. v. Turpin (1989) [38], at p. 1331:

‘In determining whether there is discrimination on grounds relating to personal characteristics of the individual or group, it is important to look… to the larger social, political, and legal context…

Accordingly, it is only by examining the larger context that a court can determine whether differential treatment results in inequality.’

See also the remarks of Lord Denning in Dyson Holdings Ltd v. Fox (1975) [34], at p. 1033.

5.    In the past, intimate relations between members of the same sex — relations that are considered a sin by all the monotheistic religions — constituted a criminal offence. Legitimacy was also given outside the criminal law to a distinction based on sexual orientation. Homosexuals (including lesbians) were fired from their jobs, were not accepted for positions requiring a security clearance, and were forbidden to raise their children. In the United States they were classified as psychopaths and were not allowed to immigrate into that country (The Editors of the Harvard Law Review, Sexual Orientation and the Law, 1990, at pp. 44, 65, 119, 132, 139, 150, 153).

This treatment has changed gradually. Legal literature criticized the definition of homosexual relations as a criminal offence, as well as discrimination against homosexuals in all areas of life, including areas of employment (R.A. Posner, Sex and Reason, Cambridge, 1992, at p. 308). Movements advocating the equality of rights for homosexuals were established. The trend today — which began in the seventies — is a liberal treatment of the sexual orientation of an individual, which is considered to be his private matter.

These changes in social outlook were given expression in law in the Western world, and homosexual couples have achieved equality, in accordance with the social norms in each country.

6.    In European countries, there is no longer a criminal prohibition of homosexual relations. Legislation in the field of public law and labour relations in France, Denmark, Sweden and Norway prohibits discrimination because of sexual orientation. Laws in Sweden, Holland and Norway equate the rights and duties of homosexual couples with the rights and duties of heterosexual couples, including tax benefits and property division arrangements upon separation. The law in Sweden also recognizes the right of inheritance of a homosexual spouse (see L.R. Helfer, ‘Lesbian and Gay Rights as Human Rights: Strategies for a United Europe’ 32 Va. J. of Int’l L., 1991-92, 157, 168). Homosexuals have achieved the most recognition in Denmark. The law in that country allows ‘marriage’ between two persons of the same sex by registering their life-partnership relationship. This registration entitles homosexual spouses to social rights granted to married couples (M.H. Pedersen, ‘Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce’ 30 Jour. of Family L., 1991-92, 289).

Article 8 of the European Convention for the Protection of Human Rights also provides protection for homosexual relationships as part of the protection given to the right to privacy (see decisions of the European Court of Human Rights in the Norris Case (1988) [35]; and Modinos v. Cyprus (1993) [36]). Recently, a proposal was made to amend the Convention to expressly prohibits discrimination of any kind because of sexual orientation (Draft Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms).

7.    Article 15(1) of the Canadian Charter of Rights and Freedoms, which is a part of the Constitution Act, provides protection for the right of every person to equality. In case-law this section has been interpreted as prohibiting discrimination on the basis of sexual orientation (Vriend v. Alberta (1994) [39]; Egan v. Canada (1993) [40]; Haig v. Canada (1992) [41]). By contrast, claims of homosexual couples for rights conferred on married couples were rejected. It was held that, since the purpose of marriage is raising children, the different treatment of the homosexual couple is not a breach of the charter (Haig [41], at p. 340; Layland v. Ontario (Consumer & Commercial Relations) (1993) [42], at p. 231).

8.    In the United States the change has been more moderate. In some States there is still a criminal prohibition — which is not enforced — against having homosexual relations. As recently as 1967, the United States Supreme Court held that, since the homosexual has a psychopathic personality, as defined in the Immigration and Naturalization Act, his immigration into the United States was prohibited, and he was liable to immediate deportation (Boutilier v. Immigration Service (1967) [28]). Six years later, however, in 1973, the American Psychiatric Association rejected the definition of homosexuality as a psychiatric disorder, and, in 1981, the rule in Boutilier [28] was reversed. It was held that because homosexuality is not a psychiatric disorder, it does not indicate bad character, and therefore it does not constitute grounds for rejecting a naturalization request (Nemetz v. Immigration & Naturalization Service (1981) [29]).

During the 1980s, 139 judicial districts (States and local authorities) enacted laws prohibiting discrimination on the basis of sexual orientation in employment, housing and education (Note: ‘Constitutional Limits on Anti-Gay Rights Initiatives’ 106 Harv. L. Rev. (1992-93) 1905, 1923-25). The municipal laws of 12 municipalities allowed homosexual couples to register at the municipality as domestic partners, for the purpose of receiving social rights given to families (Bowman and Cornish, supra, at p. 1168).

At the same time, the courts in several States have recognized the rights of a same-sex spouse on the basis of the ‘functional test’. According to this standard, recognition of the homosexual couple depends on the purpose of the law conferring rights on a ‘family’ or ‘spouse’. The homosexual spouse will enjoy the rights conferred by law, if this is consistent with the law’s purpose.

Thus, for instance, the New York State Court of Appeals recognized the life-companion of a deceased tenant as a protected tenant by virtue of his being the spouse of the deceased. It was held that, in view of the purpose of the tenant protection law, the difference between a heterosexual couple and a homosexual couple is irrelevant. If the life-companion were not recognized as the spouse, the purpose of the law would be frustrated, in that a remote relation would be entitled to the accommodation, whereas the person who shared his life with the deceased would be expelled from the apartment where he had lived for years (Braschi v. Stahl Associates Co. (1989) [30], at pp. 788-789; see also Yorkshire Towers Co. v. Harpster (1986) [31]; Two Associates v. Brown (1986) [32]; E. 10th St. Assoc. v. Estate of Goldstein (1990) [33]).

The accepted outlook in the United States was summarized in the article of Bowman and Cornish, supra, at pp. 1175-77, as follows:

‘… there is a general tendency to look at the characteristics of the particular relationship to determine whether it qualifies as a family for the purposes of the particular statutory scheme, especially when a statute uses a term such as “family”, “spouse”, or “parent” without defining it.

…

… Courts have identified certain elements as indicia of a “family-like” relationship, including financial commitment, exclusivity of the relationship, the reliance members place on each other, the length of the relationship, and the presentation of the relationship to the outside.’

9.    The law in Israel regarding homosexuals reflects the social changes that have occurred over the years.

Male homosexual relations were, in the past, included in the offence of deviations from nature, an offence punishable by 10 years’ imprisonment (section 351(3) of the Penal Law, 5737-1977, which was a new version of section 152(2) of the Criminal Law Ordinance, 1936, enacted by the Mandate). This prohibition was never enforced. As early as the year 1963, in CrimA 224/63 Ben-Ami v. Attorney-General [20], at p. 238, the court held that this offence has no basis in our present reality. Speaking for the court, Justice H. Cohn said:

‘Unnatural sexual relations, and homosexual relations, when done in private between consenting adults, are not acts involving moral turpitude, nor do they indicate that the persons who do them are criminals deserving of punishment. These are offences that we inherited from ancient systems and past generations and they have no place in the criminal law of a modern state… ‘Nature’, as such, no longer needs the protection of the criminal law. What needs, and is therefore entitled to, their protection are the human body and human dignity and liberty… one of the basic rights of the citizen is that the State will not interfere in the private life and his behaviour behind closed doors…’

Nonetheless, for many years the offence remained the law and was not repealed. Even in 1980, when the draft Penal Law (Amendment no. 14), 5740-1980 — which, according to its explanatory notes, was intended to replace the provisions of the Mandatory law with legislation suitable to the reality of our times — was tabled in the Knesset, it was suggested that the prohibition against homosexuality remain. Notwithstanding, it was proposed that the punishment for this offence be reduced to one year’s imprisonment. The explanatory notes said: ‘The question whether in our time there is a justification for the interference of the criminal law in sexual acts done between consenting adults in private is a controversial one’ (ibid., at p. 392).

This proposal did not reach the Knesset, and the criminal prohibition was repealed eight years later in the Penal Law (Amendment no. 22), 5748-1988.

This formal repeal reflects the current position of Israeli society that the law (as opposed to religion) should be indifferent to the sexual orientation of a person, so long as he does not harm anyone. There is widespread consensus that homosexuals should not be restricted or subject to discrimination (Rubinstein, The Constitutional Law of the State of Israel, supra, at p. 334). The amendment to the Equal Opportunities Law reflects this approach. M. Virshowski MK referred to this during the debate proposing the law at first reading:

‘… with this we are in fact establishing the rules accepted today in the enlightened world and allowing people to live in accordance with their sexual orientations, and not to suffer for them or be oppressed because of them’ (Knesset Proceedings 119, 1991, at p. 1034).

10. In our case, it is clear that there is a difference between a homosexual couple and a heterosexual couple. However, a ‘difference’ justifying different treatment must be relevant (Boronovski v. Chief Rabbis [16], at p. 35; HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [21], at p. 21; HCJ 4169/93 [22]).

The proper test is therefore to consider the relevance of the sexual orientation to the benefit conferred on the spouse. The functional test meets this requirement. According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred. By contrast, when the sexual orientation is relevant to realizing the purpose of the benefit, for instance if the purpose is to encourage having children, withholding the benefit from a same-sex spouse will not constitute discrimination. Justice L’Heureux-Dubé discussed this distinction in the judgment of the Canadian Supreme Court in Canada (A.G.) v. Mossop (1993) [43], at p. 560:

‘… “family status” may have varied meanings depending on the context or purpose for which the definition is desired… the Tribunal concluded that the potential scope of the term “family status” is broad enough that it does not prima facie exclude same-sex couples. In making this finding, the Tribunal used the proper interpretational approach, considered the purpose of the Act and the values at the base of the protection of families.’

Cf. also NLC 54/85-0 [25]. In that case it was held that a recognized partner is exempt from paying insurance premiums under s. 8 of the National Insurance Law [Consolidated Version], 5728-1968, exempting ‘a married woman whose husband is insured’ from making insurance premiums. Justice Goldberg, who wrote the judgment, explained that in view of the purpose of the law to place a recognized partner on an equal footing with the ‘lawful wife’, and in view of the definition in the law of the expression ‘his wife’ including a ‘recognized partner’, the recognized partner must also be regarded as a ‘married woman’.

11. Public authorities are first and foremost subject to the principle of equality, but this principle also applies in the field of labour relations in general (see, for instance, S. Almog, ‘A Guide to Labour Law’ The Employee’s Guide, 1994, 35-36). The employer’s contractual freedom retreats when faced with the employee’s right to equality (Flight Attendants Association v. Hazin [24]; HCJ 410/76 Herut v. National Labour Court in Jerusalem [23]; Nevo v. National Labour Court [7], ibid.). The legislation prohibiting discrimination in labour relations reflects this principle, but did not create it. See also F. Raday, ‘The “Privatization of Human Rights” and the Misuse of Power’ 23 Mishpatim, 1994, at pp. 21, 41.

12. In our case, the aeroplane ticket was not meant for a spouse who is married to the employee, and in any event the purpose of the benefit was not to encourage a lifestyle within a traditional family framework. The benefit is given to the employee for the spouse with whom he shares his life de facto. Indeed, although the petitioner did not intend the arrangement to apply to same-sex spouses, the sex of the spouse is not relevant to the purpose of giving the benefit.

Benefits for a spouse are a significant part of employees’ salaries. Professor Elbin’s calculations found that in the United States 27% of employees’ salary is made up of benefits (in his article, supra, at pp. 1068-1069).

In Israel, benefits (including ‘related conditions’) may lead even to the doubling of the salary (see the monthly periodical Calculation, M. Katzin, ed., October 1994, 50). A significant part of these benefits — such as pension plans and life insurance — are given for the spouse, including the recognized partner, and to deny benefits to a spouse with whom a homosexual lives is tantamount to reducing his salary. Consequently, denying these benefits is discrimination against the employee himself. Professor Elbin said of this:

‘Unable to marry, gay couples are generally excluded from the benefits afforded married couples in our society, including benefits commonly accorded spouses in employee and public benefit programs. For gay employees, the result is total compensation lower than that of other married co-workers performing the same job.

Domestic partner provisions lessen the economic discrimination that results from the ban on same-sex marriage.

…

… An employer who does not offer domestic partner benefits is, in fact, paying less in total compensation than he should be because employees with domestic partners are not being compensated equitably’ (supra, at 1068-69, 1082).

In the case before us, denying the benefit to the respondent would lead to a reduction of his salary in the amount of the price of the ticket, and there is no justification for this.

For these reasons, I agree that the petition should be denied.

 

 

Petition denied, by majority opinion (Vice-President A. Barak and Justice D. Dorner), Justice Y. Kedmi dissenting.

30 November 1994.

 

 

 

[*]                 NLC 3-160/53 El-Al Airlines v. Danielowitz IsrLC 26 339.

*                 Ibid., p. 349.

 

 

 

 

Appeal denied.

21 Tammuz 5765.

28 July 2005.

 

 

C.A. 124/87

 

LIEUTENANT IZAT NAFSU

v.

CHIEF MILITARY ADVOCATE

 

 

In the Supreme Court sitting as a Court of Appeals

[24 May 1987]

Before: Shamgar F., Bejsky J. and Goldberg J.

 

 

 

 

Military Jurisdiction Law, 1955

Appeal of the verdict of the Military Appeals Court, file 202/82/a, of 29.6.86,

given by S. Ziv, Judge Y. Shilo and A. Ravid, dated 24 May 1987.

 

 

A. Kamar, Dr. Z. Hadar, M. Kamar and Y. Kamar for the appellant.

Brig. Gen. A. Nevo and Col. U. Shoham for the respondent.

 

 

JUDGMENT

 

The President:

 

1. The appellant, an IDF officer holding the rank of lieutenant, was convicted by a special military court of treason under Section 43(7) of the Military Jurisdiction Law, 1955, and of aggravated espionage under Section 113(b) of the Penal Code, 1977. These accusations referred to the conveying of information on the IDF to the enemy, namely, to a Lebanese resident whose name is specified in the charge sheet and proved in court, and who on the relevant date, that is in 1979, was a senior commander in the Al-Fatah organization. The appellant was further convicted on two charges relating to the offence of assisting the enemy under Section 44 of the Military Jurisdiction Law, 1955, and aiding the enemy in wartime under Section 99 of the Penal Code, 1977, in connection with his meeting with another resident of southern Lebanon whose name is specified and confirmed as in the case of the aforementioned person, with the aim of having the appellant carry out missions of transferring combat materiel to Israel. Finally, he was convicted on eight counts relating to the offence of treason, under Section 43(2) of the Military Jurisdiction Law, 1955, and aid to the enemy in wartime under Section 99(a) of the Penal Code, 1977, which with respect to their facts refer to the transfer of bags with combat materiel upon the request of the aforementioned person from Lebanon to Israel. The special court sentenced the appellant to 18 years' imprisonment. His sentence also included expulsion from the army, which automatically means cancellation of his military rank.

 

2. The appellant's appeal to the Military Appeals Court was rejected.

 

3. The appellant asked for and received permission to appeal to the present court, in accordance with the provisions and conditions specified in Section 440(t) of the Military Jurisdiction Law, 1955, passed by the Knesset several days before the judgment in the appeal was handed down.

 

4. The appellant's appeal was against his conviction. The appellant's arguments in his appeal addressed to this court, were in the main those which served as the basis of his defence in the special military court, and were also adduced before the Military Appeals Court: the special military court convicted the appellant on the basis of his written confessions, which were given to investigators of the General Security Service, and which, in the opinion of the court, were found to contain "an additional element," as required by the laws of evidence. The appellant's claim was that his confessions were inadmissible and did not constitute the truth. According to him, the confessions were made after GSS investigators exerted unacceptable means of pressure against him, which bars their admissibility under Section 477 of the Military Jurisdiction Law, 1955, according to which a military court will not accept a defendant's confession as evidence unless it is convinced that it was given of the defendant's own free will. The appellant says violent acts were carried out against him, which included pulling his hair, pushing him around, throwing him to the ground, kicking, scratching and insults. He was ordered to strip and sent to take a cold shower. He was prevented from sleeping for many hours during the day and especially at night and he had to stand in the yard of the prison facility for long hours even when he was not being interrogated. He was also threatened that his mother and wife would be arrested and that personal information about him, which was in the interrogators' possession. would be made public.

            The special court did not accept these arguments of the appellant, which were denied by his interrogators in their testimonies. The Military Appeals Court saw no reason to intervene in the judgment of the court of the first instance, that had seen and heard the above-mentioned witnesses, and had been able to formulate a first-hand impression of them.

           

5. With the opening of the hearing before this court, the learned representative of the state, Chief Military Advocate Brig. Gen. Amnon Nevo, who appeared before us together with Col. Uri Shoham, declared that prior to hearing the appeal, he himself, along with the General Security Service had examined the facts of the case and discovered new evidence and facts which indicated that there had been truth in most of the appellant's claims regarding the pressures exerted upon him with respect to his confessions, and which, he maintains, affected his free will. The following is the essence of his remarks, as made before us and as submitted to us in writing:

 

"Following an examination conducted by the GSS at its initiative, after objections and reflections on the whole affair were raised within the service (29 January 1987), and following questioning conducted by myself personally during the past month since I was apprised of the findings of the GSS examination, new evidence and facts have been revealed and the following doubts arose in the episode in question:

 

"1. Mini-trial

            Most claims of the defendant at the 'mini-trial' regarding the pressures exerted on him to give confessions, which, he argues, affected his free will, with the exception of direct means of violence, such as kicks and slaps, were examined and found basically correct..."

           

            According to the conclusions of the chief military advocate, the testimony of the GSS interrogators in the court of the first instance had not been entirely truthful when they denied exerting undue pressures in obtaining confessions from the appellant. Except for their contention that there was no hitting or slapping, most of the appellant's claims regarding the conduct of the investigation have been validated. In view of the above, the chief military advocate in concurrence with the A-G have accepted the appeal before them that the confessions were inadmissible, and find it incumbent upon the state to overturn the conviction regarding the transfer of combat materiel, based on these confessions. Brig. Gen. Nevo announced that he is also forgoing the argument that the conviction of conveying information to the enemy can be based on evidence other than the confessions to GSS investigators, which, he maintains, is implicit in the material before us. It is noteworthy that in view of the aforementioned stand of the general prosecution, we saw no place to examine other items of evidence at the court's initiative.

           

            Brig. Gen. Nevo informed us that instead, with the approval of the attorney general, he had reached the following agreed settlement with the appellant and his learned lawyers, the full text of which is given hereinafter, and which we have been asked to approve:

           

"Agreement

            The sides wish to inform this honourable court that they have reached the following agreement on the issue of the appeal:

           

1. The prosecution agrees to the annulment of the verdict of the Military Appeals Court, file 202/82/a and of the verdict of the special military court, file 80/3, on the issue of the appeal.

 

2. The appellant admits to the offense of exceeding his authority to the point of endangering the security of the state under Sec. 73 of the Military Jurisdiction Law, 1955. The following are the details: the appellant, while serving as a special-duties officer at Southern Lebanon Region HQ, on unknown dates in 1979 or proximate thereto, did exceed his authority and by so doing was liable to harm the security of the state or the operations of the army, according to the following facts:

            (a) As part of his mission as a special-duties officer in the Southern Lebanon Region [SLR], the appellant, together with the Christian Forces, toured the village of Shuba in Southern Lebanon on an unknown date in 1979.

            On one of the occasions when he visited the village, he was asked by an informer of the SLR (who shall herein be called "X"- his full name appears in the agreement - M. Sh.) to come to his house and meet there with a person involved in hostile terrorist activity, who was ready to provide the IDF authorities with important information. The appellant accompanied "X" to his home and there met a stranger who presented himself as being connected with the terrorists and able to provide information regarding their activity in the eastern sector of the SLR. The stranger introduced himself as "Y" (his full name appears in the agreement - M. Sh.).

            (b) In a second meeting two months later at the home of "X", "Y" told the appellant that he was a senior commander in Fatah and that their previous meeting had been photographed secretly. "Y" demanded that the appellant co-operate with him and give him information about IDF activity in the sector. In the event the appellant refused, "Y" threatened to convey the photographs in his possession to Israeli Intelligence. After an exchange of words between them, the appellant got up and left.

            (c) The appellant informed no one about these meetings.

           

3. The appellant and the prosecution will be free to present whatever arguments they see fit regarding the punishment, on the basis of these facts only. The prosecution will argue that a punishment of expulsion from the army is not commensurate with the circumstances of the matter."

 

            As the agreement indicates, we now have before us on the part of the appellant an admission of guilt, as entailed under Sec. 354(a) of the Military Jurisdiction Law, 1955, including an admission of facts which support the charge.

           

            Since this confession conflicts with the appellant's statements in the special military court and his arguments in the Military Appeals Court - when he denied any connection with "Y" and any meeting or acquaintance with him - we found fit to examine thoroughly why the appellant had changed his story. Principally, we wished to examine whether the appellant had not admitted wrongdoing because his strength had given out and he was no longer able to bear the penalty of imprisonment he was serving. We therefore heard also the statement of the appellant himself, who insisted that the facts detailed in the agreement describe the whole truth - that is, they constitute, as he says, a description of what occurred, no more and no less. The appellant explained to us that he had considered the matter and had heard the explanations of defence counsel, and his confession does not constitute submission to the pressure of prison but is, as noted, a description of what took place. After we were convinced that the appellant was acting on the basis of his own free consideration, and after we reached the conclusion that the appellant's description could be consistent with the basic facts as they were presented to the court, we decided to accept his confession, and we stated so in our decision which was given prior to hearing the arguments regarding the penalty to be meted out.

 

            We therefore decided to annul the conviction and the punishment meted out by the special military court, and instead to convict the appellant of an offence under Sec. 73 of the Military Jurisdiction Law, 1955, in accordance with the facts spelled out in the written statement of confession, above.

           

6. As we noted, implicit in the above is that the appellant's absolute denial in the first court were not truthful.

 

            In the face of this conclusion, it became clear to us from the words of the learned representative of the state that in his opinion, the General Security Service interrogators had gone beyond the bounds of the permissible with respect to the cumulative weight of their deeds, and had compounded this misdeed by giving false testimony to the special military court about the interrogation of the appellant and by denying his principal contentions regarding the methods of interrogation.

           

            Nothing can detract from the gravity of this conclusion, which points to these witnesses' disavowal of their duty to tell the truth in testifying before a legal tribunal. These actions constitute a severe blow to the credibility of a heretofore unquestioned arm of the state. The court was thereby deprived of the ability to decide in the case of the appellant on the basis of truthful data, and the standing and force of the court were harmed when it was misled by the statements of the interrogators.

           

            We find that the acts revealed in this case have been reprehensible, in that they led the court into incorrect findings and conclusions. We direct the attention of the A-G to the obligation of adopting the decisive measures necessary to uproot this phenomenon.

           

7. In this connection it should also be noted that in the special court it also emerged that the General Security Service interrogators who conducted the interrogation of the appellant, did not keep the notes and other auxiliary records which they took down in the course of the interrogation, and erased recordings of the various stages of the interrogation when in their opinion their investigation was completed. As a result, the general prosecution and the defence alike were deprived of information about the course of the interrogation as this was reflected in the notes and recordings, and this ipso facto limited their ability to question the witnesses who had taken part in the interrogation; and the appellant's ability to support, through the notes or recordings, his contentions regarding the interrogation, was also affected. The learned representative of the state informed us, that a few years after the episode, and principally in the wake of the judgment handed down by this court in the Abu-Sneineh case (appeal 343/ 82, Abu-Sneineh vs. State of Israel - not published), orders were issued requiring that records be kept and that every notation and every recording be preserved. In this connection it bears re-emphasizing that an investigation by the General Security Service which leads to legal proceedings (irrespective of the original intention of those who initiate the investigation) must be conducted in accordance with the same rules which apply to the police in its investigations; and just as the latter must meticulously keep records and preserve every notation and every recording made during the investigation, so, too, must the General Security Service.

 

            We did not see the orders issued in this matter about which we were informed by the learned representative of the state, and therefore we direct the attention of the attorney-general to the advisability of re-examining whether the existing orders meet the requirements set forth above.

           

            We are also given to understand, from the words of the learned representative of the state, that an examination by a special team is now underway regarding the methods of interrogation employed by the General Security Service. The present case illustrates the urgency and importance of this matter.

           

8. We turn now to the appropriate punishment for the deeds admitted to by the appellant. Sec. 73 of the Military Jurisdiction Law, 1955, which bears the marginal heading "Exceeding Authority to the Point of Endangering State Security," states that a soldier who exceeded his authority and thereby harmed or could have harmed the security of the state or the operations of the army or the operations of the armed forces who are acting in concert with the army, is liable to a prison term of five years; if he did the act knowingly (an argument not adduced here) he shall be liable to ten years' imprisonment.

 

            The act admitted to by the appellant bears grave aspects: it relates to activity in an area where at that time terrorist forces were also operating. When the appellant was invited to meet with a person linked to hostile terrorist activity who was ready to provide information, he was obligated to report this at least post factum. This obligation stems, in itself, from what is required in order to maintain the orderly activity of the military framework. Further, it derives from security reasons, since in a case like this, one should examine who it is that is making contact, at his initiative, with the IDF, and whether anything is known about him. It is unnecessary to emphasize that without this kind of report and examination, at least following the meeting, the appellant or anyone else who might act with him or in his stead, could fall into a trap laid by the terrorists which could endanger human life and state security.

           

            In this case the appellant erred twice in failing to report, and the second case was actually far more serious than the first, since he found, at a later stage, that the person in question was not someone who sought, ostensibly, to serve as an IDF informer, but a senior Fatah man who was acting on behalf of this organization. According to him, he photographed the first meeting and wanted to exploit this for extortion. The absence of a report and of any other action deprived the relevant authorities of information on this matter, and this was liable to create difficulties for anyone succeeding the appellant, or any other officer who might easily have found himself in similar circumstances. It also prevented information about the activity of "X", in whose home the meeting was held, and about whom it then became quite clear that he was connected with the senior Fatah commander.

 

            Finally, it bears noting that the appellant also did nothing whatsoever to stop "Y" or to neutralize him in some other way. That he made do with leaving the place is not the kind of reaction required under these circumstances from an IDF officer who encountered a senior terrorist.

           

            In contradistinction to the significance, as described, of the appellant's commissions and omissions, to his credit stands his positive military record as this is indicated, inter alia, by the written character testimonies of Brig. Gen. (res.) Binyamin Ben-Eliezer and Lt. Col. (res.) Yoram Hamizrahi and the head of the Kafr Kama local council.

           

            Essentially, we must take a lenient view of the fact that the appellant has already been imprisoned for many years (7 and a half years) after being convicted of an offence of extreme gravity, while it now emerges that his conviction, based on confessions given to GSS interrogators, was devoid of any legal basis and that the maximum penalty prescribed for the offence he has now admitted to, is far less than the prison term he has already served.

           

            In view of these considerations, we have decided to sentence the appellant to 24 months' imprisonment from the date of his detention, and to demote him to master sergeant. Since he has already served his penalty, he is to be released.

           

            We assume that the military authorities will know how to compensate the appellant, who served a longer prison term than was meted out to him in the wake of this appeal.

           

            Marginally, we express our displeasure at the fact that while this matter was still pending before us, the media carried reports which exceeded what is permitted under the Law. This absence of restraint adversely affected the atmosphere needed to do justice, and it is to be avoided.

           

This judgment shall be published in full. Given this day, 24.5.87.

 

 

EA 92/03

 

1. Shaul Mofaz
2. National Liberal Movement—Likud List for the Sixteenth Knesset

 

v.

 

3. Chairman of the Central Elections Committee for the Sixteenth Knesset
4. Central Elections Committee for the Sixteenth Knesset

 

The Supreme Court

[May 15, 2003]

Before President A. Barak, Vice-President S. Levin, Justices E. Mazza, T. Strasberg-Cohen, D. Dorner, Y. Turkel, D. Beinisch, I. Englard, E. Rivlin, A. Procaccia and E. Levi

 

Elections Appeal against the decision made by the Central Elections Committee on January 2, 2003.

 

Facts: Petitioner 1, who served as Chief of Staff of the Israeli Defense Forces, was included on the list of candidates submitted by petitioner 2 for elections to the Knesset. The Chairman of the Central Elections Committee determined that petitioner was ineligible to present his candidacy. Israeli law provided for a cooling off period—a certain amount of time had to pass from a candidate’s discharge from the army or civil service and the time he presented his candidacy. The Chairman determined that petitioner had not met the requirements of the applicable cooling-off period. Petitioners appealed this decision. They asserted that the legislation of the cooling-off period was unconstitutional and that, in any event, he had waited the relevant cooling-off period before presenting his candidacy.

 

Held: The Supreme Court held that petitioner was ineligible to present his candidacy for the Knesset. The Court held that the legislation of the cooling-off period was constitutional, both with regard to its effect of the equality of the Knesset elections, and also with regard to the manner in which the law was passed by the Knesset. Additionally, the Court rejected petitioner’s alternate method of calculating the relevant cooling-off period.

 

Basic Laws cited:

Basic Law: The Knesset, §§ 4, 6, 7, 7(8), 7(9), 7(10), 46

Basic Law: The Knesset (Amendment No. 13)

Basic Law: Human Dignity and Liberty

 

Legislation cited:

Knesset Elections Law (New Version)-1969, §§ 56(1A), 57(j), 64(a)

Permanent Service in the Israeli Defense Forces (Pensions) (New Version) Law-1985

Service in the Defense Forces—Cooling-Off Period (Legislative Amendments) Law-2001

 

Israeli Supreme Court cases cited:

[1]HCJ 3081/95 Romeo v. Scientific Council of the Israel Medical Organization IsrSC 50(2) 177

[2]CA 1842/97 Ramat Gan Municipality v. Menachamei Ramat Gan David Towers IsrSC 54(5) 15

[3]HCJ 10455/02 Amir v. Bar Association (unreported decision)

[4]HCJ 6652/96 Association for Civil Right in Israel v. Minister of Interior IsrSC 52(3) 117

[5]HCJ 7111/95 Local Government Center v. The Knesset IsrSC 50(3) 4

[6]HCJ 7157/95 Arad v. Chairman of the Knesset  IsrSC 50(1) 573

[7]EA 2/84 Neiman v. Chairman of the Central Elections Committee of the Eleventh Knesset IsrSC 39(2) 225

[8]FH 10/69 Bornowski v. Chief Rabbis of Israel IsrSC 25(1) 7

[9]HCJ 4541/94 Miller v. Minister of Defense IsrSC 49(4) 94

[10]HCJ 3434/96 Hofnung v. Chairman of the Knesset IsrSC 50(3) 57

 

Israeli books cited:

[11]2 A. Barak, Interpretation in Law—Interpretation of Legislation44 (1994)

[12]3 A. Barak, Interpretation in Law—Constitutional Interpretation 44 (1995)

 

Appeal dismissed.

 

For appellant 1—A. Klegsbeld, A. Shraga and G. Blai

For appellant 2— A. Haberman

For the respondents— R. Haimowitz

For the party requesting to intervene as respondent— A. Lorch and B. Fail

For the Attorney-General— A. Helman

 

 

 

JUDGMENT

Justice E. Mazza

 

Petitioner 1, Mr. Shaul Mofaz [hereinafter the petitioner] was formerly the Chief of Staff and was discharged from the Israel Defence Forces with the rank of major general.  He was included in the list of candidates submitted by petitioner 2 [hereinafter the Likud list] for the elections for the sixteenth Knesset.  On December 25, 2002, the Chairman of the Central Elections Committee, Justice M. Cheshin, determined that the petitioner was ineligible to submit his candidacy for the Knesset election.  This was due to the fact that at least six months— the “cooling-off” period established for an officer of his rank in section 56 (1A) of the Knesset Elections Law (New Version)-1969 [hereinafter Elections Law]—would not pass between the time at which he had ceased to serve in the military (August 11, 2002), and the time at which the elections were to be held (January 28, 2003). On January 2, 2003, the Central Elections Committee adopted the position of the Chairman of the Committee concerning the petitioner’s ineligibility.  The appeal before us was directed against this decision.  In anticipation of the appeal, the Attorney-General submitted a statement supporting the decision of the Central Elections Committee.  Attorney Amnon Lorch, a member of the Central Elections Committee, who petitioned the Chairman of the Committee regarding the petitioner’s eligibility to submit his candidacy, requested that he be added as an additional respondent.  On January 7, 2003, we heard the petitioner’s arguments, as well as the arguments of the representative of the Attorney-General and Attorney Lorch. On January 9, 2003, we were unanimous in dismissing the appeal. Our judgment stated that our reasoning would be given separately. These reasons are set out here.

 

 

Facts

 

2.   On July 9, 1998, appellant was appointed Chief of Staff of the Israeli Defense Forces.  Upon his appointment, he was promoted from the rank of general to major-general.  On July 9, 2002, Major-General Moshe Yaalon replaced appellant as Chief of Staff. Appellant took retirement leave, pursuant to the Dep’t of Human Resources Standing Orders in the Matter of “Retirement Leave and Conditions of Service—Pension Leaves for Soldiers in Permanent Service.”  Soon after taking leave, appellant accepted employment at a research institute in the United States.  He approached the head of human resources of the Dep’t of Human Resources General Staff, Colonel Miriam Zersky, on August 11, 2002 and requested an immediate discharge from the military. The head of Human Resources saw no reason to deny the request for an immediate discharge from the army.  However, she explained that, in light of the provisions of the Permanent Service in the Israeli Defense Forces (Pensions) (New Version) Law-1985, [hereinafter the Pensions Law], granting a discharge prior to the middle of the month could cause financial loss to the appellant. As such, she suggested that appellant’s discharge be considered effective retroactive from the end of July 2002.  After finding that this suggestion did not deviate from the standard practice, appellant agreed.  Appellant was discharged from the IDF on August 11, 2002. However, in the documentation regarding the discharge process, the date of discharge was recorded as July 31, 2002. 

 

On November 5, 2002, the Prime Minister announced that, pursuant to his authority, he was dissolving the fifteenth Knesset and advancing the date of the elections. Elections for the sixteenth Knesset were set to take place on January 28, 2003.  The appellant was selected to be a candidate for the list of the Likud party, which was submitted to the Central Elections Committee.  Objections were submitted to the Chairman of the Central Elections Committee as to the eligibility of the appellant to be a candidate for the elections.  A similar petition was also submitted by Amnon Lorch, a member of the Central Elections Committee on behalf of the Labor Party.  The petition requested that the Chairman of the committee determine the appellant ineligible to be a candidate. After holding a hearing, the Chairman of the Central Elections Committee determined that the appellant was ineligible to be a candidate in the elections.  After the Central Elections Committee approved the Chairman’s determination, the appellant’s name was removed from the Likud list.

 

The Normative Framework

3. Section 7 of the Basic Law: The Knesset provides that certain persons may not be candidates for the Knesset elections. For convenience, I will here cite section 7 in full, while emphasizing the provisions at the center of our discussion here:

 

7. Who Shall Not Be A Candidate

 

7. The following shall not be candidates for the Knesset:

1. The President of the State;
2. The two Chief Rabbis;
3. A judge;
4. A judge of a religious court;
5. The State Comptroller;
6. The Chief of the General Staff of the Israeli Defense Forces;
7. Rabbis and ministers of other religions, so long as they receive a salary for holding office;
8. Senior state employees and senior army officers of such grades or ranks and in such functions as shall be determined by Law;
9. Police officers and jailors of such grades or ranks and in such functions as shall be determined by Law;
10. Employees of corporations established by law, of such grades or ranks and in such functions as shall be determined by Law;

 

Unless such persons have ceased to hold the stated office or function, prior to the date for the submission of Knesset candidate lists, or, if the law prescribes an earlier date, prior to the date mentioned.

 

The latter part of section 7 determines that those holding the offices or functions listed in the section are not longer precluded from presenting their candidacy if they cease to hold the offices or functions “prior to the date for the submission of Knesset candidate lists.”  However “if the law prescribes an earlier date,” the period of preclusion will expire only if the person holding that office or function ceases to do so “prior to the date mentioned.” Thus, with regard to the time at which the preclusion period expires, the latter part of the section distinguishes between those holding offices or functions, with regard to whom the law does not prescribe a cooling-off period and those holding offices or functions, with regard to whom the law does provide a cooling-off period.  The preclusion regarding the former expires if they cease to hold that office or function before the date provided by section 57(i) of the Election Law, for the submission of the Knesset elections lists. Preclusion regarding the latter, however, expires only if they cease to hold that office or function before the date of the commencement of the cooling-off period, as provided by law. 

     

We are here dealing with a former Chief of Staff who was released from permanent service holding the rank of major-general. There is no specific provision which prescribes a special cooling-off period for a former Chief of Staff, who desires to present his candidacy for the Knesset. However, the standard cooling-off period set for officers of his rank do apply to him.  Section 56 (1A) of the Elections Law provides cooling off periods for state employees, soldiers, police officers and jailors. I will here cite the language of section 56 (1A), while highlighting the sections at the center of our discussion:

 

56 (1A) Provisions Regarding State Employees, Soldiers, Police Officers and Jailors

                           

The following shall not be candidates for the Knesset:

 

1. State employees of one of the four  top ranks;
2. State employees in  a grade lower than 3, under the top rank of each ranking, if a range of ranks comprising the said rank 3 has been fixed for their posts;
3. Military  officers of any rank whatsoever in the permanent service of the Israeli Defense Forces;
4. A police officer in the Israeli Police and a jailor in the Prison Service,

 

unless they have ceased to be State employees, military officers, police officers or jailors, as said, before the determining day.

 

For the purposes of this sub-section, “the determining day” shall be—

 

1. With regard to the head of General Security Service, the head of the Mossad—The Institute for Intelligence and Special Tasks, military officers of the rank of general  or above, police officers of the rank of commissioner or above, and the Commissioner of the Prison Service—six months before election day;
2. With regard to state employees, military officers, police officers or jailors, not listed in paragraph (1)—100 days before election day; regarding early elections, where such are announced less than 100 days prior to the time they are to be held—10 days from the day of the determination of the said time.

 

Thus, the law applies a cooling-off period to any person who has been a military officer in the permanent service.  With regard to the length of the cooling-off period, the law distinguishes between military officers of the rank of “general or above” and military officers of lower ranks. The former must leave their position six months before elections to be eligible for candidacy. With regard to the latter, the law is satisfied with a cooling-off period of 100 days or, in early elections, under the conditions provided, with an even shorter cooling-off period.  Under section 56 (1A), appellant, as one who served in the permanent service and was a “military officer of the rank of general or above,” is eligible for candidacy only if he ceases to be a military officer at least six months before elections.  It should also be emphasized that the latter part of the section, which allows for the shortening of the cooling-off period where it has been announced that early elections will be held, applies only to military officers of a rank lower than general.  Thus, it does not apply to appellant.

 

4.   It should be noted that the language of section 56 (1A) is the product of an amendment made to the Elections Law in 2001. Until this amendment, the section provided for a uniform 100-day cooling-off period for all those listed, including military officers of all ranks.  This was changed with the legislation of the Service in the Defence Forces—Cooling-Off Period (Legislative Amendments) Law-2001 [hereinafter Cooling-Off Period Law]. Section 1 of this act replaced the definition of the “determining day” in the latter part section 56 (1A).  The amended version provides that military officers of the rank of general or above, as well as police officers of the rank of commissioner or above and the Commissioner of the Prison Services, are subject to a six-month cooling-off period. It should also be noted that the latter part of section 7 of the Basic Law: The Knesset—from the section which begins with the words “unless they have ceased to hold the stated office or function”—was also added to the Basic Law in an amendment made in 2001.  See Basic Law: The Knesset (Amendment No. 33). The two legislative amendments were made within a week’s time of each other in July of 2001. The Cooling-Off Period Law was passed in Knesset on July 16, 2001, while amendment 33 of the Basic Law was passed by the Knesset on July 23, 2001.

 

Does the Appellant Have Standing to Appeal?

5.   In his response to the appeal, the Attorney-General argued that the appellant does not have standing to appeal the decision of the Central Elections Committee. This claim rests upon section 64(a) of the Elections Law.  The provisions of the section provide that where the Central Election Committee has refused to approve a candidate list, or one of the candidates included in that list, the list may appeal the refusal to the Supreme Court.  From the language of this provision, it does in fact seem that an individual candidate, whose candidacy has not been approved by the Central Elections Committee, does not have standing to appeal the decision.

 

As we have come to the conclusion that, substantively, the appeal itself should be dismissed, we can leave the question of standing undecided.  The following considerations support this approach: an appeal on behalf of the Likud—which utilized its right to appeal under section 64(a), and whose claims are identical to those of the appellant—is also before us.  It should also be noted that the Attorney-General agreed that, even if the appellant did not have standing to appeal, he had the right to petition the decision of the Elections Committee to the High Court of Justice. It also agreed that if this Court finds cause to intervene in the decision of the Elections Committee, it would be allowed to decide in the matter of the appellant’s appeal as if it were a petition in which an order nisi had been issued. Under these circumstances, I shall turn to the petition itself without resolving the question of standing.

 

The Bounds of the Conflict and the Decision of the Chairman of the Central Elections Committee

 

6.   The appellant’s position, before the Chairman of the Central Elections Committee as well as in this appeal, was that there is no legal cause to disqualify him from eligibility to be a candidate in the Knesset elections.  First, appellant claims that section 1 of the Cooling-Off Period Law, under which section 56 (1A) of the Elections Law was amended, does not meet the constitutional requirements of the Basic Law: The Knesset.  Therefore, it should be declared null and void.  According to this claim, military officers of the rank of “general or above” should only be subject to the 100-day cooling-off period, as provided by section 56 (1A) prior to its amendment. 

 

Second, even if we assume that the appellant is subject to the six month cooling-off period, as provided by the amended section 56 (1A), appellant asserts that the cooling-off period should not be calculated from August 11, 2002—the date that appellant was discharged from service.  It should rather be calculated from July 9, 2002, the date that appellant ceased to serve as Chief of Staff or, alternatively, from July 31, 2002, which the military records note as the date of the appellant’s discharge. 

 

As a supplement to this alternative claim that the cooling-off period should be calculated from July 31, 2002, appellant additionally asserts that the cooling-off period should be calculated according to the Hebrew calendar and not according to the Gregorian calendar.  This latter argument does not affect either of the other two dates in question. If calculation of the cooling-off period should begin on July 9 2002, use of either calendar would lead to the conclusion that the appellant is eligible to present his candidacy for the elections.  If the calculation begins on August 11 2002, use of either of the calendars would lead to the conclusion that the appellant is not eligible to be a candidate.  However, appellant’s alternative claim that the cooling-off period should be calculated from July 31, 2002, would only help him if the cooling-off period is calculated according to the Hebrew calendar.  Calculating the period according to the Gregorian calendar would not have helped the appellant, since only five months and twenty eight days pass between the two dates—from July 31, 2002 to January 28, 2003. However, according to the Hebrew calendar six months and three days pass between the two Hebrew dates parallel to the Gregorian dates above—beginning from the 22^nd of Av, 5762 and ending with the 25^th of Shvat, 5763.

 

7.   The Chairman of the Central Elections Committee believed that he did not have the authority to address appellant’s claim that the amendment of section 56 (1A) of the Elections Law was inconsistent with the constitutional provisions of the Basic Law: The Chairman, however, did note as an aside that he saw such claims as groundless. The Chairman based his decision on the interpretation of the current language of the provisions of section 7 of the Basic Law: The Knesset and section 56 (1A) of the Elections Law.  He examined which of the three alternative dates should constitute the “start day” that would touch off appellant’s cooling-off period. He explained why the appellant’s claims should be rejected.  In clear and strong language, he decided that the cooling-off period should being on August 11, 2002 since it is the day upon which the appellant ceased to be a military officer of the rank of “general or above.” As such, the Chairman found it unnecessary to address appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar. 

 

8.   In my opinion, all of the considerations upon which the Chairman of the Central Elections Committee based his decision are correct. However, before addressing the substance of these considerations and appellant’s objections to them, I will first explain my reasons for rejecting appellant’s constitutional claim, which was not addressed by the Chairman.  Significantly, in the proceedings before the Chairman, the appellant largely directed his energies towards the interpretive question—what is the “determining day” for the beginning of the calculation of the cooling-off period. However, in his arguments before us, he focused on the claim that the amended provision of section 56 (1A) should be declared null and void.

 

The Constitutional Matter— Validity of the Cooling-Off Period Law

 

  9.   The appellant attempted to convince us that section 1 of the Cooling-Off Period Law and the 2001 amendment to section 56 (1A) of the Elections Law do not meet the requirement of the Basic Law: The Knesset.  He based this position on four arguments.  Two of them were directed against the validity of the Cooling-Off Period Law, while the two others were directed against section 56 (1A) of the Elections Law, and the question of whether it meets the constitutional standards of the Basic Law.  I will first address the first two arguments.

 

10.   Appellant asserts that the Cooling-Off Period Law is null and void. In making this assertion, appellant points to a deficiency in the legislation of the law as well as to a lack of authority to legislate such an act. The first argument goes as follows: in extending the cooling-off period which applied to military officers of the rank of “general or above,” the legislature  violated the principle of equality, which is one of the foundations upon which elections for the Knesset are based, and which is enshrined in section 4 of the Basic Law.  Since this constitutes a “change” according to section 4 of the Basic Law, and in light of the conditions of sections 4 and 46, in order to pass the Cooling-Off Period Law, an absolute majority of Knesset members was needed in each of the three readings in which the Law was brought before the assembly.  This condition was not met.  During the second and third readings a majority of Knesset members did in fact vote in favor of the law, however, during the first reading on February 20 2001 (see Minutes of the Knesset 2001, 2791-2800), the bill was only passed by a regular majority.  Appellant asserts that this flaw in the legislative process means that the law is null and void.

 

The second argument goes as follows: the Cooling-Off Period Law is in conflict with the fundamental right to be elected, which every citizen is entitled to under section 6 of the Basic Law.  The language of section 56 (1A) of the Elections Law, prior to enactment of the Cooling-Off Period Law, limited the right of those holding the offices and functions listed in the section to present their candidacy.  With regard to some of these—including military officers in the permanent service—the right to present candidacy was conditioned upon a 100-day cooling-off period.  With the amendment of the provisions of section 56 (1A), made by the Cooling-Off Period Law, the cooling-off period applicable to military officers of the rank of general or above was extended to six months.  According to appellant, since legislation of the Cooling-Off Period Law preceded legislation of Amendment no. 33 of the Basic Law, the extension of the cooling-off period had no legal foundation in the Basic Law. Absent explicit authorization in the Basic Law itself, the legislature was not allowed to extend the cooling-off period applicable to the appellant. Amendment no. 33 to the Basic Law, which was legislated after the legislation of the Cooling-Off Period Law, does not have the power to retroactively remedy this flaw. Appellant asserted that this means that the law is null and void. 

 

11.   It is appropriate to begin by stating that, even if section 1 of the Cooling-Off Period Law is found to be flawed as the appellant suggests, the necessary conclusion would not be that it is null and void but rather that, at the time at which the law was passed in the Knesset, it was invalid. See 2 A. Barak, Interpretation in Law—Interpretation of Legislation 44 (1994). Appellant’s claim that the section is null and void rests upon the doctrine of absolute nullification, which provides that deviation from authority leads to “automatic” nullification of the legislation or administrative decision.  However, for over a decade, the doctrine of relative nullification has become more and more established in our caselaw, while earlier approaches—such as the approach of absolute nullification—are gradually fading. The doctrine of relative nullification has generally been applied in the context of the review of administrative decisions.  See, e.g., HCJ 3081/95 Romeo v. Scientific Council of the Israel Medical Organization [1]; CA 1842/97 Ramat Gan Municipality v. Menachamei Ramat Gan David Towers [2]; HCJ 10455/02 Amir v. Bar Association (unreported decision) [3].  However, it seems that the model of relative nullification is also appropriate—even perhaps preferable—for our review of legislation. See 3 A. Barak, Interpretation in Law—Constitutional Interpretation 724 (1994). See also HCJ 6652/96 Association for Civil Right in Israel v. Minister of Interior [4]. There is considerable significance to the application of the doctrine of relative nullification here. 

 

  12. In examining the appellant’s first two arguments, I will presume that the process through which the Cooling-Off Period Law was passed was in fact flawed in the two ways asserted—first, that in its first reading, the law was passed by a regular majority despite the fact that an absolute majority was required in all three readings and, second, that at the time it was passed, the Basic Law did not include any provision which authorized legislation of the Cooling-Off Period Law.  It should be noted that consideration of the second flaw does not raise any complex issues, whereas addressing the question of the first flaw would require dealing with the problematic matter of HCJ 7111/95 Local Government Center v. The Knesset [5]. The issue in Local Government was whether section 4 of the Basic Law, which provides that the elections be “equal,” should be interpreted as requiring equality between individual candidates or only between candidate lists. Of course, extension of the cooling-off period violated, at most, any requirement of equality between candidates, and not any requirement of equality between candidate lists. As such, if section 4 of the Basic Law only requires equality between the candidate lists, then the “absolute majority” requirements of sections 4 and 46 would not apply to the Cooling-Off Period Law. 

 

However, as stated, I choose to presume that the appellant is correct with regard to both flaws. In light of this presumption, I will excuse myself from discussing what kind of equality is required by the Basic Law.  I have chosen this path for practical reasons: Amendment no. 33 of the Basic Law: The Knesset was only intended to remedy the second flaw—the absence of a provision in the Basic Law which would authorize the Knesset to set a cooling-off period. However, the enactment of Amendment no. 33 of the Basic Law, which in itself was passed by an absolute majority of members of the Knesset, would retroactively remedy the first flaw—the question of equality—as well.

 

13. Appellant asserted that Amendment no. 33 of the Basic Law: The Knesset does not have the power to retroactively remedy the flaw in the legislation of the Cooling-Off Period Law. The Attorney-General responded that amendment of the Basic Law remedied the flaw in the legislation of the Cooling-Off Period Law. Without generally ruling that an amendment of a Basic Law has the power to retroactively remedy the fact that a statute conflicted with a Basic Law prior to the amendment of the latter, it seems to me that in the special circumstances here, Amendment no. 33 of the Basic Law: The Knesset does have the power to remedy the flaws in the legislation of the Cooling-Off Period Law.

 

As noted, Amendment no. 33 of the Basic Law was passed a week of the Cooling-Off Period Law. Awareness of the need for the amendment to the Basic Law, as a condition for the validity of the Cooling-Off Period Law, already arose in the hearings of the Constitution, Law & Justice Committee of the Knesset on March 27, 2001, at which time the Committee approved the Cooling-Off Period Law for its second and thirds readings.  This awareness led the Constitution, Law & Justice Committee to publicize the bill for the amendment of the Basic Law.  See the proposed Basic Law: The Knesset (Amendment 45) (Limitations on Knesset Candidacy for Persons Holding Office), Bill 3014-2001, from June 18, 2001.  In the notes to the bill, it was explicitly noted that the addition of the latter part of section 7 of the Basic Law, as  amended, was intended to be “authorize legislation regarding cooling-off periods in a regular law.” 

 

Examination of the legislative history of Amendment no. 33 does not leave any doubt as to the object of the proposed amendment, which was brought before the Knesset together with the proposed Cooling-Off Period Law with the intention of discussing both bills and approving them simultaneously.  I will briefly recount the development of the situation:  On July 3, 2001, the Knesset assembly held a joint hearing with regard to the proposed amendment of the Basic Law and the proposed Cooling-Off Period Law. In the discussion, the Chairman of the Constitution, Law & Justice Committee, MK Ophir Paz-Pines, explained that the amendment of the Basic Law was intended to constitutionally validate the Cooling-Off Period Law (Minutes of the Knesset 2001, 5980-5986).  The two bills were once again placed on the table of the Knesset assembly on July 16, 2001.  Once again MK Paz-Pines explained the need to amend the Basic Law in order that the Cooling-Off Period Law be constitutionally valid (Minutes of the Knesset 2001, 6519-6521).  In that same meeting, close to the time at which the Cooling-Off Period Law passed its second and third readings, the Knesset approved, be a majority of its members, Amendment no. 33 of the Basic Law, in its first reading.  However, voting with regard to the second and third readings was postponed for a week.  It is significant to add that when Amendment no. 33 of the Basic Law was brought to a vote of its second and third readings, on July 23, 2001, MK Paz-Pines yet again mentioned that the amendment constituted an integral part of the legislative process of the Cooling-Off Period Law (Minutes of the Knesset 2001, 684-6865).

 

14. Amendment no. 33 of the Basic Law: The Knesset, which was passed by a majority of the members of Knesset in all of its three readings, added the following to the end of section 7 of the Basic Law:

 

Unless they have ceased to hold the stated office or function, prior to the date for the submission of Knesset candidate lists, or, if the law prescribes an earlier date, prior to the date mentioned.

 

This amendment authorized the Knesset to establish, in a regular law, cooling-off periods for those holding the offices and functions listed in section 7.  Examination of the commentaries to the bills and the legislative histories of both Amendment no. 33 and the Cooling-Off Period Law make it clear that this was the purpose, or at least one of the purposes, of Amendment no. 33.  There was indeed a defect in the manner in which the legislative process was managed. Amendment no. 33 should have been enacted prior to, or at the same time as, the Cooling-Off Period Law. The Knesset, however, passed the Cooling-Off Period Law one week before enacting Amendment no. 33. Under these circumstances, I cannot accept appellant’s claim that Amendment no. 33 could not remedy the flaws in the legislative process of the Cooling-Off Period Law.  I am not of the opinion that the flaws in enacting the Cooling-Off Period Law could only have been remedied by bringing the law to a new vote before the Knesset, subsequent to the passing of Amendment no. 33.  As I have already stated, the flaws in the legislation of the Cooling-Off Period Law, did not absolutely nullify its enactment. All that may be concluded from these flaws is that at the time at which the Knesset passed the law, it was not valid.  As stated, I do not wish to state, as a general rule, that a Basic Law has the power to retroactively remedy a constitutional flaw in the enactment of legislation. Nevertheless, in the special circumstances here, I find it appropriate to hold that Amendment no. 33 of the Basic Law did in fact remedy the flaws in the legislation of the Cooling-Off Period Law.

 

It seems to me that this decision is the proper interpretation of the law. The doctrine of relative nullification allows the Court to reach a proportional and balanced decision with regard to the validity of section 1 of the Cooling-Off Period Law, and I see no reason to doubt its application to the matter at hand.  Although at the time it was passed the section was in conflict with section 6 of the Basic Law: The Knesset—and perhaps also with section 4 of the Basic Law—after the amendment of the Basic Law, the flaw in the legislation of the Cooling-Off Period Law was remedied. We need not hold that the amendment remedied the flaw retroactively, that is to say, from the day the Cooling-Off Period Law was passed.  It is sufficient to hold that the flaw was remedied from the time of the enactment Amendment no. 33 of the Basic Law.

 

Position of the Cooling-Off Period Law in the Constitutional Scheme of the Basic Law: The Knesset

 

 15. As noted, the Cooling-Off Period Law amended section 56 (1A) of the Elections Law.  Appellant asserted that even if the Cooling-Off Period Law is presumed to be valid, it does not meet the constitutional standards of the Basic Law: the Knesset. For the following reasons, appellant claims that the amendment is not valid. First, it discriminates against military officers of the rank of “general or above,” in comparison to the other office holders listed in section 7 of the Basic Law, such as the President, the Chief Rabbis, and judges, who are not subject to any cooling-off period. Furthermore, it also discriminates them in comparison to persons in positions similar to theirs, such as military officers of the rank of brigadier general and below, who are only subject to a 100 day cooling-off period. Second, the law denies them the right to the shortening of the cooling-off period upon the announcement of early elections, which all military officers in permanent service were entitled to prior to the amendment of section 56 (1A). After the amendment, however, this right is only granted to military officers who are subject to a 100 day cooing period. As such, senior officers such as the appellant lost the right to choose whether to retire from their service immediately and present their candidacy for early elections, which they were entitled to do under section 56 (1A) prior to its amendment.  Appellant asserts that depriving them of their right to choose is not only a limitation of the right to be elected, but also an absolute denial of that right. As such, appellant requests was that we apply the “choice doctrine,” which the Court discussed in HCJ 7157/95 Arad v. Chairman of the Knesset [6].

 

16.  These two arguments should be rejected. No one contests the fact that “the right to be elected is a fundamental political right, in which the ideas of equality, freedom of expression and freedom of assembly are manifest, and that this right is one of the significant symbols of a democratic society.” EA 2/84 Neiman v. Chairman of the Central Elections Committee of the Eleventh Knesset, [7] at 264 (Shamgar, P.).  It is, of course, important that every citizen who wishes to run for election be given the opportunity to realize this right.  However, against this consideration stands the need to guarantee the independence of the civil service. The provisions of the Basic Law: The Knesset and the Elections Law, which place certain limitations on the right to run for election, are intended to guarantee that independence. My colleague, President Barak, has addressed this issue in Arad,  [6] at 587. 

:

The realization of these rights, to vote and be voted for, lies at the foundation of the political structure of the State of Israel. However, the Basic Law: The Knesset sees the opposing consideration as primary, in order to ensure the apolitical nature of the civil service.  Indeed, active involvement in the political struggle as a candidate for the Knesset is perceived by the Basic Law as a violation of the apolitical nature of the civil service, so much so that in the eyes of the Basic Law, a choice was necessary between continuing in the civil service or submitting one’s candidacy for the Knesset. According to this choice, the “purity of the civil service” is a superior consideration. It seems that at the base of this preference stands the recognition that the key to the realization of the right to be elected is in the hands of the civil servant. He usually has the power to resign from his position in the civil service, thus paving the way for the realization of the right to be elected.

 

We see that it is essential to preserve the independence of the civil service. This requires the restriction of the right of those holding office in the civil service to run for election. Section 56 (1A) of the Elections Law distinguishes between those holding some positions in the civil service, who may not present their candidacy only so long as they are in office, and those holding other positions, to whom the limitations on their right to run continues for a period of time after they have left office. Among the latter, who are subject to a cooling-off period, the legislature was especially strict regarding those who have held the highest positions in the defence forces: the head of the General Security Service, the head of the Mossad, military officers in permanent service of the rank of general and above, police officers of the rank of commissioner and above, and the Commissioner of the Prison Service. Only this group of senior officers is subject to a six month cooling-off period. Only they are not entitled to the shortening of the cooling-off period in the event of early elections. Does this stringency with regard to these senior positions constitute a violation of equality?  I am of the opinion that the answer to this question is in the negative. 

 

The legal standard is that relevant differences between parties may justify distinguishing between them.  Such distinctions are not in conflict with the requirement of essential equality between those parties.  As is known, this is the difference between unacceptable discrimination and permissible distinctions. See FH 10/69 Bornowski v. Chief Rabbis of Israel, [8] 35. This is true so long as the nature and degree of the distinction is indeed necessary and justified, under the circumstances, for the achievement of the purpose for which the distinction is being made.  See HCJ 4541/94 Miller v. Minister of Defense, [9] at 100.  The application of this rule to the case at hand leads to the conclusion that the strict cooling-off regulation does not violate the principle of equality.

 

17.  However, even if I presume that the regulation does violate the principle of equality, I am still of the opinion that there is no basis to claim that the violation exceeds the limits of the Basic Law: The Knesset. In this situation, we have resort to the three-part test of section 8 of the Basic Law: Human Dignity and Liberty, which looks to ensure that the law in question accords with the values of the State of Israel, that it has a proper purpose, and that it is proportional. Of course, the Basic Law: The Knesset does not include a limitations clause analogous to section 8 of the Basic Law: Human Dignity and Liberty. The question has been raised whether, in reviewing legislation which allegedly conflicts with the principle of equality in the Basic Law: The Knesset, the Court may apply the tests of the limitations clause of section 8 of the Basic Law: Human Dignity and Liberty. See HCJ 3434/96 Hofnung v. Chairman of the Knesset, [10] at 69-70 (Zamir, J.).  I myself see no reason to refrain from doing so. The three-part test of the limitations clause is now seen as the proper judicial tool for testing the constitutionality of a law. As it has become one of the foundational principles of our constitutional system, the Court may implement it even in the absence of an explicit limitations clause in the relevant Basic Law. 

 

The establishment of strict cooling-off regulations for the highest level of officers and commanders in the armed forces is in harmony with the democratic values of the state, and it does not conflict with its Jewish values. The purpose of the regulations is also proper. In as much as the preservation of the independence of the civil service, including the armed forces, is important, preservation of the independence of the senior command in the armed forces and security services is especially and particularly important.  When a person runs for election, where only a few months prior he wore an army uniform and held the rank of major-general or general, this raises the suspicion that recent decisions which he made in the military were influenced by his political views, which became public upon submission of his candidacy for political office. Moreover, when a person who recently held authority in one of the state’s armed forces presents his candidacy for the Knesset, this can raise suspicions of improper conduct. Subjecting senior officers and commanders to a cooling-off period, which is longer than that period imposed upon officers of a lower rank, was intended to assuage these suspicions. As such, the purpose of the law is a proper one. Moreover, in my opinion, there is no basis for the claim that the period prescribed does not meet the requirement of proportionality. The six month cooling-off period is the time that the legislature believed to be necessary for the achievement of this purpose.

 

It is indeed true that an officer of the rank of the appellant does not have a “right to choose,” such as that granted to military officers of the rank of brigadier general or lower, or to those of a parallel rank in the other security services by the latter part of section 56 (1A). This latter category of officers may choose to retire from their service upon the announcement of early elections and be eligible to present their candidacy. However, the preservation of the independence of the armed forces demands and justifies stringency with regard to persons of senior rank, who are well-known to the public at large. This is in contrast to persons of junior rank, most of whom are unknown to the general public. Depriving these higher ranks of their right to choose, as well as imposing upon them an obligation to meet a longer cooling-off period, is a part of the restrictions demanded of their high rank and the senior positions which they filled during their service.

 

This ruling applies to the appellant.  With this in mind, and not only due to the differences between the circumstances of the two cases, the “choice doctrine,” which the Court discussed in Arad [6] is of no aid to the appellant.

 

The Interpretive Perspective

 

  18.   The main question before the Chairman of the Central Elections Committee was when the appellant’s cooling-off period began, as defined by section 56 (1A) of the Elections Law. Those who requested the disqualification of the appellant argued that this period should be calculated from August 11, 2001, since on that day the appellant was discharged from his service in the army, and he ceased to be a military officer in the permanent service of the rank of “general or above.” The appellant argued that the calculation should begin on July 9, 2002, or, alternatively, on July 31, 2002.  The first of these two is the date upon which the appellant ceased to hold the position of Chief of Staff. The second is the date which, in the army’s official records, is noted as the date of appellant’s discharge from service. As stated, the Chairman of the Central Elections Committee rejected appellant’s arguments and determined that appellant’s cooling-off period should be calculated from August 11, 2002. In light of this conclusion, he saw no reason to make a decision with regard to appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar.

 

In the appeal before us, the appellant repeated his claims regarding the calculation of the cooling-off period.  During oral arguments, the Attorney-General supported the evaluation and reasoning of the Chairman of the Elections Committee. As I have noted, I find the reasons given by the Chairman of the Elections Committee for his decision to be acceptable.

 

19.  Appellant’s central argument was that the cooling-off period should be calculated from the day he ceased to hold the position of Chief of Staff.  He argued that the provisions of section 56 (1A) of the Elections Law should not be interpreted literally.  Rather, they should be interpreted according to their purpose, in other words, according to the rationale for the establishment of the cooling-off period.  He asserted that the impetus for subjecting a military officer of the rank of general or above to a six month cooling-off period does not stem from his high military rank per se, but rather from the senior position which he held during his service. He argues that this interpretation emerges from section 7 of the Basic Law: The Knesset, under which the restrictions placed upon those listed in the section expire if “they have ceased to hold the stated office or function, prior to the date.”  Thus, the restrictions exist so long as the person holds his office or function. If he is subject to a cooling-off period, it would be proper to calculate the cooling-off period from the day he ceased to hold his office or function. Therefore, when the appellant ceased to hold the position of Chief of Staff, took retirement leave, and no longer filled any military position, the restrictions upon his candidacy ended and his cooling-off period began.

 

I cannot entertain this claim.  Section 7 of the Basic Law lists those officers who “shall not be candidates for the Knesset.” Among those who are restricted from presenting candidacy are, as provided by sub-section 7(8), “senior state employees and senior army officers of such grades or ranks and in such functions as shall be determined by Law.”  Similar provisions are included in the Basic Law with regard to police officers and jailors, in sub-section 7(9), and with regard to employees of corporations established by law, in sub-section 7(1).  With regard to each of these, the Basic Law authorized the legislature to deprive those involved of their right to be elected, whether due to their rank or due to their function.  The legislature was also granted the authority to determine who would be subject to a cooling-off period. The legislature conditioned the preclusion of most of those listed in sections 7(8) and 7(9) of the Basic Law upon the officers’ rank, not upon the position they filled.  Thus, for example, the Elections Law does not state that the limitations on the right to be elected apply to the Chief of Staff of the Israeli Defense Forces or to the Inspector General of the Israeli Police. The limitations apply to military and police officers of the two highest ranks—“general or above” and “commissioner or above.”  In this context, we note that another proposed bill, which served as the basis for the legislation of the Cooling-Off Period Law and the amendment of section 56 (1A), it was suggested that senior officers should be subject to a one year cooling-off period, which was to begin when active duty ended.  The notes accompanying the bill clarified that “this year will include retirement leave, during which those officers do not actively serve, although they are still officially a part of the body in which they served.” See Proposed Knesset and Prime Minister Elections (Amendment) (Cooling-Off Period for Senior Officers) Law-2002, Bill 2969, 2001, 404.  This bill, however, was not passed.  The Cooling-Off Period Law chose a different balance. On the one hand, it limited the cooling-off period to six months while, on the other hand, it provided that the cooling-off period would be calculated from the date the officer is discharged from permanent service.

 

Thus, it is clear from latter part of section 56 (1A) of the Elections Law that the restrictions on officers’ candidacy continue to apply “unless they have ceased to be … military officers [in permanent service] before the determining day.” This is the date upon which the calculation of the cooling-off period begins.  In this, the legislature showed its intention, that it is not enough that a military officer cease to hold the position he held in the army in order to mark the beginning of the cooling-off period. Rather, the “determining day” is the day upon which the officer is discharged from permanent service. The law is clear; its language and intentions are clear, and they should be applied accordingly.

 

Moreover, I am of the opinion that the legislature’s directive, according to which the cooling-off period for officers should be calculated from the date of their discharge from the army, and not from the date upon which they cease to hold their last active position, is in harmony with the rationale of the cooling-off period.  An officer on leave is still an officer in the permanent service in all respects—not only from a formal perspective, but also in light of the essential duties and prohibitions imposed upon him and from the perspective of the public. Of course, on the authority of military orders, he may be permitted to carry out certain acts during his leave as part of his preparation for civilian life. This, however, does not affect his status as an officer in the permanent service.

 

20.  Appellant’s alternative claim was that if we wish to interpret the provisions of section 56 (1A) of the Elections Law literally, the date which should be considered the “determining day” for the beginning of the cooling-off period is July 31, 2002—which the army’s official records note as the date of appellant’s discharge. 

 

This claim should also be rejected. All agree that appellant was actually discharged from service on August 8, 2002.  The fact that the head of Human Resources—for reasons concerning the provisions of the Pension Law and with the intention of preventing the appellant from incurring financial losses—recorded in the army’s records that appellant was discharged on a different date does not change the situation.  The date which begins the cooling-off period, as was correctly determined by the Chairman of the Central Elections Committee, is August 11, 2002.  Only on that date did the appellant cease to be a military officer of the rank of major-general in the permanent service.  This conclusion makes it unnecessary to address the appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar. 

 

21.  For these reasons, at the time of the decision, I supported the dismissal of this appeal.

 

President A. Barak

 

I agree.

 

Vice President S. Levin

       

I agree.  I am of the opinion that, as a matter of interpretation, Amendment no. 33 of the Basic Law: The Knesset remedies the presumed flaws in the enactment of the Cooling-Off Period Law. This makes resort to the doctrine of relative nullification unnecessary.

 

Justice D. Dorner

 

I agree with the judgment and reasoning of my colleague, Justice Eliyahu Mazza.

 

Justice Y. Turkel

 

I agree.

 

Justice D. Beinisch

 

I agree.

 

Justice I. Englard

 

I agree.

 

Justice E. Rivlin

 

I agree.

 

Justice A. Procaccia

 

I agree with the judgment and reasoning of my colleague, Justice Eliyahu Mazza.

.

Justice E. Levi

 

I agree.

 

Justice A. Grunis

 

I agree.

 

Justice T. Strasberg-Cohen

 

As my colleague, Justice Mazza, I fully accept the reasoning of the Chairman of the Elections Committee, which brought him to the conclusion that the appellant is ineligible to present his candidacy. This is sufficient to dismiss the appeal of the appellant.  I shall add that the flaws in the enactment of section 1 of the Cooling-Off Period Law—if they are indeed flaws—were remedied by Amendment no. 33 of the Basic Law: The Knesset. In any case, under the circumstances, the law should not be absolutely nullified.

 

Appeal dismissed, as per the opinion of Justice E. Mazza.

15 May 2003

 

 

 

 

 

 

 

 

 

 

 

 

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

15 Heshvan 5756.

8 November 1995.

 

HCJ 366/03

Commitment to Peace and Social Justice Society and others

v

1.       Minister of Finance

2.       National Insurance Institute

HCJ 888/03

Bilhah Rubinova and others

v

1.       Minister of Finance

2.       National Insurance Institute

 

 

The Supreme Court sitting as the High Court of Justice

[12 December 2005]

Before President A. Barak, Vice-President M. Cheshin
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis

 

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

 

Facts: The government decided to reduce the amount of income supplement benefit paid to individuals and families, and to cancel several subsidies given to persons receiving income supplement benefit. The reduction in the amount of income supplement benefit and the cancellation of the subsidies were incorporated into the Income Supplement Law by means of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002.

The petitioners attacked the reduction in the benefit and the cancellation of the subsidies, on the ground that they violated the human right to live with dignity included in the right to dignity in the Basic Law: Human Dignity and Liberty. The petitioners claimed that the reduced amount of the benefit did not allow its recipients to live with dignity, since it fell below the minimum required to allow the recipient to pay for his subsistence requirements.

 

Held: (Majority opinion — President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis) The petitioners did not prove a proper factual basis for their claim that the reduction in the income supplement benefit violated their human right to live with dignity. Therefore the petitions should be denied.

(Minority opinion — Justice Levy) The petitioners succeeded in discharging the initial burden of proof showing that their right to live with dignity had been violated. Therefore the burden passed to the state to show that the violation was constitutional. The respondents failed in this regard, because it was clear (even from the respondents’ own submissions) that they had not taken into account the human right of the recipients of income supplement benefit to live with dignity when making the changes to the Income Supplement Law. Consequently, the reduction in the amount of the benefit and the cancellation of the subsidies should be declared void.

 

Petition denied, by majority opinion (President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis), Justice Levy dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 11.

Broadcasting Authority (Fees, Exemptions, Fines and Linkage) Regulations, 5734-1974, s. 5(a)(8).

Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002, s. 10.

Income Supplement Law, 5741-1980, ss 2, 2(a), 2(a)(1), 2(a)(2), 2(a)(3), 2(a)(7), 2(a)(8), 2(d), 2(e), 3A, 5, 5(e)(3), 24, 30A, schedules 1, 2, 4.

Minimum Wage Law, 5747-1987.

National Insurance Law [Consolidated Version], 5755-1995, s. 378.

State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002, ss. 17(2)(a)(1), 17(2)(c), 17(3)(a), 17(11), 17(13).

State Economy Arrangements (Reduction in Municipal Property Tax) Regulations, 5753-1993, r. 2(7).

Supervision of the Prices of Commodities and Services (Fares for Travel on Bus Lines) Order, 5763-2003, s. 9.

 

Israeli Supreme Court cases cited:

[1]  HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[2]  HCJ 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[3]  HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

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

[5]  HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[6]  HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[7]  HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[8]  CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[9]  HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[10]  HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54(2) 164.

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

[12]  HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[13]  HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[14]  HCJ 161/94 Itri v. State of Israel (unreported).

[15]  CA 3295/94 Parminger v. Mor [1996] IsrSC 50(5) 111.

[16]  LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[17]  CA 3553/00 Aloni v. Zend Tal Feed Mills Ltd [2003] IsrSC 57(3) 577.

[18]  LCA 5368/01 Yehuda v. Teshuva [2004] IsrSC 58(1) 214.

[19]  CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[20]  HCJ 3512/04 Shezifi v. National Labour Court (unreported).

[21]  HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2005] IsrSC 59(3) 322.

[22]  LCA 3297/90 Revivo v. Bank HaPoalim (unreported).

[23]  HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673.

[24]  HCJ 1384/04 Betzedek Society v. Minister of Interior (unreported).

[25]  HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

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

[27]  HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[28]  HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

[29]  HCJ 3106/04 Association for Civil Rights in Israel v. Knesset (unreported).

[30]  HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[31]  CA 1165/01 A v. Attorney-General [2003] IsrSC 57(1) 69.

[32]  HCJ 6126/94 Szenes v. Broadcasting Authority [1999] IsrSC 53(3) 817; [1998-9] IsrLR 339.

[33]  HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[34]  LCA 7504/95 Yassin v. Parties Registrar [1996] IsrSC 50(2) 45.

[35]  HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

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

[37]  HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[38]  HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

[39]  HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 529.

[40]  CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

[41]  HCJ 5503/94 Segal v. Knesset Speaker [1997] IsrSC 51(4) 529.

 

For the petitioners in HCJ 366/03 — A. Feldman, A. Benish.

For the petitioners in HCJ 888/03 — S. Abraham  Weiss, D. Yakir.

For the respondents — O. Mandel, I. Altschuler.

 

 

JUDGMENT

 

 

President A. Barak

Is a reduction in the amount of income supplement benefits, which was made in the legislation of the Knesset, lawful? This is the main question brought before us in these petitions.

The petitioners

1.    The first petitioner in HCJ 888/03 is Mrs Bilhah Rubinova, an Israeli citizen and resident born in 1967, a mother of two minor children, who lives in Beer-Sheba. She is separated from her husband and does not work. According to her affidavit of January 2003, her monthly income amounts to an income supplement benefit in a sum of NIS 2,744, and in addition a child allowance in a sum of NIS 290. She also receives assistance from the Ministry of Housing in the form of a rent subsidy in a sum of 200 dollars a month. According to the same affidavit, her monthly expenses for her subsistence and the subsistence of her children amount to approximately NIS 3,500, which is more than her income. The second petitioner in HCJ 888/03 is Mr Yosef Pedalon, an Israeli citizen and resident born in 1950. According to his affidavit of January 2003, since his business failed and he separated from his wife, he has not succeeded in finding alternative work, inter alia because of his age. He does not have an apartment and lives with friends. At the Enforcement Office he has many debts to his name, and he is liable to pay maintenance to his minor son. His only income is an income supplement benefit in a sum of NIS 1,587. The third and fourth petitioners in HCJ 888/03 are societies that seek to advance human rights and eliminate poverty. The petitioners in HCJ 366/03 are a society and eight academics and activists who are concerned with social and welfare issues. They all argue that the amendment made to the Income Supplement Law, 5741-1980 (hereafter — the Income Supplement Law) is void. Let us now turn to consider this law.

The legislation under scrutiny

2.    The State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law) was passed by the Knesset on 17 December 2002. It provided that it would come into effect on 1 January 2003. Among the arrangements in the law are a series of amendments to the Income Supplement Law, which restricted the scope of the benefits granted by it and changed additional characteristics in the structure of the benefits granted by virtue of the Income Supplement Law. The two petitions before us challenge the constitutionality of some of the amendments:

a.     The amendment to s. 5 of the Income Supplement Law, which is provided in s. 17(3)(a) of the Arrangements Law.

b.     The addition of s. 30A to the Income Supplement Law, which is provided in s. 17(11) of the Arrangements Law.

c.     The addition of column B in the second schedule and the addition of the fourth schedule of the Income Supplement Law, which were introduced by s. 17(13) of the Arrangements Law.

3.    These amendments only concern persons entitled to income supplement who are under the age of 55. The entitlement of persons over the age of 55 was not changed by the Arrangements Law. The following is the significance of the amendments (for persons under the age of 55):

a.     The increased benefit for new recipients was cancelled. Before the amendment the law stipulated several groups, who received an income supplement benefit at a higher rate than the ordinary benefit. As a result of the amendment, the increase was cancelled, and all the new recipients of income supplement will from now receive the ordinary amount only. Before the amendment, persons over the age of 46, single-parent families and new immigrants who had exhausted their entitlement to the absorption basket were entitled to an increased benefit.

b.     The increased benefit for existing recipients was reduced. Whoever received an increased benefit prior to the amendment will continue to receive a benefit that is higher than the ordinary benefit, but less than the increased benefit that they received previously. Their entitlement to the (reduced) increased benefit will cease if they stop receiving income supplement for a period that exceeds six months.

c.     The amount of the ordinary benefit for all recipients (with the exception of a recipient who is an individual) was reduced. The amount of the ordinary benefit was reduced proportionately, so that the lower the amount of the original benefit, the smaller the reduction made to it.

4.    The petitioners submitted for our inspection a document that was prepared by the Research and Planning Administration at the National Insurance Institute before the Arrangements Law was passed, and this analyzes the effects of the amendments (‘The 2003 Arrangements Law: the Main Government Decisions concerning the National Insurance Institute and their Ramifications on Recipients of Benefits and the Activity of the Institute’ (October 2002) (petitioners’ exhibit no. 8 in HCJ 366/03, petitioners’ exhibit no. 2 in HCJ 888/03; hereafter — the National Insurance document)). The conclusions of the document are consistent with the figures that appear in the responses of the state with regard to the amendments made in practice. In table no. 1, which is attached to the document, all the reductions made to the income supplement benefits within the framework of the aforesaid amendments are summarized. The following are the figures:

Family composition

The benefit before the amendment

The benefit after the amendment

The difference

As a percentage of the average salary

In NIS

As a percentage of the average salary

In NIS

As a percentage

In NIS

Ordinary amount

Single person

20%

1,393

20%

1,393

0

0

Couple

30%

2,089

27.5%

1,915

8.3%-

174-

Couple with child

36%

2,507

30%

2,089

16.7%-

418-

Couple with two children

42%

2,925

33.5%

2,333

20.2%-

592-

Increased amount (for existing recipients)

Single person

25%

1,741

22.5%

1,567

10%-

174-

Single parent with child

42.5% less a benefit point

2,789

33.5%

2,333

16.4%-

456-

Single parent with two children

52.5% less a benefit point

3,485

39%

2,716

22.1%-

769-

Couple

37.5%

2,612

30%

2,089

20%-

523-

Couple with child

43.5%

3,029

33.5%

2,333

23%-

696-

Couple with two children

49.5%

3,447

39%

2,716

21.2%-

731-

These figures do not take into account a temporary provision that reduced the income supplement benefits by an additional 4% in the years 2002-2006 (s. 10 of the Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002; see HCJ 5578/02 Manor v. Minister of Finance [1]). These show that the Arrangements Law led to a significant reduction in most types of benefits paid as income supplement to entitled persons who are under the age of 55. According to the National Insurance document, the average reduction in these benefits amounts to approximately NIS 670, which is a reduction of an average of 31% in the amount of the benefits paid to those groups. Approximately 100,000 families of the approximately 150,000 families entitled to income supplements are affected by the amendments.

5.    In addition to these amendments, s. 2(a) of the Income Supplement Law was amended (in s. 17(2)(a)(1) of the Amendments Law), so that the minimum entitlement age for income supplement was raised from 20 to 25 years. At the same time, exceptions were made for persons under the age of 25 years (the addition of s. 2(d) and as provided in the first schedule to the Income Supplement Law; these amendments were made in ss. 17(2)(c) and 17(13) of the Arrangements Law). In addition, the Minister of Welfare, the Minister of Justice and the Minister of Finance were authorized (subject to various conditions) to provide, in an order, additional categories of entitled persons who have reached the age of 20 (the addition of s. 2(e) of the Income Supplement Law, which was introduced by s. 17(2)(c) of the Arrangements Law). The petitioners in HCJ 366/03 ask us to suspend the validity of these provisions, which deny entitlement to income supplement for persons who have not yet reached the age of 25, until the exceptions are provided in an order as aforesaid.

6.    In a combined measure, the Government of Israel decided (in decision no. 2331 of 30 July 2002) to cancel certain concessions and exemptions, which were given to recipients of income supplement within the framework of the various actions of the government. The cancellation of the benefits that are set out in the following subordinate legislation was applied only to new recipients of income supplement:

a.     Regulation 5(a)(8) of the Broadcasting Authority (Fees, Exemptions, Fines and Linkage) Regulations, 5734-1974, which grants an exemption from the television licence fee to recipients of income supplement (para. 7 of decision 2331);

b.     Regulation 2(7) of the State Economy Arrangements (Reduction in Municipal Property Tax) Regulations, 5753-1993, which authorizes local authorities to grant a concession of up to 70% of the liability for municipal property tax (arnona) to recipients of income supplement (para. 9 of decision 2331);

c.     Section 9 of the Supervision of the Prices of Commodities and Services (Fares for Travel on Bus Lines) Order, 5763-2003, which entitled recipients of income supplement to a reduction when travelling on public transport (para. 10 of decision 2331).

According to the government’s decision, the ministers concerned amendment the aforesaid provisions, and the aforesaid benefits are no longer given to recipients of income supplement merely because of their status as such. The petitioners in HCJ 888/03 ask us to order the cancellation of paras. 7, 9 and 10 of the government decision no. 2331, and to reinstate the entitlement of recipients of income supplement to the benefits that have been taken away from them.

The proceeding

7.    The two petitions before us were filed in January 2003, shortly before the commencement of the amendments under scrutiny. First, the petitioners were required (on 21 May 2003) to complete their petition and to attach to it an opinion on the injury to dignity arising from the aforesaid amendments. On 5 January 2004, an order nisi was made (by Justices D. Dorner, E. Hayut and S. Joubran), which ordered the respondents to show cause ‘why they should not determine a standard for human subsistence with dignity as required by the Basic Law: Human Dignity and Liberty.’ After an affidavit in reply was filed, the hearing of the petitions was reinstated (before President A. Barak, Vice-President E. Mazza and Justice M. Cheshin), and with the consent of the parties an amended order nisi was issued (on 16 March 2004), which related only to the validity of the various pieces of legislation, as described above. When an additional affidavit in reply was filed by the respondents, it was decided (on 14 September 2004) to expand the panel that would hear the petitions. The expanded panel heard oral argument once again (on 30 November 2004). Now the time has come to make a decision.

The arguments of the parties

8.    The petitioners’ main argument is that the amendment reduces the amount of the income supplement benefits to below the very lowest level of subsistence, such that the right to persons receiving the benefits to a dignified existence is violated. This violation, which was made (mainly) in statute, does not befit the values of the State of Israel, and it violates human dignity to an extent that is excessive. The respondents were required to respond to this claim in an affidavit. In their reply they asked us to dismiss it. The respondents are of the opinion that the right to dignity enshrined in the Basic Law: Human Dignity and Liberty — and the accompanying duty of the state to protect human dignity — concerns protection against a lack of subsistence only. According to them, the state’s duty is limited to preventing a situation in which a person will live in degrading physical conditions. This duty, according to the respondents, was not violated by the legislation under discussion in these petitions. They emphasize that income supplement is a part of a complete system of assistance and support measures that the state gives the weaker strata of society. In order to determine whether it satisfies its duty to ensure a minimum of human subsistence, all of the services provided should be examined. A reduction of any amount in a particular benefit does not, in itself, violate dignity. The respondents argue that the reduction in the benefits was essential in order to achieve a real cut in the state budget, and that it is a part of other steps that are intended to encourage those who are able to do so to join the work force. The respondents insist that even after the reduction, the buying power of the benefits — which are linked to the average wage in the economy — remains what it was when the Income Supplement Law was enacted, and even today the amount of the benefits is close to the amount of the minimum wage, which (in the respondents’ estimation) is the relevant alternative income for most recipients of income supplement. The respondents also point out that the amount of income supplement in Israel today is also reasonable in relation to the corresponding benefits paid in other developed countries. From all of these they deduce that the amount of the income supplement benefits after the Arrangements Law does not violate human dignity.

9.    The petitioners ask us to reject the respondents’ reply. They reject the ‘minimum human subsistence’ approach of the respondents as a basis for defining the right to human dignity. According to them, the right to human subsistence with dignity — which is agreed by everyone, and it is only the content of which that is in dispute — ‘is not restricted to the right to physical subsistence needs… but includes also spiritual and social needs and it should also take into account needs that are accepted in society’ (para. 5 of the petitioners’ reply of 12 July 2004). It is therefore insufficient for the state to guarantee an ability to subsist materially; instead it should guarantee that the individual also has a tolerable standard of living, which is reasonably proportionate to the general standard of living at a given time. The petitioners presented a series of works of economic and statistical research that seek to show that the amounts of the benefits paid today do not allow an ordinary household in Israel to exist with dignity. They argue that the reduced income supplement benefits, together with reductions that were recently made in the amounts of child allowances and rent subsidies place their recipients far below the ‘poverty line,’ and they allow only a meagre and depressing material subsistence. Thereby, according to the petitioners, human dignity is violated. This violation conflicts with the values of the State of Israel as a welfare state. It is disproportionate, since the state has not been able to show a rational connection between the reform to the benefits system and the purpose of encouraging people to go to work; no less harmful measures were examined, such as improving the employment tests or grading the benefits according to chances of finding work; and in particular, there is no reasonable correlation between the benefit produced by the amendments and the harm deriving from a significant reduction, in one thrust, of the main component of the national welfare system, during a difficult economic period which is accompanied by many additional ‘cutbacks’ affecting the weaker strata of society. Finally the petitioners complain also of the hurried and superficial legislative process in which the amendments were enacted as a part of the Arrangements Law.

Income supplement

10. The Income Supplement Law provides a complex mechanism of granting benefits to Israel residents without means who have no earnings or whose earnings are very low, and who are not entitled to a benefit by virtue of another social insurance framework. A mechanism of this kind exists in many western countries, in a format that is similar in some degree or other to the one practised in Israel. Under the Income Supplement Law, income supplement benefits are paid on the basis of whether a person belongs to one of the groups listed in the law as having an entitlement (s. 2), which depends on a periodic examination of the economic and employment ability of the person claiming the benefit. It is calculated as a percentage of the average wage in the economy (s. 5, second schedule), and it is permanently linked to the state of the economy. The number of persons entitled to income supplement, since the law was enacted, has continuously risen, since the 1990s, by a rate that is higher than the increase in the population (for detailed surveys of the arrangement in Israel, see A. Doron and J. Gal, ‘The Income Supplement System in Israel from a Comparative International Perspective,’ 58 Social Security 5 (2000); B. Morgenstein, N. Shammai, T. Haroon, ‘The Income Supplement Law in Israel: Background and Future Legislation,’ Menachem Goldberg Book (2001) 404).

11. The Income Supplement Law is intended to provide individuals and families that have limited means with the (material) economic basis required to subsist in the State of Israel (see the explanatory notes to the draft Income Supplement Law, 5740-1979 (Hatzaot Hok (Draft Laws) 1417, at p. 2). According to the petitioners’ approach, this purpose de facto is concerned with ensuring that the level of subsistence of the residents of the State of Israel who have limited means does not result in a violation of their human dignity. According to the petitioners, the significant reduction in the amount of the benefits for income supplement violates human dignity in a prohibited manner, and therefore it is void, in accordance with the provisions of the Basic Law: Human Dignity and Liberty. The respondents, by contrast, are of the opinion that the income supplement benefits are not the only means of ensuring that human dignity is maintained, and the reduction in them does not amount to a prohibited violation of the constitutional right. The claim that we must scrutinize in these petitions is therefore a constitutional claim. The accepted method of scrutiny for claims of this kind is comprised of three stages (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 428); HCJ 1661/05 Gaza Coast Local Council v. Knesset [3], at para. 56): in the first stage, we examine the question whether the law (in our case: the amendment to the Income Supplement Law) violates the right to human dignity. If it is held that a violation exists, the second stage examines whether this violation satisfies the conditions of the constitutional limitations clause. In a situation where the scrutiny shows that the violation does not satisfy the provisions of the limitations clause, we turn to the third stage, which concerns the constitutional relief. The first question that we must ask, therefore, is whether the amendment to the Income Supplement Law violated a right enshrined in the Basic Law. Let us now turn to consider this.

The right to a dignified existence

12. It is now more than a decade that human dignity has enjoyed the status of a constitutional super-legislative right in our legal system. The Basic Law: Human Dignity and Liberty, provides as follows:

Purpose

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

Safeguarding life, body and dignity

2.  There shall be no violation of the life, body and dignity of a human being , in as much as he is a human being.

 

…

Protection of life, body and dignity

4.  Every human being is entitled to protection for his life, his body and his dignity.

 

…

Application

11. Every organ of government is liable to respect the rights under this Basic Law.

Sections 2 and 4 of the Basic Law: Human Dignity and Liberty provide a constitutional-legal norm, like every other (constitutional) legal norm. The role of the court is to interpret it according to its purpose, so that ‘every organ of government’ will be able to uphold it. Indeed, the Basic Law does not merely declare ‘policy’ or ‘ideals’ (cf. art. 20(1) of the Basic Law of Germany). The Basic Law does not merely delineate a ‘plan of operation’ or a ‘purpose’ for the organs of government (cf. art. 27(2) of the constitution of South-Africa; art. 39 of the constitution of India). It does not merely provide an ‘umbrella concept’ with interpretive application (see Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995), at p. 136). Sections 2 and 4 of the Basic Law provide a right — a right that guarantees human dignity. This right corresponds with the duty of the organs of government to respect it (s. 11). I discussed this in the past:

‘The centrality of the value of human dignity does not merely reflect rhetoric of the importance of this value. It is translated into legal language with the positivist approach that human dignity gives rise to rights and duties, determines authorities and powers and affects the interpretation of every piece of legislation. Human dignity in Israel is not a metaphor. It is a normative reality, from which operative conclusions are implied’ (CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [4], at p. 524).

The duty of the state is two-fold: first, it has a duty not to violate human dignity. This is the negative aspect (the status negativus) of the right. It is enshrined in s. 2 of the Basic Law: Human Dignity and Liberty. Second, it has the duty to protect human dignity. This is the positive aspect (the status positivus) of the right. It is enshrined in s. 4 of the Basic Law: Human Dignity and Liberty. The two aspects, the negative (passive) aspect and the positive (active) aspect are different parts of the whole, which is the constitutional right to dignity. They both derive from the interpretation of the right to dignity, as enshrined in the Basic Law. Neither aspect takes precedence over the other (see R. Gavison, ‘On the Relationship between Civil-Political Rights and Socio-Economic Rights,’ Economic, Social and Cultural Rights in Israel 25 (2005), at pp. 40-48). The prohibition against violating dignity and the duty to protect dignity both impose significant duties on the state and the individuals living in it.

13. In the petition before us, the petitions request that we order the voidance of a law, which (in their opinion) unlawfully violates the ‘positive’ aspect of the right to dignity, in the context of the demand to live with dignity. What is the content of this ‘positive’ aspect’? The answer to this question lies in the constitutional interpretation of the provisions of the Basic Law. In order to characterize the right, the judge is required to consider the circumstances of time and place, the basic values of society and its way of life, the social and political consensus and the normative reality. All of these are tools that the judge has at his disposal for interpreting the legal concept of human dignity (A. Barak, Purposive Interpretation in the Law (1993), at pp. 453-445). The judge-interpreter makes continual use of these, when he is required to interpret rules and principles set out in the various legal texts. He uses them also when he wishes to determine the scope of the right to live with dignity. Thus, a state with the economic strength of a developed nation cannot be compared to a state with a weak economy. A state under a continual threat to its existence cannot be compared to a state that lives peacefully without any security concerns. A society that has chosen to enshrine human dignity as a constitutional right cannot be compared to a state that has not done so (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [5], at p. 787); also a state that has comprehensive social security legislation cannot be compared to a state that has a rudimentary and partial welfare framework. On the other hand, a state where the corpus of social rights has been enshrined expressly and consensually in the constitution cannot be compared to a state where the question is still subject to a dispute that has not yet been resolved by its constitutive organs (A. Barak, ‘Preface,’ Economic, Social and Cultural Rights in Israel, 9 (2005)). By relating to these (and other) distinctions, the judge will realize the relevant modern meaning of the right to live with dignity. Thus he will discover ‘values and essentials, while rejecting what is temporary and fleeting’ (HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [6], at p. 780). Thus he will give effect and substance to the choice of the constitutive authority to enshrine the right to dignity in the constitution.

14. What is the meaning of the right to dignity in the context before us? Underlying our outlook on the right to dignity is the approach that:

‘Human dignity is a complex principle. In realizing it, we must avoid the attempt to adopt the moral outlooks of one person or the philosophical outlooks of another… What underlies this concept is the recognition that man is a free entity, who develops his body and spirit in accordance with his will, within the social framework with which he is associated and upon which he is dependent. “Human dignity” extends to a broad range of human characteristics’ (HCJ 5688/92 Wechselbaum v. Minister of Defence [7], at p. 827; see also Gaza Coast Local Council v. Knesset [3], at para. 82).

This approach has led to the development of the outlook that human dignity, which may not be violated (s. 2 of the Basic Law) and which is entitled to protection (s. 4 of the Basic Law), does not merely concern the prohibition against violating a person’s reputation (CA 214/89 Avneri v. Shapira [8]) or preventing the possibility of his being tortured (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel [9]). The right to human dignity, in the substantive sense, constitutes a collection of rights that need to be protected in order that dignity may exist. These are those rights without which there is no significance to a person being a free entity, since his power to develop his body and spirit in accordance with his will, within the society in which he lives, has been taken away. These rights are likely to be included within the framework of ‘civil’ (or ‘political’) rights, and even within the framework of ‘social’ (or ‘economic’) rights. Thus, for example, among the civil rights it is possible to hold that the right to equality is derived from the right to dignity, since discrimination denies the dignity of a human being as a human being, and leads to humiliation and rejection (see HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [10], at pp. 186-187; HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [11], at p. 362). At the same time, the variety of aspects of human endeavour to which human dignity extends also includes the ‘social’ aspect, which concerns the standard of living to which the human being is entitled. Indeed, the human right to dignity is also the right to have living conditions that allow an existence in which he will realize his liberty as a human being.

15. Notwithstanding, one should not ‘read’ into the right to dignity more than it can support. Not all rights can be derived from an interpretation of the Basic Law: Human Dignity and Liberty. I discussed this in one case:

‘Constitutional interpretation of the right to dignity must determine its constitutional dimensions. It should not be restricted merely to torture and humiliation, since thereby we would fail to achieve the purpose underlying it; it should not be extended in such a way that every human right is included in it, since this would make all the other human rights provided in the Basic Laws redundant. The proper interpretation of the right to dignity should find its path between the two extremes’ (HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518).

This leads to the approach that when deriving rights that are not mentioned expressly in the Basic Laws dealing with human rights but are included in the concept of human dignity, it is not always possible to incorporate the whole scope that the ‘derived’ rights would have had if they had been included separately as ‘named rights’ (in the term used by H. Sumer in ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997)). Deducing the rights implied by human dignity is therefore done from the viewpoint of human dignity, and to the extent that it corresponds to this conception. This approach determines the scope of the implied rights. This is the case both with regard to the implied civil rights (see, for example, the position of Justice D. Dorner with regard to finding a partial basis for the right to equality in human dignity: HCJ 4541/94 Miller v. Minister of Defence [13], at pp. 132-133 {___-___}), and with regard to the implied social rights. Indeed, social rights are not mentioned expressly in the Basic Laws (with the exception of property). Various legislative proposals exist in this regard, but these have not yet matured (see, for example, the draft Basic Law: Social Rights, Hatzaot Hok (Draft Laws) 5754, at p. 337). In such a situation it cannot be said that the existing Basic Laws give full and complete protection to social rights. The Basic Laws protect the right to dignity, which includes the physical existence aspect that is required in order to realize the right to dignity. From this viewpoint, the human right to dignity is also the right to conduct one’s ordinary life as a human being, without being overcome by economic distress and being reduced to an intolerable poverty. This is the outlook according to which the right to live with dignity is the right that a person should be guaranteed a minimum of material means, which will allow him to subsist in the society where he lives. This outlook has found its expression more than once in the case law of this court, in a variety of contexts. Thus, with regard to a petitioner who applied to be allowed to trade his kidney for the purposes of a transplant, we said in the past:

‘The dignity of the petitioner as a human being requires concern for a minimal subsistence as a human being’ (HCJ 161/94 Itri v. State of Israel [14]).

The same is true in a host of cases, which concerned the scope of the rights of debtors in enforcement proceedings. Justice T. Strasberg-Cohen held:

‘Human dignity is a basic constitutional value in our society. No one will dispute that the dignity of a person must be protected even if he has failed in business and fallen into debt, and he should not be left without a roof over his head’ (CA 3295/94 Parminger v. Mor [15], at p. 121).

I expanded on this in another case:

‘Human dignity includes… protection of a minimum level of human subsistence… a person who lives in the streets and has no accommodation is a person whose dignity as a human being has been violated; a person who is hungry for food is a person whose dignity as a human being has been violated; a person who has no access to elementary medical treatment is a person whose dignity as a human being has been violated; a person whose is compelled to live in degrading physical conditions is a person whose dignity as a human being has been violated’ (LCA 4905/98 Gamzu v. Yeshayahu [16], at pp. 375-376; see also CA 3553/00 Aloni v. Zend Tal Feed Mills Ltd [17], at p. 599; LCA 5368/01 Yehuda v. Teshuva [18], at p. 221; CA 9136/02 Mister Mani Israel Ltd v. Rize [19], at pp. 942-943, 953, per Justices E. Rivlin and D. Dorner).

In a petition that was heard before an extended panel of justices, in which the court was asked to recognize a constitutional right to environmental protection, I repeated the remarks, which were agreed by six of the justices on the panel:

‘I accept that the right to human dignity and liberty includes the right to a minimum of human subsistence’ (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518).

Again, within the framework of a petition that dealt with a reduction of pension benefits:

‘In the case before us the petitioner claims a constitutional right to social security whose content is limited to guaranteeing basic living conditions only as a part of the constitutional protection of human dignity. The recognition of the constitutional right to social security on this scale raises no problem. It is identical to the constitutional right to a minimal subsistence with dignity that has been recognized in the case law of this court’ (Manor v. Minister of Finance [1], at para. 10).

In a case that concerned the interpretation of the Minimum Wage Law, 5747-1987, the matter was discussed by Justice E. Arbel:

‘The Basic Law: Human Dignity and Liberty, is intended to guarantee basic human subsistence for each individual in society… The Basic Law includes the right to dignity, and this includes the right to basic human subsistence, so that the employee should not be dependent on welfare. Denying a person the minimum means of subsistence, which includes a minimum income, violates his dignity, as the prophet Isaiah says: “Is it not to extend food to the hungry and to bring the downtrodden poor into the house, and when you see a naked person, to cover him and not to ignore your own flesh?” (Isaiah 58, 7)’ (HCJ 3512/04 Shezifi v. National Labour Court [20]).

16. It can be assumed, therefore, for this case — without making a firm determination on the subject — that the duty of the state under the Basic Law: Human Dignity and Liberty gives rise to the duty to maintain a system that will ensure a ‘protective net’ for persons in society with limited means, so that their physical position does not reduce them to a lack of subsistence. Within the framework, it must ensure that a person has enough food and drink in order to live; a place to live in which he can realize his privacy and his family life and be protected from the elements; tolerable sanitation and medical services, which will ensure him access to the facilities of modern medicine. Against this background, does the actual reduction in the income supplement benefits indicate a violation of human dignity?

The amendment to the Income Supplement Law — reduction of the benefits

17. The petitioners’ claim is that the amounts of the benefits paid as income supplement as a result of the amendment to the law are too low to allow their recipients to live with dignity. The petitioners ask us to determine that a payment of a certain amount by the state to groups of persons with limited means does not discharge its duty to guarantee their human dignity. To this end, they present a series of works that estimate — each in its own way and with its varying results — the subsistence needs of a person whose dignity is maintained, and they show that the income supplement benefits are significantly lower than these calculations.

18. The respondents dispute this method of analysis. They argue that the state has a general commitment to ensure the right of a person to live with dignity. Its compliance with this commitment cannot be assessed by examining the amount of the benefits paid as income supplement, when it is not possible to examine its compliance with this commitment by examining the amount of the benefits paid as pension benefits (see Manor v. Minister of Finance [1]). According to the respondents, the duty of the state is discharged by means of a variety of national and local measures in statute and in subordinate legislation, by direct grants, exemptions and subsidies, comprehensive arrangements and individual programmes. Among these the respondents mention, in addition to income supplement, the assistance of the Ministry of Housing in financing private accommodation, public accommodation services through the state housing companies, child allowances, national health insurance, free education, assistance given by the welfare units of the local authority, reductions in municipal property tax, subsidies for infant day care centres, legal aid, assistance from persons serving in National Service, government support of welfare enterprises, individual aid to families in distress and new immigrants.

19. Are all of these services sufficient in order to discharge the duty of the state to protect human dignity? We are unable to provide an answer to this question within the framework of the petitions before us. Within the first stage of the constitutional scrutiny (see para. 11 supra) the petitioners have the burden of proving that, notwithstanding all of the services, there live in Israel persons whose dignity is violated because their living conditions are insufficient. The petitioners have not discharged this burden. A reduction – and even a significant reduction — in the amount of the income supplement benefits does not in itself indicate a violation of dignity. Indeed, there is no doubt that the reduction in the benefits will make the lives of those entitled to income supplement, which are already difficult, even harder. The state assumes that this extra burden will encourage persons to enter the work force, reduce the periods of time during which persons receive income supplement, and in the long term ensure better welfare for the whole public and an increase in the living standard of the poorer individuals among it. At the same time, it undertakes that the other support systems will provide the conditions necessary for guaranteeing dignity. We are also unable to examine these assumptions on a theoretical and abstract basis. The scrutiny is always concrete and dependent upon results.

20. Indeed, the duty of the state not to harm and to protect human dignity does come with a fixed and uniform ‘price tag,’ which the court can discover. It is not characterized by a specific kind of benefits that the court is required to order the state to create. The right to dignity, and even the right to live with dignity, is not a right to a monthly benefit in a certain amount. It is the right that, when all the support and aid systems are provided, human dignity is preserved in the end result. Admittedly, there is no doubt that the Income Supplement Law has a significant role in achieving this result, namely in realizing the duty of the state to ensure that the persons living in it, who have no means, live in dignity. This is a law that ab initio is concerned with a ‘minimum,’ and as such it is capable of furthering the goal of protecting the dignity of the weak. But the Income Supplement Law, and the system of benefits provided in it, is not a guarantee that ensures human dignity. It is not an essential condition; apparently, it is not even a sufficient condition. It is a possible measure — one of many alternatives — that fits into a broad array of aid and support measures, provided by the state and others. It is possible, for example, to imagine a situation in which there would be no Income Supplement Law or a similar law in Israel at all, and yet human dignity would be preserved. Indeed, the duty of the state to ensure the human right to live with dignity may be discharged in many ways. Income supplement is only one of these ways, and it cannot even be said that it is designed to realize the whole scope of the right to dignity.

21. Even from the Income Supplement Law itself it can be seen that the arrangement provided in it can be insufficient and that it requires additions and changes outside the main structure of the benefits. For this reason, s. 24 of the law provides a general authorization for the Minister of Welfare to determine ‘rules, tests and conditions’ for the participation of the state in additional expenses ‘for rent, medical insurance and other special needs.’ This power, like any other administrative power, must be exercised with a view to the basic rights of the individual. It cannot be denied that those ‘special needs’ may exist when the benefits granted in a specific case, together with the other support services that the state provides, are insufficient for guaranteeing that a person will live with dignity (cf. s. 378 of the National Insurance Law [Consolidated Version], 5755-1995; HCJ 494/03 Physicians for Human Rights v. Minister of Finance [21]). This arrangement is capable of showing that the legislature created a basis for taking into account cases that ‘fall between the cracks.’ It is capable of showing that the income supplement benefits are not everything, and that human dignity is not necessarily guaranteed by means of them alone.

22. It transpires that human dignity in the State of Israel depends on all of a person’s living conditions, as they are reflected by the state of society and the basic values that guide it. Human dignity is violated if that person wishes to live as a human being in the society to which he belongs, but he find that his means are too limited and his strength too run down to allow this. Such a person is entitled to expect the state to act in order to protect his dignity. If, notwithstanding all of the support mechanisms that it operates, the state is found to violate this duty — whether in legislation (that does not satisfy the conditions of the limitations clause) or in another sovereign act (that does not satisfy the rules of administrative law) — that person is even entitled to an order of the court that will order the state to comply with its duty and to provide him with the means that are required for him to live with dignity. Such an order may apply to an individual case or to a class of similar cases, all of which in accordance with the case and the circumstances. In order that the court should be able to make the order, it must be presented with a complete factual basis, from which the violation of dignity can be deduced. Thus the court will require details, based on appropriate documentation, of the sources of income and the current and fixed expenditure of that person (cf., for example, the information that an appellant is required to present in order to be exempted from depositing a guarantee: LCA 3297/90 Revivo v. Bank HaPoalim [22]). It should examine the functioning of all the national and other support systems that assist that person and the steps he takes in approaching them in order to exhaust his rights. It will be necessary to clarify whether the person works, and what are the employment alternatives available to him. If the claimant argues on behalf of a group, he will be required to establish the common characteristics of that group, which show the violation of the dignity of all of its members. In view of this factual basis, which will convince the court — in accordance with the correct interpretation of the right to dignity enshrined in the Basic Law: Human Dignity and Liberty — that the situation of a person has indeed reached a prohibited violation of dignity, it will be necessary to order the government authorities to act to remove the violation.

23. In the petitions before us, there is no basis for making such an order. We have not been asked within the framework of the petitions to order the state to discharge its duty to protect the dignity of a specific person, whether by means of increasing the benefit or in any other manner; even the order nisi that was made in the petitions, according to the language of the petitions themselves, did not address this aspect. All that the petitioners asked was that we should determine that the reduction in the income supplement benefits was capable of violating dignity. We are unable to make such a determination. As aforesaid, the violation of the right to live with dignity — namely the breach of the duty to protect dignity — is examined in accordance with its consequences; and in these petitions no factual basis has been established from which it can be seen that, as a result of the reduction in the income supplement benefits, the dignity of certain persons has been violated. The concrete factual basis presented to us in this case is limited to the affidavits of the first and second petitioners in HCJ 888/03, which were made at the beginning of 2003. More than two years have passed since the affidavits were submitted, and despite this no updated affidavit has been filed with regard to their position. At the hearing which we held on the petitions (on 30 November 2004) we asked to be informed as to the current position of those petitioners; their counsel was unable to provide a satisfactory answer to our questions. Even the affidavits themselves were not supported by any documentation or evidence. This is especially the case with regard to the affidavit of the second petitioner, which lacks many details concerning the expenses that the petitioner incurs and the pecuniary resources available to him. The affidavit of the first petitioner is more complete, but in the absence of current and well-founded information we cannot rely on it either for the purpose of determining whether her right to dignity has been violated. The first stage of the constitutional scrutiny therefore ends with the conclusion that a violation of the right to dignity has not been proved. In this situation, we do not need to continue to carry out the other stages of the constitutional scrutiny. The petitions against the amendment should be denied.

The amendment of the Income Supplement Law — the change to the entitlement age

24. In addition to the reduction in the amount of the benefits, the amendment to the Income Supplement Law also raised the initial age for entitlement to receive benefits under the law from 20 to 25 years (s. 2(a) of the Income Supplement Law). At the same time, twenty-three statutory exceptions were provided (in the first schedule), and these entitle persons who have not yet reached the age of 25 to an income supplement benefit. The law also provides for the power of the Minister of Welfare, the Minister of Justice and the Minister of Finance to determine rules for the purpose of recognizing the entitlement of persons who have not yet reached the age of 20 (s. 2(e)), provided that this entitlement shall not be less than 50% nor more than 80% of the ordinary amount of the benefit (s. 5(e)(3)). The petitioners in HCJ 366/03 requested, when they filed their petition, that we order the commencement of the amendment changing the entitlement age to be postponed until the aforesaid rules are made by the ministers. In response to the petition, the respondents said that as long as those rules are not made, the entitlement of anyone who has reached the age of 20 years to income supplement stands at 80% of the amount of the ordinary benefit. Since then, even though many statements and replies were filed in the proceeding, we have heard no further argument in this matter. Consequently, we assume that the response of the state satisfied the petition in this regard, and we are not considering the argument on its merits.

Cancellation of the accompanying benefits in accordance with the government’s decision

25. Already before the amendment to the Income Supplement Law the Israeli government made a decision that led to the cancellation of three economic benefits that were given to recipients of income supplement. These were an exemption from the television licence fee, a reduction in fares on public transport and a reduction in the amount of municipal property tax. The first two benefits (which are smaller in their economic value) were cancelled in their entirety. With regard to the reduction in municipal property tax, which is likely to have a more significant value, this was cancelled only as a benefit given to recipients of income supplements as such. The reduction in municipal property tax will continue to be given based on individual income tests, which in any event will usually include those persons entitled to income supplement. The reason for this step is based, according to the respondents, on budgetary considerations (with regard to cancellation of the television licence fee and transport fares benefits) and the desire to neutralize the ‘poverty trap,’ by denying an inducement to continue entitlement to income supplement instead of applying for work (with regard to cancelling the municipal property tax benefit). The argument of the petitioners in HCJ 888/03 is that the government decided upon the cancellation of the benefits without properly considering the extent of the harm that this would cause — together with the reductions in the aid mechanisms and the transfer payments — to persons entitled to income supplement. This harm is too extreme and is therefore unreasonable, and the government was not entitled to make this decision.

26. From the outset, the petitioners directed their arguments against the provisions of government’s decision no. 2331, in which it decided upon the cancellation of the benefits. Meanwhile the decision went from theory into practice, by means of the regulations enacted by the relevant ministers. In these circumstances, it is questionable whether granting the relief requested in the petition (cancelling the paragraphs in the government’s decision) would reinstate the benefits, when they have been cancelled in the interim in subordinate legislation. But even if it would, my opinion is that the petition in this regard should be denied. When examining the cancellation of the accompanying benefits, we should distinguish between two types of benefit that were cancelled. One is the reduction in the amount of municipal property tax. The other is the benefits with regard to the television licence fee and bus fares. With regard to the reduction in municipal property tax, the respondents made it clear that this was not cancelled absolutely, but only as a benefit that was given ‘automatically’ to persons entitled to income supplement benefits. The reduction in municipal property tax will continue to be given to persons who satisfy the individual income tests of the local authorities. This approach is reasonable. It does not discriminate against the entitled persons on the basis of their economic ability or the group affiliation. It does not necessarily deny the benefit to any entitled person. All that it does is to replace one entitlement test (the test of entitlement to income supplement) with another entitlement test (the individual income test). The two tests are intended for the same purpose — giving reductions in the payment of municipal property tax to persons with a low income (see HCJ 6741/99 Yekutieli v. Minister of Interior [23], at pp. 688, 707; HCJ 1384/04 Betzedek Society v. Minister of Interior [24]). Both of these fall within the same administrative ‘zone of reasonableness’ in which the court is not required to intervene (HCJ 935/89 Ganor v. Attorney-General [25], at p. 514).

27. With regard to the cancellation of the exemption from the television licence fee and the reduction in bus fares, no alternative source was offered for these. These payments will now fall entirely on the shoulders of the persons entitled to income supplement. This is to be regretted. Admittedly, access to television services or public transport is not essential for human subsistence. Yet we are speaking of two kinds of service that are basic to the social life of human beings in our times. They are capable of allowing a person to take an active and involved role in our environment. By means of these he can be exposed to the cultural, social and political reality that surrounds him. They allow a significant realization of basic rights (freedom of expression, the right to information, freedom of movement). From these viewpoints, the access to accessible and cheap media and public transport is essential for conceiving the individual as a part of the public. Indeed, ‘human rights are the rights of man as a social creature. Human dignity is the dignity of man as a part of society and not as someone who lives on a remote island’ (CrimApp 537/95 Ganimat v. State of Israel [26], at p. 413).

28. This is especially correct with regard to travel possibilities. The ability of a person to go from one place to another at an affordable price can be essential for a livelihood, for having a proper family life, for conducting a full social life. Accessible public transport is an interest of the public as a whole (see HCJ 4769/95 Menahem v. Minister of Transport [27]); it is a necessity for those members of society who have limited means. Therefore the significance of the cancellation of the reduction is one of two possibilities: a certain additional part of the income of the person entitled to income supplement will be directed henceforth to paying for transport (and television), instead of being used for immediate subsistence needs; alternatively, the person entitled to income supplement will be required to give up using public transport (and having access to television). These are serious consequences. They should be reconsidered. There is a basis for taking into account with regard to these matters an examination of the individual situation of a person claiming a violation of dignity (see para. 22 supra). But is there any legal defect in the cancellation of the exemption from the television licence fee and the reduction in bus fares in themselves? My answer to this question is no. The importance of the bus fares and the medium of television does not give rise, in itself, to a duty on the part of the state to reduce the costs of these services for persons in society with limited means. The duty of the state is to ensure that people can live with dignity. As I explained, this duty can be realized in different ways. The state does not have a legal duty to act specifically by way of subsidies for one commodity or another. We therefore return to the point where we concluded the discussion of the constitutionality of the reduction in the income supplement benefits: the scrutiny should be result-orientated. There is no obligation ab initio to prefer one measure over another in realizing the duty. Consequently, the petition against the provisions of the government decision (and the subordinate legislation made on the basis thereof) should also be denied.

The legislation process

29. The petitioners in the two petitions also attacked, in addition to the content of the amendment to the Income Supplement Law, the manner in which the amendment was made. Their arguments are directed against the rushed legislative process of the Arrangements Law, in which, according to them, the basic principles of social security in Israel were changed. The petitioners emphasize the difference between the legislative process of the Arrangements Law and that of the Income Supplement Law itself, which took many years, was studied by several professional committees and was considered in the course of dozens of significant sessions of the Welfare Committee of the Knesset. I think that everything there is to say on the regrettable legislative process of the various ‘Arrangements Laws’ has already been said in several judgments that this court has given in the last year: see HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [28]; HCJ 3106/04 Association for Civil Rights in Israel v. Knesset [29]. Those judgments admittedly did not address the Arrangements Law that is under discussion in these petitions, but what was said there is correct in our case also. Therefore, notwithstanding the serious defects that befell it, we do not find that the legislative process of the amendment to the Income Supplement Law, in itself, undermines the validity of the amendment.

Application to be joined as a petitioner

30. We have before us an application of Mr Ehud Livneh to be joined as a petitioner in the petitions. The applicant is an Israeli citizen and resident, born in 1945 (now aged 60), who lives alone. According to the affidavit that he attached to his application, because of his age and disability (as a result of military service) he is unable to find work, and his only income is from an income supplement allowance in a sum of NIS 1,670 per month. In view of this background, he is applying to join in the arguments of the petitioners against the amendment to the Income Supplement Law. The application should be denied. As the state says in its response to the application, the reduction of benefits made in these amendments does not apply to entitled persons over the age of 55, so that in any case the amendments to the law do not affect the applicant directly. The arguments that he raises in his application attack the constitutionality of the amendment to the Income Supplement Law in general language. As such, they do not add to the large quantity of material brought before us by the existing petitioners. His potential contribution as an additional petitioner in the petitions, especially at the advanced stage of the proceedings when his application was filed, does not therefore justify his being joined as a petitioner.

Summary

31. The result is therefore that the petitions — on the basis of the reliefs that were requested in them — should be denied. This is because we have not been persuaded that the amendment to the Income Supplement Law, in itself (even with the cancellation of the accompanying benefits), is capable of violating human dignity. In this judgment we do not say anything with regard to the existence in Israel of persons who are subject to extreme poverty to the point of a violation of their dignity. We know that the economic position of many families in Israel is very difficult, and that the impoverished sector of society is very considerable; this knowledge is shared by everyone who lives in Israel and has a pair of eyes. We do not know whether the position of any person has reached a violation of dignity, according to the legal-constitutional meaning of this concept. In order to reach such a judicial conclusion, accompanied by an order to the state to correct what is wrong, we need a proper factual basis. Such a basis has not been brought before us in these petitions. The claim that was made in them is a general one. The response given to it is also a general one.

32. This ruling does not prevent the filing of petitions concerning the human right to live with dignity. This is a constitutional right, which must be upheld in all the avenues of public law. The courts are competent to enforce it. If there is a specific and well-founded petition, it will be their duty to do so. By denying the petitions, the respondents are also not being allowed to rest on their laurels. The serious claim of the petitioners that in our country there live persons whose dignity is violated, merely because they do not have the means to live at a tolerable standard of living, has not been properly clarified in these petitions, and in any case it has not been rebutted. The respondents should examine this claim in depth. In so far as it is found to have merit, they should act quickly to eliminate the phenomenon, in some lawful manner.

The petitions are denied. There is no order for costs.

 

 

Justice E. Rivlin

I agree with the opinion of my colleague, President Aharon Barak.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, President A. Barak.

 

 

Justice D. Beinisch

I agree with the result reached by President Barak, but I see a need to add several remarks concerning the petitions before us.

1.    In his opinion, my colleague the President discussed how within the framework of the constitutional right to human dignity ‘social’ rights may be included. I agree with his position that it cannot be said that the Basic Laws provide full and complete protection to the aforesaid rights that are not mentioned expressly in the Basic Laws. Accordingly, like him I am also of the opinion that the constitutional right of a person to live with dignity does not extend to all the spiritual and social needs of a human being, and it concerns the physical subsistence perspective required in order to realize the right to dignity. According to this approach, the constitutional right to live with dignity is the right that a person will be guaranteed a minimum of material means that will allow him to subsist in the society in which he lives.

The main question before us in these petitions is whether the reduction in the amount of income supplement benefits that was made within the framework of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law) led to a significant violation of the petitioners’ constitutional right to human subsistence with dignity in the aforesaid meaning.

2.    Like the president, I too am of the opinion that the petitioners have the burden of showing that as a result of the reduction in the amount of the income supplement benefits their constitutional right to dignity has been violated in the sense that the minimal material living conditions are insufficient. As President Barak said in his opinion, the mere reduction in the amount of the income supplement benefits, in itself, cannot prove a violation of the aforesaid constitutional right. Notwithstanding, I doubt whether it is right to demand that the petitioners prove that their constitutional right to dignity has been violated specifically ‘when all the support and aid systems are provided,’ as the state claims (para. 20 of the President’s opinion).

Indeed, I accept the basic position of the state that income supplement is a part of a comprehensive system of aid and support measures that the state provides for the weak strata of society. Income supplement is not the only or the best means of ensuring a dignified subsistence, if the state is capable of offering other alternative forms of support that provide what is lacking. According to the state, in order to determine whether it is discharging its duty to ensure a minimum of human subsistence, we must examine all the national and local measures in statute and subordinate legislation, whether in the form of direct grants, exemptions or subsidies, both in general arrangements and individual programmes. In this the state is correct, since income supplement is merely a part of the total economic system that is intended to ensure the minimum subsistence conditions required by a human being; but the full information for the purpose of a comprehensive examination of the aforesaid minimum subsistence conditions is in the possession of the state and not in the possession of the petitioners. In view of this, I am of the opinion that the petitioners had the initial burden of proving with appropriate documentation their sources of income as compared with the essential regular and permanent expenses that they incur, and the actions adopted in order to exhaust their rights in the national and other support systems that they are able to realize. But, unlike the President, I am of the opinion that were the petitioners to discharge this burden, the state would be required, already in the first stage of the constitutional scrutiny, to prove its claim that notwithstanding the prima facie violation of the constitutional right as a result of a reduction in income supplement, all the national and other measures that exist are sufficient for ensuring a minimum human subsistence with dignity, and this burden should not be placed on the shoulders of the petitioners.

3.    With regard to the petitions before us, these were filed in January 2003, more than two years ago. We do not have current figures concerning the position of the petitioners, and ab initio we also did not have a proper basis of fact with regard to their claim as to the violation of their right to live with dignity within the constitutional meaning, even though there is no doubt that the petitioners are persons with daily difficulties in eking out an existence. In the absence of such figures, I agree with the conclusion of President Barak that it is not possible to decide the claims of the petitioners with regard to the violation of their constitutional right under discussion. Therefore, I believe that the question whether the state presented us with a proper basis for establishing its claim that there exists an overall aid system that is capable of preventing a substantial violation of the constitutional right to live with dignity does not arise. For these reasons, I agree with the conclusion of the President that the petitions should be denied. Notwithstanding, like the President, I too think it right to emphasize that the aforesaid conclusion is based on a lack of a sufficient preliminary and prima facie basis of fact in the petitions brought before us. Therefore, this judgment does not prevent the filing of petitions in the future with regard to the right to live with dignity.

 

 

Justice A. Grunis

I agree with the opinion of my colleagues that the petitions should be denied.

 

 

Justice E.E. Levy

I agree with the conclusion of my colleague the President in so far as it concerns the constitutionality of para. 9 of government decision no. 2331 (this is the clause that determines the cancellation of the benefit concerning the reduction in the amounts of municipal property tax given to recipients of income supplement before the decision). I also accept the conclusion of my colleague with regard to ss. 17(2)(a)(1) and 17(2)(b) of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law), which concerns a change of the entitlement age for receiving income supplement benefit. This is because of the position of the respondents that until the rules for entitlement to a benefit amount in this age group are determined, its amount shall be 80 per cent of the amount of the ordinary benefit, and because there was no additional argument on this point from the petitioners. By contrast, I cannot agree with the conclusion of my colleague with regard to ss. 17(3)(a), 17(11) and 17(13) of the Arrangements Law, which are the sections that contain the reduction in the income supplement benefits, nor can I agree with his conclusion concerning the constitutionality of paras. 7 and 10 of government decision no. 2331, which are the paragraphs that determine the cancellation of the benefits concerning an exemption from the television licence fee and a reduction in the fares on public transport that were given to recipients of income supplement before the decision. Were my opinion to be accepted, we would declare the aforesaid sections of the law and paragraphs of the decision to be void, on the grounds that they disproportionately violate the human right to live with dignity, which is enshrined in the Basic Law: Human Dignity and Liberty.

The human right to live with dignity

As though it were possible to draw a line and say: below this is poverty.

Here is the bread that with cheap cosmetic colours

Became black

And the olives on a small plate

On the tablecloth.

In the air, pigeons fly in an aerial salute

To the sounds of the kerosene seller’s bell on the red cart,

And there too was the sound of rubber boots falling on the swampy ground.

I was a child, in a house they called a hut,

In a neighbourhood they said was a transit camp.

The only line I saw was the horizon, below which all seemed

Poverty.

R. Someck, ‘The Poverty Line’ (1996), Rice Paradise Anthology, 1976-1996).

1.    The human right to live with dignity is an integral part of the right to human dignity. It is difficult to exaggerate the importance of this basic right. ‘A life characterized by a constant struggle for basic living conditions is completely contradictory with the idea of human dignity’ (R. Gavison, ‘On the Relationship between Civil-Political Rights and Socio-Economic Rights,’ Economic, Social and Cultural Rights in Israel (Y. Rabin, Y. Shani, eds. 2004) 25, at p. 39). It is a sine qua non for the ability to realize other basic rights, since, in the eloquent words of Justice Zamir, ‘human rights should not serve only those with a full stomach; every person must have a full stomach so that he can enjoy human rights in practice and not merely in theory’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [30], at p. 340 {___}). Real freedom — which also includes freedom from want — is not possible otherwise (see M. Atlan, ‘An Example of a Model for the Right to Decent Living Conditions,’ Economic, Social and Cultural Rights in Israel 395, at p. 399; see also J. Raz, ‘Autonomy, Toleration and the Harm Principle,’ Issues in Contemporary Legal Philosophy (R. Gavison, ed., 1987) 313, at p. 316).

‘An individual is entitled to live with dignity as a basic right, not by virtue of a feeling of empathy or a moral outlook of doing charity. A society that leaves its poor to their distress demonstrates that it does not respect persons as human beings’ (Atlan, ‘An Example of a Model for the Right to Decent Living Conditions,’ supra). As a basic right, the right to live with dignity enjoys constitutional protection. It may only be violated by law. The law must befit the values of the State of Israel as a Jewish and democratic state. It must serve proper purposes with proportionate measures. These principles have been accepted by us for some time, and they contain no innovation or difficulty (see Itri v. State of Israel [14]; Gamzu v. Yeshayahu [16], at p. 375; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; Manor v. Minister of Finance [1], at para. 7; Betzedek Society v. Minister of Interior [24], at para. 15).

The human right to live with dignity is not enshrined merely in our internal law. It is also recognized in international law, where it is defined as a right to ‘a proper standard of living.’ Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, to which Israel became a party on 3 October 1991, provides that:

‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.’

2.    The petitioners and the respondents are divided on the question of how a violation of the right to dignity should be defined with regard to human living conditions. The respondents ask us to adopt a level that they call the ‘lack of subsistence model,’ according to which only the ‘absence of a roof, hunger and a lack of clothing will be considered a violation that degrades human dignity.’ By contrast, the petitioners argue for a wider model, which includes ‘also spiritual and social needs’ and which is related to ‘the accepted needs in society.’

I have devoted much time to examining this question, as well as my colleague’s approach to it. As stated in his opinion, my colleague’s approach is that the human right to live with dignity means ensuring the human right ‘to conduct one’s ordinary life as a human being, without being overcome by economic distress and being reduced to an intolerable poverty’ (para. 15 of his opinion). It would appear that the advantages of this approach — and especially the fact that it prima facie allows the cloak of vagueness that enshrouds the term ‘human right to live with dignity’ to be dispelled by delineating its content — are clear. It is also possible to hold the opinion that the failure of the various attempts to enshrine what is usually referred to as ‘social rights’ expressly in the Basic Laws requires a restrictive and particularly careful interpretation of this right, an interpretation that reflects the judicial restraint ordinarily required in matters concerning economic priorities and distributing national resources.

As for myself, without needing to delineate the exact boundaries of the right, I am of the opinion that the purposes of the protection of the right lead to the conclusion that this right includes the right to proper living conditions, and that its purpose is not merely to protect the human being from an intolerable lack of subsistence, as the respondents claim. The right to basic living conditions and the provision of essential needs, including a roof, clothing and food are, of course, included in the protection given to the human right to live with dignity, but it should not be said that it is limited to these.

3.    Can it indeed be definitively said that living conditions, which only permit a purposeless subsistence that does not contain any potential for human achievement, do not violate the constitutional human right to dignity? How can we determine that living conditions, which do not allow even a minimal degree of correlation with the accepted standard of living in society, or which prevent a person having an opportunity, no matter how small, of developing himself, of defining his goals and ambitions and of acting in order to achieve them, do not violate the constitutional right to dignity? Is a person, whose living conditions do not allow him a minimal degree of civic participation and prevent him from being integrated into the society around him and from affecting what happens in it, the person to whom we refer when we speak of his dignity? To tell the truth, I find it hard, very hard, to reach a definitive conclusion that a person who is protected only from ‘intolerable want’ has not been injured with regard to his constitutional right to dignity. Human life must contain hope and value. They must hold out a promise for the foreseeable future. A monotonous and purposeless existence cannot be regarded in my opinion as ‘living with dignity.’

I do not mean to say that the human right to live with dignity is an all-embracing right. It is self-evident that ‘human dignity does not mean everything that is good and beautiful in life’ (A. Barak, Constitutional Interpretation (1994), at p. 419). Human life is naturally based on a compromise and balance between inclinations and desires on the one hand, and constraints and restrictions on the other; certainly not every caprice, wish or need that is unrealized violates the constitutional human right to dignity. It should therefore be said that the living conditions of a person should allow him a reasonable ability to function socially in the society in which he lives. Underlying this approach is the outlook that a person is not an island. A person is a part of a society (HCJ 6126/94 Szenes v. Broadcasting Authority [32], at p. 833 {___}). Human rights are therefore the rights of a person in an organized society; they concern the individual and his relationship with his fellow-man (HCJ 5016/96 Horev v. Minister of Transport [33], at p. 41 {___}). It follows that human dignity is the dignity of the individual as a part of society and not as someone living on a desert island (Ganimat v. State of Israel [26], at p. 413; LCA 7504/95 Yassin v. Parties Registrar [34], at p. 64; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [35], at p. 365 {___}).

4.    My colleague the President discussed extensively the scope and economic significance of the amendments that were made to the Income Supplement Law, 5741-1980 (hereafter — the Income Supplement Law) by the Arrangements Law, whose legality is under consideration. As he says in his opinion, the average reduction in the benefits amounts to NIS 670. It represents a reduction of approximately an average of one third of the amount of the benefit that was in force before the law was passed. In the highest category, the reduction amounts to NIS 769 (for a single parent with two children). This is the case without taking into account the Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002, which deducted an additional four per cent from the income supplement benefits. We are therefore speaking of a drastic reduction, which is of critical economic significance for most of those persons who receive income supplement. My outlook is that the picture that emerges from the series of amendments made to the Income Supplement Law by the Arrangements Law, and certainly together with the provisions of the Economic Emergency Programme Law, raises difficult and problematic questions both with regard to the ability of individuals and families to support themselves with dignity, and with regard to the image of society in Israel.

However, and this too should be made clear, these general questions are not the questions that we must decide. We are not required, nor is it a part of our function, to determine a position with regard to the logic or wisdom of the economic policy that the government wishes to advance. It alone has the prerogative to decide questions in the sphere of national priorities, the distribution of resources in society and the ideal welfare policy. This was discussed by my colleague the President, when he said:

‘The court should examine the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective, justified. The question is whether the law is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, and all of these may satisfy the requirements of the limitations clause’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 438).

The only question before us is, therefore, whether government decision no. 2331 (hereafter — the government decision) and the amendments made to the Income Supplement Law by the Arrangements Law violate the human right to live with dignity, and — assuming that the answer to this question is yes — whether this violation is constitutional, or in other words, whether it satisfies the requirements of the limitations clause in the Basic Law: Human Dignity and Liberty. I will now turn to consider these questions.

Violation of the human right to live with dignity and proof thereof

5.    As stated in my colleague’s opinion, the duties of the state under the Basic Law include a negative side, which is expressed in its duty to refrain from violating the human right to live with dignity, and a positive side, which is reflected in its duty to afford protection to it. The Income Supplement Law, 5741-1980, is an expression of this positive duty. It has the very important function of guaranteeing the active aspects of the human right to live with dignity. It serves as a central component in Israeli social legislation. Its clear purpose is to ensure that individuals and families, whose circumstances in life have reduced them to an inability to support themselves, have a safety net of economic security, which will guarantee them a minimum subsistence and allow them to provide for their essential needs. This purpose can be seen clearly from a reading of the explanatory notes to the draft law:

‘The purpose of the proposed law is to guarantee every person and family in Israel, who are unable to provide for themselves an income required for subsistence, the resources required to provide for their essential needs. A benefit under this law will be sole income of persons who are totally unable to work and support themselves, and it will supplement an income that is less than the amount needed for subsistence… The purpose of the proposed law is to bring about a more complete integration, on the basis of a uniform policy, of the programmes that exist in this field, and to establish the right to be guaranteed a subsistence and the principles governing this right in a law that will clearly express the national responsibility to guarantee subsistence for everyone in order to prevent economic distress among the weaker sectors of the population’ (Hatzaot Hok (Draft Laws) 5740-1979, at p. 1417 — emphases supplied).

The respondents certainly agree with the approach that recognizes the central role played by the Income Supplement Law in guaranteeing the human right to live with dignity, since they expressed it before this court recently. I am referring to the remarks made by the state in Manor v. Minister of Finance [1], which considered the question of the constitutionality of the reduction in the amount of pension benefits under the Economic Emergency Programme Law, which can be seen from the judgment in that case:

‘The respondent claims in its reply that the reduction in the pension benefits does not violate constitutional rights of a person entitled to the benefit, and in any case its violation satisfies the conditions of the limitations clause. According to the respondent, guaranteeing a minimal level of subsistence is achieved by means of an income supplement benefit which is given in accordance with economic criteria. By contrast, a pension benefit is a universal benefit, which is given to everyone who reaches the retirement age, irrespective of economic criteria. On the basis of this distinction, the respondent claims that the reduction in the pension benefit does not violate the constitutional right to dignity’ (para. 4 of the judgment [1]).

6.    I am in complete agreement with my colleague that ‘the right to dignity, and even the right to live with dignity, is not a right to a monthly benefit in a certain amount,’ that ‘the Income Supplement Law… is not a guarantee that ensures human dignity’ and also that ‘it is possible… to imagine a situation in which there would be no Income Supplement Law or a similar law in Israel at all, and yet human dignity would be preserved’ (s. 20 of my colleague’s opinion). Admittedly, the benefit mechanism is not the only possible guarantee for realizing the human right to live with dignity. The Income Supplement Law is not the only legal solution that can give protection to it. Notwithstanding, when we examine the constitutionality of the amendments that are the subject of the petitions before us, we must give great weight to the fact that the Income Supplement Law — and not another theoretical arrangement — is the main tool that the legislature chose to realize its obligation to guarantee for everyone the human right to live with dignity. As we have explained, the express purpose of the Income Supplement Law is to supplement income ‘that is less than the amount needed for subsistence.’ It is the only mechanism that provides money benefits that serve as a sole income for people who for various reasons are incapable of supporting themselves with their own efforts.

7.    The significance of this is not that the Knesset is not sovereign and therefore cannot change the Income Supplement Law or any of the provisions set out therein; it is not that the Income Supplement Law will always be immune to changes; not every reduction in income supplement benefit will be regarded as violating the human right to live with dignity. It is also possible to adopt the position, as stated in my colleague’s opinion, that it is possible to cancel the Income Supplement Law and replace it with another normative arrangement. The only requirement is that the human right to live with dignity must survive the changes that the Knesset wishes to make to the arrangement that guarantees this. As long as the Income Supplement Law is the main tool that has been chosen to act as a guarantee of the human right to live with dignity, then the reduction in the benefits paid by virtue of the Income Supplement Law should be examined in view of this purpose. For this reason, in so far as the reduction in the benefit paid to the persons entitled is consistent with the purpose of the law, and in so far as the amount of the benefit after the reduction — on its own or together with means that are external to the law — continues to allow the recipients to live with dignity, the reduction in the benefit is legitimate and permissible. Within this framework we must address, inter alia, the circumstances in which the reduction is made, its purpose and scope, the sectors of the population that are harmed by it, together with their special needs, and alternative arrangements that were formulated in order to supplement the shortfall that has been created, if at all, in the income required for subsistence following the reduction.

Against this background, can it really be said that the petitioners have not succeeded in establishing a basis for their claim that the reduction in the income supplement benefits has violated the human right to live with dignity? As he says in his opinion, my colleague’s conclusion is that it has not been proved that human dignity, in its legal-constitutional sense, has been violated by the reduction in the income supplement benefits. I do not agree with this conclusion. I am of the opinion that all of the material that was presented to us allows us to determine that the constitutional human right to live with dignity has been violated as a result of the reduction, or at least that the petitioners have succeeded in raising a real doubt as to whether the recipients of the benefits are able to support themselves with dignity.

Of prime importance in this matter — the question of the violation — are the petitioners’ affidavits, which were filed within the framework of HCJ 888/03. Admittedly, these should have been updated and supported by additional documentation and evidence, but this does not undermine their value. The affidavits include details of the expenses incurred by the petitioners and the extent to which the benefit helps them to pay for these expenses. It can be seen from these affidavits that the vast majority of their expenses are used for subsistence requirements, which are included within the framework of the protection of the right to live with dignity in its limited subsistence sense, and mainly for accommodation, food, clothing and medications. The amount of the benefit to which the petitioners are entitled — even taking into account additional support networks, such as assistance with rent payments — is far from being sufficient to cover these subsistence expenses.

Let us take, for example, the affidavit of the first petitioner, Mrs Bilhah Rubinova, a mother of two small children. The income supplement benefit, together with child allowance, is her only income. Details of her outgoings in the affidavit shows that the (reduced) benefit to which she is entitled is far short of covering very sparse subsistence needs. Her main monthly outgoings include, according to the details, payment of rent (NIS 675, after a contribution of $200 by the Ministry of Housing), municipal property tax (NIS 66), water (NIS 110), electricity (NIS 140) and gas (NIS 85), baby food and diapers for her baby daughter (NIS 296), kindergarten and day care expenses for her son (NIS 370) and food, clothing and medications for her and her children (NIS 1,600). These expenses amount to approximately NIS 3,400. Before the amendment, the petitioner was able, with difficulty, to meet these outgoings. Now, after the reduction, the income supplement benefit to which the petitioner is entitled amounts to NIS 2,660 (NIS 2,744 less NIS 84 health insurance), with an additional child allowance of NIS 290. What, then, will the petitioner be compelled to give up? Will it be baby food for her daughter? Will it be clothing for herself and her children? Will it be electricity and water? Is there anyone who can determine that the human right of the petitioner to live with dignity is not violated in these circumstances?

8.    An even more wretched picture can be seen from other figures that are before us. These figures show that, even before the present reduction in the income supplement benefits, the ability of recipients of income supplement benefit to support themselves with dignity was questionable and partial. This can be seen from research that was conducted by the National Insurance Institute in the years 1999-2000, which was recently published (Y. King, G. Maor-Shavit, ‘Quality of Life of Recipients of Income Supplement Benefit,’ 2005).

This research reveals a particularly serious picture of reality with regard to the population of recipients of income supplement. It shows that twenty per cent of the families that receive income supplement reported that during the previous five years there were times when they had nowhere to live. Twenty per cent of these families reported that they were left on the street or they stayed in a public bomb shelter or in the basement of a building in which relatives lived (p. 5). Moreover, the amount of space per person in apartments where recipients of income supplement lived was lower in comparison to the amount of space per person in apartments of people not receiving income supplement, and a significant number of the families live in apartments that are in disrepair (p. 6). It was also reported that in twenty-one per cent of the families that receive income supplement each person does not have his own bed, and forty-three per cent of the families do not heat their apartments in the winter even when it is cold (p. 10). Moreover, it was found that 40 per cent of the recipients of income supplement reported that they did not buy medications that they needed because they did not have the means. Sixty-four per cent reported that they did not have dentistry treatment when they needed it. Almost all of them stated the reason to be the inability to pay for the treatment (pp. 17-18). Finally, twenty-eight per cent of the families reported that they did not eat meat or meat substitutes even once a week. Seven per cent of the families reported that they never or usually do not have enough food and twenty-four per cent of them reported that sometimes they suffer from a shortage of food. In total, approximately a third of the families that receive income supplement suffer from a shortage of food all or most of the time (p. 17).

The figures before us, which were complied as aforesaid by the National Insurance Institute — which is, after all, a respondent in this case — can show, even according to the restrictive model proposed by the state, a substantial violation of the human right to live with dignity in a large sector of society. A large question mark arises in view of this situation, in which the party responsible for compiling these troubling figures is the same that appears before us and claims that the human right of recipients of the income supplement benefit to live with dignity has not been violated as a result of the reduction in their benefit.

9.    In addition to the aforesaid there is other material, such as the opinion of the chairwoman of the Israel Social Workers Association, Mrs Etti Peretz, which was submitted for our inspection within the framework of the petition in HCJ 366/03. This opinion pointed to a substantial and irreversible harm that the reduction in benefits would cause children in families that were supported by the income supplement benefit, including the physical injuries that they would suffer as a result of poor nutrition that did not include all the necessary nutrients required for proper physical development. It also emphasized the serious harm that would be dealt to population groups defined as ‘risk groups,’ which mainly include chronically ill persons and disabled persons who are not entitled to a disability allowance. These groups, it was explained, would be compelled to stop taking essential medications as a result of the reduction in the amount of the benefit.

10. These statistics are not merely figures on a page. They indicate a day-to-day reality. They describe the persistent life experience of many people. We are dealing with ‘creatures of flesh and blood, of people in pain, of living and breathing human beings’ (CA 1165/01 A v. Attorney-General [31], at p. 80). These are figures to which the court is entitled to refer when it places a piece of legislation under constitutional scrutiny (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 439 et seq., and see the references cited there). They are used in determining the effect of an executive act on basic rights as well as in assessing the alternatives to the chosen executive act. This was discussed by Prof. Barak, who said:

‘[In order to determine the constitutionality of a statute] the court must be presented with the various legislative alternatives, their advantages and disadvantages. Sometimes the difficulty can be solved with the aid of the principle of judicial knowledge. According to this principle, there is no need to prove information that every educated person is supposed to know, since the court also is supposed to know it. Some social facts fall within this framework. Notwithstanding, most social facts do not fall within judicial knowledge. Many social facts are sometimes based on economic, social, psychological and sociological research. How is it possible to discharge the burden of proof with regard to such social facts? The answer is that it is possible to present to the court the various research… It is desirable to present the court with a comprehensive factual picture with regard to the factual basis on which the legislation and its ramifications are founded. The burden in this regard lies with the party claiming that the statute is constitutional. Only by means of this social information can the court discharge its “burden” and make a responsible decision on the question whether the law satisfies the requirements of the limitations clause’ (Barak, Constitutional Interpretation, 479).

I am of the opinion that the figures — the ‘social facts’ — that are before us have succeeded in establishing the petitioners’ claim that the human right to live with dignity has been violated. They discharge the initial burden of proof with regard to the violation of the right. They point to a prima facie conclusion that, even when taking into account the other support networks that the state provides (a fact whose existence received excessive emphasis in the affidavits of the respondents), the right to human dignity of too many citizens and residents of the State of Israel is not protected. In these circumstances, the respondents should have proved how, according to them, the right to human dignity is not violated notwithstanding the major reduction in income supplement benefits. This proof is required, according to the approach of Justice Beinisch, with which I agree, ‘already in the first stage of the constitutional scrutiny’ (para. 2 of her opinion supra).

11.  The affidavits of the state in reply — with regard to the denial of the claim of a violation — did not satisfy me in this matter. Apart from general declarations about the existence of a ‘safety net,’ which despite the aforesaid amendments ‘maintains its function as a safety net,’ there is nothing in them that succeeds, or even purports to prove, concretely, how the human right to live with dignity is maintained. This is particularly clear in view of the fact that these dramatic changes that were made to the Income Supplement Law were not accompanied by any other statutory amendment with the purpose of reducing their adverse effect. In such circumstances, there is an even greater need to explain and to clarify how the dignity of a person as a human being continues to be protected notwithstanding the major and drastic reduction of approximately a third of the benefit that is his only income. This question was left without any real answer.

12. As my colleague the President says, the approach of the respondents is that the reduction in the income supplement benefit, in itself, does not indicate a violation of the human right to live with dignity. At most, it was claimed, we are speaking of a reduction in the scope of the last safety net that the state provides for those persons who need it. The scope of the safety net, according to the respondents, provided it does not lose its function as such, is a matter that is subject to their absolute discretion. This approach of the respondents seems to me problematic. It denies any ability to exercise judicial scrutiny of alleged violations of the human right to live with dignity. Suppose the Income Supplement Law was repealed in its entirety by the Knesset (without this step being accompanied by a parallel step of formulating an alternative normative arrangement). Would it still be possible to argue, in such circumstances, that we are dealing merely with a ‘change’ in the aspects of the ‘last safety net’ that the state provides, a change that does not indicate, in itself, a violation of the constitutional right to dignity? The approach of the state allows it to answer yes to this question. This indicates its problematic nature. Admittedly, it is possible to adopt the opinion that the human right to live with dignity is characterized, as the state claims, with ‘inherent vagueness’ (even though not everyone agrees with this approach; see, for example, G. Mondlack, ‘Socio-Economic Rights in the New Constitutional Dialogue: From Social Rights to the Social Dimension of Human Rights,’ 7 Labour Law Annual (1999) 65, at p. 96). But one cannot use the vagueness of the right to negate it and empty it of content. This outcome is possible where it is held that a drastic and indiscriminate reduction in the benefits that serve as the sole income of individuals and families does not prove — even prima facie — a violation of the constitutional human right to live with dignity, notwithstanding the existence of figures that blatantly contradict this assumption.

13. I reach a similar conclusion with regard to the government’s decision. As stated at the beginning of my opinion, I accept the conclusion of my colleague the President with regard to the constitutionality of the cancellation of the benefit concerning the reduction in the amounts of municipal property tax (para. 9 of the government decision). This is because of the fact that in practice this cancellation represents merely a transition from one entitlement test to another entitlement test, which is designed to achieve the same purpose. By contrast, the exemption given to recipients of income supplement from the television licence fee and the reduction in bus fares were cancelled in their entirety. They will not be given on the basis of an individual income test, or on the basis of any other test. Recipients of income supplement will, from now on, pay the full price.

Freedom of movement, the right to information and the freedom of expression are constitutional basic rights in Israel. These rights stand on their own and they have a constitutional status in their own right. Alongside their status as independent rights, it can be said that certain aspects of them — or to be more precise, the effective ability to exercise them — are essential factors in guaranteeing a person’s ability to function socially, which serves him in realizing his right to dignity. It is difficult to exaggerate the importance of the abilities to move from place to place, to be exposed to what is happening in society and to participate in the social activity taking place in it. My colleague the President expressed this well in his opinion, and I see no need to add to his remarks. Against this background, so I believe, we should understand the purpose underlying the granting of an exemption from paying the television licence fee and the granting of a reduction in bus fares to persons who receive income supplement. The choice to subsidize these services does not reflect a mere whim. Its purpose is to allow a person who receives income supplement to take a part in social life. This purpose, as has been explained, is directly related to the human right to live with dignity.

As I stated above, the reduction that was made to the income supplement benefits is inconsistent with the human right of recipients of income supplement to live with dignity. It follows that we cannot regard the use of an additional part of the already meagre amount in the possession of the recipient of the benefit for these purposes — an act that would in many cases mean giving up essential and basic items — as a real possibility. Therefore, the alternative of the recipients of the benefit — and the only practical possibility available to them — is to stop using these services. This, in my opinion, also involves a violation of the human dignity of the recipients of the benefit. The lack of any real ability to enjoy freedom of movement in its most basic sense and being cut off from the world of information, content and public debate in which the other members of Israeli society take part deal a mortal blow to the ability of a person to function reasonably in society. It leads to feelings of alienation, estrangement and isolation. Thereby the dignity of a person as a human being living within a social framework is violated.

14. It should be emphasized that I do not intend to establish a rule and principle that the duty of the state to ensure that every person lives with dignity automatically implies a duty to grant exemptions and reductions in the purchase of basic services. It is clear that the cancellation of arrangements of this kind will not be regarded, in all cases, as violating the constitutional right to dignity. But, the more closely these services are associated with the human right to live with dignity — especially when they are also associated with additional basic rights, and this, in my opinion, is the case before us — the more the decision to cancel them or to change them must take into account their aforesaid purpose. The duty of the respondents in this regard is to show that, in the final analysis, the human right to dignity is protected. In this matter too, I am of the opinion that the respondents have not discharged the constitutional burden of proof that rests with them.

My premise is that the reduced income of recipients of income supplement does not allow human beings to live with dignity. In such circumstances, any additional economic burden, which makes it still harder to realize this right and also places in doubt the ability to realize other basic rights, naturally intensifies this violation. Consequently, the burden of proof in this matter also must pass to the respondents. The respondents must explain why the cancellation of these benefits does not violate the constitutional human right to dignity. Moreover, the respondents must explain that the cumulative effect of the actions that they have adopted with regard to recipients of income supplement does not amount, when taken together, to a prohibited violation of their dignity. The respondents have done neither of these. Similar to the general arguments that they made to the effect that the reduction in the income supplement benefits did not violate the right to live with dignity, with regard to the government decision that is subject to our scrutiny they have also not tried to show, concretely, that the cancellation of the aforesaid benefits thereby does not violate the constitutional right to dignity. The ramifications of the cancellation of these arrangements on the recipients of income supplement was not assessed at all, and no weight was given at all to their most important role in guaranteeing the basic rights of the recipients of the benefit. In summary, unlike my colleague I am of the opinion that the petitioners have shown a prima facie basis to their claim that the human right to live with dignity has been violated, and that this claim has not been rebutted by the respondents. It follows that the path is open to continue the constitutional scrutiny.

Proper purpose

15. A violation of a constitutional right is permitted in so far as it is intended to serve a proper purpose. A purpose is a proper one if it serves an important social purpose that is sensitive to human rights (see Szenes v. Broadcasting Authority [32], at p. 838 {___}) or if the need to realize it is of social or national importance (see Horev v. Minister of Transport [33], at p. 52 {___}). From the respondents’ affidavits in reply, we see that the reduction in the amount of the income supplement benefit was made within the framework of a comprehensive economic programme that sought, in its own way, to contend with the difficult position in which the Israeli economy found itself. This was done, inter alia, by means of a reduction in the amounts of the income supplement benefit, in order to encourage its recipients to enter the work force. In addition, it emphasized the need to neutralize the ‘poverty trap,’ which was allegedly created as a result of the amount of the benefit and other benefits to which persons who received the benefit before the amendment were entitled and which, according to the respondents, were the sole factor that prevented the petitioners and recipients of the income supplement benefit from extricating themselves from their problematic situation.

No one will dispute that a reduction in the amount of poverty and the aim of bring unemployed individuals into the work force are proper legislative purposes. This is, of course, also the case with regard to complying with budgetary goals and keeping within budgetary limits. There is therefore no difficulty in determining that the reduction in the benefits was intended to advance a proper purpose.

Proportionality

16. The requirement of proportionality focuses on an examination of the measures chosen by the legislature in order to achieve a legislative purpose that has been found to be a proper one:

‘The principle of proportionality focuses… on the correlation between the purpose and the measures for achieving it… it examines whether the measures adopted by the government in order to realize the proper purpose are commensurate with the purpose that they seek to realize… The principle of proportionality is intended to protect the individual from the government. It is intended to prevent an excessive violation of the liberty of the individual. It determines that the executive measure must be determined carefully in order to befit the realization of the purpose. Thereby it gives expression to the principle of the rule of law and the legality of government’ (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [36], at p. 11).

According to our accepted approach, the requirement of proportionality is satisfied if the executive measure used to achieve the purpose satisfies three subtests. According to the first subtest, there must be a rational connection between the purpose and the executive measure that is chosen to achieve it. This test provides that ‘the measure should be designed into order to achieve the purpose’ and that ‘it should lead, in a rational manner, to the realization of the purpose’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 436). According to the second subtest, the executive measure should harm the individual as little as possible. This test ‘is comparable to a ladder, which the legislature climbs in order to achieve the legislative purpose. The legislator must stop at the rung on which the legislative purpose is achieved and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of Finance [37], at p. 385). According to the third subtest, the measure chosen by the government is proportional in so far as its violation of the right is commensurate with the benefit arising from it. ‘The measure chosen — even if it is (rationally) appropriate for achieving the purpose, and even if there is no more moderate measure than it — must achieve a proper correlation between the purpose that will arise from it and the scope of the violation of the constitutional human right’ (ibid.).

Does the violation of the human right to live with dignity, which is caused as a result of the reduction in the income supplement benefits, satisfy the proportionality tests? We are unable to answer this question, or, to be more precise, the figures that the respondents have submitted to us do not allow us to answer it in full.

Regarding someone who cannot be placed in any employment

17. In so far as the reduction in the income supplement benefits relates to groups that include individuals who cannot be placed in any employment, my opinion is that it does not satisfy the test of proportionality. As is well known, the Income Supplement Law lists various groups of individuals who are entitled to a benefit. The circumstances causing the need for the benefit among these persons are varied. Thus, for example, among the groups entitled to receive an income supplement benefit are persons who lack the capacity to work and support themselves sufficiently or who cannot be placed in any employment because of their age or state of health (s. 2(a)(1) of the Income Supplement Law); persons who are registered at the employment office as unemployed, and to whom the Employment Service office has not offered suitable work (this applies to persons who are not entitled or who have exhausted their entitlement to unemployment pay under the National Insurance Law — s. 2(a)(2) of the Income Supplement Law); persons whose wages are low (s. 2(a)(3) of the Income Supplement Law); persons whose time is mostly devoted to caring for their spouse or sick children, who need continual supervision (s. 2(a)(7) of the Income Supplement Law); persons who are not employed because they are serving a prison sentence in community service to which they were sentenced (s. 2(a)(8) of the Income Supplement Law) and others. Those among the population who are entitled to income supplement are also varied. They include new immigrants, single-parent families, the homeless, the disabled and others.

These facts have a clear significance for the question whether there is a rational connection between the reduction in the income supplement benefits and the stated purpose. As we have said, the persons entitled to receive income supplement benefit include persons who are unable to enter the work force at all. Even if we assume that there is an expectation that reducing the benefit to those persons who are unemployed but are capable of working (even though these persons are usually required to take on any ‘suitable work’ as a condition for receiving the benefit, to which I will refer again below), it can be assumed that a reduction, which seeks to achieve the stated purpose of encouraging people to go to work, will not find a logical basis for ‘encouraging’ persons who have no such capacity to go to work. Taking account of the circumstances causing the need for a benefit and the various needs of its recipients is therefore essential in determining the existence of a rational connection between the legislative purpose and the measure chosen to realize it. The indiscriminate character of the amendment, in view of its stated purposes, does not make it possible to determine that such a connection does indeed exist.

Determining the existence of a rational connection between the legislative purpose and the measure chosen to achieve it is a precondition to examining the other subtests included in the general test of proportionality. This is because, once it is determined that a measure cannot lead rationally to the realization of its purpose, because it is unsuitable for achieving the legislative goal, then there is no benefit in examining the question whether it is possible to achieve the purpose by means of other measures, or whether the benefits brought about by the measure are commensurate with the violation caused by it to the protected basic right (see Barak, Constitutional Interpretation, at p. 536), and in any case the proportionality tests are cumulative tests. In view of the fact that the reduction in the income supplement benefit of those persons who cannot be placed in any work cannot be regarded as having a rational connection with the purpose of encouraging people to go to work, the conclusion is that it does not satisfy the proportionality test.

Regarding other unemployed persons

18. Unlike the clear disproportionality of the reduction in the income supplement benefit with regard to persons who cannot be placed in any employment, the question whether the proportionality test is satisfied with regard to recipients of the benefit who are unemployed for other reasons raises other difficult questions. These question arise in view of the fact that no proper factual basis has been shown by the respondents with regard to the proportionality of the violation of the human right to live with dignity. It is well known that once it has been found that a piece of legislation violates a protected basic right, the burden of proof that the violation is proportionate, and therefore constitutional, rests with the party claiming that the law is constitutional:

‘The assumption is that a violation of a human right is not constitutional, unless whoever claims otherwise succeeds in showing that the conditions of the limitations clause are satisfied. The burden of proof should be imposed on the party making this claim. It should be noted that this burden is not imposed on him with regard to the interpretation of the offending provision of statute… the imposition of the burden is relevant only with regard to proving those elements of the limitations clause that are based on facts… For this purpose, he must bring to the attention of the court the “social” facts that are capable of supporting his conclusion and discharging the burden’ (Barak, Constitutional Interpretation, at p. 477).

Discharging the burden of proof with regard to the proportionality of the violation of a protected right involves a factual clarification. This is required in order to examine the rational connection between the purpose and the measure chosen to achieve it. It is essential in order to examine the possibilities available to the legislature for resorting to less harmful alternatives. It is needed in order to assess the correlation between the damage caused as a result of the violation of the right and the benefit arising from it. I am of the opinion that we have no effective ability to assess the proportionality of the violation of the human right to live with dignity of the recipients of income supplement benefit in the circumstances of the case before us, since we are faced with a significant lack of facts and figures. In such circumstances, the question of the proportionality of the human right to live with dignity remains open. We are unable to conduct the constitutional investigation. The necessary tools are not available.

19. Let me clarify my remarks: let us first take the duty of the respondents to choose the measure that achieves the legislative purpose (the rational connection test). As stated in their response, the purpose of the reduction in the income supplement benefits is to reduce the number of the persons entitled to receive income supplement that are ‘voluntarily’ unemployed, namely persons who are capable of undertaking work, and for whom work is available, but who prefer to continue to receive an income supplement benefit instead. The measure chosen, prima facie, has a rational connection with the legislative purpose, but this does not go beyond mere speculation and conjecture. In so far as the respondents wish to persuade the court that income supplement benefits are given, unlawfully, even to persons who are ‘voluntarily’ unemployed, as they claim, and therefore the reduction in the benefit paid to them will lead, rationally, to their integration in the work force, they ought to have taken the trouble to support these claims with factual figures that support them. General and theoretical declarations are insufficient. Concrete figures should be presented. These were not presented to us at all. I find myself compelled to ask whether such figures were compiled, and whether they exist.

Indeed, rationality requires facts. We need facts to say whether something is appropriate. It is reasonable to expect that legislation that is based on a purpose of reducing the scope of the abuse of the income supplement system would be supported by facts and figures. The estimated scope of the phenomenon and the number of individuals whose benefit was denied against this background remain unknown to us. It is questionable whether they are known to the respondents. No figure was given with regard to the estimated size of the group that unlawfully abuses the income supplement system, apart from the presentation of general figures that describe the increase in the number of persons receiving the benefit. But the problem is that it is possible to explain this increase by means of many other factors, including the economic recession, the large waves of immigration, the increase in the number of single-parent families, etc. (this, for example, is how the matter is explained in the opinion of A. Doron and J. Gal of the Hebrew University School of Social Work, which the petitioners in HCJ 366/03 attached to their petition). In these circumstances, we are unable to confirm or deny the existence of a rational connection between the purpose and the measure chosen to achieve it.

20. This is the case with regard to the existence of a rational connection, and it is also the case with regard to the choice of the least harmful measure. As I have said above, an income supplement benefit is given in accordance with an economic means test, and it is conditional — with regard to persons entitled to the benefit who are registered at the Employment Service office as unemployed (s. 2(a)(2) of the Income Supplement Law) — on an employment test. According to this test, a person will be entitled to a benefit only if the Employment Service office has not offered him suitable work, which is ‘any work that is suited to his state of health and his physical condition, or training, study or a career change in accordance with a request from the Employment Service or from someone authorized for this purpose at the Employment Service’ (s. 2(a)(2) of the Income Supplement Law). It is also provided that someone who is offered suitable work and refuses to accept it will lose his entitlement to a benefit for the calendar month in which the refusal occurred and for the following month (s. 3A of the Income Supplement Law). These conditions are intended to ensure that income supplement benefits will be paid to those who need them, and not to those who are capable of being integrated into the work force.

Is a reduction of the benefit the only solution to reducing the need for income supplement by persons who are capable of taking on work? Are there no less harmful measures that are still true to the legislative purpose? It is, prima facie, possible to adopt the approach that in so far as the respondents are of the opinion that the existing conditions are insufficient and that they still allow various recipients of the benefit to continue to enjoy it without any real justification, then by virtue of the duty to choose the least harmful measure they should have tried out other preventative measures. Thus, for example, it is possible to adopt the approach, almost intuitively, that measures such as increased enforcement of the provisions of the Income Supplement Law, making the conditions of the employment test provided therein more strict, etc., are measures whose harm to the persons that receive income supplement is much smaller, and they still achieve the legislative purpose. We have not heard from the respondents any argument in this respect. No explanation was given with regard to any attempt — if indeed there was one — to achieve the legislative purpose with less harmful measures. No factual basis was presented to us in this matter. This does not mean that the reduction in the benefits is necessarily disproportionate merely for the reason that no other alternatives were tried. It is possible that these alternatives are unsatisfactory. It is possible that choosing them involves difficulties. But in the absence of data in this matter, we are unable to draw any conclusion with regard to the proportionality of the violation in this respect also.

21. If this is the case with regard to the rational connection test and the least harmful measure test, it is certainly the case with regard to the test of proportionality in the narrow sense. An examination of the question whether the harm caused by the reduction in the income supplement benefits to the human right to live with difficulty is commensurate with the benefit obtained from it is not a simple matter at all. Implementing this subtest involves great difficulty in the circumstances of the case before us, because estimating the economic benefit that the respondents expect to derive is not a matter that the court can easily determine. In this matter too, sufficient information has not been submitted to us, and I refer particularly to the fact that the extent of the harm to the human right of the recipients of income supplement benefit to live with dignity — a fact of supreme importance for the purpose of examining the proportionality of the correlation between the harm caused to the right as a result of the reduction and the benefit derived from it — was not assessed by the respondents at all. Therefore, any attempt to make a claim with regard to the correlation that exists between the harm to the right and the benefit arising from this harm will be unsuccessful.

It should be emphasized that I do not mean to say that the duty of the legislature to base its decisions on a proper factual basis is identical in scope and content to the duty of the administrative authority to do this (Israel Poultry Farmers Association v. Government of Israel [28], at p. 27). However, in the circumstances of the case, it is a sine qua non for proving the proportionality of the violation.

22. As I have said, the conclusion that I have reached with regard to the impossibility of making the requisite constitutional clarification derives also from the fact that the purpose of the Income Supplement Law in guaranteeing the human right to live with dignity was not taken into account at all by the respondents when they decided to reduce the income supplement benefits by the amounts they decided to deduct.

As explained above, the circumstances in which people require an income supplement benefit are very varied. The members of the public that receive income supplement benefits are also varied. These are factors of supreme importance in determining the amount of the benefit and the amounts of the reduction. But in the case before us the amount of the reduction in the benefit is uniform and applies to everyone. It does not distinguish between persons who receive the benefit on the basis of the circumstances in which they receive the benefit, nor does it show any sensitivity to special needs that may be relevant to the recipient of the benefit.

This indiscriminate reduction, the average amount of which is approximately a third of the benefit in force previously, in a manner that does not take into account the circumstances that lead to a person requiring it, and where everyone is treated equally, is, in my opinion, a reduction that is ‘suspect’ (cf. HCJ 6698/95 Kadan v. Israel Land Administration [38], at p. 276). A reduction in the manner and circumstances described (even if one ignores the inherent difficulty involved in the legislative process of the Arrangements Law) is suspect in my opinion because its characteristics — and particularly its amount and the uniform application of this amount to groups for whom the circumstances in which they find themselves in need of the benefit are different and distinct — are strongly indicative of arbitrariness. They give rise to a concern that proper weight was not given to the constitutional status of the human right to live with dignity in determining the amount of the reduction. Similarly the special purpose of the income supplement benefit in realizing this basic right was not sufficiently taken into account.

23. If any clear additional proof is required that the purposes of the Income Supplement Law in realizing the human right to live with dignity were not taken into account, it can be found in the reply of the respondents themselves. The following was the explanation given by the respondents in para. 41 of their reply dated 15.5.2003 (under the heading ‘The rationales underlying the amendments under discussion in the petition’):

‘… The amendment to the law was not made arbitrarily, but was based on several guidelines:

a.            First… the income supplement benefit should not exceed the minimum wage; logic dictates that the income of a family that is supported by someone who works full time and is paid the minimum wage (approx. NIS 3,300) should not be less than the income of a similar family in which none of the heads of the family earns money from work…

b.            Second, the benefit in its smallest amount that is paid to an individual should not be reduced… since it is the smallest benefit, it was decided not to reduce it.

c.            The smaller the amount of the benefit before the reduction, the smaller, as a rule, will be the relative reduction to that benefit.

d.            The structure of the benefit will be amended so that the greater the income of a family from work, the greater its available income.

e.            There will be no change to the amount and structure of the benefits paid to persons over the age of 55, and persons who are entitled to a dependents’ pension, in relation to the position that prevailed before the amendment, and therefore no reduction will be made to these benefits.

f.            With regard to persons under the age of 55, the amount of the benefit shall be uniform, and no distinction shall continue to be made between an ordinary and increased rate; notwithstanding, someone who was entitled to an increased rate before the amendment shall continue to receive a higher rate than the aforesaid uniform rate (although it will be reduced in relation to the amount of the benefit that he received before the amendment), as long as he has not left the income supplement system for a period of half a year or more…

g.            The amendment will lead to the desired budgetary saving.’

Thus we see that the respondents themselves say that the role of the Income Supplement Law in realizing the human right to live with dignity was not a consideration in determining the amount of the reduction in the income supplement benefits. The principles that were adopted by the respondents in determining the new amounts of the benefits do not include the principle that a recipient of the benefit should be able to continue to support himself with human dignity. Consequently, we have, as aforesaid, not heard from the respondents — apart from general statements that the ‘security net’ provided by the state still retains this function — any explanation, example or clarification as to how the human right to live with dignity will be concretely protected notwithstanding the major reduction in the income supplement benefits. This can only be because the respondents do not know whether the amount of the present benefit allows human beings to live with dignity. And how could we think otherwise? This consideration was never considered by them — as stated expressly in their reply — in their decision to reduce the income supplement benefits. It was not argued before us — even half-heartedly — that an attempt was made to assess the ability of the recipients of the benefit after the reduction in the benefit to support themselves, or that consideration was given to the cost of subsistence needs such as food, housing, clothing and medications, and the relationship between this cost and the new amount of the benefit. No attempt was made to explain the amount of the reduction that was chosen against the background of the right to live with human dignity. And what the respondents do not know, we too are certainly unable to determine.

The same is true with regard to the government decision. Since we have been presented with no factual basis from which any conclusion can be reached with regard to the proportionality of the violation of the right to dignity of the recipients of income supplement as a result of the aforesaid paragraphs in the government decision, and since in any case the cumulative weight of the legislative amendments and the government decision that are the focus of this petition were not examined carefully, we are unable to carry out the constitutional scrutiny. In such circumstances, I cannot determine positively that the legislative amendments and the government decision are not proportionate. But neither can I determine the opposite. Once the burden of proof was passed to the respondents, the significance of this is that these arrangements should be declared unconstitutional.

The constitutional relief

24. We have therefore found that as long as the respondents have been unable to show otherwise, the amendments made to the Income Supplement Law and paras. 7 and 10 of the government decision disproportionately violate the human right to live with dignity. What, therefore, is the constitutional relief to which the petitioners are entitled? This question is a difficult one. This court does not have tools that can serve it in ‘translating’ the human right to live with dignity into numerical values. Moreover, the manner of determining the amount of the income supplement benefit and delineating other social arrangements involve value decisions as well as expert decisions: ‘A judge should be wary of employing… complex considerations of economic or social policy, which frequently are also in dispute, which require expertise and information, and which may require making assumptions and hypotheses, which themselves require additional assumptions’ (A. Barak, Judicial Discretion (1987), at p. 255).

However, what is correct with regard to the court is not correct with regard to the respondents. The court is not capable of determining a numerical value of any other measurement tool that can guarantee a proper protection of the human right to live with dignity. The respondents are capable of this. This is their duty. They must fulfil it. I do not wish to express any position as to the manner in which the respondents should discharge this duty of theirs. They have before them a wide spectrum of legitimate possibilities. They rightly point out that ‘there are many varied ways in which the state can provide a final safety net for those who need it. These ways, the manner of calculating them and their nature are within the jurisdiction of the government and the Knesset, inter alia because they have the complete information concerning the state’s resources and abilities, in addition, of course, to its various needs’ (para. 12 of the supplementary reply of the respondents of 26 November 2003).

25. I am aware of the difficulties that the respondents have discussed, at great length, concerning the determination of a minimum level of human subsistence with dignity, below which it will be deemed unconstitutional. However, a methodological difficulty in discovering the level of human subsistence with dignity should not be confused with a normative statement that such a level does not exist. In so far as there is no dispute — and there is no dispute — that there exist certain subsistence requirements below which the human right to live with dignity is violated, then the respondents have the (positive) duty to afford protection to these and the (negative) duty to refrain from violating them. This duty, with its negative aspect as well as its positive aspect, cannot be realized if we do not know its content.

26. It follows from the aforesaid that the respondents have the duty to make changes that they wish to make to arrangements that are designed to ensure the right to human dignity in such a way that real protection will continue to be afforded to this right, and with a view to its normative status. Indeed, the human right to live with dignity is a constitutional basic right. The duty to respect it does not end with ceremonial proclamations. The need to afford it protection is not limited to theoretical statements. Were we to hold otherwise, then we would empty the human right to live with dignity of any real content, and the ability to carry out judicial review of executive acts and legislation that (allegedly) violate the human right to live with dignity would be frustrated.

Conclusion — on ‘constitutional revolutions’ and the ‘poverty trap’

26. More than a decade ago, in his opinion in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], my colleague the President coined the expression ‘constitutional revolution,’ an expression which was intended to indicate the fundamental normative change that occurred in Israeli law when the Basic Laws concerning human rights were enacted:

‘The constitutional revolution occurred in the Knesset in March 1992. The Knesset gave the State of Israel a declaration of constitutional human rights. This constitutional revolution is the result of many years of development and a multi-faceted constitutional process. Underlying it is the recognition that according to our constitutional structure the Knesset has the constitutional authority to give Israel a constitution… in enacting the Basic Laws concerning human rights, the Knesset expressed its position with regard to the legal-constitutional status of two Basic Laws that concern human rights. Today the Supreme Court is expressing its legal position that confirms this supreme constitutional status’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 353).

By virtue of the ‘constitutional revolution,’ it was held that the Basic Laws defined new reciprocal relationships between the individual and other individuals, and between the individual and society as a whole. A new balance was created between the individual and the government (Ganimat v. State of Israel [26], at p. 412). From now on, ‘the legislative power given to the legislature is subject to a duty to respect human rights’ (Barak, Constitutional Interpretation, at p. 477).

Much water has flowed in the river of constitutional law since the landmark judgment was given in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], and the normative change in the status of human rights has, as we know, brought good news to many. It has benefited creditors and investment portfolio managers. It has benefited women who want to join a flying course and women who wish to be appointed as directors in state corporations. I am of the opinion that in this vein it is right to determine also that the same change also benefits the petitioners, in as much as their concerns are derived from the very heart of the need for constitutional recognition of the right to dignity.

27. Before I conclude my remarks, I think it right to say something about the main argument of the respondents, according to which the reduction of the income supplement benefits is required in view of the fact that it has led to ‘poverty traps.’ Large parts of the state’s affidavits in reply were devoted to a description of the sharp increase in the number of recipients of income supplement benefits, and to explanations about these ‘poverty traps’ that were created, allegedly, as a result, as a main reason that required a decision that reduced the benefits. This is how the respondents explained it in their reply: ‘The meaning of the term poverty trap… is that an analysis of the advantages of the structure of the benefit and its accompanying allowances, in comparison with the alternative of joining the work force, leads a rational person, who is interested in maximizing his available income, to prefer to remain within the benefit system and to refrain from choosing to join the work force or at least to join the work force to such an extent that he will be prevented from continuing to receive the benefit and the accompanying allowances’ (para. 33 of the respondents’ affidavit of 15 May 2003).

Against the background of these remarks, I think it right to say something that is certainly known even to the respondents. ‘Poverty traps’ are not created only as a result of benefits that are used to supplement income. This approach is erroneous and misleading. ‘Poverty traps’ are created also — and perhaps even mainly — as a result of the combined operation of many other factors: ‘poverty traps’ are created where some people do not have equal access to education and higher education; ‘poverty traps’ are created where some people do not have equal access to basic infrastructures; ‘poverty traps’ are created where protective employment legislation is not enforced, where the freedom of association of workers is not protected and where improper and illegal employment norms become common practice; ‘poverty traps’ are created where discrimination between persons on the basis of irrelevant considerations is practised, and this exacerbates feelings of alienation and unfair treatment. The respondents did not claim before us — and they certainly did not prove — that they tried other methods in the areas mentioned to prevent ‘poverty traps,’ before they decided to harm the sole income of some of the weakest social groups in Israel.

We are dealing with a difficult and complex social reality. We should not deny the circumstances that have led to its creation. It is not unrealistic to assume that it is far from being a result solely of the income supplement benefit and the accompanying allowances. The respondents have the national responsibility for acting to change it. Their constitutional duty requires this of them. When doing this, they would do well to pay attention to all the circumstances that create the reality of the lives of persons who are trying to extricate themselves, without success, from the poverty trap, and also to the vision of the founders of the state, who had the courage to imagine a place where there is complete equality of social and political rights.

28. For these reasons, if my opinion is accepted, we would declare ss. 17(3)(a), 17(11) and 17(13) of the Arrangements Law and paras. 7 and 10 of government decision void. The respondents, of course, are entitled to enact and decide these once again, provided that they do so in a manner that takes into account the entitlement of the recipients of income supplement to live with dignity, and the normative status of this right. This is required by the practical recognition of the human right to live with dignity. This is implied by the express purpose of the Income Supplement Law and the purpose underlying the arrangements that were cancelled by the government decision. This is what the respondents should have done ab initio.

 

 

 

Vice-President M. Cheshin

Prior to the commencement of the two Basic Laws of 5752-1992 — the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation — the court did not have jurisdiction to order the legal voidance of a provision in a statute of the Knesset. The word of the legislator was law, and the court was commanded to stand by and remain silent even if it thought that word of the legislature blatantly contradicted first principles of law and justice: HCJ 142/89 Laor Movement v. Knesset Speaker [39]. By contrast, when it was found that the content of a regulation conflicted with the dictates of statute, the court had the jurisdiction to order the voidance of that regulation. This was the rule with regard to any subordinate legislation, including orders and regulations with legislative force, and even regulations enacted by the government with the approval of one of the committees of the Knesset. Indeed, the higher its status in the hierarchy, the greater the strength of the subordinate legislation, and in line with the doctrine of ut res magis valeat quam pereat (that something should have effect rather than be void) the court did not rush to declare any subordinate legislation void. But no one had any doubt that the court was competent to consider whether subordinate legislation was valid or not. When the aforesaid two Basic Laws came into effect, the law and case law changed. This is what those two Basic Laws told us, and we followed in their wake. And so, since 5752-1992, when the court has found that a provision of statute enacted by the Knesset conflicts with any of the substantive provisions in those two Basic Laws, it has the power to declare that provision void. Thus the two Basic Laws have been interpreted in accordance with the interpretive tradition and the case law that has been accepted by us from the beginning, and this interpretation has remained unaltered until this time.

2.    The power that the court acquired in these two new Basic Laws — the power to declare a provision in a statute of the Knesset void — once again raised questions that were once critical questions but in the course of time began to diminish even if they did not entirely die away and disappear. I am referring to the claim that the voidance of subordinate legislation by the court — or should we say, a declaration of a court that a piece of subordinate legislation is invalid and void ab initio — involves an overlap of powers, allegedly, between the judicial authority and the subordinate legislative authority, or to put it more bluntly, that the voidance of subordinate legislation by the court amounts to an invasion by the court into territory not within its jurisdiction: CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [40]. For if the executive authority has the power to enact subordinate legislation, then the power to cancel that subordinate legislation also belongs to the executive authority. Should it therefore not be said that in ordering the voidance of subordinate legislation, the court is taking over the power of the executive authority, that it is invading the sphere of the executive authority? The answer to this question was also given a long time ago. It is that the executive authority enacts subordinate legislation even though the legislature’s power of legislation was given to it alone. Thus, just as the executive is competent to enact subordinate legislation and this does not detract even from the legislature that has been deprived, seemingly, of its power and has delegated legislative power to the executive authority, so too the cancellation of subordinate legislation by the court should not be regarded as an invasion by the judicial authority into the sphere of the executive authority. The realities of life dictate a certain mode of operation — authorizing the executive authority to enact subordinate legislation; the same realities of life give the court — at the behest of the legislature — power to cancel that subordinate legislation. Now, when the court has acquired power to cancel one or more provisions of primary legislation, questions that were laid to rest in the ground for a long time have arisen and these questions come back to disturb our repose from time to time.

3.    So the question is what legal criteria should we adopt when we examine whether a provision of a certain statute is in conflict with one of the provisions of those Basic Laws of 5752-1992? Should we use the same legal technique that we use in the process of voiding subordinate legislation also with regard to the voidance of statute? And if we say that we should use the same technique in both cases, is the basic approach for the scrutiny identical in both cases? Our answer to this question is that the technique — in principle — is the same technique, but the basic approach when applying the technique to the issue under discussion is a different approach, in quantity if not in quality.

4.    Concerning the technique, in our case we are witness to the decisive weight given to the content of the Basic Laws when scrutinizing the constitutionality of subordinate legislation and when carrying out judicial review of administrative acts. We see that since the limitations clause in the two Basic Laws under discussion was enacted, the courts have applied its principles also to the scrutiny of subordinate legislation and administrative acts, and this is particularly the case with the principle of proportionality — a principle which in certain senses is akin to reasonableness. Indeed, the scrutiny of legislation of the Knesset is carried out, and rightly so, in an orderly and strict manner as required by the provisions of the Basic Laws, but in essence we see no fundamental difference between one scrutiny and another.

5.    This is the case with regard to legal technique — and for the scrutiny of subordinate legislation, on the one hand, and of the legislation of the Knesset, on the other, is a similar and almost identical technique — but it is not the case with the basic approach. For if with regard to subordinate legislation the question of the overlap of powers between the judicial authority and the executive authority arose — and was put to rest — this is not the case in the relationship between the judicial authority and the legislative authority, the Knesset, with regard to primary legislation. Here the doctrine of the decentralization of power and the separation of powers weighs us down with its full force, and it is a doctrine that we must take very great care to uphold. We must tread very carefully before we order the voidance of a provision of a statute of the Knesset, even in a case where we are speaking of the basic rights of the individual. This great caution has adopted the form of a doctrine, and this doctrine cautions us expressly and specifically against intervention in the legislative acts of the Knesset, lest the court oversteps itself and trespasses into the sphere of the legislative authority: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349 et seq.; HCJ 5503/94 Segal v. Knesset Speaker [41], at pp. 547 et seq.. In our case, it can be said that the violation of the right of the individual must be a major violation, a fundamental and profound violation, a violation that has negative strength in quantity, weight and degree, in order that it should prevail over an express provision of statute.

In the final analysis — or, to be precise, in the initial analysis — the voidance of a statute of the Knesset, in whole or in part, is not like the revocation of a fishing licence or a licence to manage a food shop, nor even like the voidance of regulations that were enacted by a competent authority or by a minister or by the government itself. The way in which we make our decision will depend also on the nature of the right, the place of the right in the whole collection of human rights, etc.. With regard to human dignity — and this is the issue here — we should remember that we wish to derive from it a right that the legislator did not mention expressly in the Basic Law. The basic principle on which democracy in Israel is based — the principle of the decentralization of power and the separation of powers — gives the legislative authority, which is the state’s house of elected representatives, a considerable margin within which it is free to manoeuvre, and this margin is very wide indeed. The violation of the right of the individual must be so serious that the holder of the legal scalpel will allow himself to penetrate through the surface of the legislation and cut out the offending part. In this context we should recall that there is also a difference between rights of a negative nature — the rights of the individual that the government should not intervene in his affairs, which are the classical rights — and the rights of the individual that the government should be compelled to do something, that the government should give grants, etc..

6.    When I take cognizance of all this, I agree with the opinion of my colleague the President — with a heavy heart, like him — and at the same time, by corollary, I have difficulty in agreeing with the opinion of my colleague Justice Levy. We all feel for the petitioners before us — Mrs Rubinova, Mr Pedalon and others like them — and these are not mere words. In this case, as in other cases, the judge is confronted by a person in distress who asks for help and brings his supplication before the court. Only a heart of stone would not feel, and in the judge’s breast there beats a heart of flesh and blood. We would like to be of assistance to them, to the petitioners, for their life is a life of distress, and we know that only with difficulty, with very great difficulty, are they able to conduct their lives in an orderly fashion. But what is stronger for us are the dictates of the legal system in which we live, and it is our duty to suppress our feelings — and sometimes, also our anger — and not to overstep the boundaries that have been placed around us. For if we overstep these, we will undermine the system of government and administration, and any good that we do will be outweighed by the harm that we cause. It is we who are now under scrutiny, and the question is whether we will succeed in resisting our good intentions and conquer our feelings. I fear that voiding an act of the legislature on the basis of the facts that have been brought before us would amount to a serious and blatant intervention in powers that are not ours. The scalpel in our hands is the scalpel of law, and the law places restrictions and restraints on us that we cannot overcome.

 

 

Petition denied, by majority opinion (President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis), Justice Levy dissenting.

11 Kislev 5766.

12 December 2005.

 

 

 

The Supreme Court sitting as High Court of Justice

 

HCJ 6298/07

HCJ/6318/07

HCJ 6319/07

HCJ 6320/07

HCJ 6866/07

 

Before:            President D. Beinisch

                        Deputy President E. Rivlin

                        Justice A. Grunis

                        Justice M. Naor

                        Justice E. Arbel

                        Justice E. Rubinstein

                        Justice E, Hayut

                        Justice H. Melcer

                        Justice N. Hendel

 

Petitioner in HCJ 6298/07:             Major (ret.) Yehuda Ressler, Adv.

 

Petitioner in HCJ 6318/07:             The Movement for Quality Government in Israel

 

Petitioner in HCJ 6319/07:             Itay Ben Horin, Adv.

 

Petitioners in HCJ 6320/07:           1. Avraham Poraz, Adv.

                                                      2. Ilan Shalgi, Adv.

                                                      3. Hetz – Secular Zionist Party

Petitioners in HCJ 6866/07:           1. Ran Cohen M.K.

                                                      2. Yosef Beilin M.K.

                                                      3. Haim Oron M.K.

                                                      4. Avshalom Vilan M.K.

                                                      5. Yaron Shor – Secretary General, Meretz-Yahad Party

 

v.

 

Respondents in HCJ 6298/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondents in HCJ/6318/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondent in HCJ 6319/07:         The Knesset

 

Respondents in HCJ 6320/07:        1. The Knesset

                                                      2. Government of Israel

                                                      3. Minister of Defense

                                                      4. Attorney General

 

Respondents in HCJ 6866/07:        1. Attorney General

                                                      2. Minister of Defense

 

                                                      Petitions for an order nisi and an interim order

 

Dates of sessions:                          15 Sivan 5769 (7 June 2009)

                                                      25 Shevat 5771 (30 January 2011)

 

For petitioner in HCJ 6298/07:       Yehuda Ressler, Adv; Yaffa Dolev, Adv.

 

For petitioners in HCJ 6318,07:     Eliad Shraga, Adv; Tzruya Meidad, Adv; Dafna Kiro, Adv; Mika Koner-Carten, Adv.         

 

For petitioner in HCJ 6319/07:       Itay Ben Horin, Adv.

 

For petitioner in HCJ 6320/07:       Gideon Koren, Adv;
Guy Kedem, Adv.

 

For petitioner in HCJ 6866/07:       Uri Keidar, Adv; Eyal Mintz, Adv.

 

For respondent 1 in HCJ

6298/07, in HCJ 6318/07,

HCJ 6319/07 and HCJ 6320/07:    Eyal Yinon, Adv; Gur Bligh, Adv.

 

For respondent 2 in HCJ 6298/07,

and HCJ 6318/07,

and respondents 2-4 in

HCJ 6320/07, and for

respondents 1-2 in HCJ 6866/07:   Osnat Mandel, Adv;

                                                      Hani Ofek, Adv.

 

Israeli laws cited:

Basic Law: Human Dignity and Liberty, ss. 8, 9

Deferment of Military Service for Yeshiva Students for who the Torah is their Calling Law, 5762-2002, 9 (3), 16 (b)

Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005

Basic Law: The Army, s. 4

Civilian Service (Legislative Amendments) Law, 5768-2008

Defense Service Law

 

Israeli Supreme Court cases cited:

[1]       HCJ 3267/97 Rubinstein v. Minister of Defense, [1998] IsrSC 52 (5) 481

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

[3]       HCJ 910/86 Ressler v. Minister of Defense, [1988] IsrSC 42 (2) 441

[4]       HCJ 40/70 Becker v. Minister of Defense, [1970] IsrSC 24 (1) 238

[5]       HCJ 448/81 Ressler v. Minister of Defense, [1981] IsrSC 36 (1) 81

[6]       FH 2/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (1) 708

[7]       HCJ 179/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (4) 421

[8]       HCJ 4769/95 Menachem v. Minister of Transportation, [2002] IsrSC 57 (1) 235

[9]       HCJ 1661/05 Hof Azza Regional Council v. The Knesset, [2005] IsrSC 59 (2) 481

[10]     HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, (1999) (not yet published)

[11]     HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense, (2006) (not yet published)

[12]     HCJ 3648/97 Stemka v. Minister of the Interior, [1999] IsrSC 53 (2) 728

[13]     HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 54 (4) 1

[14]     HCJ 4541/94 Miller v. Minister of Defense, [1995] IsrSC 49 (4) 94

[15]     HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, [1995] IsrSC 49 (4) 221

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

[17]     CrimApp 6659/06 Ploni v. State of Israel, (2008) (not yet published)

[18]     HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General, (2008) (not yet published)

[19]     HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (2009) (not yet published)

[20]     HCJ 1715/97 Investment Managers Association v. Minister of Finance, [1997] IsrSC 51 (4) 367

[21]     HCJ 5503/94 Segal v. Knesset Speaker, [1997] IsrSC 51 (4) 529

[22]    HCJ 98/69 Bergman v. Minister of Finance, [1969] IsrSC 23 (1) 693

[23]     HCJ 114/78 Burkan v. Minister of Finance, [1978] IsrSC 32 (2) 800

[24]     HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [1992] IsrSC 46 (2) 692

[25]     HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister, [1998] IsrSC 52 (4) 193

[26]     HCJ 4124/00 Arnon Yekutieli, (deceased) v. Minister of Religious Affairs, (2010) (not yet published)

[27]     HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education, (2010) (not yet published)

[28]     HCJ 7111/95 Center for Local Government v. Knesset [1996] IsrSC 50(3) 485

[29]    HCJ 257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 45(2) 265.

[30]     HCJ 390/79 Duwekat v Gov’t of Israel [1979] IsrSC 34(1)1

[32]     HCJ 746/07 Regan v. Ministry of Transport (not reported)

[33]     CrimApp 8823/07 Anon v. State of Israel (not reported)

[34]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1982] IsrSC 42(2) 221

[35]    AAA 10673/05 Mikhlelet HaDarom v. State of Israel (not reported)

[36]     HCJ 5373/08 Abu Libda v. Minister of Education (not reported)

[37]     HCJ 5803/06 Guttman v, Minister of Defense (not reported).

[38]     HCJ 466/07 Galon v. State Attorney (not reported)

[39]   EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [2003] IsrSC 57(3) 793

[40]     HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [2006] IsrSC 61(2) 314

[41]     HCJ 5000/95 Bertler v. Military Prosecutor General [1999] IsrSC 49(5) 64

[42]     HCJ 6784/06 Shlitner v. Director of Payment of Pensions [2011] (not reported)

[43]     CrApp 8823/07 Anon v. State of Israel [2010] (not reported).

[44]     HCJ 4908/10 Roni Baron v. Israel Knesset [2012] (not reported.

[45]     HCJ 11956/05 Bishara v. Minister of Construction and Residence [2006] (not reported)

[46]     FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [2007] (not reported)

[47]     11088/05 Heib v. Israel Lands Administration [2010] (not reported).

[48]     HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [2002] IsrSC 57(1) 419

[50]     HCJ 4948/03 Elchanati v. Finance Minister [2008] (not yet reported)

[51]     HCJ 104/87 Nevo v. National Labor Court [1990] IsrSC 44(4) 749

 

Foreign Legislation Cited

[52]     Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[53]     Bayatyan v. Armenia, [2011] ECHR 23459/03 [ ].

Facts: The subject of military service for hareidi (ultra-Orthodox), full-time yeshiva (rabbinical seminary) students has been at the center of public debate in Israel since the founding of the state, when the first Defense Minister, David Ben Gurion, decided to defer their conscription. The arrangement was significantly expanded over the years, and its underlying reasons also changed. Numerous attempts were made to challenge the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability In the 1986 Ressler case [3], the Court held that the petitioner had standing, and that his petition was justiciable, but denied the petition on the merits, holding that granting deferments to yeshiva students was within the scope of authority of the Minister of Defense. However, the Court also held that the number of students receiving deferments was of relevance, and that “quantity makes a qualitative difference”. Thus, there was a limit that a reasonable Defense Minister could not exceed. In the 1997 Rubinstein case [1], the data showed such a significant increase in the number of deferments. The Court held that the Minister of Defense did not have the authority to continue to grant the deferments, and that the matter had become one that must be decided by the Knesset in primary legislation.

Following that decision, the Knesset enacted the Deferment of Military Service for Yeshiva Students Law, 5762-2002. The law was an enacted as a temporary order that would be in force for five years, at which time the Knesset could extend its force. The constitutionality of that law was challenged in the Movement for Quality Government case [2]. The Court ruled that the Deferment Law violated the right to human dignity, but that it served a proper purpose as required under sec. 8 of Basic Law: Human Dignity and Liberty (the “limitation clause”). The Court, therefore, refrained from declaring the Law unconstitutional, explaining that the existence of a rational connection between a law’s purpose and the measures adopted for its realization is not a theoretical matter, but rather a practical test that is based upon the results of its actual implementation. The Court, therefore, decided to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. The Court further stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation”. On 18 July 2007, the Knesset voted to extend the Deferment Law for an additional five years (until 1 August 2012). This prompted the petitions in this case, challenging the constitutionality of the Deferment Law.

Held: The Court (per President Beinisch, Justices Naor, Rubinstein, Hayut, Melcer and Hendel concurring, Deputy President Rivlin and Justices Grunis and Arbel dissenting) granted the petitions, holding the Deferment Law to be unconstitutional.

In the Movement for Quality Government case, the Court had found that the Deferment Law violated Basic Law: Human Dignity and Liberty, but that it did so for purposes that was held to be proper. After examining the statistics concerning the actual implementation of the Law, the Court found that although the data revealed an increase in the number of hareidi men enlisting for military service or volunteering for alternative civilian service, the trend was insufficient, some ten years after the enactment of the Law, to demonstrate a significant realization of the purposes of the Law. Moreover, in examining the implementation of the Law, the Court found that the Law suffered from inherent flaws that impaired the possibility of realizing its objectives. Because the right to equality constitutes a fundamental right, the level of scrutiny required in examining whether its violation meets the proportionality test demands that there be a real, significant probability that the means adopted by the Law will achieve its purposes. Inasmuch as the means adopted by the Law were not found to have a real potential for realizing its purposes, the Law did not meet the requirements of the proportionality test established under the limitation clause, as is required of a law that violates a fundamental right. The Law, therefore, was unconstitutional.

Justice Arbel (dissenting, joined by Deputy President Rivlin) was of the opinion that the time was not yet ripe for making a final ruling upon the constitutionality of the Law, and that the Court should continue to show restraint, and grant the State additional time to implement the Law and achieve its purposes.

Justice Grunis (dissenting) reiterated the view he had expressed in his dissenting opinion in the Movement for Quality Government case, according to which judicial review is inappropriate for laws in which the majority grants preferential rights to a minority. Justice Grunis further argued that the ability of the Court to exert influence over an issue such as that raised in the petitions is limited. Therefore, it would be better that the Court refrain from intervening.

Although the Court found the Deferment Law to be unconstitutional, inasmuch as it was due to expire six months following the handing down of the decision, the Court decided not to declare it void, but rather to allow it to run its course, while holding that law could not be further extended by the Knesset in its present form.

 

 

Judgment

 

President D. Beinisch:

 

The arrangement for deferring the military service of full-time yeshiva [rabbinical seminary] students has been at the center of public debate in Israel since the founding of the state. Over the years, the nature of the issue has changed, and the question of the induction of yeshiva students has assumed an increasingly important role in public discourse as the number of those opting into the arrangement has assumed significant dimensions. Naturally, this issue has concerned all the branches of government, and this Court has addressed it on a number of occasions. It now comes before us for the eighth time.

1. I will state at the outset that, in my view, the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law 5762-2002 (hereinafter: the Deferment Law, or the Law) – which had previously been found to violate the right to equality that forms part of the right to human dignity – does not meet the proportionality condition of the limitation clause, and it is, therefore, unconstitutional.

This view is based upon the data concerning the implementation of the law as presented by the Respondents. The data – which will be presented below in detail – shows that the Law comprises inherent impediments that significantly influence the possibility for giving it effect and realizing its objectives. Although the data does reveal some movement toward change, we are not convinced that such a trend is sufficient some ten years after the enactment of the Law. The data that was submitted to us shows that in 2010, only 600 members of the hareidi [ultra-Orthodox Jewish – ed.] community were inducted into the designated programs created by the IDF in accordance with the Law, while 1,122 opted for alternative civilian service, and by the end of 2008, 3,269 had taken advantage of the “decision year”. Most of those who completed the decision year, returned to the status of full-time yeshiva student for whom “Torah is their calling” (and received a deferment from military service, or an exemption from military service for various reasons).

Along with this statistical data, one of the most important findings relates to the number of people acquiring the status of full-time yeshiva student each year. The Respondents themselves admit that the number of military deferments has steadily risen since the enactment of the Law. In 2007, for example, 6,571 members of the hareidi community joined the ranks of those for whom “Torah is their calling”. That means that, each year, more hareidi men assume that status than the number who opt for military or civilian service. The total number of deferments, as of the date of the submission of the data, stands at 61,000. The number of those for whom Torah is their calling also rises steadily relative to the total draft pool over the last few years, so that in 2007, it constituted 14% of those eligible for conscription.

As will be explained more fully below, statistical data do not tell the whole story. My position on this important but difficult matter is influenced both by the quality of the military or civilian service offered by virtue of the Law, as well as by the manner in which the Law has been implemented by the Executive over the years. Looking at all of this data, it is my view that while there has been an improvement in the implementation of the Law, the means established by the Law cannot be seen to be realizing its purpose, and it would appear that the law comprises impediments that contribute to the impossibility of achieving its full realization. That being the case, there is no alternative but to find that the Law is unconstitutional.

 

Background

 

2. Before we address the question in depth, and before surveying its history, we should note that the turning point in the case law came about in HCJ 3267/97 Rubinstein v. Minister of Defense [1] (hereinafter: the Rubinstein case). That turning point marked a milestone in the course of proceedings concerning the issue of the conscription of yeshiva students. In that case, this Court held that the Minister of Defense had acted unlawfully in maintaining the arrangement for the deferment of military service for full-time yeshiva students, as it had not been authorized by law, and that the authority to establish a military deferment arrangement, which constituted a “primary arrangement”, was in the hands the Knesset. Following that decision, the Knesset enacted the Deferment Law. The question of the constitutionality of the Law was brought before this Court in HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2] (hereinafter: the Movement for Quality Government case). In that case, which we will discuss at length below, the majority of the Court, concurring with the opinion of President Barak, ruled that the Deferment Law violated the constitutional right to human dignity, in that it was discriminatory, and violated equality in regard to the most fundamental values underlying human dignity. In view of that holding, the Court proceeded to examine whether the Law met the conditions of the limitation clause. The Court concluded that the Law served four objectives that joined together in giving the Law a proper purpose that was consistent with the values of the State of Israel as a Jewish and democratic state. In addition to examining its purpose, the Court also considered whether the Law met the proportionality test. The Court found that the extent of the violation of rights was manifestly disproportionate, as on its face it was apparent that there was no rational relationship between the Law’s objectives and the means established for its realization. As became clear from the data brought before the Court in the course of the proceedings, “the objectives of the Law were but incidentally and insignificantly realized” (ibid. [2], pp. 712-713). The Court, therefore, found that only the Law’s first objective had been realized – viz., the deferment arrangement had been established by statute. The Court noted that the purpose of the Law was “to promote compromise and balance among conflicting objectives,” and that in addition to providing a statutory basis for the arrangement, it was intended to promote equal distribution of the security burden, and the integration of hareidi men into the workforce. Those objectives were not realized. Therefore, the Court held that “given that the various objectives of the Law are tightly intertwined, there is no avoiding the conclusion that the primary, overall objective of the Deferment Law is not being realized” (ibid. [2], at p. 712).

              Despite its conclusion that the Deferment Law did not meet the first proportionality test, the Court refrained from declaring the Law unconstitutional. The Court explained that the existence of a rational connection between a law’s purpose and the measures adopted for its realization (the first subtest in examining proportionality) is not a theoretical matter, but is a practical test that is based upon the results achieved in realizing the law and its actual implementation. In view of the scope of the social change required for the Law’s realization, the Court decided that those implementing the Law should be permitted “to fix what they broke” (ibid. [2], at p. 713). The Court noted that in view of the Government’s failures in implementing the Law, it would be difficult to say whether the Law suffered from a “genetic” defect – i.e., a defect in the Law’s provisions themselves, or whether the problem was administrative. Therefore, and inasmuch as the Deferment Law had been enacted as a Temporary Order for five years (with the possibility of its extension for additional five-year periods), the Court decided that it would be appropriate to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. Therefore, the Court stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation” (ibid. [2], at p. 714).

              It should be noted that, in his carefully reasoned dissenting opinion, Deputy President (Emeritus) M. Cheshin argued that the Law was void ab initio. In his view, even if it were possible to consider applying a special legal arrangement to limited groups of unique character and to separatist elements in hareidi society, there is no acceptable justification for the broad exemption granted by the “Torah is their calling” framework. Justice A. Grunis concurred with the majority, but for other reasons.

4.      The first five years of the life of the Deferment Law have passed, and on 18 July 2007, the Knesset voted to extend its force for an additional five years (until 1 August 2012). It is against this background that the petitions before the Court were submitted. The petitioners raise the question left undecided in the Movement for Quality Government case – the question of whether the Law meets the proportionality test. Specifically, we are asked to decide whether there has been that “significant change” in the results of the Law’s implementation that would show that the defect that the Court discerned in the Law is not inherent to the Law’s provisions, but rather to the manner of their implementation by the relevant authorities.

              The petitions were initially heard before a three-judge panel. On 29 May 2008, an order nisi was issued in regard to the petitions, and it was decided that they would be heard before a nine-judge panel. The hearing before the expanded bench took place on 7 June 2009, and an interim order was granted. The order, given by Justice E. Hayut, stated:

 

‘We have considered the written and oral arguments raised by the parties before us . . . and have concluded that before making a final decision upon the constitutionality of the Deferment Law, and upon its extension for an additional five years, the apparatus intended for its implementation, which have only just begun to take shape and begun to operate (the special service tracks established in the IDF, and the civilian service track), should be permitted to prove their effectiveness or ineffectiveness by their results over an additional, fixed period. After that period, we will reassess the data concerning IDF conscription and civilian service of those granted deferments, as well as the other arguments and considerations necessary for rendering a judgment upon the instant petitions. At the same time, we would emphasize two matters, already at this stage. First, the judgment delivered in the Movement for Quality Government case is the starting point for this decision and for the judgment that will be rendered in the matter of the instant petitions, and there is no cause to revisit the arguments raised by some of the petitioners who seek to appeal findings and conclusions in matters already decided in the said judgment. Second, to date, the pace of addressing the apparatus intended to implement the Law, and the pace of allocating the necessary resources have been very far from what might have been expected under the circumstances. That is particularly so in view of the substantial period of time that has elapsed since the enacting of the Law in 2002’ (para. 9 of the decision of Justice E. Hayut from 8 September 2009).

 

In accordance with that interim order, we directed that we would revisit the petition in 18 months, at which point we would decide “whether the apparatus established by the Law, which have begun to operate, have the potential to bring about significant change” (para. 10 of the decision of Justice E. Hayut). On 30 January 2011, the hearing was held, and we were presented with the most up-to-date data as to the implementation of the Law. The data focused upon the change in the scope of military conscription, and upon the various service tracks for yeshiva students, upon the work of the National Civilian Service Directorate (hereinafter: the Directorate or the Civilian Service Directorate), and upon the number of volunteers serving in that framework, the number of yeshiva students choosing to avail themselves of the “decision year”, and what they did at the end of that year. We were also presented with two reports dealing with the implementation of the Law in practice. One, the report of the “Plesner Panel” led by MK Yohanan Plesner, which was appointed by the Knesset Foreign Affairs and Defense Committee, and was presented as part of the Knesset’s response to the petition. The second, the Report of the Inter-Ministerial Committee, headed by the Director General of the Prime Minister’s Office, which was appointed by the Government, and was presented as part of the Government’s response. These data, which form the basis for the proceedings in regard to the petitions before the Court, will be presented in detail below.

 

The course of events

 

5.           The relevant factual background of the arrangement for deferring the military service of full-time yeshiva students was presented in detail in earlier decisions of this Court, in the Rubinstein case and in the Movement for Quality Government case, and we will, therefore, only briefly address it. The arrangement began on 9 March 1948, when the Chief of the National Staff of the Haganah (the CNS) announced that “a decision has been made that yeshiva students, in accordance with approved lists, are exempt from military service”, and that “this decision is valid for the year 1948, and the problem will be reconsidered at the end of the year” (see: The Report of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (2000) (hereinafter: the Tal Commission), p. 32; and see HCJ 910/86 Ressler v. Minister of Defense [3], at p. 449 (hereinafter: the Ressler case)). With the establishment of the State, the first Defense Minister, David Ben Gurion, directed that the conscription of full-time yeshiva students be deferred. These were the difficult years that followed the Holocaust. In light of the destruction of the European yeshivas, there was a fear that the conscription of yeshiva students might threaten the closure of the yeshivas in Israel. In order to guarantee that “the flame of Torah not be extinguished”, it was decided that the arrangement would be granted annually to 400 yeshiva students who studied in a fixed, defined number of yeshivas. The arrangement significantly expanded over the years. The limit upon the number of yeshivas participating in the arrangement was cancelled, and the quota of students entitled to deferments gradually increased, until it was ultimately eliminated entirely. In addition, the scope of students entitled to a deferment of service was expanded, and the requirements for qualifying for a deferment were eased (see: Nomi Mey-Ami, The Conscription of Yeshiva Students to the IDF and the Law on Deferrals for Yeshiva Students for Whom Torah Is Their Calling (the “Tal Law”), research paper of the Knesset Research and Information Center, 28 February 2007 (in Hebrew). The research paper was appended to the Knesset’s response of 21 May 2008, and marked Res/3). Along with this, the reasons underlying the arrangement also changed. The original fear of the closure of the yeshivas that might result from the conscription of their students was replaced by the desire to allow the yeshiva students to continue their studies. This was accompanied by a growing perception “that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them” (the Rubinstein case [1], at p. 491).

6.           Over the years, there have been numerous attempts to attack the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability (see: HCJ 40/70 Becker v. Minister of Defense [4]; HCJ 448/81 Ressler v. Minister of Defense [5]; FH 2/82 Ressler v. Minister of Defense [6]; HCJ 179/82 Ressler v. Minister of Defense [7]). The stance of the Court changed in the Ressler case [3], in which the Court held that the petitioner had standing, and that his petition was justiciable. Nevertheless, on the merits, the Court held that granting deferments to yeshiva students was not ultra vires, and was not beyond the scope of the reasonable exercise of ministerial authority. That decision was premised upon the factual data presented in those proceedings, according to which, of the total conscription pool, 1,674 yeshiva students received deferments (approximately 5.4% of the total), and a total of 17,017 students were participating in the military deferment arrangement (ibid. [3], at p. 451). The Court held that the number of yeshiva students receiving deferments was of importance, and that “quantity makes a qualitative difference” Accordingly, it was held that there is a limit that a reasonable Defense Minister could not exceed. That line had not been crossed when the deferment question was addressed in the Ressler case (ibid. [3], at p. 505).

7.           In 1997, another petition was submitted in the matter of the deferment of yeshiva students, which presented data showing a significant increase in the number of yeshiva students whose military service had been deferred. The number of students receiving deferments, as of 1996, constituted some 7.4% of the annual conscription pool, with a total of 28,547 yeshiva students receiving deferments, and thereby, effectively being exempted from conscription (the Rubinstein case [1], at p. 493; and see: State Comptroller’s Annual Report (No. 48) (1998, and Accounts for the 1996 Fiscal Year), at p. 1004). Under the circumstances, it was held that the Minister of Defense could no longer decide the issue of deferment of military service, and that the question had become one that must be decided by the Knesset in primary legislation:

 

‘the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time yeshiva students receiving a military service deferment, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem’ (ibid. [1], at p. 530).

 

In order to allow the Minister of Defense and the Knesset to consider the issue and prepare for a change in the existing arrangement, the operative part of the judgment was suspended for one year from the handing down of the decision. Accordingly, and in order to construct an appropriate arrangement in regard to the induction of full-time yeshiva students into the IDF, the Tal Commission was appointed in August 1999, headed by former Supreme Court Justice T. E. Tal. The commission was asked to present its recommendations concerning “the proper statutory approach . . . by which the Minister of Defense will be authorized . . . to exempt men of military age . . . or defer their service . . . on the grounds that the ‘Torah is their calling’.” The commission was also asked to address the issue that “the said exemption or deferment could apply to an unlimited number of yeshiva students, in that, in general, there is no intention to prevent the yeshiva students from continuing their studies, all in accordance with the law” (see: the Tal Commission Report, p. 1).

8.           The Tal Commission presented its recommendations in April 2000. On the basis of those recommendations, the Draft Bill for the Military Service (Deferment of Service for Full-Time Yeshiva Students) Law (Temporary Order), 5760-2000, was published in the Official Gazette. The legislative process continued over the course of two years, and on 24 July 2002, the Knesset enacted the Deferment Law. The Law was enacted as a temporary order, and established that its extension would be reconsidered by the Knesset after five years. The Law provides that if certain conditions are met, among them a minimum number of hours of study and a prohibition upon working during study hours, the Minister of Defense may grant a one-year deferment to yeshiva students (ss. 2 and 3 of the Law). The main innovation of the Law, as opposed to the previous situation, was the introduction of alternative tracks to the deferment arrangement. The first track was that of the “decision year” (s. 5 of the Law). Under this arrangement, a yeshiva student whose military service had been deferred for four years and had reached the age of 22, could receive a further one-year deferment, even if he did not meet the normal conditions for deferment. During that year, the student could work without any limitations. Following the “decision year”, the yeshiva student could choose whether to return to the former track of yeshiva studies – while continuing to receive a deferment from military service – or whether to enlist for military service or civilian service. The possibility of opting for a decision year would be granted only once to each yeshiva student. Another track established by the Law was that of civilian service (s. 6 of the Law). The possibility of choosing this option was also granted only to those whose service had been deferred for four years and had reached the age of 22. Anyone who does not opt to take a decision year or volunteer for civilian service, and who meets the legal criteria, would continue to receive a deferment.

 

The Movement for Quality Government v. The Knesset case

 

9.           As noted, the question of the constitutionality of the Deferment Law was first addressed in the Movement for Quality Government case. All of the earlier petitions against the Law focused upon the argument that the Deferment Law infringed equality by discriminating between those members of society who performed military service and those members of society who were exempt from such service, without there being any relevant difference between the two groups, and without meeting the conditions of the limitation clause. The petitioners also argued that those members of society who served were required to serve in the army for longer periods, the risk to their lives and health increased, and the economic harm they incurred was greater. The factual data presented to the Court showed that in 2003, the number of deferments stood at 38,449; in 2005, the number stood at 41,450, and by 2006, the number of deferments had grown to 45,639 (ibid. [2], at pp. 665-667). Indeed, in its response, the State admitted that the implementation of the Deferment Law was not satisfactory, and that significant parts of the Law had not been implemented. The State also agreed that “there is a need for an immediate change of the existing situation” (ibid. [2], at p. 666, in the letter of the Minister of Justice to the Prime Minister of 18 July 2005, which was appended to the State’s response). The Prime Minister directed that a series of steps be adopted to implement the Law, and in particular, to implement the civilian service track, which had not been implemented at all as of the day of the hearing of the petition (loc. cit.).

10.         After reviewing the factual data and the arguments of the parties, we delivered our decision in which the majority of the Court held that the Deferment Law violated human dignity. The Court, per President Barak, held that the primary right at the core of the dispute was that of equality, and it is infringed by the blanket deferment that discriminates, in the absence of any relevant difference, between those members of society who serve and those whose service is deferred (ibid. [2], at pp. 677-679). It was, of course, held that not every infringement of equality constitutes a violation of human dignity. However, in accordance with the construction given to human dignity under the centrist model adopted in the decision, it was held that an infringement of equality that touches upon the fundamental values underlying human dignity constitutes a violation of dignity, and that the infringement resulting from the Deferment Law constituted such a violation. Discrimination in regard to the freedom of choice given a person in the course of prolonged service, that exacts a clear personal and economic cost, and that often involves risk to life and limb – is discrimination in regard to life itself. Such discrimination, the Court held, is the most severe, and its violation of a person’s dignity as a free, autonomous being, is beyond question (ibid. [2], at pp. 689-690).

              Having found that the Deferment Law violates equality as a component of human dignity, the Court examined whether the Law’s infringement of dignity was lawful under the conditions of the limitation clause. In other words, was the infringement done by, or in accordance with a law befitting the values of the State of Israel; was the law enacted for a proper purpose, and is the violation of rights no greater than required. As noted, in the framework of that examination, the Court found that the Law served four, primary objectives: to provide a statutory basis for the arrangement, to promote equal distribution of the security burden, in the sense that more men from the hareidi community would ultimately serve in the army, or at least perform civilian service, to encourage the hareidi community to participate in the workforce, and to resolve the problems in the existing deferment arrangement for yeshiva students, gradually, carefully and on the basis of broad consent rather than coercion (which would be ineffective) in regard to conscription. These four combined and interrelated objectives endowed the Law with a proper purpose. That being so, the examination focused upon the issue of proportionality. Based on the first subtest of proportionality, which examines whether or not there is a rational connection between a law’s purpose and the measures adopted for its realization, we found that the infringement caused by the Law is not proportionate. That finding was based upon the data that had been presented before the Court, which showed that while the number of deferments grew steadily over the years, and comprised 45,639 men as of the end of 2006, the alternative tracks were barely put into effect (ibid. [2], at p. 711). Less than 3% of those who received deferments opted for the decision year, and only 9% of those who completed the decision year chose to enlist. Nearly all of the others returned to the “Torah is their calling” track, or were exempted from service. They were not integrated into Israeli society or into the workforce. As for the civilian service alternative, a small number of those deferred showed any interest in pursuing it, and even three years after the Law’s enactment, the State has yet to adopt regulations and create frameworks to facilitate such service (loc. cit.). In view of these troubling findings, we stated that if we were to decide the petitions on the basis of the situation presented to us, we would have to declare the Law void due to a lack of proportionality. We further held that in the absence of a rational connection between the means and the objective, the application of the other two subtests becomes entirely theoretical.

11.         Nevertheless, we were of the opinion that, inasmuch as the Deferment Law was enacted as a temporary order, it would be appropriate to wait until the conclusion of the five-year period of its operation, before making a final determination on the constitutionality of the Law. That time period was also needed in order to test the respondents’ argument that the fault lie not with the Law itself, but rather with the arrangements made for its implementation. The Court ruled that the answer to the question could be given only after the law had been implemented for some period of time, at which point it would be possible to examine how the tracks that implemented its objectives had progressed, and the effect of the Law upon the scope of deferments granted to yeshiva students. We, therefore, decided to wait and see if the Law would bring about the desired social change, and held that “if change is not achieved, there is a serious fear that the law will become unconstitutional. There will then be no alternative but to reconsider all of its arrangements, in terms of both their social and legal aspects” (ibid. [2], at p. 722 per Barak, P.).

12.         Six years have passed since handing down the decision in the Movement for Quality Government case. Once again we face the question of the proportionality of the Law as demonstrated by its implementation over the last few years. As we held in our decision of 9 September 2009, this Court’s decision in the Movement for Quality Government case, according to which the Law is, in the words of Justice A. Procaccia, contaminated by a “virus” of unconstitutionality (ibid. [2], at p. 795), will serve as the starting point for our decision on the current petitions. The question is whether the results of realizing the Law demonstrate that its implementation can cure the “virus”, or whether there is no avoiding the conclusion that we are concerned with a law that is not appropriate to its objectives.

 

The petitions before the Court

 

13.         As earlier stated, the Deferment Law was originally enacted for a five-year period. Under s. 16 (b) of the Law, the Knesset may extend the force of Law for additional periods, not to exceed five years each. On 31 July 2007, about half a year before the Law’s expiry, the Knesset held a plenum debate in which it decided that the Foreign Affairs and Defense Committee would submit its recommendation as to the extension of the Law. The Foreign Affairs and Defense Committee heard a variety of experts who examined various aspects of the Law, and at the end of its deliberations, the Committee recommended that the Knesset extend the Law. The Committee’s recommendation was primarily premised upon the introduction of a civilian national service arrangement in 2008, and the expectation of a resultant change in the Law’s implementation. The Knesset received the recommendation on 18 July 2007, and voted by a majority of 56 in favor, with 9 opposed, and 2 abstaining, to extend the force of the Law for an additional five years, until 1 August 2012. The petitions before the Court were submitted in response to that extension.

 

Arguments of the petitioners

 

14.         Five petitions were submitted against the Deferment Law. Some of the petitioners have been involved in this legal battle for years. Many of the arguments are common to a number of petitioners, and for the sake of simplicity, they will be presented together. The arguments are primarily aimed at the Law’s arrangements and at its extension for an additional five years. The primary argument is that, in practice, there has been no observable change in the implementation of the Law. The petitioners ask that the Court determine that the Law is unconstitutional, or alternatively, some of the petitioners ask that the Court establish standards and criteria for assessing its effectiveness.

              The petitioners argue that the decision to extend the Law for an additional five years exacerbates the discrimination and the inequality in bearing the security burden and in risk of life. According to them, the Legislature and the Executive were given ample opportunity to realize the objectives of the Law, and the actual implementation data shows that, in practice, yeshiva students are granted a blanket deferment that, over the years, becomes an exemption from military service. The petitioners argue that the number of those enlisting or opting for civilian service is but a “drop in the ocean” in comparison to the growing number of yeshiva students enjoying deferments or complete exemptions, and their number relative to the annual conscription pool is constantly on the rise. It is further argued that the data show that the primary area of growth is in regard to the number of those opting for civilian service, which shows that the Law does not at all encourage enlistment into military service, and that the data prove that the decision year does not influence the choice of whether to enlist or remain in yeshiva.

              The petitioners further argue that the fact that the Law does not establish any limit upon the number of exemptions from service is sufficient to show that the question of proportionality was not considered. In order to achieve the Law’s objective, they argue, it was possible to adopt other means less harmful to equality, such as establishing quotas, goals, limitations, and criteria that would grant exemptions on a case-by-case basis, and that would take into account the increasing number of applications for exemption from military service. Additionally, it is argued that the blanket exemption granted to yeshiva students demonstrates the absence of an appropriate relationship between the advantages to be gained by the Law and the violation of constitutional rights, given that the Legislature granted absolute freedom of choice to yeshiva students, while imposing long years of demanding obligatory service upon other youngsters.

15.         Some of the petitioners add that the State measures the success of the Law exclusively by economic criteria that examine hareidi integration into the workforce. In their view, this is but a byproduct of the main issue before us, and therefore, those criteria should not be addressed by the Court. In any event, the petitioners argue that the numbers not only show that the number of exemptions significantly increased while the number of enlistees did not adequately increase, but also that the economic objectives of the Law were not achieved.

 

Arguments of the respondents

 

16.         In accordance with the procedural framework established for this case in the Movement for Quality Government case and the interim decision we issued on 8 September 2009, the respondents’ pleadings – the Knesset, and the Minister of Defense and Attorney general – focused upon the progression of events following the extension of the Law, and upon data regarding its actual implementation. That data indicates, so it is argued, that the Deferment Law meets the proportionality test.

17.         Respondent 1, the Knesset (hereinafter: the Knesset), submitted three primary responses (pleadings of 21 May 2008; amended pleadings of 4 January 2009; supplemental pleadings of 19 January 2011). In all three sets of pleadings, the Knesset argued that the Deferment Law should not be declared void. In its first pleadings, of 21 May 2008, it argued that the petitions should be denied because the civilian service apparatus, which is one of the fundamental pillars of the deferment arrangement, had only begun to operate a few months prior to the extension of the Law, and its operation should be assessed over time. The response presented a detailed report of the deliberations of the Foreign Affairs and Defense Committee, which before recommending that the Knesset extend the Law, decided to tighten its supervision over the Law’s implementation. According to the argument then raised, although the data concerning the Law’s implementation shows that not enough had been done to advance it, the Law should not be deemed as suffering from a “genetic flaw”.

              On 19 January 2011, the Knesset submitted an updated response. These supplemental pleadings were accompanied by the Interim Report of the “Plesner Panel” (hereinafter; the Interim Report or the Plesner Report), which had been appointed by the Foreign Affairs and Defense Committee as part of its attempt to tighten its supervision over the implementation of the Deferment Law. The panel was led by MK Yohanan Plesner, and its members were Knesset Members Arieh Eldad, Moshe Gafni, Nissim Zeev, Israel Hasson, Eitan Cabel, and Moshe (Mutz) Matalon. The panel held a large number of meetings, fact-finding missions, and meetings with various elements responsible for implementing the Law. The Interim Report concluded that the implementation of the Law had failed. The Interim Report notes that the data revealed low rates of enlistment and participation in civilian service; an insufficient number of appropriate tracks for military service by yeshiva students; a need to establish goals for realizing the Law, and that consideration should be given to establishing quotas for entering the deferment arrangement. Despite the conclusion that the implementation of the Law had failed, the Plesner Panel was of the opinion that “the Law should not be repealed, but rather policy and legislative changes should be made to enable adapting the Law’s arrangements to the positive developments in hareidi society, and the lessons that had been learned thus far in regard to the conditions for the induction of hareidi men into the IDF” (Interim Report, p. 11). The Knesset’s attorney noted that, following the submission of the Interim Report (which was signed by five of the seven members of the Panel), it was discussed by the Foreign Affairs and Defense Committee (but was not brought for a vote). At the conclusion of the session, the committee chairman, MK Shaul Mofaz, expressed his support for the principles outlined in the Interim Report. Therefore, in light of the Report’s findings, and following the debates in the Foreign Affairs and Defense Committee and in the Knesset plenum, the current position of the Knesset was summarized as follows:

 

‘In view of the positive developments presented in the Interim Report of the Plesner Panel, in view of the complexity of the profound social change that the Law entails, and the care and restraint appropriate to a sensitive, controversial issue in Israeli society, the Law should not be declared void and unconstitutional. However, the Knesset is of the opinion that the government must act to remove the impediments, establish policy, clear goals and courses of action for attaining them, and significantly intensify the efforts to implement the Law. In addition, the Knesset intends to employ the tools at its disposal in order to continue to closely follow the manner in which the Law is implemented . . .’ (supplemental pleadings of the Knesset, dated 19 January 2011, p. 6).

 

18.         Respondents 2-4 (the Government of Israel, the Minister of Defense, and the Attorney General – hereinafter: the Government) also submitted several sets of pleadings to the Court. In its pleadings, the Government described the various tracks for implementing the Deferment Law, and appended up-to-date figures regarding the number opting for each of the tracks. The Government’s primary argument is that the touchstone for evaluating the implementation of the Deferment Law should not be result-based – viz., an evaluation of the number of persons in military or civilian national service at any given time – but rather a process-based approach that examines the gradual change in the implementation of the Law. According to the Government, in view of the complexity of the required social change, what must be examined is the process for its implementation rather than the quantitative results at the present moment. It is argued that the process-based criterion comprises a number of sub-criteria, the examination of which will aid in determining whether “the State has met its duty of due diligence” (amended pleadings, dated 24 January 2011, p. 12). The Government recommended four criteria: (a) long-term commitment by means of establishing an operational structure, together with quantitative interim goals; (b) gradual (and continued) growth of the organizational infrastructure by which the Government intends to institute egalitarian conscription; (c) appropriateness of the allocated means to the potential pace of change, given the constraints deriving from the social complexity and the degree of social ripeness for change; (d) maintaining supervision and control over the gradual change, including the defining of interim goals to serve as reference points for supervision. It is argued that examining the implementation of the components of the process criteria will lead to the conclusion that the Government was diligent in creating a broad operational infrastructure that led to an increase in the number of persons serving in the various tracks. Moreover, the Government referred us to its last decision, from 9 January 2011, that established a “five-year plan” with quantitative goals for the number of persons to be serving by the year 2015. The decision also established that an Inter-Ministerial Committee, headed by the Governor General of the Prime Minister’s Office, which had submitted a report prior to the said decision, would maintain continuous oversight of the implementation of the decision, and present a report by 1 July 2012.

              In addition to these arguments, the Government is of the opinion that it is incorrect to examine the numerical data deriving from the general population of those receiving deferments, but rather the examination should be made in regard to the segment of the young population composed, in general, of young married men who do not yet have children. According to this line of reasoning, the group of older yeshiva students have families, and there is considerable doubt as to whether, at this point in their lives, they would leave their studies in order to enlist for military or national service. Therefore, the social change that the Deferment Law is intended to institute is not relevant to that group. The Government argues that when the change is examined in relation to the younger population group that joins the deferment arrangement each year, the numbers over the last years reveal a significant change. Thus, for example, the Government notes that the number of new enlistees for military and civilian service from the hareidi population shows nearly a six-fold increase over the last four years. Similarly, the Government notes that over the last four months of 2010, some 120 men opted for civilian service each month. The Government maintains that the increase testifies “that this service track, and its underlying legitimacy, are growing, and are expected to grow with the increase in opportunities for service in this track” (supplementary pleadings of respondents 2-4, dated 24 January 2011, p. 7). According to the Government, the increase in the number of those joining the various service tracks testifies to the fact that the existing apparatus is succeeding to bring about an increase in the number of people enlisting, and that the present increase “is an expression of the maximum effort possible at this point in time, in light of the constraints deriving from the pace of social change” (ibid., at p. 9).

 

Review

 

19.         It is unnecessary to emphasize the importance of the question before the Court. Over the years, the issue of the conscription and exemption of yeshiva students has been examined by the Court with cautious restraint, while we carefully observed the social processes attendant to implementing the complex goals intrinsic to the Deferment Law. Like all the public bodies that have addressed the subject of the conscription of yeshiva students, we were constantly aware of the need to achieve greater equality in sharing the burden of military service, and of the importance of integrating hareidi society into the workforce, as well as of the need to achieve all this without coercion, while reinforcing the social contract grounding the attaining of these objectives. As we stated in our decision of 8 September 2009, our holdings in the Movement for Quality Government case constitute the starting point for our decision in this case. That means that having recognized the proper objectives of the Law under review, what remains to be examined is whether the violation of the right to equality is consistent with the proportionality requirement of the limitation clause. The current examination is, therefore, being conducted within the parameters set out in that judgment.

20.         We now are now confronted with the first question that must be decided under the proportionality test: Do the means adopted by the law actually serve to realize its objectives? The judgment in the Movement for Quality Government case was delivered some three years after the Law’s enactment. Several more years have past since then. We have reached the “finish line” (see the interim decision of 8 September 2009, per A. Procaccia, J.). Much experience has accumulated. The primary apparatus for implementing the Law have been put in place. Several conscription cycles have concluded. We can now perform a quantitative examination comparing the number of enlistees in the various service tracks to the number of those opting for the deferment arrangement each year, and the number of those who choose to remain in it until obtaining a full exemption from military service. The numerical data now before us suffice to inform an opinion as to whether the Law’s objectives have been realized, or at least, if some trend can be discerned in the implementation of the Law that changes the balance identified in the Movement for Quality Government case, so that we might decide that the Law passes the proportionality test.

21.         The proportionality test established by the limitation clause requires that the violation of the protected right by the Law be “to an extent no greater than is required”. The proportionality requirement recognizes that it is not sufficient that a law befit the values of the State of Israel, or that it be enacted for a proper purpose. The means adopted by the Legislature to realize that purpose must also be examined. That examination has been construed by the case law as comprising three subtests: the rational connection test – which examines whether the means chosen are appropriate to realizing the purpose; the least harmful means test – which examines whether the means chosen for realizing the purpose of the law is the one that will cause the least harm to the constitutional right, from among the possible means; and lastly, the proportionality test stricto sensu – which requires that there be a reasonable relationship between the infringement of the constitutional right and the advantage gained by that infringement (on the proportionality test, see: HCJ 4769/95 Menachem v. Minister of Transportation [8], at pp. 279-280 (hereinafter: the Menachem case); HCJ 1661/05 Hof Azza Regional Council v. The Knesset [9], at. p. 546 (hereinafter: the Hof Azza case); HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [10], at para. 46 of my opinion (hereinafter: the Prison Privatization case). We will begin with the first subtest.

 

The first subtest: The rational connection test

 

22.         According to the rational connection test, the means adopted by the Law must be appropriate to the Law’s intended objective, such that they have the potential of realizing it (see, inter alia: HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense [11], para. 29, per A. Barak, P.; HCJ 3648/97 Stemka v. Minister of the Interior [12], at. p. 776 (hereinafter: the Stemka case); HCJ 5016/96 Horev v. Minister of Transportation [13], at p. 53 (hereinafter: the Horev case); the Hof Azza case [9], at p. 550). The proportionality test examines the question of whether “the means chosen is relevant to the realization of the purpose, in the sense that the probability of attaining that purpose increased with the enactment of the law. Therefore, if implementing the means does not have the potential of realizing the purpose of the law, then the use of that means is disproportionate” (Aharon Barak, Proportionality: Constitutional Rights and their Limitations, p. 374 (2010) (in Hebrew) (hereinafter: Proportionality). In the Movement for Quality Government case, we held that the decision as to the rational connection between the means and the purpose is not merely a theoretical question. Rather, in the circumstances of the case at hand, we sought to employ a practical test. Can it be said, nine years following the enactment of the Deferment Law, that its means are capable of realizing its purposes?

23.         In answering the petitions, the Respondents provided copious data concerning the implementation of the law. The data details the extent of the Law’s implementation in accordance with the three tracks that it established: military service, civilian service, and the decision year. These are accompanied by a fourth track, which, practically speaking, is also established by the Law, that of deferment. The data, which will be presented more fully below, paints a complex picture. On the one hand, the number of those entering military service or choosing civilian service is discernibly on the rise. Military service options were broadened and adapted to accommodate hareidi soldiers. The Civilian Service Administration was also created, albeit with considerable delay. On the other hand, despite the growth in the number of hareidi men serving in the army and performing civilian service, the numbers are not high in absolute terms. The total number of those actually entering military or civilian service in 2010 – which is the largest number since the enactment of the Deferment Law – is significantly lower than the number of those who chose the deferment arrangement that year. In practice, the data demonstrate that more hareidi youths choose deferment of service than opt for military or civilian service. It should be pointed out that in the interim since the submission of the data, the ratio between those who choose the deferment arrangement and those who enter military or civilian service has remained unchanged. This would appear to be the trend according to published reports of the recent meetings of the Foreign Affairs and Defense Committee of the Knesset.

              In order to determine whether, ultimately, the Deferment Law meets the rational connection test, we will review the data submitted to us in regard to the implementation of the Law. As stated, the data summarize the situation up to the beginning of 2011. We will first analyze the data in regard to each of the service tracks, and then consider whether or not the data, taken together, lead to the conclusion that the Law passes the proportionality test.

 

Military service

 

24.         From the Government’s response to the petitions before us, it appears that there are currently two unique service options for the hareidi public. The first track is the hareidi Nahal battalion “Netzach Yehudah”, in which, as a rule, one completes a regular, 36 month tour of duty. This track is not new. It existed before the Deferment Law was enacted, but it was utilized in a relatively limited way. Those who serve in this track are generally young hareidi men who have dropped out of yeshiva. Along with this track, the Air Force initiated two tracks aimed exclusively at the hareidi community (“Shahar Kahol” and “Shahar Ba’ofek”). Those who enlist in these tracks undergo initial training in an military preparatory program. Following their enlistment, and after completing basic training, they undergo additional training in technical fields or in computer sciences. They then enter the Air Force’s technical service, or its technology units. In the years 2009-2010, these Shahar tracks were expanded, and in addition to the air force tracks, there are now additional tracks in the Intelligence Corps, C4I Corps, Navy, Technology Corps, Manpower Corps, and the Homefront Command. It should be noted that the length of service in the various tracks is not uniform. Whereas those serving in the hareidi Nahal unit normally complete a full 36 month tour, the length of service in the other tracks varies from 16 to 24 months, depending on the length of the training program and the soldier’s family status.

25.         In its last response, the Government informed the Court of a significant change of policy in regard to army conscription directives. This change was anounced in Government Decision no. 2698 of January 2011. In its decision, the Government amended the army conscription directives in accordance with a recommendation of the Inter-Ministerial Committee headed my the Director General of the Prime Minister’s Office, which was asked to make “recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget” (the committee was appointed in Government Decision no. 2000 of 15 July 2010). Prior to the change, the conscription directives provided that married hareidi men with children, who were aged 22 and over, who requested to substitute civilian service for their military service obligation would, as a rule, be granted their request, whereas such requests from hareidi men who did not have children would be granted only from the age of 26 and older. The new directives provide that single hareidi men, and those who are married but without children, from the age of 22 and up, can perform civilian service in the civilian security track (“Security National Service”, such as service in the Police, Prison Service, Magen David Adom, and the Fire Department). It was further decided, on a one-time basis, that all those who had been granted deferments and who had three children or more (regardless of age) would be referred to the reserves, and thus would be exempted, in practice, from active duty and from the alternatives provided by the Law.

              The Government also adopted the committee’s conclusions in regard to setting goals for hareidi service. According to the goals established, 2,400 hareidi men would be inducted into service, of them, half (1,200) would be inducted into the army, and half (1,200) into civilian service. The planned increase would be 600 additional inductees in each subsequent year, such that 4,800 hareidi men would be inducted into service in the year 2015, of them, 2,400 would be inducted into the army, and 2,400 into civilian service – a number that would represent some 60% of the relevant age group. The Inter-Ministerial Committee also recommended expanding the choice of military service frameworks available to hareidi men, and the addition of three additional tracks: a hareidi hesder yeshiva track, combining a period of study with active military service; a technological education track (together with the Ministry of Industry and Trade and the Ministry of Education), intended primarily for hareidi youth who drop out of yeshiva, and which would lead to full military service in the technology field; and an abbreviated service track for hareidi men over the age of 26, after which they would be referred to the reserves. According to the Inter-Ministerial Committee, the last recommendation, concerning abbreviated service, already appeared in the Tal Commission Report, and its implementation would not require legislative action (Report of the Inter-Ministerial Committee, p. 14).

26.         As stated, the recommendations of the Inter-Ministerial Committee were adopted by the Government’s decision of 9 January 2011. In addition to those conclusions, it was further decided that hareidi men over the age of 28 would also be referred to the reserves without any special training, in view of the army’s needs and their limited ability to perform significant service. As a result of the Government’s decision, the table of induction directives and service tracks for those who choose to leave the deferment arrangement or not enter it from the outset, is as shown below. It should be noted that implementation of the directives presented in the table, which was appended as an annex to the Government’s decision of 9 January 2011, commenced on 10 march 2011:

 

Age	Type of Service
18-21	Regular military service (36 months), or military service combined with study in a hesder yeshiva
22-25 without children	Referral to security national service		Military service (16 months or 24 months for tracks requiring intensive training)
22-25 with at least one child	Referral to civilian service		Military service (16 months or 24 months for tracks requiring intensive training)
26-27	Referral to civilian service	Military service (16 months or 24 months for tracks requiring intensive training)		Abbreviated military service (3 months)
28-34	Referral to reserves
35+	Exemption from military service

 

 

27.         As for the numerical data, the Government’s pleadings show that, as of May 2008, 39 soldiers served in the “Shahar Kahol” track, and 28 served in the “Shahar Ba’ofek” track. In its response dated 30 December 2008, the Government reported that “several hundred” hareidi soldiers were serving in the hareidi Nahal unit, and some 150 soldiers were serving in the Shahar Kahol and Shahar Ba’ofek tracks (the Government did not specify in its response how many of those were new recruits that year). In its most up-to-date response, from 24 January 2011, it reported that the number of hareidi men serving in the armed forces in 2009 was 1,357, of whom 729 were new recruits inducted that year into the various tracks (the hareidi Nahal unit and the Shahar tracks); 2,048 hareidi men served in the armed forces in 2010, of whom 898 were new recruits to the hareidi Nahal track and the Shahar tracks (p. 21 of the Government’s amended pleadings of 24 January 2011).

28.         The Government argued that the data should be analyzed on the basis of the annual conscription pool, rather than on the basis of the total number of deferments, which stood at 61,877 at the time of the submission of the response. According to the argument, that total number represents the “desert generation”, and comprises men who, it is claimed, cannot realistically be inducted into military or civilian service. Reference to the annual conscription pool rather than the total number of deferments, it is argued, focuses upon the younger generation, while removing from the equation all of those members of the hareidi community who, it may be assumed, will not be called up for military service by reason of age or family status.

29.         Even if we were to accept the Government’s argument that we should focus upon the younger generation in regard to rates of enlistment for military or civilian service, the argument that those rates should be evaluated with reference to the current conscription pool is, nevertheless, very problematic. In view of the fact that the Law makes it possible to waive one’s deferment and enlist into the armed forces or join the civilian service at any stage and at any age, those enlisting or joining the civilian service in any year are not members of that same annual conscription pool, but rather belong to several different annual groups. Thus, aggregating them into a single group, and examining them in reference to the number of deferments in the conscription pool of a single year, as the Government urges, does not yield a result that accurately reflects the actual situation. The Government, itself, did not provide data that would make such an examination possible. That being the case, it would be more accurate to examine the number of those entering military or civilian service against the background of the total number of deferments, which represents the general group from which those entering the various tracks are drawn. This situation is a product of the arrangements established by the Law itself, which creates a situation in which those entering the armed forces or civilian service do not represent a uniform age group, or in other words, are not members of the same annual conscription pool. That is, of course, as opposed to the remainder of the candidates for military service, the vast majority of whom are members of the same age group.

              Moreover, the “desert generation” argument, as skewed as it may sound, is incomprehensible in view of the relevant timeframe. Most of the hareidi members of the current deferment group are young people who entered the deferment arrangement after the Deferment Law was enacted, some ten years ago. At best, the “desert generation” argument might be valid in regard to those who entered the arrangement before the enactment of the Law, and who made their plans in accordance with the prior legal situation. But after the enactment of the Law, one cannot rely on the prior situation. That is particularly so in view of the fact that we are not speaking of a small group. As of the date of the submission of the data, the deferment group comprised 61,877 men. Of them, 22,000 were “free” for civilian service (as established in the Report of the Inter-Ministerial Committee, p. 29). The significance of the “desert generation” argument is a surrender in advance of any hope of enlisting that group for military or civilian service.

30.         As stated, under the Government’s approach, the data regarding the number of those entering military service should be calculated in regard to the last annual conscription group. As of April 2010, a total of 7,700 eighteen year olds registered with the Ministry of Defense as belonging to that annual conscription group and are classified as “deferred”. The Government argues that of that number (7,700), only 5,400 are actually potential candidates for enlistment to the Shahar tracks and civilian service. It is estimated that of the 7,700 who were granted deferments, 1,000 are not hareidi, but rather young religious men in the hesder yeshiva track, and will thus be conscripted for military service, and about 900 others are expected to be exempted for medical and other reasons up to the age of 22 (it should be noted that the Inter-Ministerial Committee put the number of expected exemptions for medical and other reasons at 600). We are thus left with a potential hareidi conscription group of 5,800. Of those, some 400 are expected to enlist in the hareidi Nahal unit (most of whom, as noted, are hareidi youths who dropped out of school and will enlist at the age of 18). It is, therefore, argued that the percentage of those entering military and civilian service should be calculated in reference to that group of 5,400.

31.         As noted, the approach is problematic, and calculating in that manner yields inaccurate results. But even if, for the sake of argument, we were to accept the Government’s claim, and assume the existence of a “virtual” number of 5,400 as representing the hareidi members of some conscription group, the factual situation would remain far from satisfying. Assuming that 400 is, more or less, a given in terms of the number enlisting for full military service in the hareidi Nahal battalion, inasmuch as it relates to hareidi youths who have dropped out, and are no longer studying in yeshiva, then the primary recruitment efforts, even according to the Government’s approach as stated in its response, would be directed toward enlistment of hareidi candidates to the Shahar framework. In fact, the number of hareidi recruits entering the Shahar tracks in 2009 was 382, which represents 7% of the “virtual” conscription group. In 2010, the situation improved somewhat, but the percentage remained very low, with only some 10% (530 hareidi recruits) enlisting in the Shahar tracks that year.

              The figures become more precise – and, unfortunately, more problematic – when the evaluation is made in reference to the total number of deferments. Such an analysis reveals that the number of recruits in 2010 (a total of 898 hareidi recruits to the hareidi Nahal battalion and Shahar frameworks) constituted 1.45% of the total number of deferments. The number of recruits to the Shahar tracks alone constitutes 0.8%, and the total number serving in the armed forces in 2010 (2,048 hareidi soldiers) constitutes only 3.3% of the total number of deferments. These are minute numbers. What they signify is that, despite the rise in the number of those who enlist for military or civilian service, no noteworthy change can be discerned in hareidi society, and no significant change can be seen in its integration into the various service tracks.

32.         Moreover, in view of the new conscription directives that entered into force in March 2011, it is highly questionable whether the current increase in the annual number of recruits (even if, as noted, it is a limited trend in absolute numbers) will continue in the coming years. As we explained above, the primary change in the new conscription directives is that, from the age of 22, a deferred person will be able to choose between military service and civilian security service, even if he is not married or is married but without children. That decision changed a prior governmental decision that decreed that unmarried men or those who were married but did not have children would be referred to civilian service only from the age of 26. The significance of the original decision was that it granted preference to military service over civilian service. That distinction no longer exists. In effect, a person with a deferment now enjoys what amounts to a nearly absolute prerogative to choose the track he prefers – deferment and entering the “Torah is their calling” arrangement, enlistment in the armed forces, or opting for civilian service. The conscription directives do not set out any criteria by which the Minister of Defense is to approve or reject a request to opt for civilian service as opposed to military service, and the Law, too, provides no such criteria. It would appear that, in effect, in its last decision, the Government directed the Minister of Defense to approve every request to enlist in civilian service, without regard for military/medical profile or age of the requester. It should be noted in this regard that s. 13 of the Deferment Law, titled “Execution and Regulations”, states that the Minister of Defense may formulate regulations for the execution of the Law in a number of areas, among them, as stated in ss. (3): “The treatment of requests to perform civilian service under s. 6 (e), and the criteria for their approval”. The Minister of Defense exercised this authority by promulgating regulations for the implementation of the Law (Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005), but they do not make any reference to civilian service, and treat only of the deferment of service and the decision year. It thus appears that there are currently no criteria for approving a request to perform civilian service by a person holding a deferment, and in practice, it would appear that the Law is implemented in a manner that tends to grant preference to civilian service.

33.         Moreover, the new conscription directives set out an additional track for abbreviated military service of only 3 months for deferred men between the ages of 26 and 27 (older men, 28 and up, are referred directly to the reserves, with no training). The abbreviated service will comprise one month of basic training and two months of further preparation for assignment to reserve units. As explained in the Report of the Inter-Ministerial Committee, and from the explanatory note to the Government’s decision of 9 January 2011, the Government views abbreviated service as “an important alternative for the service of hareidi men” (the explanatory notes to the Government’s decision were appended to the Government’s amended pleadings of 24 January 2011, and marked Res/3(b)), and “a situation in which a large number of hareidi men are called up annually for active reserve duty in uniform, and make a significant contribution to the general public in times of emergency, [is] in the opinion of the committee, a situation that can bring about significant change both in the integration of the hareidi sector into the general public, and in the legitimacy ascribed by the hareidi sector to military service in general” (ibid., p. 9 of the explanatory notes). As a consequence of adding this alternative, a man of 26, who chooses to relinquish his deferment, is presented with three choices: “regular” induction into the army (in which case he will, in any case, complete a reduced tour of duty of 16 or 24 months); civilian service for one year; or three months of abbreviated service. It would hardly be superfluous to add that three months of military service, even if followed by reserve duty, is not equivalent to real military service (even if, in most cases, it may last for only 16 months). Moreover, the abbreviated service track was recommended by the Tal Commission, but was rejected in the course of enacting the Deferment Law. Adding it now, as part of the conscription directives, smacks of circumventing the Knesset’s decision in the matter.

34.         From the Report of the Inter-Ministerial Committee, we learn that the new conscription directives were intended to bring about uniformity in the conscription directives by basing the conscription tracks on a person’s age rather than on his military profile, which is the accepted practice in regard to other conscripts who are not hareidi, and as was the practice in regard to hareidi deferments prior to the Government’s decision of 9 January 2011. The purpose, as presented in the Report of the Inter-Ministerial Committee, was to introduce greater certainty in regard to the service tracks, which currently “are not decided [ . . . ] in accordance with his medical profile, which is a criterion unknown to the hareidi youth” (Report of the Inter-Ministerial Committee, p. 25). The new directives do, indeed, yield greater certainty. However, certainty is not one of the purposes of the Law, and with this increased certainty comes a real fear that the new directives may serve as a significant disincentive to full military service (in the hareidi Nahal battalion), or partial service (in the various Shahar tracks). Their direct result is that a young hareidi man who, at age 18, opts for the “Torah is their vocation” arrangement, and who remains in that arrangement until age 22, is effectively not required to perform military service. If he chooses to leave the deferment arrangement and enlist in the army at the age of 22, he will be inducted for an abbreviated tour of duty of 16 or 24 months. Alternatively, he has the possibility of performing only one year of civilian service instead of military service. If that young man is single, or married without children, his civilian service will be security related, e.g., civilian service in the Police, Fire Department, or Magen David Adom. The choice among the tracks is that of the young man with the deferment, and it does not depend on his military profile or any other criterion. The significance is the transfer of the choice to those holding deferments: if they wish, they can enter the deferment arrangement; if they wish, they can leave it. If they choose to end their deferment, the choice is theirs whether to enlist in the army or opt for civilian service – which by definition, is a one-year abbreviated service that substitutes for full military service. It would seem superfluous to point out that non-hareidi youth are not presented with similar options.

35.         The rationale for the conscription directives can be gleaned from the Report of the Inter-Ministerial Committee. According to the committee, “These actions [changing the conscription directives – D.B.] will not significantly harm the motivation of hareidi men to enlist in the offered tracks, but they will make it possible to accelerate the integration of some of the hareidi men into the workforce, and in this manner, increase equality in sharing the economic burden” (Report of the Inter-Ministerial Committee, p. 6 (emphasis original)). In other words, the primary motivation for the decision to refer young men from the age of 25 to civilian service and to add an abbreviated military service track was economic. The economic consideration, and the desire to enable integration of members of hareidi society into the workforce were also the reasons for appointing the Inter-Ministerial Committee. Thus, the Government’s decision to create the committee (Decision 2000 of 16 July 2010) expressly states that the committee “will make recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget”. It is clear from this decision that the Government views conscription of members of the hareidi community into military service as presenting a budgetary burden, and therefore, as something that should be limited. Indeed, in certain situations, the “budgetary burden” involved in drafting hareidi men into the army can be twice the “budgetary burden” presented by civilian service. Lightening the burden can be achieved by expanding civilian service and limiting conscription for military service – as would appear to have been done in the directive to the Minister of Defense to refer deferred men to civilian service from the age of 22, and by the creation of the abbreviated service track for deferred men aged 26-27.

36.         The same economic rationale grounded the Government’s decision, made in accordance with the Inter-Ministerial Committee’s recommendation, to make a one-time referral of all those who had been granted deferments and had three children or more to the reserves. The Report of the Inter-Ministerial Committee stated that this step was adopted “because it is expected that it will be some time before appropriate service tracks will be established for that population, and there is a desire to prevent unnecessary delay of the ability of this group to integrate into the workforce” (loc. cit.). The report of the Inter-Ministerial Committee, the Government Decision, and the Government’s pleadings give no indication of the number of men who have now been referred to the reserve pool, and in effect, were granted an exemption from military or civilian service. However, it would appear that a significant group of men with deferments benefitted from this one-time decision.

              As noted, the Inter-Ministerial Committee was of the opinion that changes in the conscription directives would not negatively affect the willingness of members of the hareidi community to enlist for military and civilian service. According to the Report:

 

‘The Committee’s recommendations attempt to balance the effect upon the civilian service. On the one hand, the recommendation for the creation of an abbreviated service may reduce the number of those opting for civilian service – inasmuch as the abbreviated service will serve as a substitute for civilian service (for the hareidi population that will agree to wear a uniform and serve in reserves). On the other hand, granting the younger population the possibility of opting for civilian service can be expected to increase the number of those choosing civilian service, and will balance the effect on the overall number of those in civilian service’ (p. 25 of the Report).

 

              Nevertheless, the Inter-Ministerial Committee recommended that the actual results of implementing the arrangements be examined after two years. According to the Committee, “if, after the implementation of all of the Committee’s recommendations, it appears that the IDF and the civilian service are having difficulty in recruiting enough deferred men who are interested in serving, a further change in the conscription directives should be considered, as well as an increase in the incentives for enlisting, while preserving the preference for integration into military service” (Report of the Inter-Ministerial Committee, p. 7 (emphasis added – D.B.)).

37.         This final recommendation appears odd in light of the details of the recommendations and the data presented above. The implementation of the Law does not indicate that a preference for integration into military service is being preserved, and it is highly doubtful that it will be preserved in the future, in light of the new conscription directives. The induction of only 530 hareidi men into the Shahar tracks, nine years after the enactment of the Law, indicates a failure in its implementation. The fact that there is a rising trend in the enlistment numbers is, of course, a positive development, but presenting some measure of improvement is not enough. Nine years after the enacting of the Law, one could expect a more significant number of enlistments. The small number of those enlisting, along with the relative ease by which very significant changes can be made to conscription directives, as was done in the Government’s last decision, demonstrate a basic problem in the Deferment Law itself. The fact that by a government decision, it is possible to direct that a large group of people, that has neither served nor received any training, be assigned to the reserves pool merely because of the family status of its members (being parents of three children), and the fact that a government decision can create a very abbreviated military service track that can only questionably be viewed as service at all, raise problems that are not inconsequential. The preference for military service, which was held to be one of the purposes of the Deferment Law in the Movement for Quality Government case, and that was recognized in the Report of the Inter-Ministerial Committee (p. 7 of the Report, as quoted above), cannot be discerned in the decision to change the conscription directives – quite the opposite. The conscription directives were formulated such that preference would be shown for civilian service in regard to the younger age categories.

38.         The changes in the Government’s approach to implementing the Law over the years point to the inadequacies in the Deferment Law. The Law establishes the possible service tracks, but leaves the door wide open in regard to the Executive’s discretion as to implementation, and to the pace of that implementation. In the framework of that discretion, the Government can make decisions that have far-reaching implications for the implementation of the Law, to the point of nullifying its purposes. In the absence of criteria in the Law in regard to its execution, the Government can make decisions that can have decisive effect upon the pace of the Law’s execution, or at least, that can so drastically limit some of the tracks as to render them meaningless.

39.         There is no doubt that the Government’s efforts to encourage hareidi integration into the workforce, as part of the economic rationale underlying the Government’s last decision, are important and worth pursuing. Indeed, the aim of integrating members of the hareidi community into the workforce is a vital objective that was recognized as one of the legitimate purposes of the Deferment Law. Greater involvement of the hareidi community in the workforce will contribute to decreasing the severe level of poverty in that community, and narrow the growing schism between hareidi society and Israel’s secular society. It is a social undertaking of the greatest national importance, but it cannot be made into the primary or exclusive objective of the Deferment Law. Four underlying objectives of the Law were recognized as constituting “a proper purpose” when taken together (the Movement for Quality Government case [2], p. 704). Each draws upon and influences the others. The purpose is proper only when the Law facilitates a legal arrangement intended to reduce the inequality caused by not drafting hareidi men into the army by drafting them into the army, or at least into civilian service, and by encouraging their integration into the workforce, and achieving this by consensus rather than by coercion. It is the combination of these objectives that provided the Law with its proper purpose from a constitutional perspective, as well as from a social point of view. The implementation of the Law cannot now infringe any of those purposes, as the means would not, then, lead to the realization of the purposes.

              That being the case, the Law cannot be implemented in a manner that infringes one of its purposes – not to mention, one of its fundamental purposes – by reason of budgetary constraints. The fact that inducting hareidi men into the army presents a considerable budgetary burden is a necessary by-product of the arrangements established by the Law, and particularly of the fact that, other than those enlisting in the hareidi Nahal battalion, the other recruits are over the age of 22 – in other words, they are at a stage at which most are married and some are fathers of at least one child. Once the Law made it possible to defer induction by at least four years, the unavoidable result was that the population being inducted for service at the end of that period would be older, and in view of the character of hareidi society, would also have families. The higher budgetary costs are the result of the family payments to which the recruits are entitled in consequence of their family status, and is, therefore, the word of the legislature.

40.         Moreover, in a long line of precedent, this Court has held that protecting fundamental rights costs money, and that the economic argument cannot, in and of itself, justify an ongoing violation of equality (see, e.g: HCJ 4541/94 Miller v. Minister of Defense [14], pp 120-121, 144) (hereinafter: the Miller case). That being so, the economic cost, alone, does not justify the Government’s limiting of the military service track. Parenthetically, we would note that examining the economic cost in terms of family allotments alone yields only a partial view that does not reflect the full picture. Although no one denies that the army must bear a significant burden of family payments for soldiers who are married and have families, if we take into account the fact that during their military service, those soldiers do not benefit from other forms of support that they receive as yeshiva students (among them, stipends for yeshiva students, social security payments, teachers’ salaries and the costs of establishing and running the yeshivas, and municipal tax discounts – see: the Tal Commission Report, p. 54), it would appear that the overall demand upon the State budget is much lower.

              To this we might add the proven economic advantage to the State from drafting hareidi soldiers into the armed forces, in particular, as opposed to other tracks. From the data that the Government provided in regard to the rate of integration into the workforce of those who serve in the armed forces, it appears that some 80% of those completing the Shahar tracks enter the workforce upon their discharge. This is a significant figure that demonstrates the potential of military service to provide professional training that can serve as a springboard into the marketplace. Military service, more than civilian service, and certainly more than the decision year, prepares hareidi men to work in areas of technology that are in high demand. The numbers speak for themselves. The high figure – some 80% of those who served in the Shahar tracks found employment – shows that military service should be encouraged not only as a means for reducing the infringement of equality, but also in order to increase the percentage of people from the hareidi sector participating in the workforce.

 

Civilian national service

 

41.         Getting the civilian national service track up and running was fraught with difficulties. Although the Deferment Law was enacted in 2002, the Civilian Service Administration was established only in 2007, and began to operate only in March 2008. The process of setting up the Civilian Service Authority began in the Committee for Planning Civilian National Service in Israel, headed by General (ret.) David Ivry, who was appointed by the Minister of Defense following the decision of this Court in the Movement for Quality Government case (hereinafter: the Ivry Committee). In an interim report submitted to the Minister of Defense in February 2005, the Ivry Committee emphasized the importance of preserving the preference for obligatory military service and its primacy, and recommended that the civilian service option be extended to all Israeli citizens and residents who are not called up for military service, or who are exempt. On 18 February 2007, the Government adopted the recommendations made in the Ivry Committee’s report (Government Decision no. 1215). It was also decided that a project manager, to be supervised by the Director General of the Prime Minister’s Office, would work to advance the establishment of the Administration, and would submit recommendations to the Government in that regard. In Decision no. 2295 of 19 August 2007, the Government adopted the recommendations of the project manager, and decided upon the creation of an administration for civilian service and national service, “within which framework, young citizens of Israel from every population group that does perform military service by law, will contribute one or two years of their time to civilian activity that is useful to society in general and to weaker populations in particular, that will strengthen the connection and identification of young citizens with the community, society and state, reinforce their professional abilities and their readiness for future employment, and contribute to developing their character and leadership ability”. The decision also enumerated the Administration’s functions, and established guiding principles for civilian-national service, among them that such service was intended for those who had received a deferment or exemption from military service; referral to the service will be on a voluntary basis; the service will comprise all sectors, groups and religions in Israeli society; the service will be an independent body, and will perform functions for the welfare of the public, the community and society. It was further decided that those who perform civilian service would be entitled to the same economic benefits as those granted to persons volunteering for national service, in accordance with the length of service, and subject to the proviso that the economic benefits would not exceed those paid to soldiers serving at the rear. It should be noted that on 16 November 2008, the Knesset enacted the Civilian Service (Amendments) Law, 5769-2008, which was intended to equate the status of those performing civilian service to that of persons performing national service or military service for the purpose of the Severance Pay Law, 5723-1963, and the Absorption of Discharged Soldiers Law, 5754-1994 (relative to length of service).

42.         In practice, as noted, the Administration was established in early 2008. Since beginning its operations, 2,575 members of the hareidi community have performed civilian service. As of May 2008, some 70 members of the hareidi community had performed civilian service. That number grew to 450 by December 2008. In 2009, 1,003 hareidi men joined the civilian service, and 1,122 joined in 2010. The Administration has expanded, and several staff positions have been added. The Administration worked hard to increase the number of “operators” accepting hareidi volunteers to the civilian service, and of late it has even contracted with an external body that will help supervise the activity of those performing civilian service. That supervision is needed, inter alia, in order to address the situation in which, until now, most of those performing civilian service served within the hareidi community. As the head of the Administration informed the Foreign Affairs and Defense Committee, whereas in the beginning, the number of civilian service volunteers serving within the community stood at 90%, as of January 2011, service within the community had dropped to about 57% (according to the head of the Administration, Sar-Shalom Jerbi, speaking to a session of the Foreign Affairs and Defense Committee on 18 January 2011, at p. 29).

43.         These data seem to paint an encouraging picture in regard to the implementation of the civilian service track. However, despite the growth in the number of those volunteering for civilian service, the process of setting up the Civilian Service Administration and its operation raise some problems. As noted, although the Deferment Law directed that the Administration be created in 2002, it was not actually established until March 2008. Initially, the Administration operated under the auspices of the Prime Minister’s Office. In April 2009, responsibility for the Administration was transferred to the Ministry of Science and Technology. There were also problems in regard to staffing the Administration, in the agreements with potential organizations that could absorb the volunteers, and in setting up the apparatus to supervise the volunteers. Even the memorandum for the law that was intended to regulate all of the aspects of national service, which was supposed to be submitted by October 2007, was only submitted in December 2007, and the Administration only delivered the draft of the law to the Ministry of Justice in February 2010, in preparation for presenting it to the Ministerial Legislation Committee.

44.         The State Comptroller’s Report of 2009 (submitted in May 2010) examined the operation of the Administration, and the implementation of the Deferment Law in regard to civilian service (State Comptroller’s Annual Report (No. 60B) (2009, and Accounts for the 2008 Fiscal Year), pp. 913-991(2010)). The State Comptroller’s Report related to the period between March 2008, when the Administration began its operations, and October 2009. The Comptroller’s Report points to a number of deficiencies in the operation of the Civilian Service Administration, and in the implementation of the Deferment Law in regard to the civilian service track. The Comptroller found that some 40% of those performing civilian service were serving in the areas of special education and mentoring. This was so, even though in the legislative proceedings of the Deferment Law, the Knesset removed the field of education from the areas of service (such that under s. 6 of the Deferment Law, civilian service would be performed in the areas of health and welfare, immigrant absorption, environmental protection, internal security, and various rescue services). It was further found that those serving in the field of education would invite their pupils to their homes over the weekend “as a matter of course”, and report 24-36 consecutive hours of service. During the summer, when the pupils were on vacation, group activities were arranged at youth villages, and included overnight stays. Such activities were also reported as consecutive hours by those performing civilian service. The Comptroller’s Report found that, in practice, those involved in mentoring “fulfilled all of their hours of service in the course of a few days, or on weekends alone” (ibid., p. 976). The Report also warned of deficiencies in the work of the operating body – a private body that was granted the supervisory and oversight authority of the Administration. It found that coordinators, who were supposed to supervise the work of the volunteers, were responsible for more volunteers than the operating body had agreed to in the tender, and that time sheets that were suspected of not reflecting actual presence, or that were unsigned, were not addressed in any way. Furthermore, a review conducted by the operating body, found family ties between volunteers and office holders in the bodies in which they were serving. Despite the fear of conflict of interests, the Administration did not discontinue the service of those family members, but rather, merely made them subordinate to others who were not their relatives (ibid., pp. 976-977).

45.         Similar findings were mentioned in the Plesner Panel’s Interim Report. The Interim Report notes problems that were discovered in the functioning of the Civilian National Service Administration during the two years that it was reviewed. The Interim Report points out that representatives of the Administration did not present a plan that included policy and concrete objectives in regard to the desirable number of volunteers in the various service areas; multi-year objectives for the elements of the service program; an analysis of the needs of the governmental bodies in terms of national priorities, and the creation of a set of preparatory programs with an eye toward the future employment of the volunteers upon completion of their civilian service. The Interim Report also noted that the Administration had not established methods for checking on the presence of volunteers at their places of service and the quality of their contribution (ibid., p. 24). In the opinion of the Panel, “the Civilian National Service Administration must become a body that delineates a vision, establishes policy, sets objectives, negotiates the opening of additional national service tracks, and supervises the placement organizations and the operating bodies, alone. It must be a regulatory and policy-making body, and it is recommended that executive functions be transferred to external bodies” (ibid., p. 25). The result of the lack of vision and policy guidelines was that, as of the writing of the Interim Report, the Administration had not succeeded in filling the volunteer positions that had been approved (ibid., pp. 27-28).

              The Interim Report also warned that a large number of volunteers (68%) were serving in frameworks within the hareidi community, mostly in the field of social welfare. The Report further revealed that many of the hareidi volunteers served in education – some in educational fields that were described as social welfare. That was so, even though, as stated, education was not among the areas of service included in the Law. In the Panel’s view, while service within the hareidi community was appropriate “as an initial formula” for hareidi volunteering (ibid., p. 27), a change in that trend should be sought, such that the service would be performed within national frameworks that would contribute to hareidi integration into society.

46.         Thus, along with the growth in the number of volunteers in civilian service, we find problems with regard to supervision over the quality of service, the establishing of goals, and in filling the positions created for those volunteering for service. Proper implementation of the deferment Law does not merely mean increasing the number of volunteers for civilian service. Proper implementation of the Law requires a substantive examination of the nature and quality of the civilian service so that it will achieve its objectives, and most importantly, so that civilian service will constitute an appropriate alternative to military service. The civilian service track was established in the Deferment Law in order to provide members of the hareidi community with a form of service that would be appropriate to their lifestyle, and that would reduce the inequality caused by their not being conscripted for military service. In order to achieve those ends, it is not enough to show an increase in the number of volunteers for civilian service. The civilian service must be brought to a point where it is a true alternative, in terms of quality, nature and length of service, to military service, and in that regard, more than one year of civilian service must be required. Civilian service must be shown to be significant, and to have the potential of advancing the purposes of the Deferment Law. That must be done, inter alia, by intensifying supervision in order to ensure that the service is performed for the objectives established by the Law, and in national frameworks that incorporate professional training.

 

The Decision Year

 

47.         The decision year, which was to be the great hope of the Deferment Law, has proven a great failure. In the Movement for Quality Government case, Justice Cheshin, then the Deputy President of the Court, referred to the decision year as “the jewel in the crown of the Deferment Law”, but noted that the decision year “is but glass disguised as a diamond” ([2], at p. 766). Indeed, that unfortunately has turned out to be the case.

              The decision year was intended to allow a young man whose service had been deferred for four years, and who was at least 22 years old, to defer his conscription for an additional year, even though he was no longer studying in a yeshiva that year. In the course of that year, the candidate for conscription could work without any restrictions. The central purpose underlying the decision year was to permit young men to test life outside of the yeshiva, without losing their “Torah is their calling” status (see: Tal Commission Report, p. 121). The decision year was the primary tool introduced by the Tal Commission, and it was intended to create a transition route from a life of yeshiva study to the labor market. It is important to note that enlistment into the armed forces or civilian service is not contingent upon taking a decision year. In other words, a person whose service was deferred could waive his deferment and enlist in the armed forces or civilian service whether or not he took a decision year. But the decision year was intended to make that transition easier, and that it how it was envisioned by the Tal Commission, which saw it as a central device for promoting equality and a sharing of the burden.

48.         The figures show that no inconsiderable number of deferred yeshiva students chose to take a decision year. As of 31 December 2007, the number stood at 2,935 in total. Of those who completed the year (2,334), 649 returned to the status of “Torah is their calling”. 163 asked to perform civilian service, but the Administration had not yet been established at that time. Of the rest, 253 were inducted into the army; 315 were being processed by the army (but it is not known whether or not they were actually inducted), and 725 received exemptions from military service. An additional 191 were transferred to the “pool” – a unit of assignment for draftees that the army has decided not to call up for service, but who are part of the reserves, and could be called up in case of military need. 20 others were abroad.

              A similar division is presented by the data submitted in the response of 30 December 2008. In that response we find that, as of 27 November 2008, a total of 3,269 deferred men took a decision year (i.e., 334 took a decision year in 2008). 567 had not yet completed the decision year at that time. Of those who had completed the year, 759 returned to the “Torah is their calling” status; 25 were abroad, and 148 were awaiting civilian service. Among the remainder, 905 were exempted for various reasons; 276 were being processed by the army, and 348 had been inducted into the IDF. 241 were transferred to the “pool”.

              Other than the data for the years 2007 and 2008, the State did not submit up-to-date figures for the years 2009 and 2010. Therefore, we do not have data regarding those who chose a decision year over the last two years, and more importantly, about what those who completed the decision year went on to do.

49.         The data presented by the Government shows that although a large number of young men chose to take a decision year, it did not lead to enlistment into the army, to joining the civilian service, or to entering the workforce. In practice, most of those completing the decision year were exempted from military service or returned to “Torah is their calling” status. Only a small number of those taking a decision year were inducted into the army (or transferred to the reserves pool), or performed civilian service. The numbers are not surprising considering the inherent barrier to which the decision year leads. As earlier noted, the Law permits a person to take a decision year only from the age of 22, and only following four years of deferments. A young hareidi man who begins the decision year at age 22, completes it when he is 23, when he is, as is usually the case, married, and generally the father of at least one child. In such a situation, as we pointed out earlier, the army has no incentive to recruit him, in light of the budgetary costs involved. The Government was also aware of this, and expressly stated in its response that: “as is shown by the data regarding those who choose to enlist in the army following the decision year, many of those deferred are not expected to be inducted even if there deferment ends for various reasons” (Government pleadings of 18 May 2008, p. 27).

              This is all the more so when the decision year is chosen at a later age. Because induction into the army is influenced by and related to the age of the person who has been granted a deferment, the longer it is delayed, the less the chances that he will be inducted for service. This also holds true for civilian service. While there are no formal age restrictions for joining the civilian service, the longer a person is spends in the “Torah is their calling” status (even if he took a decision year along the way), the lower his incentive to leave the arrangement and join the civilian service. Moreover, a person who takes a decision year at the age of 23 or 24 can request to enlist in the army at the end of the decision year, and in all likelihood – as the existing figures show – he will be granted an exemption from military service, and thus will also not have to perform civilian service either. If that be the case, what purpose is served by the decision year? Clearly, the decision year does not serve to realize the purpose for which it was created. In practice, the decision year may help some of the deferred men decide what lifestyle they wish to adopt, but it does not contribute to enlistment into the armed forces, the civilian service, or – it would appear – the workforce (although data was not submitted in that regard). It should further be noted that the most current data submitted to the Court relate to those opting for a decision year up to the end of 2009. In its last response to the Court, the Government did not append updated data on the decision year. Are we to understand that the Government has abandoned that track? The fact that the Government did not see fit to submit up-to-date figures on the decision year to the Court begs the question.

 

Interim summary

 

50.         What conclusion should be drawn from the analysis of the data concerning the implementation of the Deferment Law? Indeed, one cannot ignore the growing trend in the number of those enlisting into the army and joining the civilian service. The military service tracks were expanded. If, in the past, the only track for hareidi military service was the hareidi Nahal battalion “Netzach Yehuda”, there are now special tracks in the Air Force, and of late, in other branches of service, as well. These tracks offer hareidi soldiers unique professional training that does not merely prepare them for military service, but provides professional knowledge that makes for impressive integration in the labor market upon completion of that service. Together with military service options, the possibilities for civilian service were also expanded. Following the establishment of the Civilian Service Administration, extensive efforts were invested in identifying operators, and regulations were promulgated for placing volunteers in civilian service. Today, the service makes it possible to perform part of the service in national frameworks, rather than exclusively in the hareidi sector (see the statement of the head of the Administration, Sar-Shalom Jerbi, in the session of the Foreign affairs and Defense Committee on 18 January 2011, p. 29).

              However, the increase in the number of hareidi men serving in the army or civilian service notwithstanding, the overall number of those enlisting in the army or joining the civilian service is low, and it is certainly significantly lower than the number of those entering the deferment arrangement. From the figures presented by the Government, it appears that, as of January 2011, the total number of deferments stood at 61,877. The number of deferments rises steadily from year to year, and the Government estimates that some 4000 men join the deferment arrangement every year. As of 2007, the number of deferred men represented 14% of the total conscription pool of that year. It would further appear that despite the enactment of the Deferment Law and the steps taken for its implementation, the rise in the number of deferments has not been abated or halted (Government pleading of 24 January 2011, p. 20).

51.         Having examined the current data in regard to the implementation of the Law, the question that arises is whether that implementation meets the proportionality test, and whether the cumulative figure show that the means established in the Law realize its purpose. The answer requires that we address the degree of probability necessary for establishing that the means realize, or do not realize, the purposes of the Law. Is the degree of probability, as a component of the test of the proportionality of a law, dependent upon the nature of the infringed right? That question arose before this Court on several occasions in the past, in regard to various parts of the limitation clause. In HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15] (hereinafter: the Bank Mizrahi case), President Barak suggested the possibility of creating different levels of constitutional scrutiny, in keeping with the nature of the violated right (ibid. [15], at p. 434). What that means is that the conditions of the limitation clause would be examined by the Court in accordance with the violated right and the entirety of other considerations. In that case, President Barak stated that it is “premature to determine what the Israeli rule will be as to the limitation clause, and whether our test should comprise a single level (as in Canada) or multiple levels (as in the United States)” (ibid. [15], at p. 435).

52.         Since rendering judgment in the Bank Mizrahi case, the case law has advanced quite a distance in recognizing the direct relationship between the importance of the infringed right and the required degree of constitutional scrutiny, although different from the degree of scrutiny of American constitutional law. In a series of cases, we established that the importance of the infringed right and the degree of its violation influence the overall constitutional analysis, and affect the manner in which the Court will examine each of the components of the limitation clause. This approach is based upon the view that not all rights – whether enunciated in a Basic Law or not – are of equal importance. The degree of protection afforded a right is a function of its character and importance when confronting a public interest that requires the infringing of the right. Because of the need to strike a balance between the right and the public interest that justifies its violation, the conditions of the limitation law cannot be addressed by this Court in a purely technical manner. The balancing process is directly connected to the degree of protection granted to the infringed right. The currently accepted approach in our legal system requires that the balances that are intrinsic to the tests of the limitation clause be applied to each case on its merits, in accordance with the full range of considerations, which includes, as I noted in the Menachem case, “the rationales grounding the protected right and its relative social importance, as well as the nature of the right or the competing interests” (ibid. [8], at p. 258). That approach emphasizes the scope of the Legislature’s latitude. The more important the right, and the greater the infringement, the less the room for maneuver, and vice versa. When we are concerned with rights that – in keeping with the values of the Jewish and democratic society that we maintain – are of lesser importance, the Legislature’s leeway in infringing the right will be greater.

              In that framework, we have held that that the nature of the right and degree of its violation influence the examination of the law’s purpose, in the sense that the more important the infringed right, and the more serious the harm, the more significant the public interest required to justify that infringement (see, e.g: HCJ 6055/95 Zemach v. Minister of Defense [16], at p. 262, per Zamir J. (hereinafter: the Zemach case); the Horev case [13], at p. 49, per Barak, P; the Menachem case [8], at p. 258, per Beinisch, J; the Adalah case [11], at para. 28 of the opinion of Barak, P; CrimApp 6659/06 Ploni v. State of Israel [17], at para. 30 of my opinion; HCJ 2605/05 Academic Center of Law and Business [10], at para. 45 of my opinion. And see: Barak, Proportionality, pp. 619-628). We adopted a similar approach in the Movement for Quality Government case. The Court, per President Barak, held that in view of the infringement of equality, as a component of human dignity, “the standard for examining the question of the importance of the need to achieve the underlying purposes of the Deferment Law at the expense of severe infringement of dignity, is whether the deferment of service realizes a significant social objective or a pressing social need” (ibid. [2], at p. 700).

              I similarly expressed my view that “the nature of the infringed right, its underlying rationales, and the intensity of its violation” influence the construction of the need for “express authorization” in a law, established in the first condition of the limitation clause (see: my opinion in HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General [18]; and also see: HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [19]). We further held that the three subtests of the proportionality test “will be applied and implemented in accordance with the nature of the infringed right under review” (HCJ 1715/97 Investment Managers Association v. Minister of Finance [20], at p. 420, per Dorner, J. (hereinafter: the Investment Managers Association case)), and that “in regard to proportionality, we shall be as severe with the authority as the severity of the violated right or the severity of its violation” (the Stemka case [12], at p. 777, per M. Cheshin, J., and see: HCJ 5503/94 Segal v. Knesset Speaker [21], at p. 544, per E. Goldberg, J; the Zemach case [16], at p. 282, per I. Zamir, J; the Menachem case [8], at p. 280 of my opinion).

53.         Emeritus President Aharon Barak recently wrote about the probability test established under the first subtest in his book Proportionality: Constitutional Rights and their Limitations. President Barak suggests that where an important constitutional right is violated, the State bears the burden of showing a real probability that the means established in the law will realize its objectives, and that a low or reasonable probability of realizing the objectives will not suffice (Barak, Proportionality, p. 628). This approach expresses the view expressed by this Court in the past that constitutional scrutiny must accord with the infringed right, and represents a development in our constitutional law. The demand for a real, significant probability that the means chosen by the Legislature be appropriate to the purpose that it seeks to achieve, grounds the first subtest. This approach also reinforces the weight of the first test in relation to the two additional subtests – which are the least-harmful means test, and the proportionality test stricto sensu. The demand for a real, significant probability requires, in relevant cases, a thorough examination of the probability of the realization of the law’s purposes, which does not suffice with a reasonable or minimal possibility of realizing the purposes by the means established in the law.

54.         The infringed right in the case before us – the right to equality – has long been recognized as a fundamental right in our legal system. The right to equality has been one of the cornerstones of the Israeli system of government, even before the enactment of Basic Law: Human Dignity and Liberty. The right to equality is enshrined in the Declaration of Independence, and there are those who extol it as an overarching principle of our legal system, underlying the existence of the state as a Jewish and democratic state (see, e.g., the view of Deputy President (Emeritus) Cheshin in the Movement for Quality Government case). The central role of the right to equality has been noted in a long line of cases as “a fundamental principle of our constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [22], at p. 699, per Landau, J.). Justice M. Shamgar held that the right to equality is “a fundamental constitutional principle, incorporated and woven into our fundamental legal conceptions, and is inseparable therefrom” (HCJ 114/78 Burkan v. Minister of Finance [23], at p. 806; and see: Itzhak Zamir and Moshe Sobel, “Equality before the Law,” (1999) 5 Mishpat u-Mimshal 165 (Hebrew); HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset [24], at p. 707; HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister [25], at p. 229; the Miller case [14], per Dorner, J; HCJ 4124/00 Arnon Yekutieli (deceased) v. Minister of Religious Affairs [26], paras. 35-36 of my opinion). The right to human dignity is also recognized by our legal system as a constitutional right since being incorporated into Basic Law: Human Dignity and Liberty. Human dignity “is the factor that unifies human rights” (the Movement for Quality Government case [2], at p. 681, per Barak, P.). The right to human dignity imposes both positive and negative demands upon governmental authorities – the duty to refrain from infringing dignity, and the duty to protect it (see: Aharon Barak, “Human Dignity as a Constitutional Right,” in Haim Cohn & Itzhak Zamir, eds., Selected Essays, p. 417 (2000) (Hebrew)).

              Indeed, the right to equality and the right to human dignity, along with several other rights, are worthy of the broadest protection of our legal system. That is surely the case when we are concerned with a violation of equality in the fulfillment of the most basic duties in Israeli society, and in sharing the burden borne by citizens who devote body and mind, and the bloom of youth to ensuring the safety of Israeli society. Opposite the need to safeguard equality stands a social interest that, inter alia, the Law seeks to promote. In the case of conscripting yeshiva students, the social interest has become complex, and we were, therefore, of the opinion that characterizing it was clearly a matter for the Legislature. In view of the difficulty in finding a solution to the problems arising from inequality, in defining the necessary considerations and in evaluating their relative weight, we were prepared, in the Movement for Quality Government case, to recognize the “significant legislative latitude” granted to the Knesset (ibid. [2], at p. 704 per Barak, P.). We noted that this is clearly a social-policy question that must be addressed by the Knesset, but we emphasized that the public interest does not exist in a vacuum. We therefore held that the purpose established by the Knesset would be proper if it realize a significant social objective or a pressing social need (ibid. [2], at p. 704). As stated in that decision, we left the question of whether the means established in the Law were suited to realizing its objectives for examination at a later date.

55.         At the present stage of examination, and bearing in mind the status and importance of the rights concerned, the degree of probability required to show a rational connection between the means and the objective must be real and significant. In other words, it is not enough that we find that the means established in the Deferment Law may realize its underlying purposes to some particular degree. Such a level of probability would not reflect the level of protection that our legal system grants to the rights that are the focus of the case before us. Therefore, a higher level of probability is required, which will indicate that the means chosen by the Legislature have a real and significant potential for realizing the Law’s objectives. We have reached a point where we are no longer speaking of conjecture. We are not examining the Law prior to its implementation by the Executive, when the possibilities for realizing its purposes are merely educated guesses. The Law has been implemented for some time. At this point, we must examine that implementation over the years since its enactment, and assess the probability that the means chosen for its implementation will lead to the realization of its purposes. Those purposes are, essentially, to bring about the induction of thousands of young men into military service, or at least into civilian service that constitutes an appropriate alternative to military service, and to promote the integration of those young men into the workforce.

56.         A comprehensive examination of the data regarding the various tracks set out in the Law – individually and cumulatively – leads to the unavoidable conclusion that the means established in the Law have not realized its purposes, and cannot do so with any real degree of probability. The implementation of the Law over the course of the lengthy trial period afforded it so far has shown that the Law comprises inherent impediments that exert considerable influence upon the possibility of implementing it, to the point of impairing the possibility of realizing its purposes. Those obstacles would prevent the realization of the purposes of the Law even if the authorities responsible for implementing it worked diligently – which has not entirely been the case over the years that the Law has been on the books. After nine years, the State was required to show significant realization of all the purposes of the Law together. Trends or developing processes, as important as they may be, are no longer sufficient. Can it be said, after nine years, that the induction of 898 hareidi men (of whom, some four hundred are drop outs), and the enlistment of 1,122 others into brief, vague and undefined civilian service from out of a total of 61,877 who were granted deferments constitutes a realization of the Law’s objectives? Can a situation in which most of those taking a decision year are exempted from military service or return to “Torah is their calling” status, and are not integrated into military service or its alternatives or into the labor market be seen as the realization of the Law’s objectives? Can we discern a realization of purposes when many more young men enter the “Torah is their calling” arrangement than any of the service tracks provided by the law? By any standard, an examination of these numbers reveals no real change in the situation. Indeed, we understand that we are concerned with a complex social process. No one denies that time is an important factor in that process. Nor does anyone deny that we cannot suffice by looking at the current picture alone, but rather we must consider the process as a whole, and the process does testify to some progress in the framework of the attempts to implement the Law. However, a more significant trend toward realizing the Law should have been apparent after the substantial period of time that passed since its enactment, but it was not. Most of the actions taken to implement the Law were too little and too late. Some were instituted suspiciously close to the dates of the proceedings before the Court.

57.         The main problem with the Law is not merely a result of failures in its implementation. The low enlistment numbers, the abject failure of the decision year, and the fact that the Law is entirely dependent upon the desire of the Executive to implement it, and if so, how, all testify to failures that are inherent to the law itself. As long as the Law does not establish standards or goals for its implementation, the realization of its purposes are entirely at the mercy of the Executive, which is free to choose if and how to implement the Law. The Executive can take decisive action to implement it, allocate resources for implementing only specific parts of the Law, or offer various incentives to the agencies responsible for implementing the Law. By the same token, the Executive can adopt a do-nothing policy, and render the Law a dead letter. The broad discretion granted the Executive, on the one hand, and the freedom of choice that it grants to those whose service is deferred, on the other, show the arrangement to be wanting. While it is not disputed that the implementation of every legislative act is dependent upon the relevant agencies, as part of the reciprocal relationship between Executive and the Legislature in a democracy, it would seem that the division of power between the two branches of government is blurred in the Deferment Law to the point that the Executive holds the power to eviscerate the Law.

58.         As we see above, two salient characteristics of the Law decrease the probability that the means it establishes will substantially contribute to realizing its underlying purposes. First, the law permits an “automatic” four-year deferment from age 18 to age 22. Both special tracks created by the Deferment Law – the decision year and civilian service – are relevant for yeshiva students from age 22 and up. The special military tracks (the Shahar tracks) are also intended for deferred men over the age of 22. The very fact that the Law establishes that the service tracks commence only from age 22, and no earlier, means that most of the deferred men will arrive at the enlistment crossroad when they are married, and when many are the fathers of at least one child. The army’s ability to absorb such recruits is significantly reduced by the increased costs associated with paying family stipends. As a result, those young men are directed from the outset to the civilian service, which is shorter and “cheaper” for the State – assuming they have not chosen to remain in the “Torah is their calling” arrangement. Should we not conclude that the Law comprises an inherent impediment to military service? Does this not contradict the Law’s purpose to advance equality in sharing the burden of military service, in the sense that more hareidi men will perform military service, or at least meaningful civilian service? (see: the Movement for Quality Government case [2], at p. 700).

59.         Secondly, the Law places the choice among the Law’s tracks entirely in the hands of the yeshiva students. A young hareidi man between the ages of 18 and 21 can choose between a deferment or enlistment for military service. At age 22, that same young man can choose to continue his deferment or to enlist in the army or join the civilian service. That young man can also choose to take a decision year, at the end of which he will be presented with precisely the same choices. Additional possibilities for choosing were granted to that young man by the Government’s decisions and the conscription directives. Those choices are almost limitless. They are not contingent upon the young man’s family status or his military profile. They do not depend upon the number of years that he deferred his service, or upon what he did in the course of the decision year. Furthermore, these possibilities do not lead to a duty to perform any service at any stage. The young man can defer military service for a number of years, at the end of which he will be exempted from military or civilian service. It should be superfluous to point out that this structure of the Deferment Law presents a mirror image of the situation of non-hareidi youth. Those youngsters are not free to choose whether or not to serve in the army. They are under a legal duty to serve in the armed forces, and the possibilities for fulfilling that duty by means of civilian service are of limited, marginal scope.

              Undeniably, one of the purposes of the Deferment Law was the creation of an arrangement that would not require coerced conscription. We recognized that as a proper purpose that reflected the desire to create a social arrangement based upon compromise and striking a balance between the needs of the different communities. However, in the absence of an element of obligation, implementing the Law and realizing its purposes are not dependent exclusively upon the Executive will, but also, and perhaps primarily, upon the will of those granted deferments. Even if the Executive provides the necessary resources, it will not guarantee a significant enlistment of hareidi men, unless the tracks include some element that would encourage joining them. Such an incentive is nowhere to be found in the current Law, nor in the steps taken for its implementation.

60.         Moreover, the Deferment Law does not comprise criteria for granting exemptions from military service, and it does not establish enlistment goals for military or civilian service. The Law establishes no intermediary frameworks for evaluating progress in its implementation, and it lacks any means of supervising that implementation. Absent from the Law is any requirement of meaningful service – of any kind – for all. What all this means is that the desire of the yeshiva students to opt for one of the Law’s frameworks is the decisive factor in the implementation of the Law. Under such circumstances, and in view of the data presented to us, it would be difficult to find that the means established in the Law actually realize its objectives, or that there is a real, significant probability that they will realize its objectives in the future. While the enlistment of several hundred members of the hareidi community represents a certain change in relation to the situation a decade ago, the number of deferments – which become exemptions – increases from year to year, and that number currently stands at 60,000. That means that the declared purpose of the Law cannot be realized under the present conditions, despite the Government’s decisions that attempted to breathe life into it. We should recall that those efforts, to the extent that they were made, were primarily intended to integrate the deferred men into the workforce – an important purpose in and of itself – which does not address either the problem of military or civilian service.

61.         In light of all the above, it would appear that the flaws that led to the current situation are inherent to the Law itself, or as termed in the Movement for Quality Government case, they are “genetic” flaws (ibid. [2], at p. 712) and not administrative flaws related to the manner in which the Executive implemented the Law. The conclusion is that the Deferment Law does not pass the proportionality test under the first subtest. In other words, the means established by the Law cannot realize its purposes, and it has become a tool for perpetuating the situation that existed prior to its enactment. In light of that conclusion, there is no need to apply the two other subtests. The result is that the Deferment Law does not meet the conditions of the limitation clause.

 

Consequences of the illegality of the Deferment Law

 

62.         The above requires that we conclude, after a journey that has taken several years, that the Deferment Law does not meet the proportionality requirement of the limitation clause and is, therefore, unconstitutional. The practical result of this conclusion is that the Deferment Law is declared void, or in other words, looking to the future, that it cannot be extended in its present form.

              Along with this declaration, we must take into consideration the fact that the Deferment Law was enacted as a temporary order. The Law, which was extended a second time by the Knesset, is slated to expire on 1 August 2012. In view of the fact that many arrangements were made in accordance with the rules established by the Law, and bearing in mind that we may assume that many people planned their lives in accordance with its provisions, I would recommend to my colleagues that the declaration that the Law is void be held in abeyance, and that we allow the Law run its course. This period will allow the Legislature time to weigh our comments, and enact a new arrangement that will take into account this judgment, as well as the prior judgments in the Ressler case, the Rubinstein case, and the Movement for Quality Government case, which formed the basis for enacting the Deferment Law, and for formulating an arrangement that addresses the matter in its entirety.

63.         We did not come to this decision easily. We are aware that along with the flaws in the Deferment Law, and along with the difficulties that arose in its implementation, Israeli society – and its hareidi component – have come a long way. It would appear that among various social strata and sectors of society – even among the hareidi population – there is a growing awareness that hareidi youth can be integrated into Israeli society, while preserving the religious, social and cultural values of the hareidi community, and respecting its religious values and lifestyle. Indeed, increasing numbers of hareidi men and women are seeking higher education and entering the workforce. There are also young men serving in the armed forces and in the civilian service frameworks, although the numbers remain far from reflecting social change. Nevertheless, the essential gap remains insofar as inequality in regard to military service and refraining from sharing equally in civic duties.

              Communal life in a society requires shared values and mutual respect. The recognition of the right of a unique group to preserve its lifestyle, culture and religious faith is accompanied by the aspiration toward an equal division of responsibility for advancing the shared interest in maintaining a cohesive Israeli society. Equal sharing of responsibility does not necessarily imply that everyone contributes in the same way and to the same extent. As my colleague Justice E. E. Levy expressed it: “Human society, even in a free, democratic state, is not egalitarian in the sense that each and every individual makes an identical contribution. The use of resources is also not identical” (the Movement for Quality Government case [2], at p. 783). Equally sharing the burden requires that there be egalitarian arrangements and apparatus that assess the individual’s ability to contribute in ways that are consistent with his talents and lifestyle, and as far as possible, his preferences. The Deferment Law purported to provide such an arrangement that could strike a balance among the various groups, interests and rights, and bridge the conceptual and religious differences without detracting from the need for an equal distribution of the burden, to the extent possible. The Law attempted to provide solutions to a complex problem. The Court was willing to permit testing its implementation over an extended course of time in order to ascertain whether the proposed solutions would mitigate the infringement of equality, and realize the provisions and purposes of the Law. In the end, the test of time proved that the Law did not realize its underlying purposes, and in practice, it primarily entrenched the pre-existing deferment arrangement. There was no meaningful change in the number of those opting for the constructive solutions that the Law provided for leaving the deferment cycle, and no formula has yet been found for abating the rapid growth of the deferral pool.

              For years, the Court acted with restraint in abstaining from drastic solutions in order to allow the development of social processes in hareidi society itself, which might lead to bridging the gap between the communities. The increasing number of deferments raises questions as to how we arrived at this point. The “Torah is their calling” arrangement influenced not only the number if deferments, but also nourished internal processes within hareidi society. In view of the ban upon going to work, the situation has become one in which most hareidi men do not work for a living, and poverty is widespread. Reliance upon government stipends grew significantly. In the absence of any limit upon the number of men who could be granted deferments, their numbers grew at a dizzying pace. As a result, the social reality changed beyond recognition. The character of the deferment arrangement changed from a privilege granted to a unique minority to a rampant phenomenon that knows no bounds. The number of deferred men relative to the overall draft has grown significantly. If once we were concerned with a small, defined group of scholars wholly devoted to the study of Torah, today the numbers account for over 14% of the conscription pool of any given year, and the numbers are growing. If the increase in the number of deferments is not halted, their number will double within a decade. Such a situation engenders a sense of injustice arising from the inequality that has spread among various social strata, and that widens social gaps and increases alienation among the various sectors of Israeli society. In addition to all of this, the dangers that have threatened the security of the state since its inception have only increased the practical need for inducting yeshiva students into military service.

              As President Barak stated in the Ressler case, “quantity makes a qualitative difference” (ibid. [3], at p. 505). Over the years, Israeli society endured the blanket deferments, as long as the number was limited to a small group. But a society’s tolerance for a situation in which a particular group is exempted from a universal duty is limited. Recognition of the importance of protecting community, religious and cultural rights is part of our democratic culture, which views such rights as worthy of protection. However, the protection granted such rights is not absolute. The need to maintain society requires balancing those rights against the State’s obligation to ensure equal treatment in civic life. That cannot be seen in the Deferment Law. Its arrangement constitute – for the most part – a mirror image of the arrangements that apply to non-hareidi youth. The Law was enacted in the hope of sparking a social process that would lead hareidi youth to choose to perform military or civilian service without coercion or the imposition of any obligation. That hope was in vain.

              In the Movement for Quality Government case, we pointed out that this complex social problem could not be resolved solely by coercion. Clearly, accountability, social responsibility and the desire to share society’s burdens cannot be achieved by legislation alone. Laws can ensure public order, encourage conduct that the Legislature deems necessary, and prevent an individual or a governmental agency from acting in a manner that harms other individuals or society as a whole. However, while accountability and social responsibility are not solely the result of legislation, laws can encourage or retard their growth. Resolving the social situation created by years of exemption – for all practical purposes – from military service is a complicated task. The data that we now possess make the task easier. The Deferment Law was tested over a period of time that was long enough to provide the Legislature with information about the more and less efficient methods for solving the problem. This information is vital to formulating a new legal arrangement that will take account of the flaws discovered in the Deferment Law.

64.         In consequence, the Deferment Law must be determined to be legally void. In light of the fact that the Law was enacted as a temporary order that will expire on 1 August 2012, we see no need to declare it void. The result is that the Law will remain in force until its expiry on 1 August 2012, and the Knesset will not be able to renew it in its present form. The Knesset will have to create a new arrangement, which can be based upon the framework established as part of the Deferment Law, but that takes into consideration what has been held in this judgment. In this regard, the Knesset will have to consider the flaws we noted, which derive, inter alia, from the lack of guidelines, criteria and goals for its implementation, as well as the fact that the Law comprised no obligatory element of service (neither on the basis of age, nor on the basis of fitness for service, and it did not require an alternative of civilian service or integration in the workforce). In correcting the flaws that we found in the Law and adapting it to its purposes in light of the lessons learned from its implementation, the Knesset can also make use of the findings in the public reports, such as the Interim Report and the conclusions of the Plesner Panel, which were presented to us as part of the Knesset’s response to the petitions before us. We would again emphasize that legislation that perpetuates gaps and flaws in equality of the scope revealed in the current situation cannot stand.

 

Postscript

 

65.         After writing the above opinion, I read the opinions of my colleagues Justice E. Arbel and Justice A. Grunis. As regards the opinion of my colleague Justice Arbel, it would appear that our fundamental views are not far apart. We disagree on the question of whether the pace of implementation of the Law is adequate and suffices to pass the proportionality test, considering the length of time in which the Deferment Law was in effect. In the opinion of Justice Arbel, the recent developments show a possibility for such change, and we should, therefore, wait for some additional period before examining the realization of the Law in practice. In my view, the data that we currently have, which reflect the implementation of the Law over a ten-year period, are sufficient to demonstrate the existence of inherent impediments and flaws, which we characterized as “genetic” flaws in the Law, and if they are not repaired, then the Law cannot realize its combined purposes. I take that view, even though I do not deny that there has been some positive change in the implementation of the Law.

66.         Like my colleague Justice Arbel, I, too, believe that reducing the inequality in sharing the burden among the various sectors of society is a protracted process. I am also party to the view that the complexity of the issue, and the intense emotional responses that it engenders, directly affect the complexity of the process and the method for its resolution. It is for these reasons that in the case before us, and in the proceedings that took place over the years, the Court maintained the position that unilateral, coercive steps should not be taken against any of the parties, and that it would be doubtful whether such steps could resolve a long-standing, fundamental debate concerning social values. On this, I have not changed my mind.

67.         The Court’s decisions in the Movement for Quality Government case and the other petitions that came before us demonstrate this Court’s restraint and moderation over the years. Although more than nine years have passed since the Law was enacted, we did not hurry to decide upon its constitutionality on the basis of its actual implementation. Although the data presented to us were hardly satisfying, to put it mildly, we preferred to grant the State additional time to realize the Law’s purposes. This judgment is handed down only following that additional, lengthy period for observing the realization of the Law’s purposes. We are now at the close of the first decade of the Law’s implementation. That is no trivial matter. It constitutes a significant period of time, in addition to the long years during which the matter was examined by all the relevant parties. In my opinion, it represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case: Does the Law comprise inherent impediments that prevent the full realization of its purposes? That is a purely legal, constitutional question. As I explained at length in my opinion, I believe that the answer is yes. There is no need to reiterate, and I will only briefly mention the difficulty raised by the decision year – which does nothing to contribute to choosing one of the Law’s tracks; the almost unlimited choice granted to hareidi youth; the broad discretion granted to the Executive in regard to implementing the Law, and in the manner of its implementation, including the emphasis that has been placed upon realizing one of its purposes at the expense of the others; and the need to contend with the unavoidable budgetary consequences of the Law’s arrangements. These impediments thwart realizing the Law, and correcting them may ensure that implementing the Law will not be contingent upon good will. I discussed the numerical data at length in my opinion. I was not convinced that the figures were satisfying in view of the extended period that had elapsed since the enacting of the Law. No doubt, the numbers indicate a trend, but at this stage, a trend is not enough. Even if there is an annual rise in the number enlisting in the army or civilian service, there is an analogous, continuous rise in the number of those joining the ranks of the “Torah is their calling” arrangement, and the proportion of people receiving deferments continues to increase. What that means is that, in practice, the Law did not bring about any significant change.

68.         I would add that a meaningful analysis of the data also requires an examination of the quality of service. The pursuit of an equal sharing of the burden is not merely a technical or formal matter. One can, of course, point to impressive conscription statistics when a service track of merely three months is offered. But it would be hard to say that such military service is equivalent to the three years that are required of anyone who is not hareidi, or even to service for the 16 months period offered to some hareidi men who choose to enlist. The same is true in regard to civilian service. It is clear that the civilian service track has become the primary service option for young hareidi men who choose to leave the “Torah is their calling” arrangement. This track, too, must be examined in terms of substance rather than solely on the basis of numbers, as one cannot speak of equally sharing the burden if the civilian service is performed within the community, unsupervised, and in some cases – as detailed in the State Comptroller’s Report cited in para. 44 of my opinion – over the course of a few days or on weekends alone.

69.         I now turn to the opinion of my colleague Justice Grunis, who is of the view that the matter is not suited to Supreme Court review. According to Justice Grunis, the Court should refrain from considering the constitutionality of the Deferment Law, inasmuch as the Law is intended to grant preferential rights to a minority. This approach also formed the basis of his opinion in the Movement for Quality Government case.

              President Barak, who wrote the main opinion in the Movement for Quality Government case, addressed the difficulties inherent in a theory of constitutional review that seeks to justify refraining from the review of laws in which the majority grants preference to a minority (see: the Movement for Quality Government case [2], at pp. 717-721), and there is no need to repeat what he wrote there. I will only remark upon a number of problematic points raised by the approach.

70.         First, underlying the approach of Justice Grunis is the assumption that the purpose of judicial review is to ensure the propriety of the political process. Indeed, judicial review is intended, inter alia, to ensure the propriety of the political process, protect against the violation of minority rights by the majority, and ensure that the majority does not wrongly exploit its power. But it does not end there. Judicial review is not limited to the narrow view of democracy as simple majority rule, and extends to the conception of democracy as a regime that protects fundamental human rights. That is the primary lesson learned after the Second World War, and it has been internalized in the constitutions of many states. Ensuring the democratic process is not enough; the essence of democracy, as expressed by the protection of human rights, must also be defended. That protection is not limited to situations that target minorities.

              Second, I think it doubtful that the approach presented by my colleague is appropriate to the Israeli political reality. In Israel’s coalition reality, ensuring the propriety of the democratic process – in which framework the majority’s desire to grant preferential rights to the minority is examined – takes on special meaning. In a political system composed of a large number of parties, and in which small parties play a decisive role, can one speak in the simple terms of a majority-minority relationship? In what situations can we state that the majority grants preference to the minority of its own volition? There would appear to be no more instructive example of the difficulty of the distinction between minority and majority rights than the matter before us. In terms of the factual background, it is no secret that the entire history of the deferment arrangement reflects coalition imperatives in which a majority surrendered to a minority, inter alia, for interests of coalition politics. In such circumstances, it is difficult to identify what represents an expression of the majority will, and what constitutes coercion.

              Moreover, the approach suffers from significant problems in its application. Under what circumstances should we say that a majority has granted preferential treatment to a minority? What are the criteria for distinguishing majority and minority groups? Should the distinction be numerical? Should it be based upon the ability to compete successfully in the political process? Should it be based upon social, economic or political standing? Can a group be deemed part of the majority in some circumstances, but as belonging to the minority in others?

              Third – and this is the main issue – constitutional review of the violation of rights concerns people as individuals. As a rule, the fact that many are affected by some governmental conduct – and the fact that they constitute a majority of society – does not free the Court from examining the constitutionality of the violation of rights. Constitutional law focuses upon the constitutionality of the violation, and not upon the identity of the victim. The fact that the person whose right have been violated is a member of a particular group is not relevant to the question of whether constitutional review is warranted, but rather to the character of that review and the scope of the latitude that will be allowed the Legislature.

71.         Lastly, my colleague raises the fear that our current decision in these proceedings will lead to a future petition asking that we revisit the issue. In his view, “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige”. I cannot accept that. First, factually speaking, I do not believe that one can say that there has been no real progress. Since the Court began examining the deferment arrangements, the matter has been addressed by legislation, and hareidi men have begun performing military and civilian service. Too a certain extent, the Court’s involvement served as a catalyst for the legislative process. Second, in matters such as that before us, founded upon ideological differences between different elements of society concerning values, we cannot expect that the issues will be resolved by the stroke of a single judgment – if such issues can actually be fully resolved.

              It is generally understood that the Court does not purport to bring about complete social change, but it is certainly one of the most important social agents for advancing the process of change. The Judiciary, in Israel as in other democracies, is one of the branches of government, and it has the potential for employing the tools at its disposal in resolving – even if that resolution is gradual or only partial – social strife. The Court’s contribution to resolving social rivalries is not always clear or immediate, and occasionally, Court proceedings and decisions stimulate a range of social processes, which are sometimes different from those sought in the petitions before it (and cf., in regard to the diverse influences of the monumental decision in Brown v. Board of Education [52], Martha Minow, In Brown’s Wake: Legacies of America’s Educational Landmark (2010), esp. pp 5-33). Indeed, the complexity of the dispute before the Court wholly influences the nature of the Court’s involvement, and the scope of its influence in resolving the issue, but that complexity should not, itself, lead to the conclusion that the Court should refrain from addressing the social issue. Therefore, I see no problem presented by the possibility that the Court may be called upon to address the issue before us again in the future, if there be constitutional legal grounds.

 

Conclusion

 

72.         As stated, the Deferment Law was enacted as a temporary order. It will soon expire. We now have an opportunity for retrospection, and for carefully examining its provisions. The very essence of legislating a temporary order is its impermanence and the need to revisit, and yet again reexamine whether the law is consistent with its purposes against the changing reality, and in light of its actual implementation. In my opinion, I pointed out the existing flaws in the law. Those flaws can and must be corrected before the Deferment Law expires.

              As stated, I am aware that if my opinion is adopted, the natural course of events may again lay the matter at our doorstep. That is not to be feared. The social processes are already afoot. We no longer stand where we were thirty or forty years ago. The Court was a partner to the processes that resulted in the enactment of the Deferment Law. The abrogation of the Law does not mean that we return to square one. The changes cannot be undone. The current objective is to correct the flaws that have been found in the current arrangement.

73.         Before concluding, I would note that the writing of this decision began long before the issue returned to the public agenda with the force that we now witness. The public debate, as I earlier noted, cannot prevent us form examining the legal aspects of the arrangement before us, while we strive to remain within the bounds of our authority, and to ignore the winds blowing about us. As required by the Deferment Law, and in view of its expiry in half a year, the matter now passes to the Knesset for debate, and it is its job to enact a law that will take into account the need to repair the flaws that we have indicated in the course of this judgment.

              In conclusion, if my opinion is accepted, I would recommend that my colleagues order that the Deferment Law remain in force until its expiry on 1 August 2012, and that it not be extended in its present form.

 

The President

 

Justice M. Naor:

 

1.           I concur with the opinion of the President.

2.           I would like to comment briefly upon the opinion of my colleague Justice Grunis. Justice Grunis foresees two scenarios: Under the first scenario, if the Knesset fails to enact a new law as a result of our judgment, then hareidi men will be required to serve in the armed forces, although few Israelis expect a mass conscription of yeshiva students into the ranks of the IDF, and a new petition will be required to coerce conscription. Even if such a petition is granted by the Court, my colleague believes that it will not lead to conscription. Under the second scenario, which he deems the more realistic, if a new law is enacted in an attempt to repair the flaws in the current law, a petition challenging the new law can be expected. In this regard, my colleague states that “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige. Moreover, we delude ourselves if we expect that judicial decisions will lead to the conscription of hareidi men into the IDF, and to their integration into the workforce. Social and economic changes may lead to the desired result. The Court has little influence in cases like the one before us.”

3.           I would like to state clearly that the fear that Court orders will not be enforced is, in my view, misplaced, and certainly not one that we should countenance. The State of Israel is a state under the rule of law. In the State of Israel, the fear that orders will not be executed is unjustified. The rich experience of our judgments, even regarding difficult, complex and sensitive matters, is proof enough. Indeed, attempts to frustrate Court orders are doomed to fail. As this Court has already had opportunity to note in regard to the famous Brown decision, “such attempts at frustration are ultimately doomed to failure in a state under the rule of law, even if only at the culmination of prolonged legal proceedings. Indeed, it is a truism that justice and equality – even if delayed – will ultimately prevail” (HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education [27], at para. 14; on Brown, see Brown v. Board of Education of Topeka [52]; On the book Gerald N. Rosenberg, The Hollow Hope, 2^nd ed. (2008), see the review of Prof. Gad Barzilai, “Courts as Agents of a Social Change?” in Neta Ziv & Dafna Hacker (eds.), Is Law Important? (2010) (Hebrew)).

4.           My colleague is of the opinion that repeated consideration of the issue of hareidi conscription without achieving real progress as a result of judicial intervention does not contribute to the stature of the Court. In my opinion, what little progress that has been achieved – and first and foremost, the attempt by the Knesset and the Executive to address the issue in primary legislation – is directly attributable to the intervention of this Court. For decades, this Court practiced careful restraint, as we do again today. In today’s judgment, this Court does not issue a final order instructing the Executive to draft all the yeshiva students at once. Under these circumstances, it would seem to me to be inappropriate to speak of the failure to execute an order that has not yet been issued, or of harm to the prestige of the Court as a result of such non-execution.

5.           In conclusion, I am not of the opinion that the Executive branch of the State of Israel would refrain from enforcing judgments. In any case, our job is to decide the law and rule accordingly. In my view, there is no need to wait any longer. There is also no need to refrain from intervening. Therefore, as stated, I concur with the opinion of the President.

 

Justice

 

Justice E. Arbel

 

“The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple”

(Justice Barak, HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [2] (hereinafter: Movement for Equality of Government case).

 

The subject of the deferral of service for Yeshiva students for whom “Torah is their Calling” in its various incarnations has been on this Court’s table for many years. On all of the occasions that the Court addressed this subject it instructed itself to conduct itself with restraint and caution, in its awareness that the issue is located on one of the most sensitive seams of Israeli society, perhaps the most sensitive of them all. The Court’s self-imposed decree of caution and restraint was assumed while monitoring the “snail’s pace” processes taking place in the complex reality of Israeli society, in the hope of reaching the most consensual solution for all the world outlooks and life styles.

1.         In her opinion, my colleague, President Beinisch presented a broad review of the unfolding of events from the introduction of the arrangement for a deferral from military service in 1948, through to the petitions that attempted to challenge the legality and the constitutionality of the arrangement in the Ressler case (HCJ 910/86 Ressler v. Minister of Defense [3] and the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [1], in the wake of which the Knesset passed the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002) (hereinafter – Deferment Law, or the Law) and culminating in the ruling in the Movement for Quality of Government case, which adjudicated the constitutionality and the proportionality of the Law. In the last case the Court refrained from declaring that the Law was unconstitutional, and decided to wait until the termination of the Law’s period of validity, which the Knesset had set at five years. After that period the Knesset would have to determine whether the Law had actually realized its objectives. It ruled that “Unless there is a substantive change in the results of the Law’s implementation, there will be grounds for considering a declaration of its invalidity” (at p. 714). After the passage of five years and after hearing the positions of the professional bodies, who argued that at issue was a process of integrating and implementing a substantive social change which requires time, the Knesset extended its validity for an additional five years, until 1 August 2012.

            Against this background, the petitions before us were filed, being rooted in the question of the proportionality of the Law. On 29 May 2008 an order nisi was issued, and on 8 September 2009 a decision on the petitions was handed down (by Justice Hayut), ruling that before making a final decision upon the constitutionality of the Deferment Law, its mechanisms “which have only just begun to take shape and begin to operate” should be enabled “to prove their effectiveness or ineffectiveness by their results over an additional, fixed period”. (para. 9 of Justice Hayut’s decision). Accordingly, this Court fixed a period of an additional 15 months, after which the hearing of the petitions would be renewed; now the time to decide has arrived.

            At the end of her comprehensive judgment, my colleague the President concluded that the Deferment of Service Law is unconstitutional because it fails to meet the proportionality requirement of the limitations clause in Basic Law: Human Dignity and Liberty, and should therefore be voided. On the other hand, the President suggested deferring the declaration of annulment and allowing the legislature to complete the period scheduled for the validity of the Law, thereby allowing the legislature to examine the comments in her decision and to establish a new order that took it into account as well as the previous judgments in the cases of Ressler case, the Rubinstein and the Movement for Quality of Government case.

2.         Unfortunately, I am unable to concur in the result in the decision of my colleague the President. I stride together with her along a significant portion of a long road and agree with the general principles of her opinion, which are actually a continuation of the previous decisions concerning the enlistment of the yeshiva students. All the same, I do not think that it is appropriate at this stage to decide the fate of the petition. In my view even after the extension of the validity of the Law, and in view of the trend, albeit delayed, which has been demonstrated before us, the competent authorities operating parallel to the Government should be given extra time to operate in a manner that examines whether the Law can actually promote its goals. I therefore take the view that the Court should persist in its self-decreed policy of caution and restraint which it has always abided by in this subject. I would therefore propose that at this time the petition should remain pending before this Court, while monitoring the stages of implementation of the Deferment Law, and whether it succeeds in generating the desired societal change.

3.         Before setting forth my reasons I wish to clarify that the matter is by no means is easy for me. With all my heart I identify with those who complain about the inequality and the discriminatory allocation of the burden. I too share my life with a husband who serves as a senior officer in the regular army. All the members of my family, my daughters, sons in laws – who received security prizes – and my grandchildren – served and serve in the I.D.F, motivated by a sense of commitment and desire to contribute. My heart lies with those who say: no more inequality, no more exemption from bearing the burden of military service – a duty which in my view is a privilege for those seeking to enjoy the totality of rights to which the Israeli citizens are entitled. It would have been easy for me to add my opinion to those who argue that there is a limit to the degree of tolerance that a society can bear in waiting for the narrowing of gaps that reflect a societal inequality, especially when the inequality relates to a duty that involves a risk to life. It would therefore have been easy for me to concur with my colleagues who maintain that the Deferment Law does not meet the requirements of proportionality.

            All the same, having considered and reconsidered the matter, and with a heavy heart, I have arrived at the conclusion that the Deferment Law should not be voided at this time. This conclusion is based on the numerical data, together with hope and belief. This conclusion is based on the imperative of accommodating the processes underlying the nucleus of the Law to mature and to ascertain whether the Law has lead to the desired change, to the integration of the Yeshiva students in the frameworks of military and civilian service, in the work market and in the life of the State of Israel. My conclusion is based on my impression that we have yet to reach the moment of truth and that the time to drop the curtain on the Law and declare it unconstitutional has not yet arrived. The upshot of this holding is to restore the complex, painful constitutional and social dilemma to its starting point. And what then:

 

Let me clarify my position.

 

The Deferment Law

 

4.         The process of the Law's enactment was based on the work of a committee that sat on the problem for a protracted period. The Tal Commission was requested to formulate an appropriate arrangement for the subject of the enlistment of yeshiva students into the I.D.F. In the words of the its report, it attempted to choose a mediating solution. The Commission did not ignore the principle of equality and attempted to strike a balance between it, and other conflicting interests, ruling that "commensurate weight should be given to the differences between the groups, and commensurate weight should be given to the principle of equality, so that the difference in treatment not deviate from what is compelled by the relevant differences between the groups”. The Legislature endorsed the recommendation of the Commission, and in the Explanatory Note, wrote:

 

‘The changes recommended by the Commission are intended to enable the I.D.F to absorb the Haredi population into frameworks suited to them and in parallel to enable the Yeshiva students a "year of decision" at the end of which the student is permitted to return to his Torah studies in the yeshiva or to be integrated, in accordance with the Army's needs in shorted military service or civilian service, as well as into reserve duty (Draft Bill of Military service (Deferment of Service for Yeshiva Students whose Torah is their Calling) (Temporary Provision) 5760-2000, HH 455).’

 

The legislative process was a thorough, deep and painstaking process. The Deferment Law as ultimately adopted reflected an arrangement of social compromise; its purpose was to balance and bridge between conflicting trends (see comments of President Barak in the Movement for Quality of Government case [2]. para. 54, opening phrase). This would take place in recognition of the complexity of the reality that had materialized since the establishment of the State, prompted by the need and the desire to mediate between the different sectors of Israeli society concerning a matter lying at the very heart of our existence here – military service. The Law seeks to respect the different world views and lifestyles that make up Israeli society, without compromising the need for a equal allocation of the burden carried by the citizens of the State. The Law achieves this by establishing a framework for the gradual integration of the Yeshiva students in the frameworks of military and civilian service.

 

            It seems that during that entire period it was clear to all that time would be required to generate the genuine social change that would lead to the reduction of the inequality, and that such a process could not occur immediately, but rather step by step. The understanding that a social change can only materialize as a result of a gradual process that must be allowed to take place was also the basis of this Court's decision not to pass judgment on the Law prior to the full passage of its period of validity. Justice Procaccia's comments in the Movement for Quality of Government case [2], are of particular pertinence in this context:

 

‘The democratic process is based on the recognition that it not always possible to achieve the goal of equality between different sectors of the population in reliance on absolute formulae. It relies on a deep understanding of the social reality, its exceeding complexity, and the awareness that the achievement of equality may entail a gradual societal progress for locating the points of contact between the various sectors of the population, in recognition of the depth of the gaps between world views, lifestyles, and an understanding of the roles of the state which may lead to one community being set apart from the rest of the public. It is rooted in a definition of the appropriate goal and objective and the adoption of the appropriate steps for their realization. This may entail the gradual realization of the goal without disruption all of the networks, without destroying a fragile human-social fabric and without raising an axe that may cause irreversible social damage. It may necessitate a process of building, block by block – not by denunciation and condemnation, but by adoption of a path of respect and understanding for the one who is different, always striving to come closer and with a commitment to lowering the barriers of division. The democratic process shows understanding for the variety of needs of the members of the various communities, and attempts to find the common factor and the balance between them with the aim of enabling harmonious social life. Occasionally, the social process is a long term one, involving suffering on the way, and is unable to produce significant, immediate results (ibid. [2] at p. 791)

 

5.         Almost ten years have passed since the adoption of the Law. Undeniably, this is a long and protracted period. The picture emerging from the data presented to us is that during this period the Law did not lead to outstanding social change, and certainly not to the desired equality. All the same, one can discern a clear trend of process relative to the situation that preceded the Law. Processes of this kind, by their very nature may lead to a loosing of patience and the drawing of conclusions relating to the lack of purpose in the Law. My view however is that there are various considerations, which I will presently set forth, that may lead to a different conclusion, in accordance with which, despite the passage of years, and even if more could have been done, this period of time is not sufficient to complete the complex process of integration under the Law, and hence it would be unwise to cut it short prematurely. More time is required; more patience is required, and primarily, there is a need for persistence and tenacity in proceeding along the potholed path from which Israeli society in its entirety, including all of its sectors, will emerge for the better. I am aware that this is a process that may last for years, but in my view the first buds of change are already discernible and they must be allowed to develop.

6.         In my view the veracity of this conclusion is fortified when considering the background against which the Law’s effect is being examined. Since the establishment of the State, haredi society has lived in accordance with its world view, according to its defined life style which includes, inter alia the deferment of service for the men of community, whose life revolves around studying in yeshivas. This life style is a dominant element in the self-definition of the community, and it is therefore clear that the desired change has a chance only if it is part of a long process accompanied by patience and tolerance. This is a process that must be promoted, as has been done until now in the framework of the law, gradually, and in coordination with the members of the community, in manner that does not violate their basic beliefs (per Justice Levy in the Movement for Quality of Government case [2] at p. 785). The process must be overseen with eyes that are open and perspicacious, which understands that the process is one that will not occur in a day nor even in a number of years. The need to adapt to a change is not only that of the haredi community. The conscription of the members of this community into the I.D.F. may and already has triggered various problems stemming from the tension between the army life style and the haredi life style, such as the adaption to kashrut requirements and integration into the overall fabric of the I.D.F. The success of this process likewise depends upon finding solutions to these difficulties, with caution and mutual respect. To be precise: I do not claim that the difficulties are insoluble. It can and must be done, but it must be done with common sense, sensitivity, demonstrating patience, optimism and tolerance.

 

The Numerical Data

 

7.         A central foundation of my position lies in the data that was presented to us.

In her opinion, my colleague the President examines the numbers of those who enlist to the I.D.F and civilian service from the haredi sector in relation to the overall number of those receiving deferments. Today, this group numbers 61,000 men. I would suggest a different method for examining the data because I do not think it practical to expect that the older members of the community and heads of families will, today, enlist in the Army, or even apply for civilian service. In my view we should not look to the past, but focus on the present, with our faces towards the future. Accordingly, I suggest examining the data in accordance with the number of those whose service is deferred each year from the haredi community as opposed to the annual figures of those who join the framework of military service or civilian service. In my understanding, this is a realistic examination that has consideration for the existence of a process and which anticipates a gradual progress over the course of years. An examination of the number of those joining the service each year in relation to total number of those whose service was deferred over the years, in my view, ignores the fact that the one of the purposes of the law is to "bring about a gradual solution of the difficulties that existed in the arrangement for the deferral of service for Yeshiva students, in a gradual, and cautious manner (Movement for Quality of Government [ ], para. 54 of President Barak's judgment

            In my view, an examination of the data in this manner demonstrates the beginning of an encouraging trend. From the data presented by the respondents it emerges that in 2007 the potential enlistment pool was estimated at a potential of 4,850 men. (including those expected to enlist to the hareidi Nahal battalion). Only 303 people of the haredi community enlisted in the army during that year (including the hareidi Nahal) or joined the civilian service – in other words –only 6% of the potential enlistment pool. . In 2008 on the other hand, the enlistment pool numbered about 5000 in comparison with 823 haredi men who entered military or civilian service, in other words about 16%. In 2009 the potential enlistment cycle consisted of 5500 young men, of whom 1732 men joined one or another kind of service, namely about 31%. In 2010 the potential enlistment pool stood at 5,800 men. In that year 2020 men from haredi society enlisted in the I.D.F. or entered into the civilian service, which means 35% of the numerical datum of new enlisters. Having consideration for this trend, the respondents anticipate that in 2012 about 50% of the haredן enlistment pool will join the Army or civilian service. Regarding the year 2015, the expectation is 65%. It should further be added that in updated response of the respondents of 24 January 2011 we were informed that in 2009 the number of those serving in the military stood at 1357, of whom there were 729 new recruits into different tracks (Nahal Haredi and Shahar). In 2010 there were 2048 haredi men in the Army, of whom there were 898 new recruits in the Nahal and Shahar tracks (p. 21 of the Government's response 24 January 2011

            My view is that on the face of it these numerical data reveal a certain measure of progress and an increase in the numbers of the members of haredi sector who enlist in service, and this progress was also mentioned by the President (para. 50 of her opinion). These data, along with an optimistic forecast, albeit tempered by an element of scepticism and caution, justify giving a proper opportunity to the Law to prove its ability to promote its purposes

8.         Parenthetically I will note, further to the above, that after reading the response of my colleague the President to my opinion, I find that two points should be sharpened:

            First, my view was, and still is, that the inductees into the Nahal Haredi should be included in the framework of the numerical data that serves as a foundation for the decision. The assumption is that if not for this special track these young men would not have enlisted in the army and would have joined the ranks of "those whose service was deferred", because these are not the young men who have deserted the Haredi society. As such even if the track was not created by force of the Deferment Law, it still fulfills its objectives. It bears mention that these recruits are also included in the numbers of those who express the size of the haredi enlistment pool in the data mentioned above. This being the case this datum should also be considered when examining the number of recruits from the total number of those in the pool.

            Furthermore, if we ignore this datum and ignore the datum of members of the haredi community who choose to enlist to Nahal Haredi, we will discover that the trend of integration of the haredim into any kind of service, civilian or military, becomes even more pronounced. Hence, in 2007 only 53 young haredi men joined any kind of service – army or civilian, that was not part of the Nahal Haredi, from out of the enlistment pool of that year that numbered 4600 men – which means only one percent. On the other hand, in 2010, 1652 haredi men joined the military or civil service without including those who serve in Nahal Haredi – from an enlistment pool which in that year was in excess of 5470 men, and as such represents 30%.

9.         Another point relates to the including of those who joined civilian service in the numerical data. My colleague the President analyzes the numbers and presents the percentages based on joining the military service only, without the soldiers of the Nahal Haredi and without those who join the civilian service (para. 31 of my colleague's opinion). In my view, at this stage the examination should be based on those who enlist into military service as well as into civilian service. Indeed, in order to reach full equality, all of the members of the haredi sector should enlist in the army and not suffice with national service,. which is the obligation of the majority of the other sectors of Israeli society. All the same, this Court has already recognized that the purpose of the Deferment Law is to bring more haredi men into military or civilian service, as an appropriate goal that satisfies the requirements of the limitations claused (see in Movement for Quality of Government case [2], paras. 54-55 of the opinion of President Barak). President Barak wrote as follows:

 

‘In doing so the goals of the Law are realized: It enables the deferment of service for those who so choose; at the same time many will turn to the tracks of military or civilian service. The inequality will be reduced; there will be an integration of the haredi men into the work force; these changes will occur in a gradual and cautious manner, without coercion and by way of agreement (Movement for Quality of Government [2] para. 63 of President Barak's judgment).

 

In other words, in the complex and protracted process required in the move towards full equality, it must be recognized that contributing to the State by way of civilian service will also constitute an appropriate goal, even if it does not achieve full equality.

10.       Further to the data that were presented at the time by the attorney for the state, I wish to present current data from a session of the Foreign Affairs and Defense Committee, of 23 January 2012 (as recorded from the broadcast of the Knesset channel) which addressed the issue of the conscription of haredi men, coming from statements made by relevant professional entities. These data too support my approach and likewise indicate the nascence of a positive social trend towards the realization of the objectives of the Law, a trend in respect of which the professional entities too are optimistic about its continuation.

            Professor Eugene Kandel, the head of the National Economic Council who was a member of the interoffice panel that examined the encouragement of employment and promotion of national and civilian service among the haredi public (Gabbai Commission) claimed that “The cup is still not quite so empty and in recent years has been filling up with increasing rapidity”. Professor Kandel noted the growing trend towards the integration of haredi men both in military and civilian service frameworks. For example, whereas in 2007 the numbers of haredi men that enlisted in the I.D.F stood at only 288 men, by 2011 this number had grown to 1282. Regarding civilian service, in 2007 the number of haredi men who joined was only 15 only, by 2011 the number of those who joined had jumped to 1090 men. He emphasized that the Government had achieved the enlistment targets that it set for itself until that time, and that these targets were increasing annually so that by 2015 it was expected to reach 60% of the haredi community who would join either the military or civilian service. Finally, he mentioned that in the wake of these positive trends it was also possible to discern a growing trend over the last three years of Haredi men who were participating in the work force.

            General Orna Barbibai, Head of Manpower Division, noted that in 2011 the I.D.F recruited more haredi men than planned into the various haredi frameworks. The plan was to recruit 1200 haredi men, whereas in fact 1409 were enlisted, including within the framework of hareidi Nahal. She emphasized that the army had detailed plans for the absorbing and integration of haredi men expected to enlist in accordance with the Government targets, in the coming years. She agreed with Professor Kandel that there was a discernible increase in the enlistment of the haredi men into the Army. In her view, these data are encouraging “the datum of enlistment is a blessing and we believe that it should be promoted”

            Sar-Shalom Jerbi, the director of the Civilian Service Administration, claimed that there had been a real revolution in the world view of the haredi sector with respect to service. He too pointed to the growing tendency among the haredi towards joining the Civilian Service. He stressed that as distinct from the commonly heard criticism, the haredi men who serve are not integrated in their service in the yeshiva frameworks, even though there are those who provide assistance for at-risk youth. The areas in which they serve are welfare, public health, absorption of Aliyah, environmental protection, internal security, and rescue services. He also mentioned that only 57% serve within the community and that the tendency in the administration is to enable less service within the community. Finally he referred to a survey conducted among those who had completed civilian service for haredi men, which indicated that 78% of them intended to study or to go out to work after the completion of the service.

            Dr. Reuven Gal, a sociologist, and one of the founders of the Civilian National Service, and an academic researcher claimed that according to the data, the haredi public was becoming a partner to the service at a particularly fast rate, and that there had been a jump in the numbers beginning as of 2005 and until 2011. He maintained that social phenomenon do not generally take place at such an accelerated rate. About 10,000 hareidi men joined the frameworks of state service over the past 5- 6 years, both that of the military service and that of the civilian service. He further stated that both tracks, the military track and the civilian track constitute levers for the integration of the haredi population in the employment pool. Dr Gal’s recommendation was that Law be extended for another five years, parallel to the introduction of changes in the civilian and military tracks.

General (res.) David Ivri, the Chairman of the Temporary Public Council for Civilian National Service clarified that the Administration of the Civilian National Service only began functioning in 2007, and that it must be taken into account that the initial implementation of any new legislation would take many years. In his understanding, an opportunity should be given to the existing law, which had lead to very positive developments in relation to the statistics of those serving from among the haredi sector. He related that at the beginning he had thought that the haredi sector should be compelled to enlist, with no other choice, but that having been exposed to the complexity of the society problem and the difficulties involved in its conscription enlistment, he changed his outlook on the matter. In his view, at this stage it would not be proper to impose a duty of service and the voluntary aspect of the law should be left intact.

            We can therefore see that all of the professional bodies that were present at the hearing felt that the data points to satisfactory progress that should be continued and encouraged within the framework of the existing law. Not one of the professional bodies contradicted these conclusions at the hearing

.

The Objectives of the Law

 

11.       An additional layer to be mentioned relates to the objectives of the Deferment Law, which President Barak referred to as being appropriate, in the Movement for Quality of Government case. It will be recalled that the Law has four objectives. The first is to entrench in Knesset legislation the arrangement for the deferment of service for yeshiva students for whom their Torah is their calling and who wish to study in yeshivas. The second is to bring about greater equality in the allocation of the burden of military service in Israeli society, so that more members of hareidi community are integrated into military service, or at least civilian service. The third is to increase the participation of the haredi public in the pool of employment. The fourth is to bring about a gradual solution to the problems attendant to the arrangement for the deferral of service of Yeshiva students, based on broad consensus and without coercion (see Movement for Quality of Government [2], at pp. 700- 701). In respect of these purposes President Barak ruled:

 

‘Are these purposes “worthy”. In my view the answer is in the affirmative. They are intended to integrate the Hareidi sector into the texture of the life of the State, and thus assist that sector in reducing the inequality and to arrive at an arrangement that is acceptable to all the sections of society. They are intended to engender a long term societal change, which will lead inter alia to a reduction in the dimensions of the Deferment arrangement for Yeshiva students. These purposes, in their interaction, satisfy the requirement of a proper purpose. An arrangement was established the overall balance of which is consistent with the fundamental conceptions of Israeli society’ (Movement for Quality of Government para. 55 of President Barak’s opinion).

 

Given the characteristics of the hareidi public and the lifestyle to which it has become accustomed over many decades since the establishment of the State, I think that the admixture of these objectives at the beginning of the process will differ from the anticipated admixture at the end of the process. Conceivably, at the first stages emphasis will be placed upon the objective of incorporating the haredi public in the work force, which is an objective to which there is less opposition among this public and which can be incentivized in a more significant manner (regarding the ramifications of the non-participation of the hareidi sector in the work force see the Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter – Gabbai Committee Report). The economic straits in which many of the hareidi community currently find themselves may lead, and it would seem that it has already led to an increase in the integration of the members of this community in the work force. The nature of the work force as opposed to the characteristics of military service contributes to this. It may be added that the hareidi community is averse to the integration of its young and unmarried people in the general society given its fears of society's influence over them, which can be more profound. It is clear that the integration of the hareidi population in employment will in and of itself constitute an achievement not to be treated lightly.

            In my estimation, to the extent that the hareidi public becomes more integrated in the employment market, and all will observe, hopefully, that they can be integrated into the work force at no cost to the special character of the community, it will become easier to stiffen the requirement for the integration of members of the community into the frameworks involving more meaningful army and civilian service (see Justice Procaccia’s comments on this point Quality of Government [2], at pp. 793). In other words, the balance of proportionality will change to the extent that the process of integration continues. Accordingly, I do not think that we should recoil, at this stage, from sufficing with a requirement of a relatively short military and civilian service and from the exemption given to those of certain ages from regular service, that enables them to go out to work.

            I will again repeat that in my view the purpose of achieving equality in the allocation of the burden will not be achieved by coercion (see Movement for Quality of Government case [2], which refers to the Tal Commission Report; and also at p. 702), but only by a long and patient process. This conclusion is consistent with the fourth objective of the Deferment Law, namely, the achievement of a gradual solution based on broad consensus. Consideration should also be had for the fact that one of the objectives of the law, recognized by this Court as a an appropriate objectivee, is to legally anchor the deferment of the service of yeshiva students. As such it should be recognized that a certain part of the haredi community – which given that the purpose of equality is also part of the law, will be relatively small – will continue to study in the Yeshivot in the future without bearing the burden of military service.

 

Decision Year

 

12.       In her opinion, my colleague the President attached particular significance to the resounding failure of the decision year mechanism under the Law. I agree with her that this mechanism has not proved itself in terms of achieving the required change. All the same, the purpose of enlistment to the army or joining civilian service does not entail taking a year of decision. It therefore seems that the additional mechanisms in the Law, as well as the incentives that have and continue to be created by the Executive branch over the last few years are leading to a gradual, albeit slow change. The failure of the decision year mechanism, does not, in my view, in and of itself justify the declaration of the invalidity of the law.

 

Civilian-National Service

 

13.       The mechanism of civilian service only began to operate in 2008, after a Civilian Service Administration was established (hereinafter: the Administration) in 2007. The Administration was established in accordance with the recommendations of a committee headed by General (Res) David Ivri, appointed by Minister of Defense, and it recommended the broadening of the civilian service to include all Israeli citizens and residents who were not called up for military service or who are exempt from military service. This would be in addition to the recognition of the preferred status to be given to compulsory military service. The civilian service mechanism is a central component of the process contemplated by the Law. The Administration has only been operating for a relatively short period of time, In my view, only after the mechanism established for implementing the integration process has been operating regularly for a particular period of time, will it be possible to evaluate the Law’s degree of success in realizing its objectives.

            I have not ignored the criticism of the manner in which the civilian service is run and the absence of sufficient supervision. In any large network that begins to operate failures and difficulties are to be expected, in a manner akin to “birth pains”. These difficulties do not warrant the cancellation of the network and certainly not the cancellation of the Law in its entirety. Presumably, there will also be those from among the hareidi population who will seek to benefit from the advantages offered by the Law without conferring any real substance to the civilian service which they are committed to by reason thereof. In my view, at least at this stage, these failures must be treated, inter alia by tightening the supervision and allocation of the resources required for that purpose. Civilian service must constitute a real contribution to the society and not just lip service – a ticket into the work market. All the same, this is a far cry from a conclusion that the Law is void. I will add that the criticism of the activities of the Administration is based on the State Comptroller’s Report of 2009, and passage of time since then has – as submitted to this Court – witnessed significant changes: The Administration has contracted with an external body that assists it in all of its contacts with those who serve. Amongst other things, one coordinator has been allocated for every 45 servers, on the average and he bears responsibility for them and conducts ongoing inspections. It was explained that the coordinator visits the place of activity of each server on an average of once every two weeks. Any impropriety is reported directly to the Administration. In addition, each server is required to submit a monthly attendance report which must be confirmed both by the operating body and the coordinator. The Administration reports that cases of false reporting concerning attendance were treated with severity and some of the servers were even transferred for the treatment of the military authorities. The results of these measures and their contribution to the achievement of the aims of the Law can only be examined over the passage of time.

            I will add that yeshiva students between ages 22- 25 without children will be obligated to do either military service or civilian-military service, in frameworks such as the Police, the Prison Authority, Fire Extinguishing and medical evacuation, which can find their parallel in military service. I see importance in introducing activities that will encourage yeshiva students to turn to military service, as well as to civilian-military service. In fact, from the statistics it is evident that the existing training in the military service framework already creates this kind of incentive, given that it prepares the graduates of the track for their integration into the work market. From my perspective, consideration should be given to additional measures that will specifically incentivize the choice of the military service track, as the professional personnel may deem fit.

 

The Functioning of the Executive Branch

 

14.       Another reason for the decision that the Law is not constitutional is that the Law confers the Executive branch overly broad freedom of choice. I believe that this is a reason for judicial oversight of its implementation but not for declaring the Law to be void. The complexity of the subject before us was known to the Legislature. Understanding the uniqueness and the sensitivity of the hareidi population and recognition of the limited power of coercive measures in this context necessitated giving relatively broad leeway for actions on the part of the executive. The combination of numerous and conflicting goals in the framework of the same law also necessitated that the wording of the law be general and broad in a manner that would accommodate the infusion of substance in accordance with reality and changing conditions. For as long as the Executive acts in a reasonable manner towards the optimal execution and implementation of the Law I do not think that this reason can justify the disqualification of the Law,

            As mentioned, it seems that indeed during the first years of the Law’s existence not enough was done for its implementation and matters proceeded at snails pace. However, it seems that today the efforts have been stepped up significantly, notwithstanding that there are still additional measure that can be adopted. Accordingly, the respondents notified us that the I.D.F is busy in the establishment of new frameworks that will enable the absorption and integration of the hareidi population in an army framework. To do so a decision was adopted to increase the I.D.F budget and to designate it for that purpose. There are now a number of tracks that integrate the hareidi population (Shahar) – apart from the well known hareidi Nahal – in the Air Force, Intelligence, Computer and Communications, Navy, Technology and Logistics, Manpower and in the Home Front command. Some of these tracks were opened just recently, and it is to be hoped that they will develop and draw additional hareidi men wishing to serve. We were further informed that many new tracks are going to be opened in the near future. It bears note that in the course of the service or before it the participants undergo supplementary “practical education” as well as training in various professions. There is also the possibility of integrating in the army framework as well as the increased chances for the participants to be integrated in the work force after military service, which is also evidenced from the data indicating that about 80% of those who join the Shahar tracks integrate thereafter into the work market.

            We were further told that that the Government had decided to create an abbreviated military service track of three months duration for men aged 26 and upwards. The graduates of this track are supposed to serve as the preparatory network for states of emergency, where there are currently indications of a manpower shortage. As for the older yeshiva students, age 28 and over they are designated for the reserve duty pool. Regarding this point I will point out that even though I do not think that the latter arrangements achieve full equality, I think that in order to bring about a real change a realistic approach is required, which accepts – if only for the time being – the possibility that the possibility of integrating older yeshiva students into service is limited, and what’s more – its benefit is in doubt. This is especially so in view of the fact that the Law gives de facto recognition to the fact that not all yeshiva students will be enlisted, as mentioned above.

            In addition, the Civilian Service Administration is working diligently to increase the supply of frameworks as well as the numbers of those serving. The list of operators at the time of giving of the respondents’ reply stood at 209. Efforts are being made to publicize the civilian service track among the hareidi public, in a manner that does not provoke opposition. The Administration, as stated, contracted with an external body, part of its duties having been to supervise and conduct ongoing inspection of the activities of those serving The Government too decided upon the establishment of a civilian-military option, and we recently learned from the press about the opening of the first cycle of hareidi men serving in Israel Police as part of the civilian service. In that framework too work is currently underway to increase the incentives by way of programs that will assist the servers in integrating into work after completing their service. Apart from all of the above, the Government charged the interoffice committee established for that purpose with the ongoing monitoring of the targets it had set and the implementation of the Government decision regarding the attainment of those targets. The panel was likewise charged with examining the need to adjust the measures being taken if required, and to submit its recommendations to the Government until 1. July 2012

15.       The picture emerging from the entirety of actions underway is that the Executive is currently working for the implementation of the Law and the promotion of its goals and is even monitoring the progress and handling of the subject. Conceivably, these actions have been done at a relatively late stage, and possibly we were hoping for a different pace. Even so, in my view the aforementioned activities and its horizon leave room for hope and do not justify a determination that the Law is void In my view, these efforts, along with the data attesting to a positive trend, and having consideration for the forces attempting to undermine the trends of change, justify granting another appropriate extension to enable the continued examination of whether the trend is an ongoing one.

 

The Alternative Scenario

 

16.       As is well known when disqualifying a law, the judge is not required to demonstrate the consequences of that disqualification (see comments of the Deputy President M. Cheshin in the Movement for Quality of Government case [2] at p. 778). At the same time, in the sensitive case before us, when confronted by the appropriate goals of the Law, I think that we must be aware of the consequences of a declaration that the Law is void .

            I accept the position of the State – that the disqualification of the Law will not enhance its ability to realize its objectives, and that there is even a real chance that it will damage the possibility of achieving them. It seems to me that even those who support the disqualification of the law do not think that one day after the disqualification the much desired equality will be attained. The disqualification of a law means an upheaval. The Knesset will be required to pass a new law. One cannot rule out the possibility that this will require the establishment of an additional committee which will similarly required a significant period of time to discuss this particularly sensitive and complex issue. The Knesset will have to find another creative solution, the operation and implementation of which will likewise last a long time, and its success is not guaranteed. It may further be assumed that a committee of this kind, as well as the Knesset, will prefer to avoid an agreement the essence of which is a forcible conscription, even if only because such a move would not be effective and might well bring results that are the reverse of those that are currently confronting us. This being the case, and as much as I understand the anger and the frustration, I do not think that this process should be cut short just when it has begun to bear fruit, even on a limited scope, and in my view patience is likely to bring about the hoped for change. There is no escaping it: the Supreme Court sits among its people and when addressing such a sensitive and complex subject it must give consideration to practical matters which will make its decision relevant and not a dead letter in practical life. It is understood that if, parallel to the implementation of the Deferment Law, the Knesset deems it proper to change the Law, amend it, or enact another one in its stead, in a manner that achieves equality and sharing of the burden at a faster rate, then we will only be able to commend and bless it. As stressed by President Barak:

 

‘Of course, one can conceive of different and various solutions, reflecting different balances and different compromises between conflicting social objectives. This is a matter for the political sovereign powers. It is not a matter for the judiciary. The question confronting us is not whether other objectives or compromises could have been found, similarly, or even more appropriate. The question is whether the objectives forming the basis of law, reflecting the legislature’s perception concerning the solution of the social problem confronting it – are appropriate (Movement for Quality of Government case [2], para 56 of President Barak’s opinion.

 

The Position of the Committees Engaged in the Matter

 

17.       In terms of background, it is important to mention the recommendation of the two central committees that examined the subject of the conscription of yeshiva students, following the Tal Commission, the recommendations of which formed the basis of the Deferment Law. One of the committees is the Gabbai Committee – an interoffice committee established pursuant to a government decision of 15.July 2010. The recommendations of this committee were submitted to the Government on 19 December 2010, and were for the most part endorsed by a government decision of 9 January 2011, The committee comprised the Director General of the Prime Minister’s Office, the Head of the National Economic Council, an I.D.F representative, the Head of the Civilian-National Service Administration, as well as representatives of the Attorney-General and of the Ministry of Finance and the Ministry of Trade and Industry. The committee examined both the subject of enlistment of hareidi men into the army and into civilian service, and the integration of the hareidi sector into the employment cycle. From this broad perspective, the Committee submitted its conclusions for the implementation of the Deferment Law, positing clear and realistic targets for the service of the hareidi men until the year 2015. The Committee’s view was that these targets could be attained by the Deferment Law and it recommended the addition of service tracks, including the abbreviated service track, the combined service track and technological education track for hareidi youth. The Committee also recommended civilian-military service from age 22, the combination of professional and occupational training in various service frameworks and for appropriate funding for the Ministry of Defense in order to implement the recommendations. Finally, the Committee noted that in the event that after the implementation of all the recommendations there was still an insufficient number of servers from the hareidi sector in the I.D.F. or in the civilian service, it would be appropriate to consider a change in the system of incentives for service, which would include both positive and negative incentives.

            An additional panel that dealt with the issue was the team for examining the implementation of the “Tal Law” headed by MK Yohanan Pelsner (hereinafter – Plesner Panel). This team was appointed by the Knesset Foreign Affairs and Defense Committee and comprised six MKs from different parties. The Panel submitted an interim report on 16 January 2011, albeit without the concurrence of its two hareidi members with its conclusions. While the Panel deigned that the implementation of the Tal Law had failed, its overall position was that the Deferment Law should not be voided but rather “the policy and legislation should be changed so as to adapt the networks established therein to the positive processes that are taking place within hareidi society and the accumulated lessons regarding the conditions under which the hareidi men are enlisted into the I.D.F.” At the end of the day, the differences between the conclusions of the Pelsner Panel and the Gabbai Committee are not particularly significant. The Pelsner Panel too felt that the existing tracks in the I.D.F for the integration of the hareidi men should be broadened and new tracks established, both in accordance with the existing model and in accordance with a new perception, such as military service combined with studies in yeshiva. In addition, the Pelsner Panel felt that emphasis should be placed on the broadening of the combat tracks for haredi men. Regarding civilian service, the team felt that the Civilian Service Administration should be appended to the Prime Minister’s Office and become a body of vision and establishment of policy. It also recommended increasing the numbers of those charged with locating volunteers in the hareidi community and of bodies to absorb them; the adaption of the service frameworks to the hareidi lifestyle; the marketing of the benefits accompanying service and the accompaniment of those serving for purposes of employment placement upon become regular citizens. The Panel also supported civilian –military service for those aged 22 and upwards.

            The Government decided to conduct a system of double monitoring and supervision. The first would be by way of an interoffice term headed by the director general of the Prime Minister’s Office, to conduct the ongoing monitoring of the implementation of decisions, as well as to decide upon additional measures in view of the accumulated experience. The second would be a report submitted by the Panel until 1 July 2012, containing its recommendations to the Government, in a manner that enables ongoing monitoring and supervision.

            It thus emerges therefore that the two panels that examined the subject in depth felt that the implementation of the Deferment Law should be continued. The recommendations of the Gabbai Commission were endorsed in full by the Government, and the recommendations of the Plesner Panel are not substantially different, apart from its greater emphasis on a more meaningful combat service for the hareidi sector. Of course, this Court is not bound by the recommendations of these committees, but they can certainly be one of its considerations.

 

More on Equality

 

18.       A final matter I would like to add pertains to the principle of equality. Much ink has been spilt on the importance of equality in general and specifically in the context of the enlistment of yeshiva students whose Torah is their calling. Evidently, it is undisputed that equality is the touchstone of a democratic regime, and a central component of the relations between the individual and the state. One cannot maintain a society in a democratic state in the absence of equality, which is one of the derivatives of justice and fairness. Equality is synonymous with justice and fairness as perceived by the members of the society in any given period – equality that leads to justice, equality which represents the path of fairness. (see HCJ 7111/95 Center for Local Government v. Knesset [28], at p. 502. Regarding the yeshiva students, in a previous incarnation this Court held that the right to equality is part of human dignity, which is anchored in Basic Law: Human Dignity and Liberty, to the extent that it is tightly and substantively related to human dignity.

            Obviously, I have no dispute with my colleague the President or my other colleagues concerning the status and position of the right to equality in our legal system. Like her, I too endorse the constitutional analysis and holdings of President Barak regarding this matter as well as with respect to the remedy (Movement for Quality of Government case [2] at pp 683-685). I too share the aspiration to quality in the enjoyment of rights and bearing of obligations, and primarily in the allocation of the burden borne by the citizens of the state in protecting state security. The violation of equality in this context is grave and may cause fissures in the fabric of society, damaging the foundations of the regime. Accordingly, everything possible must be done to allay the problem with all possible speed. Even so, in my view, the reasons outlined, which justify granting additional time for rectifying the violation of the right, should be supplemented by a number of additional considerations which focus on the subject of the violation of equality.

            First, in my opinion it should be recognized that the violation of equality does not admit of immediate rectification. The shortest and most promising path to the attainment of the desired equality, is the path that currently appears to be long and arduous. As I mentioned, a declaration that the Law is void, with the aim of formulating a new law which will expedite the process appears prima facie to be a faster and easier way of attaining equality, but it is highly probable that this path will turn out to be the longer path. It will be stressed: This does not mean that what has been achieved thus far is sufficient. The holding that at this stage the violation of equality is proportionate is actually a “conditional” holding. It is based on the trend indicating progress that was presented to us by the State, supported by statistics regarding hareidi participation in military or civililan service as well as by what we have gleaned from the professional personnel that appeared before the Foreign Affairs and Defense Committee, as specified above. The State must continue to utilize the existing means, as well as to add new ones, which will encourage the continuation of the trend that was presented before us. Stymieing the trend towards an increase in the numbers of hareidi men that join military or civilian service may portend the end of the role played by the Deferment Law in realizing its objectives, which in turn would lead to the declaration of the Law as disproportionately violating the principle of equality.

            Second, as mentioned, the enlistment of the haredi sector into the army necessitates special arrangements (a special professional training network, Kashrut network etc). The integration of the haredi sector may also involve harm to other sectors, such as women, whose integration into the I.D.F is of public importance. As noted by Justice Procaccia in the Movement for Quality of Government case, the distinctiveness of the hareidi sector cannot legitimize a discriminatory arrangement, but it does compel “a gradual, multi-staged process on the path to achieving equality (at p. 790). Indeed, the I.D.F bears the complex burden of integrating the members of the hareidi community, while adjusting the service to their unique needs with tolerance and understanding. The integration and equality will via a natural process and not through coercion. In the same vein President Shamgar already stated that –

 

‘The sons and daughters of a free society, in which human dignity is a cherished value, are all called upon to respect the personal religious feelings of the individual and his or her human dignity. This must be based on tolerance and the understanding that personal religious feelings and their various modes of expression differ from one individual to another… an enlightened society also respects the beliefs and opinions of those who adhere to them with an fervor and identification that are not necessarily typical of the average person.’ (HCJ 257/89 Hoffman v. Western Wall Superintendent [29], at p. 354

 

This mission requires patience for complex and sensitive processes, while learning lessons during the integration process, and tolerance of one group towards its fellow group.

 

Conclusion and Result

 

19.       This opinion is not the end of the road, but rather one of the stones on the path. I am aware of the long road that has been traversed until now and the anticipation that at this stage the results would be more meaningful and conclusive. All the same, already now, despite the accusers, positive progress is discernible, even if in small and measured steps. That which has been achieved until now cannot be destroyed in one fell swoop, nor can the efforts invested and results achieved be treated lightly. As stated, the competent authorities operating in coordination with the Government should be granted additional time to continue in the promotion of the purposes of the existing Law. As I mentioned, a broader perspective should be taken, having regard for the point of time at which we are as part of a change in the situation that was created and that has existed since the establishment of the State. There must be a recognition of the complex societal situation and acceptance of the fact that the attainment of equality necessitates a long and slow multi-stage social process, in a search for the points of contact between diametrically opposed portions of the population separated by an abyss. There is no escaping the need to have consideration for the background of the subject and the difficulties in moving the process forward, to formulate realistic expectations that are attuned to the sensitive reality, which is splintered between world views and customs.

            As my colleague the President noted, the difference between us are not significant and we both share the same goal of promoting equality, of encouraging the enlistment to the I.D.F. and the partnership of the hareidi community in civilian service. However, as I noted at the very beginning of these comments, in my view coercion stands no chance and will achieve nothing. A declaration that the Law is void may perhaps create a feeling finally having achieved the long desired equality, but in reality the opposite is true. The disqualification of the Law will generate confusion and anger and will put a halt to the initial achievements, which cannot be set aside at the stroke of a decision. It will sever the last branch currently joining the extremes., the very same branch on which buds can already be seen and it is my hope, that from the perspective of years will sprout into the blossom of unity. Any law, whatever it may be, even if the current law is voided and a new and better law enacted as per the proposal of some of my colleagues – which I don’t see happening in the near future – must be based on compromise aimed at participation in the burden. Equality, which is at the heart of the goal, will continue to thrive only if based on the foundations already outlined. Its achievement will be via a gradual, multi-staged process that requires time, and which, so I believe will finally lead to a broader enlistment, with understanding, patience and tolerance.

            I therefore believe that we should enable and encourage the continuation of the aforementioned positive trend, in the process of continuous action and improvement of the existing means, looking towards the achievement of the goals upon which the Law is based. In my view, leaving the petition pending before this Court provided an incentive for promoting the subject and for the developments that have ensued, and which cannot be ignored. Accordingly, at this stage, the Court should continue the monitoring and supervision of the procedures relating to this sensitive and complex petition, while leaving the petition pending before us. I would like to believe that the joint service in dissimilar frameworks – army, civilian and other employment frameworks – will succeed in inculcating values of tolerance and mutual respect born out of cooperation and not coercion. I say this especially with respect to military service, which is conducted in accordance with the principles of equality and the basic values derived from the fact of it being the army of the people in a Jewish and democratic state.

20.       Upon the completion of writing this opinion, the subject of the enlistment of yeshiva students retuned to the headlines and is at the focus of public and political discourse. As judges – my colleagues and myself – despite our differing conclusions, know how to ignore and remain unruffled by the stormy winds of the hour, in our recognition of the need to beware of being dragged outside the four cubits of the law, and to decide in accordance with the best of our understanding and judicial conscience. Comments in this vein were made by President Landau, and they are pertinent to this matter too:

Yet, there is still grave concern that the court would appear to be abandoning its proper place and descending into the arena of public debate and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the court. It forces me, knowing full well in advance that the wider public will not notice the legal argumentation but only the final conclusion and the appropriate status of the court, as an institution, may be harmed, to rise above the disputes which divide the public. Alas, what are we to do when this is our role and duty as justices. (HCJ 390/79 Duwekat v Gov’t of Israel [30] at p. 1),

 

Were my opinion to be heard, we would leave the petitions pending and request an update from the respondents concerning the rate of progress in the proceedings, and concerning the means that the Executive has added, and is continuing to adopt for the implementation of the Law. Given that at this time the question of the extension of the validity of the Law by the Knesset is currently pending, and as mentioned, I do not intend to enter that arena, I would suggest receiving this kind of update in July 2012 upon the termination of the last period of the Law’s extension. Should it be decided to extend or to amend it, then in my view, as stated we should receive an update from the State at that time, and maintain a judicial monitoring, along with the determination of the future time on which this Court will again sit and consider the constitutionality of the Law in view of the latest developments.

 

Justice

 

 

Justice Elyakim Rubinstein

 

In the Kol Torah Yeshiva of Jerusalem one of the students requested permission from the Rosh Yeshiva (R. Shlomo Aeurbach, a Rabbinical Authority of the last generation) to travel to visit the graves of the righteous in the North. The Rabbi answered him: In order to pray at the graves of the righteous does one need to travel all the way to the Galilee/ When I feel the need to pray at the graves of the righteous, I go to Har-Herzl, to the graves of the soldiers who fell in the sanctification of God’s name (told by Rabbi Yisrael Meir Lau, from the book of Rabbi Y.Z. Rimon Halakhah Mimkora – Tzava (2010) [ ]; and also see the shortened version in the book of Rabbi Yosef Eliyahu, Oro Shel Olam (2003) [ ] 380.

 

1.         The Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling, Law 5762-2002 (hereinafter – the Tal Law or the Law) is a profound and sensitive attempt, in the wake of this Court’s ruling (HCJ 3267/97 Rubinstein v. Minister of defense [1] at p. 481) and following the work of the commission headed by Justice Tzvi Tal, who viewed this work as sacred task in its contribution, albeit partial, to the healing of a bleeding wound in the Jewish part of Israeli society, namely in other words, the subject of the enlistment of the Yeshiva students to the I.D.F. My colleague, President Beinisch reviewed the history of the subject which has been reviewed and discussed at length in the judgments of this Court since the Ressler case n 1986 continuing in the Rubinstein case, and up to the Movement for Quality of Government case. I will make every effort not to revisit matters already stated and reviewed.

2.         By way of preface, the bottom line is that I concur with the opinion of my colleague the President. The present situation exceeds the boundaries of what is constitutionally tolerable. Conceivably, responsibility for this situation is divided between the two branches who are the respondents in this file: the Legislature that enacted a Law that a priori is far from simple, and the Executive charged with its implementation. Conceivably, had the Executive done more for the effective implementation of the Law, despite its inherent problems, the situation would have been different and more tolerable. According to Justice Tal “The Law, at this stage, has been frustrated by the Government and the Ministry of Defense” (Tz. E Tal, Ad Bo HaShemesh (5770) 300), however, even according to his view, in the first place “the recommendations of the Tal Commission do not represent complete equality (ibid, p. 299; see also Tz. E. Tal, “The Problem of the Enlistment of Yeshiva Students”, Memorial Volume for Professor Ze’ev Falk (R. Horovitz, M.D. Herr, Y.D. Silman and M. Korinaldi eds. 5765) 355, 366; Similar explicit comments were made in the report filed by the “Tal Commission” (Report of the Commission for Crystallizing an Appropriate Arrangement on the Subject of the Enlistment of Yeshiva Students, vol. 1, 5760) 97), as well as from the Knesset podium at the second and third readings of the Law: “Any arrangement that does not establish absolute equality between citizens ….is a bad arrangement. The question is whether this is the lesser evil or evil incarnate "(Knesset Proceedings 23 July 2003, p. 8584, per MK Yossi. Katz)

3.         An additional significant part of the responsibility for the the current situation, in my view, lies with the hareidi society – “as far as one can attribute one point of view to this variegated society” (HCJ 746/07 Regen v. Ministry of Transport [32], para. 29 that adopted a position that is almost inconceivable from a Torah based-moral-civilian perspective (naturally, I am not addressing the question of Halakhah), and chose not to make broader use of the mechanisms established by the Law, and the unique and specially adapted service tracks offered by the State. Within the parameters of the constitutional-administrative law, this civilian group is not a “respondent” in this file, and under the circumstances its decisions will be related to as a factual given that we cannot change on an operative level in the framework of this proceeding, but which will influence our decision concerning the reasonability of the present situation and the possibility of leaving it intact. Needless to say, had the relevant hareidi instances sought to have their position heard in this proceeding, the doors of this Court would have been open to them.

4.         Accordingly, we have no choice but to examine whether, under these circumstances, the situation made possible by the Tal Law, even after the extension granted in the Movement for Quality of Government case, is tolerable from a constitutional perspective. I will address the situation and the question of its tolerability, for conceivably, in a different constellation, given different conduct on the respondents’ part with respect to the petition and on the part of those who are not parties to it, the Law would have lead to a situation that it tolerable, at least within the category of “appropriate preliminary arrangement” (the term adopted by the Tal Commission regarding the arrangement it formulated; see p. 97 of the Commission’s Report), as far as it touches upon the critical violation of equality between citizens of the state in a subject of life and death in its most literal form.

5.         In many senses, the situation created in the wake of the decision in the Movement for Quality of Government case is unique in the field of constitutional-administrative law. Generally, when the court reviews the constitutionality of a law involving the violation of protected human rights, it must examine whether the Executive properly interpreted and implemented the law. To the extent that the authority is acting as it should, the review will focus on the law itself. Here however, one of the significant variants relates to the conduct of the hareidi public. The non-constitutional effect (using the phrase similarly to the way it was used by Justice Naor in CrimApp 8823/07 Anon v. State of Israel [33]) flows from the convergence of a number factors, the hareidi sector being the principal one, being both its beginning and end, although the Knesset and the Government over the generations are also partners to the reality that emerged. Possibly, as stated, the cooperation of the hareidi sector might have – without ruling on the matter – lead to a different result. And indeed, this was the purpose of the trial period prescribed in the Movement for Quality of Government case, which in essence stems from the conclusions of the Tal Commission.

6          However, having been presented with the data reviewed in the opinion of the President, and having granted all those involved a significant period of time to attempt to bring about better results, we have no choice but to conclude that the current situation cannot continue; in other words to hold that the fundamental values of the State of Israel as a Jewish and democratic state as enshrined in the Basic Laws and interpreted by this Court, cannot endure this factual situation and it is therefore impossible to further extend the validity of the Law. Given the holding that the subject requires regulation in primary legislation (as correctly held in the Rubinstein case, there is no choice other than to create a new normative arrangement – this being a matter for the legislature. This is the “bottom line”, and now to its explanation.

 

The Study of Torah as one of the values of the State of Israel

 

7.         The historical process that culminated in the reality addressed by the Tal Law began with the assistance provided for the preservation of the world of Torah following the Holocaust. The first Prime Minister and Minister of Defense, David Ben-Gurion, a great, historical figure, was attached to the Tanach (Hebrew Bible) as an expression of our national existence notwithstanding his secular world view, and he understood the importance of restoring the ruins and of reviving that which had almost been destroyed. Accordingly, already in 1948, yeshiva students received an exemption from military service (see: Ressler [3] 449-451). This occurred notwithstanding that there were also yeshiva students who participated in the war effort during the War of Independence, and the halakhic authorities actually defined it as participation in an obligatory war (milhemet mitzva):

 

“In the situation in which the state presently finds itself, having barely gotten out of its diapers and being circled by sworn enemies who seek to devour it, Heaven Forbid, there is a special duty to arm themselves for battle, to speedily immigrate to Israel and to come to the assistance of Israel against an enemy who has attacked them, a duty that stems from its being an obligatory war (Resp. Tzitz Eliezer (R. Eliezer Waldenberg – twentieth century – Jerusalem], pt. 7.48 [ ]; see also Resp. Tzitz Eliezer p. 50 [ ]. and Resp Hekhal Yitzhak, Orah Haim, s. 31 [ ])

 

The standing of Israel’s wars that followed the War of Independence, was not, from a halakhic perspective, any different (see for example, Resp. Yehaveh Da’at (R. Ovadiah Yosef) pt. 2. 14). Needless to say, in his grand treatise of 5710 (1950)”Distinction and Mission” printed in Distinction and Mission (5731 – 1971)108) David Ben-Gurion discusses the historical conscription laws in the Jewish people, noting that “Every man and woman without exception was subjected to the duty of protecting the people in the face of an external attack” (p. 133), even though he does not address the subject of yeshiva students.

8.         The exemption granted in the early days of the State, in my view, was also in accordance with the spirit of the Declaration of Independence of the State (on the status of the Declaration see s.1 of Basic Law: Freedom of Occupation and Basic Law: Liberty and Dignity; HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], at p. 274) which opens with a comment on the assets of “national and universal culture” created by the Jewish people and which also addresses the claim of ”the survivors…..as well as Jews from other lands, proclaiming their right to a life of dignity, freedom and labor in their national homeland”. As written by my colleague, Justice E.A. Levi, in the Movement for Quality of Government case [2]:

 

`The world of the yeshivas is therefore an essential component of the identity of the Jewish people, an identity of many faces, and it is one of the most important expressions of the national spirit, its heritage and its culture. It would seem that even those who are remote from the world of Torah, would not deny its outstanding influence upon the formulation of essential components of the character of the nation and its society’ (p. 784)

 

Indeed, it is indisputable that the cultural treasures referred to in the Declaration of Independence, including the right to a life of dignity, freedom and labor also include the right to the personal and collective development of the Jewish Torah culture; this right is an inherent part of the foundations of the “liberty, justice and peace taught by the prophets of Israel” which the state of Israel was premised upon and part of the freedom of religion, education and culture which are guaranteed in the operative paragraph of the Declaration of Independence (see also HCJ 1067/08 Amutat Noar KaHalakhah v. Ministry of Education [27], at para.14 of Justice Levy’s opinion).

9.         Within the frame of the Basic Laws too, and by reason of Israel’s being a Jewish and democratic state, this Court has referred more than once to freedom of religion which “includes inter alia the right to fulfill the religious commandments and requirements” (Rubinstein [1] p. 528 per President Barak), and the connection between enabling yeshiva students to persist in their studies (ibid; see also G. Sapir, “Enlistment of Yeshiva students into the I.D.F: A Proposal for an Outline of the Relevant Normative Considerations” Pelilim 9 (2001) 217. 248). The values of the State of Israel as a Jewish and democratic State therefore include the study of Torah. Hence, in my view, the prevention of a person from studying Torah is liable to constitute a violation of a Jewish person’s dignity, and within the framework of the Basic Laws he would be entitled to protection from it.

10.       Indeed, I see no need to hold forth in explaining that the study of Torah is one of the values of State of Israel as a Jewish and Democratic state. It seems to me that the petitioners have no dispute with this. An observant Jew recites the Keriyat Shema every day, twice and even more,(and “Hear O’ Israel” has become a symbol of Jewish continuity) where it states “And these words, which I command thee this day, shall be upon thy heart…..and you shall teach them diligently to your children, and shall talk of them when you sit in your house, and when you walk by the way, and when you lie down, and when thou rise up” (Deuteronomy 6:6-7); and it further says: Therefore you shall place these – my words in your heart….. And you shall teach them to your children, to talk of them, when you sit in your house, and when you walk by the way, and when you lie down, and when you rise up ((Deuteronomy 11: 18-19 [ ]). The verse “'If you follow my decrees and are careful to obey my commands” (Leviticus 26:3) is interpreted by Rashi as meaning “when you are immersed in Torah”. It is therefore clear that the “the duty of studying Torah – as a religious commandment- is not merely the general study of wisdom; rather, it constitutes a central aspect in the formulation of a person’s world and lifestyle (AAA 10673/05 Mikhlelet HaDarom v. State of Israel [35] at para. g(3)).           

11        The Mishnah (Peah 1:1) [ ] includes the study of Torah among the matters “that have no measure”. In completing the list of things which “a person eats of their fruits in this world and the principal remains for him in the world to come” and which include “honoring one’s mother and father, and deeds of kindness and making peace between a person and his fellow person” and the Mishnah rules that  “the study of Torah is the equivalent of all of them combined” [ ]. The duty of being occupied in the Torah “day and night” (Joshua 1:8 [ ]) is considered a supreme value to the extent that the Tanna (sage) R. Shimon taught that “He who walks along a road studying, and interrupts his studies and says: “How beautiful is this tree!” “How beautiful is that field”- the Torah considers it as though he sinned against his own soul”(Mishna Avot 3. 7). In his glorious normative halakhic creation Mishneh Torah Maimonides writes the following:

 

Every Jewish man is obligated to study Torah, whether he is poor or rich, whether his body is healthy and whole or afflicted by difficulties, whether he is young or an old man whose strength has diminished. Even if he is a poor man who derives his livelihood from charity and begs from door to door, even if he is a husband and [a father of] children, he must establish a fixed time for Torah study during the day and at night, as [Joshua 1:8] commands: "You shall think about it day and night." (Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 1:8) [ ]

 

The bottom line is that from the perspective of the Torah scholars, as well as from the perspective of Israeli law, it is undisputable that the study of Torah occupies a unique position, as a component of identity and culture, in addition to being a religious duty of both the individual and community of Israel.

 

The Study of Torah and Other Values

 

12.       On the other hand, in the same breath as our comments above, we will also mention that not only does the State of Israel’s essence as a Jewish and Democratic State command the balance between values. According to the Halakhah there is a requirement, and not just a permit, to balance between the duty of studying Torah “which has no measure” and other needs and values. How is the balance struck with other needs – “"And thou shalt gather in thy corn". What is to be learnt from these words? Since it says, "This book of the law shall not depart from your mouth", I might think that this injunction is to be taken literally. Therefore it says, "And you shall gather in your corn", which implies that you are to combine the study of them with a worldly occupation (Tractate Berakhot 35b [ ]). And Maimonides too ruled:

 

Anyone who comes to the conclusion that he should involve himself in Torah study without doing work and derive his livelihood from charity, desecrates [God's] name, dishonors the Torah, extinguishes the light of faith, brings evil upon himself )Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:10 [ ]

 

Further on he states: “It is a tremendous advantage for a person to derive his livelihood from his own efforts. This attribute was possessed by the pious of the early generations. In this manner, one will merit all [types of] honor and benefit in this world and in the world to come, as it states: "If you eat the toil of your hands, you will be happy and it will be good for you". "You will be happy" – in this world. "It will be good for you" – in the world to come, which is entirely good". ((Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:11[ ]). The author of Shulkhan Arukch too ruled that “Afterwards [after prayers – E.R] he should go to his business, for any Torah which is not combined with work leads to idleness, and leads to sin; but at all events he should not make his work his principal concern,…" (Orach Hayim, s. 156 [ ]), This ruling receives the following interpretation of the Mishnah Berurah in his treatise Beur Halakhah “for this was the teaching for the world at large, for not all people can merit the elevated level of being occupied solely in Torah, and there are certain individuals who may be permanently on that level (ibid). And, how is the balance struck with other values “One interrupts the study of Torah for the sake of a funeral procession and the leading of the bride [under the bridal canopy (Bavli, Kettubot 17a [ ]). And to remove all doubt it will be clarified that this not just a permit to interrupt the study of Torah Torah, but rather a duty: “'One interrupts Torah study' this means that there is a duty to interrupt” (Siftei Cohen, Yoreh Deah s. 361.1 [ ]).

13        In the present context, concerning a battle to “to assist Israel from an enemy which attacks them" (in the words of Maimonides, Hil. Melahim 5:1[ ]) it is specifically taught (Mishnah, Sotah 8:7 [ ]) “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle]"; To remove all doubt, the commentator R. Nathan b.Yehiel of Rome (eleventh and twelfth century – Italy) explained “and a fortiori Torah scholars (Sefer HeArukh). We might also mention that a significant portion of those who the Torah exempts from fighting in an optional war (and we will not address the specific definition of obligatory war as opposed to optional war), are not exempt from other forms of public service: “All those who return from the army camp… They must supply food and water to their brethren in the army and fix the roads for them…” (Hil. Melahim 7:9). The halakhah too struck a balance between the obligation of studying Torah, and other obligations, both the obligation of earning a living and the obligation of defense; between the absolute and uncompromising duty “This book of the law shall not depart from your mouth; but you shall meditate therein day and night” (Joshua, ibid.,) and a person’s obligations towards himself, his family, others and the society in which he lives. As such, the duty to study Torah is not the final word. This point is particularly pronounced in a state in which military service is a duty which occasionally may involve the endangering of life.

 

The Israeli Circumstances

 

14.       Israel is a Jewish and democratic state. Its unique character comprises two aspects and they both include the obligation of balancing, an obligation that goes hand in hand with the demand for equality being real and substantive equality to the degree possible in the bearing of the security burden with its inherent danger to  life. From the “Jewish” perspective, in a period in which there are still those who “rise up to destroy us” (Haggadah of Passover), we hear the echo of Moses our teacher “Will your brothers go to war while you yourselves sit here” (Numbers 32:6). This point was already addressed by the Deputy President M. Cheshin,in the Movement for Quality of Government [2] case:

 

‘Will we say of the Yeshiva students – whose Torah is their calling – the rebuking words of Moses to the Tribes of Reuben, Gad, and half of Menashe – that your brothers go to war while you yourselves sit here;…

From the aspect of the Jewish heritage too, especially with respect to the “Jewish State” demands, as a matter of principle the conscription of the Yeshiva students into the army, so that they can protect their houses, so that the young men of their own age will not have the status of the Cherethites and the Pelethites who would be forced to protect them while they sit back securely and diligently study Torah’. (pp, 737, at 740-741)

 

15.       From the democratic aspect too: Equality is a substantive values therein “a meta-principle that is reflected along the length and breadth of Israeli legislation (HCJ 5373/08 Abu Libda v. Minister of Education [36] – para. 29 of Justice Procaccia’s opinion. Indeed, the burden is not shared equally by all. The combat soldier differs from the staff unit soldier. But even so, the I.D.F. can still order the staff soldier to carry out a job that may endanger his life; he is not his own master and his personal autonomy is restricted (see also s. 9 of Basic Law: Human Liberty and Dignity). There are also sectors and individuals who do not participate in the service burden, first and foremost the majority of the Arab minority, apart from the Druze, Circassians and particular Bedouin volunteers, and a few Moslems and Christians, in the unfortunate circumstance of the political dispute in our region, and a not insignificant minority of the Jewish public that finds ways of not serving.

16.       Nonetheless, despite the differences between the kinds of service and the nature of populations, and even assuming the importance of the Torah study, even within the framework of Israeli law, the question arises: Does the principle of equality permit the granting of a blanket exemption from military service to such a large percentage of each conscription cycle? Can it enable such an extensive exemption arrangement, even if the purpose is appropriate and the goal commendable? Can it endure the damage to all of the other citizens of the State who are obligated to do military service in the regular and reserve army? We once again mention that as of 2007 it meant 14% of the conscription pool (!) of that year, which represented a massive increase, even after the enactment of the Tal Law in 2002, and that these data attest to a consistent increase from year to year (see para. 50 of the opinion of the President). Distressing as it might be, the question is, unavoidable: A law with an appropriate purpose and worthy intention, a law intended to provide a corridor specifically into the chamber of military service for the individual and into Israeli society in general – can it justify inequality (which is tantamount to injustice) on such a massive scale and regarding such a subject?

17.       From its inception the Tal Law was not based on equality. Nonetheless, in the Movement for Quality of Government case, this Court gave it a legal chance, based on the assumption that moving the cart of hareidi enlistment was a worthwhile goal. It was hoped that there was no “genetic” defect in the essence of the statutory arrangements, but rather an administrative flaw in its implementation (per President Barak, at p. 712), and that even if at already upon its birth the Law was tainted by the “virus of unconstitutionality” (per Justice Procaccia [2], at p. 795) the State would overcome it by way of the proper and appropriate implementation of the mechanisms prescribed by the Law. However, Law was similarly unsuccessful in the test of results. The data that guided by my colleague the President speak for themselves. The percentage of those joining the service, in all of its different frameworks, is particularly small. This situation, in which a blanket exemption from military service is granted to a growing public (and as stated, even if the numerical data is not the necessary result of the Law, the bottom line speaks for itself) constitutes, in my view, a disproportionate violation of the rights of the Israeli citizens who are required to serve and who serve in army, in a manner that compels a fundamental change in that situation.

18.       In my opinion in the framework of the interim decision of 8 September 2009 I commented on the rate at which the Law was being implemented: “The arrangement prescribed by Tal Commission is progressing at snails pace, drop after drop, with all the good will of the administrative and state institutions…the substantive change has not arrived, and is still at the periphery and the question “why do you think your blood is redder (than that of your friend)” (Talmud Bavli, Pesachim 25b) has not been answered. The petition before us is directed, as is the nature of constitutional law – at the state authorities – but on a moral plane, as mentioned further on in my opinion, it also addresses the members of the hareidi community who do not enlist for military service.

 

‘The challenge of transforming the trend from a thin trickle of those joining into a broad application lies at the doors of the leaders of the hareidi public. What began as the reestablishment of the world of Torah following the Holocaust has become the sociology of an entire society which is almost entirely absent from sharing the central burden of the State of Israel – military service; And I am certain that in the recesses of their hearts, even the leaders of the hareidi public and countless members of the community itself, sense the difficulty and the embroilment it occasions…the issue concerns an entire society that almost totally avoids fulfilling a duty anchored both in law and morality, and where have morality and character traits all disappeared to?”

 

19.       In 2007 I had occasion to comment that “The Tal Law attempted – with great hope and tremendous efforts, and we are as yet unable to state the degree of success – to strike a balance between two conflicting value systems that, at base, reflect real-life differences that can have life-and-death consequences”. (HCJ 5803/06 Guttman v, Minister of Defense [37] para.31). The data referred to by my colleague the President indicates that as of today, unfortunately, the effort to “strike a balance” has failed. And so we have returned to the basic situation described by Justice Arbel in the Guttman case [37] as a ‘harsh and justified sense of  discrimination‘

20.       As mentioned the petition’s arrows are aimed against the authorities who are obligated to protect the individual from the unequal and discriminatory bearing of the security burden (and I do not think that in the present context it is possible to hold it against the individual that he belongs to a majority that provides certain privileges to the minority). However, the responsibility, in the broad sense, also lies on the doorstep of the hareidi public. From a legal perspective, “sectoral uniqueness does not constitute grounds for violating the joint responsibility shared by the entire state citizenry” (HCJ 4124/00 Yekutieli v. Minister for Religious Affairs [26] para. 7 of the opinion of Justice Procaccia). From a moral-civil perspective, I find it gravely and profoundly disturbing: How is it for the public sacrifices not to be participated in by the entire public. This echoes the words of our teacher Moses “Shall your brothers go to war and you sit here”? And in the words of the Natziv of Volozhhin (R. Naftali Zvi Yehuda Berlin, 19^th century, Russia in his interpretation of Numbers):

  

‘This is a wrong against Israel [committed by those seeking to settle in Trans-Jordan and not to participate in the battle to conquer the Land of Israel] that you should have a land that has already been conquered by everyone, and that they had endangered themselves in war ‘(emphasis added – E.R.)

 

21.       At the beginning of the month of Iyaar, 5748 (May 1948), – five days before the Declaration of Independence – R. Shlomo Yosef Zevin (an important scholar and author, and the first editor of the Talmudic Encyclopedia) inveighed against those who called upon the yeshiva students “not to sign up, not to be counted, and not to appear” for military duty. The context is a detailed halakhic discussion but regarding the moral claim he writes:

                       

‘Is the matter at hand us just a matter saving others. Isn’t each and every one of us, without exception, confronting a life threatening situation – to himself, his household and all that he possesses? And is this the appropriate path – that those occupied in Torah are not obliged to save themselves, but will stand apart and place the burden of saving – themselves – upon others. Is this the proper path, or – is this the view of Torah? (S.Y. Zevin, On the Question of the Conscription of Yeshiva Students (1948) 5.

 

This argument is reminiscent of the position adopted by R. David b. Zimra (Radbaz, 15-16 centuries, Spain-France) according to whom the exemption from bearing the security burden granted by the Talmud (Bavli Bava Bathra 7b) to Torah scholars does not apply in cases in which the Torah scholars themselves acknowledge the need for guarding:

 

And [if] they themselves [the Sages] admit that they require protection, does the law, or commonsense permit that they be able to force themselves upon the householders to organize the guards and not assist themselves… such a thing was not said by any person… for this would violate the sense of justice, but they are permitted to coerce them (Resp. Radbaz pt. 2: 752).

 

In the same vein, the Hatam Sofer (R. Moshe Sofer, Germany- Hungary, 18 – 19 centuries), one of the leaders of Orthodoxy in his generation, mentioned that the Talmudic exemption does not apply in the framework of allocating the burden of state security needs, because “just as the kingdom requires protection from other kingdoms, the Torah scholar too is obligated (Novellae Hatam Sofer, Bava Bathra 8a. These last two sources are cited by R. Y. Brandes in Aggadah Le-Ma'aseh – Man and Society (2011) 137-139, who elaborates on the issue. See also R. A. Lichtenstein “This is the Torah of the Hesder”, Tehumin 7 (1987) 314; and on the other hand, see R. A. Sherman, “Talmud Torah is of greater value than the Saving of Life”, ibid, 335, and R. Z.B. Melamed, “Luminaries in Torah – this is the Need of the Nation”, ibid., 310.

22.       As mentioned, the choices of the hareidi public, whatever they may, are not a matter requiring a response from this Court, and no doubt there are answers to at least some of my queries. Still, had the hareidi community’s response been broader and more meaningful (and as stated the degree of efficiency and activity of the Executive may also be partially responsible), the respondents before us today would have been in a different place, equipped with other factual data. To our regret this is not the case.

 

Hareidi Society and its Attitude to Military Service

 

23.       Indeed, hareidi society too is not static, including with respect to its attitude to military service. Even if the starting point is the conscription of those who are unable or unwilling to be categorized as those for whom “Torah is their Calling” there also are young hareidi Torah scholars who have themselves reached the conclusion that attaches importance to a contribution to the State and to finding self-sustaining work, and have thus joined the special tracks structured for them by the I.D.F.

24.       However, truth be told, as opposed to the Jewish hareidi community in other countries which understood that only a selected few are suited for a life spent in the tents of Torah, in Israel an entire, problematic sociological stratum has emerged, and even its leaders know, in the recesses of their hearts, that it is neither good nor appropriate that by reason of military service thousands of men are sitting in yeshivas despite their unsuitability (and compare, in different contexts, the Regen case [32] para. 22). These men, were they to serve in the I.D.F. and were they to work like all other men while setting apart times for Torah in the way of “home owners” (i.e. those who are engaged in “regular work” and frequently set aside time for studying Torah) would be of benefit to the State, their communities, and themselves. “Labour is beloved, for all the prophets occupied themselves in it” (Midrash Tannaim on Deuteronomy 5:14 [ ]). I question whether the leaders of the hareidi public are sufficiently aware and sufficiently active with respect to the economic plight that results from the lack of a profession due to the trap of the “Torah is his Calling” proceeding.

25.       In the synagogue in which I pray on a daily basis, a central synagogue with dozens of minyanim (quorums of ten men conducting services) there are quite a large number of beggars almost (the word “almost” was added primarily for reasons of caution and purity of motive) all of them from the hareidi public, many of them strong and healthy and capable of working for a living and supporting their families in dignity. However, they are locked into an impossible situation and there is no one who stands up to proclaim that the clothes of king (“who are the kings – the rabbis” ) are not fitted for all people some of who may end up with no clothes to wear. Let us be precise: No-one would dispute that the Jewish heritage and the spiritual continuation of the Jewish people justify the existence of a substantive, serious kernel of people whose Torah is their calling on a permanent basis, In response to my question in the Court, Adv. Ressler, the most veteran of the petitioners in this field, who started it when he was about 40 and is now at an advanced age, answered that he would have had no gripe if there were a few thousand people, at all times, for whom Torah was their calling. It is possible, and even appropriate to take an expansive and open approach to men of truth who wish to continue their study of Torah uninterrupted, but this does not apply to many of those who for lack of choice persist in the status of “Torah is their calling” as an unfortunate “social obligation”, for whom the Torah is not truly their calling, and whose calling is replaced by the avoidance – of service and work. They fritter their days away in frustration while in the interim they raise families that require sustenance. The Chief Rabbi of Israel, Rabbi Shlomo Amar addressed the currently accepted practice in the Yeshiva world:

 

‘The yeshiva students of our time devote their lives to Torah and to serving God in purity, they labor and toil in it day and night without interruption, and give not a thought to the purpose of their existence – to ask themselves, what will we eat and how will we set up homes in Israel and how will we survive – for we don’t not sew and don’t harvest ; neither do they learn a profession that can provide their needs, even if partially, and how will they support their wives and children? (Birkat Eliyahu (Exodus, pt.2), p. 230)

 

Further on Rabbi Amar seeks to reconcile the well-known words of Maimonides “The way of sensible men is that first, one should establish an occupation by which he can support himself. Then, he should purchase a house to live in …” and this reality. In his view, Maimonides’ comments apply to the “sensible men” who conduct themselves:

 

‘In accordance with the natural order that God ingrained in his world. But those whose conduct is above the natural order who do not submit themselves to the natural order of the world… just as they devote all of their powers and desires to the word of God and His will – He too fulfills their wishes and provides them from His expanded hand, above the natural order” (Birkat Eliyahu, pp. 230-231)

 

I respect these words, but the question naturally arises, can one truly and honestly say, without any offense to those who devote their lives to the study of Torah, that all the tens of thousands who are registered as those whose Torah is their calling, really figure among those “whose conduct is above the natural order”?.

26.       Concededly, the blessing of the State by way of its various resources – National Insurance, budgets for the yeshiva world, etc, accompanied by a real willingness and devotedness on the part of those studying, as per the teaching “This is the way of the Torah: To eat bread with salt, to drink water in measure, to sleep on the ground and live a life of hardship and to study the Torah diligently all the while” (Mishnah Avoth, 6:4) – enables a person to eke out a meager living and to continue permanently in the House of Study. Even so, do all those who are permanently in the Beth Midrash for many long years really belong there? Or perhaps some of them have sentenced themselves to a life of indolence and degeneration? And, even if this economic reality is not directly related to the question of equality among those designated for military service in Israel, it is definitely relevant for the examination of a legislative act one of the declared purposes of which is to “find a way that will also lead to the integration of yeshiva students in the employment market” (from statements of MK Yossi Katz, Head of the Special Panel established for Implementing the Law, when it was presented for the second and third reading on 23 July 2002, Knesset Proceedings 34, p. 8585). Once again, our concern is not with those whose souls cleave to the Torah until their last breath “the remnants upon whom God calls”, who should be commended – although even regarding them, or many of them, nothing would be missing were they to bear the burden for a determined period, basically given to their own choice, and in service tailored specifically to their needs in terms of Kashrut, modesty and family. It will be recalled that the Tal Law also created the option of civilian service, protected from the “risks” of military service and which in and of itself constitutes a particularly outstanding deviation from the requirement of equality. Nonetheless, this too did not succeed in tilting the scales.

27.       Here it bears note that the economic criterion in accordance with which the I.D.F. too has on occasion examined the issue (see Ad Bo HaShemesh, at p. 298) cannot be the relevant and correct criterion when dealing with military service and its natural dangers. Just as the I.D.F. is required to invest huge sums of money to enable a woman wishing to enlist, to be able to do so on the basis of equality (see HCJ 4541/94 Miller v. Minister of Defense [14]; D. Friedman “Women’s Service in Combat Roles and Equality in Allocating the Burden”, HaMishpat 4 (1999) 27)), so too it is required to invest all of the resources required to secure the rights of its soldiers to an equal sharing of the burden. In other words, the State is not at liberty to enlist only those citizens who it is convenient (or cheap) to enlist and to saddle them with the full weight of the burden, even if the broadening of the pool of enlistees compels the investment of economic and other resources. As a matter of principle, it would be exceedingly difficult to imagine an “economic” approach which would give rise to distinctions between the blood of one person and another.

28.       What can be learned from all of the above? That the “mind switch” – not with respect to the study of Torah but rather in relation to the proper evaluation of the relevant human framework – has not occurred in the hareidi leadership even after the Tal Law. From the perspective of constitutional-administrative law, the Tal Law was unique, in so far as in addition to being appropriately and strictly implemented by the State, its constitutionality was also dependent upon the scale of response on the part of the hareidi public and the position adopted by its leadership (even though on a practical level the issue concerns individuals whose actions, either way, may be in accordance with the Law). The data before us demonstrates that these two conditions were not fulfilled. In the absence of any change on the broader front, as opposed to specific local changes, welcome as they may be, the progress towards equality continues to plod along and partnership in the burden – even if incomplete and non-identical partnership – has not materialized. To paraphrase the words of the Tal Commission cited above – not only have we not reached an appropriate arrangement for the conscription of yeshiva students; we have not even merited an “appropriate preliminary arrangement”. The data demonstrate only very of changes.

29.       Once again we stress: The hareidi public is not a respondent in this file. The subject for our decision is the constitutionality of the Tal Law in a given factual constellation. Conceivably, had the hareidi population made broader use of the Law’s arrangements, the problem of inequality might have been mitigated somewhat and come within the borders of the constitutionally tolerable. In the metaphor coined by President Barak in the Movement for Quality of Government case [2] , it is possible that a more extensive response on the part of the hareidi population would have enabled the Tal Law to recover from the constitutional birth pangs and perhaps even reach the age of “Bar Mitzvah” or “constitutional adulthood”; However, even after the Tal Law was granted a trial, and even a recovery period, and even if the Executive too bears responsibility for part of the disappointing data, perhaps having had the opportunity to make a greater effort in the implementation and enforcement of the law, in addition to that of hareidi public that did not hasten to utilize it – at the end of the day the result does not come within the boundaries of what is constitutionally tolerable. To put it quite simply – the current situation for which the Tal Law is the normative basis –violates equality to a degree that dictates change in the normative framework.

30.       The second possibility, of giving the opportunity to the Executive on the one hand and the hareidi society on the other hand, to act for the improvement of the data, was tried with much patience. Indeed, the patience of the Court had to contend with the violation of the rights of the citizens being called up for regular reserve service, and endangering their lives. The Tal Law was originally adopted as a temporary provision for a period of five years (section 16 of the Law), based on the Commission’s assumption that measures it recommended:

 

‘should be periodically examined and reviewed. The Commission recommends measures intended to create a trend, This trend should be examined over a passage of years: Was a trend even created? Has it developed at an appropriate pace… possibly, in another five years the military service framework of the I.D.F. will be entirely different, and the question of yeshiva students and their enlistment will not be quite as acute, problematic, and controversial…” (p. 98 of the Commission Report).

 

In 2006 this Court decided (in the Movement for Quality of Government case) to give the Law another trial period. Upon the termination of almost a decade from the enactment of the Law, the data attests to a situation which is constitutionally intolerable. The hope that the Law as given would “create a trend” was disappointed, and the circumstances of violation of equality demand intervention. In her awareness of in her awareness of the problems from all directions, i.e. the constitutional difficulties as opposed to the need for a societal change in the hareidi community, my colleague Justice Arbel seeks to give the Law another chance. I fear however, with all deference to her position, that what has happened until now justifies a different mode of operation.

 

The Explanations for Non-Service

 

31.       The following are the two principal explanations, in my understanding and experience, that have been given by those favoring the continuation of the status quo (see also Sapir, pp. 240-247; and Tal, The Problem of the Conscription of Yeshiva Students, at p. 362. First it is claimed that “The Torah …protects and saves” (Talmud Bavli, Tractate Sotah 21a); in other words, the yeshiva student who studies protects the country just as a soldier does. On the face of it, someone who believes this has that prerogative (although we will not deny, as written by Rabbi Zevin in 1948 (p. 6) that this quality is utilized primarily for the avoidance of military service, and is not a practical program for the conduct of the hareidi population in a time of danger; for additional criticism of this argument see Sapir, pp. 244-245). Even so, does this argument really apply to the entire public that enjoys an exemption from conscription? Furthermore, this is a matter of pure belief, and it is difficult to conceive of it being connected to operative decisions. What fate would await the State if many others, thousands and tens of thousands, were to claim that according to their view, other studies “protect and save” and they too were to request an exemption from military service? Indeed those subscribing to that belief can claim that the truth is with them and the others mistaken, but even if were we to ignore the practical problems (and it is doubtful whether they can be ignored), how could a democratic society, tolerant towards all of its components be maintained on the basis of those arguments? And it is not superfluous to stress, that according to all of the approaches there will never be a situation in which, God Forbid, there are no studiers of Torah occupied in the diligent study of Torah.

32.       Another explanation relates to the practical difficulties in the I.D.F. itself: the service of women, questions of the kashrut of the food,  and the concern that the service would have a detrimental affect on the hareidi soldier’s religious conduct. I do not treat these lightly, but the answer lies in the willingness of the I.D.F to arrange service tracks that are not problematic from these perspectives, and enable service conditions and food that are kasher at the most meticulous levels – a willingness that has already been proved to a significant degree and should be fortified even further. These matters are not in heaven. It is interesting to mention that Rabbi Avraham Yeshayahu Karelitz(the Hazon Ish) who was one of the foremost rabbinic authorities during the early days of the State, was described by the scholar Dr. Benjamin Brown in his all encompassing book (The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution (Jerusalem: Hebrew University Magnes Press, 2011; Hebrew) as someone who opposed the conscription of those who were genuinely studying (regarding those who pretended to be studying in order to avoid service, he ruled that they could be considered as “a pursuer of all of the yeshivas in Israel” (p. 305), and even maintained that those enlisted should be incorporated into mixed units and that he was “did not …fully share the fears of deterioration in the army, and at all events not in all cases, and he even regarded the joint service as a means of bringing the secular Jews closer to Judaism” (p. 306). According to the sources he examined, Dr. Brown notes that the Hazon Ish" regarded the service as a unavoidable necessity, and as a suitable path for the young man who was not devoting himself to the study of Torah" (ibid), and according to his view, the hareidi society had gone far beyond the framework outlined by the Hazon Ish( p. 304).

 

Final Word

 

33.       In view of the picture presented, the constitutionality of the Tal Law must now be examined, and to my distress the answer cannot be in the affirmative. In terms of the limitations clause of s. 8 of Basic Law: Human Dignity and freedom, the Tal Law is consistent with the values of the State of Israel, with respect to study of Torah; it is intended for an appropriate purpose of integrating the yeshiva students in military service while providing different kinds of options. Nonetheless, its actual result – and not because of those who conceived it or those who proposed it or drafted it, but rather by reason of its addressees and the authorities – has not established proportionality, but rather has almost perpetuated the inequality. The reason is that the current rate of joining the various tracks may well continue ad infinitum and “what then have the Sages achieved by their deeds”? The question of proportionality is invariably a complex one, and especially when it touches on rights which are inherently complex. The current situation may be analyzed as being both a disproportionate violation of the right to equality (which in certain aspects means a violation of an affirmative right) and a violation of the specific local rights of those who are required to serve, all to a degree that exceeds that which is necessary, due to the scope of the exemption (and in this sense, a violation of negative rights; see A. Barak, Proportionality in Law (2010) 513-514). It seems however that the primary difficulty in balancing is not – as is usually the case in constitutional law – the difficulty of balancing between two rights of equal worth; the problem rather is the practical difficulty of initiating a social process, and the question of the measures that can proportionately be employed to stimulate that process. Even so, notwithstanding the analytical complexity, and having consideration for the comments made in the Movement for Equality of Government case [2], I have no doubt that the current situation is untenable. As such, I have no choice but to concur in the result reached by my colleague the President.

34.       The President placed the question of a solution at the Knesset’s doorstep of the Knesset, having concluded that the current law could not be extended. She did not relate to the solution itself. I will allow myself to add that we sit among our people, and the solution this time must be far more radical in order to pass the test of the limitation clause. It is understood that one of the possibilities is a return to a numerical quota, which was the practice in the past, albeit in different numbers. In other words, at a certain age – 21 or 22 upon the completion of three or four years study in a higher yeshiva, conscription would be universal apart from agreed quota determined in accordance with prescribed criteria, and which would have consideration for the world of Torah and its continuity along with the needs of the State. Those included would continue in the path of Torah as their calling for as long as they wished, and the flame of God would not be extinguished. Other directions of varying kinds are also conceivable, but the arrangement must be coordinated, and given the current reality, I regret to say, must be less based on anticipations and hopes for future social changes.

A Comment before Concluding

 

35.       I cannot refrain from addressing in brief – though the subject warrants more and we are all the slaves of time and its constraints – the comments of my colleague, Justice (President Elect) Grunis. My colleague proposes not taking the path of judicial intervention in this case because “our concern is with a decision of the majority in the State (in accordance with the Knesset representation) to adopt a law that grants a privilege – not to be conscripted into the army – to a minority”. In his view, this decision does not involve “harm to individuals” as such, or “harm to a minority group”, and therefore “there is no justification for applying judicial review (para. 3). I take a different view. In my view this is a subject that touches on the very roots of the world of rights. The role of this Court is to be a mouth for the human rights of the individuals who make up the majority, and I do not even know whether the petitioners regard themselves, in this matter, as part of that parliamentary majority which granted “at their own expense” privileges to another minority group among whom they are not included, and whom they are unable to join in order to merit the same privileges that were given out by the majority. These are rights that cannot be trampled upon by a parliamentary majority without having been examined on a constitutional level, and this examination supports what has been said in the opinions of the justices who support the disqualifying of the Law.

36.       Even if in my view there should be restraint in judicial intervention (see, e.g. para. 28 in my opinion in HCJ 466/07 Galon v. State Attorney [38] that exceeds the norms of administrative law in general, in which based on many years of experience in different positions and different governmental structures, I think that this Court plays an important role of the first degree, and its failure to discharge it would be a betrayal of its mission; in various realms of life, and space constraints preclude their specification, significant changes have occurred in the conduct of the public administration in the wake of the Court’s decisions, and numerous laws and legislative enactments were passed, scattered over the entire history of the State. Nonetheless, in constitutional law too the Court cannot lay down its mantle and avoid that which is imposed upon by the Legislator- Founder – by him and by no other, in the Basic Laws concerning rights.

37.       Apart from the scholarly and detailed rationales of constitutional authority (see CA 6821/93 United Bank Mizrahi Ltd v. Migdal Cooperative Village [15]) it is clear to both the learned and the laymen from a simple reading of the Basic Laws on rights, that when speaking of basic laws and of restricting the possibility of their violation – even by legislation – in a manner that does not satisfy the proportionality requirements of the limitation clause, that it is incumbent upon the Court to examine whether rights were violated and whether the violation was appropriate and proportionate. My colleague feels that the subject before us is not one that we are required to address. As mentioned I disagree with his approach.

38.       We may be divided in our approaches to the possible contribution of the Court to this subject but it is beyond dispute that our concern is with an obligation, involving a principle of the most sensitive nature, to the extent of endangering of life. In my opinion there is absolutely no way in which this Court can avoid dealing with it. If there is any area of equality in the value- based sense, even if not on a practical, one-on-one level, which is impossible, there is perhaps no subject for equality more elevated than military service. Furthermore, in my view even those changes which have actually taken place in the hareidi society in the context of enlistment, are at least in part connected to judicial intervention, in the absence of which it is doubtful whether they would have even occurred. Our concern is with a conservative (the hareidi) society, with all implied thereby. As such even if our contribution in establishing the constitutional boundary does not transform the ways of hareidi society from one day to the next, it is to be hoped that it will sow seeds which will bud and produce fruit.

 

And one more comment

 

39.       The Tal Law was named after Justice Tzvi E. Tal, who headed the commission that dealt with the subject. It is not superfluous to mention that Justice Tal is a Torah scholar and God-fearing, meticulously observant in all matters, who served as a fighter in the I.D.F in the War of Independence and others, as he describes at length in his moving autobiography (Ad Bo HaShemesh). His son, a student of a hesder yeshiva, fell in the Yom Kippur War, and his grandchild who was born after the father’s death is a career soldier in the I.D.F; it is a family of Torah and the defense of the country, which attests that integration is proper and feasible, and should not be despaired of.

Subject to all the above, I concur in the conclusion of the President, and will mention that my comments, like hers, were written long before the current public discussion, to which we do not relate.

 

Justice

 

Justice Hanan Meltzer

 

1.         I concur in the opinion of the President, Justice D. Beinisch, but given the importance of the subject and the legal aspects it raises, I will allow myself to add some remarks.

2.         The Deferment of Military Service for Yeshiva Students Law whose Torah is their Calling Law, 5762-2002 (hereinafter: the Deferment Law”, in its implementation over the course of nine and a half years (until the signing date of this opinion) did not realize the purposes pinned on it by its drafters. It should therefore be cancelled and another arrangement, more proportionate and more balanced should replace it. In what follows I will explain these holdings.

 

The Constitutional Examination

 

3.         The constitutional examination proceeds from the holding of the President, Justice A. Barak in HCJ 6427/02 Movement for Quality of Government v. Knesset [2] supported by the judges who concurred with his opinion, to the effect that:

 

The Service Deferment Law discriminates between those who serve in the army by force of regular rules and the yeshiva students who are entitled to an exemption and deferral according to the Service Deferment Law, given that Torah is their calling. This violates the human dignity of each and every one of the majority of group who is obligated to do military service (ibid.[22],p. 691)

 

I would like to make three additions to this holding:

 

(a)        As noted by my colleague Justice E. E. Levi in the Movement for Quality of Government [2] case (ibid, p. 783):

           

‘This is not only a violation of dignity….it also involves the violation of other basic rights, among them the right to protection of life, the right to freedom of occupation, the right to privacy, personal freedom, property and the additional derived therefrom – all of them rights that are anchored in our Basic legislation.

 

(b)        The injured population is not only those who serve in the Army (in compulsory and reserve) but also those who are designated for military service, within the meaning of the Defense Service Law, 5746-1986 (hereinafter: DSL), who are likewise discriminated against, at least having consideration for the fact that they do not merit an automatic deferral for purposes of study, in comparison with their hareidi counterparts, who enjoy that privilege until they reach age 22.  Furthermore, when those designated for military service who are not hareidi receive a deferral for study purposes (for the most part in the frameworks of the academic reserves) they are required to return to full compulsory service and are frequently required to commit themselves to permanent service.

 

(c )        Over the years indeed, “Quantity has made a qualitative difference” (within the meaning given in HCJ 910/86 Ressler v. Minister of Defense in the broader context. In view of the shortage of manpower in the I.D.F. it even has implications for the length of service for those who serve, for this is influenced by the reduction in the scale of manpower (see Explanatory Note to Draft Bill of Military service (Temporary Provision) Amendment No.14) 5772-2011, in the wake of which in the Temporary Provision Law, adopted by the Knesset on 16 January 2112, the period of regular service as anchored in the Defence Service Law was lengthened by six months, and in the absence of which soldiers in compulsory service would have served for 30 months). In this context it should be noted that in the states which still have compulsory service, regular service generally lasts for between 18 – 24 months, and only in North Korea is the period longer than here. See: Panu Poutvaara and Andreas Wagner, The Political Economy of Conscription in The Handbook on the Political Economy of War (Christopher J. Coyne & Rachel L.

Mathers eds., 2011) (hereinafter: Poutvaara and Wagner). See also Gay Israel Zeidman, The Right to Serve in the I.D.F. ch. 6 ibid, Military Arrangements in Other States, pp. 121-143 (1996) (hereinafter – Prof. Zeidman); Bjørn Møller, Conscription and its Alternatives, 277 ; Rafael Ajangiz, The European Farewell to Conscription, 307 in: The Comparative Study of Conscription in the Armed Forces (Lars Mjøset and Stephen Van Holde ed.,) 20 Comparative Social Research (2002).

4.         Evidently, the normative arrangement anchored in the Deferment Law violates protected constitutional rights. However, this marks the beginning and not the end of the constitutional examination.. At the second stage we must clarify whether the aforementioned arrangement meets the requirements of the “limitations clause” included in s. 8 of Basic Law: Human Dignity and Freedom and in s. 4 of Basic Law: Freedom of Occupation.

            Before proceeding – two comments are necessary:

(a)        It seems that an understanding similar to the one presented above may also be reached by application of a “judicial limitations clause” on s. 4 of Basic Law: The Army, which provides as follows:

 

4. The duty of serving in the Army and recruitment for the Army shall be as prescribed by or by virtue of Law.

           

            On the interpretation of this section for purposes of the current context see: Mordechai Kremnitzer and Ariel Bendor, Basic Law: The Army, 67- 73 (part of the series Commentary on the Basic Law, Yitzchak Zamir ed. 2000). Regarding the “judicial limitations clause” see: EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [39] at p. 811; HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [40], at p. 314, per President Barak; Dr. Avigdor Klagsbald, “Contradiction in Basic Laws” Hapraklit 45 (2006) 293.

 

(b)        There are certain contexts (internal-military) in which relevance may also attach to the special limitations clause for the security forces, included in s. 9 of Basic Law: Human Dignity and Liberty, which provides as follows:

 

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

 

Regarding the significance of this section and its interpretation, see [41], at pp. 73, 75; HCJ 6055/95 Zemach v. Minister of Defense [16]; my opinion in HCJ 6784/06 Shlitner v. Director of Payment of Pensions [42] and my article: “The I.D.F. as the Army of a Jewish and Democratic State (soon to be published in the periodical, Law and Business of the Herzliya Interdisciplinary Center, in the volume in honor of Prof. Amnon Rubinstein (hereinafter: my article on the I.D.F).

 

            Having consideration for all of the above, we may now proceed to analyze the “limitations clause”, which reads as follows

 

There shall be no violation of rights under this Basic Law except [1] by a law [2] befitting the values of the State of Israel, [3]enacted for a proper purpose, and [4] to an extent no greater than is required, or [1] by regulation enacted by virtue of express authorization in such law
(the numbering in the cited version is my addition – H.M)

 

In this framework we will limit ourselves to an examination of the aforementioned limitations clause on the Deferment Law.

5.         In accordance with the holding of the majority in the Movement for Quality of Government case the violation of the protected human rights included in the Deferment Law meet the requirements of conditions [1] – [3] of the limitations clause, as set forth below:

 

(a)        They are anchored in law as required. Here I will add that it is irrelevant whether the law is a regular law or a law which is a “temporary provision” or Sunset Law (a law with an inherent expiry, such as the law at hand). Furthermore, in the current context there is almost no importance to the dispute that arose in the “Mifkad Leumi” Ltd v. Attorney General case concerning the meaning of the phrase “by regulation enacted by virtue of express authorization in such law” in the limitations clause, because even the extension of the Deferment Law for five years (until1 August 2012) which was effected by a Knesset decision (See O.G. 5767 of 9 August 2007, p. 3910) was in accordance express authorization in the Service Deferment Law, which provides in s. 16(b)

 

‘The Knesset may, by decision, extend the validity of this law for additional periods, each of which shall not exceed five years; deliberation on the extension of the validity of the law shall be conducted in the Knesset no later than six months before the end of its validity’.

 

Here it should be mentioned that a law of the kind under discussion – if extended, and a fortiori if changed (to the extent required) – must be adopted in a regular legislative process (in three readings) and not by a Knesset decision only (compare s. 39 of Basic Law: The Government

 

(b)        The law is consistent with the values of the State of Israel within their meaning in Basic Law: Human Dignity and Liberty, and that context also gives expression to the fact that the State is a Jewish and democratic state. I will not elaborate on this point.

 

(c )       The Deferment Law, which is the product of a social compromise, consists of four combined objectives:

(1)        It anchors the arrangement of the service deferment for yeshiva students whose Torah is their calling and who seek immerse themselves in study day and night.

(2)        It seeks to increase the equality in the allocation of the burden of military service in the Israeli (Jewish) society, in the sense that more men from the hareidi community will, ultimately serve in military service (regular or special), or at the very least will serve in civilian service.

(3)`      It strives to engender greater participation of the hareidi public in the Israeli work force, which should improve the social position of the hareidi families on the one hand, and will contribute to an overall growth in the national product.

(4)        It aspires to resolve the difficulties that have long (since the creation of the State, and even before then, see – Prof. Zeidmann (188-194) accompanied the service deferment arrangement for yeshiva students by a gradual and cautious process and based on broad consensus and without a coerced conscription (which would evidently not be effective).

 

These four objectives are intertwined, and were already recognized as being appropriate in the Movement for Quality of Government case. At the same time it transpires that the Law does not meet the fourth obstacle in the limitations clause because the manner of its implementation has proved it to be disproportionate, given that its realization has not achieved the goal. In what follows we will clarify these points.

 

Proportionality Failures in the Deferment Law

 

6.         As known, proportionality is determined in accordance with three subtests:

 

(a)        The rational connection test – which examines whether there is a rational connection between the means chosen, which violates the constitutional right, and the objective.

(b)        The least harmful measure test – which examines whether the solution found for realizing the objectives of the law is the one which occasions the least harm to the constitutional right, from among the possible measures

( c)       The proportionality test stricto sensu –(“the test of relativity” as suggested by Prof. A. Bendor in his article “Trends in Public Law in Israel – Between Law and Judging (soon to be published in Law and Government 2012). See CrApp 8823/07 Anon v. State of Israel [43]) per my colleague the Deputy President, Justice E. Rivlin, at para. 26. According to this test to justify the constitutional violation, there must be an appropriate, positive reasonable relationship between the incremental advantage gained by realization of the legislative objective and the incremental harm liable to be caused to the constitutional rights as a result.

See Aharon Barak, Proportionality in Law – The Violation of a Constitutional Right and its Limitations, pp. 295-455 (2010)

7.         During the years of its implementation the Deferment Law has proved that it does not even pass the first of the aforementioned subtests (the rational connection test) because the means adopted for its execution have not succeeded in bringing about the realization of its four underlying objectives s, all as set forth in detail in the opinion of the President. The report of the Plesner Panel appointed by the Foreign Affairs and Defense Commission to monitor the implementation of the Deferment Law similarly concluded that the implementation of the Law had failed. Indeed, all of the easier alternatives which were put at the disposal of the yeshiva students were not sufficiently exploited and at too slow a rate. At the same time, here too I am obligated to make a few comments.

 

{a}       Even though the relevant basic data for reaching that conclusion exists, what is still missing are standard criteria for comparison and clarification of the Law’s position on the compliance of the Deferment Law with the “test of results”, This explains the thrust of the difference between the petitioners’ presentation of the facts and that of the respondents, and in my view also accounts for the discrepancy in the analysis of the numbers in President’s opinion in comparison to the analysis presented in the opinion of my colleague Justice Arbel. It is nonetheless clear that the overall number of hareidi men who received deferments and those who are exempt from I.D.F. service is increasing from year to year, notwithstanding the increased numbers of those enlisting from among that public into hareidi Nahal and into the various Shahar frameworks. At the same time there is a discernable continual growth in the numbers of hareid men ho opt for civilian service (this phenomenon has a variety of explanations, and one of the contributing factors is the benefits given to those included in that category including the benefits anchored in the Civilian Service (Legislative Amendments) Law, 5768-2008).

(b)        The defect is not only the result of the approach taken by the yeshiva students and their leaders. The Government too, by reason of budgetary constraints has “dragged its feet” in the realization of the Deferment Law (in all matters pertaining to the establishment and maintenance of supervisory bodies for the civilian service and with respect to the allocation of the budgets required for the actions necessitated by the broadening of the relevant military frameworks (the various Shahar units etc.)). See Government Decision 2000 dated 6 July 2010, Concerning the appointment of an Inter-Ministerial Committee for Monitoring and Formulating Recommendations for the Changing of Conscription Proceedings applicable to the Hareidi Sector – from which it emerges that the Government views the conscription of the hareidi men as a burden, and this is a pity.

            The I.D.F. too, despite declarations given in this context and certain efforts that have been made (see: Updating Notice from Respondents 2-4 of 24 January 2011), has yet to adjust itself sufficiently to the conditions dictated by its incorporation of the hareidi men and the need to maintain their freedom of religion, and I will not elaborate. See also: Gideon Sapir: “Conscription of I.D.F. Soldiers into the I.D.F.: Outline Proposal for Relevant Normative Considerations” Pelilim 9 (December 2000)

(c )       The new conscription proceedings (which were introduced when the petitions were pending and were based on the Government Decision of 9 January 2011) suddenly opened an additional track for abbreviated military service of three months only – for hareidi men whose service had been postponed, between ages 26- 27 (men above that age who had received deferments are at all events referred to the pool of reserve duty without any training and at the end of the day receive an exemption). This decision has three blatant defects

(1)        In defiance of the alternatives prescribed in the Deferment Law, which are supposed to be exhaustive, it adds an additional option, which prima facie contradicts the Law forming the subject of the petitions and the length of service prescribed therein.

(2)        It unlawfully assumed the powers of the Minister of Defense in these contexts, conferred to him in the Military service Law, in defiance of the provisions of Basic Law: The Government.

(3)        It purported to establish “facts on the ground” even before our ruling on the entire complex of issues.

            On the other hand, this alternative indicates the existence of measures other than those enumerated in the Deferment Law for the realization of its objectives, and it would have been proper for these to be examined already in the framework of the enactment of the Law, or before the extension of the validity of the Deferment Law, given that it comes within the category of the second subtest for proportionality – the least harmful means test. The failure to conduct such an examination constitutes grounds for judicial review, thereby bringing us back to the proportionality subtests.

8.         In the context of our comments in para. 7 it was concluded that the Deferment Law does not even pass the first subtest of proportionality. On the face of it I am therefore exempt from discussing the other proportionality subtests. However this would be improper having consideration for those of my colleagues who maintain that the Law forming the subject of the petitions meets the first subtest. The supporter of that view must still show the law also meets the other subtests, the second and third, and this must still be done.

            Without derogating from this problem, I would like to add, in addition to what is necessary and briefly, in deference to the opinions that take issue with my own, that the Deferment Law did not, in my view, adopt the measure that is the least harmful to constitutional rights from out all of the available means (and the matter mentioned in s. 7 (c ) above, is just an example that proves the claim). Willy-nilly, the Law similarly fails to meet the third proportionality subtest – the test of relativity The result is that it has not been proved to us that the social benefit of the arrangements in the Deferment Law, as realized, is actually greater than the violation of the rights of all those who are actually, or potentially recruited.

These conclusions bring me to the third stage of the constitutional examination which focuses on the constitutional remedies. In what follows I will address this subject.

 

Constitutional Remedies

 

9.         Our discussion thus far yields the conclusion that the Deferment Law in its existing format should be voided. What follows from this is that the Law cannot be extended beyond the date of its expiry on 1 August 2012. On the other hand, neither would be it appropriate to order its immediate cancellation, so as to enable all those concerned to utilize the remaining period of its validity to organize for the new situation. I will now present the legal reasoning for this position.

10.        As I clarified in my opinion in HCJ 466/07 MK Zahava Galon v. Attorney General [38] (hereinafter “Families Unification case), from comparative law we learn that temporary legislation is appropriate for four alternate situations (see Jacob Garsen, Temporary Legislation, 74 U. Chi. L. Rev. 247, 273-279 (2007:

(a)         Constraints of Urgency or State of Emergency

(b)         A supervised experiment of a new system, or new policy, or as a means of receiving information (note: situations (a) and (b) were discussed and confirmed in HCJ 4908/10 Roni Baron v. Israel Knesset [44].

(c)         Response to defects in the existing normative situation.

(d)         Attempt to overcome cognitive biases (see Christine Jolls, Cass R. Sunstein, Richard Thaler, Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (1997-1998) or situations of asymmetric information (see George K. Yin, Temporary Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N.Y.U. L. Rev. 174 (2009)

             As distinct from the matter confronting us in the Families Reunification case, prima facie none of these four alternatives has any application in the matter at hand, given that the Deferment Law has so far been granted nine and a half years for trial and error. Furthermore, under these circumstances the extension of the validity of the Deferment Law in its existing format is not possible, even for a shortened format, because on the face of it, even during the extension period beyond the expiry date it must meet the constitutional tests (see Yigal Marzel “Delaying a Declaration of Invalidity” Law and Government39 (5766); my opinion in the Family Unification case [43], (ibid para. 43).

11.        Should we seek to uphold the underlying objectives of the Deferment Law, which our case law has declared as legitimate and appropriate, the current law should be replaced by another more constitutional and more balanced arrangement. Naturally, in this framework I do not purport to suggest a solution to the problem or even to indicate a direction in a matter that is obviously located within the boundaries prescribed for legislative maneuvering (provided that the measures chosen are constitutional). All the same, I find it proper to point out for the convenience of all, a number of relevant lines of thought and ideas that I found n comparative law (while showing how they are parallel to the local contexts) and to emphasize a few subjects that require a response in view of the voiding of the Deferment Law in its current format. The next chapter is devoted to this matter.

 

Lessons from Comparative Law and Issues Requiring Arrangement

 

12.        The comparative law that we surveyed in a number of states in which there is (or was) compulsory service (Austria, Brazil, Germany, Denmark, Greece, Norway, Singapore, Finland, South Korea, North Korea, Cyprus, Switzerland and Turkey) is instructive in a number of matters:

 

(a)         In Switzerland – Jews are called upon to serve in compulsory service but religious Jews (including hareidi Jews) are provided with suitable conditions that ensure inter alia: the observance of kashrut, the Sabbath and the Jewish festivals (see: Standing Orders of Swiss General Staff No. 51.024 and 51.003). They are also reimbursed for expenses paid to obtain meals with special kashrut (which are not supplied by the army). See circular from the Federation of Jewish Communities in Switzerland: http://www.swissjews.ch/pdf/de/religioeses/merkblatt_militaer_2010.pdf

(b)         In Germany, until one year ago, there was regular compulsory service, or alternative civilian service. The Jews (and the Gypsies) were exempted from conscription in view of the need to restore their nation and their families who were exterminated and injured in the Holocaust (see: Procedure of the German Ministry of Defense dated 22.3.89; WE2-A2- 04-05-24, which is based on sections 12IV s.1 and 12 IV s.2 of the Wehrpflichtgesetz (German Compulsory Service Law); regarding the parallel exemption relating to alternative civilian service, see: Procedure No. 76 of the Federal Civilian Service Office of Germany, of 3 March 2006.

             Similar considerations originally gave rise to the arrangement of deferral of service for yeshiva students, which at the time was limited to just a few hundred yeshiva students. This arrangement received the consent of the Prime Minister and Defense Minister at the time – David Ben-Gurion, who during the Knesset debate gave the following description of the relevant background (Knesset Proceedings 25 5719):

 

‘Upon the establishment of the State the matter of the yeshiva students was raised with me by one of the leaders of Judaism and Torah in our times – Rabbi Maimon and Rabbi Yitzchak Meir Levin. They said: Since all of the centers of Torah in the exile were destroyed and this is the only country in which the yeshivas remained and there is only a very small number of those who learn, they should be exempted from military service. Their words seemed reasonable to me. It seemed that they were correct and so I gave an order to release the yeshiva students’.

 

For the sake of fairness and to complete the picture, we will mention that in the continuation of his speech on the same occasion David Ben-Gurion said the following:

 

‘Meanwhile things have changed. There are thousands of yeshiva students, both in Israel and in the diaspora. I doubt whether we are fulfilling are duty, not only to the people but also the individual. The bereaved mother whose sons fell will say: Perhaps had there been a few more young men with my son he would not have fallen. Can there be a Shabbat Goy where it concerns the defense of the nation? Isn’t this the duty of each and every person? As a person who has great understanding and respect for the sensitivities of the members of Agudat Yisrael I suggest that you give this matter consideration. We do not want the third Temple to be destroyed.

 

As we all know, David Ben-Gurion’s proposal was not accepted, and after the change in government in 1977, and in accordance with the coalition agreements drawn up in constituting the government of Menachem Begin, in the wake of the establishment of the Government, Defense Minister Ezer Weizmann cancelled the yearly quota of hareidim who would benefit from the deferment exemption.

            In this way we arrived at where we are today – see Prof. Zeidmann, p. 190

(c )       An exemption from military service may occasionally be granted for reasons of conscience, but the principle of equality dictates that person who enjoys an exemption of that kind be liable for an appropriate, alternative form of service (civilian), and the State must put such possibility at this disposal, See: Bayatyan v. Armenia, [2011] ECHR 23459/03 [53].

(d)        In states in which it is possible to replace compulsory military service with an alternative civilian service – the length of the alternative service usually exceeds that of the compulsory military service (compare to us in s. 9 (3) of the Deferment Law). Furthermore, a person serving in a military service usually receives extra economic grants during the service (and special benefits after release), in comparison to the parallel rights granted to those who chose civilian service. See: Poutvaara and Wagner, p. 3).

            Here too it has been ruled that this kind of preference is permitted. See: HCJ 11956/05 Bishara v. Minister of Construction and Residence [45]’ FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [46 ]; my judgment in HCJ 11088/05 Heib v. Israel Lands Administration [47]

            In this context it further bears mention that all over the world today the prevailing trend (especially in Europe) is to go from compulsory service to voluntary service with a significant improvement in the accompanying salary, both for those in compulsory service and those serving voluntarily. See Europe Without Soldiers? Recruitment and Retention across the Armed Forces of Europe (Tibor Szvircsev Tresch and Christian Leuprecht, eds., 2010)

(e)         In states with compulsory military service the exemptions are limited and there are criteria (limited and restricted, numerically or qualitatively) and tight supervisory mechanisms for screening and supervising those who are entitled to the exemption. See: Central Intelligence Agency (CIA), The World Factbook, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html; War Resisters International (WRI), "Refusing to Bear Arms: A World Survey of Conscription and Conscientious Objection to Military Service" (2005), available at http://www.wri-irg.org/system/files/Rrtk-update-2008-Austria.pdf

             Here too, a similar approach is adopted with respect to exemptions and other expressions of leniency besides the ones under discussion and they are generally regulated in standing orders of the army, occasionally limited by numerical quotas or qualitative threshold conditions.

13.       In addition to the information adduced in para. 12 above, and which may be useful for future legislative needs, it bears mention that any legislation of this nature, should there be such, must (subject to the required, appropriate examinations):

(a)        Ensure the existence of the Hesder yeshivas , the operation of which is currently anchored in s. 9 of the Deferment Law (and prior to which, in the absence of the law, was anchored in the Army’s standing orders).

(b)        Ensure the continued nurturing of prodigies from among the yeshiva students – akin to the burning sticks that survived – who guard the torch of fire and the Jewish genius, which protected the Jewish people for thousands of years against those that rose up to consume it.

(c)        Ensure the existence of an appropriate normative and budgetary infrastructure for civilian service (and which can be also be expanded for other persons exempt from military service) and for the entities who supervise them.

(d)        Establish agreed indices which will enable an examination of the “test of the result”

14.       In approaching the end, this is the place to clarify that the voiding of the Deferment Law does not mean voiding the framework of the Hesder yeshivas or the haredi Nahal or the various Shahar units, because the existence of all these frameworks can be anchored within the framework of the Defense Service Law and the Army’s standing orders. This was how the army authorities operated prior to the enactment of the Deferment Law.

15.       Furthermore, today (and in fact since Amendment No. 7 of the Defense Service Law) the existing normative infrastructure provides solutions to some of the problems which the Deferment Law attempted to answer, at least with respect to the hareidi men who request to serve. It was possible to incorporate them into what is known as “recognized service”, currently regulated in s. 26A of the Defense Service Law. Under this section, the Minister of Defense is entitled to determine by order, with the approval of the Government and the Foreign Affairs and Defense Committee of the Knesset, that those designated for army service who are found to be fit for service and who have undergone a preliminary military training, may serve (having given their consent) in regular service or a part thereof in a framework of recognized service.

            For this purpose recognized service is inter alia:

 

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

 

For an understanding of the institute of “recognized service” and the background for the legislation of the relevant arrangement, see: Elyakim Rubinstein, “Basic Law: Human Dignity and Liberty and the Defense Establishment”, On Government and Law: Studies in Israeli Public Law, 225, 242-248 (20003); my article on the I.D.F.

In these special units, which are external to the regular I.D.F order of battle, it may also be possible to respect the hareidi life style in an optimal manner.

These last insights bring us to the conclusion

 

Final Word

 

16.       We have seen that the Deferment Law, in its present format, cannot stand. The solution however does not lie in incitement, but rather in finding genuine, proportionate and graded arrangements that are feasible within the framework of the objectives underlying the Deferment Law. It may be possible to achieve this and to attain substantial results provided that all of those involved learn to waive some of their requirements in the interests of “the middle path” and in recognition of three principles:

(a)        Service in the I.D.F. or alternative civilian service, is not just a duty but also a privilege

(b)        The freedom of religion of the hareidi men must be respected both outside the army and within the army (and in the various frameworks intended for the hareidi men who choose to serve). On the other hand, the hareidi men must recognize the immense contribution made by those who serve to state security and peace for all.

(c)        A arrangement based on consensus (anchored in law) is preferable to an arrangement based on coercion. To that end, the preferable alternative is not the one that seeks to achieve everything, but rather the one that leads to the integration, in various frameworks, of many of those hareidim who at all events are unable to diligently study Talmud in the yeshivot from dawn until dusk.

17.       If a legislative arrangement is achieved along the lines of paras. 12- 16 above, while learning the lessons of what has happened until now and from comparative law, it may obviate the need for Court’s intervention in the matter. In the past however, the judicial review of the entire matter was essential and this also applies to the petitions before us, and it may again be required of us in the future. Furthermore, I think that judicial review was one of the factors that lead to a certain degree of improvement (although still not sufficient) in one of the subjects treated of in the petitions, as clarified in the opinion of the President. In this sense, the court contributes – by way of the law – to the required social changes in addition to its establishment of the law, and the achievements that this produced in a variety of realms are all recorded in the history of this Court and in the annals of Israel’s history. A similar conception has long been accepted in the majority of the democratic states, and in the U.S.A. for example, adducing more remote evidence, most of the important struggles – political, social and economic, were channeled inter alia into legal frameworks and the decisions rendered shaped the character of America as we know it. See: Arnon Gutfeld, The Brown v. Topeka Board of Education Decision and its Impact on American History The Brown v. Topeka Board of Education Decision and its Impact on American History,” in Daniel Gutwein and Menachem Mautner (eds.).Law and History. 231; Stephen Breyer, Making Our Democracy Work: A Judge’s View, Part 1, pp. 1-74 (2010)

            It is superfluous to elaborate any further on this point at this stage, which brings me to the final paragraph.

18.       My colleague, Justice Rubinstein opened his opinion with a story told of Rabbi. Shlomo Zalman Aeurbach, of blessed memory. My colleague, Justice N. Hendel concluded his opinion with the words spoken by R. Yitzchak Gussman, of blessed memory. It emerges that there is a glimmer of hope because even in hareidi world today there are prominent figures today who take a similar approach. We recently read about one of the heads of the Ponevez Yeshiva (which is one the leading haredi yeshivas – the illustrious Rabbi Yerachmiel Gershon Edelstein, may he live long – in responding to his detractors (who criticized him for being “overly fond of the Zionists and the I.D.F. soldiers): “Even the secular [Jews-trans} who are not observant of the Torah and its commandments, if they give their lives for the saving of others because of their love of human beings, have a portion in the World to Come, just as the martyrs of Lod, who gave their lives to save the residents of the town. The Rabbi then related the story of the martyrs of Lod: “In Lod the daughter of the king was killed, and they suspected that the Jews were the murderers. A decree was issued that if the murderer was not found, then all of the Jews would be killed. Two brothers come and said that they were the murderers, even though they were not the murderers, in order to save the residents of the town, and the Sages said that no person can attain to the place in Heaven assigned to the martyers of Lud; published in Kikar HaShabat on 8 Shevat 5772

            On the gemara concerning the story of the martyrs of Lud, see: Pesahim 50a; Ta’anit 18b; Bava Bathra 10b and Rashi, ad loc.

            If this kind of conciliatory spirit of loving of Jews were to rest upon all, and the mindset of service was to be accepted, it would become possible to achieve an understanding and the I.D.F would be able to continue being the people’s army.

 

Justice

 

Justice Hayut

 

I concur in the opinion of the President, D. Beinisch and all of her reasons and would like to add a number of comments

 

1.         The Deferment of Military Service for Yeshiva Students for Whom the Torah is Their Calling 5762-2002 (hereinafter – the Deferment Law) was enacted in the wake of the recommendations of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (headed by Justice Tzvi E. Tal (hereinafter: the Tal Commission), which was intended to find a feasible and practical solution for one of the most central, sensitive and complex problems which has been on our agenda for years. The legislative act was the product of the recognition that the issue of the enlistment of yeshiva students must be resolved in Knesset legislation (see HCJ 3267/97 Rubinstein v. Minister of Defense [1], and in the recognition that the strength and the unity of Israeli society mandates the treatment of the issue without delay, in view of the growing numbers of hareidi men who do not serve in the army, since the cancellation of the exemption quota for those for whom “Torah is their Calling” in 1978 (see data regarding this on p. 16 of Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter: Report of the Gabbai Commission). At the same time – and this point was stressed in the report submitted by the Tal Commission – the obvious differences between the hareidi sector and the secular sector, finding expression inter alia in lifestyle, education, and scale of values, necessitates that a solution be found which takes into account the peculiarity of hareidi society and its needs.

            The Deferment Law enacted by the Knesset in 2002 may thus be characterized as a law that is the product of a social compromise, intended to increase solidarity among the different parts of Israeli society, and the integration of hareidi society therein by way of the different mechanisms established by the Law. Indeed, according to the hopes of its enactors, the Law sought to harness significant portions of the hareidi sector into bearing the onus of military service, albeit at a reduced level, and to increase their presence in the Israeli work market (see: Movement for Quality of Government v. Israeli Knesset [2] (hereinafter: Movement for Quality of Government case).

2.         Due to the unique nature of the Deferment Law, as a law that seeks to spearhead a social change using a model characterized by a graded process, we were required to adapt the judicial review to these distinct features. This point was taken up by President Barak, in relating to the first subtest of proportionality (the rational connection test) which concerns the existence of conformity and a rational connection between the objectives of the Deferment Law and the measures chosen by the Legislature to realize these objectives. In this context, President Barak stressed that the examination of this rational connection:

              

‘Must be conducted, for the purpose of the law under discussion, not as a theoretical matter, but rather as a practical matter tested by the results of its implementation. Indeed, as a theoretical question examined at the time of the law’s enactment, the arrangements prescribed in the law may be capable of realizing its objectives,..an (advance) examination of this kind will not suffice. When the underlying objective of the law is to orchestrate a social change, the occurrence of which is not purely a matter of theoretical speculation but is rather examined in the test of life, the suitability of the measures chosen to realize the purpose must be examined in terms of their results’. (Movement for the Quality of Government [2] at p. 710. For the approach according to which the examination of the rational connection is in general a test that for the full duration of the law’s validity, see Aharon Barak Proportionality in the Law – The Violation of the Constitutional Right and its Limitations 384-387 (2010)

 

Support for the “test of results” adopted in Movement for the Quality of Government case appears in s. 16 of the Law, which determined a period of validity of five years from the date of its publication (while empowering the Knesset, by decision, to extend its validity for additional periods each of which would not exceed five years) as well as in the Explanatory Note which noted that the Law’s period of validity was fixed for five years “to enable the monitoring of the progress in the trends, in the framework of the enlistment deferment arrangements for yeshiva students for whom their Torah is their calling, and primarily the influence of the proposed law on the scope of yeshiva students included in the arrangement…” (Draft Bill for the Military Service (Deferment of Service for Yeshiva Students for whom the Torah is their Calling) Law (Temporary Order), 5760-2000, Hatza’ot Hok 5760-2000, 2889, 455, 458.

            It will be stressed that in the Movement for the Quality of Government case, we did not ignore the fact that in terms of its results, and according to the situation at that time (2006) , there was no rational connection between the objectives of the Law and the measures used in its implementation, because the data at that time showed that the objectives of the Law had only been realized in a negligible and marginal manner and that its principal overall objective of the Deferment Law was not realized (see Movement for the Quality of Government [2 ] at p. 712. All the same, we felt that it was appropriate to wait until the passage of the full period of time prescribed by the legislator for monitoring the actual realization of its purposes (five years), so as to enable the Knesset to examine in accordance with the structure that it had prescribed, whether there had been any substantive change in the picture since the granting of the judgment.

3.         The petitions before us were filed in the wake of the Knesset’s extension of the Deferment Law for an additional five years on 8 August 2007, and in our decision of 8 August 2009 we reviewed the current data pertaining to the implementation of the Law at that time, and we expressed our disappointment that “the entirety of the data presented above concerning the integration of those who received deferments from I.D.F service and civilian service does not reflect a significant change of the kind contemplated by the judgment in Movement for Quality of Government [2] (para. 10 of the decision)” All the same, we will abide by our decision that “the test of the Deferment Law lies in its realization in practice. The test is in the actual social change that is achieved” (Movement for Quality of Government [2], at p. 711). We decided that at that stage too it was appropriate to enable the Law and the mechanisms fixed therein, which had already begun operating, to prove that it was capable of generating this kind of change. We therefore ordered that the hearing of the petitions would be renewed after the passage of fifteen months from the date the decision was given, in order to be able to once more examine the updated data pertaining to the implementation of the Law.

4.         Unfortunately, the desired change did not materialize even after the passage of the additional period of time that we allocated in our decision, and I agree with my colleague the President that the period of almost a decade that have passed since the enactment of the Law (1 August 2002) “represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case” [2](para. 68 of her opinion). I also concur with my colleague regarding the answer to be given to this question, and in accordance with which the “results test” over a period of time indicates that the Law does not pass the first subtest of proportionality, and that the means chosen to realize the Law are not suited to the purposes of the Law. For example, in 2010 the number of new inductees to the I.D.F. from the haredi sector from all age levels stood at 510 only (the 368 inductees into hareidi Nahal are not included in this group because the inductees of hareidi Nahal are not connected to the implementation of the Deferment Law) whereas the aggregate number of all those whose enlistment was deferred as of 6 January 2011 stood at 61,877 men (see p. 7 and 20 of the response of respondents 2- 4 dated 23 January in these petitions. The State claimed that the overall number of those whose service was deferred is smaller, inter alia due to the exclusion of those who are 30 and over, the efficacy of their enlistment being in doubt. However, even according to this approach, the aggregate number of all those whose service has been deferred is in excess of 50,000, and as such there is no escaping the conclusion that the percentage of those enlisted from the hareidi sector (530 in 2010 from all the age levels) was and has remained particularly marginal and negligible. If we take account of the fact that the rate of natural increase in the hareidi sector is far more rapid than the natural increase of the rest of the Jewish population in Israel (about 7% per annum for the hareidi sector as opposed to 1.3% for the rest of the Jewish population – p. 8 of the Gabbai Report), it is no wonder that the number of those whose service is deferred from among the hareidi population has consistently grown from year to year (see para. 50 of the President’s opinion). Thus, the data accumulated thus far do not point to any meaningful positive trend with respect to the attainment of the objectives to which the Law was directed. Quite the opposite: These data are worrying because they indicate that the dimensions of the problem which the Deferment Law sought to solve are growing. Hence, the Gabbai Report indicates that in the younger age range (20 – 29) only 11% of the haredi men service in the Army as opposed to 90% of the Jewish men in this age range (p. 12 of the report) and the results in the civilian service track are likewise rueful (see paras. 42-46 of the President’s opinion.

5.         The ineluctable conclusion from all of the above is that the Deferment Law did not succeed in realizing the objectives for which it was enacted. The reason for this is that the mechanisms established in the Law lack the power to generate the profound changes in the hareidi sector which would narrow the glaring inequality which has materialized in Israeli society as far as it concerns the bearing of the military burden, at least by way of civilian service. Hence, the arrangements prescribed by the Law relate primarily to men above the age of 22, an age at which the average haredi man is married and is often a parent to a child (see p. 19 of the Gabbai Report). As such his ability or will to enlist for significant service at that stage of his life is considerably less. Similarly, the arrangements prescribed by the Law are not sufficiently tight, and this opens the way for the authorities to divest it of all meaning, and thus frustrate the overall realization of its intended objectives (regarding this, see paras. 24- 26, 44-46 of the President’s opinion). For example, today already from age 22 there is no preference for military service over civilian service; civilian service is likely to be for one year only, see: Regulations for Deferment of Service for Yeshiva Students whose Torah is their Calling (Civilian Service) 5767-2007 and is for the most part performed within the community (68% according to the Head of the Administration, and 57% according to the position of the Minister of Science – see p. 27 of the interim report of the panel for examination of the implementation of the Tal Law, headed by Knesset Member Plesner, dated 16 January 2011) and is not sufficiently supervised; a track of abbreviated service of three months was established for those aged 26 and above; and men over age 28 are directly referred to the pool for reserve duty with no obligation of service.

6.         As an aside in this opinion, I would like to add a few remarks relating to the position taken by my colleague Justice A. Grunis, concerning the scenarios that will take place the day after our judgment and the conclusion that he sought to draw from that position.

            My colleague Justice A. Grunis says that “It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager” (para. 2 of his opinion).

            The question of the degree to which a judicial resolution can give rise to a social change is one over which jurists and scholars of political science have spilt much ink, in Israel and around the world. My colleagues justices M. Naor, and H. Meltzer, and my colleague the President D. Beinisch referred to some of the legal literature on this subject (and see also: Ruth Gavison “The Hollow Hope – Can Courts Bring About Social Change” Maasei Mishpat 2 15 (2009 which reviews the book of Gerald N. Rosenberg: The Hollow Hope: Can Courts Bring About Social Change (2^nd ed., 2008); Menachem Mautner, “Judicial Activism – An Appraisal, Alei Mishpat 4, 7 (2005) (hereinafter – Mautner); Judicial Activism: For and Against: The Role of the High Court of Justice in Israeli Society (2000); Yuval Albashan “Aharon Barak – Between Law and Protest, Barak Volume – Studies in the Judicial Activities of Aharon Barak 139 (Ayal Zamir, Barak Medina, Celia Fesberg eds. 2009); Neal Devins, Judicial Matters, 80 Cal. L. Rev. 1027 (1992); David Schultz & Stephen E. Gottlieb, Legal Functionalism and Social Change: A Reassessment of Rosenberg's The Hollow Hope: Can Courts Bring About Social Change?, 12 J.L. & Pol. 63 (1996). Personally, I tend to the view that the courts have the power, inter alia by way of judicial review, to be partners in processes that give rise to social changes. At all events, even if my colleague is correct in his approach to the effect that the courts’ ability to influence social changes is minimal, the question to be asked is whether that justifies the conclusion which he reached, namely that the courts should stand on the sideline and reject any attempt to influence these processes, even if only minimally.

            In my conception, the judicial decision in all of its variations, especially in the field of protection of human rights and the guarding of the rule of law and purity of conduct, is one that by its very essence touches on value based matters. These values have been embedded in the law of the State since the dawn of its existence and they constitute the foundation and the building blocks of the Israeli democracy in its entirety. Having been charged with the protection of human rights and guarding the rule of law, and being equipped with the legal – value based tools to perform that task, inter alia by way of judicial review, it is incumbent upon the court to fulfill that task, without being deterred by the negligible or extensive influence that its ruling may have. Comments in that spirit were expressed by Professor Mautner in his article on judicial activism cited above, where he states:

 

‘Another question, naturally concerns the extent to which the court succeeds in inculcating the appropriate values of administrative law in the public administration of the state. The answer to this question will certainly be mixed but this does not mean that the court should refrain from making the effort. As jurists we know that there is invariably a difference between the ideals of the law and the extent to which they are realized in the real world. But this does not mean that these ideals should be waived (Mautner, at p. 16)

7.         Examples of the efforts made by this Court to protect the basic constitutional principles of our democratic regime are scattered throughout its case-law during all the years of its existence, before and after the enactment of the Basic Law at the beginning of the nineties. Space would definitely prevent detailing the full picture, but one example nonetheless worthy of mention is the case of HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], where the Court did not recoil from protecting the principle of equality and cancelling gender based discrimination, when ruling that the petitioner should be included in the panel of the Religious Council of Yerucham as a candidate on behalf of the local authority. The protection of the principle of equality in that case required the Court to treat a topic of tremendous social and halakhic sensitivity, and the Court was aware of this, and noted, per Vice President M. Elon

 

‘We 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 (ibid, 270-271).

8.         The role of the judge in a democratic society as the protector of human rights and the rule of law has been discussed by discussed by many of the best (see Aharon Barak The Judge in Democratic Society (2004); Itzchak Zamir “Judicial Activism: A Decision to Decide Tel-Aviv Law Review 17, 647 (1993); Yitzchak Zamir “Judicial Review of the Public Administration” Gabriel Bach Volume 383 (David Hahn, Danah Cohen-Lekah, Michael Bach eds., 2011) Beverley M. McLachlin, The Role of the Court in the Post-Charter Era: Policy-Maker or Adjudicator?, 39 U.N.B.L.J 43 (1990). A derivative of this role is the court’s duty to do its utmost to narrow the gap that often exists between these fundamental values – which must be protected from a long term perspective – and the social reality which may materialize as a result of the actions of other governmental authorities, that are often motivated by short term considerations and various political constraints. Also germane to this context are the comments of Deputy President M. Cheshin in HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [48]

 

“…far be it from us to mix reality and values. However, the test for determining the obligation of equality – and similarly the prohibition on discrimination – originated and currently exists specifically in order to combat “accepted social conceptions” . This is the case with respect to discrimination on grounds of race, discrimination on grounds of sex, discrimination on grounds of sexual inclination and discrimination on other grounds too. All of these discriminatory acts have their origin in “accepted social conceptions”: the social conception that a member of one race is inferior to the member of another race; that women are not competent to perform actions that men perform; that people of a certain age are not competent for particular professions etc. Indeed, the uprooting of ‘accepted social conceptions’ – accepted but illegitimate – is the purpose of various laws, and the court, in conjunction with the legislature, must stand on guard and act to inculcate the values of equality among the members of the society, which are built upon the talents of the individual and not upon stereotypes that have attached to the group to which a particular person belongs (ibid, p. 452; see also and compare HCJ 4948/03 Elchanati v. Finance Minister [50], para. 24; HCJ 104/87 Nevo v. National Labor Court [51], at p. 769, Mautner, at p.11)

 

The issue to be decided in these petitions has been brought before this Court time and again by petitioners who have ably served an entire public that has long lived with a harsh feeling of inequality, as far as it touches on bearing the burden of military service. In addressing this issue the Court has conducted itself with caution in awareness of the social sensitivity involved therein, and by reason of the caution, responsibility and humility which should always guide the Court in exercising judicial review over the other governmental authorities, and in the case at hand, over the Legislature. However, the time for decision has arrived, and for the reasons explained so well by my colleague the President, and by reason of the insights set forth above, which I acquired during the years in which proceedings on these matters were conducted before us, I add my opinion to that of the President and to the result that she arrived at, according to which the Deferment Law cannot be extended again in its present format, and a new arrangement must be formulated, which it is not for us to determine, and which ensures the intended objectives of the law in a more effective and more proportionate manner.

 

Justice

Justice N. Hendel

 

1.         It might be asked: How does the Supreme Court’s examination of the constitutional petition differ from the examination of the efficiency or non-efficiency of the Law forming the subject of the petition (the Law or the Tal Law)(see: interim decision of 8 August 2009, given in the wake of the granting of order nisi, para. 9 in the opinion of my colleague, Justice Hayut). The thrust of the question: Why is the “result test” so crucial to this Court’s decision of whether the Tal Law should be voided or not. The examination of the Tal Law should not, primarily, be an examination de jure but rather de facto, having regard inter alia for its success on the ground. It seems that this latter point is the crux of the dispute between the opinion of the President and the opinion of my colleague Justice E. Arbel. In explaining why the result test is proper and correct in this case I will briefly present the relevant background.

            The subject of the deferment of military service – to the extent of actually granting a complete exemption – to yeshiva students who declare that “their Torah is their calling” has been litigated before us on a number of occasions. The current variation of the exemption, in the form of the Tal Law, is now being heard for the second time in this file (see Movement for Quality of Government v. Knesset [2] (hereinafter – Movement for Quality of Government case). The procedural variation of the petition concerning the Tal Law establishes the boundary for a decision on the matter.

            The Tal Law infringes the right to quality in a manner that violates the Basic Law: Human Dignity and Liberty. Not every infringement of equality amounts to a violation of the aforementioned law. However the infringement caused by the legislative arrangement for the deferment of military service to the extent of granting an exemption touches at the heart of human dignity and perhaps even more so to liberty. Its import is that a youth of 18 years old who satisfies the criteria of “Torah is his Calling” is permitted to choose whether to serve in military service, while his contemporary of the same age is obligated to serve for three years during an important period in his life, while being liable to endanger his mind and body. The exemption applies to a group of significant dimensions – currently one out of every seven young men – (from the last conscription yearbook, which was examined and submitted to us). This constitutes sweeping and severe discrimination that is not based on any relevant difference that might be able to justify the distinction. Two conclusions derive from this: The first is that the Law violates equality under Basic Law: Human Dignity and Liberty. The second is that the nature of the direct violation and the sacrifice demanded of the individual – a young man of 18 who is obligated to enlist into military service – rules out the possibility of ignoring it purely because the victim is included in the majority group. In other words: Why should a young man of 18, – only yesterday a minor and having just entered the gates of adulthood – having been conscripted with no possibility of choosing, be required to shoulder the “burden of the status” of the majority. As such, I see no reason in this case to discuss the question of the extent to which the majority is entitled to discriminate against itself. This being the position, there is likewise no need to address the difficulties in defining terms such as “majority” and “minority” when the society and the government are not divided up in a binary sense (see and compare: Justice A. Grunis’ opinion in Movement for Quality of Government [2], at p, 803, opposite letter G, until p. 804 opposite letter B, in relation to a law that discriminates against women).

Along with the above, in the Movement for Quality of Government case it was held that the arrangement in the Tal Law was based on a number of purposes – that is to say that its purpose was not just to achieve greater equality. This approach is rooted in the recognition of reality, the history of the enlistment of the hareidi public into military service, the lack of wisdom in a change that would be revolutionary as opposed to evolutionary, and the advantage of a consensual solution in this kind of matter, as opposed to a coerced solution. The Tal Law was thus to be assessed in terms of its ability to achieve four objectives: to anchor in legislation an arrangement for the deferment of service for yeshiva students in “recognition of the uniqueness of the hareidi society and its culture, and the value of Torah studies (para. 55 of the opinion of President A. Barak in Movement for Quality of Government [2] which refers to the report of the Tal Commission); to generate greater equality in the bearing of the burden of military service in Israeli society; to integrate the hareidi public into the work force; to bring create a graded solution that has consideration for the difficulties of the arrangement for the deferment of military service of yeshiva students, based on broad consensus. It was held that these objectives are appropriate when examined through the prism of Basic Law: Human Dignity and Liberty, in other words, that they are consistent with the values of the State of Israel as a Jewish and democratic state. (Movement for Quality of Government case [2], at pp. 700).

            The Tal Law therefore recognizes the existence of a constitutionally based violation of the principle of equality but justifies it by the attainment of four objectives that have consideration for the complexity of the problem and for a certain degree of multiculturalism in relation to the sociological group of the hareidi public (Menachem Mautner, Law and Culture 246-247 (5768-2008)). Having such consideration is all the more justified in a state whose Basic Law defines it as being Jewish and democratic. However, it must be stressed that an important and central objective of the Law is the promotion of a change in the direction of reduction of the violation of equality. The decision in the Movement for Quality of Government case effectively rejected the demand for equality now, and was prepared to accept a change that was gradual, but meaningful. The importance attaching to the objective of narrowing the discrepancy in the allocation of the burden of military service stems from the nature of the constitutional violation, embedded in the Law itself – inequality. Accordingly, in the framework of the constitutional examination of the Tal Law significance attaches to its success in reducing the aforementioned gap, as attested by the result test. An additional practical consideration must also be added here – namely, that our current concern is with a law following the passage of a ten year period, which enables an examination of the law’s results, not as an evaluation that anticipates the future, but rather by means of examining the facts on the ground. In the Movement for Quality of Government case this Court postponed its decision, in its awareness of the objectives of the Law, which demanded an examination of the situation over a period of time. It is for this reason that I cannot concur with my colleague Justice E. Arbel in relation to the numerical data that were presented by the respondents. It seems to me that in order to examine her forecast on the basis of the statistics mentioned in her opinion, we would have to wait a number of additional years, etc, and I see no justification for doing so. The decade which has passed since the Law’s enactment suffices to present a picture. An additional reservation is that while there may have been a certain increase in the number of those enlisting from the ranks of the hareidi public, given the increase in the number of hareidi men in the annual pool of those designated for military service, the overall result is not an improvement but quite the opposite.

            From this perspective I cannot but agree with the result reached by the President. There is no point in revisiting her comprehensive and thorough review. Suffice it to say that according to the data presented to us our concern is with isolated percentages of yeshiva students who enlist to the military service (see paras. 10 and 31 of the President). Nor do they demonstrate the achievement of the objective of increasing the participation of the hareidi public in the work market. Notwithstanding the good will of those who labored over the task of enacting the Law, its failure in terms of results is not a borderline one, but significant. This failure is not necessarily the result of the arrangement forming the basis of the Law, but rather may stem from the willingness of those concerned to tread the path it paved. The choice or more precisely, “the surplus of choice” granted to the yeshiva students in the structure of the Tal Law thus became its stumbling block.

            If indeed the Law failed in its implementation or by reason of the gap between its intentions and its results, it is appropriate to devote our attention to its landscape, to go to the roots of the matter, and to illuminate a number of points that may not have been sufficiently clear.

2.         The study of Torah is the crown of the commandments. “The study of Torah is equal to all of them” (Talmud Bavli, Tractate Shabbat 127a) “The commandment to study Torah is greater than all of the other commandments” (Shulkan Arukh, Hoshen Mishpat 247:18). The greatness of the commandments derives from the fact that the Torah is the source of the law, but it does not there. In the Talmudic period “the question was asked…which is greater – the learning of Torah or its performance? Rabbi Tarfon answered: the performance is greater. Rabbi Akiva said: the study. And they conclude: "Learning is greater – only because it leads to performance” (Talmud Bavli, Tractate Kiddushin 40b). The harmony is clear, but so is the tension. The commandment of Torah study has primacy precisely because it leads to action. Nonetheless, the study of Torah is important not only for practical reasons, in both senses. From the perspective of the halakhah, “The Torah is the word of God. Accordingly my contact with Torah is indirectly a contact with the Holy One Blessed be He….this is the source of that special feeling of elation in the study of Torah. This unique feeling nurtures, sustains and shapes my entire involvement in Torah. It leaves its imprint on my entire world” (H. Sabato In Quest of Your Presence – Conversations with Rabbi Aharon Lichtenstein 18-19 (2011)). It should also be stressed that the study of Torah is not just a religious experience with the Creator the World, but also a significant historical and cultural tier, and a national asset of the first degree. The words of Ahad Ha’Am are appropriate in this context: “It may be said without any exaggeration, that more than Jews have kept Shabbat, Shabbat has kept the Jews; and if not for it, which restored their souls and renewed their spirits every week, the hardships of the week would have drawn them further and further down, until they reached the very lowest level of materialism, and moral and intellectual wretchedness” (Asher Tzvi Ginzberg “The Sabbath and Zionism” HaShiloah3 (6) 5658-1898). And if the question be asked – why the Shabbat: the answer would be – from the story of the creation in the book of Genesis and the laws of Shabbat appearing in the book of Exodus and the Babylonian and Jerusalem Talmud, in Tractate Shabbat. From this we can learn: More than Israel guarded the commandment of the studying Torah, this commandment guarded them.

Let us not forget that Jewish law is not one-dimensional. The commandment to study Torah is certainly not an only child0. The world is not only built on Torah but also on kindness (see Ethics of Fathers1:2). In the words of Rabbi A. Lichtenstein, the head of the Gush Etzion Yeshiva, to the Tal Commission “The involvement in Torah is supplemented by the value of acts of loving kindness, and the most demanding act of loving kindness is military service” (The Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students – Report of the Commission 51 (2000). The demanding nature of military service is expressed not only in the endangering of the body of the soldier but also in the exposure of his soul to the unnatural occupation of combat with all that is implied thereby. This is part of the soldier’s devotion. The halakhah is aware of the difficulties attendant to fulfilling the commandment of fighting, and despite the heavy price a person is liable to pay, it is still a commandment (see letter of Rabbi Joseph Dov Soleveitchik further on). The “Great Eagle” Maimonides spread his wings over the Laws of War and stipulated that one of the situations included in the category of obligatory war is “to assist Israel from an enemy which attacks them (in the words of Maimonides, Hil. Melahim 5:1); see also Sefer Hazon Ish: Orah Haim, Moed, Erubin, Likutim, Halakhah 1, p. 166). The I.D.F. – Israel Defense Force – by its very essence fits into the halakhic definition, and who bears the burden of serving in an obligatory war? The Mishnah rules: “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle] (Talmud Bavli, Tractate Sotah 8:7, Maimonides, Mishneh Torah, ibid., hal. 4). Rabbi Y, of Karelin wrote regarding this Mishnah: “And this means that in an obligatory war all must go out, even the Torah scholars must interrupt their studies” (Keren Orah on Tractate Sotah). The author of the Arukh even learns this by force of a fortiori”Rabbi Judah said in the name of Rav “even a groom from his chamber and a bride from her wedding canopy – this means – and all the more so Torah scholars (Sefer HeArukh, “Energia [battle], of Rav Nathan b. Yehiel, who lived in the 11 century in Italy, based on the Babylonian Talmud, Tractate Sotah 10a, and see also Maharsha ad loc. ). The Hazon Ish clarified this point: “It appears that the Mishnaic ruling that in an obligatory war even the groom is commanded to leave his chamber does not relate to a situation in which they are needed in order to win the war, for it is clear that where it concerns a threat to life and the saving of the nation all are obligated, but even at a time in which there is only a need for a fixed number of soldiers, it was permitted to take a groom from his chamber, for those who are exempt from war have no special right during times of obligatory war. And this is similarly applicable to a discretionary war, they are not exempt unless the victory for Israel is not dependent upon them, in which the army has the numbers it requires without them. But if they are needed they must go to help their brothers” (Sefer Hazon Ish,ibid, p. 167).

In the absence of a Jewish state or Jewish government, the prevailing conception in the Middle Ages until the establishment of the State was that the laws of obligatory war in the form of protection of the Jewish people have no application.. Accordingly, the laws of war do not appear in the 4 parts of the Shukhan Arukh, which purported to establish the halakhah that was relevant in “this time”, i.e. in the period following the destruction of the Temple. On the other hand, the laws of war are set out in Arukh HaShulkhan HeAtid written by R. Yechiel Epstein, author of Arukh HaShulkhan, who lived in Russia in the 20^th century . Despite this, in the period between the 19 century and the beginning of the 20^th century Jews began to participate in wars waged in their host states. Rabbi David Zvi Hoffman, one of the prominent German rabbis, wrote after the First World War that one could not avoid military service the duration of which was “…a year, two years or three years…” just because of the desecration of the Sabbath, because “it is more than just the performance of a commandment for he who does so [avoids serving – translator] causes a discretion of the Divine Name if the matter becomes known (Responsa Melamed Leho’il, p. 1 s. 42).

Naturally, military service in foreign armies created halakhic problems. The following question provides an example: “Concerning young hareidi men who are about to be conscripted into the army, where they will be forced to break their hunger by forbidden foods… are they permitted to eat the forbidden foods immediately upon joining, or should they refrain from tasting anything until they are in danger, and upon reaching that situation are they obligated to make a blessing…?”(Resp. Ma’arkhei Lev, Yoreh Deah 43, of Rabbi Yehuda Leib Charleson, who was the chief rabbi of Serbia-Kishiven region during the period that preceded the Second World War). At the beginning of the 50’s of the previous century, rabbis in the U.S.A asked whether they should participate in the Korean War as army chaplains, given their fears that they would be forced (for example) to desecrate the Sabbath. Rabbi Joseph Soloveitchik ruled that they should enlist and elaborated with respect to even greater challenges: “The Halakhah, which displayed so much alertness to and understanding for all human weaknesses and frailties, has given much thought to the unique psychology of the warrior who, living in constant danger, loses the perspective of spiritual values and ethical norms…therefore, sought to rehabilitate the camp of the warriors and to raise it to a high level of morality and dignity. If the rabbis of today wish to continue this glorious tradition of giving their service where it is needed most, the military camp is the place” (Rabbi Joseph Dov HaLevi Soloveitchik, “"On Drafting Rabbis and Rabbinical Students for the U.S> Armed Forces Chaplaincy, Community, Covenant, and Commitment (ed. Nathaniel Helfgot, 2005) 23)

The Hafetz Haim, who lived in Poland about one hundred years ago, wrote a book called “Camp of Israel: The Laws and Conduct for Army People During their Period in the Army. In this unique work, a number of editions of which were printed, the rabbi addressed the laws of studying Torah in a military framework and compared the obstacle to studying Torah posed by the army to Joseph, who when imprisoned, reviewed the teaching of his father Jacob. He also discussed the laws of prayer in the army, stressing that one should not refrain from praying on a daily basis despite the numerous difficulties involved. From this historical perspective I confess that I felt the need to be grateful to the I.D.F that provides religious services such as military chaplains, religious quorums of ten (minyanim),kosher food, sensitivity to the observance of the Sabbath in non life-threatening situations, numerous classes in Torah for the hareidi Nahal, and the possibility of combining military service with the a yeshiva framework.

I have not written for sake of innovation, and my remarks above are well known to scholars of Torah. The question which presents itself however is what basis is there for opposition to military service in our time? It is well known that “During the War of Independence many young hareidi men joined the army that was fighting for independence….these pamphlets (the journal of the Agudat Yisrael Youth) abound with expressions of identification with the fighters and demonstrate the tremendous motivation that accompanied their military service” (Benjamin Brown – The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution 247 (5771-2011).            In other words, the principles and rules governing the commandment of participating in a defensive war are well known and settled among rabbinical authorities and Torah scholars. Indeed, can one ignore the fact that Abraham (Genesis, ch. 14), Moses (Exodus ch.17:8, Numbers ch. 3; ibid., ch. 31; Deuteronomy, ch. 2) Joshua (Joshua, ch. 12) and King David (2 Samuel, ch. 5:6-10); 1 Chronicles, ch. 11, 4-9) all conducted wars. The answer to the question is that the hareidi position today stems from a quasi temporary provision. The halakhah recognizes the notion of a temporary provision (see Talmud Bavli, Tractate Yebbamot 38a and Maimonides, Mishneh Torah, Hil. Sanhedrin 24:4) – a practical consideration stemming from a complex situation, with special needs.

The problem is that reality has changed. The overall number of yeshiva students who are deferring their service ranges at around 60,000 men. As mentioned, over the past few years, the ratio is one out of every seven young men at the age of the annual conscription pool. The forecast based on past experience is that this number will rise. To make matter more concrete: The estimation is that between the years 1968 – 1988 the number of yeshiva students whose Torah was their calling rose four fold, from 4700 to 18,400 and the percentage of yeshiva students from among the total population designated for military service doubled from 2.5% to 5.3% (State Comptroller, 39^th Annual Report (1989), 904, Menahem Hoftung, Israel, State Security versus the Rule of Law 245 (1991). The rate of those who deferred their service under the Law from the annual conscription pool of the total population, rose from 8.4% in 1998 to 14% in 2007 (Statement of Response of Respondents, of 30.12.2008). During the period of the establishment of the State, the group of those whose service had been deferred numbered 400 men only. Towards the end of his days, the first Prime Minister, Ben Gurion expressed the view that he had erred in granting the exemption to the yeshiva students, because he thought at the time that the aforementioned group of 400 students only would not survive and would certainly not thrive (Knesset Proceedings, 13 October 1958; according to a conversation with Rabbi Shlomo Riskin, the chief rabbi of the Efrat settlement, who visited David Ben-Gurion in S’de Boker at the beginning of the seventies; see also letter from David Ben-Gurion to Levi Eshkol, Prime Minister (12.9.1963), Ben –Gurion Archives).

The hareidi community must therefore come to terms with its numerical success and its implications – success and growth that many did not anticipate. This numerical datum in conjunction with the fact that the hareidi public constitutes a steadily growing percentage of the total Israeli population also structures the current reality. The halakhic temporary provision must take this into account. When the State was established the fear was that the Eternal Flame in the House of the Study would be extinguished. In the words of the Israeli Chief Rabbi in 1949 – Ben Zion Ouziel to David Ben-Gurion: “The Assembly of Rabbis has decided to express…its opposition to the conscription of the yeshiva students so that the Torah will not be forgotten from Israel” (Rabbi Ouziel, Mihmanei Ouziel pt. 5, Letters, Correspondences, Part 409, p. 691 (5767-2007)). Quite simply, this fear was particularly tangible in the wake of the Holocaust during which many of the yeshivas in Europe were destroyed. This is no longer the case. The transformation was already described a few decades ago by the Chief Rabbi of Nethanya, Rabbi David Shalush “…Jerusalem the capital of Israel is teeming with its sons, growing and bursting West, East, North and South with buildings of glory and honor. Tens of thousands of scholars of Torah and students are sitting and meditating on Torah, and the voice of Torah and prayer pierces from the walls of the synagogues and houses of study in Jerusalem, as well as in many other cities (Resp Hemdat Genuza, Question 21, p. 233, pt. 8). The renewed building may be viewed as the first stage in the fulfillment of the verse “then I will send rain on your land in its season (Deuteronomy 11:14). In the scriptural context matar means bouteous rains in the land of Israel (Deuteronomy, ch. 28:12, ibid., ch. 28:24 Isaiah, ch. 30:23). At the same time, it is clear that the numerical change is also significant in terms of military conscription. A group as large as that, were it to be conscripted into the army would certainly be able to contribute to state security and even to bring about a more equal division of the burden. This is not just an academic point but a concrete fact. It is all the more true when an enormous increase is expected in the numbers of yeshiva students.

The irony is that there is now a state law that was enacted as a temporary provision that was temporarily extended for a period of five additional years in the Knesset Decision of 2007 (s. 16 of the Law), existing side by side with the approach of the haredi rabbinical authorities, which also concerns a quasi temporary provision, in the halakhic sense. Naturally, this Court does not rule in matters of halakhah and is not supposed to replace the discretion of the Knesset. These matters are presented here for the purpose of giving the full relevant picture. As ruled in the Movement for Quality of Government case, and clarified above, this Court recognized the propriety of the four objectives of the Law: to anchor the deferment of service arrangement in law, having recognition for the national importance of the yeshiva students; reducing the gaps of inequality; integrating the yeshiva students into the work market; creating a gradual consensual arrangement. Finding an appropriate solution to the problem is an exceedingly difficult task. As mentioned, my view is that the Law is not constitutional by reason of its being disproportionate in accordance with the first subtest, regarding the actual rational connection between the means adopted by the Law and its results. In the event that the arrangement fails to achieve the intended purpose, which establishes the proportionality of the Law – and in the present case the failure is unequivocal – then we are left with the grave violation of equality, and nothing else. In this case, the omission in the rational connection or in the conformity between the purpose and the means is not an omission in the regular sense. In other words, our concern is with an examination of the facts and the life experience of the Law for the length of the past decade, and not with a preliminary evaluation of the Law, including its logic. The constitutional defect lies in the lack of a connection in reality between the goals and the purpose.

The practical meaning of this at this time is that the Law cannot be extended. This result leaves a legal vacuum and a challenge for the Legislature. The need has arisen for the enactment of the new law that complies with the requirements of Basic Law: Human Dignity and Liberty. This is not the task of the Court. Our task is to identify when the statutory arrangement is not constitutional. The experiment of the Tal Law did not succeed in the test of results that it established. The possibilities for a new arrangement are many and varied. To reach an arrangement that is appropriate on a constitutional level will require creativity, good will, and sincere and genuine willingness on the part of all the parties to waive and compromise.

3.         Before closing, the subject of the compulsory conscription in defense service should be placed in the appropriate value-based context. To do so, the field of philosophy of logic may be of assistance. The philosopher David Hume, who lived in Scotland in the 17^th century taught us that there are two forms of reasoning: deductive reasoning and inductive reasoning. An example of the first form (deductive reasoning) is that if A is bigger than B, and B is bigger than C, then A must be bigger than C. This is a logical conclusion that may be regarded as a fact, subject to the assumptions presented. An example of the second form (inductive reasoning) is that if the sun rose yesterday and the day before, and in fact for the entire period of human memory, then it may be concluded that it will also rise tomorrow. This conclusion is based on our experience with the laws of nature, and is not a necessary fact from a logical perspective. See for example: David Hume, An Enquiry concerning Human Understanding (1748),

            The State of Israel has existed for 64 years. Since its establishment the sun has risen every day, and, notwithstanding the enormous difference, there has not been a single day without the occurrence of some security threat to the state and its citizens. While we welcome sunrise as part of the natural order and conclude that it will continue to shy away from the rays of the “sun” of the security threat, we try to interfere and to prevent its continuity, and we hope and take measures to ensure that what happened yesterday will not repeat itself tomorrow. This is also the approach of Jewish law. A defensive war is a positive commandment, while at the same time, peace remains the elevated ideal. As it is written “Great is peace for the entire Torah was given for their to be peace in the world, for its says (Proverbs 3:17) “Her ways are ways of pleasantness, and all her paths are peace” (Maimonides, Mishneh Torah, Hilkhot Hannukah, ch,4:14).

            We should cease occupying ourselves with war, including legal discussions concerning the duty of enlisting to the army, therein causing the elevated ideal of our sources to be forgotten. However, until we arrive at peace, the commandment of defending our state is one which has tremendous power to unify the people around it. Notwithstanding its ugliness it also teaches us that that which joints us is greater than what separate us.

 

“To illustrate the importance of the value of serving in the army, I will cite a story I heard from Dr. Feingold about the illustrious scholar, Rabbi Yitzchak Ze’ev Gustmann, of blessed memory, the last of the luminaries of Vilna, who was a members of the Beth Din of Haim Ozer Grodziensky, who experienced the terrors of the Holocaust and lost his only son. Years later he established a yeshiva in Rechavya, in Jerusalem. Among those who were close to Rabbi Gustmann was Professor Oman (Nobel Prize Laureate), whose son Shlomo Oman (may God avenge his blood), was a student of the Hesder yeshiva in Sha’alavim and was killed in the Peace for Galilee War. Upon hearing the news that Shlomo had been killed, Dr. Feingold came to take Rav Gustmann to the funeral. At the end of the funeral Rav Gustmann roamed around the freshly dug graves of the soldiers sighing and grieving for them, and had difficulty in leaving the graveyard. When they returned from the funeral he said “they are all holy”. One of the passengers travelling on the back seat asked him “All of them”? Even those who were not religious? Rabbi Gustmann turned around to the back seat and stated forcefully: “All of them ! All of them !”

When they came to Rechavya, Rabbi Gustmann turned around and said: “Dr. Feingold, perhaps we will go to Professor Oman to say something to him”….. and he turned to the widow, the parents, the brothers and the sisters and said: “My son Meirka was taken from my hands and thrown onto a truck in the kinderakzion…” And then the Rabbi straightened up and spread his hands out and said: “And now I will tell you what is happening in the World of Truth [the afterworld – ed.] My Meirka says to Shlomo “Be happy Shlomo that you were privileged. I was not privileged. I was not privileged to cast myself down in order to save the people of Israel. You were privileged! Professor Oman rose up from the ground and hugged Rabbi Gustman and said “You have comforted me, you have comforted me”.

 

When Dr. Feingold’s sons approached the age of conscription, he asked Rabbi Gustmann, who was admired by all of the great rabbis, even among hareidi circles: What does it say in the Torah of Moses: To go to the army or not? Rabbi Gustman replied: In the Torah of Moses our Teacher it says “Will your brothers go to war while you yourselves sit here?!” (This is what Moses our Teacher said to the sons of Reuven and Gad) (Rav Eliezer Melamed, Peninei Halakhah b’Inyanei Ha’am Ve-haaretz 85-86 (5765)).

 

These comments express an additional value-related aspect of the duty of conscription, which is that the service in the I.D.F is not only a duty but also a privilege.

4.         In conclusion, my view accords with the view of the President, that the Law for Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling (5762-2002) is not constitutional. Given the date upon which the validity of the Law is due to expire, this means that it will not be possible to extend it.

 

Justice

 

Justice A. Grunis

 

1.         Once again we are confronted with the subject of the non-enlistment of the haredi yeshiva students into the Israeli Defense Force. In my view, as opposed to the view of my colleagues, it would be preferable for the Court to altogether avoid addressing the subject and to leave it in the public arena, outside the courtroom. In my opinion given about six years ago in HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset [2], I explained by position according to which there is no justification for applying judicial review in this case, to a law of the Knesset. The reason is that the relevant law – Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law (5762-2002) – is a law in which the majority granted an extra privilege to the minority. As I wrote at the time “When a majority acts by democratic means and adopts a law which confers preference to a minority, the court should not become the patron of the majority (para.1 of my opinion in HCJ 6427 [2]);

2.         In accordance with the result of the majority position in this proceeding (President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer and Justice N. Hendel), the Law will remain in effect until its last day 1 August 2012 and it will not be possible to extend it again. By reason of this decision, the Knesset has two possibilities: The first – not to adopt another law to replace the law that expired; the second – to adopt a new law that will attempt to provide a between answer to the problems and defects which were pointed out by the majority justices.

            Should the first possibility be adopted, namely that the Knesset avoids the adoption of a new law on this subject, theoretically it would mean that the young haredi men, who do not currently enlist into the army, would be obliged to enlist, as do the members of the majority. It seems to me that there are very few people in the State (and perhaps even that is an exaggeration) who believe that there is an expectation of a mass enlistment of the members of hareidi yeshivas into the I.D.F. In the event that no new law was adopted, and a petition was filed in which the Government, including the Minister of Defense, was requested to force the enlistment – would a judgment that accepted the petition actually lead to the desired enlistment ?! I think that the answer self-evident.

            The other possibility, which seems more realistic than the previous one, is that in the wake of the judgment, the Knesset would adopt a new law that would attempt to rectify, to an extent, the defects of the current law. It may already be presumed that this law would not satisfy the demands of certain elements of the majority (comprising secular tradition and religious Jews who enlist in the army). As such there is no doubt that in the future another petition would be filed, consisting of the objections to the new law. This Court’s repeated involvement in the subject of the enlistment of haredi men without any substantial progress on the matter, certainly does nothing to enhance the stature of this Court. It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager.

3.         Summing up, there is no justification for the intervention of the High Court of Justice in this case. The reason for this is that our concern is with a decision of the majority in the State (as per Knesset representation)       to enact a law that gives an extra privilege – not to enlist into the army – to a minority. Where it concerns a right of this nature, which does not involve a violation of the democratic mechanisms, or harm to individuals, in their capacity as individuals, or harm to a minority group – there is no justification for judicial review. And what’s more – the contribution of the Court to changing the social conduct of an entire sector of the Israeli population is particularly limited, and does not justify the interference of the Court in the matter.

4.         Were my opinion to be heard we would deny the petitions.

 

Justice

 

Vice President E. Rivlin

 

I concur in the view of my colleague, Justice A. Grunis that it is doubtful whether there should be a litigation of subject currently concerning us. My reason is that the subject of the enlistment (or non-enlistment) of students in the haredi yeshivas is first and foremost a complex social issue, the solution to which is evolutionary. It has already been held in HCJ 6427/02 [2] that “The change recommended by the Tal Commission, and which the Knesset sought to realize is a gradual social change based on consensus…The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple. In the first place it was enacted as a temporary provision….all of this compels us to wait with out conclusions. Those implementing the Law should be permitted to fix what they broke. Israeli society in general and specifically the haredi society must be allowed to internalize the arrangements of the Law and the methods by which its provisions are to be realized”. At that time the Court reached the conclusion that “in the event of there being no substantive change in the results of the implementation of the Law, there will be room to consider its declaration as being void”. Like my colleague, Justice E. Arbel I think that notwithstanding the passage of time since decision that was given in HCJ 6427/02 [2], we have still not reached the end of the road, and that it would not be proper at this stage to decide the fate of the petition. As such, I concur with the position of Justice E. Arbel, and the respondents should be given until the month of July 2012 to file an update regarding the rate of progress of the proceedings and the measures that are being adopted by Executive to implement the objectives of the Law.

            As noted by my colleague the President D. Beinisch, it would seem that the Deferment Law has yet to fulfill the many hopes pinned on it. Today, this conclusion is also shared by various political bodies, so that presumably, the result proposed by my colleague the President, which reflects the position of the majority justices in the panel, is also consistent with the emerging political practice. It may be hoped that the legislative body, when conducting its substantive examination of the Law’s provisions, will exploit the time remaining for a meticulous examination and that having regard for the comments of the Court, in this judgment and in the previous judgments dealing with the subject, it will succeed in the determination of a new arrangement, which is constitutional and which arranges the subject in its entirety.

            In view of which I concur with the position of my colleague, Justice E. Arbel, in accordance which the petitions should be left pending, and the respondents should be be ordered to file, in the month of July 2012, an updating notification concerning the rate of progress of the proceedings and the means that are being taken by the Executive to implement the objectives of the Law.

 

Vice President

 

It was decided by the majority opinion – President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer, and Justice N. Hendel to grant the petitions and to make the order nisi absolute in the sense that the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002, in its present form will not be extended and its effect shall expire on 1 August 2012, against the dissenting view of the Vice President, E. Rivlin, and Justice E.Arbel who opined that the petitions should be left pending the receiving of updating notifications regarding the future implementation of the Law; and as against the dissenting opinion of Justice A. Grunis who opined that the petitions should be denied.

 

Handed down today, 28 Shevat 5772 (21 February 2012)

 

 

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