Competent authority

In the Supreme Court sitting as the High Court of Justice

 

HCJ 5870/14

 

Before:                                    The Honorable Deputy President E. Rubinstein

                                    The Honorable Justice E. Hayut

                                    The Honorable Justice U. Vogelman

           

 

The Petitioner:

 

Hashavim H.P.S. Business Information Ltd.

 

                                    versus

 

The Respondent:

 

                                    The Courts’ Administration

                                   

                                    A petition for Order Nisi

 

Date of session:           11 Av 5775; July 27, 2015

 

Adv. Ofer Larish, Adv. Sivan Neumark Zuriel

                                    On behalf of the Petitioner

 

                                    Adv. Avi Milikovski

                                    On behalf of the Respondent

 

Adv. Avner Pinchuk

                                    On behalf of the Association for Civil Rights in Israel

 

Adv. Assaf Pink

                                    On behalf of the Association for Digital Rights in Israel

 

 

 

Judgment

Deputy President E. Rubinstein

 

1. This is a Petition challenging the decision by the Courts’ Administration (hereinafter: the Respondent), which requires signing a “Letter of Commitment” in order to gain access to its database of judgments and decisions. The “Letter of Commitment” includes, among others, a prohibition against indexing the information in a manner that would allow finding it on internet search engines such as Google and Bing. 

 

Background and Prior Proceedings

 

2. The Petitioner is a commercial company, whose primary business is operating internet websites which provide the public with information for a fee. The relevant websites for our purposes are “Takdin” and “Takdin Light” (how nice it would be had “Light” would have been given a Hebrew term) where judgments and other decisions (hereinafter, for the sake of convenience: judgments) of various courts may be found. The two websites contain a similarly database of judgments which are “pulled” from the Respondent’s judgments database, but are distinguishable by the business model upon which they rely.

Access to Takdin is conditioned upon a subscription fee of about NIS 2,000 a year, whereas Takdin Light allows the purchase of a digital copy of a single judgment for NIS 26. Even prior to the purchase and without commitment, any person may use Takdin Light in order to locate a particular judgment and read its first 2,500 characters. The different business models led the Petitioner to decide to permit the indexing of Takdin Light, as opposed to Takdin. Indexing is a process that enables finding the website, or parts of it, through web search engines. In other words, when we search through a web search engine a name of person mentioned in a judgment, we will receive as a result a hit that refers to the judgment in Takdin Light, but not a hit that refers to Takdin. It should be noted that according to the Petitioner, 94% of the visitors to Takdin Light arrive at the site through the web search engines. A person whose name appears in the judgment published on Takdin Light may approach the Petitioner and the latter would immediately remove the document from the free site. However, for several weeks later the judgment will still appear as a hit on web search engines. The Petitioner offers quick removal from the web search engines as well for a fee of NIS 50, which is intended – according to the Petitioner – to cover its costs of reaching out to the web search engines.

 

3. On April 28, 2008 the Petitioner signed, per the Respondent’s demand, a letter of commitment whereby it obligated to post only documents that may be published subject to any law, and to not bring any civil claims against the courts’ administration should it be sued by any third parties as a result of publishing the information. On January 15, 2013 the Respondent reached out the Petitioner and required, in order to continue the Petitioner’s access to the judgments database run by the court’s administration, the signing of an updated letter of commitment. Section 10 of the updated Letter of Commitment states that “I am aware that granting access to the information in my possession through open web search engines, such as the ‘Google’ web engine and others, may in itself constitute violation of privacy or constitute an unlawful publication, and thus I commit to take all necessary steps in order to prevent indexation of decisions and judgments passed through it in these web search engines.”

 

4. Following the letter, two meetings between the Petitioner’s representative and the legal counsels of the courts’ administration and the Ministry of Justice’s Information and Technology Authority (hereinafter: ITA), which ended with the Petitioner being requested to submit technical information as to its activity. The information was provided by the Petitioner on May 16, 2013. On November 5, 2013 the Respondent notified the Petitioner that to the extent that it does not prevent indexation of the information it “pulls” from the Courts’ Administration’ judgments database, its access to the database would be blocked beginning on January 1, 2014. The Petitioner was granted a period of 14 days to submit its written objection. At the Petitioner’s request, it was given an additional 21 days to submit its written response, which it submitted on December 17, 2013. On January 28, 2014 a meeting was held in the Respondent’s offices, during which the Petitioner was given the opportunity to supplement its arguments orally. On June 15, 2014 the Respondent notified the Petitioner that in the absence of signing the updated Letter of Commitment, access to the Courts’ Administration judgments databases would be blocked. On August 18, 2014, after several delays from the Respondents and several requests by the Petitioner to receive reasons for the decision, an email was sent from the Courts’ Administration, which said that a company that fails to sign the updated Letter of Commitment by September 8, 2014 would be disconnected from the judgments database. An explanatory letter from the Respondent’s legal counsel was attached to the email. It should be noted that the opinion by the ITA, which served the Respondent in making its decision, was not provided to the Petitioner, despite its request for it. On September 1, 2014 this petition was submitted against the Respondent. The Respondent’s attorney has consented to delay the effect of the decision dated August 18, 2014 until our decision in this petition. In the absence of a written response by the State Attorneys Organization, for organizational steps, it was agreed during a hearing from March 4, 2015 that the hearing be postponed and that postponed hearing be conducted as if an order nisi had been granted. We shall further note, that a class action suit submitted against the Petitioner is pending in the Tel Aviv Yaffo District Court (before Deputy President I. Inbar) in Class Action 34134-01-12. The suit was filed by people who claim that their privacy was violated due to the publication of their names on the website. Under the decision of the District Court from June 16, 2015, the adjudication of that case will continue after a decision is handed down in the petition before us here.

 

The Petitioner’s Claims

5. The Petitioner’s arguments attack the decision by the Respondent on three levels – the authority to make the decision, the procedure by which it was made, and the discretion at its base. We shall begin with the arguments regarding the issue of authority. According to the Petitioner, the point of departure in this regard is section 70 of the Courts Law [Consolidated Version], 5744-1984 (hereinafter: “The Courts Law”), which sets publishing of judgments as a rule and confidentiality as the exception. To the Petitioner, diverging from this rule requires explicit legislative authorization. The lack of the authorization is particular serious, so it was argued, because we are concerned with primary legislation that infringes both the principle of a public hearing and the rights of the Petitioner – the right to free occupation, the right to property and the principle of equality. According the Petitioner, the decision was made by the Courts’ Manager, who is not authorized to do so. It was maintained that the Courts’ Manager fills a managerial role that is not necessarily held by a judge, and whose responsibility is limited to executing administrative arrangements set by the Minster of Justice under section 82 of the Courts Law. Therefore, establishing substantive arrangements as to the publication of judgments – such as the decision dated August 18, 2014 – is not within the Courts’ Manager’s authority. It was also argued that the authority over this issue was granted explicitly to the Minister of Justice in section 83(a)(2) of the Courts Law, which stipulates that “the Minister of Justice may enact in regulations – […] publishing courts’ judgments.” According to the Petitioner, there are several substantive matters that the Minister of Justice explicitly delegates to the Courts’ Managers, such as hearing cases during recess, but the issue at hand is not one of them. The Petitioner reminds us that the Minister of Justice appointed a committee, headed by retired Supreme Court Justice Professor I. Englard, for the examination of matters relating to publishing identifying details in courts’ judgments and decisions (hereinafter: Justice Englard Committee), and this still sits in consideration. The appointment of the committee indicates, according to the Petitioner, that the Minister of Justice did not intend to delegate the authority to regulate this issue to the Courts’ Manager.

 

6. As to the procedure by which the decision was made, it was argued this was made with a number of flaws. First, the Petitioner maintains that the non-disclosure of the ITA opinion, despite its request, infringes upon its right to make arguments as part of a proper administrative due process. It was additionally argued that the fact that the Respondent did not change its position as a result of the hearing process indicates that the hearing was a matter of mere formality, in a manner that does not substantively uphold the right to make arguments. Finally, that Petitioner maintains that the reasons given by the Respondent does not address the arguments raised during the hearing, and does not present the factual foundation upon which the decision relied. Therefore, it was argued that the Respondent did not meet – substantively – the duty imposed on any administrative authority to give reasons.

 

7. On the discretion level, the Petitioner has several arguments. First, it claimed that the decision was made for an unworthy purpose. This is so because the general public, as opposed to individual people, has no right to privacy. One’s right to privacy is considered by the court upon the submission of a motion to make a case confidential and there is no place – according to the Petitioner – to provide additional protection to the general public, at the expense of other values such as a public hearing. It was secondly argued, that the current state of the law grants paramount status to the principle of a public hearing, which prevails the right to privacy. To substantiate this claim, the Petitioner refers us to several sources of law, including relevant sections of the Defamation Law, 5725- 1965. Thirdly, it was maintained that the decision by the Respondent violates the principle of equality because the meaning of the decision is limiting the access to judgments only to professional jurists, rather than the general public. In the Petitioner’s approach, this harms the group of unrepresented adjudicating parties who rely on themselves for legal representation. Fourth, it was argued that the decision is an infringement of the Petitioner’s freedom of occupation, as the operation of Takdin Light constitutes a significant portion of its income. As noted above, the Petitioner claims that 94% of visitors of Takdin Light reach the site through web search engines. In light of all of the above, the Petitioner maintains that the Respondent must select a less restrictive mean, such as instructing the courts to reduce the publication of personal details which are not necessary for the decision.

 

The Respondent’s Arguments

8. According to the Respondent, the principle of a public hearing does not require making court judgments accessible through web search engines, and in any event limiting their indexing requires no explicit legislative authorization. The Respondent additionally notes that certain restrictions on using the Courts’ Administration judgments database were already included in the Letter of Commitment from 2008, as to which the Petitioner makes not claim of lack of authority. It was also argued that the Respondent is subject to the Privacy Protection Law, 5741-1981 by virtue of it being an “administrator of a database” as defined by section 7 of that Law.

 

9. As for the process of making the decision, the Respondent argues there was no flaw to it. The Petitioner was granted the right to make arguments both in writing and orally, given several extensions, and it was agreed to postpone the date the decision would come into effect. The Respondent claims that an administrative authority is under no duty to accept the arguments raised at a hearing and thus the lack in a change in its position does not reveal any flaw in the hearing process. Additionally, the Respondent’s letter from August 18, 2014 includes detailed reasons that were the basis for the decision, so that the duty to give reasons was also flawless.

 

10. On the discretion level, the Respondent notes the harm caused to the privacy of litigating parties as a result of posting their names on web search engines – a harm that is distinguishable from the publishing of their names in “closed” legal databases such as Takdin, which are used primarily by jurists for professional needs. It was also noted that exposing the names of parties on web search engines creates a “chilling effect” that discourages people from turning to courts in a way that harms the right to access courts. The Respondent argues that this harm is primarily acute in labor courts, when employees who approach the courts fear that the publishing of their names may harm their chances of finding future job. It was therefore argued that reversing the Respondent’s decision is that which would infringe the right to access courts, not the other way around. In this context, we recall the Petitioner’s response claiming that it is unclear which factual data the Respondent’s arguments rely, as the number of those approaching courts increases each year. It was emphasized that preventing publication of judgments in the web search engines is not equivalent to a “gag order” because the judgments still appear in different internet websites in a manner that balances public hearing on one hand and the right to privacy on the other. It was also argued that the Respondent’s decision does not violate the principle of equality and that the argument was raised for financial motivations alone. As for the violation of free occupation, the Respondent noted that not every administrative decision with implications to a businesslike body can be considered a violation of free occupation. In this regard it was argued that to the extent there is a violation of free occupation, then this is proportional in light of the alternative violation of the privacy of litigating parties. The Respondent argues that it explored taking less restrictive measures “however this exploration has, at this time, yielded no results.” Finally, it was claimed that though the decision may not be optimal, this does not warrant legal intervention that is reserved only to decisions that are unreasonable.

 

The Positions of Those Seeking to be Joined as Amicus Curiae

11. In this case, two motions to be joined as amicus curiae were submitted. The first motion was submitted by the Association for Civil Rights (hereinafter: the Association), and the second by the Movement for Digital Rights (hereinafter: the Movement.) The two motions objected to granting the Petition, and these are their reasons: the Association’s motion describes how technological development brought upon a sharp change in the level of litigating parties’ exposure, though the legal rule remained as it was. This is still true while when the right to review judgments existed in the past, the infringement of privacy in times before the internet – a time when judgments were published in printed copies alone – was in effect highly limited (this is referred to as “practical obscurity”). Thus the Association argues that the new technological reality requires a shift from the binary approach of “private or public” to an approach of information accessibility. This approach considers not just the publishing of information but also the impact of publication. For example, the Association notes the report by the Committee for the Examination of Opening Israeli Courts to Electronic Communication, which mentioned the increased exposure of litigating parties as one of the considerations against direct broadcasting of court hearings. The Association also notes the “aggregation problem” whereby the accumulation of details of information – which each in itself raises no significant objection to its publishing – creates a real violation of privacy.

 

12. The Movement argues, that publishing judgments in “closed” databases such as Takdin fully realizes the right to review, while only somewhat infringing upon privacy right. On the other hand, publishing judgments in “open” databases such as Takdin Light – the judgments therein may be located through web search engines – equally satisfies the right to review but severely violates the right to privacy. As to the claim regarding a lack of authority, the Movement claims that the Respondent’s authority is established in regulation 5(b) of the Courts and Labor Courts Regulations (Review of Files), 5763-2003 (hereinafter: Files Review Regulations) which states that “in a general permit for review, the Courts’ Manager may set any condition or arrangement necessary for the balance between the need to review and the potential harm to litigating parties or to third parties due to the review…” The Movement maintains that the Petitioner’s argument regarding flaws in exercising the administrative discretion must be rejected. It claims that permitting indexation in the Takdin Light website causes severe harm to the privacy of litigating parties, and the possibility of removing the document from the website for a fee does not qualify the harm. It was additionally argued that the operation of the Takdin Light website is particularly egregious because the Petitioner takes active steps to make the website appear as one of the first hits presented by the web search engines. So, for purposes of illustration alone, searching the name “Shnikav” in Google’s search engine produces reference to Takdin Light’s site on the first results page, despite the fact that there is no judgment which addresses a person of that name. It was argued that the referral to the Takdin Light website is par for the course of the Petitioner’s active steps which may mislead a person seeing that there are judgments for that same Shnikav, should that person fail to click the link and realize the mistake. We shall note here that the latter argument is not directly related to the petition at hand, but is raises a weighty issue which we see fit to address below.

 

Discussion

13. In the hearing before us, the Petitioner’s attorney argued that though the Respondent does indeed have the authority to set technical limits for companies given access to the courts’ judgments database, but it is not within its authority to set substantive restrictions – which is the case before us. The importance of web search engines to the general public, who uses them as a nearly exclusive source for its legal knowledge, was emphasized. It was also emphasized that we are concerned with a matter of policy that necessitates an organized legislative process. Therefore, it was argued, the recommendations of the Justice Englard Committee must be made before making significant changes to the current situation. The Respondent’s attorney recognized that the demand to prevent the indexation prevents not just the ability to search litigants’ names, but also the ability to search “legitimate” legal terms such as “breach of contract in good faith”, but he claims that at this time it is technologically impossible to only partially prevent the process of indexation. The Respondent’s attorney further emphasized to us that the conclusion of the Justice Englard Committee’s work is yet unforeseeable and that it is necessary to take intermediate steps in order to prevent the harm currently caused to the privacy of litigating parties. The Association’s attorney stated that the state holds many databases, such as the land registry, the public’s full access to which via web search engines would cause a grave infringement to the public’s privacy, this despite the fact that even now it is possible to receive information from such databases through individual requests to the relevant bodies. The Movement’s attorney emphasized that the Petitioner’s conduct leads not only to over exposure of litigating parties, but also creates a misrepresentation whereby the name of a person appears in a judgment, even when reality is completely different (see paragraph 12, above). It was also argued, that the Respondent’s policy does not cause a real harm to the Petitioner, because the latter may become in possession of the judgments even were its access to the Respondent’s database to be blocked – this by copying the documents published on the Respondent’s website or by any other means.

 

Decision

14. The matter before us raises complex questions as to the intersection between law and technology and serves as an important reminder to us – judges – that the judgments we write while aspiring to accomplish justice may, by virtue of their publication, cause injustice to litigating parties (see my decision in CA 438/14, John Doe v. The Israeli Database for Car Insurance (February 6, 2014) (hereinafter: the Car Insurance Database case.) This case is a testament again, as other cases in our times, that the law lags behind technological progress and the legal problems it poses, it chases them but does not catch up. This is the case in areas of the internet and the virtual, and this is the case in matter of intellectual property and others (see Michal Agmon-Gonen, The Internet as a safe Harbor:  Legal Regularization In Light of the Technological Possibilities for Circumvention and the Global Nature of the Net, Law, Society and Culture – Legal Net: Law and Information Technology 433 (2011), Amal Jabarin, The Role of Law in Regulating the Internet through the Perspective of Economics Approach to Law, Kiryat HaMishpat 7, 233 (2008)). In the introduction to the book Intellectual Property: Interdisciplinary Reviews (eds.: Miryam Markovitz-Bitton and Lior Zemer (in print)) I had the opportunity to say: “the chase after technology and its tentacles is not unique to the world of intellectual property. It applies to many areas in the law, in particular is the connection between the great virtual world to criminal law, defamation and many others, and the issues that arise from each of these.” This case reveals a conflict between the freedom of information and the public’s right to know (including corporate information) and the right to privacy, which elicits “genetic sympathy”, based in values, in order to prevent as much as possible that one’s past follow them indefinitely, and the computer after all does not forget.

 

15. In this context, recall the judgment by the European Union Court of Justice which compelled Google to remove a link to a story that included details of an offence committed by a person many years prior (C-131/12, Google v. Agencia Espanola de Proteccion de Datos). Some have termed this the “right to be forgotten” (see Yehonatan Klinger, The Right to be forgotten? Apparently Not in Israel, in the blog Intellect or Insanity (February 2, 2015) http://2jk.org/praxis/?p=5368)). It should be noted that the “right to be forgotten,” as defined by the European decision, requires that the search engine examine individual requests to remove links, but the decision does not expand as to the considerations which must guide decisions regarding such requests. As a result, it is hard to say whether – according to the European Court – there is a “right to be forgotten” also from official and lawfully published case law. So far it seems that American law has not adopted the “right to be forgotten” (see the U.S  Court of Appeals for the Ninth Circuit in Garcia v. Google Inc., 786 F.3d 733, 745-46 (2015)). This comes from a long-standing general position of the superiority of free speech (see Steven Bennet, the “Right to be Forgotten”: Reconciling EU and US Perspectives, 30 Berkeley J of Int’l L. 161, 169 (2012)). In the Israeli context, we shall note that a certain aspect of this issue was regulated in the Criminal Registration Law, 5741-1981, which sets guidelines for running the criminal registration database – including the process of expunging (deleting registration) after 10 years have passed since the end of period of limitations on the conviction had elapsed (section 16 of the Law). The Law’s explanatory notes state that “the basic principle behind the proposal is that – aside from unusual matters – one should not be remembered by their wrongdoing for their entire lives and must be instead permitted to turn over a new leaf and that full rehabilitation and fully reintegration into society must be encourages.” (Bills 1514, 216; and see Nahum Rakover, The Status of an Offender who has Served His Sentence (5767-2007)).

 

16. Back to the matter before us, the issue raised is whether indeed the step taken by the Respondent meaningfully and effectively contributes to protecting the right to privacy, and whether this contribution justifies the accompanied harm caused to the principle of a public hearing. The decision in this case will follow these steps: first, we shall explore whether the Respondent’s decision was made within its authority. Then we shall explore the process of making this decision and whether it maintained rules of natural justice. Finally, we shall examine the administrative discretion at the basis of the decision and its reasonability.

 

Authority

17. The principle of administrative legality – which is the foundation for administrative law – instructs us that an administrative authority is limited in its action to the four walls it was granted by the legislature (HCJ 1/49, Bejerano v. The Minister of Police, IsrSC B 80 (1949) (hereinafter: the Bejerano case); HCJ 1405/14, Professor Salwin v. The Deputy General Director of the Ministry of Health (2014)). This is in contrast to a private citizen, who is free to do as she pleases so long that there is no law to limit her. In other words, the difference between the private and public entity is the premise as to the lawfulness of their actions. The administration requires individual permission, whereas the private citizen is free in the absence of a specific prohibition. Saying “From any tree of the garden you may eat freely; But from the tree of the knowledge of good and evil you shall not eat” (Genesis 2:16-17). The legislative authorization is not a mere technical legal requirement, but rather the administrative authority needs it in order to secure the public’s trust in its activity, which is funded by public resources (see Baruch Bracha, Administrative Law, vol. 1, 35 (5747-1986)). As said by the scholar Zamir: “The principle as to administrative legality is necessarily rooted in the actual nature of democracy. Democracy grants sovereignty to the people. The people is that who grants the government and any other administrative authority, through laws, all the authorities they hold and they hold but the authorities granted to them by law.” (Itzhak Zamir The Administrative Authority vol. A 50 (5756-1996) (hereinafter: Zamir). Moreover, in plain language free of legal jargon, an administrative authority’s exceeding of its authority holds totalitarian characteristics – law at one end and reality at the other. However, the administrative authority must not be paralyzed in its operation to the benefit of the many, and we shall return to this. As a general rule, that administration is granted the discretion as to whether and how to use the authorities granted to it, but there are instances where such discretion is particularly narrow, to the extent of imposing duties on the administration to exercise its authority (LCrimA 7861/03, The State of Israel v. The Local Council of the Lower Galilee, para. 16 of Deputy President Cheshin’s judgment (2006); Daphna Barak-Erez Administrative Law vol. A 216 (5770-2010) (hereinafter: Barak-Erez.))

 

18. Authorization for the actions of an administrative authority need not be found explicitly in primary legislation. Rather, secondary legislation may also be recognized as a source for authorization (Zamir, 131.) However, where the administrative action infringes basic rights – authorization sourced in secondary legislation is insufficient. This was mandated by the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty: “One is not to violate the rights accordance by this Basic Law save by means of a law…” (emphasis added – E.R.) This provision was expanded through case law to include basic rights enshrined in other statutes (EA 92/03, Mofaz v. Chairman of the Central Elections Committee, IsrSC 57 (3) 793, 811, para. 17 of then Justice Matza’s judgment (2003)). A similar rule applies also to “primary arrangements” which require – due to their importance – anchoring in primary rather than secondary legislation. In the words of President Barak:

“It is a basic rule of the public law in Israel that where a government activity is based in a regulation or an administrative instruction, it is appropriate that the general policy and principal standards that guide the basis of the action be sourced in primary legislation which permits the regulation or the administrative instruction. In more ‘technical’ terms, this basic rule means that ‘primary arrangements’ that set the general policy and the guiding principles must be established by Knesset legislation, whereas the regulations or the administrative instruction must set only ‘secondary arrangements.’” (HCJ 3267/97, Rubinstein v. The Minister of Defense, IsrSC 52(5) 481, 502, para. 19 of President Barak’s judgment (1998); see also Gidon Sapir, Primary Arrangements, Iyunei Mishpat 32(1) 5 (5770-2010)).

 

19. One of the issues that often lands on judges’ desks is the level of explicit required in an authorizing statute. That is – how specific must the statute be regarding of the administrative authority’s permissible activity. Recognition of implicit authority – authority that is not written explicitly into the language of the law – stems from common sense and life experience, which teach us that reality is infinitely more complex than the ability of a flesh and blood legislature to foresee in advance. Strict insistence over a high level of specificity may thus lead to debilitating the authorities of a public administration and to obstructing normal life. The words of scholar Margit Cohen are apt here:

“No legislative system, not even the most comprehensive one, can provide full responses to any possible situation, particularly when in a modern state, whose needs and conditions change rapidly. A lack of regulation may exist even when the system is still in the process of creation and coming together. Further, a system may be characterized by refraining from regulation through primary legislation, which is rotted in geranial parliamentary weakness or deliberate failure from addressing matters of great political sensitivity. When it is possible that the law does not regulate particular areas, the outcome of this must be examined in terms of the executive authority. One possibility may be avoiding action. However at the same time there is force to the argument that the government must act even in the absence of legal arrangements and that its power to do so results inherently from its nature and from its role.” (Margit Cohen, The General Authorities of The Executive Authority 8 (5763-2002)).

 

Recall here the decision by President Beinisch in HCJ 10203/03, The National Census v. The Attorney General, IsrSC 62(4) 715 (2008), where it was noted that the “level of specificity” must be determined according to the circumstances of the matter, including the “nature of the infringed right and the reasons behind it, the relative social importance of the right, the level of its infringement, its social consequences, the identity of the infringing authority and the context” (p. 82, see also Barak-Erez, 125). A mirror image of sorts to this holding was also established in HCJ 3933/11, Maccabi Health Services v. The Minister of Health, para. 35 of Justice Arbel’s judgment (2014), where it was held that a “level of specificity” must be low where it is necessary in order to authorize the administration authorities to protect basic rights. I will emphasize – as in other cases – common sense. It must be examined often whether the circumstances support strictness or a flexible approach, while inferring the intent of the legislature appropriately. The authority serves the public. Thus, to the extent that it is recognized that its authorities are exercised in good faith in order to provide service, the Court does not bar its actions. If, god forbid, it is clear that irrelevant considerations, arbitrariness, or lack of good faith taint the authority’s action, the approach would of course be different. The authority is not the master of the individual but rather its servant, as well as the servant of society as a whole, and balancing its authorities must carry that always, including when considering principled questions such as protecting one’s privacy and minimizing the harm as much as possible within the contours of the law.

 

20. And from the general to the specific. The Courts’ Administration is regulated constitutionally in Basic Law: the Judiciary and in the Courts Law (Consolidated Version) 5744-1984. Section 24(1) of Basic Law: The Judiciary lists “the regulations of the administration of the courts, the establishment of such regulations and the responsibility to execute them” among the matters for which “instruction shall be set by law.” Section 82 of the Courts Law states that “(a) the Minister of Justice shall set the administration regulations of the courts and shall appoint, with the consent of the President of the Supreme Court, the Courts’ Manager, whether a judge or not; (b) the Courts’ Manager shall be responsible to the Minister as to the execution of the administration regulations”; see HCJ 4703/14, Sharon v. The President of the Supreme Court (November 30, 2014), paragraphs 10-11. Among others, it was said in paragraph 11 there that “the Manager… is charged with the administrative operation of the system…” and that he has additional authorities, as listed there. Do such authorities cover our matter as well?

 

21. As recalled, the Respondent’s decision conditions continued access to its database upon barring the indexation of judgments found in the database. The practical meaning of this decision is that the Petitioner is barred from posting the pages of Takdin Light to web search engines and from attracting potential clients by doing so. The prevention of posting to web search engines may cause severe harm to the Petitioner’s business, as most of the visitors to its site arrive there through a “Google” search (it claims, as mentioned, that these are 94% of the visitors to Takdin Light, whose activity is responsible for about 20% of the Petitioner’s income.) It is clear that limiting the Petitioner’s ability to publish its services is a violation of the freedom of occupation itself (see HCJ 4000/93, Canval v. Israel Bar Association, para. 9 of President Barak’s judgment (1997)). The publication is an essential component in the chain of business activity, which of course includes many stages and cannot be reduced solely to the process of sale to end consumers. Harms to the chain of business activity – whether in the planning, production or marketing phases – may amount to a violation of the freedom of occupation. As a side note, I should point out that preventing commercial advertizing and publications may also constitute a violation of the freedom of speech, as said by Justice Dorner: “Commercial speech is not a step child to free expression, but it is among its organs” (HCJ 606/93, Kidum Entrepreneurship and Publishing Inc. v. The Broadcasting Authority, IsrSC 48(2) 1, 10 (1994)). It is true, that a violation of free commercial speech is less significant that harm to free political speech (HCJ 5118/95, Meir Simon Inc. v. the Second Authority for Television and Radio, IsrSC 49(5) 751 (1996); HCJ 15/96, Thermokir Horashim v. the Second Authority for Television and Radio, IsrSC 50(3) 397 (1996)), but this does not mean that commercial speech may be violated thoughtlessly. Therefore, before us is a not insignificant violation of the basic rights of a private body by a public body. Such violation requires authorization in primary legislation.

 

22. As was already previously written, the Respondent does not point to a specific source of authorization for the basis of its decision, but rather argues that as a general rule there is no need for authorization in law. This is because, arguably, the law does not mandate publishing judgments on web search engines. For our purposes here, and without setting anything in stone, I am willing to assume that indeed the Respondent is not obligated to publish the judgments on web search engines, and that it is possible – from the law’s perspective – to be satisfied with publication through other means. However, the mere fact that the Respondent is under no duty to publish the judgments on search engines does not mean, necessarily and inherently, that it is permitted to prevent this from private bodies. The status of the Respondent’s authority to publish judgments – whether it is permissible or obligatory – is irrelevant to the issue of its authority to prevent publication by private bodies. These are two distinct actions – publishing and preventing publishing – each of which seemingly requires statutory authorization. Another interpretation – whereby it is within the authority of an administrative authority to prevent activity which it is not statutorily obligated to commit on its own – does not fit common sense and means the emptying of the principle of legality, which mandates that the individual is free to do as she pleases in the absence of any other legislative provision. We thus find, that the Respondent is not exempt from presenting a statutory source to authorize its decision. As written, the Respondent’s decision to limit the Petitioner’s access to the judgments database violates its freedom of occupation – and this, without authorization in primary legislation, must not be permitted.

 

23. The Respondent argues that the Petitioner signed the letter of Commitment in 2008 demonstrates that it was within its authority to limit access to the database. Without causing offense, I believe this is an argument that is hard to accept. First, the letter of Commitment from 2008 is not similar to the current one. The first letter of Commitment is substantially limited and it primarily limits publications that are prohibited by any law. It seems that is not a meaningful limitation, as opposed to the current prohibition against indexation of judgments. In other words, it makes sense that conditioning access to the database was within the authority so long as the requirement was obeying the law, but not so when the requirement exceeds this. Second, and this is the main point, the Petitioner’s consent to signing a letter of Commitment is irrelevant to the question of authority. The authority requirement is not dispositive and the administrative authority may not exempt itself from it, even with the agreement of the parties. Recall, that one of the rationales at the foundation of the authority requirement is the people’s control, through its representatives, over the public administration. It is clear that the administration may not free itself from this control through the consent of one individual or another out of the general public. Appropriate here are the words of the scholar Shalev:

“Clearly, a contract that exceeds the lawful powers and authorities of the authority, as established by the authorizing law, is an unlawful contract that is therefore void. A contract may not expand the authority’s powers, or grant it authorities, or allow it to act outside of the bounds of its lawful authority. This is the distinction between the public administrative authority (aside from the state, whose powers and authorities are unlimited) and the individual: the authorities of the public authority and its capacity are restricted and thus her contracts as well require a statutory source.” (Gabriela Shalev Contracts and Tenders by the Public Authority 49 (1999); see also Barak-Erez, vol. 3 259.))

 

24. The Movement for Digital Rights wished to defend the Respondent, and to find the source of the authority for its decision in regulation 5(b) of the Files Review Regulations. This is the language of the section:

“(b) The Courts’ Manager may establish in a general permit for review any condition or arrangement that is necessary in order to balance the need for review and the harm that may be caused to litigating parties or a third party due to the review, including redacting of details, limiting the number of reviewers and taking steps to prevent the identification of parties or people. Additionally, the Courts’ Manager may refuse to give a general permit of review or establish conditions or arrangements for its implementation considering the necessary resource allocation.”

 

These words are well and good, but still – this is secondary legislation that cannot serve as a source of authority for violations of fundamental rights. As it was written above, administrative decisions that infringe upon basic rights – and such is the decision before us – must pass muster under the Limitations Clause, whose first element is authorization in primary legislation. Additionally, it is highly doubtful whether the Review Regulations are relevant to the matter here, because commercial companies that enter into contracts with the Courts’ Administration – such as the Petitioner – do not do so as a result of a general review permit. Rather this is a completely different procedure.

 

25. A different possibility that was presented was recognizing the Privacy Protection Law, 5741-1981 as a source behind the authority for the Respondent’s decision. According to this explanation, the Respondent is the “operator of a database” as defined by section 7 of this Law. Therefore, as revealed by the Respondent’s arguments, it is obligated to comply with section 8(b) of the Law: “No person shall use the information in a database that must be registered according to this section, but for the purpose for which the database was established.” This should be joined with section 17 of the Law whereby “an owner of a database, a holder of such database or the operator of a database, is each responsible for safeguarding the information in the database.” This is the root, it was argued, of the authority at the basis of the Respondent’s decision. I am afraid that this interpretation is not devoid of difficulties. The first difficulty is technical in its nature, and it concerns the question whether the Respondent operates a database for purposes of section 7 of the Law. If so – as the Petitioner’s attorney has noted – its judgments database is not registered in the register of databases. The second difficulty – and this is the main one – goes to the matter of the purpose of the Respondent’s database. On its face, and with no party claiming otherwise, the judgments database exists for the purposes of realizing de facto the principle of a public hearing. The Courts’ Administration collects the judgments, publishes them on its website and allows commercial websites direct access to them – all for the purposes of benefiting the public, so that “the wise may become wiser still” (Mishley, 9: 9). If so, does the indexation of judgments constitute a use that exceeds the purpose of which the database was established for? I believe that the answer is not in the affirmative. The indexation of the judgments constitutes in itself a “step up” in making legal material accessible to the general public, thus generally serving the purpose for which the database was established. Still, the “step up” in making judgments accessible creates a parallel increase in the violation of litigating parties’ privacy with the human sensitivities involved, and it is certainly possible that the administrative authorities must give thought to this and seek solutions (and of course this would naturally apply to the Justice Englard Committee) – however the administration must do all this only with permit and authority. This ends our discussion in the level of the authority, and a source for authorizing the Respondent’s decision – in its face, is nonexistent. Beyond the necessary scope, we shall continue our examination of the decision along the two other levels – the level of the procedure for making the decision and the level of the discretion upon which it relied.

 

Procedure

26. After discussing the authority requirement that derives from the principle of legality, we shall address the requirement for proper administrative due process. Strict adherence to administrative due process is essential, and there is no need to elaborate (see Barak-Erez 262-63): meeting the requirements for a due process protects the values of fairness and equality; improves the quality of the administrative decision; allows the public to influence the decision in a democratic manner; ensures public trust in governance and administration; allows effective review over the operations of the administration; and of no less importance – prevents corruption, the creation of appealing loopholes and a slippery slope in the style of countries and administrations to which we do not wish to resemble. The duty to hold an administrative due process includes, among others, holding a hearing for parties who may be affected by the decision (HCJ 598/77, Eliyahu Deri v. The Parole Board, IsrSC 32(3) 161 (1978); LCA 2327/11, John Doe v. John Doe, para. 22 of Justice Danziger’s decision (2011)), giving reasons for the decision made (HCJ 142/72, Shapira v. The Israel Bar Association, IsrSC 25(1) 325 (1971); Yoav Dotan, Administrative Authorities and Elected Bodies’ Duty to Give Reasons, Mechkarei Mishpat 19 5 (5762-2002) (hereinafter: Dotan)), and exposing internal documents that substantiated it (HCJ 5537/91, Efrati v. Ostfeld, IsrDC 46(3) 501, 513, para. 21 of then Judge Cheshin’s opinion (1992); AAA  4014/11, Eid v. Ministry of Interior, para. 28 of Justice Barak-Erez’s judgment (2014)).

 

27. In this context it seems that the Petitioner’s claims as to the administrative process touch on three aspects: the hearing, the reasoning and the disclosure of internal documents. I shall already note here that I do not believe the arguments ought to be accepted. We are not concerned with night time “grab”, but a serious and prolonged administrative process throughout which the Petitioner was permitted to express its opinion as to the decision, and indeed several extensions were provided for such purposes (see the email correspondence between the Respondent and the Petitioner on the dates of Nov. 18, 2013; Dec. 26, 2013 and July 1, 2014.) The hearing was provided both orally and in writing, with the Petitioner furnishing the Respondent with relevant information. Accepting the Petitioner’s argument whereby the fact that the Respondent did not change its mind during the hearing indicates that the hearing was conducted for appearances’ sake alone – would mean imposing a duty on administrative authorities to necessarily change their positions as a result of a hearing. This, of course, is unacceptable and it is hard to believe that the Petitioner itself holds this view.

 

28. As for the duty to give reasons, the Respondent noted in its letter from August 12, 2014, among others, that the rationale behind the decision was the desire “to protect the privacy of the litigating parties, private information about whom was exposed on the internet to any inquiring eyes” and that it “is permitted to put in place reasonable conditions to proportionately balance the principle of a public hearing and the interest in guarding the privacy of litigating parties before granting access to servers.” On its face, this is sufficient for meeting its administrative duty to give reasons for its decisions. Indeed, in a legal sense, in order to fulfill the duty to give reasons, there is no requirement that the reasons are lawful or based in law. See for this issue, the words of the scholar Y. Dotan:

“Even a decision whose reasons are completely wrong – is a reasoned decision. The flaw in the decision is a substantive flaw on the merits, but it is not a flaw to the procedural duty to give reasons. When the authority gave reasons – and even reasons that are completely wrong, the reasoning ‘played its part’ and it is now possible to subject the decision to review on the basis of the reasons given.” (Dotan, 50).

 

These things are presented for the completeness of the legal picture, but in simple terms, god help an authority whose reasons are wrong and god help a public the reasons of whose servants are wrong, because – in other words – they may not be performing their duties adequately.

 

29. And now – to the Respondent’s decision not to disclose the ITA opinion, upon which it relied its policy as to the indexation of judgments, to the Petitioner. As noted above, the representative of ITA refused to send to Petitioner the opinion (see the email from November 21, 2013.) Seemingly, there is no substantive reason not to disclose the legal opinion since it does not concern national security, confidential methods of action or protecting the privacy of a third party (Barak-Erez 506-508.) And still, and without setting things in stone, it should be noted that it is not impossible that the ITA opinion constitutes “internal consultation” for the purposes of section 9(b)(4) of the Freedom of Information Law 5758-1998, which exempts the administrative authority from providing such information (AAA 9135/03, The Council for Higher Education v. Ha’aretz Newspaper Publishing, IsrSC 60(4) 217 (2006)). It therefore appears that the issue is whether the Respondent met its administrative duty to permit the Petitioner to review documents that informed its decision (see HCJ 7805/00, Aloni v. The Jerusalem City Comptroller, IsrSC 57(4) 577, para. 18 of Justice Procaccia’s judgment (2003)). Let us note, that the Petitioner continued its long email correspondence with the Respondent without referencing the matter again, in a manner that may be understood as the Petitioner’s abandoning its request to review the opinion. We shall further note that the Respondent did properly give reasons for its decision (see paragraph 26, above.) As known, not every flaw in an administrative decision would inherently and necessarily lead to its voidance (CA 4275/94, The Stock Exchange v. The Torah Literature Database Management Ltd., IsrSC 50(5) 485, 509 para. 22 of then Justice Orr’s opinion (1997); AAA 2339/12, Shohat v. The Kfar Saba Local Committee for Planning and Construction, para 49 of Justice Shoham’s judgment (2013)). It therefore seems, without making any determinations in the matter, that it would not be appropriate to void the decision because of the Respondent’s refusal to disclose the opinion.

 

The Discretion

30. So far we have been concerned with the source of the authority to make the decision, and the way in which it was made. We now open the “black box,” and look inside at the decision itself and its content. At the outset, we shall note that this Court does not rush to intervene in the discretion of an administrative authority, and particularly not where we are concerned with decision that are within its professional expertise (HCJ 338/87, Margaliot v. The Minister of Justice, IsrSC 42(1) 112, 116, para. 6 of Justice Bach’s judgment (1988); HCJ 7510/05, Lotan v. the Minister of Industry, Commerce and Employment, para. 23 of Justice Joubran’s Judgment (2006)). Still, we would not be performing our duties properly were we to shut our eyes to administrative decisions that substantially and extremely exceed the range of reasonability. The requirement of reasonability it closely linked to the authority requirement, and both are founded upon the democratic rationale that was reviewed above (see para. 15.) As noted, the administrative authority is limited in its actions to the four walls defined by the legislature – as the representative of the general public. It is easy to see that those four walls do not house decisions that are extremely unreasonable, as this was not the legislature’s intent. As was said by then Justice Barak:

“The balance between the different interests was charged by the legislature to the Second Respondent, and so long as it weight appropriate considerations and attributed proper weight to them, we shall not intervene. But if the considerations of the Second Respondent are based in a lack of good faith, arbitrariness, discrimination or unreasonableness – we shall not hesitate to intervene.” (HCJ 148/79, Sa’ar v. The Minister of Interior, IsrSC 34(2) 169, 178, para. 8 of his judgment (1979)).

 

Clearly, balancing conflicting interests is no simple task, which is often likened to an acrobat’s walk of a tightrope with the interested parties pulling at either end of the rope. Therefore, with the assumption of good faith, only a serious divergence from the range of reasonableness shall give rise to judicial intervention in the balancing decision made by the administrative authority. (HCJ 910/86, Ressler v. The Minister of Interior, IsrSC 42(2) 441, 518, para. 7 of President Shamgar’s judgment (1988)). In the case before us, the necessary balance is between the right to privacy of litigating parties on one hand, and the principle of a public hearing and the Petitioner’s freedom of occupation on the other. Note, that we are not required to make categorical determinations as to whether privacy must prevail or whether a public hearing and the freedom of occupation should. Were I to follow my heart, I believe I would have proposed to prefer privacy. But instead the question before us is whether the benefit to the protection of privacy, which results from the Respondent’s concrete decision (which prohibits the indexation of judgments by bodies granted direct access to its judgment database), outweighs the harm caused to the principle of the public hearing and the freedom of occupation due to the decision (see and compare CA 8954/11, John Doe v. Jane Doe, para. 121 of Justice Sohlberg’s judgment (2014)).

 

31. Let us open with the right to privacy, which was said to “draw the line between the individual and the general public, between ‘me’ and society. It creates a space where one is left alone, to develop her ‘self’, without another’s involvement” (HCJ 2481/93, Dayan v. the Commander of the District of Jerusalem, IsrSC 48(2) 456, 470, para. 16 of then Deputy President Barak’s judgment (1994)). Indeed, one’s privacy is one’s castle. This castle is exceedingly chipped away at with the progress of technology and there are those who believe privacy is a thing of the past (A. Michael Froomkin, The Death of Privacy, 52 Stan. L. Review. 1461 (2000); see also Yair Amichai-Hamburger and Oren Paz, Anonymity and Interactivity on the Internet: The Right to Privacy as a Multi-Dimensional Concept, Privacy in The Time of Change 201 (5772-2012)), and in practical reality this is not far. The ability to photograph and record on a mobile phone that is accessible to many, and in technologically advanced societies almost to everyone, has drastically reduced privacy. However, this does not mean that the value of protecting privacy is lost to the world. Indeed, the new era brings with it new tools – with both blessings and curses – but I believe this does not necessitate complete abandonment of human dignity and his good name. The words of the scholar M. Birnhak are apt here: “Technology has a complex relationship with the legal right to privacy, similarly to the relationship between the right and social norms. At times technology affects the content of the social norm and/or the legal right, and at times the law and/or social norms influence technology. At times the law cooperates with technology and at times they compete.” (Michael Birnhak, Private Space: The Right to Privacy Between Law and Technology 45 (2011); see also Michael Birnhak, Control and Consent: The Theoretical Foundation of the Right to Privacy, Mishpat U’Mimshal 11 9 (2008)). The proper relationship with technology is not a binary. Instead we must seek a middle ground that allows us to enjoy the fruits of technology while limiting the harm to individual rights, which often follows it. This resembles the tale in the Talmud Bavli (Hagiga, 15, 72) about Rabbi Meir who studied under Elisha Ben Abuyah, one of the Tannaim who was considered heretical and hence was referred as the “Other One” in the Talmudic language. The Talmud commends Rabbi Meir for “eating the content and discarding the shell.” In other words, Rabbi Meir wisely adopted the positive sides of his teacher without taking also the other side. Jewish law considers privacy protection, among others, through the concept of “harmful watching” – an injury one causes another by looking into his domain. About the verse “What benefit is there in Jacob’s walk through Israel’s houses,” (Arithmoi, 24, 5) Rashi says instead “What good is in the houses – for no doors are direct at each other.” Bilam commends the People of Israel for their conduct to protect the right to privacy (Eliyahu Lifshitz, The Right to Privacy in Jewish Law and in State Law, Weekly Parasha 33 (2011); see also the Talmudic Encyclopedia, vol. 8 “harmful watching – Heizek Reiya”; Gidon Klogman, On Harmful Watching, Iyunei Mishpat 5 425 (1975-76); Sharon Aharoni-Goldenberg, Privacy on the Interment in the Prism of Jewish Law, HaPraklit 52, 151 (2013)). Let us recall once more, that the matter here does not necessitate weighing the right to privacy as a whole, but only the added harm to the privacy of litigating parties, which may be caused when indexing of judgments mentioning their names is permitted to bodies with direct access to the Courts’ Administration’s judgments database.

 

32. The principle of a public hearing is an individual subset of the ideology of transparency more broadly, about which I wish to say a few words. The policy of transparence enjoyed a boost in the past years through the Freedom of Information Law, 5758-1998. This Law’s primary novelty is in the message that public information is public property – rather than the property of the administration, who holds it in trust. The Law’s explanatory notes state that: “… the seeker of the information needs not specify in the request for information, which is submitted in writing, the reason for which the information is sought… This approach is rooted in the recognition that because the information is in effect an asset among public assets, there is no significance to the question why the information is necessary to its owner.” (Explanatory Notes for section 7 of the Freedom of Information Bill, 5757-1997, Bills 2630; see also Hillel Sommer, The Freedom of Information law: Law and Reality, HaMishpat 8 437 (5763-2013)). Similar and well-known comment is found in the case law, as early as in HCJ 142/70, Shapira v. The Jerusalem District Committee of the Lawyers’ Bar, IsrSC 25(1) 325, 331 (1971), where then Justice H. Cohen wrote:

 

“The claim that in the absence of statutory duty to disclose, one may conceal rather than reveal – may be made by an individual or a private corporation… but it cannot be made by a public authority who fulfills duties under law. The private domain is not as the public domain, as the former does as it may will. If it wishes, it provides and if not it refuses. Whereas the latter is wholly created in order to serve the general public, and it has nothing of its own: all it has is put to it in trust, and in itself it has no rights or duties additional to those, or separate and different to, those which derive from such trust or that were granted to it or imposed upon it by virtue of statutory provisions.”

 

Indeed, as noted in the case law and in the Law’s explanatory notes, receiving public information is a “property” right which does not require special reasons, but I wish to point out to one benefit of opening government databases to the general public. Databases are an asset that may be useful to young entrepreneurs who may derive great public benefit from the information granted. Take for example, on the public level, the organization “The Workshop of Public Knowledge” which launched internet tools such as “Open T.B.A.” (www.opentaba.info) - a project for mapping city construction plans in a user friendly manner, which relies on information from the Israel Land Authority; or the “Open Journalism” project (www.opa.org.il) which makes accessible a multi dimensional database of newspapers which were scanned over the years by the national library and made it searchable. Such projects and others similar to them illustrate the added value the public brings when the gateways to public information held by administrative authorities are open to it. Of course, granting public information is not a process free of challenges and concerns (see Aharon Barak, Freedom of Information and the Court, Kiryat HaMishpat 3, 95, 105 (5763-2003), but public officials must also remember the benefits to it. And now specifically to the principle of a public hearing: the case law mentions three reasons to protecting this principle (see LCA 3614/97, Adv. Dan Avi Yitzhak v. The Israel News Corporation Ltd., IsrSC 53(1) 26, 45, para. 6 of Justice Goldberg’s judgment (1998) (hereinafter: the Avi Yitzhak case); HCJ 5917/97, The Association for Civil Rights in Israel v. The Minister of Justice, para. 18 of President Beinisch’s judgment (2009)). First, recognizing a public hearing as an integral part of the public’s right to know – a right which naturally derives from the existence of a democracy. As put by James Madison, who was among the drafters of the United States Constitution and a President of the United States: “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy, or perhaps both.” (Letter by Madison to William Barry – an American statesman – dated August 4, 1822.) Second, the principle of the public hearing contributes to the improvement of the quality of legal products, as a result of exposing the proceedings to the scrutiny of the general public. Apt here are the words of Justice D. Levin (CrimA 334/81, Haginzar v. The State of Israel, IsrSC 36(1) 827, 832 (1982):

 

“A major rule it is in the law, that the court adjudicates in public. This is a pillar of both criminal and civil procedure, and one of the most important means to ensure an impartial trial and a due process. On one hand, this principle opens the court up to exposure to the public and to its judgment insofar that conducting an objective trial, in judgment and discretion. On the other hand, the litigating parties, too, stand before the public, who hears everything and being aware of the facts presented to the court, may – according to the information in its possession – appropriately offer evidence to refute them. Therefore, parties may beware and be cautious to suggest to a presiding judge facts that are not reliable or have not been corroborated.”

 

Third, the principle of the public hearing is essential to the existence of public trust in the judicial system, and this additionally to the first two reasons already mentioned, and without connection to them. The sentence appearing in The Federalist (as translated by Aharon Amir, edited by Yael Hazoni, with the introduction by Ruth Gavison and Ellen Shapira, 2001), on page 388, whereby the judicial branch is the least threatening of them all to the political rights enshrined in the United States Constitution, as it “Has no influence over either the sword or the purse,” is well known. Put differently, the judiciary does not set the budget and does not head the public administration (The Federalist Papers, No. 78.) Another important element was added to this famous quote – and it is paramount in our matter – by Justice Felix Frankfurter of the Unites States Supreme Court, and it is that the Court indeed lacks a purse or a sword, but it does have at its disposal the public trust. (Baker v. Carr, 82 S. Ct 691 (1962)). The principle of the public hearing is not foreign to Jewish law (see Yaron Unger and Yuval Sinai, Public Hearing in Jewish Law, The Center for the Application of Jewish Law, (5775-2014)). We shall mention here the words of scholar Haim Cohen in his book The Law (p. 443), that the sources of Jewish law effectively enshrine the principle of the public hearing, without explicitly naming the concept:

“The widow who asserted exercising the commandment of impregnation by her husband’s brother ‘went to the elderly at the gates’ (Deuteronomy 25, 7). And ‘Boaz came to the gate’ and purchased all that Elimelech had and took Ruth of Moav as a wife before ‘all the people at the gate and the elderly’ (Ruth 4, 1 and 11). The judges (and the police men) were commanded to be present at ‘all of your gates’ (Deuteronomy, 16, 18) and they brought the prodigal son to justice ‘to the elderly of his city and the gate of his place’ (there, 21, 19). Ezra called his court to convene ‘on the street of the house of God,’ under the sky (Ezra 10, 9), and the Sanhedrin sat in its chambers at the Temple, which it convened with all 71 members. But when it sat with 23 members to adjudicate it sat at the ‘entrance to the Temple Mount’ or the ‘entrance to the auxiliary’ (Sanhedrin 88, 2), a place that was open to all the people, as the auxiliary was ‘filled with Israel’ (Yoma 1, 8).”

 

All these sources have a similar trend – holding law at the most public location out of recognition that justice must be seen and not just made (R v. Sussex Justices, Ex Parte McCarthy, 1KB 256 (1924)).

 

33. The third value relevant to our matter is freedom of occupation. Freedom of occupation is one of the only basic rights which was enshrined in a specific basic law – Basic Law: Freedom of Occupation. Even before this Basic Law was enacted – on 11 Shvat 5709 – this Court ruled that any citizen may work in any vocation he sees fit to choose (see the Bejerano case). It was said of freedom of occupation that it “derives from the autonomy of private will. It expressed one’s self-definition. Through freedom of occupation one may designed his personality and his status and contribute to the social fabric. This, under the values of the State of Israel as a democratic state as well as under its values of a Jewish state. Occupation makes one unique and gives expression to God’s image within him (see Rabbi Eliezer’s Mishna (Analau edition, New York, 1934), parasha 20, on p. 366)” (HCJ 1715/97, The Israeli Investment Managers’ Guild v. The Minister of Finance, IsrSC 51(4) 367, 385, para. 15 of President Barak’s judgment (1997)). Indeed, the principle of freedom of occupation is required by the State of Israel being a Jewish and democratic state. The sources of Jewish law recognized work as a primary and constitutive component of human life. Here are some of the words of Rabbi Nathan: “How to love work? It teaches us that a person must love work rather than hate it, because as the Torah was given to us by  covenant so has the work was given to us by covenant (emphasis added – E. R.), as it was said ‘six days you shall work and you completed all your work and the seventh day rest for the sake of your God (Exodus 20, 9)” (Noscha A, chapter 11). The value of work appears also in the words of the Rambam who stated that “it is better to remove the skin of animals than to say to the people ‘I am a great scholar, I am a Cohen – you must support me.’ And thus under the orders of our sages, some of whom where great scholars and some of whom chopped wood and carried the beams and fetched water for gardens and made iron and coals and who did not ask from the public and did not receive when given.” (Rambam’s Mishna Torah, Matnot Aniyim, 10, 18 Halacha.) And see also in the Q+A of Mishpatei Uziel (Rabbi Ben-Zion Meir Chai Uziel, Israel, The 20^th Century) vol. 4, sign 44, whereby one of the commandments performed through Jewish work is that the employer “finds (for the employee – E. R.) work to strengthen him that he does not need from others and does not ask, and this was called ‘and you held him.’” (Leviticus, 25, 35). However, similarly to the Israeli law (HCJ 5026/04, Design 22 v. The Ministry of Employment and Welfare, para. 6 of President Barak’s judgment (2005)), Jewish law recognizes that freedom of occupation – despite its significance – is not an absolute right. This particularly when we are concerned with unfair competition, which is prohibited as “going into the art of his colleague” (see Talmudic Encyclopedia, vol. 23 “going into the art of his colleague”). Thus, in the Q+A Igrot Moshe (Rabbi Moshe Feinstein, the United State, 20^th Century), Yoreh De’ah, part 2, sign 98, describes a case of a butcher who joined a guild of butchers with the agreement that the shall not compete with them. Eventually, the butcher left the town and opened a butchery in a nearby town. It was decided that the butcher was prohibited, under his own commitment, from doing so, as the commitment outweighed the freedom of occupation under the circumstances.

 

34. As mentioned, balancing between values is not easy task at all. For such purposes the Court requires the three tests of proportionality, which make concrete the general concept of reasonability (see Barak-Erez, vol. 2, 771.) The first test is the test of the suitable means, which examines the likelihood that the administrative decision will indeed achieve its purpose. The second test is that least restrictive means test, which considers the existence of alternatives that realize the same purpose, but are less restrictive of individual rights. Finally, the third test is the test of the proportional means, which examines the weight of the benefit of reaching the purpose against the weight of the cost of harm to individual rights. A reasonable administrative decision is one that meets all the tests describes. Failing to pass one of these tests means that a decision is not reasonable. Recall, that extreme unreasonableness may lead to judicial intervention that would void the decision.

 

35. The proportionality principle – on its three tests – appears in Jewish law as well. Here are a few brief examples. First, the suitable means test. In the RIBASH Q+A (R. Itzhak Bar Sheshet, Spain and North Africa, 14^th -15^th centuries) sign 484 discusses the issue of incarceration of debtors – those who do not pay their financial debts. The RIBASH rules that such incarceration is legitimate only where the debtor hold assets and that it is likely that the incarceration would persuade him to pay his debts. On the other hand, when we are concerned with a person of no means, incarceration is ineffective and in any case should not be used (see also Rambam’s Mishna Torah, The Laws of Lender and Debtor, chapter 2, Halacha 1; Menachem Elon Human Dignity and Liberty in Enforcement (5724-1964)). Second, the application of the least restrictive means test can be seen in the rulings of the Rambam in his writing of Mishna Torah, Laws of Murderer and Protection of Life, chapter 1. The Rambam finds that where one chases after another in order to kill him – and this is the source for the “sentence of the pursuer” – any person in Israel is commanded to stop the pursuer and even kill him if need be (Halacha 6.) Rambam qualifies this, by finding that the permission to kill the pursuer exists only where there is no way to achieve the goal – rescuing the pursued – through less harmful alternatives in terms of the pursuer (Halacha 7). In his words:

“… Since the pursuer would be killed, if it is possible to save him for his limbs – such as striking him with an arrow or a rock or a sward and that his arm may be amputate or his leg may be broken or that he may be blinded this must be done, and where it is impossible to save the other but for killing the pursuer then they must kill him.”

 

Third, the proportional means test: the constituting source for this matter is mentioned in Masechet Avot, chapter 2, Mishna 1 – “and the cost of a Mitzvah must be calculated against its benefit.” We must balance conflicting considerations, when each may be correct and appropriate in itself. In the words of Rabbi Shlomo HaCohen Rabinovitz (the first Admor of Rdumsk) (Poland, the 19^th century) in his essay Tiferet Shlomo “One may have a level and scales of justice in his hands must always think of the cost of a Mitzva against the benefit of it and the benefit of an offense against the cost of it. When often it seems fitting in his heart to perform a Mitzva that he may pray with greater holiness and cleanliness, in order that he may forget his offense against the laws of the Torah on the other hand. In conclusion, here are the words of Rabbi Moshe Chaim Lucato, Italy-Holland-Israel, 18^th century) in his well known book Mesilat Yesharim, chapter 3.

 

“And I see a person’s need to be exact and to weigh his ways everyday as the great merchants who always navigate their businesses so that they may not go bad, and he sets times and hours for it so that it is not random, but with great regularity, as it is the father of productivity. And sages may their memory be a blessing instructed us explicitly of the need for such calculations, and this is what they said (Bavli, Baba Batra, 78): therefore the governors may say let us calculate, and those who control their nature and impulses shall say let us calculate the calculations of the world – the cost of a mitzvah against its benefit and the benefit of an offense against its cost.”

 

36. Let us turn to applying these tests to the case before us. As noted, we must begin with the question whether the means realizes the end. In other words, does the Respondent’s decision not to permit the indexation of judgments by the Petitioner indeed protects the privacy of the litigating parties. I am afraid that the answer is not in the affirmative. The Respondent wishes to prevent the location of judgments through web search engines by using search terms, but this is not the outcome of its decision, so it seems. The Respondent’s decision limits the indexation of judgments by those granted direct access to its case law database, but it does not effectively limit its indexation by third parties who may post them to its site.

 

37. In order to understand the issue and its significance, we must discuss two factual elements. First, the likelihood of passing on the judgments to a third party. One of the central characteristics of the information age is the speed and ease with which information passes from one person to another with the push of a button. This is true for information protected under copyrights (Niva Elkin-Koren, Copyrights and Competition – from a Market of Copies to a Regime of Policing, Din U’Dvarim 485, 541 (2006); see also Niva Elkin-Koren, The New Brokers in the Virtual ‘Market Square’, Mishpat U’Mimshal 6, 381 (2003)), let alone where we are concerned with judgments which inherently are subject to no copyright limiting their dissemination (see section 6 of the Copyright Law, 5768-2007). Let us further recall that the Petitioner is a commercial corporation who profits from disseminating judgments. That is, passing the judgments to a third party is under no doubt, but should assumed to be fact. Second, indexation by a third party: it is important to emphasize that indexation is the default and that preventing indexation is an active choice made by the owner of a website. As a result, almost any third party who may publish the judgments on its website – for instance a website of a law firm or a news site – would inherently result in their finding on web search engines. It is unnecessary to note that the privacy of a litigating party is violated as a result of the mere finding of a judgment – which includes his personal details – on a web search engine, and the identity of the website to which the search engines refers does not negate this infringement. Therefore, it is reasonable to assume that ever where the Respondent’s decision to take effect – the search of a litigating party’s name on a search engine would still lead to his judgment, were it to be published by anyone.

 

38. Having said all this, there is still room to believe that the Respondent’s decision would prevent the indexation of some judgments, this because, one may think, not all the judgments published in the Petitioner’s website would be copied and published on websites of third parties. Let us recall that the Petitioner’s website includes most of the decisions and the judgments handed down in courts in Israel. Those judgments that are not copied are “spared” the indexation process thanks to the Respondent’s decision which prevents the Petitioner from indexing the judgments on its website. Seemingly – small consolation, but there is room for doubt here as well. Naturally, the most problematic judgments in terms of the privacy of litigating parties may be those which create the greatest interest among the general public. Hence the concern that judgments containing sensitive and personal details about litigating parties will not remain on the Petitioner’s website as a “stone unturned” (Bavli, Avoda Zarah, 8, 2.) In any event, a complete “seal” or close to it is not what we are concerned with here at all.

 

39. We therefore learn that the Respondent’s decision seemingly does not fulfill its purpose, or sadly – does so partially and insufficiently. This simply means that this point is greatly important. Let us continue to the next test – the least restrictive means test. This test as well does not shed a positive light on the Respondent’s decision. As noted, the Respondent’s goal – which is positive in its essence, on a human and value level – is the prevention of infringement to the privacy of litigating parties, which is caused by locating their judgments on web search engines. By doing so, the Respondent draws a “line in the sand” and states that posting on the internet (for instance on the Respondent’s website) in and of itself is proportionate, but this is not the case for locating the judgments in web search engines. We addressed above the practical aspect of the distinction between the internet and web search engines and later we shall also address the aspect of the legal norm. We shall now consider the issue of alternatives.

 

40. I myself believe, that there are several alternative means that realize the purpose in a similar manner (and perhaps even more so) without harming the Petitioner’s freedom of occupation or the principle of a public hearing. Apt for this issue the words of then Justice Orr (the Avi Itzhak case 82, para 46 of his judgment):

“Another aspect which the Court must consider when deciding whether to prohibit a publication or to temporarily suspend it, goes to the existence of other authorities granted to the Court, which may satisfy the ‘need’ to protect one’s good reputation. The principle is that the use of the means of publication prohibition must be ‘a last resort’. This is a drastic means, whose harm to the public hearing is difficult and egregious. Using this means may prevent, to a great extent, the effective publicness of hearings. Therefore, the Court may seriously consider the matter of whether alternative means that are less restrictive and which may realize the purpose of preventing unnecessary harm to the good reputation of a plaintiff, exist.”

 

Indeed, it seems the proper way to prevent publication of sensitive information in web search engines does not include the prohibition of some indexation or another, but it must simply be ensured that sensitive information is not found in a judgment, even before it is published to the general public – and this may be done in several ways. The Respondent may conduct refresher trainings to the administrative and legal staff on issues of privacy in writing judgments; it is possible publish the judgment to the litigating parties alone, several days before publishing on the internet, while providing the parties with opportunity to seek the redaction of irrelevant personal details (this is the path of American law. See Fed. R. Civ. P. 5.2(e); fed. R. Crim. P. 49.1(e); Fed. R. Bankr. P. 9037(e); see also Conley, Datta & Sharma, Cyberlaw: Sustaining Privacy and Open Justice, 71 Md. L. Rev. 772, 781-82; see and compare Australian law Rule 2.29 of the Federal Court Rules 2011, made under the Federal Court of Australia Act 1976; it is not unnecessary to mention that it is possible to find American judgments through the web engine “Google Scholar”.) In this context, I shall note that in the United States there are courts which use an algorithm that scans the judgment – before its publication – and searches for sensitive information that may be contained in it such as ID numbers (see, for example, in the State of Florida “Online Electronic Records Access Application” 27, 2014, which appears on the Florida courts’ website – www.flcourts.org.) Additionally it is possible to write judgments and pleading papers in formats that do not leave a possibility for leaking personal details that are not necessary, and this is not a pie in the sky (see Yehonatan Klinger, Protection of Privacy in Writing Judgments: The Defect is in the Design, on the blog Intellect or Insanity, https://2jk.org/praxis/?p=5387 (March 29, 2015)). And in the Vehicle Insurance Database case, I had to opportunity to say the following:

“I recall from my days as a judge in the District Court a long time ago, that I wondered why the names of parties are published in family cases. Indeed that was close to two decades ago, and there were yet to be the developed databases there currently are or the computerization, and judgments therefore were not in the public domain to the same extent. Today, when by easy typing and minimal effort it is possible to access all of case law, the potential harm to those whose health details may be exposed is greater.”

 

Indeed there are things that today are thoughts of the heart and tomorrow are reality. All the steps mentioned above – which are not mutually exclusive of each other – may reduce the infringement upon the privacy of litigating parties without harming the Petitioner’s freedom of occupation or the principle of a public hearing.

 

In conjunction to the steps mentioned, there are additional steps that may be promoted on a legislative level. Thus, it is possible to initiate a proposal that would establish that the names of litigating parties be published by initials alone, as it is done to some extent in other countries (see, for example, in France: Commission Nationale de I’informatique et des libertes (CNIL), Deliberation N. 01-057 of 29 November 2001, and in Belgium – Commission de modernisation de l’ordre judicaire, “Rapport consacre a la question de la publication des decisions judiciaries: La plume, le Pelikan et le nuage,” 30 Juin 2014.) It shall be noted that a similar proposal was indeed raised in Israel, but it did not successfully make its way through the legislative process (The Courts Bill (Amendment – Non-Mention of Names in Judgments), 5768-2007; see also Tomer Moskovitz, Protection of Privacy in Courts’ Publications – Is it Proper to Publish Names in Judgments?, Mishpatim 18 431 (1989). Let us recall here that the legislative branch is aware of the harm done to the privacy of litigating parties as a result of publishing judgments, and operates in order to balance between this harm and the principle of a public hearing. This, section 10(4)(b) to the Family Courts Law, 5755-1995 states that most family cases be adjudicated confidentially and in closed hearings, and as a result their publication (and see section 70(a) of the Law) is in the absence of parties’ names but as “Anonymous v. Anonymous” (and see on the other hand the Courts Bill (Amendment – Requiring Publication of Judgments and Decisions of Family Courts), 5771-2010; see also Rina Bogush, Ruth Halperin-Kedari and Eyal Katvan, The ‘Hidden Judgments’: The Impact of Computerized Databases on the Creation of the Legal Knowledge Body in Israeli Family Law, Iyunei Mishpat 34 603 (5771-2011)). A Similar provision, in regards to juveniles’ cases, is found in section 54(2) of the Juvenile Law (Adjudication, Penalty and Manners of Treatment) (Amendment n. 14), 5768-2008 (see also the Court’s Bill (Amendment – Prohibition of Publication of Minors’ Names in Civil Proceedings), 5769-2009). Another examples is amendment n. 77 of the Courts’ Law which states that “No one shall publish the name or identification number of a litigating party who claims recovery for bodily injuries…” From the collection of all this it appears that this is not a legislative vacuum in which the Respondent operates but in regards to an issue to which the legislature’s eye is open “from the beginning of the year and until the end of it” (Deuteronomy 11, 12) and it is possible that there may be more to come.

 

41. And now to the third stage in the proportionality test, where narrow proportionality is examined. Does the benefit of the decision outweigh its cost? Does the protection extended to the privacy of litigating parties as a result of the Respondent’s decision is worthy of the harm to public hearings and to freedom of occupation? Is the “narrow equal the harm” (Book of Esther, 7, 4). This test is on its face redundant in light of our prior holdings whereby no source of a lawful authority was found for the decision (para. 25), it seems not to have realized its purpose (paras. 37-38) and it was selected despite the availability of less restrictive alternatives (para. 40.) However, I shall briefly address this test.

 

42. Section 68 of the Courts Law mandates that as a rule, “a court shall adjudicate in public”, at the same time the Law includes various circumstances where publishing in regard to a judicial proceeding may be prohibited (see LCrimA 1201/12, Kti’i v. The State of Israel, para. 18 of Justice Hendel’s judgment (2014), which reasons the principle of a public hearing the while giving a narrow interpretation for exceptions.) Indeed publishing judgments, inherently, causes conflict between the right to privacy and the principle of a public hearing. The Law authorizes the judge to determine on a case by case basis according to the circumstances of the matter at hand (see my opinion in LCA 8019/06, Yediot Aharonot Ltd., v. Meirav Levin, para. 5 (Oct. 13, 2009)). As my collogue, President Naor often says – the law derives from the facts. The Respondent’s decision, on the other hand, summarily privileges the right to privacy, without giving space to the significant difference between different judgments – criminal or civil, judgments and interim decisions, different trials and others. Furthermore, the “immunity from indexation” which the Respondent’s decision provides – and as noted, there is doubt whether judgments are not to find their way to web search engines anyway (paras. 37-38 above) – is not limited to the personal details of litigating parties, but applies to the entire judgment as a whole. It is here that we should mention that the Israeli legal system belongs, in many of its principles, to the tradition of the common law, where judgments constitute a significant part of the law itself (see section 20 of Basic Law: The Judiciary). I would not be overstating to say that in the absence of access to judgments – there is no updated possibility of knowing what the law is in Israel in its entire scope. In other words, The Respondent’s decision may limit intrusive searches into the lives of litigating parties and therein lies its benefit, but this may also prevent a renter of an apartment from knowing what a lack of good faith in performing a contract means in the updated interpretation of this Court.

 

43. We shall also note in this context that the Petitioner’s website includes the ability to search for judgments using parties’ names, and the Respondent’s decision does not prohibit this. This means that anyone could – for a handsome fee – enter the legal database such as the one appearing on the Petitioner’s site and search for their acquaintances’ names. In other words, to the extent that the Respondent’s decision may indeed “rescue” a certain number of sensitive judgments from indexation, the gains in terms of litigating parties’ privacy will be limited to the fact that in order to find them it would be necessary to enter – with a click of a button – a legal database and to pay a certain fee. I do not, of course, take this lightly, but I believe it is difficult to accept the argument whereby this state of affairs – where a judgment that is accessible and searchable on an internet legal database – provides practical obscurity, in contrast to the current state where a judgment may be found through web search engines. A similar matter was discussed in the opinion by the Israeli Institute for Democracy as to the Privacy Protection Bill (Amendment – The Right to Be Forgotten), 5775-2015. In that opinion, Dr. Schwartz-Altschuler writes that: “The Bill before us actually exacerbates the technological difficulty because it addresses only the removal of hits from search engines, without having removed the original pages containing the information. Would anyone think of removing a book from a library catalogue without first removing the book itself from the shelf first? At the end of the day, a possible outcome of the Bill would be deepening the gaps between those who know how to access information that does not appear on web search engines and those who do not and who are dependent upon them” (p. 4 of the opinion.) Therefore, it is revealed before us that the gains for privacy – if any – are small, whereas the costs to public hearing and primarily to the freedom of occupation are great. It is hard to accept that a decision which brings us to this should stand, regardless of its worthy motives.

 

In Conclusion

44. Should my opinion be heard, the Respondent’s decision would be voided, so that the Petitioner may continue to have access to the judgments databases without committing to close its website to web search engines. There is no doubt in my mind that the Respondent operated out of positive motives and out of desire to take initiative in light of the significant changes that the internet age brings upon us. However, I am afraid that such decisions require the legislature’s say about proper regulation of the matter. The recommendations of the Justice Englard Committee, upon their submission, may be assist in this task. In the meantime there may be new technological developments that would allow the matter to be refined further. This decision does not mean that the Respondent must sit idly by and observe the changes in times – indeed, there are many steps open to the Respondent, and some were mentioned explicitly above (para. 40).

 

45. It should be noted that this decision is not at all endorsement of any of the Petitioner’s activities. The pending class action suit against it shall be determined according to the discretion of the presiding court. Additionally, during the adjudication of the case weighty arguments have been raised in regard to actions taken by the Petitioner in order that the search for one’s name on a web search engine may lead to the website it owns, in a manner that misleads to believe that such person appears in the judgment, even if reality is completely different (see para. 12 above.) These claims were raised incidentally and have no direct connection to the petition at the center of this judgment. Naturally, no in depth discussion was held regarding them and of course no evidentiary proceedings. Without setting anything in stone, and without making factual findings that the petitioner acts in some manner or another, I will briefly note that this is a problematic practice that is not consistent with the language of the law, certainly not with its spirit or purpose. This judgments considered the violation of privacy caused to a person, a search of whose name leads to a judgment where his name is mentioned, this cannot be equated to the violation of privacy caused to a person a search of whose name on a web search engine leads to a judgment which appears misleadingly to be connected to him. The harm in the second case is egregious particularly in light of its allegedly deliberate character. Of its face, a violation of privacy caused incidentally is less severe compeered to a harm causes deliberately and by motivation of profiting a commercial company (see and compare HCJ 2605/05, The Academic Center for Law and Business, The Human Rights Department v. The Minister of Finances, para. 33 of President Beinisch’s decision (2009)). The Respondent is assumed to have explored the matter in depth, and to the extent there is truth to the claim – will work to eliminate the phenomenon, as it was said “banish evil from your midst” (Deuteronomy 17, 7.)

 

46. I shall therefore propose to my colleagues that we issue an absolute order whereby the Respondent’s decision is voided. I shall propose under the circumstances not to make any order as to cost.

 

 

 

                                                                                    Deputy President

 

Justice E. Hayut:

 

I join the position of my colleague the Deputy President E. Rubinstein whereby the order nisi must be made absolute and the Respondent’s decision be made void. For purposes of this conclusion, it is sufficient that the Respondent’s decision from August 18, 2014 was made in the absence of explicit lawful authorization, which is required in light of the gravity of the relevant rights – freedom of occupation, the principle of public hearing, and freedom of expression on the one hand and protection of privacy on the other (as to the relationship between the scope of an authorizing provision and the strength of the relevant protected right see also HCJ 4491/13, The Academic Center for Law and Business v. The  Government of Israel (July 2, 2014)).

 

Balancing between the values and the basic rights noted is no simple task at all and my colleague the Deputy President discussed this in his illuminating opinion. This balance ought to be designed and regulated by the legislature or according to his explicit authorization. In the absence of such authorization, I join the position of my colleague that the decision subject the Petition, made by the Respondent on August 18, 2014, was made without authority.

 

                       

                                                                                                Justice

 

Justice U. Vogelman:

 

I join the outcome reached by my colleague, Deputy President E. Rubinstein, in his comprehensive opinion whereby the order nisi must be made absolute and that the Respondent’s decision in question must be voided, as well as my colleague’s main reasons as detailed above.

 

We are in the midst of an information revolution that was brought by the internet age. Information that was once accessible only to experts in their field is now accessible to anyone who seeks in, quickly and easily. The law lags behind, as it usually does, these developments which regularly require new interpretations to old legislation – in the spirit of the times and the technological advances – and the different balances that may alter established decisions (see, for instance, my opinion in AAA 3782/12, Tel Aviv-Yafo District Police Commander v. The Israeli Internet Association (March 24, 2013.)) The judiciary authority is not exception, and it too must rethink certain issues. Such is the issue before us today, which was raised in light of the Respondent’s demand that the Petitioner (and other legal databases) sign a “Document of Guarantee” whereby it commits to take all necessary steps in order to prevent the indexation of decisions and judgments given to it. The decision to require the Petitioner’s signature on this Document of Guarantee was made – according to the Respondent in its papers – in light of the scope and severity of privacy violations suffered by litigating parties, a violation which the Respondent believe may be reduced by way of preventing the indexation of judgments on  search engines. This, because the principle of a public hearing does not require, in the Respondent’s approach, making the information in the judgments accessible to the public specifically through web search engines.

 

The Respondent’s considerations are indeed worthy. But what is their outcome? Reuven, who is a lawyer, searches for Shimon’s name in a legal database – Takdin, for example – to which he has access through his occupation. The search leads him to a judgment where Shimon’s name is mentioned – as someone who was a party to a legal proceeding, served as a witness in the proceeding, or any other relevant part of it. Levi, who is not a lawyer, searches for Shimon’s name on Google. Through Takdin Light, his search leads Levi to that same judgment that Reuven found as well. The Respondent’s decision wishes to prevent Levi the ability to locate the judgment through the web search engine in order to reduce the infringement upon Shimon’s privacy. This is what it means: lawyers, jurists, and those with access to legal databases will be able to find what they are looking for; but not the general public. The ability to locate judgments is not eliminated then, rather only those with access to the various legal databases – access which requires significant funds, as well as research skills that are not necessarily acquired by the general public – may locate them. In my opinion – in light of the nature of the rights at stake and in light of the high significance and the broad consequences such a decision – which requires a delicate balance between a variety of relevant considerations which may pull in opposite directions – necessitates a legislative anchor, which is not present in our matter.

 

This on the authority level. As to the discretion level – indeed it is possible that, as my colleague put it, the Respondent’s decision would save several judgments from indexation, but this is insufficient. First, as noted, it is doubtful whether indeed the privacy of litigating parties (as well as others mentioned in different judgments, to their benefit or not) is ensured through the Respondent’s decision, given the option third parties hold to publish different judgments through their sites. Second, and more importantly, this harm can be reduced through alternatives, a few of which my colleagues presented in his opinion, including, for example, advance delivery of judgments to parties in order that they may move for redaction of private and irrelevant details; computerized scanning of judgments designed to locate sensitive information; and various legislative steps (see para. 40 of my colleague’s opinion). All of these are available without minimizing at all the duty to make sure in advance that sensitive information – certainly that which is not material to determining a dispute – is not included in a judgment even in advance of its publication to the general public, a duty imposed primarily upon judges. Noting all this, the Respondent’s decision, whose good intentions are clear, is flawed in my view on the discretion level as well, as clarified by my colleague.

 

As said, I join the decision of my colleague according to which the Respondent’s decision must be voided.

 

 

                                                                                                Justice

 

 

 

It was decided as said in the opinion of Deputy President E. Rubinstein.

 

Handed down today, 30 Heshvan 5776, (November 12, 2015)

 

 

 

Deputy President                                            Justice                                                 Justice

 

H.C. 176/54

               

NAHOUM YEHOSHUA

 v.

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

 

 

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

[April 6, 1955]

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

 

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

 

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

               

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

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

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

 

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

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

 

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

               

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

               

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

 

                Palestine cases referred to:

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

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

 

Israel cases referred to:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

English cases referred to:

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

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

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

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

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

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

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

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

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

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

 

American case referred to:

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

 

French case referred to:

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

 

Louria for the petitioner.

 

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

 

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

 

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

               

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

               

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

               

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

               

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

 

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

               

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

               

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

               

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

               

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

 

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

               

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

 

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

               

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

               

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

               

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

               

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

               

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

 

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

               

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

 

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

               

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

               

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

               

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

 

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

               

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

 

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

               

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

 

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

 

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

 

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

 

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

 

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

               

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

               

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

               

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

               

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

 

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

               

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

               

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

               

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

 

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

               

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

 

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

 

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

               

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

               

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

 

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

               

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

 

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

               

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

               

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

               

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

               

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

               

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

               

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

               

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

               

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

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

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

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

               

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

               

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

               

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

 

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

               

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

 

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

 

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

               

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

               

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

               

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

 

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

               

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

               

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

               

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

               

                Application refused.

                Judgment given on April 6, 1955,

H.C.J 10/48

 

ZVI ZEEV

v.

THE ACTING DISTRICT COMMISSIONER 0F THE URBAN AREA OF TEL AVIV (YEHOSHUA GUBERNIK) AND ANOTHER

 

 

In the Supreme Court sitting as the High Court of Justice

[December 2, 1948]

Smoira P., Olshan J. and Cheshin J.

 

               

                Requisition of flat by Competent Authority - Defence Regulations, 1939-Effect of s. 9 of Law and Administration Ordinance, 1948 - Appointment of Acting District Commissioner as Competent Authority not an act having legislative effect - Publication in. Gazette not required.

               

                The Acting District Commissioner of Tel Aviv purporting to act as the Competent Authority under Mandatory regulations requisitioned an apartment in Tel Aviv for the use of a government official His action was challenged on the grounds, first, that the Mandatory regulations in question had been impliedly repealed by s. 9 of the Law and Administration Oridnance of 19481) which empowered the Provisional Council to make regulations of the same kind, and secondly, that the appointment of the Acting District Commissioner as Competent Authority, being an act having legislative effect within the meaning of s.20 of the Interpretation Ordinance, 1945, was invalid as it had not been published in the Official Gazette as required by that Section.

               

Held:     (1)          that the regulation in question had not been repealed and remained in force;

                (2)          that the appointment of the Competent Authority was not an act having legislative effect and accordingly did not require publication in the Gazette.

 

Palestine Case referred to:

(1)          A. A. 6/36 - Ali Ibrahim El Nouri v. The Attorney-General C.O.J., Vol. 7, p. 268.

 

Israel Case referred to:

(2)          H.C. 5/48 - Yuval Leon and Another v. The Acting  District Commissioner of the Urban Area of Tel Aviv (Yehohoshua Gubernik) and Another (1948) 1 P.D. 58.

 

Nohimovsky for the Petitioner.

Sha'aiovitz, Deputy State Attorney, for the Respondent.

 

SMORIA P. giving the judgment of the court.

 

                On September 7, 1948, the first respondent issued an order of requisition under regulation 48(1) of the Defence Regulations, 19391), by virtue of which he took possession of a flat in a building at No. 34, Balfour Street, Tel Aviv. The purpose of the requisition was to provide a home for the second respondent, the Director of the Financial and Control Section of the Ministry of the Interior of the Government of Israel.

               

                The flat referred to consists of three rooms, a kitchen, and conveniences. The petitioner had lived in this flat with his wife and two small daughters until about July, 1948, when he moved with his family to a flat of four rooms, kitchen and conveniences at No. 13, Bezalel Yaffe Street, Tel Aviv. In the meantime the petitioner's wife gave birth to a third child. According to the petitioner, one or one and a half rooms of the flat at No. 34, Balfour Street were used by him as the office of a Company called Zvi Zeev and Partners (Pty) Ltd., of which he is the principal director. When the petitioner moved to the flat at No. 13, Bezalel Yaffe Street the office of the Company remained in the flat at No. 34, Balfour Street, while one of the other rooms in this flat was occupied by an army officer.

               

                It would appear from the cross-examination of the first respondent on his affidavit that he investigated the position of the flat in question before issuing the order of requisition, and found that it was unoccupied and that there was no name-plate of the Company on the door of the flat, or anywhere near it.

               

                The petitioner made an application to the District Court of Tel Aviv - which at that time exercised the powers of the thigh Court of Justice - challenging the validity of the order of requisition and on September 12, 1948, an order nisi was issued. According to the affidavit of the second respondent, which was filed in reply to the order nisi, negotiations took place between him and a representative of the petitioner in order to procure the latter's consent to leasing the flat to the second respondent. These negotiations, however, were unsuccessful since the second respondent regarded the amount claimed by the petitioner as excessive.

               

                Between the date of the issue of the order nisi and the hearing of this case, judgment was delivered by this court in Yuval Leon's case (2), in which it was decided that regulation 48 of the Defence Regulations of 1939 was still in force. In appearing before us Mr. Nohimovsky, counsel for the petitioner, admitted that in view of the legal principles laid down in that judgment many of the submissions which he had intended to make at the time of this application now fell away. He requested us, however, to hear two new submissions which had not been argued before the court in that case.

               

                Mr. Nohimovsky's first submission is based upon section 9 of the Law and Administration Ordinance of 1948, which  provides as follows: -

 

"(a) If the Provisional Council of State deems it expedient so to do, it may declare that a state of emergency exists in the State, and upon such a declaration being published in the Official Gazette, the Provisional Government may authorise the Prime Minister or any other Minister to make such emergency regulations as may seems to him expedient in the interests of the defence of the State, public security and the maintenance of supplies and essential services.

 

(b) .....................

 

(c) An emergency regulation shall expire three months after it is made, unless it is extended, or revoked at an earlier date, by an Ordinance of the Provisional Council of State, or revoked by the regulation-making authority."

 

                Counsel contends, moreover, that if the former legislative Defence Regulations of 1939 are no longer in force. Section 9, just cited, supplies a new legislative source for the making of emergency regulations. The Defence Regulations of 1939 were made by virtue of the Emergency Powers (Defence) Act, 1939, and the Emergency Powers (Colonial Defence) Order in Council, 1939. These old sources have now dried up. The Law and Administration Ordinance does nothing to perpetuate them. Therefore Defence Regulations, 1939, made under them no longer exist.

               

                In support of this argument counsel relied upon El Nouri's case (1). In that case the accused was charged under regulation 8(a)(2) of the Emergency Regulations, 1936, which had been made by the High Commissioner under the powers conferred upon him by Article IV of the Order in Council (Defence), 1931. According to Article II of the Order in Council it was to remain in force until suspended by a declaration of the High Commissioner. On September 30, 1936, a new Order in Council was issued by which Article IV of the Order in Council of 1931 was expressly replaced by another Article. In these circumstances, lt was held by the court that since there was no express provision in the Order in Council of 1936 that regulations made under the article which had been replaced were to remain in force, such regulations were no longer in force. Mr. Nohimovsky pointed out that there was in fact no express provision in the Law and Administration Ordinance to the effect that it replaced the Order in Council of 1939, but he argued that his submission was in no way weakened by this fact. Counsel found support for his argument in section 2 of the Law and Administration (Further Provisions) Ordinance, 1948, which provides that where any law enacted by the Provisional Council of State is repugnant to an earlier law (of the time of the Mandate), the earlier law shall be deemed to be repealed, even if the new law coutains no express repeal of the earlier law.

 

                In order to convince the court that no other interpretation of section 9(a) of the Law and Administration Ordinance is reasonably possible, Mr. Nohimovsky cited the Declaration of the Establishment of the State of Israel, which contains the following sentence: "The State of Israel shall be based on freedom, justice and peace as envisaged by the prophets of Israel."

               

                The Declaration is part of the law of the land, because "law" as defined in the Interpretation Ordinance, 1945, covers a Declaration such as this. This "law" restores to the Citizens of the State all the freedoms to which a citizen is entitled. Since this is so, the Declaration repeals those regulations and the laws from which they are derived, which robbed the citizen of his freedoms. The Declaration opened a new chapter of independent legislation. Counsel admits that a state of war sometimes requires emergency regulations. In his opinion, however, it is for this reason that section 9, which creates a new instrument for the making of such regulations, was enacted. It cannot be assumed that it was intended by this section to retain the previous restrictions, imposed in the time of the Mandate which contradict the provisions of the Declaration.

               

                Counsel contends, moreover, that if the former legislative sources have not been repealed by section 9 and by the Declaration of the Establishment of the State of Israel, then that section is completely superfluous, since it is possible to continue using the old sources for the making of emergency regulations in the future, without resorting to the new legislation.

               

                We cannot accept the attractive argument of counsel for the petitioner. As was submitted by Mr. Sha'aiovitz, Deputy State Attorney, the only object of the Declaration was to affirm the fact of the foundation and establishment of the State for the purpose of its recognition by international law. It gives expression to the vision of the people and its faith, but it contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal. The body which was temporarily empowered to enact statutes was the Provisional Council of State which was established with the Declaration of the State. It was this legislature which enacted the Law and Administration Ordinance and declared in section 11 of that Ordinance the law to be applied in the State. Mr. Sha'aiovitz was correct in his submission that in every case in which the question arises of the validity of a particular ordinance or regulation issued during the time of Mandate, such question must be solved by the test laid down in section 111). If, on applying that test, the ordinance or regulation is seen not to be repugnant to the Law and Administration Ordinance itself or to other laws enacted by or on behalf of the Provisional Council of State, then it is valid.

 

                It had already been held in Yuval Leon's case (2) (supra) that where a later statute is similar in content to an earlier statute, which it does not expressly repeal, no implied repeal of the earlier statute may be assumed unless it is inconsistent with the later statute or unless there is no justification or reasonable ground for its continued independent existence. Section 2 of the Law and Administration (Further Provisions) Ordinance, 1948, relied upon by counsel for the Petitioner, does not contradict this opinion but actually strengthens it.

               

                Let us now test the submissions of counsel in the light of the above principles.

               

                It seems to us, in the first place, that the judgment in El Nouri's case (1) is irrelevant. In that case it was expressly provided in the Order in Council of 1936 that a new article was to be substituted for Article IV of the Order in Council of 1931, while there is no similar feature in section 9(a) of the Law and Administration Ordinance. That section contains no express repeal of any earlier legislative source.

               

                As to the merits of the matter it is clear, as has already been held in Leon's case (2), that even if we disregard section 9(a) for a moment as if it did not exist, there is no inconsistency between the earlier statutes and the Defence Regulations made under them, and any section of the Law and Administration Ordinance. We must consider, therefore, whether section 9(a) has created any such inconsistency, or provides any other ground for the conclusion that the continued validity of the earlier statutes cannot be justified.

               

                In terms of the earlier statutes, the power of making Emergency Regulations was conferred upon the High Commissioner and he was not bound to consult any higher authority. According to section 14 of the Law and Administration Ordinance the powers of the High Commissioner were transferred to the Provisional Government which, were it not for section 9, could have continued to exercise those powers, without invoking the authority of the Council of State. The effect of section 9(a) is that although it is provided in section 11 that the law which was in force in Palestine on May 14, 1948 (including the Order in Council of 1939 and similar legislation) shall remain in force in the State, nevertheless the power of making Emergency Regulations is hemmed in by certain restrictions, one of which is that the authority of the Council of State must first be obtained. There is no hint in this section that earlier regulations, which were issued at a time when the exercise of the power in question was unconditional, shall cease to be valid. Further, there is no inconsistency between the Order in Council of 1939 and section 9 of the Law and Administration Ordinance. Section 9 put an end to the operation of the earlier statutes as a source of power to make regulations in the future, but that source, as part of the "law in force" in accordance with section 11, remained effective. This conclusion also follows from the arrangement of the sections in the Ordinance: section 9 is found in the third chapter of the Ordinance, which deals with methods of legislation for the future, while section 11 is found in the fourth chapter which lays down the existing law. It follows that the earlier source is not to be regarded as having become superflous and no longer valid.

               

                The second new submission of Mr. Nohimovsky is based upon section 10 of the Law and Administration Ordinance. His contention is that the appointment of the first respondent as a Competent Authority for the purpose of regulation 48 of the Defence Regulations, 1939, is not valid so long as it has not been published in the Official Gazette.

               

                According to the Interpretation Ordinance, 1945, counsel submits, a "letter of appointment" is included in the definition of the expression "regulation", and the provisions that apply to regulations also apply to letters of appointment. The letter of appointment of the first respondent, therefore, is a new  "regulation" which has been made by the Minister of Labour and Building, and in terms of section 10(c) of the Law and Administration Ordinance it is only valid from the date of its publication in the Official Gazette. In so far as the Defence (Amendment No. 4) Regulations 1945 - which provide that section 20 of the Interpretation Ordinance, 1945, in regard to the necessity for publication shall not apply to Defence Regulations - are concerned, counsel for the petitioner again relies upon section 2 of the Law and Administration (Further Provisions) Ordinance and submits that the amendment in question has been repealed by implication since it is inconsistent with section 10(c) of the Law and Administration Ordinance. Counsel concludes, therefore, that the appointment in question requires publication and that since it has not yet been published, it is invalid.

 

                It has already been emphasised, in Leon's case (2), that regulation 3 of the Defence Regulations, 1939, contains a special provision that the appointment of a Competent Authority shall be made by the High Commissioner in writing. There is no provision requiring publication of the appointment. Moreover, if we assume that the Defence Regulations (Amendment No. 4), 1945, do not apply to a regulation which has been amended by virtue of section 9 of the Law and Administration Ordinance and that section 10(c), which requires publication in the Official Gazette, does apply to such a regulation, then it cannot be argued that the Interpretation Ordinance, 1945, is inconsistent with section 10(c). The Interpretation Ordinance, therefore, is still in force, and new ordinances and regulations must be interpreted in accordance with its provisions. Now section 20 of the Interpretation Ordinance defines the expression "regulation" for the purpose of publication in the Official Gazette, and it would appear from this definition that it is only regulations of a legislative character which are regarded as regulations for such purpose. And if we read the "regulations" mentioned in section 10(c) of the Law and Administration Ordinance in the light of this definition, it is clear that a regulation of an administrative character does not derive its validity from publication in the Official Gazette. Note also that section 10 is included in the third chapter of the Ordinance, which bears the title "Legislation". In other words, this section only applies to ordinances and regulations which are passed or made under legislative, and not administrative powers. Were this not so there would have been no need to provide specifically in section 2(e) of the Ordinance that decisions of the government in regard to the duties of its members - which is an administrative regulation which is found in chapter I in connection with "administration" - shall all be published in the Official Gazette. Section 10(c) would have been sufficient for this purpose. It follows that there is no necessity for the publication of an administrative regulation in the Official Gazette unless the law expressly so requires. In conclusion, we must point to the inconsistency in this submission of counsel for the petitioner. In order to include a letter of appointment within the definition of "regulation'', counsel relies upon section 2 of the Interpretation Ordinance but at the same time he disregards section 20 of the same Ordinance, which excludes a letter of appointment from the framework of the definition in section 2 for the purpose of publication in the Official Gazette. We have reached the conclusion therefore, that the issue of the letter of appointment of the first respondent as a Competent Authority was an administrative act and that there was no necessity, therefore, to publish such appointment in the Official Gazette.

                We willingly associate ourselves with the opinion of counsel for the petitioner that it is desirable in the public interest that such appointments be published in the Official Gazette. In the light of the above analysis, however, we cannot hold that in the absence of publication the appointment is defective.

               

                We decide, therefore, to discharge the order nisi.

               

Order nisi discharged.

Judgment given on December 2, 1948

C.A. 525/63

 

           

REUVEN and ZILPAH SHMUEL

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[June 30, 1964]

Before Agranat D.P., Landau J., Berinson J., Witkon J. and Cohn J.

 

           

Judges - disqualification - religious bias - Courts law, 1957, secs. 7(a), 7(b)(2), (3) and 36.

 

 

The Attorney-General applied for an order against the applicants to remove their children from a Christian missionary school where they had placed them and to arrange for the children's education in a Jewish school. In those proceedings in the Tel Aviv District Court, the applicants requested that the sitting judge should disqualify himself because he was an orthodox Jew and people might gain the impression that he would therefore not deal with the matter impartially. The judge refused to do so and the applicants moved the Supreme Court to have the hearings transferred to another judge of the Tel Aviv District Court.

 

Held  (1) The statutory provisions regarding transfer of cases go only to change of venue in the strict sense of place of trial and not the personality of the judge, and then only when the judge concerned consents thereto.

 

(2) A judge may certainly possess personal views and beliefs but he must not allow these to pervert his allegiance to the law either in letter and spirit. Judges are presumed to be conscious of and to abide by this obligation.

 

(3) Whilst there is no dispute that a judge's decision not to disqualify himself should be subject to judicial review, there is no room for the notion that a litigant should be able to choose to be tried by a judge whose views please him.

 

(4) The decision of a judge not to disqualify himself may be an administrative and not a judicial act, and as such open to review like any other administrative act by the High Court of Justice especially when no right of appeal against the act exists. As a judicial act, the decision is not reviewable under the High Court's statutory powers. In the absence, however, of any remedy, the decision may be challenged indirectly or incidentally by way of an ordinary appeal against the judge's final judgment in the case.  A decision on a challenge to the composition of a court before it has been constituted is an administrative act.  A like decision after the proceedings have commenced isa judicial act which can only be contested by ordinary appeal.

 

(5) The High Court of Justice will not order prohibition either against a court or a particular judge where the remedy of appeal is available.

 

(6) Interlocutory appeal against a judge's decision not to disqualify himself is in any event only possible under the law in respect of civil and not criminal matters. The legislature might well consider a reform of the law in this regard.

 

Israel cases referred to:

 

(1)   H.C. 295/59 - Moshe Goldenberg v. President of Tel Aviv-Yaffo District Court and others (1959) 13 P.D. 2207.

(2)   Misc. App. 3/50 - Yosef Weinberg v. Attorney-General and another (1950) 3 P.D. 592.

(3)   H.C. 174/54 - Yisrael Shimel v. Competent Authority and Appeal Committee for the purpose of the Law regulating Seizure of Land in an Emergency (1955) 9 P.D. 459.

(4)   H.C. 279/60 - Ulame Gil Ltd. v. Moshe Yaari and another (1961) 15 P.D. 673; VI S.J. 1.

(5)   H.C. 203/57 - Eliezer Rubinski v. Competent Officer under Cooperative Houses Law (1958) 12 P.D. 1668.

(6)   H.C. 23/50 - Yosef Weinberg v. Attorney-General and another (1950) 10 P.M. 85.

(7)   Cr.A. 239/54 - Bess Perah v. Attorney-General (1955) 9 P.D. 397.

(8)   H.C. 49/62 - Aharon Kluger and others v. Inspector General of Police and others (1962) 16 P.D. 1267.

(9)   H.C. 206/59 - Shlomo Gilah v. Jerusalem Magistrate and others (1960) 14 P.D. 1709.

(10) F.H.15/62 - Societe des Ateliers Pinguely Ville Gozet S.A. v. Aharon Kluger and others (1962) 16 P.D. 1539.

(11) H. C. 125-127/50 - Kvutzat HaHugim Bet HaShitah and others v. Haifa Committee for Prevention of Profiteering and others (1951) 5 P.D. 113.

(12) H.C. 91/61 - Israel Film Studios Ltd. v.Jerusalem District Court (1961) 15 P.D. 782.

(13) H.C. 326/61 - Natan Kravchik v. Attorney-General and others (1961) 15 P.D. 2389.

(14) H.C. 142/64 - Carmel Mahviti v. Attorney-General and others (1964) 18 P.D. 449.

(15) H.C. 250/61 - Moshe Dvik v. President of Supreme Court and others (1961) 15 P.D. 2529.

(16) H.C. 66/63 - Attorney-General v. Beersheba Traffic Judge (1963) 17 P.D. 1056.

(17) H.C. 307/51 - Y. Lalo v- Tel Aviv District Court Judge (1952) 6 P.D. 1062.

 

English cases referred to:

 

(18) Dimes v. Proprietors of Grand Junction Canal 10 E.R. 301 (1852).

(19) R. v..Camborne Justices and another (1955) 1 Q.B. 41; (1954) 2 All E.R. 850.

(20) Eckersley and others v. Mersey Docks and Harbour Board (1894) 2 Q.B. 667.

(21) R. v. Rand and others (1865-66) L.R. 1 Q.B. 230.

(22) Colonial Bank of Australasia and another v. Willan (1873-74) L.R. 5 P.C. 417.

(23) R. v. Cheltenham Paving Commissioners 113 E.R. 1211 (1841)

(24) R. v. Recorder of Cambridge 120 E.R. 238 (1857).

 

American cases referred to:

 

(25) No. 721 Jewel Ridge Coal Corp. v. Local No- 6167, United Mine Workers of America and others 89 L.Ed. 2007 (1945).

(26)      Korer v- Hoffman 212 F (2d) 211 (1954).

(27)      Gulf Research & Development Co.v. Leahy and others 193 F(2d) 302 (1951).

(28)      Roche and others v. Evaporated Milk Ass. 319 U.S. 21 (1943).

(29)      Minnesota & Ontario Paper Co. and others v. Molyneaux 70 F (2d)545 (1934).

           

Y. Ben-Menashe for the applicants.

Z. Bar-Niv, State Attorney, and P. Albek for the respondent.

 

LANDAU J. This is an application for leave to appeal against the decision of His Honour Judge Kisser dismissing the applicants' application for consent to transfer to another judge the hearing of a guardianship claim pending before him as a sole judge of the Tel Aviv-Jaffo District Court.

 

            In those proceedings the Attorney-General had sought an order against the applicants to remove their three children from a Christian missionary institution where they were and to arrange for their admission to a Jewish school. The application to transfer the hearing was based on section 36 of the Courts Law, 1957. At the beginning of his decision in question Judge Kister said

           

"Section 36 deals with a transfer from the court of one locality to the court of another locality, and since Mr. Ben-Menashe does not ask for the matter to be transferred to the District Court of another locality, for that reason alone the application is to be dismissed."

 

Nevertheless the judge went on to deal with the application on its merits and found no cause for disqualifying himself from sitting and hearing the action.

 

            On the application for leave to appeal Mr. Bar-Niv, the State Attorney, raised the fundamental question of the correct interpretation of section 36 and the remedy of a party who contends that a judge is disqualified from sitting.

           

            Section 36 provides:

           

"Where a matter has been or is to be brought before a District Court or Magistrate's Court in one locality, the President of the Supreme Court or his Permanent Deputy may direct that it be dealt with by a court of the same level in another locality; but a direction under this section shall not be issued after the commencement of proceedings in the matter save with the consent of the Judge who has begun to deal with it."

 

The learned State Attorney submits that the section is to be read literally: it speaks of the transfer of a matter from the court of one locality to the court of another locality and does not deal with the transfer of a matter from one judge to another in the same court. In this connection he asks us to demur from previous decisions of this Court expressing a view contrary to his. The first of these decisions was given in Goldenberg v. President of Tel Aviv-Yaffo District Court (1) which involved an order nisi to transfer the hearing of a civil action from the judge dealing with it to another in the same court. It was said there by Olshan P. (at p. 2208) that

 

"We are of the opinion that in making the present application the

petitioner erred as regards jurisdiction.

 

The petitioner argues that an application to transfer a hearing fromone judge to another has actually the character of an application for prohibition and for that, he urges, one must apply to the High Court of Justice.

Even if the petitioner is right in assimilating an application under section 36 of the Courts Law, 1957 to an application for prohibition, the answer is that if a given matter for which prohibition is desired is regulated by the legislature in a particular manner, it must be determined in accordance with the manner laid down by the legislature. Clearly, according to the rule found by the President (Zmoira) in Weinberg v. Attorney-General (2) the transfer of a hearing to another locality includes its transfer to another judge. It is therefore obvious that under the legislature's regulation of the matter in section 36 of the Courts Law, 1957, the petitioner's application falls within the section. Hence the course pursued by the petitioner in this instance is not well-founded."

 

In H.C. 282/63 Rehana v. Atory (unreported) this Court followed Goldenberg(1) and held that where the judge who is sitting in a case refuses to disqualify himself and for that reason the applicant cannot obtain a transfer of the proceedings under section 36 of the Courts Law, no jurisdiction is conferred on the High Court of Justice to transfer them to another judge.

 

            Weinberg (2) was decided before adoption of the Courts Law and Goldenberg (1) and the unreported case after its adoption. In both of the latter two this Court accepted the rule in Weinberg as binding without especially examining the effect of section 36 and without argument on the question, both being heard in the presence of the applicant alone. Here Mr. Bar-Niv has argued that section 36 has made a basic change and therefore the rule in Weinberg (2) no longer applies Moreover, he has cast doubt upon the correctness of the Weinberg rule itself at the date when it was given. I accept his argument and also concur in his doubt.

           

            In Weinberg (2) Zmoira P. explained the English concept of "change of venue", found in section 21 of the Courts Ordinance, 1940, and held that it also bears the broad meaning of the transfer of a matter from one judge to another. May I be permitted to say that it bears this meaning with great difficulty. In any event, there is no dispute that the common meaning of "change of venue" refers to the locality of a trial, and historically the particular place to which the jury has been summoned. A change of venue is called for when fear exists that because of conditions prevailing in a given locality, such as inflamed public feeling, a jury cannot be mustered which will be able to deal with the matter impartially (Blackstone's Commentaries, vol. 3, p. 383).

           

            Why, nevertheless, did the Court in Weinberg (2) adopt the forced meaning of "change of venue"? Because "without such meaning it would be impossible for a defendant to apply for disqualification of a judge" (at p. 597), the Court pointing out that section 62 of the Ottoman Civil Procedure Law had been repealed without replacement. It appears to me that even failing express provision of enacted law a source can be found for the rules regarding the disqualification of judges. I shall return to this question later.

           

            Even if it is possible to rely on Weinberg (2) for the meaning to be given to the English concept of change of venue, it cannot be treated as a precedent for the construction of section 36 of the Courts Law which, written in Hebrew, speaks of the transfer from one locality to another. In the course of the enactment of the section both aspects - transfer from locality to locality and transfer from judge to judge - were in the contemplation of the legislature. Clear evidence of that is to be found in the bill of the Courts Law published in Reshumot. Section 46 of the bill contained the substance of section 36 of the Law as finally adopted and section 39 covered "the circumstances in which a judge shall not sit". The latter is omitted from the Law in its final text and we do not know who or what brought about its omission... .

           

            The phrase "a District Court or Magistrate's Court in one locality" is quite clear in its literal sense. It deals with the court as an institution and not with the judge as a person. A "personal" meaning cannot be forced into the word "locality" which it does not possess. From the fact that in Weinberg (2) "change of venue" was held to mean both a transfer of locality and a transfer of judge, one may not deduce that in Hebrew the former means also the latter.

 

            Moreover, section 36 refers to a matter which has been "or is to be brought" before a particular court. The locality of the court before which a matter is to be brought is fixed by law but there is no provision of law which from the outset compels a particular matter to be brought precisely before a particular judge. That is left to the discretion of the President of the court under sections 4(b) and 16(b) of the Courts Law or the Chief Magistrate in consultation with the judges of the Magistrate's Court under section 26. as the case may be.

           

            The latter part of section 36, regarding transfer of a matter after proceedings have commenced, was added (in the Knesset) to safeguard the independence of the judges, so that no matter which they had already commenced to hear should be withdrawn from them against their wishes. That does not go at all to the question of the personal disqualification of the judge dealing with a matter. Furthermore, had section 36 also dealt with a judge's personal disqualification, why distinguish between a trial which has not yet begun and one which has, and only in the latter event require consent of the judge concerned?

           

            Accordingly, I maintain that section 36 of the Courts Law merely prescribes the mode of transferring a matter from one court to another in point of locality, like the classic change of venue, and it has nothing to do with the disqualification of the individual judge. Hence the learned judge was right in the point he made at the beginning of his decision on the subject of the present application, which is enough for dismissing it.

           

            Since, however, the basic question has been raised as to the remedies available to a party seeking to disqualify a judge for reasons of bias, I shall add a number of observations to elucidate this important subject.

           

            The learned State Attorney submits that in Israeli law there is no disqualification of judges at all and the only remedy of a party who feels aggrieved by a judge's bias is to appeal for annulment of his judgment. Mr. Bar-Niv sought to deduce this from the omission of section 39 of the bill, as above, from the final text of the Law, as well as from the judgment of the House of Lords in Dimes v. Grand Junction Canal (18).

           

            I cannot go along entirely with the State Attorney in his submission. We can only deduce from the omission of section 39 of the bill that the Israeli legislature abandoned the attempt of defining in enacted law the grounds for the disqualification of judges, but its silence does not prevent us from referring to the sources of English Common law to fill the gap in our legal system. It is necessary, in my opinion, to have recourse to these sources in this regard since it is unthinkable that a party in this country should be powerless before a biased judge. We may indeed find in Blackstone (vol. 3, p. 361) an extreme view similar to that of Mr. Bar-Niv.

           

"By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now it is otherwise, and it is held that judges and justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such behaviour would draw down a heavy censure from those, to whom the judge is accountable for his conduct."

 

Blackstone's teaching that disciplinary sanction against the biased judge is sufficient did not, however, find favour with the English courts, witness the judgment in Dimes (18). There the Lord Chancellor himself had decided a matter affecting a company in which he was shareholder but the House of Lords did not hold back from setting aside the judgment. In doing so, it adopted the opinion of Parke B. (at p. 312), who said

 

"We think that the order of the Chancellor is not void; but we are of opinion that as he had such an interest which would have disqualified a witness under the old law, he was disqualified as a Judge; that it was a voidable judgment...."

 

            This court has followed English case law when the bias of persons possessing judicial powers was in question (Shimel v. Competent Authority etc. (3); Ulame Gil Ltd. v. Yaari (4)]. Examination of the precedents cited in Shimel, and particularly R. v. Camborne Justices (19) also cited to us by Mr. Bar-Niv, shows that as regards the substantive rules of disqualification by reason of bias no difference exists between judges and other persons possessing judicial powers.

           

            The main question is not as to the substantive rules but the procedural means by which these rules can be effectuated, and more precisely a party's remedy against a judge who refuses to disqualify himself. If the decision on disqualification is left solely to the judge himself, acting in accordance with his conscience, the inevitable consequence will be that if he does not find himself disqualified, he is not to be disqualified subsequently in an appeal against his judgment in the dispute between the parties. We have already seen that this is not the Common law rule and Mr. Bar-Niv also did not suggest that. Of possible solutions of the problem, the extreme one is that a judge must withdraw immediately upon a party raising the question of disqualification. Only in such a case can we speak of the actual disqualification of a judge by a party. That is the position in England with regard to county court judges (see County Court Rules, O.16, r. 2, in County Court Practice, 1963, p. 389). An intermediate solution is that the decision rests initially with some other authority, under the French Criminal Procedure Code (articles 668 ff.) the senior presiding judge of the Court of Appeals (see also articles 378 ff. of the French Civil Procedure Code, which inspired section 62 of the Ottoman Civil Procedure Law) or the court of which the judge whose disqualification is sought is a member (that seems to be the statutory arrangement in the Military Jurisdiction Law, 1955, sections 310-15, 343 ff.). Under Common law the disqualification of a judge is clearly a cause for annulling his judgment after close of the trial. But it is undesirable that a party should be without remedy to effectuate a substantive right of his until that late stage. If the judge is really disqualified, it is a waste of the time and effort fruitlessly invested in proceedings which will ultimately be set aside. In England indeed prohibition may lie against a judge of an "inferior" court which will bar him from continuing to hear a case (Halsbury Laws of England, 3rd ed., vol. 11, p. 114), and this Court so proceeded in Ulame Gil Ltd. (4). As regards courts which are not "inferior" I have not come across any English decision to the effect that the only remedy is appeal at the end of the case. Dimes (18) did not so hold but left the question open. As Parke B. said (at p. 312)

           

"If this had been a proceeding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would be granted, pending the proceedings, upon an allegation that the presiding Judge of the court was interested in the suit; whether a prohibition could go to the Court of Chancery, it is unnecessary to consider" (emphasis added).

 

 (The necessity for that did not arise because the proceedings before the Lord Chancellor had already terminated when the House of Lords dealt with his disqualification.)

 

            Since the enactment of the Courts Law, 1957, we are no longer bound, in my opinion, to the rules relating to prohibition in England, and the distinction between the Magistrate's Court as an "inferior court" and the other courts with which the Law deals has ceased to exist. Henceforth we must find the answer to the question before us - whether in fact appeal after close of proceedings is the only remedy available to a party who alleges that the judge is disqualified - within the frame of the Courts Law itself. Prima facie matters of this kind come under section 7(b)(3) dealing with the jurisdiction of the High Court of Justice to order that individuals having judicial powers refrain from dealing or from continuing to deal with a particular matter. But what of the proviso which excludes from the application of the Law "courts dealt with by this Law"? I do not find this proviso an obstacle to the exercise of the jurisdiction of the High Court of Justice. A judge who rejects the submission of a party that he is personally disqualified from dealing with a matter brought before him does not thereby exercise the jurisdiction of a court but expresses his opinion on the preliminary question of his personal qualification to sit in trial; and no question arises here of the jurisdiction of the court as such. In other words, the decision of a judge not to disqualify himself (as well as his decision to disqualify himself) is not a judicial decision in the full sense of the word but pertains to "the border country" of judicial administration, similar to the decision of the President of a court that a particular judge should hear a given case. This is patent when a court sits, for example, in a bench of three and a plea of disqualification is raised against one of the three judges. If he does not think himself disqualified and his two colleagues disagree with him, the latter, in my view, cannot force him by a majority decision to withdraw (in the absence of express statutory authority as in the Military Justice Law). The decision to continue dealing with the matter is therefore his personal decision and not the decision of the court. And it makes no difference if the court consists of a single judge since we must still distinguish the court as an institution having jurisdiction and the judge who serves on it. Moreover, a judge's decision not to withdraw is taken by him on the basis of facts relating to him personally and known to him more than to others. Such a decision is accordingly the complete opposite from a judicial decision on the basis of facts proved before the court in the customary manner. It should be noted that in French civil procedure enacted law accords an express right of appeal against a decision regarding the disqualification of a judge (article 391). In discussing the question whether this right of appeal is also available to the side opposing disqualification, Glasson and Tissier, Procedure Civile, (1925) vol. 1, p. 155, say

 

"Il ne s'agit pas ici d'un litige a juger, mais plutot d'une question d'administration judiciaire, de la composition du tribunal qui doit statuer sur un litige."

 

I should add that even if I thought that the matter did not come under section 7(b)(3) I would find occasion in this context to exercise the general powers of the High Court of Justice under the first part of section 7(a), as this Court suggested in Rubinski v. Competent Officer etc. (5) regarding a decision of a District Court which was void ab initio.

 

            In the United States the dominant rule is that a judge can be compelled by mandamus or prohibition not to deal with a matter which he is disqualified to hear (45 A.L.R. 2nd, pp. 938 ff.) and this rule obtains even without express statutory provision (8 A.L.R. pp. 128, 1240).

           

            As will be recalled, it was said in Goldenberg (l) that the High Court of Justice has no power to deal with an application for transfer of proceedings from one judge to another. This view is based on the ground that another remedy exists in section 36 of the Courts Law. I have tried to show above that section 36 does not apply to such an application, and if I am correct, the ground of alternative remedy falls away. It should also be remembered that Weinberg (2) decided in 1950 that no order is to be made against a District Court judge to refrain from sitting in a particular matter because that court is not an inferior court. As I have explained, this decision is not to be followed after the enactment of the Courts Law.

           

            Since the decision of a judge not to disqualify himself is not the judicial decision of a court, no interlocutory appeal lies against it. Apart from that, this remedy creates unjustified discrimination between civil proceedings in which interlocutory appeals are possible and criminal proceedings in which they are not. What is the difference between an interlocutory and a final appeal, for we have already said that the question of the judge's disqualification can be raised in an appeal against his judgment? The answer is that at the end of the trial the submission is not that the judge was disqualified from the outset but that the judgment of the court is defective as a result of his disqualification.

 

            Consequently the correct way to plead disqualification of a judge about to sit is, in my opinion, to apply to the judge to disqualify himself, and if he is not prepared to do so, the remedy is an application to the High Court of Justice.

           

            Nevertheless I wish to observe that the Court will certainly attach great weight to the position taken by the judge concerned and will interfere only in an extreme case with his opinion that he may sit. The court will so act with regard to the facts of the case, as to which the judge is deemed to be trustworthy, as well as with regard to the conclusions stemming from them, since the presumption is that a judge has properly searched himself, remembering his declaration of allegiance "to dispense justice fairly, not to pervert the law and to show no favour". In order, however, to preserve the confidence of the public in its judges of all ranks the possibility of reviewing a judge's decision must not be yielded entirely. I have expressed my view about lex lata as I see it. Possibly, de lege ferenda a more convenient solution may be found, perhaps along the line of the President of the Supreme Court reviewing the judge's decision (without the necessity of the judge concerned giving his consent) or of laying down special procedural provisions for the hearing of petitions of this kind by the High Court of Justice.

           

            Finally, I wish to consider briefly two matters connected with the contents of the application before us, which relate to the substantive law on the disqualification of judges. I do so in order to save the parties from further litigation over the question. The application to his Honour Judge Kister contained six grounds. Among them the following observation occurs six times as a refrain: "Your Honour is known to have no predilection but many persons, not necessarily reasonable people, will draw the conclusion" etc. This very repetition gives the application a vexatious character. The phrase "not necessarily reasonable people" is taken from the judgment of Lord Esher in Eckersley v. Mersey Docks (20) (at p. 671). Later cases have criticized it not once as being too wide. If indeed the court were to take heed of the views of unreasonable people there would be no end to the matter. The criticism is collected in R. v. Camborne Justices (19) where the court preferred the formula of Blackburn J. in R. v. Rand (21) that the applicant must show "a real

possibility of bias", a test which this court adopted in Shimel (3) (at p. 462).

 

The sixth ground of applicant's counsel was as follows:

 

"Your Honour is known to have no predilection but it is also known that your Honour is a judge with orthodox religious views and must decide in this case whether in your opinion being educated in another religion is not detrimental to the children. Apparently many persons, not necessarily reasonable, would conclude that it is not proper for a Jewish orthodox judge to act in a matter involving the school of another religion and requiring him to decide whether being eucated in another religion might be detrimental to a Jewish child."

 

Any one reading these words literally cannot but understand that an attempt is being made here to disqualify a judge from sitting because of his personal outlook - in the instant case his orthodox religious outlook. Mr. Ben-Menashe made a great effort to persuade us that this was not the intention and finally waived this ground in its entirety. He would have done better had he not indited these tasteless words. I would have thought it unnecessary to explain that a judge may have his own personal outlook. Certainly he must guard against his beliefs and opinion about the condition of society under which he lives distorting his fidelity to the letter and spirit of the law. The judges of Israel are presumed to know how to fulfil this obligation of theirs. In no manner is room to be given to the notion that a litigant is only to be tried by a judge whose personal outlook meets with his approval. No legal system could operate on such terms.

 

            Among the five other grounds for disqualifying His Honour Judge Kister, Mr. Ben-Menashe mentions the judge's observations in an interlocutory decision, which according to counsel display preconceptions about the question the judge was to deal with. An interlocutory decision of 26 March 1963 refers to a submission by counsel for the children's parents, that the Attorney-General has no power to intervene with regard to the children's custody and therefore his application should be struck out. Counsel for the parents appeared only after the judge had already heard some of the witnesses. In the said decision the judge dealt at length with some of the general problems involved in the education of children in a religion not their parents' and with the operation of Christian missionary institutions in this country. In this regard he mentions also evidence previously given. The learned judge expressed inter alia a negative view on the free education given to children by missionary institutions. The judge treated as discreditable such material benefits to parents, and he also suggested - basing himself on the evidence of the welfare officer that the father had requested a sum of money for his consent to the children being withdrawn from the missionary institution- that the father might have received from that institution consideration in addition to being relieved of financial expenses. He also expressed his opinion that a religious community seeking to save the souls of members of another community must desist from all illegitimate means "such as deception and bribery and generally to avoid any suspicion of reprehensible activity". Of the father, the judge said that "if a person suggests bribery and is dazzled by it, he can slander all the education provided by the State".

 

            I do not think that all these remarks were necessary for the interlocutory decision on the submission in law of want of jurisdiction. I also doubt greatly whether there was even occasion in response to Mr. Ben-Menashe's concrete request for the observation that "indeed we perceive the corrupt source of the idea of disqualifying an orthodox Jewish judge in this country, the sullied well from which people who so desire draw their views". (What is meant here is Nazi thinking.) So general an observation, written it seems in an angry moment does not, however, give ground for any real fear that the learned judge would not know how to decide impartially between the parties in accordance with the law and the evidence adduced. As for the father "suggesting bribery", I understand that to refer to the benefit which the father obtained from the free education the children received in missionary institution. Although not happily phrased, these words are merely interpretative of what had been said in court down to that point. The judge observes a number of times in his decision that he was for the moment dealing with prima facie evidence and at p. 6 he says:

           

"After going into the question - of education in institutions where there are parents alive and of education in another religion and the influence on the child - in general and without making any finding of the facts in the present case at this stage so long as I have not heard all the evidence and the parties have not made their submissions regarding the circumstances of the case, I must turn to the legal aspect...."

 

These explicit remarks take the sting out of a number of the judge's observations and demonstrate that he approached the matter before him with the required caution and without preconceptions, as a judge should. There is accordingly no ground for Mr. Ben-Menashe's fear that his client will not enjoy a fair trial.

 

            In sum, the application before us was not properly made and for that reason must be dismissed. I would add that it also has no foundation on the merits.

           

WITKON J. With respect I agree to all that my honourable friend, Landau J., has said regarding the non-applicability of section 36 of the Courts Law, 1957, to a case such as the present but I disagree with his proposal to open the High Court of Justice to litigants who are dissatisfied with the refusal of a judge to disqualify himself.

 

            I do not dispute that the decision of a judge not to disqualify himself (and perhaps even his decision to disqualify himself) should properly be subject to review by another judicial body. Such review might well be left to a different court or to a different judge of the same court. What is important is that a judge should not be the final arbiter regarding his disqualification. But to bring the matter within section 7 of the Courts Law we must first determine that a judge's decision regarding his disqualification is an administrative and not a judicial decision. That is not free from doubt. The difference between a judicial and an administrative act is not firmly based and the boundary is a shifting one. In point of classification no absolute difference exists between an administrative act (when imposed on a judge) and a judicial act. We were exercised with this problem, inter alia, in Perah v. Attorney-General (7). There, a Magistrate decided that gold, in respect of which an offence was committed entailing expropriation, should be returned by the police to the true owner who was guiltless of the offence. The question was whether the decision made under section 388 of the Criminal Code Ordinance, 1936, was part of the sentence against which the Attorney-General might appeal or whether it was an administrative act in which only the High Court of Justice could intervene. The question was left open but I wish to say at once that there was no reason to have raised the problem had it not been clear that no appeal lies against a purely administrative decision.

 

            Deeper research was devoted by Berinson J. to the distinction between judicial and administrative acts in Kluger v. Inspector General of the Police (8). That case involved a search and seizure warrant issued in the course of criminal proceedings. The element common to this and the previous case is that in both the order affected a third person not party to the proceedings. Here the High Court of Justice intervened on the application of the third party. Berinson J. had the following to say about its power to do so:

           

"The question arises whether in issuing the search and seizure warrant the judge acted as a court or merely performed an administrative act even though it involved judicial discretion. It seems to me that basically the function was administrative, although not ... a function of executing a judgment like activating conditional imprisonment for instance. Here the judge is not activating another's decision but is deciding in his discretion and on the basis of prima facie evidence adduced to him that the statutory conditions for issuing a search and seizure warrant have been fulfilled. For all that, the issue of such a warrant is unlike a pure judicial act of a court. It can be issued before trial and even before any one is charged and there is no procedure for joining persons concerned in the matter or liable to be prejudiced by the warrant in the proceedings before the judge. Such a warrant may affect the interests of a bystander not directly connected with the matter itself in respect of which the search warrant is claimed and issued. Even when it is issued in the course and for the purpose of a criminal trial, it is still not an integral part of the trial but a side issue secondary thereto. A person prejudiced by it has no way to test its lawfulness or correctness in any court other than this Court which is thus competent to deal with the matter under section 7(a) of the Courts Law, 1957. The present case is closely, if not entirely, similar to Gilah v. Jerusalem Magistrate (9). Here as there the sitting judge held that the matter was within his competence whilst hearing another trial. Here as there the judge's decision was not open to appeal or other judicial review. Here as there the person who felt himself aggrieved by the decision was not a party to the trial within which it was given. Accordingly, here as there the applicants can ask for relief from this Court in pursuance of section 7(a) of the Courts Law" (at p. 1271).

 

In that case application was made for a Further Hearing - Societe des Ateliers etc. v. Kluger (10). Cohn J. summed up the law as follows:

 

"Within the framework of the relief mentioned in paragraph (3) of section 7(b) of the Courts Law, 1957, the High Court of Justice will not take cognizance of judicial decisions of District Courts or Magistrate's Courts, whether or not appeal against them is possible. It is otherwise within the framework of the relief mentioned in paragraph (1) or (2) of section 7(b) or within the wider framework of the relief under section 7(a). When performing an administrative act, a judge is also a state organ and in doing so exercises a lawful function. The rule that the High Court of Justice is competent to interfere with administrative acts even if done by a judge is nothing novel" (at p. 1540).

 

            There is no doubt that in the course of his ordinary work the judge makes decisions having an administrative character, the remedy against them lying with the High Court of Justice. But, as I have already said, a decision may frequently be of a mixed nature with features of both kinds. It can then be said that if the person aggrieved has a clear right of appeal, the indication is that the judicial aspect is decisive. On the other hand, lack of a right of appeal opens the path to the High Court of Justice for the aggrieved person. And where a right of appeal is available against a decision which as such and in what it involves is an administrative decision, the matter can only be resolved by converting the decision into a judicial one. Thus no clear distinction exists between the two.

           

            A judge's decision not to disqualify himself may, no one disputes, be challenged by the aggrieved person by appeal against the decision of the judge on its merits. I am alive to the fact (pointed out by my friend, Landau J.) that disqualification is only incidental to such an appeal and not in itself the subject of appeal. Nonetheless, in my opinion, it is sufficient that a judge's decision not to disqualify himself can be tested in the course of the appeal, even if only in this manner. The decision thus assumes the form of a judicial decision, and once again cannot be contested in the High Court of Justice. Obviously, I can also reach the same conclusion under the express rule in section 7(a) of the Courts Law that the High Court of Justice will not intervene in matters which are within the jurisdiction of any other court. I think that the existence of another remedy in the present case closes the path to the High Court of Justice completely.

 

            The rule is that the High Court of Justice does not order prohibition where the aggrieved person has a right of appeal against the decision likely to affect him. In my opinion, it is immaterial to the application of this rule whether the order is sought simply against a court or a particular judge of a court. As far as I know, prohibition has never issued in this country simply against a court when a right of appeal exists. An attempt at that in Kvutzat HaHugim Bet HaShitah v. Haifa Committee etc. (11) was unsuccessful. Although the Court did not utterly deny the "co­existence" of prohibition and appeal, it should be remembered (a) that a special tribunal was involved in that case, (b) that appeal against the tribunal's decision went only to the District Court and (c) that the Court considered the possibility of ordering prohibition in cases only of manifest want of jurisdiction. (See the precedents cited at pp. 125-28.) It is in this spirit - delimiting the ambit of the applicability of prohibition - that I understand the remarks of Agranat J. in Rubinski (5).

           

            Another attempt to obtain a High Court order against a District Court this time by mandamus requested by a third party in an "administrative" matter - failed in Israel Film Studios Ltd. v. Jerusalem District Court (12). Moreover in Kravchik v. Attorney-General (13) the High Court of Justice dismissed an application for an order against the Attorney-General to discontinue a criminal action (on the ground of autrefois acquit) on the ground that the applicant first had to address himself to the Attorney-General. Although the Court pointed out that because of that its intervention was premature, in a later case, Mahviti v. Attorney-General (14), it refused to intervene in a trial pending in the Magistrate's Court. The question whether prohibition can issue against the President of the Supreme Court was left open in Dvik v. President of the Supreme Court (15). Finally, I should mention Attorney-General v. Beersheba Traffic Judge (16) where the High Court of Justice made an order against a Traffic Judge to refrain from continuing to hear a case after the Attorney-General had ordered a stay; this case is different from the one before us since after a stay order the competence of a magistrate ceases entirely.

 

            Should it be urged that appeal is not a sufficiently effective remedy and therefore the matter merits the attention of the High Court of Justice, I would answer by way of preliminary that cases may occur where a party raises the question of the court's composition even before it has been determined by its President under sections 4(b) or 16(b) or by the Chief Magistrate under section 26 of the Courts Law: and it appears to me that the determination is an administrative act which the aggrieved party might well ask the High Court of Justice to review. After commencement of trial, however, a party unsuccessfully seeking the disqualification of a judge can only seek his remedy on appeal. I would say that on a balance of the instances and convenience that this is more effective and seemly than application to the High Court of Justice, even if in the meantime the party must bear with the judgment and wait for his remedy until the appeal reaches its turn. In practice, however, I see no reason for preventing an interim appeal (after leave) against a judge's decision not to disqualify himself. It is very true that this possibility exists only in civil cases as distinct from criminal. But this difference between the two kinds of trial obtains in any event and the discrimination affects every accused person raising a preliminary issue regarding the charge sheet or the jurisdiction of the court, since he cannot appeal against the decision of the court which dismisses his plea and must stand perhaps lengthy trial with all the distress and hardship that entails.

           

            Perhaps the most important consideration against transferring this jurisdiction to the High Court of Justice is that it is not at all a convenient forum for going into the problem. In this Court the judge becomes the respondent and if the petitioner has levelled against him an empty charge, is it not unbecoming for the judge to enter an affidavit in reply on which he may be examined? And what will happen if the other party concerned is not ready to support the judge's decision not to disqualify himself? Such problems and the like do not arise when the remedy is by way of appeal for then the judge has the opportunity to explain in his decision the position he has taken and the party may contest it and even contradict it by affidavit but cannot compel the judge to debate it with him. I therefore believe that to open the High Court of Justice to a party dissatisfied with a judge's decision not to disqualify himself is not only unnecessary for justice to be done but is also inconvenient and undesirable.

 

            Like my friend Landau J., I also wish to add a few observations on the merits of the case. I join in the view that there was no room for Judge Kister to disqualify himself from sitting in the case or even to ask him to disqualify himself. And I also find that the very request was in bad taste. Nevertheless I would like to explain why I think that the honourable judge was not disqualified. He himself reacted to the applicants' request in an exaggerated fashion and among his reasons for not disqualifying himself there were some that were irrelevant. Nobody argued that a Jewish judge, even an orthodox Jew, is incapable of dealing without preconceptions with matters affecting members of another religion. The argument was confined to the concrete case before the judge of a Jewish child whose parents had sent her to a Christian missionary school. In such a case, the applicants urged, an orthodox Jew has firm views of a wholly negative nature. Is that a reason for disqualifying an orthodox Jewish judge?

           

            In my opinion, it is not. The question whether the State should rightly and properly interfere with the decisions of parents to send their children to mission schools is debatable. On the one hand one need not be an orthodox Jew to regard such action with profound concern. Educationally it is certainly undersirable to create conflict in the minds of very young children and bring them up in a manner which ultimately will erect a barrier between them and the large public among whom they will be living. On the other hand one recoils from any interference in the freedom of parents to educate their children as they think fit; equally one must be careful not to prejudice freedom of religion and to avoid excessive interference by the state in the free competition of opinions and views in the religious and other spiritual fields. It is precisely the Jewish people largely living in the Diaspora which is sensitive to such interference. For the purpose of the present application we do not have to decide which of these two considerations (and perhaps others of the same kind) we should prefer. That is the task of the judge dealing with the case on its merits. Here we are only concerned with the question whether the judge is disqualified. To this end we must emphasise with the utmost clarity that a judge - be his personal outlook what it may - is presumed to know how to give all important considerations their full weight and importance. Such moderation is a characteristic of a judge qua judge. Hence it is wrong and truly prejudicial to the judiciary itself to request a judge to disqualify himself because of his "religious" or "non-religious" views (to use these unhappy terms) or because of his views in other areas. I am sorry that the present applicants could not understand that.

 

BERINSON J. I concur in the judgment of Witkon J. and have nothing to add.

 

AGRANAT D.P. I agree with the conclusions of my honourable friend, Landau J., that section 36 of the Courts Law does not bear the meaning that it is designed to accord a remedy to a party claiming the disqualification of a judge but only prescribes the manner of transferring a matter from one court to another in point of locality. Such conclusion is sufficient to defeat the application before us, but I must add that I also join in the view of my friend, denying the very argument of disqualification raised by applicants' counsel.

 

            On the important basic question over which my friends, Landau J. and Witkon J., are divided - whether the High Court of Justice should be open to a person who quarrels with a judge's decision regarding his personal disqualification to deal with a case - I side with Witkon J., that it is impossible to grant such person the relief provided for in section 7(b)(3) of the Courts Law. My reason for that is that such a decision - and here with all respect I disagree with the view of Landau J. - is of the kind that goes to the Court's jurisdiction to hear and decide a matter, civil or criminal, before it. I shall explain myself.

           

            "Jurisdiction" means the power of a tribunal to conduct a judicial hearing and to decide a matter pending before it; if conditions are set for the exercise of this power, then every decision as to whether these conditions have been met is a decision concerning the tribunal's jurisdiction to try the matter. In this regard, it is clear to me, there is no place for distinguishing between conditions precedent that affect the material and local jurisdiction of the tribunal asked to try a particular matter and conditions that affect the qualifications of the judge about to do so. If the judge concedes the argument of his disqualification, the decision means that the tribunal in the given composition is not competent to hear and decide the matter. If the argument is rejected, itmeans that the tribunal in the given composition is fully competent. Support for this view may be found in the observations of the Privy Council in Colonial Bank of Australasia v. Willan (22) at pp. 442-42:

 

"It is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction'. There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry... Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which ... are extrinsic to the adjudication impeached."

 

And at pp. 443-44:

 

            "In Reg. v. Cheltenham (23) ... the objection was that the Court which passed the order was improperly constituted, inasmuch as three of the magistrates who were interested took part in the decision. And Reg. v. Recorder (24) proceeds on the same ground... In cases which fall within the principles of the last-mentioned decisions the question is, whether the inferior Court had jurisdiction to enter upon the inquiry, and not whether there has been miscarriage in the course of the inquiry."

           

See to the same effect de Smith, Principles and Scope of Judicial Review, p. 67; Street and Griffith, Principles of Administrative Law (1952) p. 205; and D.M. Gordon in (1931) 47 L.Q.R. 407: "Jurisdiction must be complete before a tribunal can make any move at all... . It is simply a right to take cognizance."

 

            It follows that I am wholly at one with my friend when he says that a judge who rejects a plea that he is disqualified to try a matter "is (merely) expressing an opinion on the preliminary question of his personal qualification to sit in judgment" and therefore "no question arises here of the jurisdiction of the court as such." In my judgment when a judge dismisses such a plea it means that the court in its given composition is competent to deal with the case in hand just as in the reverse it is not. The legal position will not change if the judge against whom the plea of disqualification is directed is sitting in the company of other judges. I would agree with my friend that in this last event the responsibility of deciding on the plea of disqualification rests on the judge alone who is concerned and the others cannot participate therein or force upon him their view of the plea (see the remarks to this effect of Justice Jackson with regard to the practice in the Supreme Court of the U.S., with which Justice Frankfurter agreed, in Jewel Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America (25)). But the decision of the judge to dismiss the plea will bind the entire court and by virtue thereof it will in its given constitution hold the trial; in the same way his decision to withdraw from the case will bind the entire court and it will be unable to sit until it is properly constituted in accordance with the law. In both instances the decision is determinative of the question about jurisdiction to hear and decide the particular matter. Moreover, if appeal is lodged against judgment as a result of one of the judges deciding to dismiss the plea of disqualification against him and the plea is accepted on appeal, the judgment will be set aside because it was given by a court not having jurisdiction by reason of its defective consititution.

 

            It follows from the foregoing that in view of the proviso in section 7(b)(3) - "other than courts dealt with by this Law" - the High Court of Justice cannot possibly intervene with a decision concerning the qualification of a judge to deal with a particular matter in reliance on the first part of the paragraph.

           

            Can the High Court of Justice interfere with such a decision in reliance on section 7(a) of the Law? A condition precedent to such interference is that the matter in which relief is sought does not lie in the jurisdiction of any other court or tribunal. Hence our general approach must be not to open the doors of the High Court of Justice to any one contesting a decision dismissing a plea of disqualification. In contemplation of the view that a plea of this kind is akin to a plea going to a court's jurisdiction to hear and decide a matter before it, the decision may be upset by appeal against the judgment given at the end of the trial. Furthermore, in a civil case, there is the remedy of asking for leave to appeal against the decision forthwith upon its being given, just as it is available against a decision rejecting a plea regarding want of jurisdiction as to subject matter or place. It can therefore be said that in civil matters the necessity will in general not arise of applying to the High Court of Justice, for no one disputes that the remedy of appeal against an interlocutory decision is speedy and effective.

 

            The remedy last-mentioned does not exist in criminal proceedings and I was therefore exercised by the question whether in respect of such proceedings an appeal against judgment should not be treated as an effective means for the accused who protests against rejection of a plea of disqualification he has raised. This plea is different from a plea of want of jurisdiction in that it concerns the judge personally and thus protest against its rejection should be better reviewed immediately by another judicial body totally unconnected with the plea, a course which would help to "clear the air" at the very outset of the criminal proceedings and strengthen the accused's and the public's feeling that the plea has been objectively treated in a manner befitting it. I am, however, of the opinion that this is the ideal situation and so long as the legislature has not prescribed such special procedure we must act on the presumption that it is satisfied with the remedy of appealing against the outcome of the criminal trial, just as it is satisfied with the same remedy with regard to other pleas of want of jurisdiction in criminal matters, in view of the policy of the legislature to avoid interlocutory appeals in such matters. That was the view of the Federal Court of Appeals in Korer v. Hoffman (26) where it refused an application for mandamus against a judge who refused to disqualify himself in a criminal trial before him.

           

"Counsel for petitioner urges that denial of the writ means that petitioner will be forced to continue under the stigma, stress and strain of an indictment, and subject to restriction under bail, until a later day when his case may be reached and tried. Meanwhile, he must pay heavily in time, effort and expense to prepare his case for trial and suffer the ignominies of a trial. This is an appealing argument to which I know of no good answer other than that it is made in the wrong forum."

 

To emphasize all this the court mentioned the following precedents:

 

            "In response to a similar contention, the Court in Gulf Research and Development Co. v. Leahy...(27] stated: 'The mere fact that the petitioners will be put to the inconvenience and expense of what may prove to be a wholly abortive trial is an argument which might be addressed to Congress in support of legislation authorizing interlocutory appeals but does not constitute ground for invoking mandamous power'... . In Roche v. Evaporated Milk Ass. (28) ... the Court stated: 'Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.' "

 

            Although this approach in general should also guide us in matters of the last kind, I must add that I do not exclude the possibility that in rare and exceptional circumstances - as where strong evidence is produced regarding the material interest of a judge in the outcome of a trial - the High Court of Justice will interfere at an early stage so as to grant relief against a decision rejecting a disqualification plea. (See the remarks of the court in Minnesota and Ontario Paper Co. v. Molyneaux (29) and the judgment in Lalo v. Sussman (17).)

           

            Such are my observations on the broad problem dealt with by my two friends, a problem which, as I have indicated, calls for legislative amendment as soon as may be. As regards the application before us I am of the opinion that it should be rejected.

           

COHN J. I am also at one with the view of my honourable friend, Landau J., that section 36 of the Courts Law does not apply to a transfer from one judge to another, as distinct from one court to another. For this reason alone the present application must be dismissed. I myself see no need to enter into the question of the right path a litigant should pursue when he wishes to disqualify a judge in a particular case. It seems to me that the matter is for the legislature to decide, and perhaps one may regret that it missed the opportunity to do so when dealing with the bill of the Courts Law.

 

            Since, however, my learned friends also saw fit to address themselves to the question of what is the proper procedure for disqualifying a judge, I will only say that my view is like that of Witkon J. and Agranat D.P. and for the reasons they have given, that the High Court of Justice is generally not competent in such matters.

 

 

            Application dismissed.

            Judgment given on June 30, 1964.

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4169/10

HCJ 4193/10

HCJ 4220/10

HCJ 4221/10

HCJ 4240/10

HCJ 4243/10

 

 

Before: The Honorable President D. Beinisch, The Honorable Justice
M. Naor, The Honorable Justice U. Vogelman

 

Petitioners in HCJ 4169/10: Yiftach Cohen; Omer Shatz, Itamar Mann

Respondents in HCJ 4169/10: The Minister of Defense; The Minister of the Interior; The Minister of Public Security

 

Petitioners in HCJ 4193/10: Adalah – The Legal Center for Arab Minority Rights in Israel; Public Committee Against Torture in Israel; Physicians for Human Rights

Respondents in HCJ 4193/10: The Minister of Defense; The Military Advocate General; The Israel Prison Service; The Israel Police; The Immigration Authority

 

Petitioners in HCJ 4220/10: Al Jazeera Satellite Network; Othman Al Bukhairi; Abas Naser; Muhammad Fal; Ali Sabri; Andrei Abu Khalil; Jamal Al Shial; Wasima Bin Salah

Respondents in HCJ 4220/10: The Israel Defense Forces; The Minister of Defense; The Minister of Public Security

 

Petitioner in HCJ 4221/10: Yekutiel Ben Yaakov

Respondents in HCJ 4221/10: The Israel Police; The Israel Prison Service; The Government of Israel; The Minister of Defense; The Prime Minister

 

Petitioner in HCJ 4240/10: Shurat Hadin – Israel Law Center

Respondents in HCJ 4240/10: The Attorney General; The Prime Minister; The Minister of Public Security; The Minister of the Interior; The Israel Police

 

Petitioners in HCJ 4243/10: 1. Almagor – Terror Victims Association; Y.S. – Navy commando (res.); D.B. – Navy commando (res.) and bereaved brother; Pniel Krichman; Yekira and Zecharia Komemi; Aviva and Rahamim Komemi; Tzila Rahamim; Moshe Keinan; Briana and Shmuel Hilberg

Respondents in HCJ 4243/10: The Prime Minister; The Minister of the Interior; The Attorney General; The Inspector General of the Israel Police

 

 

Petitions to grant an order nisi

 

Date of hearing:

20 Nisan 5770

(June 2, 2010)

 

For the petitioners in HCJ 4169/10: Itamar Mann; Yiftach Cohen; Omer Shatz

For the petitioners in HCJ 4193/10: Fatima El Ajou

For the petitioners in HCJ 4220/10: Zaki Kamal; Kamal Zaki Kamal

For the petitioner in HCJ 4421/10: Himself

For the petitioner in HCJ 4240/10: Nitsana Darshan Leitner

For the petitioners in HCJ 4243/10: Sharon Avni; Shira Greenberg

For the respondents: The State Attorney Moshe Lador; Osnat Mandel; Dina Zilber; Hila Groni

 

 

Judgment

 

 

President D. Beinisch:

 

 

1.          In view of the control of the Gaza Strip by the Hamas organization, Israel has taken various measures designed to prevent direct access to the Gaza Strip, among them a blockade of the Gaza Strip which, as declared by the State, is designed to prevent the infiltration of weapons and arms to the Hamas organization, which, for years, has carried out acts of shooting and terrorism at Israeli territory for the purpose of harming civilians.

 

2.          In recent weeks, announcements have been publicly made by various organizations, among them organizations that declared themselves to be acting for humanitarian purposes, regarding their intention to arrange a flotilla of ships which, they claimed, were designated to transfer foodstuffs and materials as humanitarian aid to the residents of the Gaza Strip. Israel, for its part, made efforts to prevent the flotilla from reaching the shores of Gaza and breaching the blockade in such manner. The State proposed to the organizers of the flotilla, among others, that the cargo – which was supposed to reach Gaza – be unloaded from the ships and transferred directly to Gaza via Israel. This proposal was rejected.

 

             In the early hours of May 31, a number of ships approached the shores of Israel to implement the flotilla's plan. As decided by the political echelon, the IDF prepared to take measures to prevent the entry of the ships into the Gaza Strip as stated. In the framework of an operation that was designed to stop the ships, soldiers landed on the deck of the ship Mavi Marmara, the largest ship in the flotilla. The soldiers met with a violent and severe response from the flotilla participants on the ship. The soldiers were attacked with knives, clubs and iron rods. Attempts were made to seize the soldiers’ personal weapons and they were violently attacked. One of the soldiers was even thrown off the deck of the ship. The soldiers were forced to respond to defend their lives and, unfortunately, the operation ended with unexpected loss of life - nine people were killed and both soldiers and flotilla participants were injured. The operation concluded with the ships being halted and their passengers removed and detained in Israel.

 

3.          That same morning, when the results of the operation became known, the petition in HCJ 4169/10 was filed with this court (hereinafter: the First Petition), in which four attorneys filed the petition as public petitioners. It should be noted that at the opening of the hearing before us, the petitioners gave notice of the request of attorney A. Feldman, who was among the petitioners, to strike his name from the petition. The petition ascribed grave and illegal acts to the State of Israel and the petitions sought a remedy of habeas corpus to free all the detainees. It is evident in the petition, which was hastily filed, that, notwithstanding the fact that the petitioners knew nothing about the actual events, they were quick to cast the gravest aspersions on the actions of the IDF forces, while using inappropriate language. Notwithstanding that stated, because the relief sought was the release of the detainees, the petition was not stricken in limine at that stage, and the State’s response was requested by the following day.

 

             During the course of that day and the following day, a number of additional petitions were filed with court. In HCJ
4193/10, which was filed on behalf of the Adalah organization and other human rights organizations, the petitioners requested information on the detainees and their whereabouts, as well as details on the injured and the dead. This petition was also filed as a public petition. Another petition (HCJ 4220/10) was filed by the Al Jazeera television network and in the name of journalists acting on its behalf who had been arrested on the ship. This petition requested the release of the network personnel who had participated in the flotilla. It should be noted that during the hearing that we held, it transpired that this petition was superfluous since the petitioners had already been released.

 

4.          On June 1, 2010, the government issued a statement that all the foreign flotilla participants would be released and returned to their countries. After this statement was issued, three additional petitions were filed with this court: HCJ 4221/10, which was filed on behalf of Mr. Yekutiel Ben Yaakov; HCJ 4240/10, which was filed by Shurat Hadin – Israel Law Center; and HJC 4243/10 filed by Almagor – Terror Victims Association. In these three petitions, the remedy sought was to bar the release of the foreign flotilla participants, with the main argument being that these were people who had committed an offense, who were required both for investigating the facts and the circumstances surrounding the incident and for a decision about arraignment for trial.

 

             In view of the remedy sought, which related to the question of the release of a large number of detainees, we conducted an urgent hearing and deliberated all the petitions together before the panel at that session, and within two days of the filing of the First Petition.

 

5.          Before the hearing, the State submitted a written response in which it protested the description of the events in the First Petition and pointed out the distortion of the facts therein. In essence, the State addressed the legality of the blockade and referred to an alternative remedy set forth in the relevant provisions of the Entry into Israel Law, 5712-1952, with regard to the foreign participants in the flotilla and the relevant provisions of the law pertaining to the criminal proceedings of investigation and detention with regard to the Israeli suspects who participated in the event. During the day, proximate to the time of hearing the petitions, the State completed its statement and submitted a decision formulated by the attorney general, which stated that on the day of the event, May 31, 2010, the attorney general ordered the opening of an investigation on suspicion of offenses committed on the deck of the ship Mavi Marmara, including the offense of the grave attack on IDF soldiers, disturbing the peace, endangering the lives of soldiers, seizing weapons and so forth. The attorney general further stated that the next day, the ministerial committee on national security matters convened and conducted a long and exhaustive discussion of the security, political, legal and other aspects of the affair. At the end of the discussion, the senior political echelon recommended “to enable the immediate deportation of all the foreigners who had arrived on the flotilla, who were suspected of committing criminal offenses. This is recommended for clear political reasons pertaining to foreign relations and the security of the State of Israel.” In his decision, the attorney general noted that he had discussed the matter with the state attorney and other senior officials at the Ministry of Justice and other government ministries, at the end of which he decided, as stated, to allow the immediate deportation of all the foreigners from Israel.

 

6.          During the hearing before us, State Attorney Moshe Lador, appeared together with senior attorneys. It should be noted that due to the nature of the proceedings which we conducted, we sought not to address the claims pertaining to the legality of the blockade, nor with the factual events during that grave incident, the full details of which had not been presented to us. Claims pertaining to the detention of Israelis suspected of committing offenses while participating in the flotilla were also not adjudicated before us, as they should be argued in individual hearings on the criminal arrest proceedings before the competent courts. The hearing focused on the urgent remedies sought which pertain to holding the foreign detainees. The state attorney stated that all the foreigners who wished to do so could be released from detention and, in effect, those who had not yet left the country were on their way to the airport. The wounded whose medical condition allowed for it, were also removed to their countries of origin. Apparently, two of the wounded remained in the hospital because their condition did not enable them to be flown back to their country. The state attorney further stated that the names of all the wounded had been submitted to the relevant consulates and, with regard to those who came from countries that do not have diplomatic relations with Israel, the details were provided to the Red Cross. It should be noted that the State did not see fit to acquiesce to the request to provide details in this matter to counsel for the Adalah organization, as the details had been provided to the relevant entities. However, the possibility arose that if a specific, substantive application were to be made to obtain details regarding one of the casualties or the wounded, the State would examine the possibility of providing counsel for the Adalah organization with the requested details. It further transpired that the remaining details requested by the Adalah organization regarding the place in which the detainees were being held were resolved. The Adalah organization’s counsel also made claims with regard to the detainees' ability to meet with attorneys. During the hearing it was made clear that there had been no intention to prevent such a meeting, and many detainees had actually already met with attorneys. Due to the need to release hundreds of people quickly, not all the detainees may have had the opportunity to meet with an attorney.

 

             The position of the attorney general to release all the foreign participants meant that the main remedy sought in the First Petition was already granted. In the course of the arguments, in view of the response of the state attorney and the comments of the court, the petitioners retracted the style of the scathing verbal attack that they had employed in the petition.

 

7.          As stated, three of the petitions were filed against the attorney general’s decision to release the foreign detainees. Each one of the petitioners argued before us at length about the importance of keeping the detainees in Israel for the purpose of conducting an exhaustive investigation regarding the grave events that occurred on the ship, and regarding the need to exercise the full rigor of the law or, at least, to investigate details which, they claim, would constitute defense arguments for the IDF soldiers.

 

             We did not find any ground for intervention in the decision of the attorney general. The decision to release the detainees is in the realm of the attorney general’s discretion. In a long series of judgments, this Court has ruled that the scope of intervention in the attorney general’s discretion in decisions pertaining to investigation or prosecution is limited to exceptional and unusual instances. Due to the unusual nature of the event and the circumstances entailed therein which, aside from the criminal aspects, also encompass political aspects pertaining to the State’s foreign relations, the attorney general was entitled to consider these aspects. The developments that have ensued in the international arena indicate that a particular political sensitivity exists in everything pertaining to the handling of the matter by the enforcement entities. The attorney general noted that he consulted with all the relevant government entities and after taking into account the fact that nine flotilla participants were killed and several dozen were wounded, he reached the conclusion that the public, political and security interests outweigh the interests of criminal enforcement. We did not find in this decision, which was reasoned as stated, and in the considerations underlying it, any cause for intervention.

 

             Wherefore, after we were convinced that the main remedies sought in some of the petitions were superfluous, and in the absence of cause to intervene in the decision of the attorney general, we have decided to deny the petitions.

 

             Given this day, 20 Sivan 5770 (June 2, 2010).

 

 

The President          Justice                 Justice

_________________________

This copy is subject to editorial and textual changes 10041690_N04.doc AB

Information Center Tel; 02-65936666, website www.court.gov.il

CA 1617/04

1. Chim-Nir Flight Services Ltd.

2. Nissim Ben-Ezra

3. Yoav Ben-Zvi

4. Yosef Barel

5. Dov Grodman

6. Shlomo Haber

7. Avraham Werber

8. Ilan Sela

9. Aryeh Etzioni

10. Dov Peleg

11. Baruch Rothman

12. David Shavit

13. Yehoshua Shamrat

14. Gidon Shatil

v

The Tel Aviv Stock Exchange Ltd.

 

The Supreme Court sitting as the Court of Civil Appeals

[21 February 2007]

Before Deputy President E. Rivlin, Justices E. Arbel, D. Cheshin

 

Appeal of the decision of the Tel Aviv District Court handed down on December 22, 2003, in TA 2367/00 by Judge Dr. O. Modrik.

 

Legislation cited:

Securities Law, 5728-1968, s. 46

 

Israeli Supreme Court cases cited:

CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1997] IsrSC 50(5) 485.
CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [1997] IsrSC 55(1) 634.
CA 467/04 Yetach v. Mifal HaPayis (2005) (unreported).
HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [1978] IsrSC 32(2) 377.
CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [1992] IsrSC 46(2) 441.
CA 6296/00 Kibbutz Malkiya v. State of Israel [2004] IsrSC 59(1) 16.
CA 145/80 Vaknin v. Beit Shemesh Local Council [1982] IsrSC 37(1) 13.
CA 2061/90 Marzeli v. State of Israel - the Ministry of Education and Culture  [1993] IsrSC 47(1) 802.
CA 5586/03 Freemont v. A. (2007) (unreported).
CA 10083/04 Gooder v. Modi’im Local Council (2005) (unreported).
 CA 2625/02 Nahum v. Dornbaum [2004] IsrSC 58(3) 386.
CA 10078/03 Shatil v. State of Israel (2007) (unreported).
CA 915/91 State of Israel v. Levy [1994] IsrSC 48(3) 45.
CA 243/83 Municipality of Jerusalem v. Gordon [1985] IsrSC 39(1) 113, 134-136.
CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. (2006) (unreported).
CA 1678/01 State of Israel v. Weiss [2004] IsrSC 58(5) 167.
CA 1068/05 Municipality of Jerusalem v. Maimoni (2006) (unreported).
HCJ 64/91 Khilef v. Israel Police [1993] IsrSC 47(5) 563.
CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [1999] IsrSC 53(5) 817.
CA 3889/00 Lerner v. State of Israel [2002] IsrSC 56(4) 304.
CA 862/80 Municipality of Netanya v. Zohar [1983] IsrSC 37(3) 757.
CA 1639/01 Kibbutz Maayan Tzvi v. Karishov [2004] IsrSC 58(5) 215.
CA 8526/96 State of Israel v. A. (2005) (unreported).
CA 429/82 State of Israel v. Suhan [1988] IsrSC 42(3) 733.
CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [1993] IsrSC 47(2) 111.
CA 5604/94 Chemed v. State of Israel [2004] IsrSC 58(2) 498.
CA 3108/91 Rabie v. Veigel [1993] IsrSC 47(2) 497.
CA 6970/99 Abu Samara v. State of Israel [2002] IsrSC 56(6) 185.
CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [2005] IsrSC 59(5) 193.
CA 4707/90 Mayorkas v. State of Israel –Ministry of Health (1991) (unreported).
CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [1975] IsrSC 29(2) 31.
HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [2000] IsrSC 54(3) 496.
HCJ 8850/02 Pastinger v. Minister of Justice [2004] IsrSC 58(2) 696.
CA 735/75 Roitman v. Aderet [1976] IsrSC 30(3) 75.
CA 732/80 Arens v. Beit El – Zichron Yaakov [1984] IsrSC 38(2) 645.
LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. (2000) (unreported).
LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [2002] IsrSC 56(4) 612.
MCApp 2236/06 Hamami v. Ohayon (2006) (unreported).
HCJ 731/86 Micro Daf v. Israel Electric Co. [1987] IsrSC 41(2) 463.
CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.
CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [1995] IsrSC 49(3) 196.
LCA 1784/98 Amidar v. Manada  [1999] IsrSC 53(4) 315.
CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam  [2004] IsrSC 58(5) 625.

 

For the appellants – A. Weinroth, O. Bar, D. Zimmerman

For the respondent – Y. Elhawi

 

JUDGMENT

 

Justice E. Arbel

In this appeal of the judgment of the Tel Aviv-Jaffa District Court (Judge Dr. O. Modrik), the Court is asked to rule that the respondent, the Tel Aviv Stock Exchange Ltd. (hereinafter: "the TASE"), is liable for the damages caused to the appellants as a result of the allegedly negligent decisions that it made during the process of the [first] appellant's share offering.

The facts

Appellant 1, Chim-Nir Flight Services Ltd. (hereinafter: “the Company”) is a public company founded in 1991 which provides aviation services. At the beginning of June 1994, the Company sought to offer its shares to the public on the TASE. It submitted a draft prospectus to the Israel Securities Authority and the TASE, in accordance with its obligations under s. 15 of the Securities Law, 5728-1968 (hereinafter: "the Securities Law"). The TASE and the Israel Securities Authority approved the draft in principle, and the Company planned to publish the prospectus on November 30, 1994. It is also relevant to mention that the Company claims that it was of material significance that the share offering be implemented by the end of 1995 in order to qualify for a particular tax benefit. Since the financial markets were in crisis at that time, the Company decided, in consultation with its advisors and the underwriters of the offering, to add a statement to the prospectus to the effect that within no less than one month, and no more than three months from the date on which the shares were listed for trading, the Company’s shareholders would offer to purchase sixty percent of the issued shares from the public at a minimum price proposed at the time of the offering (hereinafter: "the repurchase offer").  
The TASE objected to the inclusion of the repurchase offer in the prospectus, on the grounds that its implementation was liable to reduce the public’s holding of the Company’s shares to below the minimum level specified in reg. 73c of the TASE Regulations (hereinafter: "the Regulations") for public holdings in a new company seeking to list shares for trading on the TASE. This was in accordance with the provisions of s. 46(a)(2) of the Securities Law which states, inter alia, that the TASE may specify, in the Regulations, “the minimum ratio that will be held by the public immediately subsequent to the listing” (hereinafter: "the listing rules"). The TASE therefore decided not to approve publication of the prospectus as long as it contained the repurchase offer. The Company appealed this decision to the Tel Aviv-Jaffa District Court (MA 10/95), which granted the appeal. The court ordered that the inclusion of the repurchase offer in the Company’s prospectus be approved, providing that it stated that the offer would not be implemented until at least two months had elapsed from the date that the shares were listed for trading. The TASE appealed the judgment to this court (in CA 1094/95), which, at the request of the TASE, ordered a stay of execution of the District Court’s decision until a ruling on the appeal would be handed down.

As a result, in light of time constraints that the Company claims it faced, the Company decided to change the prospectus and omit the repurchase offer (hereinafter: "the amended prospectus"). The amended prospectus was approved and the Company’s offering was issued on June 8, 1995.

This court (Justices E. Goldberg, T. Or, and Y. Zamir) dismissed the appeal of the TASE, ruling that the TASE chose to include in its Regulations listing rules that applied at the time of listing the shares for trading, as distinct from rules that would also apply when the shares were being traded on the TASE (hereinafter: "maintenance rules"). Accordingly, it was determined that the phrase “immediately subsequent to the listing” should be interpreted to refer to the time at which the shares reach the purchasers. Therefore, in the absence of maintenance rules or a directive prohibiting the inclusion of a repurchase offer in the prospectus, it was found that the Company had complied with the listing rules. The court also ruled that, under the circumstances, the repurchase offer could not be regarded as detrimental to the regular and proper management of the TASE in any way, since it was based on logical reasoning. Concluding, the court ruled that the TASE had gone too far in its interpretation of the listing rules and that its decision not to approve publication of the prospectus which included the repurchase offer (hereinafter: "the decision of non-approval") did not have a sufficient factual basis. It found that the TASE had not showed foundation for its concern that the Company was attempting to bypass the listing rules through the repurchase offer, or that damage would indeed be caused to trading as a result of this offer (hereinafter: "the judgment in the previous proceeding").

Following the denial of the appeal, the TASE acted to amend the listing rules so that in cases in which a prospectus contains a notice regarding any kind of option or right which the interested party has regarding the offered shares, these shares will not be counted among the quota of shares being offered to the public. The amendment process lasted about two years, and about three years later the TASE added maintenance rules to the Regulations. These rules determined, inter alia, that a decrease in the public’s holdings to less than 7.5% of the issued capital would result in the delisting of the share from trade.

As a result of the judgment in the previous proceeding, the Company, together with thirteen of its shareholders (hereinafter: the appellants) filed suit against the TASE, claiming that as a result of its unreasonable decisions – which led to the deferral of the offering and the need to issue it without the repurchase offer – they had incurred damages amounting to NIS 17 million.

The judgment of the District Court

The lower court divided its deliberations into two questions: that of liability and that of damages. After hearing the parties’ arguments regarding the question of liability, it found that the TASE had not been negligent in making the decisions that led to the delay of the offering, i.e. the decision of non-approval and the decision to apply to the Supreme Court for stay of execution of the District Court’s judgment until after the ruling on the appeal (hereinafter: "the application for stay of execution").

First, the lower Court ruled that the judgment in the previous proceeding created an estoppel by record on two counts: first, because the TASE’s interpretation of the listing rules was incorrect; and secondly, because the decision of non-approval lacked necessary factual basis. Secondly, the lower court rejected the argument of the TASE that it is not liable for damages caused to the appellants as a result of the delay in the offering, since any such damages did in fact result from the court’s decision to grant the application for stay of execution. In this matter, the lower Court ruled that the TASE had not adequately considered the impact of the application for stay of execution on the Company, for the documents it submitted – the affidavit of the Director General of the TASE and the protocols from the Board of Directors’ meetings – did not indicate any discussion of this problem. The lower court also rejected the TASE’s claim that its request to expedite the hearing of the appeal should be viewed as a deliberate effort to minimize the damage caused to the Company, and determined that it had acted, first and foremost, in its own best interest. In light of the above, the District Court found that the TASE acted negligently, out of indifference to the potential damage that could be caused to the Company. As a result its actions should be viewed as the cause of damage resulting from the delay of the offering, if indeed such damage was caused. Thirdly, the lower Court ruled that under the circumstances, the Company’s decision to proceed with the offering without the repurchase offer and not to wait for the outcome of the appeal was justified, and therefore it in no way detracted from the validity of their claim.

Subsequently, the District Court examined for the existence of the basis for the tort of negligence, and determined that the TASE owed the Company a conceptual duty of care.  In the framework of this ruling, the lower court addressed the question of the existence of a “relationship of proximity” between the parties and found that, under the circumstances, such a relationship existed. This finding was based on the purpose of the Securities Law and the nature of the powers exercised by the TASE in this case. The lower Court also examined the status of the TASE as an administrative authority, and ruled that in this case the TASE had not exercised its discretion in a manner that justified limitation of its liability for negligence according to customary law. Indeed, according to the judgment in the previous proceeding, the TASE exercised its authority within the framework of specific existing rules. The District Court further ruled that in light of the TASE’s expert knowledge of the financial market, it could have predicted that the deferral of the offering would have definite financial implications for the Company. It therefore bore a concrete duty of care regarding some of the damages sought. These findings notwithstanding, the Court noted that it was not proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue a dividend to the Company’s shareholders.

The District Court also rejected the TASE’s argument that since it acted with the full agreement and consent of the Israel Securities Authority -  the administrative body which oversees it -  it could not be deemed negligent. The court found that even though the procedures relating to the District Court judgment were executed in complete coordination with the Authority, it was not proven that the decisions to appeal and stay the execution were made in consultation with the Authority, and certainly not at its instruction.

Regarding the basis of negligence, the District Court found that both the decision of non-approval and the application for stay of execution were reasonable under the circumstances. Regarding the decision of non-approval, the court ruled that notwithstanding the determination in the previous proceeding that this decision was erroneous, it should not be inferred that it was also negligent. In order to judge the reasonableness of the decision, the court examined the decision-making process and found that it was based on the exercise of professional discretion, in consultation with the relevant professional bodies, including the Israel Securities Authority. Therefore, under the circumstances, there was no negligence in reaching this decision. The court emphasized that at the time the decision was made, the TASE had no precedent in this kind of matter to guide its decision-making. Therefore, to examine the reasonableness of its decision in light of the judgment in the previous proceeding is an exercise in the wisdom of hindsight. Regarding the factual basis that underlay the decision, the Court found that basing the decision of non-approval on concerns that the Company would circumvent the listing rules and that this circumvention would have a negative impact on trading, did not constitute a breach of the standard of reasonableness in the particular field of expertise. In light of the above, the court ruled that there was no negligence in the decision of non-approval.
Regarding the application for stay of execution, the District Court ruled that the failure of the TASE to consider the damages to the Company caused by its application for stay of execution was not sufficient to establish a breach of its duty of care vis-à-vis the Company. Rather, the question of how the TASE would have exercised its discretion had it taken these damages into account must be examined as well. In this regard, the court found that the TASE’s decision was based on reasons that it considered extremely important, foremost of which was the prevention of damage to share trading, which was also recognized in the court's decision to order the stay of execution.  Therefore, it was determined that even if the TASE had taken the damage to the Company into account, it is reasonable to assume that the consideration of preventing harm to the investor community would nevertheless have convinced it to apply for the stay of execution. The court added that the evidentiary material before it did not show that the Company approached the TASE with a request to refrain from delaying the execution, and it did not inform the TASE of the damage that this could potentially entail. The court therefore ruled:

'You could say that since at the time that the application was filed the TASE had reasonable and serious grounds for its application and since Chim Nir voiced no protest regarding the damage it expected to sustain – the very existence of the application cannot be viewed as a breach of the proper standard of care. Or you could say that the TASE’s failure to consider Chim-Nir’s interest was ‘redeemed’ by the Supreme Court’s consideration of the conflicting interests and its decision to grant the application' (at pp. 31-32 of the judgment).

The Appellants’ Claims

The appellants’ claims center on the lower court’s ruling regarding the reasonableness of the TASE’s decisions. First, they contend that the lower court erred in its ruling that the TASE did not breach its duty of care in its decision of non-approval. They claim that the TASE’s interpretation of the listing rules is not erroneous, but rather that it oversteps the bounds of reasonableness. The appellants base this claim on a number of determinations in the judgment of the previous proceeding, including the determination that the TASE interpreted the existing rules in a manner that deviated from their purpose and that it presented an inconsistent position before the court. Moreover, the appellants claim that the very fact that the TASE reached its decision without sufficient factual basis automatically renders it unreasonable. The appellants further argue that in accordance with the judgment in the previous proceeding, there were grounds to decide that the TASE bears an increased duty of care due to the fact that it is a monopoly.
Secondly, according to the appellants, the determination of the District Court that the TASE did not take the foreseeable damages to the Company into account and thus acted negligently in its application for stay of execution is sufficient to establish a breach of its duty of care vis-à-vis the Company. They claim that the court erred when it proceeded to examine what the TASE would have decided had it acted properly: it should have left this inquiry for the second part of the deliberations, in which the question of the causal connection was to be considered. Moreover, the appellants claim that the lower court’s determination regarding the reasonableness of the decision is inherently flawed. They claim that since it has been established that the TASE did not fully take into account the relevant considerations – in this case, the potential damages to the Company – the decision cannot be reasonable. In any case, the appellants claim that had the TASE properly considered the relative cost of the damages, it would have concluded that it should not request the stay of execution. The appellants support this claim with the testimony of the Director General of the TASE to the effect that he did not anticipate that approval of the Company’s offering would cause great harm, and with the fact that the TASE took its time in formulating the maintenance rules.

The appellants add that no significance should be attached to the fact that the Supreme Court granted the application for stay of execution, since the arguments that were raised were later found to be flawed upon in-depth deliberation. Moreover, they claim that the lower court erred in its determination that they did not inform the TASE of the damages that they were likely to incur. They say that they outlined these damages in the application for stay of execution, and they were even mentioned in the District Court’s decision on the application. Furthermore, according to the District Court’s own ruling, most of the damages were foreseeable by the TASE.

The appellants add that the lower Court erred when it determined that a concrete duty of care does not apply with regard to some of the heads of damages claimed. They maintain that since the court divided the proceedings into the questions of liability and damage, it ought to have examined the actual forseeability of each of the heads of damage in the second stage, after the parties presented evidence on this matter. The appellants claim that it was obvious that the delay of the offering would have ramifications determined by the fluctuations of the market. The appellants also add that the District Court’s judgment in the previous proceeding created an estoppel by record in this matter, since it established that the repurchase offer could have a positive effect on the public’s holdings. In any case, the appellants argue that changing the structure of the offering was a form of damage control and that the TASE bears the burden of proof in actions such as these.

Finally, the appellants maintain that the lower court did not address the claim that they have a right to compensation also by virtue of the administrative wrong that the TASE perpetrated, and this warrants the remand of the case to the District Court to complete deliberations upon this issue.

The Respondent’s Claims

The TASE concurs with most of the determinations of the lower court and maintains that its judgment should be upheld. Moreover, the TASE claims that policy considerations, foremost of which is the importance of the smooth operation of the financial market, necessitates its protection from the pressures of actions and demands by issuing companies. Therefore, it advocates the establishment of a principle whereby the TASE will not be liable for damages caused as a result of its regulatory decisions when it acts in good faith and in accordance with the position of the Israel Securities Authority.
Regarding all aspects of the decision of non-approval, the TASE claims that the process that led to the decision was thorough, serious and based on the opinions of experts in the field. The TASE emphasizes that it did everything in its power to ensure that the decision was correct and reasonable – internal consultations were conducted on several levels; external legal counsel was sought; and even the advice and consent of its overseeing authority – the Israel Securities Authority – was obtained. In addition, the respondent claims that the fact that this issue that had never previously been addressed and that there were no precedents to guide its decision, should be taken into account. Therefore, the respondent claims that even if it were found that its final decision was erroneous, it is nevertheless not a case of negligence. The TASE adds that the decision of non-approval was inherently reasonable, in light of the purpose that underlies the rules of public holdings – the avoidance of a small market for shares that will increase the risk of various kinds of trade manipulations. It maintains that this purpose justifies an interpretation that applies the rules regarding the percentage of the shares that must be publicly held throughout the period of share trading in a manner that will prevent the listing rules from being circumvented. Moreover, the TASE claims that the wording of the listing rules is not unequivocal, and that it can support its proposed interpretation.

Moreover, the TASE maintains that in the judgment in the previous proceeding, the tortious significance of the decision of non-approval was not addressed at all and therefore nothing can be learned from it. The TASE adds that the finding in the judgment regarding the lack of a factual basis for the decision of non-approval relates to the possibility that the Company was attempting to bypass the listing rules. It claims that since it did not base its decision on this possibility, it has no implications for the reasonableness of the decision. Finally, the TASE maintains that the appellants’ claims regarding this matter should be dismissed out of hand, since they themselves conceded during the proceedings in the District Court and in the summations submitted to it, that the decision of non-approval was reasonable.

Regarding the appellants’ claims in relation to the application for stay of execution, the TASE maintains that this is an illegitimate extension of claims, since these matters were not mentioned in the pleadings filed with the District Court. Therefore, it claims that the lower court erred when it ruled on them even though no relevant evidence was submitted. Nevertheless, the TASE agrees with the Court’s final decision that under the circumstances it was not negligent in the application for stay of execution.

The TASE further objects to the lower court’s determination that the principle whereby it cannot be held liable for damage that was caused -  so it alleges -  as a result of a judicial order, is not applicable in this case. It argues that since it acted in good faith, in order to uphold its immediate material interest and to exercise its rights under law, a deviation from the principle that “a judicial order cannot cause damage” is unjustified. The TASE also claims that the District Court was inherently mistaken when it determined that it had not considered the damage that would be caused to the Company as a result of the application for stay of execution, for several reasons: first, the testimony of the Chief Executive of the TASE revealed that the possible damages to the Company had indeed been considered in making the decision; secondly, the TASE acted on its own initiative to expedite the hearing of the appeal in order to enable  the Company to issue its offering at such time as it was still apparently eligible for tax benefits; thirdly, in making the decision the TASE was concerned about significant harm to trading, and this concern was expressed in its amendment of the rules within a relatively short space of time, in order to address the problem.

The TASE further adds that the appellants’ suit for compensation based on administrative negligence should be dismissed, since this claim first arose only during the appeal and, in any case, it is insufficiently specific.

Deliberations

The TASE is a private corporation which is charged with the management of the main arena for trading securities in the State of Israel. The structure of the TASE, as well as its powers, are prescribed by the Securities Law and it is subject to the oversight of the Israel Securities Authority. Whereas the Israel Securities Authority is primarily entrusted with the examination of the disclosures of companies issuing shares based on a prospectus, the TASE deals primarily with questions regarding the ongoing trading of securities, such as the distribution of securities among the public (Joseph Gross, Securities Law and the Stock Exchange, at p. 163 (1973)). The Securities Law provides that the establishment of a stock exchange requires a license, it defines the structure of the TASE’s board of directors, and it lays down guidelines for its powers, to be determined in the Regulations. The TASE Regulations establish the rules for the proper and fair management of the TASE, which include the listing rules alongside other rules, with the primary purpose of protecting the regularity of securities trading (Moty Yamin & Amir Wasserman Corporations and Securities 16 (2006), hereinafter: Yamin Wasserman).
In light of these characteristics, even though the TASE is a private corporation, it has already been ruled that when it exercises the power granted to it by law, it should be viewed as an administrative authority operating in accordance with the principles of administrative law (see for example: CA 4275/94 Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 507-512; CA 1094/95 Tel Aviv Stock Exchange Ltd. v. Chim-Nir Flight Services Ltd. [2] at p. 647; Ronen Adini Securities Law 97 (2004) (hereinafter: Adini)). Indeed, under the principles established by legal precedent, the TASE should be viewed as a hybrid body. Its purpose is a public purpose – to conduct the trading of securities; its powers are defined by law; it maintains a monopoly in its field and it provides a public service (see for example: CA 467/04 Yetach v. Mifal HaPayis [3] paras. 16-19 of my judgment; Assaf Harel Hybrid Bodies 37-52 (2008) (hereinafter: Harel)). Accordingly, the courts have examined the TASE’s decisions through the prism of the principles of administrative law, such as the principle of reasonableness, compliance with the principles of natural justice, etc. (HCJ 555/77 Babchuk v. Tel Aviv Stock Exchange [4] at p. 377; Tel Aviv Stock Exchange Ltd. v. A.T. Management of Torah Literature Database Ltd. [1], at pp. 511-516). At the same time, the activities of the TASE are subject to judicial review. The courts tend to exercise caution in their judicial review of its decisions, in consideration of its professional discretion, insofar as it is exercised in matters regarding which it has special expertise (CA 1326/91 Tel Aviv Stock Exchange Ltd. v. Marcus [5], at pp. 447-452). 

The tort of negligence

At the heart of this appeal lies an examination of the liability of the TASE regarding the tort of negligence, pursuant to the provisions of ss. 35 and 36 of the Civil Wrongs Ordinance [New Version]. In order to establish liability under this tort, the claimant must prove the existence of its basic components: a duty of care, negligence and damage caused a result thereof (see for example: CA 6296/00 Kibbutz Malkiya v. State of Israel [6] at p. 20). The District Court’s judgment addressed only the question of liability – and in that context only the duty of care and negligence – and therefore, this appeal does not address the question of damage. At the outset I note that the question at the center of this proceeding is that of negligence. It is on this that the parties have focused most of their arguments, relegating the arguments regarding the duty of care to the sidelines. Nevertheless, I will discuss the basic components of the tort in order.

Duty of care

The question of when a duty of care between a tortfeasor and an injured party will be recognized has aroused extensive debate in the decisions of this Court. In a nutshell, the prevalent approach in our judicial rulings recognizes two stages in establishing the existence of a duty of care. At the first stage, the existence of a conceptual duty of care is examined, based on the question of whether the tortfeasor, as a reasonable person, should have foreseen the occurrence of the damage. The assumption here is that damage that is foreseeable in physical-technical terms is also foreseeable in normative terms, unless considerations of judicial policy counteract the recognition of this duty. At the second stage, the existence of a concrete duty of care is examined, in view of the particular circumstances of the case relating to the particular tortfeasor and the particular injured party (see for example: CA 145/80 Vaknin v. Beit Shemesh Local Council [7], at p. 13; CA 2061/90 Marzeli v. State of Israel - Ministry of Education and Culture, [8], at p. 802. See also from recent years: CA 5586/03 Freemont v. A. [9], para. 8 of my judgment). According to another approach expressed in judicial rulings, there is no distinction between the conceptual and concrete duty of care, but rather the entire question should be examined as a whole (see for example: CA 10083/04 Gooder v. Modi’im Local Council [10], per Justice Rivlin, at para. 7; CA 2625/02 Nahum v. Dornbaum [11], at p. 386, 408; CA 10078/03 Shatil v. State of Israel [12], per  Justice Levy, at paras. 15-17, 30-31). This approach found expression in the judgment in CA 915/91 State of Israel v. Levy [13], at p. 45, where it was determined that a duty of care will be recognized when two basic conditions are met: first, the condition of “adjacency” or “proximity”; secondly, a judicial conclusion that it is just, reasonable and fair that a duty of care be imposed. The first basic condition involves an examination of the connection between the damager and the injured party – which could be a legal or physical connection, connection by virtue of dependence, etc. – which creates the duty of care. In relation to the second basic condition, various aspects of judicial policy are considered (State of Israel v. Levy [13], at pp. 33-70; see also Nahum v. Dornbaum [11], at pp. 408-409).

Without delving deeply into the difference between these two approaches and also without resolving the question of which one is to be preferred, it would appear that in practice, despite their different points of departure – the first approach is perceived as extending the boundaries of the tort of negligence and the second as narrowing them – similar policy considerations are examined in both approaches, in light of which the boundaries of the duty of care are determined (regarding the relationship between the approaches, see for example: Israel Gilad “On ‘Working Premises,’ Judicial Intuition, and Rationalism in Establishing the Limits of Liability in Negligence” Mishpatim 26 at pp. 295, 304-305 (5758), hereinafter: Gilad “On Working Premises”). These include general considerations which relate to imposing a duty of care upon a person – the desire to deter negligent conduct and to compensate the injured party on the one hand, as opposed to concerns for over-deterrence and overloading the courts on the other (see for example: Gilad “On Working Premises,” at pp. 296-297; Nahum v. Dornbaum [11], at p. 409). Similarly, policy considerations relating to the particular character of the damager, in our case an administrative authority, are also examined, as will be described below.

This was summarized succinctly by my colleague, (then) Justice Rivlin, in his judgment in Nahum v. Dornbaum [11]:

'The application of the tort of negligence is, inter alia, a consequence of setting the limits of the duty of care. These limits tend to distinguish those cases in which a person was negligent and in light of policy considerations it is appropriate to impose liability for his actions upon him, from those cases where the damager was indeed negligent, but policy considerations lead the court to conclude that it is not appropriate to impose liability on him' (p. 408).

The TASE’s duty of care

As stated above, it is accepted that the activities of the TASE are examined by the same criteria as those of an administrative authority. Therefore, in determining whether the TASE owed a duty of care to the Company, which sought to list shares for trading, we must refer to judicial rulings that have dealt with the duty of care borne by administrative authorities, just as the lower court did in its deliberations. In principle, administrative authorities, like any other person or corporation, are subject to liability in torts for their activities and they do not enjoy any specific or absolute immunity from suits on grounds of negligence (Israel Gilad, “The Liability of Public Authorities and Public Servants in Torts (Part One)” Mishpat U’Minhal 2 at p. 339, 393 (5755); Yoav Dotan “The Tortious Liability of a Public Servant Exercising Powers of Discretion” Mishpatim 15 at pp. 245, 246-250 (5746) (hereinafter: Dotan); CA 243/83 Municipality of Jerusalem v. Gordon [14], at pp. 134-136; CA 2906/01 Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 18; Vaknin v. Beit Shemesh Local Council [7], at pp. 124-127). The unique characteristics of the authority, insofar as they find expression in the circumstances of the case before the court, are significant in the context of the policy considerations that limit and define the extent of the duty of care, as noted above. In Shatil v. State of Israel [12], Justice Levy mentioned some of the considerations relevant to the State’s liability in tort, which are applicable to our case:

'On the one hand, recognition of the State’s mission to promote the welfare of its citizens, the desire to prevent the abuse of the immense power that is placed in its hands, and the desire to encourage it to make informed decisions, are all considered.  On the other hand, the concern that government officials will become over-cautious and their ability to act in accordance with considerations relevant to the matter will be impaired is taken into account…; harm to bodies other than this particular damager...; the acceptance that there are certain general risks to which a citizen is exposed in modern society as a result of government activities…; the concern that government activities will be slowed down…, and the concern that governmental bodies, and the legal system that must examine their activities, will be overburdened….    This list is, of course, not closed' (ibid. para. 31).

In addition, in relation to the authority’s actions, the nature of the power granted to it is also considered. In other words, are its powers merely supervisory, or does it control the events that caused the damage? The extent of the discretion exercised by the authority is considered as well (see for example: CA 1678/01 State of Israel v. Weiss [16], at pp. 181-182; CA 1068/05 Municipality of Jerusalem v. Maimoni [17], at paras. 19-22; State of Israel v. Levy [13], at pp. 76-80. For a discussion of the difficulties arising from exceptional discretion as occurred in the Levy case, see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 41; Shatil v. State of Israel [12], per Justice Levy, at  paras.  23-24).

Bearing in mind all of the above, I decided to address the TASE’s claim that it should bear no tortious liability whenever it exercises its regulatory powers in good faith and in accordance with the policy of the Israel Securities Authority. In other words, acting in good faith and in accordance with the policy of the Israel Securities Authority grants it “quasi-immunity” against tortious liability. As noted above, a determination that the TASE will always be immune to negligence suits for certain kinds of activities does not conform to our own approach. Our approach involves examining the existence of the basic conditions of the tort of negligence in the circumstances of the case, while exercising extra caution if the case justifies it, rather than simply declaring that the authority has absolute immunity in some areas. In this respect, President Shamgar’s words in State of Israel v. Levy are particularly apt:

'The comparative model – which negates the duty of care – is unacceptable to me. The negation of a duty of care amounts to immunity. Once the duty is negated, the question of negligence does not even arise. From an  analytical perspective, negating the duty of care under the given circumstances means that the suit will be rejected' ([13], at p. 81. See also e.g. HCJ 64/91 Khilef v. Israel Police [18], at p. 563; CA 653/97 Baruch and Tzipora Center Ltd. v. Municipality of Tel Aviv-Jaffa [19], at p. 817; CA 3889/00 Lerner v. State of Israel [20], at p. 312).

Nevertheless, as will be explained below, I think that the question of whether the TASE acted in good faith and with the assent of the Israel Securities Authority must be examined when assessing the reasonableness of the actions of the TASE. In other words, it must be examined in order to determine whether the basic conditions of negligence exist, which is the central question in this appeal (on this issue, see for example: Ariel Porat, “Torts Law: Negligence in the Rulings of the Supreme Court from a Theoretical Perspective” Yearbook of Israeli Law 1996-1997 (Ariel Rosen-Zvi, ed., 1997)).

The lower court ruled, and I agree, that there exists a relationship of proximity or adjacency that in principle justifies the imposition of a conceptual duty of care on the TASE. Actually, the primary role of the TASE is to ensure proper and fair trading for the investor community in general. However, the duty of care that the TASE owes the investor community does not negate the existence of a similar duty towards companies whose securities are traded on it. The statutory powers granted to the TASE, which confer supervisory and controlling powers upon it with regard to these companies, must also be considered. In my opinion, these powers create proximity between the TASE and the companies, justifying the application of a conceptual duty of care. This court’s rulings have on numerous occasions addressed the question of the relationship between the tortious duty of care and the statutory powers of an authority. It has found that “not only does the existence of statutory powers not grant immunity or negate liability or duty, but rather the very fact that statutory powers exist serves as the foundation stone on which the conceptual duty of care is constructed” (Municipality of Jerusalem v. Gordon [14], at p. 134. See also: CA 862/80 Municipality of Netanya v. Zohar [21], at p.  766-767; CA 1639/01 Kibbutz Maayan Tzvi v. Karishov, [22], at pp.  215, 282-283; CA 8526/96 State of Israel v. A. [23], at paras. 32-33; Municipality of Jerusalem v. Maimoni [17], at paras. 21-22).

Thus, for example, it is indisputable that regarding a decision to terminate the trading of a share – a decision that the TASE is empowered to make under s. 46(a)(5) of the Securities Law – the TASE owes a duty to the company whose shares have been removed from trade. The same is true in our case. The powers of the TASE in determining the listing rules for share trading create a supervisory relationship, control and even proximity between it and the companies that seek to join it. Those powers generate the duty of care of the TASE toward the companies. The Director General of the TASE even said as much in his testimony before the District Court on October 10, 2002: “I think that our duty is to consider their interest [of the holders of the controlling interest of the issuing company – E.A.]… …Obviously this does not mean that we should or that someone does ignore the needs, problems or desires of the holders of the controlling interest” (at p. 95 of the transcripts, lines 14-23). Moreover, this court has previously addressed the impact of the TASE’s power to set the Listing Rules for companies whose shares are traded on it:

'The provisions of the regulations that deal with the listing of securities for trading on the TASE [establish] conditions for the listing of securities for trading. These conditions stipulate the ‘rights and obligations’ of the public in this regard… They determine the conditions for screening companies whose shares can be traded on the TASE. This affects the legal status of those companies. It also has an impact on their financial capabilities. It influences their ability to raise capital and finance various activities in this manner. It impacts on the business of those companies' (the Torah Literature Database case, at pp. 509-510).

Regarding the TASE’s claim that judicial policy considerations justify its exemption from the conceptual duty of care, I have found no reason to interfere with the lower court's ruling on this matter either. According to this ruling, which is based on this court’s judgment in the previous proceeding, the TASE was not exercising a regulatory power in this case, but rather, applying the provisions of regulations that it determined itself. This kind of application does not involve extensive considerations of policy in a manner that justifies negation of the duty of care. Similarly, I do not accept the TASE’s claim that the imposition of a duty of care vis-à-vis issuing companies will hinder its operations. This Court’s rulings have rejected these kinds of arguments time and again, in light of the fact that they are not generally founded on a factual basis that justifies the granting of immunity to the authority (see for example: CA 429/82 State of Israel v. Suhan [24], at p. 741; CA 196/90 Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at p. 127; Shatil v. State of Israel [12], per Justice Levy, at para. 32). Nevertheless, I will state that due to the TASE’s role as the body regulating the activities of the financial market – which is by nature a speculative market – for the benefit of all investors, I believe that certain weight should be assigned to the concern that following a review of its activities from the a tort law perspective, the TASE will stop taking relevant considerations into account when making various decisions. The case at hand demonstrates that sometimes, the TASE’s duty to the wider investor community is incompatible with its duty to one particular company, and we must ensure that the TASE is able to exercise its powers with confidence for the benefit of all investors. Nevertheless, this concern does not justify blanket immunity from suits for damages. Rather it is indicative of the caution that the court must exercise when it imposes liability in tort on the TASE.

As a marginal point, I will add that I have decided not to address the appellants’ argument regarding the connection between the fact that the TASE is a “monopoly” and the extent of the duty of care imposed on it. In any case, I do that think that this argument has a basis in the judgment in the previous proceeding, as the appellants contend. 

Finally, in order to establish a conceptual duty of care, as well as a concrete one, we must examine the question of the damages that the TASE could have predicted might result from a negligent decision regarding approval of the listing of the shares for trade. In this regard, the lower court determined, as noted above, that the TASE, as a body which specializes in the financial markets, could have predicted that the delay of the offering would cause certain types of damage to the Company, such as the deferral of negotiability, a delay in benefit from the proceeds and the costs involved in producing a new prospectus. At the same time, the Court pointed out that it had not been proven that the TASE could have predicted that its decisions would lead to a change in the structure of the offering and a reduced capacity to issue dividends to the Company’s shareholders.

The question of the foreseeability of different types of damages is a complex one, but I do not think that a decision on this issue is necessary or possible in the context of this appeal. First, since the District Court’s judgment did not address the question of damage, a sufficient factual basis for each of the heads of damage claimed was not presented to it, and certainly not to us. Secondly, since we are dealing with damages that were allegedly caused to the appellants in the course of their activities in the financial markets, we must be extra cautious in issuing a ruling that imposes liability for these damages. Activities in the financial markets are speculative by nature, involving opportunities and risk for investors and issuing companies alike. In this light, there is a real conceptual difficulty in the “abstract” examination of various types of damages and the attempt to attribute these damages directly to the TASE. It must also be considered that the relevant period was a time of crisis in relation to investments in the financial markets (see for example: Adini, at pp. 91-95), and this intensified the uncertainty of financial market activities. These factors are particularly relevant when considering that in our case, two different decisions by the TASE are being examined – the decision of non-approval and the decision to apply for stay of execution – each of which required the TASE to foresee damages of different kinds. As the lower court stated:

         'I will mention that my conclusions intertwine different duties of care relating to different decisions. It is clear that the decision of non-approval per se did necessarily entail the delay of the offering. In any case, the damage caused by the delay of the offering should not be viewed as a component of the concrete duty of care that accompanies the decision of non-approval' (at p. 48 of the judgment, note 23).

   I must emphasize that I do not think that these difficulties in determining the limits of the duty of care and foreseeability will prevent the imposition of liability on the TASE for negligent activities in other cases. For example, it would seem that regarding damages that are not directly dependent on the financial markets, such as the cost of producing a new prospectus, it could be decided that a conceptual and concrete duty of care applies. However, I do not think that this is the case in which to examine that question – both in light of the fact that sufficient factual basis has not been presented before us, and in light of my determinations regarding the basis of negligence, which will be explained below.

In conclusion, therefore, I have found that a conceptual duty of care owed by the TASE to companies listing their shares for trading with it may indeed be recognized in principle. However, the question of the extent of this duty – in relation to damages and other kinds of activities – should be left open for further inquiry and consideration when a suitable case graces the chambers of this Court.

The basis of negligence

Having found that the TASE’s duty of care vis-à-vis the Company may be recognized in principle, even without a comprehensive definition of its extent, we must examine whether this duty of care was breached in the circumstances of the case. As I noted above, the element of negligence, which I will now address, is the central issue of the appeal before us.

In the framework of proving negligence, the question of whether the conduct of the damager was improper, deviating from the manner in which a reasonable person would act under those circumstances, is examined. To this end, an objective standard – i.e. the principle of reasonableness – is invoked to examine the concrete circumstances of the case (see for example: CA 5604/94 Chemed v. State of Israel [26] at pp. 507-508; Gilad "On Working Premises,” at pp. 298-299). In this context, it should be added that the actions of the TASE must be examined, first and foremost, in light of the data and information that it possessed at the time it made the various decisions, and not simply based on the judgment handed down by this court in the previous proceeding, several years after those decisions were made. In this respect, President Barak’s words in Chemed v. State of Israel [26]  are particularly apposite:

'The question is not how a reasonable person who is not faced with the particular circumstances of the case would behave; the question is how a reasonable person who finds himself in the damager’s situation would behave. When an examination of reasonableness of conduct is carried out, naturally after the events took place, the goal is to examine the reasonableness of the conduct at the time that it occurred, in accordance with what was known at that time. The examination should not be in light of post-factum knowledge' (ibid. at p. 507. See also: CA 3108/91 Rabie v. Veigel [27], at p. 513; CA 6970/99 Abu Samara v. State of Israel [28], at p. 189).

In order to examine the TASE’s conduct from the perspective of damages, we might invoke the principle of reasonableness that has been developed as the acid test for the activities of an authority in administrative law. As stated by President Barak in CA 1081/00 Avnel Distribution Co. Ltd. v. State of Israel [29], at p. 193:

'An unreasonable act on the administrative plane is likely to constitute a negligent act in private law. Sometimes these are two sides of the same coin…. For a breach of administrative law the administrative remedies will apply. For a breach of duty of care in torts, the civil remedies will apply, except that essentially contradictory remedies will not be given nor multiple compensation' (ibid., at pp. 203-204. See also: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42).

Nevertheless, despite the interface between these two concepts of reasonableness, they are not absolutely identical, due to the different goals that underlie them and the different planes on which they are examined (see for example: Municipality of Haifa v. Menora Insurance Ltd. [15], at para. 42 and the references there). For example, without establishing hard and fast rules on the matter, despite the administrative perspective that the court tends to intervene in the authority’s decisions only when these deviate in an extreme manner from the bounds of reasonableness, it cannot be said that the imposition of tortious liability is reserved only for these extreme circumstances (see for example: Dotan, at pp. 279-281). The differing rationales that lie at the basis of judicial review on the administrative plane, and at the basis of judicial analysis on the civil plane, therefore result in differing degrees of judicial intervention.

In this case, we must examine two acts of the TASE which according to the appellants are responsible for the damage that was allegedly caused to them– the decision of non-approval and the decision to apply for stay of execution. I will state from the outset that I find no reason to interfere with the lower court’s conclusion that in the circumstances of the case, the appellants did not succeed in proving that the TASE was negligent in making these decisions. Below I will explain my reasoning in relation to each of the decisions in turn.

The decision of non-approval

The decision of non-approval was made, as mentioned, based on the provisions of s. 46(a)(2) of the Securities Law, which authorizes the TASE to lay down in its Regulations rules for the listing of shares for trading, including the number of shares that must be held by the public immediately after they are listed. The decision of non-approval was also made on the basis of reg. 73a of the Regulations, which provides that the ratio held by the public shall be no lower than that specified in the guidelines. In the judgment in the previous proceeding this Court ruled that the decision of non-approval was mistaken, but that this error does not suffice to establish that the TASE was negligent. Not every mistaken decision by a body exercising professional discretion – be it an administrative authority or otherwise – is automatically a negligent decision (see for example: CA 4707/90 Mayorkas v. State of Israel –Ministry of Health [30]). In this matter I accept the District Court’s distinction that when examining negligence, significant weight must be attributed to the decision-making process. In exceptional cases, where a decision appears to be obviously and absolutely mistaken, it may be determined that even a decision made according to proper procedure was negligent. However, in this case we are not dealing with a decision of this kind.

In our case, there is no dispute that prior to making the decision, the TASE consulted extensively with all the relevant parties – senior executives at the TASE, the TASE’s Committee for Listing of Securities, the TASE’s Board of Directors, its legal advisors, and the Israel Securities Authority. Like the District Court, I am of the opinion that the decision of non-approval was made following a thorough process of clarification and deliberation, with the participation of all the relevant professional bodies. Therefore, I find that no flaw in the decision-making process can be identified, and not even the appellants themselves have claimed such a flaw.

As mentioned above, the appellants argue that despite this process, the TASE’s decision was unreasonable. Indeed, according to the judgment in the previous proceeding, the TASE deviated from the accepted interpretation of the listing rules and made a decision with insufficient factual basis. The judgment in the previous proceeding – which is obviously the basis of the appellants’ claims – was centered on a different question from that which we seek to clarify in our case, i.e. the question of the TASE’s tortious liability. Therefore, even though the Court’s ruling in the previous proceeding is relevant, a situation whereby a decision on the question of damages is based on “the wisdom of hindsight” must be avoided. It is therefore incumbent upon us to focus on examining the discretion exercised by the TASE at the actual time. In the course of the decision-making process, according to the testimony of the Director General of the TASE and the documents provided, the TASE considered with due seriousness the damages that it thought would be caused to the investor community as a result of the publication of the prospectus as it was, and found that these justified its non-publication (see for example pp. 58, 63, 70, 77-78 of the transcripts of the hearing of October 21, 2002 and also appendices C-F of the TASE’s summation). Indeed, the primary function of the TASE is to ensure that trading is conducted in a proper and fair manner, for the benefit of all investors (see for example: Yamin Wasserman). At the same time, as I will discuss further below, among its considerations the TASE must take into account the impact that its decision will have on the company whose case it is addressing. In this case, in light of all that has been said about the proper conduct of the decision-making process, I am not of the opinion that there are grounds to rule that the discretion exercised by the TASE in “real time” was unreasonable.

I say this particularly in light of the fact that in the course of the decision-making process, the TASE consulted with the Israel Securities Authority, its supervisory authority. Now, I do not think that a position taken by the Israel Securities Authority binds the TASE to the extent of absolving it from all responsibility for the outcome of its decision. The TASE – just like any other authority exercising its powers – has a duty to exercise its discretion notwithstanding the supervising authority’s position (on this issue, see for example: Zamir, at pp. 862-863; Yirmiyahu Eini Construction Co. Ltd. v. Krayot Committee for Local Planning and Building [25], at pp. 132-133. Also cf: CA 491/73 Gedolei Hacholeh Ltd. v. Machruz [31], at pp. 37-38; Haim Levy, Moshe Smith and Marshall Sarnat The Stock Exchange and Investments in Securities pp. 118-119 (Marshall Sarnat and Joan Dilevsky, eds. 1999)). However, the consultation process, which none of the parties claimed was problematic, is generally an effective and appropriate step in the decision-making process (see also: HCJ 5933/98 Israeli Documentary Filmmakers Forum v. President of the State [32] at pp. 510-513; HCJ 8850/02 Pastinger v. Minister of Justice [33], at p. 705). The Israel Securities Authority’s position can constitute an indication of the reasonableness of the decision, as manifested in the opinion of the relevant expert bodies. In our case, the consent of the Israel Securities Authority shows that the decision made was seen as reasonable, correct and professional.

Another factor that I consider important in terms of the reasonableness of the TASE’s decision is the fact that its decision of non-approval was apparently the first time that the TASE had dealt with a purchase offer of the kind that the Company sought to include in its prospectus. However, I accept the lower court's determination, which was founded on the judgment of this court in the previous proceeding, that in making this decision the TASE exercised executive powers, as opposed to regulatory powers, as will be explained below. Nevertheless, even though the TASE exercised its discretion within existing regulations, it had no guidelines regarding the treatment of this repurchase offer. Moreover, it is indisputable that this matter lies at the very heart of the TASE’s operations, and it has the potential to impact both the investor community and the public’s trust in the TASE. Under these circumstances, I am of the opinion that “the tortious range of reasonableness” of the decision should be broader.

In my opinion, this factor also has an impact on the appellants’ claims regarding the making of the decision of non-approval in the absence of a sufficient factual basis. Indeed, in the judgment in the previous proceeding, this court ruled that the TASE’s decision lacked factual basis, and the District Court found that this ruling created an estoppel by record. I see no reason to interfere with this determination, but I also do not think that it affects what I said earlier regarding the reasonableness of the decision, for the following two reasons. First, I found there to be substance in the TASE’s claim that the ruling on the lack of factual basis was made as a marginal point, and it related to the possibility that the decision of non-approval was based on the concern that the repurchase offer was a scam and an attempt to bypass the listing rules. Secondly, in examining the reasonableness of the TASE’s activities from the perspective of torts, I am of the opinion that the extent of the discretion granted to the TASE must be considered also in light of the information required to create a basis for the decision. Thus, even though it is clear that an authority may not base a decision on a flimsy factual basis, there is a range within which an authority is entitled to decide what information is essential in order to make the decision (see for example: Yitzhak Zamir The Administrative Authority Vol. 2 at p. 737 (1996), hereinafter: Zamir). This is its professional expertise. In our case, I do not think that TASE deviated from this range of reasonableness, in light of the fact that the decision was based on professional considerations and information. Moreover, some of the information required for the decision was data related to the operation of the financial markets and the response of the investors to the Repurchase Offer – information which is particularly difficult to obtain in advance (see e.g.: Zamir at p. 758). Under these circumstances, I am of the opinion that basing the decision on a genuine concern for damage that could be caused as a result of the publication of the prospectus as it was, does not overstep the bounds of the tortious range of reasonableness.

In conclusion, for the above reasons, I find that there was no negligence in the TASE’s decision of non-approval.

The decision to apply for stay of execution

As noted above, a significant part of the damages claimed by the appellants is the result of the decision of the TASE to apply for stay of execution of the judgment handed down by the District Court – an application that was granted by this court. The lower court found that even though there was no impediment to examining the TASE’s liability for damages caused by the decision to stay the execution of the judgment, since it did not take into consideration the damages that could be caused to the Company as a result of the application, nevertheless, the TASE did not act negligently in its decision to apply for stay of execution. I accept this determination in principle, but I find that its application in this case is not simple.
As we know, the approach that a judgment or other judicial order could not be the basis for a tort was once dominant in Israeli law, and as such, a litigant acting by virtue thereof was considered to be acting in accordance with legal authority and was thus immune to law suits (see for example: CA 735/75 Roitman v. Aderet [34] at pp. 82-83. See also: Municipality of Jerusalem v. Gordon [14], at p. 144). However, it has been ruled in various cases over the years that the aforementioned immunity will not apply to one who initiated legal proceedings in a negligent manner (CA 732/80 Arens v. Beit El – Zichron Yaakov [35], at pp. 645, 656; Municipality of Jerusalem v. Gordon [14], at p. 145; LCA 1565/95 S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36]; LCA 2422/00 Ariel Electrical Engineering Traffic Lights and Maintenance v. Municipality of Bat Yam [37], at p. 618). Judicial precedent has interpreted the duty of care borne by the litigant in this context as a duty to act reasonably, fairly and in good faith, and most importantly to present the full factual picture required for a decision on the dispute before the court (S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Mazza, at para. 21, and per Justice Türkel, at para. 2).  Türkel’s judgment). It has also been ruled that the degree of good faith required of a party to a process is dependent on the character of the relevant process and the nature of the issue in dispute (MCApp 2236/06 Hamami v. Ohayon [38], at para. 10).
As noted above, the TASE is quasi-public body with professional expertise. As such, it is required to exercise discretion before deciding to file an application with the court to stay the execution of a judgment (on the issue of the duties imposed on these kinds of bodies, see for example: HCJ 731/86 Micro Daf v. Israel Electric Co. [39] at p. 499; CA 294/91 Kehillat Yerushalayim Jewish Burial Society v. Kestenbaum [40] at p. 491; CA 3414/93 On v. Diamond Exchange Enterprises (1965) Ltd. [41] at p. 196; LCA 1784/98 Amidar v. Manada [42] at pp. 335-336; Harel, at pp. 243-256). Within the bounds of this discretion, it must weigh the full gamut of considerations relevant to the matter, including the foreseeable damages to the other party that may result from the stay of execution, even if it cannot always know the full extent and details of the damage. I must stress that I am not of the opinion that the TASE bears a duty to take extraordinary measures to assess damages that are not claimed or presented before it. It must formulate an informed position as to whether the damage it will foreseeably incur outweighs the foreseeable damage to the opposing litigant, based on the information it possesses and its professional expertise, so that it may claim that the balance of convenience is tipped in its favor.

Indeed, one must be cautious in overburdening a litigant with obligations in regard to the initiation of proceedings, since this could violate the basic right of access to the courts (see for example: CA 4980/01 Adv. Shalom Cohen (Official Receiver) v. Glam [43] at p. 625; S’char V’Sherutei Yam Ltd. v. Shalom Weinstein Co. Ltd. [36], per Justice Strasberg-Cohen, at para. 5). Moreover, the litigant in our case represents the public interest of the investor community, which does not have the professional knowledge and expertise possessed by the TASE. On the other hand, I am aware of the difficulties involved in a proceeding during which the court is asked to provide temporary relief when the factual picture before it is not entirely clear and when this relief could violate on the rights of the other litigant (see for example: Dudi Schwartz Civil Procedure at pp. 91-93 (2007)). I am therefore of the opinion that the TASE must consider all the factors – including the damage that will be caused to the Company as a result of the stay of execution – before submitting an application, and it must do so on the basis of the information it possesses. This is based on the assumption that the opposing party will present its arguments in full and will provide the court with a detailed picture of the damages that will be caused to it since, in the nature of things, this information should be in its possession. 

To my mind, the TASE fulfilled its duty in this regard. First, in our case it was not claimed that the TASE breached its obligation to present the court with a full factual basis, or that it requested the stay of execution as a means of harming the Company or in a manner that abused its rights (Adv. Shalom Cohen (Official Receiver) v. Glam [43], at pp. 629-630; Dudi Schwartz “The Application of the Principle of Good Faith in Civil Procedure” Iyunei Mishpat 21 at pp. 295, 329-330 (1988)). On this point, I do not think that the appellants’ claim that the TASE presented misleading or erroneous arguments to the court should be accepted. Indeed, in the final analysis, the TASE’s arguments were rejected in the course of the appeal, but it was not determined – nor proven – that it concealed facts or that it deliberately attempted to mislead the court. As the lower court determined in the final section of its judgment, at the time when it submitted the application, the TASE had reasons which it considered to be highly significant and to justify the application for stay of execution. The foremost of these was concern for the damage that could be caused to the financial markets if companies were able to include in their prospectuses repurchase offers of the kind that the Company had inserted into its prospectus.  In this sense, it seems that the TASE exercised a right granted to it by law in order to protect interests that seemed important to it both at that time and later as well, as demonstrated by the amendment of the listing rules.

Secondly, I am unconvinced that the evidentiary material presented before the lower court shows clearly that the TASE acted out of indifference to the damages that would be caused to the Company as a result of the application. The lower court based its determination that the TASE did not consider the damages that would be caused to the Company primarily on the fact that it did not present satisfactory evidence of internal deliberations concerning these considerations. In my opinion, weight should be attached to the fact that the appellants’ claims regarding negligence in the application for stay of execution were made in a tentative fashion, as noted by the lower court as well (at p. 60 of the judgment). Under these circumstances, I think that the aforementioned lack of evidence does not tip the scales in favor of a ruling that the TASE was negligent in initiating the proceeding to stay execution. Moreover, the court noted that it is possible that the Company did not even notify the TASE of these foreseeable damages (at p. 61 of the judgment). In addition, my impression is that the TASE’s request to expedite the date of the appeal hearing attests to its awareness of the difficulty that the delay could cause the Company, as well as to its willingness to facilitate a speedy decision on the matter. It is possible that the request to expedite the hearing stemmed from the TASE’s own interests, but this does not negate the fact that the Company also benefited as a result. In conclusion, this court – after hearing the arguments of both sides – found that there were grounds to stay the execution of the judgment until a ruling was issued on the appeal. In my opinion, this lends credence to the determination that the decision to apply for stay of execution was reasonable at that time.

Therefore, I do not find that the TASE was negligent in its decision of non-approval or its decision to apply for stay of execution of the judgment.

 

Conclusion

In light of all of the above, even though I believe that a duty of care between the TASE and companies issuing their securities on it should be recognized in principle, I do not find that in the circumstances of this case the extent of this duty can be clearly defined. Similarly, I do not find that the appellants have succeeded in showing that the TASE’s decisions were negligent in a manner that would make it liable for the alleged damages that were caused to the Company as a result of the delay of the offering. I would further add that I have not seen fit to discuss the appellants’ claim for compensation by virtue of the tort of negligence, which was claimed in a general and unsubstantiated fashion.

Therefore, I propose that my colleagues dismiss the appeal and order the appellants to cover the court costs and the respondents' legal costs in the amount of NIS 40,000. Appellant 1 will pay NIS 20,000 and the remainder will be divided equally among appellants 2-14.

                                      

Deputy President E. Rivlin

I concur.

                                       

Justice D. Cheshin

I concur.

                                         

Decided as per the decision of Justice E. Arbel.

 

26 Sivan 5768

 29 June 2008

HCJ 1074/93

1.       Attorney-General

2.       Bezeq, the Israel Telecommunication Corporation Ltd

v.

1.       National Labour Court, Jerusalem

2.       General Federation of Labour in Israel

3.       Bezeq Employees’ Joint Representation

4.       All Bezeq Employees

 

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

Before Justices D. Levin, M. Cheshin, Ts. E. Tal

 

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

 

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court.

 

Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest.

In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike.

 

Petition granted.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 4.

 

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

Labour Court Law, 5729-1969, s. 30(a).

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, s. 1.

Resolution of Labour Disputes Law, 5717-1917, ss. 2, 5A, 5B, 37A, chapter 4.

Telecommunications Law, 5742-1982, ss. 50, 51, 60.

 

Israeli Supreme Court cases cited:

[1]      HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1995] IsrSC 49(1) 573.

[2]      HCJ 51/69 Rudenitsky v. Great Rabbinical Court [1970] IsrSC 24(1) 704.

[3]      HCJ 550/89 Attorney-General v. Parole Board [1989] IsrSC 43(2) 739.

[4]      HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[5]      HCJ 2148/94 Gilbert v. Chairman of Commission of Enquiry for examining the Massacre in Hebron [1994] IsrSC 48(3) 573.

[6]      CA 506/88 Shefer (a minor) v. State of Israel [1994] IsrSC 48(1) 87; [1992‑4] IsrLR 170.

[7]      HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [1985] IsrSC 39(3) 141.

[8]      CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [1987] IsrSC 41(3) 169.

[9]      CA 25/71 Feinstein v. High School Teachers’ Association [1971] IsrSC 25(1) 129.

[10]    HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

[11]    HCJ 1520/91 Wilensky v. National Labour Court [1992] IsrSC 46(5) 502.

[12]    HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv Labour Court [1985] IsrSC 39(3) 13.

[13]    HCJ 289/79 Israel Ports Authority v. National Labour Court [1980] IsrSC 34(2) 141.

[14]    ALCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.

[15]    HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [1962] IsrSC 16 2101; IsrSJ 4 191.

[16]    HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17]    HCJ 453/94 Israel Women’s Network v. Government of Israel [1948] IsrSC 48(5) 501; [1992-4] IsrLR 425.

 

Labour Court cases cited:

[18]    NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [1977] IsrLC 8 421.

[19]    NLC 52/4-3 (unreported).

[20]    NLC 36/4-5 Ginstler v. State of Israel [1976] IsrLC 8 3.

[21]    NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [1986] IsrLC 17 264.

[22]    NLC 52/4-37 United Mizrahi Bank Ltd v. Bank Mizrahi Workers Union [1992] IsrLC 25 53.

 

English cases cited:

[23]    Mercury Communication v. Scott-Garner [1984] Ch. 37 (C.A.).

 

Dutch cases cited:

[24]    Re Keijzer v. Peters N.V. 3 I.L.L.R. 306 (1977).

[25]    N. V. Dutch Railways v. Transport Unions FNV, FSV and CNV 6 I.L.L.R. 3 (1986).

 

Finnish cases cited:

[26]    Metal Industry Employers’ Federation v. Metal Workers Union 9 I.L.L.R. 522 (1988).

 

For the first petitioner — M. Rubinstein, director of the Civil Department at the State Attorney’s Office.

For the second petitioner — S. Bechor.

For the second respondent — A. Mei-Tal, R. Kariv.

For respondents 3-4 — A. Feingold.

 

 

JUDGMENT

 

 

Justice D. Levin

1.    We have before us a petition of the first and second petitioners against the judgment of the National Labour Court in NLC 53/4-4,[*] in which the National Labour Court allowed the appeal of respondents 2-4 and held that an injunction should not be given against the respondents in a strike that they held, since according to its ruling, the strike was legitimate.

The facts relevant to the case

The main facts are not in dispute, but clear details of them, as set out by his honour the President of the National Labour Court in his judgment, are necessary in order to consider the dispute and its solution properly and precisely.

2.    The second petitioner (hereafter — Bezeq) operates under a licence granted to it under the Telecommunications Law, 5742-1982, and it is a ‘public service’ within the meaning thereof in chapter four of the Resolution of Labour Disputes Law, 5717-1957. Sections 50 and 51 of the Telecommunications Law granted Bezeq exclusivity in various fields of operation, and the following is the wording of those sections:

‘50. A general licence to carry out telecommunications operations or to provide national telecommunications services on a national telephone network or to provide international telecommunications services on an international telephone system shall only be given to one company; for this purpose, “national telephone network” — a national cable infrastructure, wireless installations and telecommunications installations by means of which telephone services and additional telecommunications services are provided to the public.

51. (a) A special licence shall not be given with regard to the equipment that the Ministry of Telecommunications dealt with before the passing of this law in the Knesset (hereinafter — the equipment of the Ministry) or with regard to identical equipment that may replace it.

(b) A special licence shall not be given with regard to equipment similar to the equipment of the Ministry that will replace it or that is designated to replaced it, until the Minister has consulted with the company and decided, after considering inter alia the interest of the company in carrying out the action or in providing the service to which the licence refers, that the public interest requires the licence to be given to whoever asked for it.’

3.    The Government decided to limit this exclusivity by opening up various sectors in the field of telecommunication services to competition. First this was done by a decision of the Minister of Telecommunications at that time, and shortly before the dispute before us this intention was expressed in the draft State Economy Arrangements (Legislations Changes for Achieving Budget Targets) Law, 5753-1992, which states in section 26:

‘In section 50 of the Telecommunication Law, 5742-1982, the words “or to provide international telecommunications services on an international telephone system” shall be deleted, and at the end shall be added “but a mobile radio-telephone network shall not be regarded as part of the national telephone network”.’

4.    Respondents 2-4, under the leadership of the second respondent (hereafter — the General Federation), opposed these changes on the grounds that revoking the exclusivity will affect the terms of employment of Bezeq employees and lead to the dismissal of many of them. Their request was to enshrine in an agreement, before revoking the exclusivity, the question of the rights of employees, both those who would continue to work for Bezeq and those who would be forced to leave it as a result of that change.

The General Federation based its main arguments on that fact that when the Telecommunications Law was passed, the commencement of the law was made conditional, inter alia, on the signing of a collective agreement with regard to the rights of Bezeq’s employees, and the transfer of employees from the civil service to the employment of Bezeq (s. 60 of the Telecommunications Law).

5.    On 14 May 1992, the Federation of Clerks delivered to the Chief Director of Labour Relations and to Bezeq a ‘Notice of a Strike’, stating that the notice was given under sections 5A and 5B of the Resolution of Labour Disputes Law.

6.    On 12 July 1992, Bezeq employees began sanctions in accordance with the decision of Bezeq’s Workers Council, and several days later, on 20 July 1992, the Central Committee of the General Federation approved, for the second time, ‘a labour dispute at the Bezeq Corporation, because of the granting of licences to private enterprises and the transfer of work to contractors, a reduction in the definition of the general licence and a privatization of the “Bezeq” corporation.’

7.    On 16 July 1992, Bezeq applied to the Tel-Aviv-Jaffa Regional Labour Court in an application for a temporary and permanent injunction to stop the sanctions. On 17 July 1992, an order was given as requested, and this was extended several times.

8.    It should be mentioned, just as the National Labour Court emphasized at the beginning of its judgment in a condemnation of their behaviour, that despite the temporary injunction given against them, Bezeq’s employees carried out sanctions that compelled Bezeq to ask the court twice for orders under the Contempt of Court Ordinance (LC 53/48-2; LC 53/48-3), and an order was even made in this respect. Again, after judgment was given in the main proceeding, which was the subject of the appeal to the National Labour Court, Bezeq was compelled to commence contempt of court proceedings.

This behaviour of Bezeq’s employees deserves strong condemnation, and we will refer to it and mention it below.

9.    A further fact that is relevant in this case is the determination that before the hearing of the appeal before the National Labour Court, the sanctions taken by the employees stopped.

10. As stated, the General Federation appealed the decision of the Tel-Aviv-Jaffa Regional Labour Court to the National Labour Court in Jerusalem, which allowed the appeal and set aside the judgment of the Regional Labour Court and the injunction given by it, in so far as it related to the General Federation being forbidden from declaring the strike.

The judgment of the Regional Labour Court

11. After it considered the matter on its merits and in depth, the Regional Labour Court found that the strike of the Bezeq employees was not legitimate, since the reason for it could not be the subject of a collective agreement. In addition, the Regional Labour Court held that the strike was ‘not protected’, with all that this implies, as set out in chapter four of the Resolution of Labour Disputes Law.

In its judgment, the Labour Court considered the ‘balance of convenience’, and on this basis it held that the general public, and also the Bezeq company itself, should be spared substantial harm. The Labour Court therefore ordered the Bezeq Employees’ Representation to maintain full industrial quiet and refrain from a strike or sanctions, and it also ordered the General Federation to order the Bezeq Employees’ Representation and its employees to work fully and without interruption.

The appeal to the National Labour Court

12. The General Federation appealed the judgment of the Regional Labour Court. In essence, the General Federation argued that the strike was declared lawfully and held lawfully, and that it should not be regarded as a  ‘political strike’ or an  ‘unprotected strike’. In its opinion, the strike does not contradict the ‘industrial quiet’ clauses in the binding agreements.

The National Labour Court considered in depth the many and complex questions that were raised before us, and held, unanimously, but for different reasons, that the appeal should be allowed, and that the judgment of the Regional Labour Court, including the injunction in it, in so far as it related to the prohibition against a strike being declared by the General Federation, should be overturned (paragraph 25 of the judgment of his Honour President M. Goldberg).

The judgment of the National Labour Court

13. The National Labour Court referred to the definition of strikes in case-law, and held that it ought to be changed, even if this involved a deviation of the National Labour Court from its own rulings. This is what was said:

‘In these days, when the legislator intervenes more than ever in employment terms that are determined or that may be determined in agreements or collective agreements… and has become an active partner in determining the terms of employment of all employees, particularly in the public sector… it is highly questionable whether the definition of the term “strike”, as reflected in case-law, can be allowed to stand as it is.’[†]

The court went on and held, for the purpose of the term  ‘unprotected strike or work stoppage’, as defined in section 37A of the Resolution of Labour Disputes Law, that:

‘… it is proper that a strike in the civil service directed against a change, that may significantly affect the terms of employment of the employees in a certain enterprise, and which is intended to ensure the rights of the employees as a result thereof, as long as it is not against the law, should not fall into the category of an “unprotected strike” in the civil service, even if it is not the employer who initiated the change.’[‡]

Therefore the National Labour Court reached the conclusion, in the majority opinion written by the learned President, that the question as to whether we are dealing with a  ‘political strike’ should be answered in the negative.

The National Labour Court held, at the end of the hearing, that not every strike that is not against the Government as sovereign, rather than as employer, is a  ‘political strike’, and in consequence thereof it decided that the strike carried out by the Bezeq employees was not an  ‘unprotected strike’ within the meaning thereof in the Resolution of Labour Disputes Law.

14. In order to complete the picture, alongside the reasoned judgment of the majority of the panel of the National Labour Court we should mention the minority judgment of the learned Vice-President, Justice S. Adler, who, although he agreed with the outcome, did so for reasons that are entirely different from those of the majority. The learned Vice-President was of the opinion that the strike in this case was a  ‘mixed strike’, partly political and partly economic, and it was mainly political in nature, since:

‘… its tangible and immediate purpose is to change the policy of the Government and the Knesset…’[§]

The agreement of the learned Vice-President to cancel the order made against the General Federation was based merely on the fact that the order had achieved its purpose, and the employees had returned to work. When the appeal of the General Federation was allowed in the National Court, the petitioners submitted this petition, which is now before us.

The main arguments of the petitioners

15. The petitioners recognize the fact that labour law is within the expertise and sole jurisdiction of the Labour Court. They are also aware of the ruling, which was made by this court and which had been upheld more than once, that the High Court of Justice does not sit as a court of appeals on the judgments of the National Labour Court, and it will intervene in the judgments of the National Labour Court only when it transpires that there is a substantial mistake of law, and justice requires us to intervene in order to correct it (HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1], at p. 584, and the many citations set out in the judgment).

Notwithstanding, they are of the opinion that the case before us does indeed fall into the category of rare and special cases where our intervention is justified.

16. According to the petitioners, in the ruling made by the National Labour Court in its judgment there is a fear that a mistake of law may become entrenched and undesirable norms may be adopted in a most important subject, which is one of the foundations of collective labour law and labour relations in the economy. The petitioners argue that a strike directed at the government to achieve political aims, when the employer is usually a third party who cannot agree to the demands, has been called a ‘political strike’ in Israeli case-law, and it is considered a forbidden strike. In the opinion of the petitioners, the strike which is the subject of the case before us is indeed of this kind, and it follows that it does not fall within the sphere of labour law, since its purpose is to achieve objectives that are not legitimate ones in the field of labour law. In addition, the petitioners argue that the provisions of section 37A of the Resolution of Labour Disputes Law distinguish between an unprotected strike relating to salary and social benefits, and a strike which is not of this kind, but this is only with regard to the formal terms stipulated in the law and not in order to expand the concept of the strike and to grant legitimacy to a ‘legal strike’. According to them, the strike still needs to be within the field of labour law and within the framework of a labour dispute, it must be directed against the employer and it must relate to terms of employment or labour relations which are not salary or social benefits — for these two subjects are only some of the matters that may be the basis for a labour dispute, as defined in section 2 of the Resolution of Labour Disputes Law. In this respect, the petitioners argue that a change of the general licence of the Bezeq Corporation and the legislation proceedings for amending the Telecommunications Law are not a part of ‘work conditions’ and they are not a part of ‘labour relations’, since they cannot be the subject of a collective agreement within the meaning of this term in the Collective Agreements Law, 5717-1957. Finally, the petitioners point out that the conclusion of the National Labour Court, in so far as it relates to the widening of the freedom to strike, has no parallel in foreign law.

The main arguments of the respondents

17. The respondents argue that the judgment of the National Labour Court, which is the subject of this petition, was made lawfully and it is right and just on the merits. Therefore, there is no reason for this court to set it aside.

18. The respondents argue before us that it should not be assumed that organized opposition of employees to a harmful action of the Government should not be regarded as a strike, but rather as a forbidden act, merely because the initiative for the harmful act does not proceed from the direct and formal employer. They argue that in the prevailing legal situation in public services, the formal employer has almost no power in matters relating to the determination of employment terms and employees’ salaries, and therefore the formal distinction with regard to the identity of the direct employer cannot be implemented in the present circumstances.

The respondents further argue that just as every citizen and every group of citizens may demonstrate against the implementation of any Government policy, as part of their basic rights in our democratic regime, so too employees have the freedom to associate in order to protect their place of work and their livelihood. They argue that the only practical expression of this freedom to associate is the freedom to strike, i.e., not to work.

Therefore, in view of the aforesaid, the respondents ask the court to cancel the show cause order, to dismiss the petition and not to intervene in the judgment of the National Labour Court.

Preliminary arguments

19. This is the factual and legal background to this petition, on the basis of which a show cause order was issued, and our deliberation will be based on this. But first I must remove from our path two preliminary arguments raised before us by counsel for the General Federation, according to which we are asked to dismiss this petition in limine.

20. First, the General Federation argues before us that section 30(a) of the Labour Court Law, 5729-1969, does not grant the first petitioner (hereafter — the Attorney-General) the authority to challenge the decision of the National Labour Court before this court. It further argues that the petition under discussion raises an academic question that is dead and buried, since the dispute that is the subject of the strike under consideration has already been resolved.

The two arguments should be rejected.

21. With regard to the argument of the General Federation that section 30(a) of the Labour Court Law does not give the Attorney-General the authority to challenge the decision of the National Labour Court before this court, the answer is as follows. Indeed the text of the aforesaid section 30(a) grants the authority to intervene in proceedings before the Labour Court, and it is with this that we are concerned, but what is stated does not imply what the Attorney-General does not have authority to apply to this court.

First, when the Attorney-General became a party in the National Labour Court, he acquired standing both before the court with procedural jurisdiction and also before the court with review jurisdiction. No impropriety should be attached to the fact that this standing should continue to exist also before us as the highest court of review, in order to examine the arguments of the Attorney-General that were rejected in a lower court, which in this case is the National Labour Court.

Second, it seems to me that it is fitting that the Attorney-General, as the person who represents the public interest, should petition the High Court of Justice in cases where he thinks that one of the branches of government has erred in a matter which he thinks is of supreme public importance. This approach is based on two lines of reasoning: first, the Attorney-General has the authority to become a party to a petition filed by someone else, by attending, as in the present case, in the High Court of Justice, by virtue of section 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version] (for recognition by this court of a proceeding of attendance that was similar in its circumstances, see: HCJ 51/69 Rudenitsky v. Great Rabbinical Court [2], at p. 711; HCJ 550/89 Attorney-General v. Parole Board [3]).

Third, opening the doors of this court even to a ‘public petitioner’ who can show a general public interest that justifies proper consideration applies a priori to the Attorney-General within the framework of his authority (see Dr Z. Segal, The Right of Standing in the High Court of Justice, Papyrus, second edition, 1994, at pp. 71, 268-270; and also diverse case-law: HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 2148/94 Gilbert v. Chairman of the Commission of Enquiry for examining the Massacre in Hebron [5]).

22. With regard to the argument about the academic nature of the question under discussion, the remarks of the Vice-President of the Supreme Court, Justice Elon, in CA 506/88 Shefer (a minor) v. State of Israel [6], at p. 98 {179}, are apt:

‘Usually we do not become involved in deciding an issue that is purely academic. But there is no rule that does not have exceptions… This is because usually… the decision must be given without delay, as required by the nature of the case and the facts, and the reasons relate to the heart of the matter and the reasoning for it, so that we will know and have established the law on each of the issues before us when it arises and comes before us once more.’

Or, as Justice Barak chose to express it in HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [7], at p. 146:

‘It is true that this court does not consider questions that are not practical, and it does not give an opinion that is merely academic on questions of theoretical application, but this rule does not apply when the nature of the event, to which the petition refers, is such that the judicial determination of it may come after the event has taken place, but there is a reasonable likelihood that similar events will happen in the future…’

So we see, and the experience of life teaches us, that legal issues of a special and flexible nature from the past that appeared academic at the time became important and urgent practical questions at a later date. For this reason, both because of the direct relevance of the questions that are at the heart of the structure of the constitution and labour law in Israel, and also because of the doubt as to whether this dispute and ones like are merely events of the past, I think it appropriate to consider in detail the question before us.

The freedom to strike

23. In order to decide whether the sanctions taken by the employees in this case should be considered a ‘strike’, within the definition of this term for the purposes of labour law, we must first consider the status of this ‘institution’.

24. It would appear that there is no longer any basis to question the lofty and protected status of the freedom to strike. More than once we has emphasized that:

‘… the “right” to strike has acquired for itself a firm foothold in Israeli legislation and case-law’ (CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [8], at p. 190).

            In the eloquent language of Justice H. Cohn in CA 25/71 Feinstein v. High School Teachers’ Association [9], at p. 131:

‘It may be said that there is nothing further from the mind of the Israeli legislator than the desire to eliminate the institution of the strike: if an English judge, in a recent decision, described the strike as a ‘holy cow’, then here it should be regarded at least as a kind of revered tradition, such that it can no longer be questioned.’

Moreover, in an age where we are guided, both in legislation and in case-law, by the Basic Law: Human Dignity and Liberty — and its constitutional values — it would appear that the ‘strike’, which we have always considered to be included among the basic freedoms not written in the statute book and which was described as something that ‘in essence belongs not to the sphere of “rights” but to the sphere of  “freedoms” which are subject to binding restrictions...’ (See NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [18]; NLC 52/4-17 (unreported) [19]; NLC 53/4-4[**]), will in the future find refuge in the value of ‘human dignity’ that is enshrined in this basic law (sections 1, 2 and 4 of the Basic Law: Human Dignity and Liberty, and for more detailed analysis, see the book of (Vice-President) Prof. A. Barak, Legal Interpretation, vol. 3, “Constitutional Interpretation”, Nevo, 1994), and also his article ‘Human Dignity as a Constitutional Right’, 41 Hapraklit, 1993-1994, 271, at p. 279).

It is clear, then, that the focus of our consideration is a freedom that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time. Nonetheless, and precisely for this reason, when we are required to determine which acts of protest adopted by workers in their struggle will find refuge under the protection of the ‘strike’, the courts and labour courts must look to the definition of ‘the strike’, with its changing facets and nuances.

Definition of the ‘strike’ — the status of a strike against the sovereign authority

25. In their petition, the representatives of Bezeq and the Attorney-General reiterated their initial and fundamental argument that they argued before the National Court, that an indispensable condition for a concerted action of employees to be recognized as a ‘strike’ for the purpose of labour law is that it is declared within the framework of a struggle to achieve employees’ demands from an employer — with regard to their terms of employment. Counsel for the petitioners argues that this condition is not fulfilled in our case, where the demands of the Bezeq employees are not directed at their employer — the Bezeq Corporation — at all, but at the Government. In their opinion, since this is the case, the actions taken do not fall within the definition of a ‘strike’, and certainly these actions should not be granted legitimacy.

Indeed, as his honour, the learned President of the National Labour Court, Justice Goldberg, pointed out in his judgment:

‘… not infrequently have the Labour Courts, and the civil courts, expressed themselves in such a way that it may be understood that only a strike against an employer, in matters that are a subject for collective bargaining and a collective agreement, is a “strike” within the meaning thereof in labour law.’[††]

See the development of this definition: NLC 36/4-5 Ginstler v. State of Israel [20], at p. 15; NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [21], at p. 269; HCJ 525/84 Hativ v. National Labour Court [10], at p. 702; NLC 52/4-37 United Mizrahi Bank Ltd v. Mizrahi Bank Workers Union [22], at pp. 62-63.

26. One might ask why we need all this repeated study and examination of the nature of a ‘strike’, when we have established the traditional nature of the definition of the ‘strike’, which is directed against the employer only, whereas in the case before us it is directed against the sovereign authority? To this questioner we will reply that there are sound reasons for this investigation and examination, for we are not divorced from the people and we are charged with seeing the current reality of our times, which changes and varies continually, both in general and also in the field of labour relations. So it would appear that it was not an accident that the legislator chose not to define the term ‘strike’, except in chapter 4 of the Resolution of Labour Disputes Law. It is clear that by doing this the legislator expressed the opinion that:

‘… the concept strike is not one that has a single meaning, which applies at all times, for every purpose and in every situation of a development of labour relations and labour law’ (NLC 36/4-5 [20], at p. 27).

And in the words of Justice Goldberg (President of the National Labour Court) in one of his articles:

‘… it may be good that this matter has been left to the discretion of the courts, for the reason that the needs and situations in the area of labour relations and labour law are dynamic and changing, and a statutory definition, which by its very nature is inflexible, does not change with the passage of time, and may well become a burden when the courts are required to apply the law…’ (M. Goldberg, ‘The Strike in Statute, Collective Agreements and Case-law’, Hapraklit, Special edition celebrating 25 years of the Bar Association, 1987, at pp. 51-52, cited in NLC 53/4-4, 25, supra[‡‡]).

27. We cannot ignore the changes that have been taking place for some time in the field of labour relations in the Israeli economy. It is clear that the Government is both an active and influential factor in the field of labour relations and in the negotiations about labour agreements. This interventionism has many, different causes, and it will suffice if we mention that, in addition to being one of the largest employers in the economy, the State intervenes in the field of labour relations as an active and highly influential factor in ‘package deals’, in wages, taxes and pricing policy.

In this respect, the following remarks, which reflect a familiar reality, are correct:

‘… the fact that the Government has become an active partner in negotiations regarding work conditions, justifies the expansion of the employees’ protest base, so that it may extend also to attack the policy of the additional partner to the negotiations and not merely the employer, as was the case in the past, which reflected the reality that prevailed then’ (Prof. R. Ben-Israel, ‘The Political Strike’, Iyyunei Mishpat, 1986-1987, 609, at p. 624).

It is therefore proper to consider this development when we seek to formulate an up-to-date approach to the important issue in the case before us.

            The political strike — classification and status

28. At the heart of the petition before us lies the argument of the Attorney-General that the strike was directed against a specific provision in the Telecommunication Law, 5742-1982, which granted the Bezeq Corporation a monopoly in certain fields. The policy adopted by the State in putting forward the aforesaid draft law to correct the situation in a very limited manner was intended to bring about a measure of change in an undesirable monopolistic situation, and provide for the possibility of free competition in the field of international telephone services and mobile telephone services.

Opposition to this policy, when it is in the process of being legislated in the Knesset, is, in the State’s view, a manifestly political strike, which is regarded by Israeli case-law as a strike that undermines our democratic process, and as such should be regarded as a strike that is not legitimate. This approach, to the extent that it relies on a proper factual basis, finds support in our case-law, and I need only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10] and his decisive approach:

‘The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such’ (ibid., at pp. 703-704).

This approach of the President has won widespread approval, and it is supported by the opinions of scholars in Israel and abroad (see Professor F. Raday’s article: ‘Political Strikes and Fundamental Change in the Economic Structure of the Workplace’, 2 Hamishpat, 1995, at pp. 159-177).

29. This issue is a delicate one and a very significant one in labour relations and labour law, as they have developed and crystallized in democratic countries. The distinction between a purely political strike, which is considered not legitimate, and an economic strike, which is recognized as a proper strike, is recognized and accepted by the different legal systems, but over time the two extreme forms of strike have been joined by an additional method of protest directed mainly at the sovereign power, which is a quasi-political strike that relies on a factual basis that is made up of a mixture of facts and goals.

Comparative law — conceptual distinctions

30. The law of the international democratic community, which has a long tradition in the field of labour relations, tends to distinguish between the ‘economic strike’, directed at the sovereign to achieve objectives in collective bargaining relating to work conditions, and the ‘purely political strike’, directed against the sovereign for the purpose of achieving political goals. This conceptual distinction is vague and rudimentary, for when considering questions relating to ‘political strikes’, the law in the aforesaid countries has generally shown that it is prepared occasionally to recognize a strike against the sovereign as an ‘economic strike’. Therefore, where employees have started a strike against the sovereign — whether government or legislator — and their goals are directed against the direct intervention of the sovereign in their employment conditions and immediate rights, such as: freezing their wages (in Holland — Re Keijzer v. Peters (1977) [24]) or reducing their salary (in Holland — N.V. Dutch Railways v. Transport Unions FNV, FSV and CNV (1986) [25], at p. 8), their strike was recognized as an economic strike, even though, as stated, it was directed at the sovereign. On the other hand, where the strike was directed against the sovereign and targeted a policy that sought to make a fundamental economic, structural change, such as tax reforms (Finland — Metal Industry Employers’ Federation v. Metal Workers Union (1988) [26]) or privatization processes (in England — Mercury Communication v. Scott-Garner (1984) [23]), the claim that the strike was economic and not political was rejected.

31. The implied conclusion, by way of analogy but in the proper context, is that a dichotomous distinction between a ‘pure political strike’, on the one hand, and an ‘economic strike’, on the other, is no longer applied in the law of the international community mentioned above, and it certainly cannot provide fitting solutions to the diverse labour disputes in a developing economy like that of the State of Israel. We can see how important is the purpose of the strike and how important are the objectives that the strike attempts to achieve. Therefore the interpreter must ascertain the purpose and objectives of the strike, and after he establishes its purpose, he will decide his position with regard to the legitimacy of that strike, even if it is aimed directly at the sovereign.

In this respect, the remarks of Justice Adler in the minority opinion of the judgment which is the subject of this petition are important. Judge Adler accepted the ruling in Mercury Communication v. Scott-Garner [23], supra, holding that:

‘… an additional tool for defining the scope of the strike within the framework of labour law is “the predominant purpose of the dispute”.’[§§]

            A strike and a quasi-political strike

32. It follows that, in the reality prevailing in Israel as established above, there are grounds to distinguish between three types of strikes, which differ in their substance, their significance and the binding legal outcome in each of them. The first is the one defined as an economic strike, which involves a strike usually directed at the employer who wants to harm the rights of the employees, or who refuses to improve their terms of employment. This strike may be directed also at the government, when it acts in its capacity as employer, or when it wishes to intervene, by using its executive power, in order to change existing arrangements in labour relations between employees and employers or to prevent such arrangements. Such a strike is accepted as a legitimate strike.

The second is a purely political strike that is directed at the government, not in its capacity as employer, but as the body responsible for determining general economic policy that is not acceptable to employees who think that such a policy will limit them and harm their ability to struggle to achieve their rights as employees. This is a strike that is considered illegitimate, in that it attempts to undermine the authority of the government to determine economic policy with a wide perspective of the general public interest, and to force it to accept the employees’ demands; this is a strike that tries to intervene in legitimate legislation proceedings within the authority of the legislature, not by methods of persuasion acceptable in our democratic system, but by forceful intervention which tries to impose on the legislator what is unacceptable to it. This strike is not legitimate, and there is a justification for preventing it.

The third is a quasi-political strike, which falls between the two extremes that have been mentioned. It is about this that I would like to make some remarks. In these cases, which fall within the range that I have described, the test of  ‘the predominant purpose’ becomes doubly important, since we are dealing with those cases where the employees are striking over an issue that is not directly related to their terms of employment in the narrow sense, but it affects them directly. Thus, when the proposed test shows and attests that there is indeed a direct effect on employees’ rights, even if they striking against the government, labour law will arise and give their strike the title of a ‘quasi-political strike’, which shall entitle the employees to the right to hold a short protest strike only, without such a case being classified as one of the two ends of the spectrum, since it is in a class of its own.

In this respect, it is appropriate to adopt the remarks of Prof. F. Raday, in her article, supra, at p. 163, that:

‘The right to strike over matters unrelated to terms of employment in the narrow sense, is completely different from the right to hold an economic strike. It is not possible to regard this as an instrument of economic pressure in conducting collective bargaining, for this would confer legitimacy on strikes against the employer or the government with regard to matters that are not subjects for collective bargaining. It should be regarded as a right of the citizen to freedom of speech and protest. Therefore it is limited to a protest strike only —to a brief action, which is not designed to put economic pressure on the employer. This right of a protest strike on broad socio-economic matters that directly affect workers may be regarded as the creation of a concept of a right to a quasi-political strike, which allows a protest act only.’

The same idea is expressed by Prof. Ben-Israel, in her article, supra, at p. 621:

‘… The proposed standard is, in one respect, that we are dealing with government policy that has an effect on the working sector, but in this context the effect must be direct, whereas an indirect effect is insufficient. An additional restriction arises from the case-law of the Committee of the International Labour Organization (ILO), which is that we are dealing with a strike that is designed to express a protest only, and is not designed to breach the peace.’

From the general to the particular

33. Should the strike before us be classified as an economic strike, entitled to the protection of labour law, as the National Labour Court ruled? In my opinion, this is not the case, and I do not accept the conclusions of the National Labour Court. I will explain my position.

34. With respect to the classification of the strike — if the General Federation wishes to rely upon the economic strike and to argue that the present strike is such, and to rely upon the protections conferred on such a strike, then it has the task, as the representative of the striking workers, of persuading the court that the policy of opening different fields of telecommunications services up to competition, as this is expressed in the Government’s draft legislation, will directly harm employees and their terms of employment, in the narrow sense. In my opinion, convincing and well-founded evidence that restricting Bezeq’s monopoly may cause direct and immediate harm to Bezeq’s employees has not been presented at all, either before the National Labour Court or even before us. Therefore, I am prepared to rely on the determination of Vice-President Adler, when he indicated that:

‘The facts submitted… have not shown a clear, certain or immediate effect that the new law will have on the terms of employment, the wages or the continued employment of Bezeq’s employees. It is possible that they will suffer, but it is also possible that they will benefit from the competition, if Bezeq competes successfully… The effect of the draft law on Bezeq’s employees is neither certain nor tangible, since there is no direct threat to the places of work of Bezeq’s employees, there is no direct intention to change their terms of employment, and there is no threat to reduce the corporation’s manpower. The opposite is true — Bezeq’s employees enjoy job security by virtue of statute and by virtue of collective agreements that apply to them.’

Therefore the inescapable conclusion is that the correct classification of this strike, according to its objectives and background, is, at most, a ‘quasi-political’ strike, which only justifies a protest demonstration that can be expressed, as stated, in a protest strike of short duration.

I emphasize the words ‘at most’, because were it not for the expectation that Bezeq’s employees have of exclusivity and an everlasting and unchangeable monopoly — expectations deriving from the provisions of sections 50, 51 and 60 of the Telecommunications Law, it is in my opinion highly questionable whether a change in the law could be regarded in any way, even prima facie, as having a direct and material influence on the employees’ terms of employment. From a review of the facts of the case and the provisions of the said law, I can determine that these feelings and expectations of the employees are unfounded. But I can understand that when the employees’ hope — albeit a mistaken one — was disappointed, a genuine fear took root in their minds that a change in the law would harm their terms of employment in some way. For this reason, I would tend to place this strike in the category of the quasi-political strike, with the consequences elucidated above.

35. It seems to me that even section 37A of the Resolution of Labour Disputes Law will lead us to the same conclusion with regard to the nature of the strike before us, and its proper classification. The term ‘strike or unprotected strike’ is defined in section 37A of the Resolution of Labour Disputes Law, in the following terms:

‘A “strike or work stoppage” — any one of the following:

(1) A strike or work stoppage of employees in public service, at a time when they are subject to a collective agreement, except for a strike that is unrelated to wages or social benefits, and the national centre of the competent trade union has declared or authorized it;

(2) …

(3) …’

In our case, where Bezeq is a  ‘public service’ within the meaning of this term in the Resolution of Labour Disputes Law, we must consider the meaning of the words ‘except for a strike that is unrelated to wages or social benefits’. With regard to the interpretation of this phrase, Prof. Ben-Israel expressed her opinion as follows:

‘Two types of strike may be justified by the exception [‘that is unrelated to wages or social benefits’]:

(a) Sympathy strikes…

(b) Strikes of a certain political character…’ (see Prof. R. Ben-Israel, The Strike, Sadan, 1987, 194) (square parentheses added).

Even if we adopt this interpretation, which I do not reject, we would still find ourselves bound by the spirit of section 37A, which seeks to ensure the uninterrupted supply of essential public services. For this reason, I believe that in providing an exception for ‘the unprotected strike’, the legislator is only prepared to recognize the quasi-political protest strike, and to protect it within its narrow limits. When the protest of Bezeq’s employees took on the form of a general and prolonged strike, it significantly exceeded the quasi-political strike in its scope and objectives, and it became a political strike in the full sense of the term. For this reason, it is illegitimate and unprotected, contrary to the approach of the National Labour Court.

When will this court intervene in a judgment of the National Labour Court?

36. The respondents argued several times that we should not intervene in the ruling of the National Labour Court, for this is not an appropriate case for intervention. Only recently we reemphasized that:

‘We do not sit as a court of appeals on the judgments of the Labour Court, and therefore this court will not consider petitions that are manifestly of an appellate nature, and it will usually consider intervening in the rulings of the National Labour Court when two conditions are fulfilled… i.e., the existence of a significant mistake of law and the existence of considerations of justice that require our intervention…’ (see, for fuller treatment, HCJ 3679/94 [1], at p. 584, where the ruling in Hativ v. National Labour Court [10] was upheld).

Counsel for the petitioners is aware that labour law is the expertise of, and within the exclusive jurisdiction of, the Labour Court, and the intervention of this court in their decisions is limited, exceptional and requires cautious treatment. Nonetheless, their opinion is that in the present case, if the innovative ruling in the judgment of the National Labour Court continues to exist, a material mistake of law with regard to norms that should be applied to the issue of the ‘political strike’ will become entrenched, and this is a very important issue that reaches the foundations of collective labour law and collective labour relations.

This position has merit. The question of the ‘political strike’ raises, as stated, questions that reach the foundations of collective labour law, and yet many aspects of it are vague and unclear. The rulings on this subject, both those given by the Labour Courts and those found in judgments issued by this court, are few, and they relate to the special circumstances of one case or another. Therefore there were reasons for the National Labour Court, but also for this court, to consider this question in depth, with all its fundamental aspects.

When there exists a real, substantial difference of opinion on this issue, which is innovative, multi-faceted and of general application, the binding law ought to be determined by us:

‘For we should remember this: the ultimate responsibility for the development of case-law within the framework of the law is entrusted to the highest and final instance in the court system, namely the Supreme Court’ (A. Barak, ‘The High Court of Justice and the Labour Court — An explanation from the viewpoint of Jurisprudence’, The Bar-Niv Book — Selected Articles in Labour Law, Ramot, A. Barak eds., 5747, 103, 116).

In the words of Justice Cheshin in HCJ 1520/91 Wilensky v. National Labour Court [11], at p. 519:

‘This court, in which we sit, is the one that bears the burden and the responsibility, and if we do not speak succinctly and clearly, we will not be able to absolve ourselves by passing the responsibility onto others by relying on the intention of the legislator. We are the guarantors — and we are expected to determine the law.’

See, for fuller treatment and comparable cases: HCJ 3679/94 [1], supra; HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv-Jaffa Regional Labour Court [12], at p. 19; HCJ 289/79 Israel Ports Authority v. National Labour Court [13], at p. 159, etc..

Conclusion

As stated above, I have determined that the essence of the strike at issue is mainly a protest by Bezeq employees against a general, socio-economic policy, which is directed at on opening up the Israeli economy to competition and privatization. This policy is legitimate and even desirable. It does not constitute direct intervention in the freedom of negotiations or the employment conditions of the employees and it is truly concerned with the general public interest.

Where the sovereign decides that social and economic conditions justify changes in economic policy, whether by means of privatization of public services or by divesting certain bodies of their monopoly, we must recognize its right and authority to implement such a policy. The strike of the employees who dispute this policy because of an unfounded fear that their rights as employees will be affected may, at most, be classified as a short-term, quasi-political protest strike, but nothing more.

37. For these reasons, the petition has merit and we grant it. We are making the show cause order absolute, in the sense that we are reinstating the outcome which the Regional Labour Court reached in its judgment, but for the above reasons.

In the circumstances of the case, there will be no order for costs.

 

 

Justice M. Cheshin

1.    I agree, but I thought I should raise two points.

First point: classification

2.    The needs of society and the methods of governing the modern State — whether in relations between the State and the individual, or between individuals inter se — present us with social and economic conditions that refuse to fit into the legal models of the past. Models used in the past to decide legal disputes can no longer be applied in their old form, and legal classifications that were once all-embracing are collapsing and falling. This is not unprecedented. This phenomenon is encountered in every branch of law.

Only recently we were required to deal with the institution of the cooperative house, and we said that it was difficult to fit it into the traditional classifications of property law (see ALCA 7112/93 Tzudler v. Yosef [14], at p. 562):

‘The cooperative house (which is called “condominium” in some jurisdictions) is an invention of modern law, and it originates in the physical and social conditions of modern society. From the viewpoint of traditional property law, the cooperative house is a kind of hybrid: the “apartments” in the cooperative house are owned separately… and alongside these the “common property” is jointly owned by all the owners. The provisions of joint ownership of the general law do not apply to the common property in the cooperative house… and the provisions of the chapter in the law on cooperative houses are unique to cooperative houses. The arrangement provided by law for the cooperative house restricts the right of the apartment owners to act both with regard to the common property and with regard to the apartments that they own, and in this we can see the normative uniqueness of the cooperative house and the arrangements that apply to it… Indeed, the cooperative house is an institution that is sui generis, which is in some ways like one thing and in other ways like another, and it adamantly refuses to fit into any of the traditional models of property law. Moreover, the cooperative house refuses to be classified only in property law, and it has elements that go beyond property law. These creative elements in the cooperative house — elements that go beyond property law — include, inter alia…’

An example which is closer to the matter at hand may be found in the traditional distinction between private law and public law. This distinction has, to a large degree, been blurred recently. With respect to certain legal issues, its value has greatly diminished, and its strength has almost been depleted. In the words of Justice H. Cohn in HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [15], at p. 2109:

‘… in the national and public economy of today, there is no longer any practical benefit in the accepted distinction between the commercial or civilian acts of any authority of the State or a local authority, and their executive or public acts.’

See also HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [16].

3.    This is also the case in the matter before us, namely, with regard to the traditional dichotomous classification of the strike as either an  ‘economic strike’, within the narrow field of employee-employer relations, or a  ‘political strike’ (if this is indeed a ‘strike’). For reasons that we shall not consider at length (which include the ever-increasing intervention of the State in the conditions of economic life, and the greater awareness of civil rights, and these are perhaps the main reasons), the courts, academics and practitioners in the field of social sciences have found that the traditional classification can no longer provide proper solutions for social and economic conditions, which life and the development of law in a modern State have shown us. This unsatisfactory nature of the traditional models naturally led to a need to try and find new models, whether by improving the existing models or by designing new models that fit the needs of our times. Apparently we are currently in a period of transition, from the model of the past to the model of the present. This leads to the various proposals for new (or reconstituted) models, and this leads to different opinions among academics and lawmakers. As long as we have the comforting protection of a universally accepted classification, the resolution of issues may appear simple and clear, and resolving disputes may appear to be routine (even if it is not so). But during a transition stage from one period to another, nerve-endings are exposed, the search for creative elements that transcend the law becomes urgent and vexing, and disagreements between opposing outlooks are revealed with increasing intensity.

4.    My colleague suggests that we adopt the remarks written by Professor Raday with regard to the issue of ‘quasi-political’ strikes, and he goes on to mention in the same context the remarks of Professor Ben-Israel. The comments of these two authorities — each in her own way — appear beneficial and useful as models for examination and determination, but I believe that we should take care not to adopt one model only, a model that may provide us with a fitting solution for one set of facts, but may be ineffective with respect to another set of facts (we note that a  ‘quasi-political’ strike is, by definition, supposed to give expression not (only) to the right to work and earn a livelihood, but (mainly) to civil rights). In our case, I have not the slightest doubt that the strike of the employees has gone beyond the framework of a strike that should be recognized as legitimate. A strike of the kind that we have seen in this case is capable of dealing a mortal blow to the infrastructure of a democratic society, obliterating fundamental values of social morality and destroying the norms of coexistence. We know where it begins, but who knows where it may end? In this respect, I can only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10], at pp. 703-704, cited by my colleague in paragraph 28 of his judgment.

Second point: the right (or freedom) to strike and human dignity

5.    My colleague states (in paragraph 24 of his judgment) that since the advent of the Basic Law: Human Dignity and Liberty, the right (or freedom) to strike ‘will in the future find refuge in the value of “human dignity” that is enshrined in this Basic Law’. My colleague goes on to say that ‘the focus of our consideration is a liberty that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time’. No one would dispute that the freedom to strike is one of the inalienable assets of the Israeli legal system. I would also agree that the freedom to strike and its status are on an elevated level, equal to that of statute. Notwithstanding, since we do not need to decide this now, I would not say that it is self-evident that the freedom to strike springs naturally from ‘human dignity’ in the Basic Law: Human Dignity and Liberty, and that its status today is that of a constitutional right. In HCJ 453/94 Israel Women’s Network v. Government of Israel [17], our colleague, Justice Zamir, says the following at p. 536 {468}:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that recognize many aspects of the Basic Law. This is particularly true with regard to the right to dignity. The same is true of law books. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, supposedly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it”.

I would like to restrain myself, in this context, from obiter dicta that find their way between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a binding part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of “do not raise or disturb it until it is required”.’

In that case, the court considered the principle of equality, and Justice Zamir thought that it was possible to decide the dispute that arose between the litigants without also deciding that ‘the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty as part of the value of human dignity, and it has, therefore, a super-legislative status’ (ibid.). This was true with respect to the principle of equality, and it is also true, in my opinion, with respect to the freedom to strike in our case. Let the remarks of Justice Zamir be heard as if they sprung forth from my lips.

 

 

Justice Ts. E. Tal:

I agree with the judgment of the honourable Justice D. Levin. Like my colleague, Justice Cheshin, I too wish to emphasize the harm to the foundations of democracy that results from a strike that is not an economic strike against an employer, whereby a group of workers tries to bring the legislature to its knees by force. I would leave undecided the question whether the right to strike is currently enshrined in a basic law.

 

 

Petition granted.

10 Nissan 5755.

10 April 1995.

 

 

[*]   General Federation v. Bezeq, the Israel Telecommuncation Corporation Ltd IsrLC 25 367.

[†]           Ibid., at p. 377.

[‡]           Ibid., at pp. 378-379.

[§]           Ibid., at p. 386.

[**]         IsrLC 25 367.

[††]         Ibid., at p. 376.

[‡‡]         IsrLC 25 367.

[§§]         Ibid., at p. 390.

H.C.J  5/48

           

LEON & OTHERS

v.

ACTING DISTRICT COMMISSIONER OF TEL AVIV (YEHOSHUA GUBERNIK)

 

 

 

In the Supreme Court sitting as the High Court of Justice

[October 19, 1948]

Before: Smoira P., Olshan. J., and Assaf J.

 

 

 

Mandatory legislation - Enforceability in Israel - Validity of Mandatory Emergency and Defence Regulations - Requisition of flat - Interference by High Court in exercise of discretion by Competent Authority.

 

                The Law and Administration Ordinance 1948, provides that the law which existed in Palestine on May 14, 1948, "shall remain in force... subject to such modifications as may result from the establishment of the State and its authorities".

               

                The Acting District Commissioner of Tel Aviv, as the competent authority under the Defence Regulations of 1939, made pursuant to the (English) Emergency Powers (Defence) Act 1939, requisitioned a flat situated at no. 3, Chen Boulevard, Tel Aviv, by order dated 6 September 1948. The requisition was for the benefit of the Attorney-General who, previously to his then recent appointment to that office, had resided in Haifa, but who upon such appointment found it necessary to reside in Tel Aviv, where he had been unable to find a suitable flat.

 

                Objections to the order were made by the landlord of the flat and an incoming tenant, and were based mainly on the grounds that (a) the Regulations under which the order was made had never been in force in Palestine, or if ever in force, that their validity had expired upon the establishment of the State of Israel, (b) the competent authority was never legally appointed as such; and that in any event he had exceeded his authority and had acted capriciously, in bad faith and without due regard to the principles of reason and justice.

               

                Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

 

(l)            The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

 

(2)           The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

 

                General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

           

Palestine cases referred to :

(1)   H.C. 18/47 Dinah Kazak v. The District Commissioner, Haifa District: (1947), 14 P.L.R. 87.

(2)   H.C. 118/44 Zeev Poms & others v. The District Commissioner, Lydda District, & Mordechai Gileady: (1944). 11 P.L.R. 574.

 

English case referred to:

(3)        Carltona Ltd. v. Commissioners of Works & others (1943) 2 All E.R. 560.

 

R. Nohimovsky for the Petitioners.

 

H. H. Cohn, State Attorney, and J. Kokia, Deputy State Attorney, for the Respondent.

 

            SMOIRA P. giving the judgment of the court. On September 23, 1948, after Mr. Nohimovsky had submitted his arguments on behalf of Mr. Leon and Mr. Kleiman, an order nisi was issued by this court against the respondent, Mr. Yehoshua Gubernik, the Acting District Commissioner of Tel Aviv (Urban Area), calling upon him to show cause why an Order of Requisition issued by him on September 6, 1948, should not be set aside. In terms of that order, the respondent acquired possession of the flat of Mr. Leon on the second storey of the building situated at No. 2, Chen Boulevard, Tel Aviv, as from the date of its vacation. The flat in question was requisitioned for the benefit of Mr. Ya'acov Shapira, the Attorney General of Israel.

           

            When the parties appeared before us on the return to the order nisi, Mr. Nohimovsky gave notice of an amendment of the Petition since it appeared that his Power of Attorney had been signed by Mr. Kleiman, the owner of the building, alone. He accordingly requested us to delete the name of the first petitioner, Mr. Leon, the tenant of the flat. On the other hand Mr. Nohimovsky asked us to join as a petitioner Dr. Boris Tamshas who, in terms of an agreement of September 8, 1948 with the second petitioner, the owner of the building, had acquired the right to enter the flat after it had been vacated by Mr. Leon.

           

            The State Attorney, Mr. Haim Cohn, who appeared on behalf of the respondent, did not oppose the amendment sought, and it was accordingly decided by the court to delete the name of Mr. Leon as a petitioner, and to join Dr. Tamshas in that capacity.

           

            The result is that on the return there appeared before the court Mr. Kleiman, the owner of the building, and Dr. Tamshas, who wishes to enter the flat in question as a tenant, both represented by Mr. Nohimovsky.

           

            Before entering upon the merits of the case we must deal with the first submission of counsel for the respondent who argued that the court should dismiss the petition in limine. His contention is that the petitioners have not come into court with clean hands in that Mr. Nohimovsky lodged a Power of Attorney purporting to be signed by Mr. Leon and Mr. Kleiman while in fact it was signed by Mr. Kleiman alone. It follows that the petition contains declarations in the name of Mr. Leon which he never made; and since Mr. Kleiman speaks in his affidavit of the "contentions of the petitioners" this declaration is incorrect, since Mr. Leon does not appear as a petitioner nor does he submit any contentions. According to the Advocates Ordinance, the argument proceeds, an advocate is responsible for the signature of his client. He who comes to this court with unclean hands, Counsel submits, cannot receive any relief whatsoever.

 

            It is indeed an important rule that this court will not grant relief to a petitioner who does not approach it with clean hands but we do not think that the rule applies to the present case. True, it is the duty of an advocate to ensure that a Power of Attorney is signed by all those in whose name it purports to be given and for whom he acts. In the present case, however, we assume that the omission was due rather to carelessness and haste than to an intention to mislead, and we have decided therefore to deal with the application on its merits.

           

            While mentioning the duties of advocates we also wish to add that it is the duty of an advocate to set out in his petition the main points of his -argument. An advocate, therefore, who wishes to submit in a petition of this kind that the Order of Requisition has no legal foundation, since the law upon which it purports to be based has been repealed, does not discharge this duty simply by alleging that "the Order of Requisition is illegal, has no force and is of no effect whatsoever". The petition must be framed in such a way as to inform the respondent of the case he has to meet.

           

            The law which requires a reply to an order nisi demands that the Petition be so clear as to leave no room for speculation. The law is directed to every citizen whether he represented by counsel - who may have a genius for guessing - or whether he appears without counsel. The submissions as framed in the petition in this case do not disclose the ground upon which it is said that the Order of Requisition is illegal. The opinion of the petitioner that the requisition is illegal may be inferred by the respondent from the very fact that an application has been brought to this court. The ground for that opinion, however, which was stressed in the petitioner's argument after the respondent had replied, could not have been discovered by the respondent in the petition. This court is not an arena for a duel of surprises between litigants but a forum for the basic clarification of disputes between parties. Such clarification after proper preparation by the parties is only possible if the submissions are properly defined and do not hide more than they disclose.

           

            I pass now to the merits of the case. The full text of the Order of Requisition of September 6, 1948, with which we are concerned, is as follows: -

           

                                                                     "State of Israel

                                                                     Provisional Government.

                                                                     Offices of the Commissioner

                                                                     (Urban Area)

                                                                     Tel Aviv.

           

File No. 1/7/SK.

Mr. Yuval Leon,

2, Chen Boulevard,

Tel-Aviv.                                 (The tenant)

 

Mr. Kleiman,

2, Chen Boulevard,

Tel-Aviv.

 

ORDER OF REQUISITION

 

            Whereas it appears to me, Yehoshua Gubernik, Competent Authority, to be necessary and expedient so to do in the interests of the public safety, the defence of the State, the maintenance of public order and the maintenance of supplies and services essential to the life of the community:

 

2.         I therefore inform you herewith that pursuant to Regulation No. 48 (I) of the Defence Regulations, 1939, (Amendrment No. 2 of 1945),1) I hereby take possession as from the date upon which it will be vacated of the property described below:

 

Description of Property

Flat occupied by Mr. Yuval Leon on the second storey of the building situate at No. 2 Chen Boulevard, Tel Aviv.

September 6, 1948

                                                                                            Y. Gubernik

                                                                                   Competent Authority."

Copy to Chairman

Central Housing Board,

District Engineer's Department,

Tel Aviv,

Mr. Ya'acov Schapira.

 

And these are the main submissions of counsel for the petitioners:

 

            (a) The Defence Regulations of 1939 have never been in force in Palestine and, in any event, have not been in force in Israel since the establishment of the State. These regulations derive their validity from an English statute, namely, The Emergency Powers (Defence) Act, 1939, and it was never legally possible to apply this statute to Palestine. If it has ever been valid, its validity expired with the establishment of the State of Israel.

           

            (b) Even if we assume that the Defence Regulations of 1939 are still in force, regulation 481) - upon which the Order of Requisition is based -has in any case been repealed by regulation 114 of the Defence (Emergency) Regulations, 19451, and for this reason too the Order of Requisition has no legal foundation.

           

            (c) Even if we assume that regulation 48 is still in force, the respondent was never legally appointed as a Competent Authority for the purposes of that regulation.

           

            (d) The respondent abused his office in that he exceeded his authority, infringed the rights of the petitioners, and issued the Requisition Order, not in good faith but capriciously and without paying due regard to the principles of reason and justice.

           

            It should be pointed out that counsel for the petitioners did not raise the first two submissions set out above in his argument before us on the date of the issue of the order nisi, but then confined himself to the third and fourth submissions alone. It is no wonder, therefore, that counsel for the respondent dealt in his reply with the two last-mentioned points only. He contended that Mr. Gubernik had been lawfully appointed as a Competent Authority for the purposes of regulation 48, which is still in force, and had issued the Order of Requisition in good faith and in the reasonable exercise of his discretion. He further submitted that the question whether the requisition was necessary for the maintenance of services essential to the community was one for the discretion of the Competent Authority with which this court would not interfere.

           

            In his detailed argument in support of his first submission. counsel for the petitioners contended that the Defence Regulations of 1939 have been of no effect since May 14, 1948, the date of the establishment of the State of Israel. He contends further that these Regulations were made by the High Commissioner for Palestine on the basis of the Emergency Powers (Defence) Act, 1939, and if there is no longer any legal basis for this English statute in Israel then the foundation of the Defence Regulations of 1939 also falls away.

           

            Counsel for the petitioners bases this argument upon section 11 of the Israel Law and Administration Ordinance, 1948, which provides: -

           

"The law which existed in Palestine on May 14th,1948, shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities."

           

            His argument is twofold. Firstly, he contends that the words "The law" at the beginning of section 11 do not include a well-known series of statutes which the King of England - and through him the High Commissioner for Palestine - legislated for Palestine, purporting to exercise powers which were at no time his. Secondly, he submits that such statutes have in any case been repealed by the concluding words of the section, namely, "and subject to such modifications as may result from the establishment of the State and its authorities". Counsel wishes us to distinguish between two classes of Statutes and Orders in Council: those which were enacted specifically on the basis of the Mandate or with special reference to Palestine, and those which were enacted by the English legislature (as distinct from the Palestine legislature) or by the King and which have no connection with the Mandate or special reference to Palestine but which were enacted solely under the powers conferred by the Foreign Jurisdiction Act, 18901). The first class mentioned, the argument proceeds, includes The Palestine Order in Council, 1922 (Drayton, Laws of Palestine, Vol. III, p. 2569), The Palestinian Citizenship Order, 1925 (ibid. p. 2640), The Palestine Currency Order, 1927 (ibid. p. 2615) and The Palestine (Western or Wailing Wall) Order in Council, 1931 (ibid. p. 2635). To the second class, counsel contends, belongs the Order in Council of 1939 which applied the Emergency Powers (Defence) Act, 1939, to various parts of the British Empire, including Palestine. This statute, which was passed by the British Parliament, has no connection with the Mandate and no special reference to Palestine, and the relevant Order in Council was made under section 4 of the Statute and under the powers conferred by the Foreign Jurisdiction Act. Since, in any event, this Statute ceased to be in force in Israel after the establishment of the State, the Defence Regulations of 1939 also ceased to be valid. The same applies to the Supplies and Services (Transitional Powers) Act, 1945 (Palestine Gazette, 1946, Supp. 2, p. 229), and the Order in Council of January 10, 1946, which followed in its wake (ibid. p. 234), and to the Emergency Laws (Transitional Provisions) Act, 1946 (ibid. p. 573), and the relevant Order in Council of February 19, 1946 (ibid. p. 591). Counsel for the petitioners submitted that while English statutes which were applied to this country by Orders in Council and which belong to the first class mentioned are still in force, statutes which belong to the second class have ceased to be valid because of the modifications which, as he argues, have resulted from the "establishment of the State and its authorities". When asked to express his opinion on the validity, for example, of the English Copyright Act of 1911 (Drayton, ibid. p. 2475), which was introduced into Palestine by the Order in Council of 1924 (ibid. p. 2499), Counsel at first replied that that Statute was still in force. Later, however, he retracted this opinion and submitted that the Act no longer applied since it is not mentioned in the Palestine Order in Council of 1922. and the Order relating to the Copyright Act does not refer to the Mandate but speaks only of those countries which are under the King's protection. Palestine, he argues, was never under the King's protection and the Order relating to Copyright flows in fact from the powers conferred by the Foreign Jurisdiction Act, 1890.

 

            Counsel for the petitioners further submits that the English statutes referred to which empowered the thigh Commissioner (by Orders in Council) to make Defence and Emergency Regulations possess a dictatorial character - even an anti-Jewish character - to the extent that they were directed towards destroying the National Home and the development of the country by the Jews2), and towards stemming the flow of Jewish immigration into the country. Since the State of Israel is a democratic state and a Jewish state there have come about modifications within the meaning of the words "and subject to such modifications as may result from the establishment of the State and its authorities" - modifications, he submits, which make it impossible for these Statutes to be given validity in Israel.

           

            In summing up his first submission Mr. Nohimovsky asked the court to decide whether the Defence Regulations of 1939 are still in force seeing that their very foundation, namely, the validity in Israel of the English Statutes upon which they are based, has ceased to exist. These are revolutionary times and in the Opinion of counsel it is for the court to accelerate the process of releasing the State of Israel from the binding force of that class of English Statutes to which he referred.

           

            Mr. Nohimovsky asked us not to leave this fundamental question open and decide the case on some other point. We are also of opinion that it is desirable for us to deal with this question, since it is indeed the duty of this court to give its reply to the view - which appears to be widespread - that the Supreme Court is competent to decide upon the validity of certain well known Statutes because they are not in accord with the spirit of the times. There are undoubtedly certain laws objectionable to the Jewish community because of the way in which they were employed in the time of the Mandate. It is true, moreover, that the abuse of these laws was fought both inside and outside the courts, and it was even argued that these laws were invalid because they were inconsistent with both the language and the spirit of the Mandate. It would be wise, therefore, to deal at some length with this problem which has already been raised a number of times since the establishment of the State and will undoubtedly come before us again.

           

            The basis of the reply to this question is in our opinion section 11 of the Law and Administration Ordinance, 1948, the full text of which has already been cited. That section lays down a clear and important rule, namely, that the law which existed in Palestine on May 14, 1948, shall remain in force. The exceptions laid down in section 11 are as follows:

           

        (1)   Laws which are repugnant to the Law and Administration Ordinance itself shall not remain in force.

 

        (2)   Laws which are repugnant to those which may be enacted by or on behalf of the Provisional Council of State shall not remain in force.

 

        (3)   Previously existing laws shall remain in force subject to such modifications us may result from the establishment of the State and its authorities.

 

            This analysis of section 11 requires that we first interpret the rule before we deal with the exceptions, and the question that arises in the present case is whether the Defence Regulations of 1939 were a part of "the law which existed in Palestine on May 14th 1948". If the reply to this question is in the negative there will be no necessity to consider the exceptions laid down in section 11. If, however, the reply is in the affirmative it will be necessary to determine whether the validity of the regulations has ceased in accordance with one of the exceptions referred to.

           

            One of the Ordinances which is undoubtedly still in force is the Interpretation Ordinance of 1945, and the words "The law which existed" in section 11 of the Law and Administration Ordinance must therefore be interpreted in accordance therewith. The Interpretation Ordinance contains a definition of the word "Law" which includes, inter alia, "such Acts or parts of Acts. and such Orders) by His Majesty in Council or parts of such Orders, whether passed or made before or after the commencement of this Ordinance, as are now, or have heretofore been, or may hereafter be, in force in Palestine".

 

            We are to assume, therefore, that the words "The law" in section 11 include Statutes of the Parliament of England which were applied to Palestine by the Order in Council no less than Ordinances made by the High Commissioner for Palestine. Nevertheless, we are not unmindful of the submission of Mr. Nahimovsky that such Statutes include some which were inconsistent with the Mandate and which were therefore invalid. The courts of Palestine during the Mandate were not prepared to accept this submission on the ground that the Mandate was not part of the law of the land, save in so far as it had been introduced by an Order in Council. This court inclines to a different opinion and is prepared to consider whether a law passed in Palestine during the Mandate contradicts the terms of the Mandate. We are unable, however, to accept the contention of counsel for the petitioners that every Imperial Statute which has no direct connection with the Mandate or no special reference to Palestine and which was applied to Palestine by Order in Council is wholly invalid. We find no such limitation in any provision of the Mandate. On the contrary, the first provision of the Mandate lays down that "The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate". The distinction drawn by counsel for the petitioners between Imperial Statutes based upon the Mandate or having special reference to Palestine and other Statutes applied to Palestine finds no support in the text of the Mandate or in the basic Constitution of Palestine, namely, the Palestine Order in Council, 1922, or in section 11 of the Law and Administration Ordinance of 1948. Such a distinction, moreover, would lead to absurd results as, for example, the invalidity in Israel of the Copyright Act since the Order in Council which applied that Act to Palestine is not expressly based upon the Mandate nor does the Statute contain matters applying specifically to Palestine. The simple answer to counsel's argument is that article I of the Mandate, as I have mentioned, confers full legislative powers and there was no need to make special reference to the Mandate in applying a particular Statute. By virtue of article I of the Mandate laws were made for Palestine in two ways. The usual method was by Ordinances issued by the High Commissioner in Council, and the second method was by the application of an English Statute to Palestine by Order in Council. There is no basis in constitutional law for the argument that the latter method - which we shall call the Imperial method - was any less effective than the former. It follows, therefore, that even without relying upon the Interpretation Ordinance of 1945 we must include Statutes within the expression "The law" in the first part of section 11 of the Law and Administration Ordinance, 1948.

 

            It would appear that all these rationalistic arguments directed towards distinguishing between different classes of legislation are in fact based more upon emotion than upon reason - indeed, counsel was even prepared to sacrifice so innocent a statute as the Copyright Act for the sake of consistency. The real attack, however, is directed against the Defence Regulations and the English Statute from which they derive.

           

            We do not think that the legislature of a democratic state is precluded from passing a law which enables the making of Emergency Regulations. Laws such as these are to be found in the most democratic of Constitutions as, for example, the Constitution of the Weimar Republic of Germany. The example closest to as, however, is to be found in our own Ordinance, the Law and Administration Ordinance, 1948, which includes in section 9 a specific provision relating to Emergency Regulations1). The governing consideration here is not the existence of Emergency Regulations but the manner in which they are employed. There is no room today for the submission that Emergency Regulations made in the time of the Mandate are no longer in force because they were then used for anti-Jewish purposes.

           

            Let us take, for example, from the period of the Mandate, the Lands (Acquisition for Public Purposes) Ordinance, 1943. There is no doubt that according to the test of counsel for the petitioners that Ordinance is still in force. let us assume - purely for the sake of clarifying the matter - that the mandatory authorities used this Ordinance capriciously for the expropriation of the property of Jews alone. The argument is inconceivable that this Ordinance - which, in its terms, contains no discrimination whatsoever - is invalid because it was employed capriciously.

           

            This argument is untenable for yet another reason. It cannot be said - as is often suggested - that the purpose of all these Defence Regulations was dictatorial repression and so forth. The English who, within their own land, are certainly lovers of freedom and jealously guard the rights of the citizen - found it proper to make Emergency Regulations similar to those which exist here and which include, inter alia, provisions for the expropriation of the property of the individual in the interests of the public.

           

 

            Having reached the conclusion that the Defence Regulations of 1939 made under the Emergency Powers (Defence) Act, 1939 are included within the expression "The law" at the beginning of section 11, we must examine whether they fall within one of the three exceptions set forth above in our analysis of that section. Counsel for the petitioners did not argue that these Regulations are repugnant to the Law and Administration Ordinance or to any Law enacted by the Provisional Council of State. He did contend, however, with great emphasis, that we should declare the Regulations invalid by virtue of the words "subject to such modifications as may result from the establishment of the State and its authorities". He submitted that these words empower the court to declare a particular law invalid provided only that this course can be justified by some change brought about by the establishment of the State.

           

            This argument is quite unreasonable. It would require that this court first determine that the establishment of the State has brought about some change and the nature of the change; and then consider whether this change requires that a particular law be invalidated. All this would then have to be embodied in a judgment, declaring that the law in question is no longer in force. It is precisely this, however, which is the duty of the legislature; and it is not to be assumed for a moment that the legislature of Israel, in using the words quoted, intended to delegate part of its duties to the courts.

           

            The legislature would not have concealed within the words "subject to such modifications as may result from the establishment of the State and its authorities" a matter of such importance as the invalidation of a whole series of Defence and Emergency Regulations. In section 13 of the Ordinance the legislature expressly repealed the provisions of the White Paper of 1939, namely, sections 13 to 15 of the Immigration Ordinance, 1941, and Regulations 102 to 107 of the Defence (Emergency) Regulations, 1945, and also the Land Transfer Regulations, 1940. Had it been of opinion that it was also necessary to repeal the Defence Regulations of 1939 or the Defence (Emergency) Regulations of 1945, either wholly or in part, it could have followed the simple course of repealing them expressly as it did in section 13 of the Ordinance in the case of the Regulations there mentioned. But it did not do this. If we read Chapter Four of the Law and Administration Ordinance in its entirety we shall see that the words "subject to such modifications as may result from the establishment of the State and its authorities" were intended to refer to technical modifications without which the law in question could not be applied after the establishment of the State and its new authorities. The word "modifications" was intended by the legislature to refer to such modifications as would necessarily flow from the very fact of the establishment of the State and its authorities. It was not intended to refer to modifications which demand special consideration such as the repeal of one of a series of existing laws. For example, according to an Order by the Director of the Department of Immigration in regard to Places of Entry to Palestine, 1943 (Palestine Gazette, Supplement 2, No. 1249, p. 125), as amended, Allenby Bridge is one of the lawful places of entry into Palestine. Although in terms of section 15(a) of the Law and Administration Ordinance, 1948, the word "Israel" is to be substituted for the word "Palestine" wherever it appears in any law, it is clear without any necessity for special consideration that the establishment of the State and its authorities necessitates the deletion of Allenby Bridge3) from the Order referred to.

 

            This restrictive interpretation of the words referred to may also be derived from section 16 of the Ordinance which empowers the Minister of Justice to issue a new text of any law which existed in Palestine on May 14, 1948, and which is still in force in the State, such text to contain "all the modifications resulting from the establishment of the State and its authorities". It is clear that section 16 was never intended to vest in the Minister of Justice the powers of the legislature to repeal existing laws on the basis of "modifications which may result from the establishment of the State and its authorities". Section 16 can only have been intended to refer to technical modifications. On the general principles of interpretation it cannot be assumed that the same words used in the same chapter of an Ordinance are to be read in different ways and it necessarily follows, therefore, that the words relating to "modifications" mean technical modifications in section 11 as well.

           

            As we are indeed living in a period of change and as we stand upon the threshold of the new State - we desire, in concluding this part of our judgment, to add a few general comments on the duty of a judge when he comes to interpret the law. The doctrine of the division of powers within the State is no longer as rigid and immutable as it was when once formulated by Montesquieu. In the field of jurisprudence the opinion has prevailed that in cases to which neither law nor custom applies it is for the judge to fulfil the function of the legislature rather than to force the facts before him into the narrow confines of the existing law, which in truth contains no provision applicable to them. This conception has found its classic expression in the first section of the Swiss Code which provides expressly that if the judge can find neither law nor custom which applies to the case before him, he is to lay down the law as if he himself were the legislature. But this principle only applies where in fact no law exists. It is a far cry from this to require that judges, in the exercise of their judicial powers, should repeal laws which undoubtedly do exist but which are unacceptable to the public. We are not prepared to follow this course, for in so doing we would infringe upon the rights of the existing legislative authority in the country, the Provisional Council of State. The courts are entitled to decide that a particular law is invalid as exceeding the powers of an inferior legislative body which enacted it. So, for example, if the Council of State were to delegate to a Minister the power of making regulations within certain limits, it would be for the court to examine in a particular case whether a regulation so made exceeded the limits laid down.

 

            This is the well-known doctrine of ultra vires. It is often suggested these days - as has been argued before us by counsel for the petitioners - that the Defence Regulations in general, and those Regulations relating to the requisition of property in particular, were put to improper use during the Mandate against the Jewish community. In addition to what we have already said on this point, it is our opinion that there is no room for this contention when considering the validity of these Regulations in the State of Israel. It cannot be disputed that despite the harshness which the use of these Regulations sometimes involves, an orderly community in a state of emergency cannot exist without emergency regulations which, in their very nature, place the interests of the public above the freedoms of the individual. The question of the extent to which the court may interfere in the discretion of the Competent Authority which applies these regulations will be considered when we deal with the fourth submission of counsel for the petitioners.

           

            Our conclusion on the first point is that the Defence Regulations of 1939 were valid in the time of the Mandate and that they are still in force by virtue of section 11 of the Law and Administration Ordinance, 1948.

           

            The second submission of counsel for the petitioners is that even if we assume that these Regulations are generally still in force, the validity of regulation 48 expired in September, 1945. with the making of the Defence (Emergency) Regulations, 1945. Counsel contends that regulation 48 of the Regulations of 1939 (which was amended on February 23, 1945, Palestine Gazette Supplement 2, No. 1394, page 161 of March 1, 1945) was impliedly repealed by regulation 114 of the Regulations of 1945. We shall quote the text of the two regulations.

           

            Regulation 48, sub-section 1, of the Defence Regulations 1939, as ascended on February 23, 1945, provides: -

           

"A competent authority may, if it appears to that authority to be necessary or expedient so to do in the interests of the public safety, defence, or the efficient prosecution of the war, or of maintaining supplies and services essential to the life of the community, take possession of any land, and may at the same time, or thereafter, give such directions as appear to the competent authority to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of that land".

 

            Regulation 114(1) of the Emergency Regulations of September 22, 1945, provides: -

           

"A District Commissioner may, if it appears to him to be necessary or expedient so to do in the interests of the public safety, the defence of Palestine, the maintenance of public order or the maintenance of supplies and services essential to the life of the community, take possession of any land, or retain possession of any land of which possession was previously taken under regulation 48 of the Defence Regulations, 1939, and may, at the same time or from time to time thereafter, give such directions as appear to him to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of the land."

 

            Counsel for the petitioners contends that these two Regulations deal with the same matter, that is to say, the requisitioning of land for the benefit of the community, and that the earlier regulation, therefore, has been impliedly repealed by the latter. It follows, he submits, that an order of requisition may today only be issued by the District Commissioner under regulation 114 and not by the Competent Authority under regulation 48. He submits further that the High Commissioner could not revive regulation 48 by the Supplies and Services (Transitional Powers) Order, 1946 of February 22, 1946 (Palestine Gazette, Supplement 2, No. 1477, p. 348) since the Order in Council in regard to Supplies and Services (Transitional Powers) (Colonies etc.), 1946, of January 10, 1946, empowers the High Commissioner to extend and give effect only to those regulations which were still in force at the date of the Order (see paragraph (c) of the First Schedule of the Order) (Palestine Gazette, Supplement  2, No. 1473, p. 236). It follows, says counsel, that the High Commissioner could not revive a regulation on February 22, 1946, the validity of which had already expired on September 22, 1945. We shall first examine the question raised by counsel as to the validity of regulation 48 without considering the argument that it has been impliedly repealed.

           

            (1) As we have already mentioned in dealing with the first submission of counsel for the petitioners, the constitutional basis of the Defence Regulations of 1939 is the English Statute (of August 24, 1939) known as the Emergency Powers (Defence) Act.1939. That Act empowers the King of England to make by Order in Council such "Defence Regulations" as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community. The power of the King to take possession of any property is mentioned expressly in section I(2) of the Act. In terms of section 4(I) (d) of the Act the King is empowered to direct by Order in Council that the provisions of the Act shall extend to any territory in respect of which a mandate on behalf of the League of Nations has been accepted by him and is being exercised by his Government. Section 11 of the Act provides that it shall continue in force for a period of one year from the date upon which it was passed (August 24, 1939), and that it shall then expire, provided that upon the request of Parliament the King may, by Order in Council, extend its validity from time to time for additional periods of one year.

           

            (2) By an Act of May 22, 1940, section 11 of the original Act of 1939 was amended so as to introduce a period of two years instead of one year as the initial period of validity of the statute. The Act was to remain in force, therefore, until August 24, 1941.

           

            (3) In 1939 the King, acting under the powers conferred upon him by section 4(1) of the Act of 1939, directed by Order in Council that the Act apply to Palestine and that the power of making regulations conferred by the original Act upon the King in Council be exercised in colonies and mandated territories by the Governors of such colonies or territories (article 3 of the Order). This constitutes the basis of the power of the High Commissioner to make the regulations which he issued on August 26, 1939, and which are called the Defence Regulations, 1939.

           

            (4) By an Order in Council of June 7, 1940, the King extended the validity of the Act of 1940 to colonies and mandated territories.

           

            The original Act thus acquired validity until August 24, 1941, in Palestine as well.

           

            (5) Thereafter the validity of the original Act, which had also been applied to Palestine, was extended by Orders in Council from year to year for additional periods of one year until August 24, 1945.

           

            (6) On June 15, 1945, a special Act called the Emergency Powers (Defence) Act, 1945, was passed in England to extend the validity of the original Act of 1939 "for periods of less than one year". This Act provided that for section 11(I) of the original Act there shall be substituted a provision which lays down that the original Act shall continue in force until the expiration of the period of six months beginning with August 24, 1945 - that is to say, until February 24, 1946 - and shall then expire. The Act also provided that it could be cited together with the original Act and the Act of 1940 as the Emergency Powers (Defence) Acts, 1939-1945.

           

            (7) On December 10, 1945, an Act was passed in England called the Supplies and Services (Transitional Powers) Act, 1945. This Act was published in Palestine in the Palestine Gazette 1946, Supplement 2, No. 1473, p. 229. In the Long Title of the Act its objects are defined, inter alia, as follows: An Act to provide for the application of certain Defence Regulations for purposes connected with the maintenance, control and regulation of supplies and services, for enabling Defence Regulations to be made for the control of prices and charges, for the continuation of Defence Regulations so applied or made during a limited period notwithstanding the expiry of the Emergency Powers (Defence) Acts, 1939 to 1945. Section 1 of this Act provides that the King in Council way direct that certain Defence Regulations shall continue to have effect whether or not they are for the time being necessary or expedient for the purposes specified in sub-section (1) of section one of the original Act of 1939. Section 5(4) empowers the King to apply the Act to colonies and mandated territories in the same way as the original Act.

           

            (8) In pursuance of the last mentioned provision the King in Council made an Order on January 10, 1946, in which he applied the Act of 1945 to Palestine (Palestine Gazette Supplement 2, No. 1473, p. 234), and conferred the power of making regulations upon the High Commissioner.

           

            (9) Pursuant to the powers conferred upon him as described in the preceding paragraph, the High Commissioner issued an Order on February 22, 1946, called the Supplies and Services (Transitional Powers) Order, 1946, in which he set forth a series of regulations which were to remain in force as above stated, including regulation 48 of the Defence Regulations, 1939.

           

            It follows, therefore, that the High Commissioner issued this Order two days before the original Statute and the Defence Regulations issued thereunder ceased to be valid. He acted, therefore, in accordance with Section C in the First Schedule to the Order in Council of January 19, 1946, which provides that the power to extend the validity of Defence Regulations applies only to such Regulations as are still in force on the date of the issue of the Order, that is to say, January 10, 1946. This then was the position in law.

 

            But we must still deal with the argument of counsel for the petitioners that regulation 48 was impliedly repealed by regulation 114 of the Emergency Regulations of 1945.

           

            Counsel relies upon the well-known principle that Lex posterior derogat legi priori and upon Maxwell, Interpretation of Statutes, 9th Edition, p. 171. The general answer is that there can only be an implied repeal where there exists a logical inconsistency between the first and the second legislative provisions - in which case the first is impliedly repealed by the second - or, if there is no inconsistency between the two provisions, where there is no justification for the continuance of the two.

           

            It cannot be said in the present case that such a logical inconsistency exists. It must be assumed that it was the desire of the legislature to confer the powers in question upon the Competent Authority under the Defence Regulations of 1939, and upon the District Commissioner under regulation 114. It cannot be said, moreover, that these two sets of provisions cannot stand together. There is a reason which explains the existence of two sets of regulations, namely, that the Defence Regulations of 1939, were designed to deal with a situation created by external factors, such as war, while the regulations of 1945 were made to deal with a situation created by internal factors. That this is so is apparent from the position that had existed previously. Before the Emergency Regulations of 1945 there existed the Emergency Regulations of 1936 which were not repealed by the Defence Regulations of 1939. That is to say that even before 1939 there existed two sets of Regulations although up to 1945, during the period of the war, the authorities employed the Defence Regulations of 1939. And as far as the authority of Maxwell is concerned, that writer, under the heading "Consistent Affirmative Acts" seems rather to support the opposite opinion. He says, at page 173: -

           

"But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention” .

 

            Counsel for the petitioners also pointed to a line of cases which indicate that from the date of the publication of the Emergency Regulations of 1945 the authorities used regulation 114 of those Regulations and not regulation 48 of the Regulations of 1939, since all those cases deal with regulation 114. There is no need to deal at length with the point that this fact cannot constitute the repeal of regulation 48.

           

            The conclusive answer to the contention of Counsel for the petitioners is provided by the Defence (Emergency) Regulations of 1945 themselves. Regulation 5 provides that, subject to the provisions of the Regulations, their provisions, and the powers conferred by them, shall be in addition to and not in derogation of the provisions of, or the powers conferred by, any other law. Moreover, regulation 7 sets forth in detail those regulations which shall be revoked upon the coming into force of the Regulations of 1945, and neither the Defence Regulations of 1939, nor any part of them, are mentioned in regulation 7. We therefore reject the submission of counsel for the petitioners that regulation 48 of the Defence Regulations, 1939, cannot constitute the basis of the Order of Requisition issued by the respondent.

           

            We are also of opinion that Counsel's third submission, namely, that the respondent was not lawfully appointed as a Competent Authority, is without foundation. Regulation 3 of the Defence Regulations, 1939, provides that the Competent Authority shall be the person appointed by the High Commissioner in writing. In a Notice concerning the powers of Ministers pursuant to the Law and Administration Ordinance, 1948, published in Official Gazette, No. 5, page 24, it is notified for public information that the Provisional Government has decided to confer the powers formerly exercised by the High Commissioner as follows: under the Defence Regulations, 1939 - upon the Minister of Defence: under regulation 3 of the Defence Regulations, 1939-upon the Ministers of Finance, Agriculture, Trade and Industry, Labour and Building, and Communications.

           

            Counsel for the petitioners wishes to deduce from the terms of this notice that in the case of the appointment of a Competent Authority under regulation 3 the Minister of Defence must also act together with one of the other Ministers mentioned. In our view this contention is without substance. The true intention is clear. In general the Minister of Defence must be substituted for the High Commissioner throughout the Defence Regulations, but in the case of regulation 3 the other Ministers mentioned must also be added.

           

            The appointment in the present case, a copy of which is annexed to the affidavit of the Respondent, was made in writing by the Minister of Labour and Building on September 3, 1948.

           

            Counsel for the petitioners also argued that the appointment was invalid as it was not published in the Official Gazette. Such publication, so he contended, is rendered necessary by section 20 of the Interpretation Ordinance which provides:

           

"All regulations having legislative effect shall be published in the Gazette and, unless it be otherwise provided, shall take effect and come into operation as law on the date of such publication".

 

            Counsel also drew our attention to the definition of ''regulations" in section 2 of the Ordinance1) and argued that the appointment of a Competent Authority for the requisition of land has legislative effect.

            The reply to this submission is twofold.

           

            (a) The Defence Regulations (Amendment No. 4) of 1945 provide expressly that section 20 of the Interpretation Ordinance shall not apply to the Defence Regulations.

           

            (b) Regulation 3 of the Defence Regulations contains a special provision in regard to the form of the appointment of a Competent Authority, namely, an appointment by the High Commissioner in writing, and there is no mention of the necessity for publication. The fact mentioned by counsel for the petitioners that in recent times such appointments have sometimes been published in the Official Gazette does not alter the legal position. We have no doubt, therefore, that the appointment of Mr. Yehoshua Gubernik as a Competent Authority for the purposes of regulation 48 was valid.

           

            In the result, therefore, we are of opinion that the Defence Regulations of 1939 in general and regulation 48 in particular were constitutionally valid in Palestine and are still so valid in the State of Israel and that the respondent, who exercised the powers conferred by regulation 48, was a Competent Authority. It remains for us, therefore, to give our decision on the fourth submission of counsel for the petitioners, namely, that the respondent exercised his powers not in good faith but capriciously and vexatiously, and without having regard to the principles of reason and justice.

           

            Before considering this argument we must call attention to certain facts in greater detail.

           

            The flat in question was requisitioned for the benefit of the Attorney-General of Israel, who is a married man with three children. It consists of four rooms, an entrance hall, and the usual conveniences, and is not far from the offices of the Government. Mr. Leon, who is referred to in the original petition as the First Petitioner and who lives in the flat at present, leased it from the owner of the building in 1947 and moved into it with his family. According to the statement before us of Mr. Kleiman, the owner of the building, Mr. Leon informed him in July, 1948, that he was about to leave the flat and that Mr. Kleiman was at liberty to let it to whom he wished. In fact, as we mentioned at the beginning of our judgment, Mr. Leon does not appear at all as a petitioner in this case. Dr. Boris Tamshas, who was joined in the proceedings after the issue of the order nisi, entered into contract of lease - through his agent - with Mr. Kleiman on September 3, 1948. Dr. Tamshas is a doctor from Cairo who fled to France following the latest political disturbances in Egypt. When the petition was filed Dr. Tamshas was in Paris and was already about to leave for Israel with his family. In terms of the agreement mentioned, the owner of the building was to hand over the flat to Dr. Tamshas not later than September 25, 1948.

            Dr. Tamshas, his wife and three children, reached Israel on September 23, 1948. He was born in this country and studied medicine overseas. He practiced as a physician in Cairo, but was in Palestine from 1936 to 1940. He then returned to Egypt and resumed his profession. He now wishes to settle in Israel and continue in medical practice.

            The case before us, therefore, is not one in which the Competent Authority Is about to eject a tenant in order to introduce another tenant into the flat, for the present tenant is about to move to Haifa where the flat of Mr. Ya'acov Shapira has been offered to him. The petitioners before us, therefore, who complain that the competent Authority has requisitioned the flat for the Attorney-General, are the owner of the building and a proposed new tenant.

 

            Many arguments were addressed to us in support of this fourth submission of the petitioners, and counsel himself, in the course of his argument, counted twelve points that he had raised. We shall not deal, however, with each point raised, but will consider the matter generally on its merits.

           

            Counsel for the petitioners well appreciates that according to the law as laid down during the Mandate this court will not interfere with the discretion of the Competent Authority if, in effecting the requisition, that Authority has acted within the limits of its powers. The court for its part will not consider whether the making of the requisition was proper or otherwise. The opinion has been expressed that the court will interfere only where it has been shown that the requisition has been effected maliciously or against the principles of reason and justice. Counsel for the petitioners submitted that we are not bound by the tradition established by decisions from the time of the Mandate but that, on the contrary, it is our duty to depart from that tradition.

           

            Counsel for the petitioners contends that the respondent did not exercise his discretion in good faith, but that he acted capriciously and against the principles of reason and justice. He spoke of a conspiracy between the respondent and Mr. Shapira. He relied upon the facts that Mr. Shapira approached Mr. Gubernik at the end of August in connection with the requisitioning of a flat for his use, and that Mr. Gubernik approached - not the Ministry of the Interior of which he is an official - but the Ministry of Justice; and that after a few days, on September 3, he received his appointment as a Competent Authority from the Minister of Labour and Building.

           

            We fail to see in this any suggestion of a conspiracy. It is only natural that an official who is in need of a flat and who, despite persistent efforts on his part (and we have heard that Mr. Shapira has been living since the beginning of July in one room in the Hotel Gat-Rimmon and has been unable to bring his wife and three children from Haifa to Tel Aviv) has been unable to find one, should take legal steps and approach his Government in order to. secure accommodation.

 

            Counsel also leveled strong criticism against Mr. Gubernik for informing Mr. Leon by letter on September 5th, the day before the issue of the Order of Requisition, that his flat was about to be requisitioned for the purposes of the Government and requesting him not to let the flat or transfer it to another authority without his confirmation. This letter, however, has no effect upon the issue and need not detain us now.

           

            When examined on his affidavit by Counsel for the petitioners, Mr. Gubernik stated that he offered a specific sum of money to Mr. Leon in order to facilitate the transfer of his home from Tel Aviv to Haifa, his intention being to recover a similar sum from Mr. Shapira. Counsel attempted to argue before us that in so doing Mr. Gubernik committed a criminal act in contravention of section 109A of the Criminal Code.1) We can only say that this submission has no substance at all.

           

            Counsel for the petitioners also argued that Mr. Gubernik had used an old English form drafted in accordance with regulation 114 of the Regulations of 1945, and that he had simply copied the language of the form out of habit and without consideration.

           

            If we are to understand counsel's argument to mean that the manner in which the Order of Requisition is drafted shows that the respondent did not consider the merits of the matter and therefore did not exercise his discretion in accordance with the rules of Justice and reason, then it cannot be accepted. It has already been decided in England, in the case of Carrtona Ltd. v. Commisioners of Works and Others, (3), that a Notice of Requisition has no constitutional effect. In that case - which was also a case of requisition under regulation 51(1) of the Defence (General) Regulations in England which correspond to our regulation 48 - the Competent Authority did not emplay in the Notice of Requisition the language of the regulation, but said that it was essential to take possession of certain buildings "in the national interest". It was argued that the notice was invalid since it gave a reason for the requisition which did not appear in the regulation. The regulation speaks of the public safety, the defence of the realm or the efficient prosecution of the war or the maintaining of supplies and services essential to the life of the community, while the notice speaks of a requisition effected because it is essential in the national interest. In commenting upon this aspect of the case Lord Greene M.R. said, at page 562:

 

"...in order to exercise the requisitioning powers conferred by the regulation no notice is necessary at all and, therefore, the question of the goodness or badness of a notice does not in truth arise. The giving of notice is not a pre-requisite to the exercise of the powers and, accordingly, the notice must be regarded as nothing more than a notification, which the Commissioners were not bound to give, that they are exercising those powers. The notice is no doubt for what it is worth, evidence of the state of mind of the writer and those by whose authority be wrote, and it is perfectly legitimate to argue that this notice suggests, on the face of it, that those who were directing their minds to this question were directing them to the question whether the action proposed was in the national interest and not to the specified matters mentioned in reg. 51. But the notice is no more than evidence of that, and when an assistant secretary in the Ministry of Works gave evidence it was perfectly clear that he was using that phrase - and this letter was written on his instructions - as a sort of shorthand comprising the various matters in reg. 51 upon which the requisition would have been justified . . . That point appears to me to have no substance at all".

 

            These remarks of Lord Greene contain the answer to the argument of counsel for the petitioners in this case. Mr. Gubernik stated candidly in his evidence that he could have omitted the words "in the interests of the public safety, the defence of the State" in the Order of Requisition and been satisfied with the words "in the interests of the maintenance of services essential to the life of the community" and perhaps also "the maintenance of public order". We therefore reject all the submissions of counsel based upon the manner in which the notice called an "Order of Requisition" was framed.

           

            Counsel for the petitioners also argued that although he greatly values the work of Mr. Ya'acov Shapira, the Attorney-General of Israel, such work is not covered by regulation 48. His contention before us was that the words "maintaining supplies and services essential to the life of the community" must be read in close association with the words "the public safety, defence, or the efficient prosecution of the war" which precede them, and he asked us to interpret the regulation in accordance with the rule of ejusdem generis.

 

            The simple answer is that section 4 of the Interpretation Ordinance lays down the very opposite, namely, that us a general rule the word "or" is not to be interpreted ejusdem generis. We accordingly have no doubt that the work of the Attorney-General may be included within the expression "services essential to the life of the community" within the meaning of regulation 48.

           

            We cannot agree with counsel for the petitioners that the regulation enables the requisitioning of a flat for the purposes of a government department alone - in this case the Ministry of Justice - and not for the purposes of a flat for the private use of the Attorney-General. We are not unmindful of the fact that the requisitioning of a flat by the ejectment of a tenant who is in occupation (which is not the case here) is a cruel and very serious matter which must be weighed thoroughly by the Competent Authority before it exercises its powers. Counsel for the petitioners, however, has overlooked the fact that in terms of regulation 48 the discretion in regard to the requisition of a flat resides in the Competent Authority and in no other person. The condition mentioned in regulation 48 is "if it appears to the Competent Authority" and not simply "if it appears". Were we to accept the submission of counsel for the petitioners we should have to decide that it appears to us that the requisitioning of this flat is not necessary for the maintaining of services essential to the life of the community. In so doing, however, we should be acting contrary to the law which binds us and whose amendment, if desirable at all, is a matter for the legislature.

           

            It would seem that this submission was advanced by counsel only to show that the decision of the Competent Authority in this case had no reasonable basis whatsoever. He did not weigh the matter at all. This court would then be entitled to interfere. Now in the opinion of the Competent Authority an official, in order adequately to discharge his duties to the State, must have a flat of his own and not be separated from his family for a protracted period. The securing for him of a flat, therefore, without which his services to the State are liable to be adversely affected, is a matter which is necessary for the maintaining of services vital to the life of the community. It cannot be said that this opinion is quite unreasonable, even if there may be some people who disagree with it.

           

            Counsel for the petitioners has also complained of the fact that the respondent requisitioned the flat although he knew that it had already been let to Dr. Tamshas. This argument too is unsound. If the Competent Authority is empowered to requisition a flat which is actually occupied by a tenant he must be empowered a fortiori to requisition a flat where he does not thereby affect the rights of a tenant who was in occupation up to that stage. In the present case, the tenant is about to move to another flat, and he will not suffer as a result of the requisitioning. The only person who will suffer is the new tenant who wishes to enter the flat. Here lies the striking difference between this case and the majority of cases of requisitioning, in which the Competent Authority is compelled to harm the tenant who is actually occupying the flat. This is hardly the case, therefore, in which the law. which has previously been laid down in such matters should be completely reversed.

 

                        Counsel for the petitioners urged repeatedly that regulation 48 was employed in the time of the Mandate when the rights of the individual took second place. He cited, in particular, some judgments relating to requisition in which there existed some political element. We agree that in some judgments delivered during that period in connection with requisition the political element undoubtedly prevailed over sound reason and judicial sense. It is sufficient to mention the judgment of the High Court of Justice in Dinah Kazak v. The District Commissioner, Haifa District, (1). There were also judgments, however, given against the individual in favor of the Competent Authority where there was no hint of a political element. It is sufficient to mention here Zeev Poms and others v. District Commissioner, Lydda District. and Mordechai Gileady, (2), in which the facts were very similar to those in the present case. In such matters the Courts of Palestine followed the decisions of the English Courts relating to the same type of requisitioning under the Defence Regulations. These English judgments, in any event, are completely free of any suspicion of political influence. Instead of citing a number of judgments delivered in Palestine we wish to quote here some remarks of Lord Greene from his judgment in the Carltona Case (3) to which we have already referred. Lord Greene said, at page 563:

           

"The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith - and I may say that there is no such allegation here - is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction."

 

            These remarks of Lord Greene also furnish the answer to the argument of Counsel for the petitioners that the housing situation in Tel Aviv and Jaffa did not make it necessary for this requisition to be effected. If there was to be a requisition, it was possible to requisition a flat in a building which had not yet been completed. This is undoubtedly a matter of housing policy in which this court cannot interfere. It is not the function of this court, moreover, to investigate whether the Competent Authority could not have employed the method of billeting in accordance with regulation 72 of the Regulations of 1939. In the result there has not been the slightest proof before us of mala fides or capriciousness on the part of the Competent Authority, so the fourth submission of counsel for the petitioners must also be dismissed.

           

            We desire to point out in conclusion that in spite of the decision which we have reached in regard to the fourth submission of counsel for the petitioners it was essential for us to deal in detail with his first three arguments which could be determined on points of law alone. Had the petitioners been correct on any one of their first three points they would have succeeded in the case for, in such event, the owner of the building could have protested against any interference with his property and demanded that the order nisi be made absolute without any regard to the particular facts of this matter.

           

            As we have dismissed the three legal submissions of the petitioners and, after consideration of the facts, have also rejected their fourth submission, the order nisi will be discharged.

           

            As in this case, for the first time since the establishment of the State of Israel, legal points of general importance to the community have been raised, no order as to costs will be made against the petitioners.

Order Nisi Discharged.

Judgment given on October 19, 1948.