The Supreme Court sitting as the High Court of Justice

 

 

HCJ 4124/00

 

Before: The honorable President D. Beinisch

                The honorable Justice A. Procaccia

 

                The honorable Justice E. E Levy

                The honorable Justice A. Grunis

                The honorable Justice M. Naor

                The honorable Justice S. Joubran

                The honorable Justice E. Hayut

 

Petitioners:        1. Ornan Yekutieli, deceased

2. Ya’akov Gazit

3.            Michael Lustman

4.            Jenny Baruchi

5.            Am Hofshi

6.            The Student Union of the Hebrew University of Jerusalem

7.            The Medical Student Union of Jerusalem

8.            The Agricultural Student Union in Israel

 

                v.

 

Respondents:    1. The Minister of Religious Affairs

2. The Minister of Finance

3.            The budget director of the Ministry of Finance

4.            The chairman of the Knesset Finance Committee

5.            The National Insurance Institute

6.            The Minister of Labor and Social Affairs

7.            The Movement for Fairness in Government

8.            Steinmetz, Baruch

9.            Berlovitz, Yitzchak

               

                Petition to grant an order nisi

 

Date of hearing:               29 Adar 5767      (March 19, 2007)

 

On behalf of the petitioners::     Gilad Barnea, attorney at law

On behalf of respondents 1-6    Osnat Mandel, attorney at law

On behalf of respondent 7          Chaim Indig, attorney at law

On behalf of respondents 8-9    Etty Yanai-Naveh, attorney at law; Mirit Saviyon, attorney at law

 

 

Judgment

 

 

President D. Beinisch:

 

 

                Students who are studying in a kollel have been eligible for the payment of a minimum income support benefit by virtue of a budget item included in the annual budget laws since 1982. In contrast, students studying in institutions of higher education or post-secondary institutions and also in religious institutions and students in yeshivot and Torah study institutions are not eligible for payment of the income support benefit under the provisions of the Income Support Law, 5741-1980. Is the arrangement for the payment of income support benefits to the kollel students [avrechim] by virtue of the budget item legal and constitutional? Is the distinction between the various groups of students lawful? These are the questions the petition before us raises.

 

The factual background

 

1.            Since 1982, the annual budget laws have contained a budget item entitled “Minimum income support for kollel students” (hereinafter: the Budget Item). Originally, the Budget Item was part of the budget of the Ministry of Religious Affairs and, with dissolution of the Ministry in 2004, the Budget Item was transferred to the budget of the Ministry of Education. Under the Budget Item, kollel students who meet various conditions of eligibility are paid an income support benefit. In 2009, the annual budget was NIS 121,161,000 and benefits were paid to some 10,000 kollel students. The amount of the benefit was determined by distribution of the annual budget among the number of entitled kollel students.

 

                The legality and constitutionality of the Budget Item are at the heart of the petition before us. The petition was filed by a group of students and student representatives from various universities in Israel, and a nonprofit organization which declared that it acts to promote freedom of religion, conscience, education and culture. Petitioner 4, Jenny Baruchi, who was among the petitioners from the outset, has also fought to promote the subject of the petition in a public effort. She also voiced these matters to us at the last hearing that we held. The petitioners’ main claim is that the payment of income support benefits to kollel students by virtue of the Budget Item is discriminatory. The claim of discrimination is based on the distinction between two legislative arrangements that deal with the payment of income support benefits  the Income Support Law, 5741-1980 (hereinafter: the Income Support Law or the Law) on the one hand, which regulates income support benefit payments to all those entitled in Israel; and the Budget Item on the other hand, which regulates the income support benefit payments solely to kollel students.

 

The Income Support Law

2.            The Income Support Law was passed by the Knesset in April 1980 and went into effect in January 1982. The Law regulates the payments of income support benefits to all those eligible for them in Israel. The Law sets forth, inter alia, the conditions for eligibility for the benefits, the rates of the benefits, the manner of calculating the income of the benefit applicants, the grounds for denying the benefits and the authority to adjudicate claims regarding payment of the benefits. The benefits under the Law are paid from the state treasury through the National Insurance Institute. Chapter B of the Law sets forth the three basic conditions of eligibility, whereby a resident of Israel who is at least 25 years of age is eligible for the benefits, provided that he does not have the capacity to work and support himself or he cannot be placed in any job; he has no income from any source whatsoever; and he has been a resident of Israel for at least 24 months. Along with the basic conditions, the Law specifies various grounds for eligibility for income support benefits, and a number of exceptions that enable receipt of the benefits, even without meeting the basic conditions of eligibility. It should be noted that during the years since its enactment, several amendments have been made to the Law in an effort to reduce the number of income support benefit recipients and to reduce the amount of the monthly benefits (see, e.g., HCJ 366/03 the Commitment to Peace and Social Justice Association v. Minister of Finance, IsrSC 60 (3) 464 (2005) (hereinafter: the Commitment to Peace and Social Justice Association Case).

 

3.            The dispute between the parties is based on Section 3 of the Income Support Law, which deals with qualifications to eligibility for the benefits. Section 3 defines the groups of people who are not eligible for the income support benefits, even if they meet the general eligibility conditions set forth in Section 2 of Law. Section 3 states that a person will not be eligible for the benefit if he is institutionalized and his entire maintenance is paid by the state treasury, the Jewish Agency, a local authority or another entity to be determined in the regulations; a person serving in compulsory IDF service; and a member of a corporation that is responsible for the sustenance of its members. Section 3 (4) of the Income Support Law sets forth the relevant qualification for the petition before us, under which “a student learning in an institution specified by the minister in the regulations and other conditions that he determined” will not be eligible for the benefit. It should be noted that in 2008, an exception was made to this qualification whereby an undergraduate student who is a single parent and who would have been eligible for income support benefits for at least 16 out of the 20 months that preceded the month in which he commenced his studies, would be eligible for income support (Amendment 33 to the Law, 5768-2008). This exception, which was added to the law following the filing of the petition before us, did not, according to the petitioners, resolve the discrimination between kollel students and other students in general, and we will discuss that further on.

 

When the Income Support Law went into effect in 1982, regulations were enacted regarding institutions, attendance at which would deny eligibility for income support benefits. Section 6 (a) of the Income Support Regulations, 5742-1982 (hereinafter also: the Regulations) states as follows:

6. (a) The following shall be deemed an institution for the purpose of Section 3 (4) of the Law:

(1) Any institution of higher education that has been recognized under the Counsel for Higher Education Law, 5718-1958, and an institution that requires a permit under Section 21A of the same law;

 

(2) Another institution for post-secondary studies;

 

(3) A yeshiva or Torah study institution;

 

(4) An institution for training religious clerics;

 

(5) Another educational institution in which students are taught systematically, except for 

 

                (a) An educational institution whose purpose is not to train students for government examinations or to provide education that is recognized by a government ministry or under any law;

 

                (b) An institution that provides training as defined in Section 2 (A) 2 of the law  if the trainee would have been eligible for benefits if not for that stated in Section 3 (4) of the law.

 

                Therefore, pursuant to that stated in the Regulations and in accordance with Section 3 of the Income Support Law, students in universities, in institutions of higher education and in institutions of post-secondary education, students in yeshivot and in Torah study institutions, and students in institutions for training religious clerics are not eligible for income support benefit payments.

 

The Budget Item

4.            The same year that the Income Support Law went into effect, the Budget Item, which is the subject of the petition before us, was added to the annual budget law. As stated, at first the item was part of the budget of the Ministry of Religious Affairs (Budget Item no. 22–04–21), and since 2004, the Budget Item has been included in the budget of the Ministry of Education (its number is now 20–38–21). Unlike the provisions of the Income Support Law, the Budget Item does not specify the conditions of eligibility for receiving the benefits, the rates of the benefits or the grounds for denying them. All that is contained in the Budget Item is the item heading, the scope of the annual expenditure and various data pertaining to utilization of the expenditure. From 1982 to this day, the Budget Item has remained in an almost identical format, and what distinguishes between the Budget Items from one year to the next is the amount of the annual allocation.

 

For example, this is how the Budget Item looks in the 2009-2010 budget law (in thousands of New Israeli Shekels):

Item      Item name          Net expen-diture            Income contin-gent expen-diture            Total expen-diture          Author-ization

for under-taking               Max-imum man-power Total utilized      Percen-tage utilized

203821  Minimum income support for kollel students      121,161 1,500     122,661 0              0.0          96,818   74.31

 

(The state budget for 2009 and 2010 was determined in a biennial budget law, in accordance with the amendment set forth in a Basic Law: the State Budget for 2009 and 2010 (Special Provisions) (Temporary Provision), 5769-2009, which states that notwithstanding that stated in Sections 3 (A) (2) and (B) (1), and 3A of the Basic Law: The State Economy, the state budget for 2009 and 2010 would be a biennial budget).

                Notwithstanding that stated in the provisions of the Income Support Law and in the Regulations promulgated thereunder, whereby students and pupils in yeshivot and religious institutions are not eligible for income support payments, the Budget Item enables the payment of income support benefits solely to kollel students. When the petition before us was filed with the court, the Ministry of Religious Affairs customarily distributed the benefits pursuant to the Budget Item in accordance with internal conditions of eligibility that were determined by the Ministry (“Clarifications to the conditions of eligibility for income support benefits” dated December 27, 1998, and an application form for income support for 1999 were attached to the petition and marked F1 and F2 respectively). After the petition was filed, the director general of the Ministry of Religious Affairs appointed a committee to examine the criteria for granting income support benefits to kollel students and later, when the budget was transferred to the Ministry of Education, another examining committee was appointed in collaboration with the Ministry of Education and the Ministry of Finance. The committee formulated eligibility criteria which were submitted for the perusal of the court and the parties on March 10, 2005. The eligibility conditions under the Budget Item, as formulated by said criteria, are different from the conditions set forth in the Income Support Law. According to the criteria, a kollel student is eligible for income support benefits if he is an Israeli citizen or a permanent resident who learns a full day in a kollel or in two half kollels and meets the following conditions: (1) he has at least three children (2) his total monthly income (which is calculated in accordance with the rules set forth in the criteria) does not exceed 60% of the amount of the monthly support (which is determined by the Ministry of Education, taking into account the number of the entitled, the scope of their eligibility and the amount of the budget that was allocated in the state budget) (3) the kollel student and his immediate family have no property such as an additional apartment, real estate, a business or vehicle (subject to the conditions set forth in the criteria). The eligibility conditions further specify the manner of submitting of the application and the documents that the kollel student must attach thereto, the conditions whereby ownership of additional property will not preclude the eligibility for the benefits, and the manner of examining the eligibility by the Ministry. The response of respondents 1-6 (hereinafter: the State) shows that due to the application of the criteria, only about 20% of the population of kollel students are found to be entitled each year to income support benefits. It should be noted, however, that over the years, the number of kollel students eligible for benefits has increased, even though the annual budget has remained relatively unchanged. In 1986, for example, 2,650 kollel students received income support benefits while in 2009, benefits were distributed to approximately 10,000 kollel students.

 

The essence of the dispute

5.            The differences between the two legislative arrangements  the Income Support Law on the one hand and the Budget Item on the other  are at the heart of the dispute between the parties. The petitioners want us to declare the Budget Item invalid or, at the least, that we order the cessation of the income support payments thereunder, as long as the Item is not applied equally to women, students in institutions of higher education, members of other religions and other denominations of Judaism. Their claim, in short, is that the Budget Item “circumvents” the provisions of the Income Support Law and grants kollel students income support benefits notwithstanding the fact that such benefits have been expressly denied them in the Income Support Law; just as they were denied to students in institutions of higher education. The petitioners further claim that the Budget Item violates the provisions of Section 3A of the Foundations of Budget is Law, 5745-1985, and constitutes a primary arrangement that should not be determined in a budget law. The petition is directed against the Minister of Religious Affairs, the Minister of Finance, the budget director of the Ministry of Finance, the chairman of the Knesset Finance Committee, the National Insurance Institute and the Minister of Labor and Social Affairs. After the petition was filed, and at their request, three more respondents were joined: the Movement for Fairness in Government  a movement which declares that it “identifies…with the aspirations and desires of the public [the kollel students] to continue on its unique path which stems from pure ideology that is worthy of esteem and protection” and two kollel students who are studying in a kollel and are eligible for the payment of income support. The respondents filed separate responses to the petition but there is one pivotal claim common to all of them  in their view, the distinction between kollel students and [non-kollel] students is not tantamount to prohibited discrimination since it is based on relevant differences. The respondents, whose individual responses will be presented below, believe that a distinction should be made between the purposes of the studies, the nature of the studies and their duration in a comparison between students in institutions of higher education and kollel students. While [non-kollel] students pursue their studies for the purpose of acquiring a profession, kollel students study for the sake of the study itself and their learning is not conducted for any other purpose. Therefore, it is not an intermediate period for them, but rather a way of life which the legislator chose to support and encourage.

 

The factual sequence in the petition

6.            The petition before us was filed in 2000. The issue raised by the petitioners has, for years, occupied various relevant entities, among them the executive branch and the Knesset, considering the nature of the special arrangement that was determined in regard to the kollel students for whom “The Torah study is their profession [Torato omanuto].” On June 13, 2001 this court issued an order nisi (Justices E. Matza, T. Strassburg-Cohen and E. Levy). Initially, the petition was heard before a panel of three justices and later on that panel was expanded and the petition was pending for many more years than is customary in this court. In the years that passed from the date the petition was filed to the rendering of the judgment, the factual and legal framework pertaining to the petition was clarified and developed, and underwent several changes. Initially, the state requested that the professional entities be allowed to formulate criteria for implementing the Budget Item and the court acquiesced to several motions for continuances, which were submitted by the state with the aim of enabling the committee at the Ministry of Religious Affairs  and, upon its dissolution, at the Ministry of Education  to complete formulation of the criteria. The conditions of eligibility were formulated and submitted for the perusal of the court and the parties in 2005. That year, the panel of judges also ruled that the judgment in the petition before us would be given after judgment was rendered in HCJ 6427/02 Movement for Quality Government v. the Knesset (unpublished, May 11, 2006) (hereinafter: the Tal Law Case). The Tal Law Case and the petitions that were joined to it dealt with the constitutionality of the Deferral of Service for Full Time Yeshiva Students Law, 5762-2002, (hereinafter: the Deferral of Service Law), which regulated the deferral of military service for yeshiva students whose profession is Torah study. Due to the importance of the issue and the practical connection between the petitions pertaining to kollel students and the requirement that was valid in the past regarding their inability to work, we believed that it was best to wait for a decision to be rendered in these petitions before deciding the petition before us. On May 11, 2006, a judgment was rendered in those petitions and the court ruled that the Deferral of Service Law violated equality and the right to dignity of Israeli citizens who serve in the IDF, a right which is anchored in the Basic Law: Human Dignity and Liberty. Notwithstanding this, the court refrained from ruling that the Deferral of Service Law was unconstitutional, because it was not possible to assess whether the law meets the conditions of proportionality before there was a chance to examine its operation and its results over time. Therefore, the majority opinion was that there was grave concern about the law’s unconstitutionality, and that it was liable to become unconstitutional if a significant change did not occur in the results of its fulfillment during the time designated until its expiration. This decision of the court invited additional petitions that were directed against the application of the law (HCJ 6298/07 Ressler v. Knesset of Israel). These petitions are also relevant to the discussion before us and they can shed light on the changes in Israeli society in general and in ultra-orthodox society in particular, with regard to induction into the army and, in this case, primarily with regard to integration into the job market. The judgment in these petitions has not yet been rendered, however, an interim decision was given on September 8, 2009. In its decision, the court noted that the pace of handling the mechanisms for implementing the law, like the pace of the allocation of resources to the application of the law is “very far from what could have been expected in the circumstances of the matter” (paragraph 9 of the decision rendered by Justice E. Hayut). However, the court ruled that before a final position is taken with regard to the constitutionality of the Deferral of Service Law, the mechanisms designed to apply the law must be given an additional period of 15 months to test their effectiveness and ability to lead to significant change.

 

7.            Because the issue of the special arrangement of income support benefit payments to kollel students was not resolved after the criteria were established for distributing the budget to the kollel students, the legislator was also required to deal with the issue before us. In 2008, the Knesset passed Amendment 33 to the Income Support Law  known as the “Jenny Baruchi Law,” named for petitioner 4. According to the amendment, income support benefits are not denied to single parents who begin to study toward an undergraduate degree. The amendment was the result of public pressure by single parents, among them, as stated, one of the petitioners in the petition before us, who wanted the opportunity to break the cycle of requiring state support by acquiring higher education. Prior to the passing of the amendment, single parents who had been receiving income support benefits and decided to study in an institution of higher education were forced to give up the benefits, since, upon commencement of their studies, they became subject to the provisions of Section 3 (4) of the Income Support Law, whereby the benefits are denied to a student in an institution of higher education. Amendment 33 resolved the issue of students in the same situation that Petitioner 4 had been in at the time the petition was filed, and the petition, insofar as it relates to discrimination against students who are not single parents, remains in place.

 

8.            In the nature of things, in the time that has passed from the date the petition was filed to the rendering of the judgment, changes and permutations have occurred, not only at the factual and legal level, but also at the public-social level. The decision in the petitions regarding the legality of the arrangements for exemption from military service (HCJ 3267/97 Rubinstein v. Minister of Defense, IsrSC 52 (5) 481 (1998)) led to the end of a long period in which various petitions were adjudicated which demanded the induction of yeshiva students into the army. In the wake of the judgment rendered by this court  which stated that the arrangements of exemptions from military service are not constitutional in that they violate the principle of equality  the Knesset passed the Deferral of Service Law and began proceedings for its gradual application to the ultra-orthodox population. As a result, an increasing number of the ultra-orthodox  albeit still low in absolute terms  have been referred for induction into the army or civilian service. The Deferral of Service Law also gives the kollel and yeshiva students the option of taking a “year of decision” in which they can examine whether they wish to continue with their Torah studies or enter the job market. During the year of decision, the ultra-orthodox may discontinue their studies and the temporary exemption from military service that was given to them will remain in place. The year of decision enables the population of ultra-orthodox yeshiva students, for the first time, to integrate into the job market without connecting it to induction into the army, as distinct from the situation that existed before enactment of the Deferral of Service Law and the limitations that were imposed on yeshiva students in the arrangement for those for whom “Torah study is their profession.” These changes integrated with growing support from the rabbis and leaders in the ultra-orthodox community for ultra-orthodox men and women going to work and acquiring a profession in the framework of higher or academic education. All this has occurred to enable ultra-orthodox families to support themselves honorably and get out of the cycle of poverty. Indeed, data from the Council for Higher Education indicates that there is a dramatic increase in the number of ultra-orthodox people studying in academic institutions. For example, some 2,000 ultra-orthodox men and women began their studies in the 5770 academic year in university extensions that were established specially for the ultra-orthodox population, which enables ultra-orthodox men and women to study a variety of subjects in separate tracks for men and women, with identical content to that which is taught at the universities, but with the appropriate emphases for the ultra-orthodox population. These and other changes are the backdrop to the adjudication of the petition before us.

 

9.            Before we present the positions of the parties to the petition, we deem it imperative to note that adjudication of the petition before us has continued for an extremely protracted and extraordinary period of time. The complexity of the issues that arise in the petition and their connection to other petitions that were heard before the Supreme Court have compelled a slow examination of the factual and legal frameworks relevant to the petition. Indeed, in general, it is not proper that adjudication of a petition continue for such a long period of time. However, sometimes issues reach the court, the decisions for which require preparations that are different from the ordinary, inter alia, by giving the opportunity to the various entities, including the executive authority and the legislative authority, to examine the extent of their involvement in the matter and render the judicial decision superfluous. In the petition before us, the first years were devoted to clarifying the factual framework and determining the conditions for eligibility for the income support benefits, assuming that the benefits are, indeed, paid. Afterwards, adjudication of the petition was delayed until the decisions were rendered in various petitions in the matter of deferral of military service. We believe that this wait was important and it was intended, inter alia, to enable important social and legal changes to develop at the proper pace. However, we recognize the fact that this wait impaired the legitimate expectations of the petitioners that their petition would be decided within a reasonable period of time, and we can only regret that.

 

 

The claims of the parties

10.          The petitioners have focused the petition on the claim of violation of the principle of equality. They argue that the Budget Item violates equality and human dignity, as an item that discriminates on the basis of sex, religion and faith, nationality and education. The petitioners argue that by virtue of the Budget Item, income support benefits are paid solely to kollel students while the rest of those who belong to the same peer group  women, students in institutions of higher education, members of other religions learning in institutions that train religious clerics, and students in reform and conservative yeshivot  are not eligible for similar payments or the assurance of minimum sustenance. Additionally, the petitioners point out the differences between the conditions of eligibility under the Income Support Law and under the Budget Item. Thus, for example, the petitioners note that in contravention of the Income Support Law, kollel students are not required to prove maximization of earning capacity and they are entitled to work concomitantly with their studies in the kollel; the rate of the benefits for kollel students is not determined on the basis of estimation of the amounts required for the purpose of minimal sustenance with dignity  as set forth in the Income Support Law  but rather by division of the annual budget by the number of those eligible for the benefits that year; and in calculating the benefits, the criteria do not take into account all the income of the entitled, so that another stipend or payment given to the entitled person in the framework of his studies and in the framework of the institution in which he is studying up to a total of NIS 3,500 are not included in the calculation of the monthly income. The petitioners further claim that the payment of income support from the budget of the Ministry of Religious Affairs  now the Ministry of Education  creates a mechanism that circumvents the arrangements set forth in the Income Support Law whereby income support payments to those entitled are provided through the National Insurance Institute. Another claim raised by the petitioners is that the Budget Item contradicts Section 3A of the Foundations of Budget Law, 5745-1985, under which the state’s support of public institutions must be provided according to equality tests, specified by the appointed ministers in the fields of their ministries, and after consultation with the attorney general; and the provisions of Section 3 of the Basic Law: The State Economy, which states that the budget law is supposed to include the government’s planned and anticipated expenditures, but it cannot determine substantive preliminary arrangements. Finally, the petitioners claim that the Budget Item purports to determine a substantive arrangement in the guise of budget provisions and, therefore, it oversteps the bounds that the legislator is entitled to arrange in the annual budget law.

 

11.          The state’s main response is based on the claim that the distinction between kollel students and other, non-kollel students, women and members of other religions or other denominations in Judaism is based on relevant differences. The state argues that what makes the group of kollel students unique is their inner faith, which dictates the study of Torah as a daily occupation. Learning Torah, claims the state, “is not in the realm of temporary training and is not intended, as a rule, for acquisition of a profession. It involves a continuing lifestyle, without any time limitation. It is a lifestyle that compels them, due to their occupation with learning, to suffice with minimal subsistence.” The state believes that this distinction justified a separate budget item for the group of kollel students, in a manner that reflects the priorities of the government and the legislator, whereby the State of Israel chooses to provide support for kollel students. This ideological decision, according to the state, is not subject to review by the courts, but rather constitutes a policy to be decided by the legislative and executive authority.

 

                According to the state, the distinction between the groups is reflected in the different budgetary support given to each one of them. For example, while the state supports kollel students by means of the income support mechanism and other budgetary mechanisms, other students are eligible for a variety of assistance funds and loans and they benefit from subsidized tuition and from the budgets given by the state to the institutions of higher education. Therefore, the state claims, in a comparison between the two groups, all the benefits that each group receives must be taken into account, without focusing on one Budget Item.

 

                With regard to the petitioners’ claim that the budget provision is inconsistent with the Income Support Law, and particularly with the requirement to maximize earning capacity, the state notes that the arrangement set forth in the Income Support Law is not an exhaustive arrangement and that the income support provided to kollel students by virtue of the budget law is lower than that given under the Income Support Law to the those with families, and stands at 18% of the average salary in the economy. The state further argues that the purposes underlying the two arrangements are different. The Income Support Law is designed to provide a last and temporary safety net to someone who has maximized his earning capacity, while encouraging him to continue to seek a source of subsistence, while the purpose of the arrangement supporting the kollel students is to assist those who lead a lifestyle devoted to the study of the Torah.

 

                The state’s position did not change, even after judgment was rendered in the matter of the constitutionality of the Deferral of Service Law. According to the state, the ruling in the judgment regarding the deferral of military service should not be applied to the case before us. The state argues that while induction into the army imposes an obligation on most of the population  an obligation from which a person for whom Torah study is a profession is exempt  the acquisition of higher education constitutes a choice, both from the standpoint of the individual and from the standpoint of the society. The state claims that this distinction between obligation and choice affects the analysis of the extent of impairment of an individual’s autonomy and, hence, human dignity. According to this argument, where the different treatment does not entail the imposition of an extra obligation on the general population but, rather, the granting of a general benefit to a minority, the severity of impairment to the scope of the autonomy is small, if it exists at all, and therefore calling it a violation of equality that is tantamount to a violation of human dignity is unwarranted. Alternatively, the state claims that even if there is a violation of equality, the provisions of the budget law meet the conditions of the limitations clause set forth in Section 8 of the Basic Law: Human Dignity and Liberty.

12.          Respondent 7, the Movement for Fairness in Government, argued that groups whose activities are designed to promote different values cannot be included in the same peer group. The Movement for Fairness in Government claims that the group of kollel students and the group of all other students are funded by the state in accordance with their special needs; and for the purpose of examining whether the principle of equality was violated, the entirety of the allocation to which each group is entitled must be examined, without focusing on one budget item. In practice, the Movement for Fairness in Government notes that while the kollel students are eligible for income support, other groups of students receive special financial assistance in the framework of the Student Assistance Center, and a calculation of all the state investments for the student shows that the state participates in funding students at a higher cost than that which is invested in funding yeshiva students or kollel students. Alternatively, the Movement for Fairness in Government claims that even if there is a violation of equality, the fact that it involves a relatively small amount of support for a needy public should be taken into account.

 

                The Movement for Fairness in Government further claims that the Budget Item cannot be canceled by virtue of the claim that it conflicts with the Foundations of Budget Law because the option of cancellation is not expressly written in the Foundations of Budget Law, and that it is unnecessary to require deliberation, in the framework of the petition before us, on canceling income support benefits for kollel students as a means of advancing the purposes of the Deferral of Service Law before this option is deliberated by the appropriate authorities and without a comparison having been made between these means and other means.

 

13.          Respondents 8 and 9, two kollel students who meet the conditions of eligibility for benefits pursuant to the Budget Item, argue that a distinction should be made between students and kollel students who devote all of their energies to the study of Torah and therefore are not able to perform any kind of work. Respondents 8 and 9 also argue that the state has supported kollel students for decades and therefore compelling the legislator to change this policy will impair their reliance interest and will contravene the Basic Law: Human Dignity and Liberty, because it will strike a mortal blow to their spiritual world, their dignity and their property. Respondents 8 and 9 further emphasize the grave financial situation of the kollel students and the fact that this involves the minimal support required for basic subsistence.

 

The legal framework

14.          The normative basis for payment of the benefits granted to the kollel students is, as stated, a provision in the annual budget law. Therefore, we will first discuss the normative provisions that govern the budget laws in Israel, at the core of which is the Foundations of Budget Law, 5745-1985 (hereinafter: the Foundations of Budget Law). The Foundations of Budget Law constitutes framework legislation for the annual budget laws. The law defines the types of issues presented in the annual budget laws and outlines the discretion of the government and the Knesset in determining the annual budget. We will, therefore, examine the validity of a provision in the annual budget law where it contradicts an explicit provision in the Foundations of Budget Law. The discussion itself will focus on the question of violation of the principle of equality and the state’s claim whereby there is no prohibited discrimination before us but, rather, a permissible distinction based on relevant differences. We will end the discussion with the question of the proper remedy in the circumstances of the matter, taking into account the legal and public issues that arise in the petition.

 

The normative framework that governs the Budget Item

15.          The normative framework for the annual budget laws is found in two main pieces of legislation: the Basic Law: The State Economy and the Foundations of Budget Law. Section 3 of the Basic Law: The State Economy outlines the basic principle whereby the state budget would be in a law, for one year, and would include the anticipated and planned government expenditures (as noted above, the state budget for 2009 and 2010 is a biennial budget, in accordance with that stated in the Basic Law: The State Budget for 2009 and 2010 (Special Provisions) (Temporary Provision), 5769-2009). The Basic Law: The State Economy delineates the main course of the work, whereby the government is entrusted with preparing the budget and laying the proposed budget on the desk of the Knesset at the time designated by the Knesset committee authorized to do so. In any case, the proposed budget will be submitted for the examination of the Knesset no later than 60 days before the fiscal year.

 

                While the Basic Law: The State Economy determines the division of labor between the government and the Knesset, the Foundations of Budget Law lays the foundation for the annual budget laws. As its name implies, the Foundations of Budget Law determines the essential foundations for each annual budget law. The Foundations of Budget Law is very detailed and includes a long list of provisions that regulate various matters pertaining to the structure of the annual budget law, the manner in which the annual budget is determined and the actions permitted in the framework of the budget. As such, the Foundations of Budget Law specifies what items are required in the annual budget law, it delineates the government’s authority to change the budget during the year, and places credit restrictions on local authorities and budgeted entities. The Foundations of Budget Law also determines special provisions regarding the defense budget and budgeted entities, and designates criminal and disciplinary sanctions against any that contravene its provisions. The Foundations of Budget Law does not deal with the decision to allocate or not to allocate funds in general and it deals “neither with shekels nor with agorot” (HCJ 7142/97 Council of Youth Movements in Israel v. Minister of Education, Culture and Sports, IsrSC 52 (3) 433, 438 (1998), Justice M. Heshin. Hereinafter: the Council of Youth Movements in Israel Case). The law has one purpose: to determine the normative framework for future budget laws.

 

16.          The question of the relation between the Foundations of Budget Law and the annual budget law, which derives from the special nature of each one of the laws in itself and in relation to the other, was at the heart of the ruling of this court in HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs, IsrSC 53 (5) 337 (1999) (hereinafter: the Conservative Movement Case). The question arose during adjudication of a budget item in the budget law for 1997, which provided for government support for Torah based and ultra-orthodox culture in a manner that was found to infringe the provision in Section 3A of the Foundations of Budget Law (hereinafter: Section 3A or the Section). Section 3A states that government expenditures for the purpose of supporting public institutions must be set forth in the budget law as a comprehensive amount for each type of public institution, and will be distributed among the relevant institutions according to egalitarian criteria. In his judgment in that case, Judge Y. Zamir examined the relationship between the Foundations of Budget Law and the annual budget law, and ruled that even though it involved two pieces of legislation in the same “square”  in the pyramid of norms, they are not on the same “tier.” In the opinion of Justice Zamir  an opinion with which I concurred in that judgment  a “unique situation” (ibid., at p. 357) exists between the budget law and the Foundations of Budget Law, in which the annual budget law is substantively subordinate to the Foundations of Budget Law (ibid., at p. 355). Justice Zamir stated as follows:

It can be argued that the Foundations of Budget Law and the annual budget law are not on the same tier in the pyramid of norms. Indeed, both of them are located in the pyramid in the same square, which is the square of laws, beneath the square of basic laws and above the square of secondary legislation. However, even norms that are situated in the same square are not necessarily on the same tier. Within each square on the pyramid of norms there are tiers. Thus, for example, in the basic laws there are ordinary provisions and there are ironclad provisions, and in secondary legislation there are regulations (which are sometimes called orders) that are issued by virtue of regulations, and therefore they are subordinate to the regulations. Similarly, we cannot rule out the possibility that in square of laws there will also be a law above a law (ibid., at p. 357).

 

                Justice Zamir based his approach, whereby the annual budget law is substantively subordinate to the Foundations of Budget Law, on the special nature of the budget law. Justice Zamir wrote:

An annual budget law, notwithstanding the fact that it is officially a law, is not a law in substantive terms and, in any case, is not an ordinary law from that standpoint. A law, from a substantive standpoint, determines a general norm. An annual budget law does not determine a general norm. It grants, alongside the expenditures, permission to the government, on behalf of the Knesset, to expend a certain amount of money for the purpose of a certain action in a certain year, such as expending a certain amount of money to support institutions of a certain type. From this standpoint, it is more like an administrative act than a piece of legislation. (ibid., at p. 356)

 

                Justice Zamir also addressed, inter alia, the fact that the budget law is passed in a special “summary” procedure, in which “the annual draft budget is not distributed to the public as a draft law memorandum by the Ministry of Justice, nor is it published in a blue paper with the other bills, for the information of the public and for public debate, and it does not undergo a full first reading, as is customary with ordinary bills” (ibid., at pp. 356-357). Justice Zamir further stated that by their nature, the provisions of the Foundations of Budget Law are designed to apply in a binding manner to the annual budget laws. For example, Justice Zamir referred in his judgment to the provisions of the Arrangements in the State Economy Law (Legislative Amendments), 5752-1992 which, in Section 1 (A) enacts Section 3A of the Foundations of Budget Law and which states in Section 1 (B) that “Subsection (A) shall apply to the amounts of the expenditure in the budget for the 1992 fiscal year and thereafter” (emphasis added, D.B.). If an annual budget law can ignore the provisions of Section 3A of the Foundations of Budget Law, ruled Justice Zamir, “then the Foundations of Budget Law and the principle of equality in distributing support [funding] are liable to remain an empty vessel. If that is the case, what good did it do?” (ibid., at p. 357).

 

17.          Justice M. Heshin, who concurred with the decision in the finding in the Conservative Movement Case and the reasoning that established it, added that the purpose of the Foundations of Budget Law directly influences “the interpretation, the inner power arising therefrom and the areas to which it extends” (ibid., at pp. 382-383). As a law that is supposed to be a law “in perpetuity” and whose purpose is to assemble “the genetic code of every annual budget law,” Justice Heshin ruled that the Foundations of Budget Law is likely to prevail over an item in an annual budget law that deviates from its provisions. Justice Heshin added that his position whereby the Foundations of Budget Law prevails over a conflicting provision in the annual budget law applies where the conflict is implied. According to Justice Heshin, “If a provision in an annual budget law implicitly conflicts with any provision of the Foundations of Budget Law, the Knesset must presume that there was no intention to grant it validity and it is invalid" (ibid., at p. 388). However, Justice Heshin added that in his opinion, the Knesset is authorized to pass legislation contrary to the Foundations of Budget Law, but only if it does so explicitly (ibid., ibid.).

 

                The court further noted that the significance arising from the supremacy of the Foundations of Budget Law over the annual budget laws is that the court is authorized to nullify an item in an annual budget law if it conflicts with the provisions of the Foundations of Budget Law. The possibility of the nullification did not have to be decided in the judgment and therefore it remained in need of examination (for criticism on the court’s rulings in the Conservative Movement Case, see Suzy Navot, “Comment on the normative status of the budget laws,” Hamishpat 6 123 (2001)).

 

18.          As we, indeed, determined, in the Conservative Movement Case, the Foundations of Budget Law and the provisions set forth therein apply to every annual budget law. The two laws  the Foundations of Budget Law on the one hand and the annual budget law on the other hand  create a kind of microcosm that deals with the manner of allocating state resources and the use of those allocations. One law delineates the main provisions pertaining to the principles for determining the budget and the other law carries them out each year. This conclusion arises from both the special nature of the Foundations of Budget Law as a law designed to regulate and delineate the legislative procedure and the content of the annual budget laws, and from the nature of the annual budget law which deals mainly with authorizations for budgetary actions.

 

19.          The Foundations of Budget Law constitutes a type of substantive ironclad provision that applies to the annual budget laws, and it was legislated in an effort to tighten supervision of the budget (see Dafna Barak-Erez, “Enforcement of the state budget and the administrative contracts,” Hamishpat A 253, 254 (1993)). This can be deduced from both the provisions of the law itself and from the circumstances in which it was passed. An examination of the provisions of the Foundations of Budget Law shows that the law has two main objectives. One is to regulate the normative framework for the budget laws and to ensure that the annual budget laws that are passed from the date of legislation of the Foundations of Budget Law and thereafter are legislated in accordance with a series of provisions. The other is to increase the supervision on the allocation and use of the annual budget of corporations, local authorities and other supported entities.

 

20.          The Foundations of Budget Law is an example of what is called “framework legislation” in the comparative literature. Framework legislation is a general name for laws that structure the manner of legislating laws in the field of the subject matter that they regulate. For the most part, the framework legislation contains provisions pertaining to the manner of voting and deliberation in the legislature during the voting on the relevant legislation for the framework legislation and, sometimes, as in the Foundations of Budget Law, it also contains a provision pertaining to the content of the legislation (for a discussion on framework legislation, see Elizabeth Garrett, “The Purposes of Framework Legislation”, 14 J. Contemp. Legal Issues 717, 718 (2005); hereinafter: Framework Legislation). Laws such as the Foundations of Budget Law, which regulate the legislation of annual budget laws, are considered prototypes of Framework Legislation (see, e.g., the words of Garrett, ibid., p. 723: “The congressional budget process is the prototypical framework law.”). Framework Legislation, as presented by Garrett in her aforementioned article, has several goals. They enable recurring problems to be addressed in principle; they determine neutral procedures that will establish the legislative procedures of future laws; they provide a solution to various problems arising from the need to coordinate between various entities responsible for making decisions (for example, among several Knesset committees or among entities in various government ministries); and they define broad general goals in a manner that ensures that future legislation will be consistent with those goals (see Framework Legislation, p. 733).

 

21.          The Foundations of Budget Law, as Framework Legislation for the annual budget laws, contains various provisions designed to regulate future budgetary legislation, both at the level relating to the legislative procedure of the annual budget laws and at the level relating to the content of the annual budget laws. Some of the provisions in the Foundations of Budget Law are of a procedural nature, which deal with the scope of details that must be included in an annual budget law. Thus, for example, section 2 delineates the structure of the annual budget law and specifies the types of budgets that must appear therein; section 4 regulates the manner of utilizing receipts that were received in excess of the projected receipts and loans for the fiscal year; Chapters D-E include various provisions in connection with corporations, local authorities and religious councils; and section 33 states that a budgeted entity and a supported entity are required to provide the director general of the Ministry of Finance with any information that is necessary for the purpose of monitoring implementation of the Foundations of Budget Law or the annual budget law. Alongside these provisions, the Foundations of Budget Law sets forth provisions of a substantive nature. Section 3A of the Foundations of Budget Law, which is the section relevant to the petition before us and which we will discuss in detail below, is an example of such a provision and its applicable subject matter of the principle of equality in distributing state funding to public institutions. Section 3A also demonstrates the manner in which Framework Legislation provides a response to a recurring problem that preceded it  in this case, the problem of the "earmarked funds" that the legislator wished to eliminate upon the addition of Section 3A to the Foundations of Budget Law.

 

22.          Alongside the position of the Foundations of Budget Law as a law that was designed to form the basis of the annual budget laws, is the unique nature of the annual budget law. The budget law, as its name indicates, is a law passed by the Knesset, although the hearing thereof, like its content, differs from the ordinary with regard to other primary legislation. Section 131 of the Knesset regulations, which is entitled “Special Hearing Procedures,” states that “In a hearing on the state budget, and in other exceptional cases, the Knesset committee may determine special hearing procedures.” The annual budget proposal, which the government is required to submit to the Knesset no later than 60 days before the fiscal year, is not distributed as a draft law memorandum by the Ministry of Justice, it is not published like any other bill, and it does not go through a full first reading (see: Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel: Government Authorities and Citizenship, Vol. B 898 (2005)).

 

                However, not only the hearing procedures differentiate the annual budget law from other primary legislation. From a substantive standpoint, it also cannot be said that the budget law is like any other law that is passed by the Knesset. Basically, the budget law is a law that gives the government authorization for an action. The law is essentially composed of many sections that specify the amount of the allocation for various actions in government ministries in accordance with the economic policy determined by the government. For the most part, the budget law does not contain a substantive normative dimension or norms that determine enforceable permitted and prohibited behavior. The budget law is, in effect, a framework of the government’s actions which require, in our governmental structure, the approval of the Knesset for the expenditures it needs to perform its ongoing activities and to implement its policy. The budget law is also limited in scope  as a rule, it is valid for one year only (or for two years, such as this year, in the case of a biennial budget law), and the budgetary provisions set forth therein grant the government permission to expend monies for certain purposes or to engage in monetary undertakings, but they do not impose an obligation on the government to expend these monies; under Section 3 of the Foundations of Budget Law, the government is entitled, in a particular fiscal year, to expend the amount specified as an expense in the budget law, but it is not obligated to do so.

 

23.          The Israeli courts have recognized the special nature of the budget law. Thus, for example, Justice Y. Zussman characterized the annual budget law in Criminal Appeal 213/56 Attorney General v. Alexandrovich, IsrSC 11 695, 698 (1957):

…Such a law, which is, indeed, a law in form, but not in substance, is the state budget: it does not contain any norm aimed at the citizens of the state. Nevertheless, due to the importance of the matter, the budget is determined by the Knesset in the form of a law, provided that its determination is not in the hands of the executive authority. But this does not change the nature of things: it involves an administrative matter implemented by the legislating authority and made in the form of a law.

 

                Similarly, Justice M. Heshin ruled that “an annual budget law contains many thousands of details and, in essence, it is no more than a collection of items of authorization for expenditure (the Conservative Movement Case, at p. 387). It was further stated that the annual budget laws are “singular and special laws, different from all other laws, and their unique characteristics automatically require a special manner of handling them (HCJ 240/98 Adalah  The Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 52 (5) 167, 189 (1998); hereinafter the Adalah Case).

 

24.          The budget laws are of a special nature, not only in the parliamentary system of Israel, but also in other countries which have similar democratic systems. In those countries as well, the budget constitutes parliamentary approval for the actions of the executive authority. See, for the sake of comparison, William Eskridge Jr. and John Ferejohn, Super-Statutes, 50 Duke L. JU. 1215 (2001) on the status of the budget laws in American Law:

Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies.

 

                Similarly, see, with regard to the budget laws in Germany, Thomas Knorzer, The Budget System of the Federal Republic of Germany (Bundesministerium der Finanzen, 2008, p. 8) (hereinafter: Budget System of the Federal Republic of Germany):

The budget is a systematically classified presentation of the expenditure estimated for the fiscal year and the revenue intended to cover it. The budget provides the basis for the government’s budget and economic management. It authorizes the administration to effect expenditure and to incur liabilities. The budget in itself neither establishes nor terminates any claims or liabilities. This can be done only by force of law. As the budget confers only an authorization, government is not legally required to actually effect any expenditure that has been included in the budget.

 

                In Germany, while the budget laws are laws to all intents and purposes, the constitution restricts their content. Under Article 110 (4) of the Basic Law, the budget laws can include:

…only such provisions as apply to the revenue and expenditure of the Federation and to the period for which the Budget Statute is being enacted.

 

                Moreover, the German law subordinates the annual budget law to other budgetary legislation in the same manner that the annual budget law is subordinate to the Foundations of Budget Law. In Germany, the budgetary legislative system creates an extremely clear hierarchy. At the top of the pyramid stand the provisions of Chapter X of the Basic Law, which deal with state budget (which include the aforementioned Article 110 (4)). Below the Basic Law is the Budgetary Principles Act of 1969, that was legislated as part of a reform of the German budgetary system, which was passed that year. The Budgetary Principles Act of 1969 specifies the principles for budget legislation that apply to both the federation and to the states. Beneath the Budgetary Principles Act are the Federal and State Budgetary Acts of 1969-1971 and beneath them are municipal laws and federal and municipal regulations (see Klaus Luder, Government Budgeting and Accounting Reform in Germany in Models of Public Budgeting and Accounting Reform, OECD Journal on Budgeting, Volume 2, Supplement 1, p. 228). In Germany, the budget laws cannot change the provisions set forth in the Budgetary Principles Act, which, similar to the Israeli Foundations of Budget Law, delineate provisions and principles whereby the Federation and the states are obligated to legislate the annual budget laws (for a review of the provisions that delineate the main principles in German budget legislation, see Budget System of the Federal Republic of Germany, pp. 8-9).

 

25.          It appears, therefore, that the budget law  in Israel as in other countries around the world  is passed by the primary legislator, but that is not to say that its status is that of every other law, particularly on the backdrop of other legislation that regulates the matters which appear in annual budget laws, such as the Foundations of Budget Law. The budget law is a unique law, and its unique characteristics, both from the standpoint of the procedures in the process of its legislation and from the standpoint of the scope and type of matters that it regulates, have several ramifications. First, as we ruled in the Conservative Movement Case, the annual budget law is subordinate to the Foundations of Budget Law. Certainly, in the normal course of events, no similar relationship exists between any two pieces of legislation since, in general, laws  except for the subordination of ordinary legislation to Basic Laws  are situated on the same tier in the pyramid of norms, and no one law can lead to the nullification of articles in another law. From this arises the basic rule in our legal system whereby a provision in a later law prevails over a provision in an earlier law, provided that the two provisions are of equivalent status. Underlying this rule is the principle of the legislator’s sovereignty and his goal of preventing the fettering of the future legislator and giving the Knesset the option of deviating from the provisions and from the legislation of a prior Knesset. However, alongside this important rule there are exceptions, such as the rules of the choice of law, which deals with regulating conflicts between various pieces of legislation. The exceptions are also joined by the special relationship that exists between the Foundations of Budget Law and the annual budget law, stemming from the material dealt with by the two laws and the unique nature of each one of them.

 

26.          The hierarchy between the Foundations of Budget Law and the annual budget law lead to the conclusion that the Knesset and the government, in preparing the annual budget, are obligated to ascertain that its provisions are compatible with the provisions set forth in the Foundations of Budget Law. The ineluctable result of this is that, in general, a provision in the annual budget law that conflicts with a provision in the Foundations of Budget Law cannot stand. However, due to the nature of the annual budget law, judicial review, which is designed to examine the budget law at the constitutional level against the Basic Laws and in the framework of its subordination to the Foundations of Budget Law, will be, by its nature, restrained and limited. The budget law reflects the policy of the government and the ideological and substantive choices made by the Knesset which are implemented by way of the allocation of resources. Determining the economic policy of the state is one of the basic and fundamental powers of the government and the Knesset, and the court will refrain from interfering therein in the framework of its review, unless the violation of basic rights  as reflected in the budget  is significant and severe. Indeed, in a series of decisions, this court has determined a rule of caution and restraint in intervention in the economic policy determined by the legislator. Thus, for example, in HCJ 4769/95 Menachem v. Minister of Transport, IsrSC 57 (1) 235, 263-264 (2002) (hereinafter the Menachem Case), it was ruled that in judicial review of the economy, which entails far-reaching social and economic aspects, the court would act with judicial restraint. The judgment stated that with regard to the economy, “There may often be several possible goals and modes of operation; deciding between them is based more than once on an assessment that harbors uncertainty and it involves professional forecasts and considerations that are not always within the sphere of the court’s expertise.” Therefore, the judgment stated, “the authority in charge of the economic policy  the executive authority and the legislative authority  must be given a broad field of choice as the ones who determine the overall policy and bear the public and national responsibility for the state economy.” See also the words of President A. Barak in HCJ 1715/97 Israel Investment Managers Association, IsrSC 51 (4) 367, 389 (1997) (hereinafter: Israel Investment Managers Association Case):

Especially in the realm of the economy there may often be several modes of action; there are several options open to the government authorities; the decision is based on an assessment in which a great deal of uncertainty is inherent. The tools and devices for ‘understanding the subtleties and differences in the proportionality between the various possibilities’ are often lacking…

Generally, the legislative means are characterized by the existence of a variety of actions and a mix of means, whose comprehensive effect must be examined and tested. All these lead to the conclusion that the court will not turn itself into an economic super-authority, which examines the justification for the economic options that were chosen. The court will fulfill its classic role of judicial review of government activities.

 

                To these considerations we must add that the budget law is structured so that the various budget items are connected to one another and it may be that the cancellation of one budgetary provision will affect other provisions in such manner that the court does not have the tools to examine the scope of its ramifications (see, in this context, the words of Justice M. Heshin in the Adalah Case, p. 190). We must also consider the character and the nature of the impact. In this matter, it should be noted that the Foundations of Budget Law contains a long series of provisions, some substantive, which were designed to ensure the protection of basic rights, and some of a more technical nature. Therefore, it may be that not every deviation from the provisions of the Foundations of Budget Law would justify canceling an item in the annual budget law, but rather only a deviation from those provisions that reflect basic rights and principles. I see no need to determine in advance, in this petition, which provisions will lead to the nullification of budget items in the budget law, and which will not. The decision in each case is affected by the reasoning underlying the relevant provision in the Foundations of Budget Law, by the nature of the deviation between the provision in the Foundations of Budget Law and the annual budget law, and by the importance of the right that was violated, the severity of the violation and its duration. At this time, the questions can remain in need of examination and can be deliberated in the future if the need to do so should arise.

 

27.          Above and beyond the necessary, it should be noted that the petition before us raises another question pertaining to the conflict between the annual budget law and prior substantive legislation. In this case, the question arises in view of the existing conflict between the provisions of the Income Support Law  whereby groups of students, among them kollel students, are not eligible for income support payments  and the Budget Item, whereby income support benefits are paid to kollel students. The question in this context pertains to the possibility of deviating from and, unfortunately, of changing prior substantive legislation by means of a budget allocation in the annual budget law. Similar questions were deliberated extensively in the United States. In a series of judgments, the American courts, headed by the federal Supreme Court, ruled that where a budget law conflicts with other substantive legislation, it can be deemed an implicit change of the substantive law. The Supreme Court ruled that the change of substantive legislation in an annual budget law is possible only where Congress expressed its desire explicitly and unequivocally and, even then, the court will be prepared to recognize the legality of the explicit change for one year only. In the leading judgment on this issue, Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978), the court ruled:

The doctrine disfavoring repeals by implication applies with full vigor when...the subsequent legislation is an appropriations measure.' Committee for Nuclear Responsibility v. Seaborg, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 355 (CA8 1972). This is perhaps an understatement since it would be more accurate to say that the policy applies with even greater force when the claimed repeal rests solely on an Appropriations Act. We recognize that both substantive enactments and appropriations measures are 'Acts of Congress,' but the latter have the limited and specific purpose of providing funds for authorized programs. When voting on appropriations measures, legislators are entitled to assume that the funds will be devoted to purposes which are lawful and not for any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant with prospects of altering substantive legislation, repealing by implication any prior statute which might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to review exhaustively the background of every authorization before voting on an appropriation, but it would flout the very rules the Congress carefully adopted to avoid this need” Tennessee Valley Autho. 437 U.S. at 190-191 (emphasis in the original, D.B.; see also Robertson v. Seattle Audubon Society, 503 U.S. 429 (1992)).

 

                The congressional rules to which the court related also contain House Rule XXI (2) which places a restriction on changes to prior substantive legislation in the framework of a budget law and states that:

No appropriation shall be reported in any general appropriation bill, or be in order as an amendment thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations for such public works as are already in progress. Nor shall any provision in any such bill or amendment thereto changing existing law be in order. (emphasis added, D.B.)

 

                Underlying the United States Supreme Court ruling is the premise that the extensive scope of the matters regulated by an annual budget law and the manner of the technical presentation of the budgetary authorizations provided in the budget, make it very difficult to understand the matters that are regulated within the realm of the budget and do not enable the legislators, in practice, to know fully and comprehensively what matters are included in the budget. In those circumstances, it is hard to say that members of the legislative body, when they vote on the annual budget, are aware of each and every item, and give their consent to an implicit change of prior substantive legislation (in this context, see the words of the Ohio federal court in the matter of Planned Parenthood Affiliates of Ohio et al. v. Rhodes et al., 477 F. Supp. 529 (S.D. Ohio, 1979)).

 

                The approach of the United States Supreme Court raises interesting questions with regard to the scope of the matters that can be regulated in the annual budget law, including the possibility of changing  explicitly or implicitly  prior legislation by means of a provision in the annual budget law. The decision on these questions is not required in the petition before us, and, therefore, they will remain at this time in need of examination.

 

From the general to the specific

28.          Our discussion to this point has focused on the normative framework that governs the annual budget laws. We have found that the budget laws have unique characteristics. We have also determined that the budget law is subject to the Foundations of Budget Law in a manner that requires budget allocations in the annual budget law to conform to the provisions of the Foundations of Budget Law. The continued discussion below will focus on the question of whether the Budget Item contained in the budget laws since 1982 violates the principle of equality, which is a basic principle in the Israeli legal system, which found expression in provision 3A of the Foundations of Budget Law. In the petition before us the question arises of the interpretation of Section 3A, and the significance arising from the need to subordinate an annual budget law to the equality provision that is set forth, inter alia, in Section 3A. We will now address these questions.

 

Section 3A of the Foundations of Budget Law

29.          Section 3A was added to the Foundations of Budget Law in 1992 in the Regulations in the State Economy (Legislative Amendments) Law (No. 3), 5752-1991. The relevant parts of the Section state as follows:

 

Support of Public Institutions

(Amendment 12) 5732-1992        3A. (a) In this section 

 

“Public Institution”  An entity that is not one of the government institutions, which operates for the purpose of education, culture, religion, science, art, welfare, health, sports or a similar purpose;

               

                “Budget Item”  An item in an annual budget law that determines the expenditures of a government ministry.

               

                (b)          An annual budget law shall determine the government’s expenditures for the purpose of supporting Public Institutions.

               

                (c)           The government’s expenditures for the purpose of supporting Public Institutions shall be determined in every budget item in a comprehensive amount for each type of Public Institution.

               

                (d)          The amount set forth in a Budget Item for a type of Public Institution shall be divided among Public Institutions of the same type pursuant to equality tests.

               

                (e)          The supervisor of the Budget Item shall formulate, in consultation with the attorney general, equality tests for dividing the amount determined in that Budget Item for the purpose of supporting Public Institutions (hereinafter  the Tests).

               

                (f)           The Minister of Finance shall formulate, in consultation with the attorney general, a procedure whereby applications by Public Institutions to receive support from the state budget shall be submitted and considered (hereinafter  the Procedure).

               

                (g)          The tests and the procedure shall be published in the Official Gazette of the Government of Israel.

               

                (h)          No amount set forth in the annual budget law shall be expended for the purpose of supporting a Public Institution unless it is incorporated and fulfills the provisions of the procedure, and to the extent consistent with the Tests.

 

                Section 3A delineates the state support of public institutions, and specifies that government expenditures for the purpose of supporting public institutions will be determined as a comprehensive amount for each type of public institution, and will be distributed among the relevant institutions pursuant to the equality tests. The purpose of the section was to eradicate the problem of earmarked funds which was widespread prior to enactment of Section 3A. According to the method of earmarked funds, the Knesset would distribute state funding to various institutions without known and predetermined equality criteria. Pursuant to that practice, in accordance with coalition agreements that were signed among various Knesset factions, a support item was specified in the budget law, which detailed the names of the supported entities and the amount of the annual support. Both the supported entities and the amount of the annual support were determined arbitrarily and without open and egalitarian criteria (see: Amnon de Hartouch, “State Support for Public Institutions  “The Blossoming of Earmarked Funds,” Mishpatim 29 75, 82 (1992)). In the wake of widespread public condemnation and the criticism voiced by this court regarding the issue of the earmarked funds (see, e.g., HCJ 780/83 Yeshivat Tomchei Temimim Merkazit v. State of Israel (unpublished 19.4.1984); Misc. Motions 166/84 Yeshivat Tomchei Temimim v. State of Israel, IsrSC 38 (2) 273 (1984); see also: HCJ 59/88 MK Yair Tzaban v. Minister of Finance, IsrSC 35 (1) 421 (1989) (hereinafter: the Tzaban Case), the legislator amended the Foundations of Budget Law by adding Section 3A, which contained a norm of equality in state funding, by establishing that the amount of the support in each annual budget law would be determined comprehensively for each type of public institution and would be distributed among the appropriate institutions according to equality tests. As with the Foundations of Budget Law in its entirety, Section 3A is designed to apply to every annual budget law and, in that framework, to every state grant: “The essence of the provision in Section 3A is to establish the equality norm as the basic norm  the supreme norm, if you will – to all the support grants that the state is supposed to grant in these and other areas of life” (Council of Youth Movements in Israel, p. 438, Justice M. Heshin).

 

                Section 3A was added to the Foundations of Budget Law after a stormy debate in the Knesset and after various government ministries and this court dealt with the issue. See, e.g., the words of Justice M. Heshin in HCJ 8569/96 Federation of Working and Studying Youth v. Minister of Education, Culture and Sports, IsrSC 52 (1) 597, 600 (1998): “And once again we are required to decide the question of financial support that the state is supposed to provide  or not provide  to this or that public entity. I say ‘and again’ because the petitions on the issue of the support funds follow one another, and we must bear the burden of deliberating, considering and deciding”; see also the words of Justice Y. Zamir in HCJ 3792/95 National Youth Theater v. Minister of Science and Arts IsrSC 51 (4) 259, 262 (1997) (hereinafter: National Youth Theater): “This petition raises, yet again, the problems entailed in distributing support to public institutions from state funds.” The innovation in Section 3A is that it prohibits the provision of support funds in the framework of the state budget to certain organizations and institutions chosen surreptitiously by Knesset members, in accordance with coalition agreements and waivers, and not in accordance with open and egalitarian criteria. Section 3A expressly states that instead of specifying the names of the supported entities in the annual budget law, an annual amount of support will be determined for each type of public institution, which will be distributed among the public institutions of that type, according to equality tests. The goal underlying Section 3A was to prevent a situation in which, in the words of Justice Y. Zamir, “The annual state budget became, knowingly and openly, a device for distributing state monies, as though they were the election booty in a way that discriminated against good institutions worthy of support, only because they were not close to the throne” (the Conservative Movement Case, p. 344).

 

30.          As worded, Section 3A is designed to apply to support for public institutions. “A public institution” is defined in Section 3A(a) as “An entity that is not one of the government institutions, which operates for the purpose of education, culture, religion, science, art, welfare, health, sports or a similar purpose.” The question before us is whether Section 3A also applies to income support payments to kollel students by virtue of the Budget Item, since these payments are not given to what is clearly a “public institution,” but rather to kollel students who meet the conditions of eligibility.

 

                The question of the possibility of applying the provisions of Section 3A to support for individuals has arisen in the past. In the judgment in HCJ 1/98 Kabel v. Prime Minister of Israel, IsrSC 53 (2) 241 (1999), the legality of guidelines for determining eligibility for public housing assistance was examined. While the guidelines were formulated in a comprehensive manner, the court found that, in practice, they were guidelines that were made solely for the sake of appearance, since they are intended for a specific population group and therefore constituted a unique grant. Those who met the conditions of eligibility according to the guidelines were not public institutions, but rather private individuals who, because of their financial situation (and their meeting additional conditions), were found to be eligible for the assistance. According to Justice M. Heshin, the court addressed the question of the applicability of Section 3A to support for individuals, and stated:

                In this matter, we will now comment that the provision in Section 3A of the Foundations of Budget Law does, indeed, deal with support funds which the state grants to public institutions (as the concept “public institution” is defined in Section 3A (a)) and, in any case, it does not apply to this case, however, the analogy between them is self-evident, not only for the reason that, in both cases, we are talking about benefits that are granted from the state budget, benefits that are granted without a substantive law that establishes guidelines for granting them. Indeed, it would be advisable for the authorities  and for the attorney general  to also apply the spirit and the wording of the provisions of Section 3A, mutatis mutandis, to financial benefits that are not given only to public institutions. (ibid., p. 263)

 

31.          These words are appropriate to this case. Indeed, Section 3A was not enacted in a vacuum. State support for individuals and public institutions preceded the enactment of Section 3A, and this court, in examining the legality of this support, reiterated the principle that has existed in our law from time immemorial, whereby state funding must be given equally and with the establishment of clear, egalitarian and overt criteria. See, e.g., the words of (then) Justice A. Barak in the Tzaban Case, which preceded the enactment of Section 3A:

 

Budget funds are state funds. The government authorities that are authorized to utilize them are not entitled to do with them as they please. The government authorities are the public trustees and the expenditure and distribution of these funds must be implemented in a way that is consistent with that trusteeship. In terms of substance, this requires persuasion, that the goal for which the funds are intended is a goal that the state is interested in supporting. The support must be implemented according to principles of reasonableness and equality…and with practical considerations…the financial support must be implemented “according to clear, practical and egalitarian criteria.” In terms of form, clear and overt criteria must be determined, whereby a decision will be made with regard to the financial support while establishing control mechanisms to ensure that the funds are serving their purpose. Only in this manner will the support be given in a way that is consistent with the trusteeship obligation of the government. Only in this manner will the public trust be assured that the state funding is given according to considerations of the issue and not the considerations of interested parties (ibid., pp. 706-707).

 

                The obligation to distribute state funding in an egalitarian manner exists, as stated, independent of Section 3A, and the courts imposed this obligation before the section was enacted and after it was enacted. In that spirit, Justice Y. Zamir noted in HCJ 1113/99 Adalah  The Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs, IsrSC 54 (2) 164, 172 (2000); hereinafter the Adalah  The Legal Center for Arab Minority Rights in Israel Case), that:

The principle of equality in allocating state budget funds is not limited to the provision of support to public institutions, as set forth in Section 3A of the Foundations of Budget Law, but rather, it also applies, even without a law that expressly establishes this, to the allocation of funds from the state budget in another manner and for other needs.

 

                The clear advantage of Section 3A does not necessarily lie in declaring the obligation to act with equality  an obligation that also existed, as stated, before the section was enacted  but, rather, by the fact that it established an orderly mechanism for providing state funding in the state budget, and for distributing that support among the appropriate institutions. Indeed, notwithstanding the fact that the wording of Section 3A is directed at state funding that is provided to public institutions, the principle established therein is far broader  the obligation to act with equality in distributing state resources in the state budget. Section 3A was designed to ensure that distribution of the support funds in the state budget “shall be implemented overtly, and the principle of equality is what shall guide us. The principle of equality is the backbone, and without it, there can be no support” (HCJ 5290/97 Ezra – National Haredi Youth Movement in the Land of Israel v. Minister of Religious Affairs IsrSC 51 (5) 410, 414 (1997), Justice M. Heshin). Underlying Section 3A, as noted above, was the desire to eradicate the exclusive financial phenomenon and to ensure that state funding would be given according to egalitarian criteria, and not as a result of one coalition agreement or another. In this context, the words of Justice Y. Zamir, in the Adalah  The Legal Center for Arab Minority Rights in Israel Case, are relevant:

The principle of equality obligates every public entity in the state. First of all, it obligates the state itself. The principle of equality applies to all the areas in which the state operates. It applies, first and foremost, to the allocation of state resources. The resources of the state, whether land or money, and other resources, belong to all the citizens, and all the citizens are entitled to benefit from them pursuant to the principle of equality, without discrimination based on religion, race, sex or any other prohibited consideration.

 

The principle of equality must also guide the legislative authority, which, like any other authority in the state, must act as a trustee of the public, in view of the basic values of the State of Israel as a Jewish and democratic state, one of which is equality. That is the case with each and every law, and that is also the case with the budget law.

 

 32.         While the Budget Item, by virtue of which income support benefits are paid to kollel students, is not aimed at public institutions, it is an example of the support model to which Section 3A relates and to which the principle of equality, underlying Section 3A, is intended to apply. While the Budget Item does not bear the title “Earmarked Funds,” a precise examination of the procedures for passing it and for distributing the support thereunder leave no doubt that it involves the same old thing in a different guise. The Budgetary Item was added to the budget law in 1982 following a coalition agreement which endeavored to ensure payment of the income support benefits to kollel students, notwithstanding that stated in the Income Support Law, which went into effect that same year. As stated, the Income Support Law explicitly established  by means of the regulations promulgated thereunder  that kollel students (like students in institutions of higher education) are not eligible for income support payments. By inserting the Budget Item into the annual budget law, the provisions of the Income Support Law were circumvented in a way that benefited only certain population groups. In actuality, the individual arrangement, which ensures payments of income support benefits to a particular defined group of people, in accordance with a coalition agreement, and not pursuant to  and even in contravention of  an explicit law that prohibits the provision of funds of this type to various populations, including kollel students, is basically an arrangement of earmarked funds, even if they are camouflaged. Indeed, in the state’s response to the petition, it was explicitly argued that “The arrangement for support of yeshiva students began even before the Income Support Law went into effect  as a welfare payment  and the parties involved in the matter agreed that this arrangement would not be impaired as a result of the Income Support Law” (supplementary argument on behalf of respondents 1-6, April 21, 2005, p. 16; emphasis added, D.B.). What does this involve? An agreement between “the parties involved in the matter” to utilize the name of a particular group in the budget law, and to give it state funding and grants for the purpose of distribution to individuals without the authorization of the primary law and notwithstanding the provisions of a law that rules out payment of a benefit to that group. That, in essence, is the definition of earmarked funds, the distribution of which the legislator wished to prevent by means of Section 3A, even if the funds are transferred to private individuals and not to institutions (see the Conservative Movement Case, p. 343).

 

33.          Additional support for the position whereby the Budget Item constitutes a type of earmarked funds is found in the fact that the criteria for distributing an income support benefit by virtue of the Budget Item are not published. This court, in HCJ 6741/99 Yekutieli v. Minister of the Interior, IsrSC 55 (3) 673 (2001) (hereinafter: Yekutieli), addressed the problem arising from the absence of criteria for determining eligibility, and noted:

Who are those who are eligible for the payment of minimum income support from the Ministry of Religious Affairs? What are the criteria utilized by the Ministry of Religious Affairs when it determines that someone is eligible for minimum income support? Do the criteria change from time to time? Who determines those criteria? In vain an answer to these questions was sought in the regulations  these and questions deriving from them. The solution to these questions was a mystery to us. (ibid., p. 692, Justice M. Heshin).

 

Only after the petition was filed did the state begin to formulate criteria for determining eligibility for income support benefits by virtue of the Budget Item. During adjudication of the petition, the petitioners attempted several times to receive an update on the procedures for determining the criteria, and they applied to the state to receive a copy of the recommendations of the various committees, but their request was denied. Even after the criteria were established, the state refused to submit a copy of the criteria for the perusal of the petitioners and the court, and only in 2005, some two decades after commencement of payment of the benefit, did the state provide the parties with the criteria.

 

The principle of equality

34.          Once we determined that the principle established in Section 3A applies to the support for kollel students, if not simply and directly, then in spirit and in accordance with the rationale underlying it, the question arises as to whether the Budget Item fulfills the obligation of equality.

 

35.          Much has already been written about the principle of equality and its pivotal position in our law (see, e.g., Yitzchak Zamir and Moshe Sobel “Equality Before the Law,” Mishpat Umimshal 5 165 (1999); HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46 (2) 692, 707 (1992); HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. Prime Minister, IsrSC 52 (4) 193, 229 (1998); hereinafter: C.A.L. Cargo Airlines Ltd.). In the past, it was said that the principle of equality was analogous to “the life’s breath of our entire constitutional government” (HCJ 98/69 Bergman v. Minister of Finance et al., IsrSC 23 (1) 693, 699 (1969), Justice M. Landau), and, recently, the principle was established constitutionally in the judgment in the Tal Law Case. The court ruled that, in accordance with the model established there, the right to equality is part of human dignity and, as such, it enjoys constitutional protection that supersedes the law.

 

                The obligation to act with equality means giving equal treatment to equals, and different treatment to those who are different (see HCJ4541/94 Alice Miller v. Minister of Defense, IsrSC 49 (4) 94, 110-111 (1995); HCJ 678/88 Kfar Vradim v. Minister of Finance, IsrSC 43 (2) 501, 508 (1989)). This is one of the basic rules in our legal system. Indeed, not every distinction constitutes discrimination. There are situations in which the principle of equality recognizes a relevant difference that justifies separate treatment for individuals or groups. In such situations, the distinction is not tantamount to prohibited discrimination (see, e.g., C.A.L. Cargo Airlines Ltd., the judgments of Justices M. Heshin and T. Orr). A claim of discrimination arose only where different and unfair treatment was given to equals (see, e.g., HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister (unpublished, February 27, 2006); hereinafter: the Supreme Monitoring Committee).

 

                The other side of the principle of equality is the prohibition on practicing discrimination. A sense of discrimination damages the fabric of society and the willingness of its citizens to contribute to the state and integrate into society. Discrimination vitiates the public’s trust in the government system and increases the feeling that the government is run arbitrarily; it is “an evil that penetrates the underpinnings of democratic government, permeates and destroys the foundations until, ultimately, it leads to its collapse and destruction” and (HCJ 2618/00 Parot Co. Ltd. v. Minister of Health, IsrSC 55 (5) 49, 58, Justice E. E. Levy). This is particularly true in the distribution of budget funds which contravenes the provisions of the primary legislation and is implemented on the basis of criteria that are not made public and are not subject to public scrutiny.

 

36.          The decision on the question of whether a particular norm violates the principle of equality is not at all simple. By its very nature, the question calls for discussion of the characteristics and purposes of the norm, and determination of the “peer group” relevant to the matter at hand. The peer group is a group of individuals or entities to which the obligation to act with equality applies (see National Youth Theater, p.281), and it derives, inter alia, from the purpose of the norm and the scope of its employment. Sometimes the legislator determines the peer group in the norm itself, and sometimes the court must define, by means of different variables, what the peer group is in each specific case.

 

                The petitioners in the petition before us claim that the peer group was determined by the legislator in the regulations that were promulgated pursuant to Section 3 of the Income Support Law. As stated, the regulations establish that eligibility for income support payments was denied to students studying in institutions of higher education or post secondary institutions, students in religious institutions and students in yeshivot and Torah study institutions. The petitioners argue that by including the various groups in one framework  which denies them the right to the benefit (subject to exceptions set forth in the law)  the legislator expressed the will that all the groups studying in the various institutions listed in the regulations be deemed one peer group.

 

                In contrast to this argument, the respondents believe that the fact that the Budget Item was added to the budget law in the same year in which the Income Support Law went into effect, indicates that the legislator wanted to designate, in that framework, one group of students, and enable it to receive income support payments. According to the respondents, there are disparities that justify the difference in treatment between students in institutions of higher education and kollel students. The state argues that while the group of [non-kollel] students study for a limited period of time and for a specific purpose (i.e., to acquire a profession), kollel students study solely for the sake of the Torah. Torah study is their profession, and their studies do not constitute a means to any other end. According to the state, this difference is what justifies a distinction between the groups.

 

37.          In view of the dispute between the parties, the main question that must be decided is not whether there is a difference between the groups  that certainly exists. Rather, the main question is whether there is a distinction  or a difference  that is relevant to the matter in question. There is no dispute that between the group of petitioning students and the group of kollel students there are many differences. Thus, for example, their lifestyles are different, the purposes for which they are studying are different, and the subject matter of their studies is different, as is the nature of their studies. However, the very fact that a distinction can be made between the groups on the basis of the existence of differences between them does not mean that such a distinction is legal. A distinction between those who are different does not amount to prohibited discrimination where the difference is relevant to the purpose of the norm that distinguishes between them. In the Elad case (HCJ 4906/98 Free People Society for Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing, IsrSC 54 (2) 503 (2000); hereinafter: the Elad Case), which adjudicated the question of equality in housing benefits that were given solely to the residents of Elad, I noted the following:

A discriminatory norm, which is prohibited by law, is a norm that determines different treatment for people who should be treated equally. A group that must be treated equally is a group whose unique characteristics are relevant to the purpose of the norm, to the substance of the matter and to its special circumstances, a group that must be deemed distinct from others for the purpose of that matter” (ibid., p. 513).

 

In order to determine whether the characteristics that distinguish the group of kollel students are relevant to the purpose of the norm, we must first investigate the purpose underlying the income support payments. Income support payments, as their name suggests, were designed to ensure a minimum level of income to anyone who cannot provide himself with the income required to subsist and to meet basic vital needs (see the explanation to the Income Support Bill, 5740-1979, Bill 1417 p. 2). The purpose of income support payments is to provide financial assistance to needy population groups, and it is based on the perception of the state as a welfare state, which provides a safety net for anyone in need of it. The purpose, therefore, is basically socioeconomic. To that end, various tests were established in the Income Support Law and the criteria for distributing the income support benefits by virtue of the Budget Item, which were designed to investigate the financial need of the benefit applicant among which are his monthly income and the assets registered in his name.

 

38.          In view of the purpose underlying the income support payment arrangements to provide financial assistance to kollel students, the question arises as to whether the distinction between kollel students and other students, in view of the differences in the scholastic objectives of each one of the groups, is a relevant distinction. This is not the first time that this court has been required to examine whether, for the purpose of state funding and various financial benefits, different rules should be established for kollel students and for other students. The Elad Case examined the legality of various financial benefits that were given by the state to purchasers of housing units in Elad, a new ultra-orthodox city that was established in the center of the country. The petition claimed that the benefits were not given to purchasers of apartments in other places in the center of the country. In the judgment, we found that the policy of housing assistance was determined according to individual eligibility conditions that are established by the Ministry of Construction and Housing, taking into account the economic, social and familial status of the eligible person, and in accordance with the policy and preferences of the government vis-à-vis the supported housing areas. Insofar as determination of the level of eligibility is based on financial need and socioeconomic status, we ruled that this must be done according to uniform criteria for the entire population. The following was noted in the judgment:

When the purpose is assistance due to financial need, the extent of the assistance is affected by the size of the family, its income, the housing conditions available to it and other personal particulars that indicate neediness. Housing hardship is the same hardship for every needy family. All those in need of assistance constitute one peer group, whatever their national, religious, communal and social affiliation may be…for that reason, no distinction should be made between the people in that group according to a fact that is not relevant to the hardship and to the need for housing assistance  their belonging to the ultra-orthodox community (the Elad Case, p. 513-514).

 

                Similarly, in the judgment in the Kabel Case, both the court and the state  in different opinions and in press releases  noted that for the purpose of housing assistance, kollel students and other students are in the same peer group. The judgment dealt with the plans for construction of state-subsidized rental apartments for kollel students whose profession is studying Torah. The general procedures for determining eligibility for housing assistance provide that every candidate must meet the prerequisite of “optimization of earning capacity.” The deputy minister of Housing and Construction at that time, who wanted to promote the construction plans for kollel students, proposed new criteria for determining eligibility in which he wanted to exempt the kollel students from the need to meet the optimization of earning capacity condition. In response, the deputy attorney general at that time stated in an opinion that “Amending the criteria as requested, in such manner that the condition of ‘optimization of earning capacity’ would not apply to yeshiva students, raises a dual problem: first  discrimination vis-à-vis other population groups who are required to meet this condition, such as other students and the unemployed” (ibid. p.248). Notwithstanding the opinion of the deputy attorney general, the Ministry of Construction and Housing began to build the apartments and, prior to the hearings on the state budget for 1998 and following an undertaking that was given to the United Torah Judaism faction in the Knesset, the Ministry of Construction and Housing wanted to change the criteria. A press release published by the Ministry of Justice stated that according to the new criteria, apartments could be allocated to kollel students whose profession is studying Torah, however, any relief that would be given to kollel students “will apply equally to other similar populations ([non-kollel] students) and that such eligibility must be qualified and limited in time (ibid., p. 250). New criteria were established as stated, whereby the category of “learner” was added, which included married non-kollel students and also those whose profession is studying Torah. However, as indicated by Justice M. Heshin in the judgment, the criteria were for the sake of appearance only and, in actuality, they applied only to yeshiva students. Justice Heshin stated:

[The criteria] are not telling us the truth, about the fact that they have always been designated  and that is even the actuality – to benefit those whose profession is the study of Torah, while discriminating against other students. Yeshiva students and other students are listed (for the purposes of this case) in the same peer group and rights that are granted to some by law must also be given to others. Once we understand that  according to the guidelines  yeshiva students are supposed to receive rights that are not given to other students, we also understand that the state’s actions are prohibited. This discrimination in distributing public resources  the heart of the matter: discrimination whose only justification is fulfilling an agreement between coalition partners  is intolerable and the court will not allow it to become established and to remain in place (ibid., p. 261).

 

                The court reached a similar conclusion in the Yekutieli Case, which dealt, inter alia, with the legality of a regulation enacted by the Minister of the Interior, which enabled a local authority to grant kollel students, who receive income support benefits (the same benefit whose legality is under discussion in this petition), a discount on municipal taxes. The court ruled that the regulation distinguishes between kollel students and other students in institutions of higher education, and noted:

Here they are before us: one is a yeshiva student, the other is the student in an institution of higher education. Both are married, neither is working (neither they nor their wives), they have no income, and each one of them has three children. Neither of the two is eligible for benefits under the Income Support Law; one, because he is a student in a “yeshiva” (or in a “Torah study institution”), the other because he is a student in an institution of higher education…the financial situation of the two may be identical, but even so  as set forth in Regulation 2 (7) (a) of the discount regulations  the kollel student will receive a discount on municipal taxes  only because he is a kollel student, i.e.: only because he is eligible for payments to ensure minimum income from the Ministry of Religious Affairs  while the other student, as a student [in a different type of institution] will not be eligible for the discount. What is the justification for this? What is the reason for this discrimination  to the detriment of the other student?” (ibid., p. 700)

 

39.          This court’s ruling in a series of judgments, whereby the distinction between kollel students and [other] students is not based on a relevant difference where the benefit given to one of the groups is based on the goal of assisting members of the group financially, is also pertinent to this case. The difference in the objective of the study (i.e., study for the purpose of acquiring a profession or for purely spiritual purposes) is not a relevant fact were the purpose of support is basically economic assistance whose goal is to provide the recipient and his family with minimum income. The need that arises for income support is identical, whether it involves a student in an institution of higher education or in a Conservative institution of religious study, or a student studying in a kollel. Because of their studies, none of them can work to support themselves. All of them invest all their time and energy in their studies in a manner that prevents them from supporting their families. However, under the existing legal situation, only one of them is eligible for income support benefits.

 

                In its responses to the petition, the state argued that the purpose underlying the Budget Item is not economic, but rather ideological, based on encouraging Torah study. As stated, we cannot discern from the wording of the Budget Item that that is, indeed, the purpose, and perhaps it is even the opposite. The heading of the item, “Minimum Income Support for Kollel Students,” attests to the fact that the main purpose is to provide financial assistance and not to encourage study, even though encouraging study can be a side effect of financial assistance. The criteria for determining eligibility for the benefit support this conclusion. According to the criteria, not all kollel students are eligible for the benefit. For example, a kollel student who has two children (and not three, as required by the criteria) is not eligible for the benefit. Was it stated that the state does not desire to encourage the Torah study of this kollel student? The obvious answer is that the criteria were designed to determine a minimum threshold based upon economic status, and this threshold assumes, for example, that the economic status of a family with three children is graver than a family with two children; just as an ultra-orthodox family that owns another asset, aside from their residential apartment, is not eligible for an income support benefit. Even though no one disputes that there is also an ideological basis underlying any budgetary support, the essence of which is to promote and encourage the supported activity, the economic need is the foundation for the conditions of eligibility for income support benefits, because if the purpose had been solely to encourage learning, all of the kollel students would be eligible for the benefit.

 

                Moreover, even if the state’s argument regarding the ideological purpose underlying the Budget Item was accurate at the time, the developments that have occurred in this matter among the ultra-orthodox community and in the various legal mechanisms regarding the arrangements for exemptions given to yeshiva students and encouraging the ultra-orthodox to seek employment, create more than a few problems regarding this reasoning for the support. For example, in the Tal Law Case judgment, the court determined that the Deferral of Service Law has four main purposes: to lawfully establish the arrangement for deferring the service of yeshiva students whose profession is studying Torah; to establish more equality in distributing the burden of military service; to increase the participation of the ultra-orthodox population in the job market and encourage ultra-orthodox men to go to work, particularly in view of the situation that preceded the Deferral of Service Law, in which deferment of service was contingent upon absolute refrainment from any occupation except learning in a yeshiva, and gradual resolution of the problems that existed in the arrangement for those exempt from service (Tal Law Case, p. 44 of the judgment). In the state’s arguments in response to the petition that was filed about application of the law (HCJ Ressler), the state also reiterated and specified the various arrangements that were established in the Deferral of Service Law, whereby kollel students were allowed to work with certain restrictions, with the aim of “enabling the older students to earn a living after study hours, in order to allow them to increase their income by means other than support from the state budget” (the state’s response dated May 18, 2008, p. 12); the explanations of the Deferral of Service Law also noted that “the purpose of the year of decision is to enable those who are uncertain about whether to continue with their studies or enter other frameworks that will enable them to integrate into the economy, the job market and society in general, to consider their course of action…in addition to that stated, the year of decision is designed to enable yeshiva students to learn a profession and seek employment, without losing the status of a person whose ‘profession is studying Torah,’ and to ease the transition from a lifestyle of Torah learning to a different lifestyle” (explanations to the Defense Service (Deferral of Service for Yeshiva Students Whose Profession is Studying Torah) (Temporary Order) Bill 5760-2000, Bill 2889, p. 457 (5760)). All the above indicates that the validity of the ideological purpose  even if it was the basis for the 1982 Budget Item  has eroded and the legislator himself is adapting the various legal arrangements to the changing reality of life in Israeli society in general and in the ultra-orthodox community in particular.

 

                It should be added in this context that over the years the scope of the support provided under the Income Support Law has also diminished. As we noted in section 2 above, changes in the economic policy have led to a narrowing of the conditions of eligibility for income support benefits under the law and to cutbacks in the rate of the income support benefits (see, e.g., the Arrangements in the State Economy Law (Legislative Amendments for Attaining the Budget Goals and the Economic Policy for the 2003 Fiscal Year), 5763-2002; see also the court's discussion in the Commitment to Peace and Social Justice Association Case). A cutback in the scope of the benefits granted under the Income Support Law derived from changes in the economic trends that were applied to recipients of the benefits under the Income Support Law. These changes were not discussed and, in any case, were not applied, in the context of income support benefits under the Budget Item.

 

40.          The conclusion that emerges from analysis of the normative framework that applies to the budget laws in Israel, and from the comparison between the Income Support Law and the Budget Item, is that the income support benefit for kollel students under the Budget Item violates the obligation of equality with regard to the distribution of state funds. The income support benefit for kollel students constitutes a type of earmarked funds, which were prohibited with the enactment of Section 3A. The benefit is paid to kollel students in contravention of the provisions of the Income Support Law, under which students in various institutions are not eligible for the benefit, among them kollel students. As we noted above, in view of the economic purpose underlying the income support payments, the distinction between different groups of students based on differences in the nature of the studies is not based on a relevant difference and, therefore, constitutes a prohibited distinction.

 

41.          The obligation to distribute the state funding equally and without discrimination is derived from the right to equality, which has been recognized in our legal system as a constitutional right superseding the law. Its uniqueness lies in the fact that in the case law of this court and in Section 3A of the Foundations of Budget Law, conditions essential for its implementation were established in the context of distributing the state funding. Thus, for example, case law established the principle whereby state grants would be distributed according to clear and overt egalitarian criteria (see, e.g., the Tzaban Case). Similarly, Section 3A established a detailed process for determining the entities to which state funding would be given. These and other arrangements are designed to adapt the principle of equality to the distribution of state funds from the state budget and, therefore, they constitute a private instance of the right to equality. The obligation to distribute state funds equally is also based on the constitutional aspect of the right, it is an integral part of it and the long tradition of case law and legislation in this connection expresses the unique aspects of equality in this area.

 

42.          We therefore find that the income support benefits, which are paid under the Budget Item, violate equality. However, the examination does not end here, since everyone will agree that, notwithstanding the importance of the right to equality, it is not an absolute right. Like other rights in a modern society, the right to equality also recedes, in the appropriate cases, before opposing rights or interests and there are cases in which the discrimination or the violation of equality is not unconstitutional. Therefore, we must examine whether the violation of the right to equality created by support of the kollel students according to what has been established in the budget law, satisfies the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty (see: HCJ 7052/03 Adalah  The Legal Center for Arab Minority Rights in Israel v. Minister of Interior (unpublished, May 14, 2006) (hereinafter: the Citizenship Law Case)). See, in this context, the words of President A. Barak in the Supreme Monitoring Committee Case:

Even when a violation of equality has been proven, we must examine whether the violation meets the requirements of the limitations clause in Section 8 [of the Basic Law: Human Dignity and Liberty], i.e., whether the decision is appropriate to the values of the State of Israel, whether it was intended for a proper purpose, and whether the violation of equality is implemented to an extent that is not excessive. There may, therefore, be permitted discrimination (see HCJ 3434/96 Hoffnung v. Speaker of the Knesset, IsrSC 50 (3) 57, 76). Indeed, the right to equality, like every other human right, is not an “absolute” right. It is “relative” in nature. This relative nature is reflected in the possibility of lawfully violating it, if the conditions of the limitations clause are satisfied (ibid., paragraph 22 of the judgment of President A. Barak).

 

                The limitations clause contains four conditions: the violation must be established in a law or under a law or by virtue of an express authorization therein; which befits the values of the State of Israel; is intended for a proper purpose, and to an extent that is not excessive.

 

43.          There is no dispute that in the petition before us, the requirement of legality is fulfilled, as the Budget Item has been included in the annual budget laws since 1982. For the sake of discussion, I am prepared to assume that the conditions requiring the existence of a proper purpose that befits the values of the State of Israel are realized in this case. In our above discussion we examined the purpose underlying the Budget Item and we found that the purpose of the Item is to provide financial assistance to kollel students who meet a series of eligibility conditions. We also noted that, according to the state, the Item also encompasses an ideological goal of encouraging Torah study. We determined that we cannot ignore the objective indices, which attest to the fact that the dominant purpose of the Item is the provision of financial assistance to kollel students  even if such assistance serves to express the goal of encouraging Torah study. Indeed, the questions regarding the manner of encouraging Torah study and the scope of the encouragement that the state provides for this purpose, are complex questions that are pending before the various authorities, and even before this court, and they pertain to the manner of determining priorities according to society’s ideological goals. Among others, the question of encouraging Torah study is pending in petitions about determining priorities in inducting kollel students into the army and assisting their entry into the job market. I do not wish to elaborate on this matter. I would like to note that even if we accepted the state’s position, that the Budget Item allows for recognized and conscious support of Torah study, and we have not stated that, it is doubtful whether the vehicle of financial assistance for this group alone befits the proper purpose. In any case, for the sake of discussion, I am prepared to assume that, from the constitutional aspect, this involves a proper purpose.

 

                Even if we assume that the purpose in itself is proper, the question arises as to whether the means that were chosen to realize the purpose are proper; and whether the extent of the violation, caused by the use of these means, is not excessive. That is the test of proportionality.

 

44.          A statute or an act by an administrative authority fulfills the requirements of proportionality when there is a proper ratio between the purpose that the law or the action are designed to realize, and the means employed to realize the purpose (see, e.g., the Tal Law Case, paragraph 57 of the judgment of President A. Barak). Various considerations assist in considering whether a statute satisfies the proportionality requirement, among which are the nature of the violated right, the extent of that violation and the importance of the values and the interests that the law or the administrative action were intended to realize (see, e.g., the Menachem Case, p. 280). As a rule, the more significant the violation of a right, the more meticulous the examination of proportionality (see, e.g., HCJ 3648/97 Stamka v. Minister of Interior, PB 53 (2) 728, 777 (1999)).

 

                Three subtests help in examining whether a statute or an administrative action fulfills the proportionality requirement: the rational connection test; the least harmful measure test; and the test of proportionality in the narrow sense (see: the Tal Law Case, paragraph 57 of the judgment of President A. Barak and the references therein). These tests are designed to ensure that the violation of the constitutional right, assuming that it is required to promote the proper purpose, is proportional. To that end, we must examine whether, from a factual standpoint, there is a rational connection between the means and the end, in the sense that there is a real probability that the means will accomplish the end; we must examine further whether the means that were chosen violate the constitutional right to a lesser degree; and, finally, we must examine whether there is a correlation between the extent of the benefit that arises from the law or the administrative action and the extent of the violation of the constitutional right.

 

45.          Most of the deliberation on the petition before us will focus on the second and third subtests, because in terms of the rationally connected means, it is reasonable to assume that monthly support by means of the income support benefits given to kollel students who have no income from work improves their financial situation. The second subtest, the least harmful measure test, is designed to examine whether, of all possible measures for realizing the proper purpose, the means with the lesser violation of the constitutional right was selected (see: the Menachem Case, p. 279). In this case, the question is whether it would not have been possible to achieve the financial purpose  which is, in any case, the dominant purpose underlying the Budget Item  with a lesser violation of the right to equality. It is important to note in this context that the least harmful measure test (or “the test of need”) does not require the selection of the least harmful of the means. It is sufficient to show that among the relevant means, it can be said that the chosen means  considering the violated right and the severity of the violation  allowed for a lesser violation of the basic right (the Citizenship Law Case, paragraph 68 of the judgment of President A. Barak).

 

                In the judgment that was rendered in the Israel Investment Managers Association Case, President A. Barak compared that test to climbing a ladder, and stated that “The legislative measure can be compared to a ladder, which the legislator climbs in order to achieve the legislative purpose. The legislator must stop on the rung at which the legislative purpose is achieved, and on which the violation of the human right is the least.” In examining the severity of the violation and whether there is a less severe means by which to attain the purpose of the legislation, the court does not place itself in the shoes of the legislator. The underlying assumption is that there is a margin of proportionality in which there may be a number of ways to attain the purpose of the legislation, from which the legislator can choose one. As long as the chosen way is within that margin, the court will not intervene in the legislator’s decision. The court will be willing to intervene in the legislator’s choice only where it can be shown that the violation is not a lesser one and that the legislative purpose can be attained by utilizing less severe means (see, e.g., Civil Appeal 6821/93 United Mizrachi Bank Ltd. v. Migdal Kfar Shitufi, IsrSC 49 (4) 221, 444 (1995); Israel Investment Managers Association Case, p. 387; HCJ 1030/99 MK Oron v. Speaker of the Knesset, IsrSC is 56 (3) 640 (2002), pp. 666-667).

 

46.          When we examine the Budget Item and the criteria that were formulated in the course of the petition for the purpose of distributing the funds among the kollel students, it is hard to say that the means that were chosen are means that ensure a lesser degree of violation of equality, considering the purpose that the Budget Item is meant to achieve. It is worth reiterating that the Budget Item enables kollel students to receive income support benefits in contravention of the Income Support Law and the regulations promulgated thereunder, pursuant to which groups of students are not eligible for payment of income support benefits. The Budget Item circumvented the provisions of the Income Support Law and established that income support benefits would be given to only one group among the four groups of students to which the benefits are denied. The violation of equality resulting from provision of the benefits to only one group among those belonging to that peer group is significant and severe. The Budget Item devotes itself solely to kollel students, and anyone who is not a kollel student cannot come within the bounds of the Item. The result is that university students or students in a religious institution or in a Torah study institution  even if they are in the same financial situation as kollel students who are eligible for income support benefits, and even if they meet the conditions established in the Income Support Law  are not eligible for benefits. In contrast, their colleagues, the kollel students, are eligible for income support benefits by virtue of the Budget Item.

 

                Would it not have been possible to ameliorate the financial state of the kollel students in a way that would reduce the violation of the principle of equality? As I noted above, in the long series of judgments issued by this court about the distinction between kollel students and other students, the court ruled that where the purpose of the assistance is financial support, tests of equality must be employed that are based on the extent of neediness or financial need, and not on other considerations. For example, in the Elad Case, which dealt, as stated, with preferential treatment in housing for residents of Elad, the court stated:

 

Even if there is a basis for assuming that the ultra-orthodox population has many needs, and that there are many families suffering from financial distress among this community, the level of “eligibility” of apartment purchasers, in terms of financial need and socioeconomic status, must be examined according to uniform criteria for the entire population. The needs of a needy family which, according to its data, should be granted assistance for its housing needs, are determined according to the purpose for which the assistance is given  the socioeconomic need (ibid., p. 514).

 

                In its arguments, the state did not specify the reason for applying a different eligibility test to kollel students and to students in institutions of higher education or yeshiva students. The reasoning whereby the desire to promote Torah study is the basis for the benefit  even if we accept the position that that is actually the purpose of the Budget Item  does not explain the distinction between kollel students and students in religious institutions or other yeshiva students, for example, who are also denied benefits under the Income Support Law. This is particularly true in view of the fact that the criteria for distributing the benefits under the Budget Item are based on economic tests. Since that is the test, what is the point of distinguishing between the different groups of students in a manner that significantly violates the right to equality?

 

                Moreover, a perusal of the provisions of the Income Support Law shows that the financial welfare of specific population groups can be promoted in the conditions set forth in the law, without the need to employ a whole system of separate eligibility conditions. In this context, it is sufficient to mention Section 3 (4) (b) of the Income Support Law, which we discussed above, that enables single parents, who received income support benefits for 16 of the 20 months that preceded their studies, to continue receiving income support benefits during the course of their studies towards an undergraduate degree, subject to the conditions specified in the law. The importance of these arrangements and others like them lies in the fact that they allow for support of a discrete group while preserving the overall framework of the Income Support Law. Within that framework, these arrangements continue to impose on the discrete group the eligibility conditions specified in the Income Support Law, particularly those pertaining to examination of the financial status of the benefit applicant. These arrangements also promote the goal underlying the Income Support Law, to concentrate all the welfare payments that preceded it in one framework, that of the National Insurance Institute. The arrangements listed in the Income Support Law naturally constitute only an example of the type of arrangements that promote the economic welfare of special groups, while they may reduce the violation of the right to equality. There are, of course, other courses of action that the legislator can choose, among them those that are not limited to direct financial assistance, and which could promote the purpose with a lesser violation of the right to equality.

 

                In its responses to the petition, the state endeavored to distinguish between the support given to kollel students under the Budget Item and the income support benefit provided under the Income Support Law. Thus, for example, the state noted the fact that the benefits given to kollel students are significantly lower than those given to others with similar qualifications under the Income Support Law. This distinction attests to the fact that, according to the state, the assistance is proportional, since it is a relatively smaller amount and is not given to all the kollel students, but only to those who meet the eligibility criteria. Indeed, as argued by the state, there are differences between the assistance provided under the Income Support Law and the assistance provided under the Budget Item, but this does not mean that the differences make the means proportional. Indeed, the amount of the monthly benefit given to kollel students may be lower than the amount of the benefit provided under the Income Support Law (which is determined according to the level of eligibility), but even the criteria for calculating eligibility for benefits under the Budget Item, including the conditions under which the monthly income of the kollel student is calculated, which will not impair his right to the benefit, are very different, and allow for receipt of benefits under the Budget Item, even in situations that would have denied the benefits to those eligible for them under the Income Support Law. We should add to this that for many years the benefits were distributed without any orderly, overt and egalitarian criteria, and once the criteria were established after submission of the petition, they were adapted to the unique needs of the kollel students. The differences between the benefits provided under the Budget Item and the income support benefits provided under the Income Support Law do not make the chosen means proportional, but rather the opposite. They exacerbate the inherent problem that exists in the Budget Item  the fact that it was tailored especially to the kollel students in the form of earmarked funds, and in a manner in which conditions were adapted to the nature of the income and family status of the kollel students, in contrast to the Income Support Law, the conditions of which are designed to apply to all benefit applicants in Israel, including kollel students

 

47.          The conclusion is therefore that the Budget Item, under which the income support benefits are paid to kollel students, does not fulfill the second condition of proportionality, which is the least harmful measure test. Naturally, this finding also impacts the conclusion about the third test of proportionality, which examines the correlation between the extent of benefit arising from the law or the action and the extent of violation of the basic right (see HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, IsrSC 58 (5) 807,850 (2004)). The third test examines the results of the legislation or the violative administrative action. It is essentially a normative test, balancing between the benefit in realizing the proper purpose and the violation to the constitutional right.

 

                No one disputes that promoting the welfare of a population with a low socio-economic status is an important purpose that should be promoted. For the sake of discussion, I am also prepared to assume that the financial support for kollel students can encourage Torah study. That is also an important goal, which expresses recognition of the uniqueness of the ultra-orthodox population and the importance of the value of Torah study. However, in view of the severe violation of the right to equality, it cannot be said that there is a reasonable ratio between the severity of the violation and the social benefit deriving from the violation (see: the Menachem Case, p. 279).

 

                Even where the purpose of the legislation is proper and can promote important social goals, there must be assurance that the means chosen to promote it are proper as well. Indeed, the ends do not justify the means. The requirement that the violation of the right be “to an extent that is not excessive,” reflects the accepted constitutional balance in our law, whereby rights are not absolute, but rather relative. Rights, even if they are constitutional rights, are examined in light of the specific violation and against the goal that the violation was designed to achieve. The balance act is not an exact one. It requires a case-by-case examination of the purpose, the means chosen to accomplish it and the extent of the violation of the right. The more significant the right and the greater the violation of that right, the more necessary it is to indicate a real public interest that would justify the violation.

 

                In the circumstances of the case before us, I did not find a proper proportion between the violation of the right to equality and the social advantage deriving from the income support benefit paid pursuant to the Budget Item. Even though there is no dispute that the legislator can promote special populations  whether by means of financial assistance or by recognizing their unique lifestyle  such support must be provided while preserving the rights of other groups in similar situations and while taking into account the gamut of legal arrangements in our legal system. In view of the significant violation of the right to equality  which is a basic constitutional right  the legislator should have examined the use of less harmful means that would reduce the violation of the right. Such an examination was not implemented, inter alia, because of the fact that the assistance was given in the annual budget law.

 

48.          In this context, I wish to address another claim made by the state. In its responses to the petition, the state argued that the violation of equality among the various groups of students should not be examined solely on the basis of the Budget Item, but that the entire gamut of support arrangements relevant to each group should be examined. In principle, I find this acceptable. There are situations in which examination of the support arrangements in general can shed light on the scope of assistance given to a certain group, particularly against the scope of assistance given to other groups (see also HCJ Adalah, pp. 175-176, Justice Y. Zamir). However, in general, the state cannot suffice with this statement without presenting data for our perusal, from which we can examine whether the gamut of support arrangements show that there is no violation of the principle of equality or at least that the violation is proportional. I discussed this in the Commitment to Peace and Social Justice Association Case), which dealt with cutbacks in the rate of income support benefits. The state’s argument there was similar to the argument it has made before us, whereby in order to examine whether the cutback in income support benefits violated the petitioners’ constitutional right to dignity in the sense that their minimum material subsistence conditions were not sufficient, the entire gamut of national and local means must be examined in both primary and secondary legislation, which would support the petitioners and ensure them the minimum required for human subsistence. In my judgment, I noted that “the full information for conducting a comprehensive examination” was in the state’s possession and, therefore, where the petitioners had borne the initial burden of proving the violation, the burden of proof for the existence of the gamut of means and allocations that could prove the absence of violation passes to the state at the first stage of the constitutional examination (ibid., pp. 491-492). In the petition at hand, the state did, indeed, mention the subsidized tuition in institutions of higher education and the mechanisms of the aid and scholarship funds available to students as examples of the direct and indirect support given to students. But this information was extremely general and did not indicate the extent of the assistance provided to the students. The state also did not provide any information on the extent of the overall assistance given to kollel students in a way that would enable us to make a comparison between all the assistance provided to each one of the groups.

 

49.          These circumstances lead to the conclusion that the Budget Item violates equality and does not meet the conditions of the limitations clause. It is important to note that our conclusion does not mean that the legislator cannot support a specific population group in a manner that enables it to preserve its uniqueness. Such support expresses an ideological societal choice to enable individuals to belong to a community and to preserve their lifestyles and values in the community  including values such as encouraging the study of Torah. I discussed that in the Elad Case and I held that for the purpose of allocating land, the option of allocating separate housing to groups with special characteristics “is consistent with the outlook that recognizes the right of minority communities to preserve their uniqueness if they wish to do so; this is an outlook that represents an approach that is now widespread among jurists, and societal and educational experts, whereby the individual is also entitled  among his other rights  to realize his affiliation to the community and its special culture as part of his right to personal autonomy” (ibid., pp. 508-509; see also in this context the words of Justice SA. Procaccia in the Tal Law Case). However, even if the allocation of resources to a distinct population group is not invalid in itself, it must be done legally and in accordance with the principles of Israeli constitutional law. Among other things, the allocation must be implemented according to egalitarian criteria, without discrimination, and taking the gamut of existing arrangements in the legal system into account.

 

Summary

50.          The discussion on the legality of the Budget Item in the petition at hand focused, as stated, on the normative framework that dominates the annual budget laws and, primarily, the provisions of the Foundations of Budget Law. We have found that the Budget Item violates the obligation to distribute the state funds equally, an obligation that was established in a long series of rulings by this court and is also anchored in Section 3A of the Foundations of Budget Law. We also ruled that a provision in the annual budget law that conflicts with a substantive provision in the Foundations of Budget Law and violates a basic right, cannot stand. We noted, however, that judicial review on the budget legislation, in view of the unique characteristics of the annual budget law, should be restrained and implemented with attention, inter alia, to the right that is violated and to the extent of that violation.

 

51.          In the petition before us, we have found that the Budget Item is a disproportionate violation of the right to equality. Therefore, the Budget Item, which is the subject of the petition before us, cannot stand. In the circumstances of the matter, I will propose to my colleagues that we order that the Budget Item will remain in place as it appears in the annual budget laws for 2009 and 2010, which were established as part of a biennial budget, however, it cannot continue to be included  at least not in its present format  in future budget laws. If the legislator should wish to continue to support all or some of the kollel students, he will have to reexamine the arrangement, subject to the judgment. If we have seen fit not to cancel the Budget Item on the spot, we have done so in an effort to reduce the impairment to the interests of the benefit recipients who rely upon it. We cannot ignore the fact that the benefits have been paid to kollel students for over two decades, and the immediate cessation of payments would cause harm to an impoverished population. Presumably, the families of the kollel students receiving benefits rely on those benefits in calculating their monthly income for the purpose of basic subsistence. Therefore, we have seen fit to enable them to prepare to find alternative sources of income.

 

 

 

52.          However, not only the reliance interest leads to the conclusion that the Budget Item in the present budget law should not be canceled. One of the problems arising from the fact that the income support payment arrangement for kollel students has been included in the annual budget laws is that no comprehensive examination of it; of the purpose underlying the arrangement; the precise definition of the target population; the conditions for denying eligibility or the ramifications entailed in providing the benefits to a particular group in contrast to other groups that are not eligible for similar benefits has been made. Therefore, the decision to refrain from declaring the immediate cancellation of the Budget Item is also motivated by the desire to enable the legislator to examine the gamut of existing arrangements, thereby giving the Knesset time to conduct practical discussions on the issue.

 

53.          In conclusion, for the reasons set forth above, we have found that the Budget Item disproportionately violates the right to equality. Taking into account all the circumstances in the matter, we do not see fit to order the immediate cancellation of the Budget Item. The Budget Item in its present form cannot be included in the next budget law. If the legislator should choose to support kollel students, he will have to do so while heeding all the existing legal arrangements and taking into account all the reasons specified in this judgment.

 

54.          Therefore, the petition is accepted. Budget Item no.

20-38-21 will continue to remain in effect as set forth in the biennial budget law for 2009 and 2010. The order nisi will become absolute in the sense that as of the 2011 budget year, the support will not be given to kollel students under the Budget Item in the annual budget law.

 

                                The President

Justice M. Naor

                I concur with the judgment of my colleague, the president.

 

                                Justice

Justice S. Joubran

                I concur with the comprehensive judgment of my colleague, the president.

 

                                Justice

Justice A. Procaccia

                I concur with the judgment of my colleague, President Beinisch, and with her conclusion that the arrangement under which income support benefits are paid to kollel students under a Budget Item is illegal and unconstitutional, as it is inconsistent with the principle of equality, and does not pass the test of the limitations clause in the Basic Law: Human Dignity and Liberty.

 

1.            The distinction between kollel students and other students in educational institutions in Israel with regard to income support monies, under the current legal arrangement, is an exemplar of a broader, more general question. The broader question deals with the profound dilemma between the obligation of a multicultural society to recognize and respect the unique character of various population segments living in its midst, notwithstanding their differences, and the basic principle, which is among the foundations of the state’s existence, that obligates all citizens of the state, whoever they may be, to assume the basic values of the government and to bear the burden of the responsibility and the basic obligations that must be borne by every citizen, as a vital and fundamental condition for the existence of a democratic society. The necessity of maintaining a full partnership in bearing the burden of civic responsibilities and obligations is the main link connecting the various population segments, despite their points of uniqueness and the differences between them, and it ensures the existence of a basic common denominator that unifies all parts of the population, which enables the existence of social harmony while safeguarding sectoral singularity. The need to bridge the gap between sectoral uniqueness and egalitarian partnership in bearing the burden of civic responsibilities and obligations is at the heart of this petition. It is about drawing the boundaries between providing protection and public support and funding toward sectoral uniqueness, and maintaining the principle of equality that applies to members of all sectors in bearing the basic burdens of existence, and fulfilling other civic obligations imposed on every person in society, including serving in the army, paying taxes, and incorporating into education the basic values of the state, including basic concepts of universal thought.

                               

2.            The protection of sectoral uniqueness is the right and, perhaps, the duty of a democratic society, which must recognize the existence and needs of communities with cultures, traditions and lifestyles of their own which live in its midst. The diverse human fabric of a free society is consistent with the existence of multicultural groups, with their own characters and styles, which wish to preserve their unique ways of life. However, within the variegated and multifaceted sectoral structure, there is a connecting link that unifies all of the communities, which endeavors to make them into one reference group. This link reflects the basic values shared by all sectors, which are part of the physical and ideological foundation of the state. Among these values are the foundations of the constitutional system and the character of the state as Jewish and democratic. Another aspect of this link is a joint responsibility to bear the burden of individual and collective existence, without which a society cannot exist. Within this shared responsibility lies the obligation of every sufficiently capable person to see to his own existential needs and to the needs of those who are dependent upon him, and to fulfill other civic obligations, including the obligation to serve in the army, the obligation to impart through education certain core values which are common to all those who are raised and educated in Israel, and other basic obligations vis-à-vis the state, which are shared by all sectors of society.

 

3.            The principle of equality is a basic value in the law; it prohibits discrimination among equals and unequal and unfair treatment among those who deserve the same treatment. It is based on the concept of relevance that prohibits differentiating between people or matters for irrelevant reasons, but permits distinctions for relevant reasons. Equality does not require identical arrangements, and sometimes, in order to attain it, differential treatment is, in fact, called for.

 

4.            The allocation of state funds for various objectives is subject to the requirement of equality and must be rooted in pertinent considerations and in clear and explicit criteria. It must be carried out according to “the considerations of the subject matter and not the considerations of the interested party” (HCJ 59/88 Tzaban v. Minister of Finance, IsrSC 42 (4) 705, 706-7 (1989)).

 

5.            A social policy that grants support to needy communities that are worthy of reinforcement in various areas of life may stand the constitutional test of the principle of equality when it is designed, in essence, to promote their status, to strengthen them, and to open before them possibilities for genuinely attaining equal opportunities in relation to other sectors of society. The provision of such reinforcement is designed to promote inter-sectoral equality, while respecting and preserving the community’s unique attributes. In this sense, the achievement of equality sometimes justifies differential treatment on the part of the state.

 

6.            It is another matter when state support is granted to a certain sector in the society, not in order to help it to advance toward full equality between itself and other sectors, but rather to free its members from certain components of the joint responsibility that applies to all citizens of the state. Such support is not designed to strengthen a weak community on its path toward achieving the hoped for social equality. It impairs the common denominator that unifies all sectors of the population, despite their dissimilarities; it undermines the basis that is common to all members of society, which supports the assumption that every sufficiently capable person, whoever he may be, must see to his basic subsistence and not burden the public to provide his needs, and must also fulfill his other civic duties to his state, such as serving in the army, paying taxes, and imparting educational values that belong to the basic core common to all sectors. This common denominator is the factor that unifies all sectors of the population, and its existence is contingent upon its egalitarian application to every person. This rule can only be infringed in rare and exceptional cases of an individual’s inability to carry his share of the joint responsibility, or when a considerable state interest justifies an exception to the rule, according to the established tests of the limitations clause.

 

                Sectoral uniqueness does not constitute a cause for infringing the common responsibility that applies to all sectors of the multicultural society.

 

7.            The ultra-orthodox community is markedly different from other population sectors in its spiritual outlook and in the lifestyle of its people. It is characterized, inter alia, by its commitment to learning Torah, as part of an internal belief that this is a necessity for the spiritual and physical existence of the Jewish people. This viewpoint is not limited to the sphere of faith and religion. It affects the lifestyles of the members of the ultra-orthodox community, many of whom view Torah study as an absolute value that is vital to safeguarding the existence and uniqueness of the Jewish people. This outlook has led to great divergence between the ultra-orthodox community and the other sectors, and to its segregation from the national life of Israeli society.

 

8.            Notwithstanding the singularity of the ultra-orthodox community in its ideological and religious outlook and lifestyle, members of the community are obligated to share equally in national responsibilities and in all of the civic duties borne by all members of the Israeli public. Without full partnership in this responsibility, the equality among the various sectors is impaired at the central link that ties them together, the social structure fractures, and the soundness of the regime weakens at its core.

 

9.            The Income Support Law, 5741-1980, and the regulations promulgated thereunder, establish that students in institutions of post-secondary education and students in yeshivot and Torah study institutions are not eligible for income support benefit payments. Underlying this rule is the assumption that the public resources intended to finance income support payments for the needy are limited by their very nature. Within the priorities that the state saw fit to determine in this area, students in institutions of post-secondary education were not made eligible for state income support funds, on the assumption that as young people who, for the most part, are not yet responsible for families of their own, they will be able, perhaps with the assistance of their immediate families, to provide for their basic subsistence for the duration of their studies. According to the policy that underlies the law, there is no justification for the state’s providing students’ needs during their studies at the cost of reducing the assistance granted to other needy persons whose welfare situation justifies greater government support. The Budget Item that arranges for income support payments to kollel students assumes, as a starting point, that while a student in a general educational institute is expected to provide for his own basic subsistence during his studies, that is not the case with regard to a kollel student, who is entitled, under the Budget Item, to government financed income support, thereby circumventing the general policy implemented with regard to all students, and thwarting the universal egalitarian arrangement which is prescribed by the law.

 

10.          The fact that the kollel students belong to a unique community, which sanctifies Torah study as a fundamental part of its existence, cannot justify a violation of the basic equality among all citizens of the state at the site of the common link that connects them all. In this case, this link ties together the students of all post-secondary educational institutions spread throughout all sectors of society. This link is based, inter alia, on the assumption that it is the duty of every person and, in this case, every student, to provide for his own basic subsistence, and that this duty is common to all, and the general public is not expected to shoulder the burden of these individual needs, except in exceptional cases of inability or inherent neediness. If the state chooses to assist citizens in bearing the burden of their personal subsistence at a certain stage in their lives, such assistance must be granted on an equal basis. The creation of a profound gap in this area between members of the ultra-orthodox community and all the other citizens of the state is not based on a relevant difference that justifies a permissible distinction, which would allow for the creation of different rules for the ultra-orthodox community and for other sectors. This gap reflects unequal treatment by the state, which amounts to prohibited discrimination among students of different sectors, all of whom are subject to the same duty to bear the burden of their personal subsistence throughout their studies. The uniqueness of the members of the ultra-orthodox community, and their commitment to the study of Torah, do not justify a discriminatory arrangement that favors them. The discriminatory rule that is the subject of this petition does not stand the test of the democratic process, which is built on maintaining a mandatory common denominator among various population groups, while respecting their ideological independence.

 

11.          The borderline between the recognition of sectoral uniqueness and the duty to sustain equality among all sectors is therefore drawn around the point that holds all population groups together: it runs through the common link shared by all citizens of the state as to certain basic responsibilities and obligations that they owe to society. As a rule, a nonegalitarian and discriminatory arrangement cannot legitimately be created in these areas, for it would undermine the common foundation for the harmonious existence of a multicultural society.

 

12.          Unlike other areas, in which the attainment of equality in bearing the burden of civic obligations sometimes requires a prolonged, gradual process, in this case, the achievement of equality calls for the cancellation of the discriminatory preference that was implemented in contravention of the law and the constitutional principle of equality, while allowing for a transition period that is intended to mitigate the harm to the reliance interest of those who have thus far benefited from preferential treatment.

 

 

                I concur with the fundamental position of the president, and with her proposal on the operative level, to allow for a transition period before the discriminatory preference is cancelled.

 

                                Justice

Justice E. Hayut

                I concur with the judgment of my colleague, President D. Beinisch and the comments of my colleague, Justice A. Procaccia.

 

                                Justice

 

Justice A. Grunis

                I concur with the comprehensive judgment of my colleague, the president.

 

                                Justice

 

Justice Edmond E. Levy

1.            The budget law reflects a policy and objectives that it wishes to achieve and, as we know, the establishment of this policy was given to the government and the Knesset, not to the court. In this matter, case law shows that “The legitimate considerations, which, when mixed together, lead, at the end of the year, to the establishment of a budget for the subsequent year, are so numerous and so disparate that it seems that only in special cases is the court likely to order the cancellation of a provision in the budget law. The weighting of all those considerations that make up a budget law  including determining the priorities  were given essentially to the Knesset and to the government within the scope of general policy and, in any case, the intervention of the court will be limited. If the court comes to cancel budget law items  as in the petitioners’ petition  it must be convinced that those provisions mortally wound the rights of the individual, that there is no other remedy for the individual than the revocation of the law; in such a case, the law will cry out that it has failed to establish its right to exist” (HCJ 240/98 Adalah v. Minister of Religious Affairs, IsrSC 52 (5) 167, 190 (1998).

 

2.            The state, by virtue of that policy, may grant or not grant support funds. The state is empowered to provide or not to provide support grants for certain activities and, in providing a particular activity with a grant,  the amount of money that it will provide (HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs, IsrSC 53 (5) 337, 38 (1999)). Naturally, the state must exercise the discretion granted to it in the area of support funds, as in any other area, with fairness and reasonableness, and preserve the norms of administrative law (HCJ 5264/05 Yeshivat B’nei Shomron v. Minister of education, Culture and Sports, unpublished, 2005). Therefore, it is understood that a norm which is established within that same authority must be egalitarian, because, if not, it is a discriminatory norm, the use of which will lead in practice to a nonegalitarian result.

 

3.            The principle of equality is one of the basic principles of a constitutional government. It is an inherent value of a constitutional government and of the judicial review of administrative actions (HCJ 6671/03 Munjid Abu Ghanem v. Ministry of Education, IsrSC 59 (5) 577, 588; HCJ 98/69 Bergman v. Minister of Finance, IsrSC 53 (1) 693; HCJ 637/89 Constitution for the State of Israel v. Minister of Finance, IsrSC 46 (1) 191 (1991)). Prohibited discrimination that contradicts the value of equality means different treatment for equals, and unequal and unfair treatment for those who deserve equal treatment. Inequality is expressed by the creation of a distinction between one person and another or between one matter and another for irrelevant reasons. In contrast, a practical difference between them may justify a distinction between them, provided that the distinction is based on a relevant foundation (HCJ 678/88 Kfar Vradim v. Minister of Finance, IsrSC 43 (2) 501, 507 (1989); HCJ 6051/95 Recanat v. National Labor Court, IsrSC 51 (3) 289, 312 (1997); HCJ Further Hearing 4191/97 Recanat v. National Labor Court, IsrSC 54 (5) 330 (2000); HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Public Security, IsrSC 58 (2) 358, 365 (2004)).

 

                As we know, a certain norm is discriminatory even if it is not based on a discriminatory intention of the creator of the norm (HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz, IsrSC 48 (5) 749, 764 (1994); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel et al. v. Prime Minister, unpublished, 2006; HCJ 2671/98 Israel Women's Network v. Minister of Labor and Social Affairs, IsrSC 52 (3) 630, 654). Moreover, in certain circumstances, an infringement of equality also constitutes the violation of a constitutional right (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, paragraphs 36-40 in the opinion of President Barak, unpublished, 2006; HCJ 9722/04 Polgat Jeans Inc. v. Government of Israel, unpublished, 2006), and, therefore, it is necessary to examine whether the violation meets the test of the limitations clause in Section 8 of the Basic Law: Human Dignity and Liberty (HCJ 3434/96 Hoffnung v. Speaker of the Knesset, IsrSC 50 (3) 57 (1996); the aforementioned HCJ 11163/98, paragraph 22 in the opinion of President Barak).

 

4.            The study of Torah is a commandment in the Bible:

“And now, O Israel, give heed to the laws and rules that I am instructing you to observe, so that you may live to enter and occupy the land that the Lord, the God of your fathers, is giving you.” (Deuteronomy 4:1); “Take to heart these instructions with which I charge you this day. Impress them upon your children. Recite them when you stay at home and when you are away, when you lie down and when you get up.” (Deuteronomy 6: 6-7); At the end of the “He’ezinu” psalm, Moses instructs the people to teach their children “…that they may observe faithfully all the terms of this Torah. For this is not a trifling thing for you: it is your very life; through it you shall long endure on the land that you are to possess upon the crossing of the Jordan.” (Deuteronomy 32: 46-47); And the book of Joshua states: “Let not this Book of the Torah cease from your lips, but recite it day and night, so that you may observe faithfully all that is written in it. Only then will you prosper in your undertakings and only then will you be successful.” (Joshua 1: 8). And the Talmud lists the things whose fruits a person enjoys in this world, but whose principal remains intact for him in the World to Come, among which are honoring one’s father and mother, acts of kindness, early attendance at the house of study, hospitality to guests, visiting the sick, study and prayer. “And the study of Torah is equivalent to them all.” Shabbat 127a [Babylonian Talmud].

 

5.            The commands that I have cited from the Biblical sources have brought many people to view Torah study as the essence and purpose of life, and they devote to it all their time with a dedication that knows no bounds, and with the profound belief that, in this manner, they are preserving the world. And even if there are those who disagree with this outlook, it appears that we cannot deny the fact that Torah study, which did not cease, even when the Jewish people were exiled from their land, made a decisive contribution to preserving it as a nation and preventing its assimilation among the nations. Therefore, this is a unique group, which has chosen a lifestyle that is almost ascetic and which views Torah study as a mission and not part of a time-limited process for acquiring a profession which also may bring financial gain in the future. This means that the component of maximizing earning capacity on which the Income Support Law is based is not applicable to the case of those studying Torah, for whom Torah study is their profession.

 

6.            The debate about the question of whether the livelihood of those who study Torah should be borne by the public is not new. However, in this case, it is important that the people of Israel, through their elected representative  the Knesset and the government  believe that this question should be answered in the affirmative. This is an ideological decision based on recognition of the fact that the study of Torah is vital to the people of Israel, and I do not believe that the court is entitled to change that, particularly since extremely modest amounts have been allocated to that end, which are intended to enable only basic subsistence and no more than that. The other question is, of course, whether that decision is discriminatory and that can be answered in the negative since, as stated, there is a substantive relevant difference between those who study Torah and the related group on which+ the petition relies. Above and beyond the requirement, I will add that even if I believed that the allocation of funds is not egalitarian, I would propose denying the petition because the provision in the Law meets the test of the limitations clause, and the emphasis is on the extent of the proportionality. As stated, the amounts that were allocated for supporting the kollel students are extremely modest, and even those were contingent upon meeting the conditions of eligibility. In contrast, other groups that are in the process of training to acquire a profession receive various benefits, both direct and indirect, to which those who study Torah are not entitled, such as scholarships, grants, loans and subsidized housing.

 

                In view of that stated, and if my opinion were to be heard, I would deny the petition.

 

                Justice

               

 

Decided as stated in the judgment of President D. Beinisch, with the concurrence of Justices A. Procaccia, A. Grunis, M. Naor, S. Joubran and E. Hayut and, in opposition, the dissenting opinion of Justice E. E. Levy, to allow the petition in the following manner: the order nisi will become absolute in the sense that as of the 2011 budget year, the support to kollel students will no longer be provided under Budget Item 20-38-21 in the annual budget law. This Budget Item will remain in effect as set forth in the biennial budget law for 2009 and 2010.

 

 

Given this day, 2 Tamuz 5770 (June 14, 2010)

 

The President    Justice  Justice  Justice

 

Justice  Justice  Justice

 

_________________________

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

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

HCJ 5492/07

HCJ 7677/07

HCJ 4820/08

 

Petitioner in 5492/07:                     Smadar Boaron

Petitioner in 7677/07:                     Noah Kariv

Petitioners in 4820/08:                                                   1. Malka Stier

                                                                                2. Shulamit Gabay Galoni

                                                                                3. Cheli Juliet

 

v.

National Labour Court

National Insurance Institute       

 

The Supreme Court sitting as the High Court of Justice

[21 July 2009]

 

Before President D. Beinisch, Deputy President E. Rivlin, and Justices A. Procaccia, E. Levy, E. Arbel, E. Hayut, H. Melcer

 

Petitions for an order ¬nisi and for an interim order.

 

Facts: Four widows who had each been receiving either a dependents allowance or a survivors allowance in accordance with the provisions of the National Insurance Law [Consolidated Version], 5755-1995, received notices from the National Insurance Institute indicating that their allowances had been discontinued — as of the time that the Institute had determined that each had begun living together with a new partner in a common-law marriage.  After the relevant regional labour courts ruled in favor of the petitioners, the National Labour Court upheld the discontinuation of the allowances for all of them.

Held: The National Labour Court’s decision involved no substantive legal error requiring the intervention of the High Court of Justice. Sections 255 and 262 of the National Insurance Law refer to the discontinuation of a survivor’s allowance to a widow who has remarried; s. 135 refers to the discontinuation of a dependents allowance to a widow who has remarried. Neither section refers specifically to remarriage in the context of a common-law relationship. However, the statute’s definitional section specifically defines a wife as including a common-law wife, and it is this definition that entitles a woman whose common-law husband has died in either a work accident or of natural causes to receive the relevant type of allowance on the same ground that an “official” widow receives such an allowance. The question to be decided, therefore, is whether the provisions relating to the discontinuation of the allowance upon remarriage, as outlined in the above-mentioned sections, apply to widows or widowers who have entered into common-law relationships as well as to those who have officially remarried.

The statute must be interpreted in light of its purpose and in light of its specific language. The purpose of both allowances is to provide financial support to a person after the death of his or her partner whose income had provided support; this support is discontinued at the time of a remarriage under the assumption that the new couple will be pooling income and sharing expenses and that the support from the National Insurance Institute is no longer necessary. This is also why the allowance is generally renewed if the second marriage ends within a certain period of time. This purpose supports the cancellation of benefits to widows and widowers who have entered into common-law relationships, as they too are benefiting from the financial aspects of a shared household, given that the existence of such a shared household is a prerequisite for a determination that a relationship reaches the level of a common-law marriage.

The petitioners had argued that common-law relationships and official marriages should not be deemed comparable in terms of the level of support provided, due to the relative instability of a common-law relationship which has not been formalized through a wedding ceremony. This argument fails because the statutory provisions regarding the renewal of allowances upon the conclusion of a remarriage would also apply to the termination of a common-law relationship, so that the supposed relative instability of the latter form of relationship is not a relevant consideration.

The statutory language also supports the determination that a common-law wife should lose her entitlement to a survivors or dependents allowance. The definition of a wife in the definitional section expressly refers to a common-law wife, and nothing else in the text of the statute contradicts the inclusion of a common-law relationship within the definition of remarriage. The fact that the provisions pertaining to the cancellation of a right to an allowance refer to specific dates such as the date of a marriage or of the dissolution of a marriage does not conflict with this interpretation; the National Insurance Institute is able to make determinations regarding the beginning and ending of a common-law relationship as well, albeit not as easily as in the case of an official marriage.

Petitions denied.

Legislation cited:

 

Basic Law: Human Dignity and Liberty.

Civil Wrongs Ordinance [New Version], 5728-1968.

Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950.

Income Support Law, 5741-1980.

Inheritance Law, 5725-1965.

Interpretation Law, 5741-1981, s. 2.

Names Law, 5716-1956.

National Insurance Law [Consolidated Version], 5755-1995, ss. 1, 130(b), 135(a)-(c), 238, 255(b)-(d), 262.

National Insurance Regulations (Dependents allowance for Remarried Widows), 5737-1976.

Public Service Law (Pensions) [Consolidated Version], 5730-1970.

Israeli Supreme Court cases cited:

[1] HCJ 6522/06 Kochavi v. the Jerusalem Labour Court (2009) (not yet reported).

[2] HCJ 8929/08 Ben Nun v. National Labour Court (2009) (not yet reported).

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

[4] HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. Jerusalem Labour Court [2003] IsrSC 57(6) 810.

[5] HCJ 5666/03 Kav LaOved Organization v. National Labour Court (2007) (not yet reported).

[6] MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[7] CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [1999] IsrSC 55(1) 12.

[8] CA 8569/06 Director of Land Taxation, Haifa Office v. Polity (2008) (not yet reported).

[9] CA 3622/96 Hacham v. Kupat Holim “Maccabi” [1998] IsrSC 52(2) 638.

[10] FH 40/80 Kenig v. Cohen, [1982] IsrSC 36(3) 701.

[11] LCA 3899/04 State of Israel v. Even Zohar (2006) (unreported).

[12] HCJ 6247/04 Gorodetzki v. Minister of Interior [12],(2010) (not yet reported).

[13] AAA 4614/05  State of Israel v. Oren (2006) (unreported).

[14] CA 1966/07 Ariel v. Egged Members Pension Fund Ltd (2010) (unreported).

[15] HCJ 2316/05 A v. National Labour Court (2005) (unreported).

[16] HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court (2010) (not yet reported).

[17] HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [1988]  IsrSC42(2) 309.

[18] HCJ 6427/02 Movement for Quality Government v. Knesset (2006) (unreported).

[19] HCJ 4124/00 Yekutieli v. Minister of Religion (2010) (not yet reported).

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

[21] CrimA 4341/99 Vidal v. State of Israel [1999] IsrSC 54(3) 329.

[22] CA 2622/01 Director of Land Appreciation Tax v. Levanon [2002] IsrSC 57(5) 309.

[23] CA 165/82 Kibbutz Hatzor v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[24] CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [1994] IsrSC 48(5) 353.

[25] HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [2004] IsrSC 59(2) 134.

[26] HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense (2006) (unreported).

[27] HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health (2008) (not yet reported).

[28] HCJ 693/91 Efrat v. Director of the Population Registry [1993] IsrSC 47(1) 749.

[29] HCJ 6304/09 Lahav v. Attorney General (2010) (not yet reported).

[30] CA 233/98 Katz v. Keren Makefet [2000] IsrSC 54(5) 493.

 

Labour Court cases cited:

[31] NLC 54/85-0 Ornan v. National Insurance Institute [1994] ILC 27 400.

[32] NIIApp1407/04 NII v. Friman (2006) (not yet reported).

[33] NIIApp 731/07 Kirshner v. NII (2009) (not yet reported).

[34] NIIApp 1212/04 Apter v. NII  [2005] ILC 40 461.

[35] NLC 30/19-0 NII v. Mano [1970] ILC 2 (1) 72.

[36] NLC 52/69-0 Leon v. NII [1992] ILC 24(1) 458.

[37] NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [1994] ILC 27(1) 135.

[38] NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi (1997) (unreported).

[39] NIIApp 1169/01 Avital v. NII (2004) (unreported).

[40] NIIApp 779/06 NII v. Wolkowitz (2008) (not yet reported).

[41] NLC 56/255-0 Atar v. NII [1997] ILC 32 385.

 

For the petitioner in HCJ 5492/07 — T. Shilo.

For the petitioner in HCJ 7677/07 — N. Ashar; N. Weinberg-Eyal.

For the petitioners in HCJ 4820/08 — Y. Sirota; O Turner-Sternberg.

For respondent 2 — O. Rosen-Amir; T. Kazari.

 

 

JUDGMENT

Justice E. Hayut

Is a widow, who has not officially remarried but who is living as a common-law wife, to be treated as a widow who has remarried and is therefore no longer entitled to a survivors or a dependents allowance? This is the main question we face in the petitions that have been joined here for the purpose of deliberation.

The petitioners

1.            The petitioner in HCJ 5492/07, Ms. Smadar Boaron (hereinafter: “Boaron”), was widowed on 27 October 1996 and began receiving a dependents allowance from respondent 2 (hereinafter: “the NII” or “the Institute”). In 1998, Boaron began to live with her current partner, Mr. Tzachi Fink (hereinafter: “Fink”), first in a rented apartment and later in an apartment that the two purchased together in Rishon LeZion. Boaron and Fink never married (Boaron has stated that she did not feel confident regarding a marriage to Fink because he is five years younger than she is), but approximately eight years ago, she attached the name Fink to her family name. Two children were born to the couple — a son on 14 July 1999, and a daughter on 21 August 2003. On 16 May 2004, the NII informed Boaron that in light of information it received regarding her case, it considered her to be a “married woman” as of 14 July 1999 (the date on which the couple’s son was born), that her entitlement to a dependents allowance had therefore expired and that she was instead entitled to a one-time grant. After delivering this notice, the NII stopped paying Boaron a dependents allowance, and it deducted, from the one-time grant it paid to her, the amount of the allowances paid to her since the day as of which, as stated, the NII considered her to be a married woman.

2.            The petitioner in HCJ 7677/07, Ms. Noah Kariv (hereinafter: “Kariv”), was widowed on 15 July 1998 and began receiving a survivors allowance from the NII. Kariv lives with her life partner, Mr. Eliezer Lavie (hereinafter: “Lavie”), in his home on Kibbutz Ein Hashofet (hereinafter: “the Kibbutz”). On 1 August 2002, in order to arrange the mutual rights and obligations resulting from Kariv’s residence on the Kibbutz, the couple signed an agreement with the Kibbutz, according to which all of Kariv’s financial affairs would be conducted through Lavie’s personal budget, and he would be responsible to the Kibbutz for all her obligations. In a letter dated 24 February 2005, the NII informed Kariv that her survivors allowance had been revoked retroactively, from 1 August 2002, the date on which the said agreement with the Kibbutz was signed. The letter also informed her that she was entitled to a one-time grant instead of the allowance.

3.            Petitioner 1 in HCJ 4820/08, Ms. Malka Steir (hereinafter: “Steir”), was widowed on 8 March 1981 and began receiving a dependents allowance from the NII. Steir’s husband was killed in a work accident when serving as first mate on the ship Masada, which sank, and their son was born after his death (on 9 November 1981). At some point, Steir began to live with Mr. Eli Tasman, and their daughter was born on 10 April 1989. In March 2004, the NII informed Steir that it would no longer pay her a dependents allowance because it considered her to be a “married woman” as of 18 September 1994 (the date on which the National Labour Court rendered a decision in NLC 54/85-0 Ornan v. National Insurance Institute [31], to which I will refer below).

4.            Petitioner 2 in HCJ 4820/08, Ms. Shulamit Gabay Galoni (hereinafter: “Gabay Galoni”), was widowed in February of 1980 and began receiving a dependents allowance from the NII for herself and for her two daughters. After her daughters grew up, Gabay Galoni continued to receive a dependents allowance for herself only. Gabay Galoni has been living with Mr. Meir Galoni since 1991 and two children have been born to them — a son on 10 September 1991 and a daughter on 1 February 1993. The couple has no agreement between them. In May of 2003, the NII stopped paying the dependents allowance to Gabay Galoni, and a month later they informed her that the payment had been discontinued because the NII considered her to be a “married woman” as of 18 September 1994 (the date on which, as stated, the said decision was rendered in Ornan v. National Insurance Institute [31]).

5.            Petitioner 3 in HCJ 4280/08, Ms. Cheli Juliet (hereinafter: “Juliet”), was widowed in 1991 and began receiving a survivors allowance from the NII. Juliet has lived with Mr. Yigal Erez (hereinafter: “Erez”) since 1998. On 18 October 2004, the NII informed Juliet that her entitlement to a survivors allowance had ended as of 1 February 1998, the date on which she became Erez’ common-law wife. The NII also informed Juliet that because the payment of the allowance had been discontinued, she owed a debt in the amount of NIS 54,231; however, on 28 June 2005 it notified her that this debt had been cancelled. In any event, the NII discontinued its payment of a survivors allowance to Juliet as of 1 March 2004.

In light of the NII’s decision to discontinue its payments of survivors allowances and dependents allowances to these petitioners, they filed claims in the regional labour courts that focused on the question of whether a widow who has not remarried but who lives as a common-law wife is entitled to continue receiving a survivors allowance or a dependents allowance from the NII.

The judgments in the regional labour courts

6.            On 10 October 2005 the Nazareth Regional Labour Court allowed Kariv’s claim, and held that ss. 255 and 262 of the National Insurance Law prescribe the circumstances under which a remarried widow’s entitlement to a dependents allowance ends and those under which a remarried widow’s entitlement is reinstated. The court also held that the legislature had chosen to use “phrases that refer only to the world of marriage, in its original and narrow meaning.” The Nazareth Regional Labour Court also held that the denial of a spouse’s rights was not possible without an express statutory provision and that —

‘… the application of the provisions of s. 255 of the [National Insurance] Law to a “common-law wife/husband” requires additional changes in the section, apart from changing the word “married woman” wherever it appears to “common-law wife”; therefore, and in view of the case-law rule regarding a common-law wife/husband, it cannot be that this obstacle can simply be removed in some way other than a legislative change.’

On 20 May 2007, the Haifa Regional Labour Court joined in this holding and ruled in favor of Juliet. The court held that since the legislature had used clear language, according to which only a remarried widow would lose her entitlement to an allowance —

‘We cannot accept the argument that a widow who has begun a relationship with a new partner without formally marrying him is no longer entitled to a survivors allowance. Since the legislature determined that entitlement to an allowance lapses only upon the widow’s remarriage, only the act of marriage can cancel her right to an allowance, and no other act — including her becoming the common-law wife of another man — can do so.’

The court referred in its judgment to the decision of Vice President Elisheva Barak Ososkin in NIIApp  1407/04 National Insurance Institute  v. Friman [32], and held that “when there is no commitment by way of marriage, a person who has a common-law husband should not lose entitlement to a survivors allowance, because the institution of common-law marriage is not a stable one.”

7.            Regarding s. 135 of the National Insurance Law, the Tel Aviv-Jaffa Regional Labour Court granted Boaron’s claim against the NII, and held that according to the National Insurance Law [Consolidated Version] 5755-1995 (hereinafter: “the National Insurance Law”), entitlement to a dependents allowance expires only upon a widow’s remarriage and that “only the act of marriage will cancel [the widow’s] entitlement to the allowance, and no other act will do this, including her becoming another person’s ‘common-law wife’”. The Regional Labour Court held further that in light of the statutory language, s. 135 of the National Insurance Law cannot be applied to a widow who has become the common-law wife of another man, and noted that the section deals with the “specific dates on which a widow’s entitlement to a dependents allowance lapses or is renewed, and all those dates refer to the date of the marriage”; furthermore,  “regarding a person who is a common-law wife, it is clear that the dates of the beginning of the relationship, as well as its end, are not formal and clear, and therefore they cannot fall within the framework of the said section.” The Regional Labour Court rejected the NII’s claims that the National Labour Court’s holding in Ornan v. National Insurance Institute [31] supports the said interpretation of s. 135 of the National Insurance Law, and held that in the case before it, “the terms that are repeated, and under which the expiration of entitlement to an allowance, and the entitlement to a grant, are tied to specific dates, which are connected to the marriage process — all these lead me to the conclusion that the legislature’s intention regarding this section, given that it used the term “married”, was to refer to official marriage, and not to the institution of “common-law spouses”. In the end, the Regional Labour Court held that the same result will be reached upon a comparison to the Families of Soldiers Killed in Action Law (Pensions and Rehabilitation), 5710-1950 (hereinafter: the “Families of Soldiers Killed in Action Law”).

On 7 February 2006, the Haifa Regional Labour Court granted Gabay Galoni’s claim, referring, inter alia, to the judgment rendered in Boaron’s case. On 10 May 2006, the Tel Aviv-Jaffa Regional Labour Court also adopted this position in granting Steir’s claim against the NII.

The NII appealed all these decisions to the National Labour Court.

The judgments in the National Labour Court

8.            On 28 March 2007, the National Labour Court (President S. Adler, Judge Y. Plitman and S. Tzur, and public representatives Mr. A. Ben Gera and Y. Ben Yehuda) allowed the appeal brought by the NII against the decisions of the Regional Labour Courts in the matters of Boaron and Kariv, and held that the two should be viewed as remarried widows and that the provisions of ss. 135 and 255 of the National Insurance Law should be applied to each of them respectively (hereinafter: the “Boaron case”). The National Labour Court noted that under s. 1 of the National Insurance Law, the term “his wife” is defined as “including his common-law wife who lives with him,” and held that the Law equates the common-law wife to a married woman “and in any event it equates a widow with a common-law widow [sic].” The National Labour Court referred to Judge Plitman’s decision in NII v. Friman [32], in which he held as follows:

‘The question that arises is whether it may be concluded from the use of the expression, “a widow who has remarried” that the intention was to exclude a widow who conducts a full family life with a partner but has not been officially married . . .

[This question] should be answered in the negative for three reasons:

First, because of the reason underlying the objective of the law. The dependents allowance is an allowance which replaces the income brought by the spouse into the household — because the widow runs the household by herself after her husband’s death. Since the widow has now returned to sharing a household and family life with a life partner, she is again receiving support for the household finances, and therefore, in light of the purpose of the payment of the allowance as stated, she is no longer entitled to receive a dependents allowance.

This objective calls for a legal rule that does not distinguish between the law as it is applied to a widow who has officially remarried, and a widow who is a common-law wife. If we were to interpret the statutory language differently, there would be unjustified discrimination against the officially remarried widow whose financial support is discontinued, as opposed to the widow who has established a new family unit without anchoring it through participation in a marriage ceremony, whose allowance does not expire.

Secondly — the non-expiration of entitlement to a dependents allowance for a widow who has established a new home with a common-law husband would create an absurd situation in which, on the one hand, the legislature does not recognize the institution of common-law spouses and a widow therefore does not lose her entitlement to a dependents allowance even if she has reestablished a home with a common-law husband, and on the other hand, it does recognize the concept of a common-law spouse and grants a dependents allowance to a woman whose life partner, the common-law husband, passes away . . .

Thirdly — the absurdity arising from the non-expiration of the entitlement to a dependents allowance for a widow who has established a new home with a common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President, the widow would enjoy, in theory, a simultaneous double entitlement to two dependents allowances: one due to the death of her [non-common-law] husband and another due to the death of her common-law husband.

The legislature’s objective in establishing entitlement to a dependents allowance for a common-law wife whose life partner died is the same objective as we face here — a perception of the status of the common-law wife as being equal to that of a married woman, at least for the purpose of entitlement to a dependents allowance through which a widow is paid an allowance after the death of her life partner’ (ibid., at paras. 9-12).

The National Labour Court further held that a widow who is a common-law wife should also be viewed as a remarried widow with regard to the conversion of a survivors allowance to a survivors grant, noting that in the same way that a common-law wife is viewed as a married woman, a widow who has become a common-law wife should be considered as having married. The National Labour Court emphasized that this was not only a matter of denial of entitlement to an allowance; it also involved the creation of an equivalence in relation to entitlement to an allowance while providing grants to a remarried widow, and it therefore rejected the argument that there was a violation of the Basic Law: Human Dignity and Liberty. The National Labour Court also held that the date on which a common-law wife was deemed to have married is not determined arbitrarily, and that her entitlement to a grant (and the suspension of her allowance) begins “on the day on which it can be determined that she meets the definition in s. 1 of the National Insurance Law — ‘his common-law wife who lives with him’ — on the basis of an established factual foundation.” For all of the above-mentioned reasons, the National Labour Court held that Boaron and Kariv were to be treated as remarried widows. As the court wrote:

‘What reason is there for distinguishing between these two women whose cases are before us, who have lived with their partners for several years, and who are raising children with them, conducting a joint household, a new family unit, and following a mutual declaration of their relationship in the form of a financial agreement — and those women who have anchored their relationships with their partners through a religious ceremony? Any distinction that is made between the two cases is basically discriminatory and misses the legislative intent to anchor the status of the common-law wife in the definitional section of the National Insurance Law by defining the term “his wife” as “including his common-law wife who lives with him,” thus viewing the status of the common-law wife as being equivalent to that of a married woman’ (para. 14).

Finally, the National Labour Court held that the fact that a couple did not have joint ownership of any assets would not change its ruling, and that the date of expiration of the entitlement to an allowance should be established in each case on the basis of the particular factual circumstances.

9.            On 19 March 2008, the National Labour Court (President S. Adler, Judges J. Plitman and V. Virt-Livne and public representatives S. Habshush and J. Deutsch) also allowed the NII’s appeals of the judgments rendered by the regional labour courts in the suits brought by Gabay Galoni, Juliet and Steir, and held that they should be viewed as remarried widows (hereinafter: the “Gabay Galoni case”). The court repeated its holding that “a narrow interpretation of the term ‘remarried’ whereby it applies only to a widow who has undergone a marriage ceremony and not to a widow who has become a common-law wife leads to an unjustified favoring of the common-law wife over a woman who has been married in a formal ceremony, when the purpose of the law is to create an equivalence between the two.” The National Labour Court further held that the relevant provisions of the National Insurance Law should be interpreted in accordance with the other provisions of that Law, and not in accordance with the interpretation of the Families of Soldiers Killed in Action Law.

The petitions before us relate to these judgments, and following a hearing held in this Court on 3 November 2008, we issued an order nisi on 4 November 2008 ordering the NII to explain why the National Labour Court’s holding, that the meaning of the term “a widow who has remarried” is not limited to widows who have actually remarried but also applies to widows who are living as common-law wives, should not be reversed.

The parties’ arguments

10.          The petitioners argue that this Court must intervene in the National Labour Court’s judgments in the Boaron and Gabay Galoni cases, in view of a substantive legal error made in reaching them. Specifically, the petitioners argue that the National Labour Court’s judgments are inconsistent with the express language of ss. 135, 255(b), (d) and 262 of the National Insurance Law, which relate to a widow who has “remarried”, and that the language does not support an interpretation according to which these provisions relate to widows who are living as common-law wives — women who, by definition, have not remarried but are instead living with a partner. The petitioners argue in this context that the objective that the National Labour Court attributed to ss. 135, 255(b), (d) and 262 of the National Insurance Law — the creation of an equivalence not only in terms of the rights enjoyed by married couples as compared to the rights of couples living together, but also in terms of the obligations that both types of couple bear — deviates from the various possible linguistic interpretations of the section. They emphasize that the provisions establish specific dates on which the widow’s right to a dependents or survivors allowance either expires or is renewed. The petitioners note that the National Insurance Law refers to the concept of common-law marriage, and from this they infer that the legislature chose to apply ss. 135, 255(b), (d) and 262 to widows who have been formally remarried. The petitioners are of the opinion that the National Labour Court’s interpretation of the terms “married” and “date of marriage” will have “sweeping ramifications — without there having been a systemic, comprehensive, in-depth and methodical examination” of the other pieces of legislation dealing with marriage, and that such an examination can and should be carried out by the legislature alone.

As to the purpose of the National Insurance Law, the petitioners argue that it was intended to ensure the social security of Israel’s citizens, and that the level of social security enjoyed by common-law wives is less than that of married women due to the absence of a substantive financial anchor and to the unwillingness of the parties to make a commitment to each other through marriage. On this matter, the petitioners further argue that the ties between individuals who live as common-law spouses are characterized by varying levels of stability, and that clear criteria are therefore required in order to determine when the allowance given to a widow who has become another man’s common-law wife will be discontinued. The petitioners also argue that while the criteria for determining who falls within the definition of a common-law wife for the purpose of granting rights should be lenient, the criteria for making the same determination for the purpose of denying rights should be strict.

The petitioners argue that the National Labour Court has cancelled a right that is granted to a widow by primary legislation, and that in light of the complexity of the subject and its public importance, such a cancellation of rights should be left in the hands of the legislature. They further argue that the National Labour Court’s interpretation of the term “a widow who has remarried” violates the principle of equality with regard to the treatment of widows under the Families of Soldiers Killed in Action Law. In this context, they argue for the rejection of the NII’s position that a justifiable distinction may be made between the two groups of widows. The petitioners argue that the circumstances of a husband’s death are irrelevant, and that the purpose of both laws is to ensure that a widow who has been left without an additional provider can support herself with dignity. The petitioners also argue that the denial of their rights to an allowance due to their having become common-law wives violates their basic property rights; they argue that a statute which deprives citizens of their rights, or which reduces such rights, must be construed literally.

The petitioners further argue that the application of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law to widows who are living as common-law wives involves a degree of arbitrariness in terms of the determination of the date as of which the widow loses her entitlement to an allowance. Finally, the petitioners argue that the widowers have relied on their monthly allowances from the NII for their support and that their partners do not provide them with financial assistance, and do not support them — nor are they obligated to do so.

11.          The NII argues that the National Labour Court was correct in holding that the term a “widow who has remarried” also includes widows who are living as common-law wives, and that the position that the term “married” relates only to women who have had an actual wedding and not to common-law wives was already been rejected in Ornan v. NII [31]. The NII further argues, in this context, that because the term “wife” is defined in s. 1 of the National Insurance Law as including “his common-law wife who lives with him,” the term wife “who has married” applies as well to a woman who has connected her life to a partner as a common-law wife, even if she has not married her partner. According to the NII, a woman who is officially married has no advantage over the woman who is living as a common-law wife, and it is not reasonable that a widow who is the common-law wife of another man should have an advantage over a person who has officially married another person. Regarding this matter, the NII stresses that both a widow who has officially remarried and a widow who is a common-law wife would be entitled to an allowance by virtue of the second “spouse”, if that “spouse” should also pass away.

The NII also argues that the objective of the National Insurance Law is to assist a family unit when it has lost one of the heads of the household who had contributed to its economic maintenance. In accordance with this objective, when the surviving spouse establishes a new relationship, the need for this continued public support becomes irrelevant. The NII therefore believes that the language of the National Insurance Law, its objective, and its structure, as well as the quest for legislative harmony, do not justify any distinction between a widow who has remarried and a widow who is living as a common-law wife. On the contrary: according to the NII, allowing the appeal would mean unfair discrimination between the treatment of two groups of widows when there is no relevant difference between them with regard to entitlement to an allowance. The NII argues for the rejection of the petitioners’ argument that the National Labour Court’s interpretation establishes a primary legislative arrangement and an ultra vires act; it stresses that a court does have the authority to interpret acts of legislation — noting that this Court has in the past recognized the rights of common-law wives who had not been expressly included in relevant legislation. The NII also argues that identical terms appearing in different statutes are to be interpreted in accordance with each statute’s objective, and that the petitioners’ argument — that the National Labour Court’s interpretation will have sweeping consequences, even though there has not been any in-depth or methodical examination of the interpretation’s effect on other pieces of legislation dealing with marriage — should not be accepted.

Regarding the dates prescribed in the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the NII argues that even if it is difficult to identify the “correct” date, this does not change the legal interpretation regarding the substantive right, and that insofar as implementation of the provisions is the issue, such implementation is a matter for the competent authorities, to be determined on the basis of appropriate proof, and these determinations will be subject to judicial review by the Regional Labour Court.

The NII argues that the proper interpretation of the term a “widow who has remarried” should not be inferred from the rules that apply to widows under the Families of Soldiers Killed in Action Law, due to the different frameworks and to the relevant difference between these two groups of widows. The NII further argues that the petitioners could also seek an amendment of the law (as was done in the case of the Families of Soldiers Killed in Action Law). The NII thus argues that there is no violation of the principle of equality here, and it further argues that the constitutional right to property does not apply to pension rights under the National Insurance Law. Finally, the NII contends that the petitioners’ argument concerning their reliance on their allowances should not be accepted, and that in any event this reliance neither adds nor detracts from the need to decide on the very existence of the right to an allowance. In this context, the NII also argues that neither the survivors allowance nor the dependents allowance is intended to secure basic living conditions: that objective is achieved through the income support allowance.

Deliberation

12.          This Court, sitting as the High Court of Justice, acts with considerable restraint regarding any intervention in the decisions of the National Labour Court (see HCJ 6522/06 Kochavi v. Jerusalem Labour Court [1], at para. 17; HCJ 8929/08 Ben Nun v. National Labour Court [2], at para. 18) and it will intervene in that court’s judgment only in those cases in which two conditions have been met, cumulatively: first, that the judgment is tainted by a substantive legal error; and second, that justice requires its correction. In examining the existence of a “substantive legal error”, this Court will consider whether, inter alia, the subject under discussion is of public importance and to what extent it is a general and widespread issue (see HCJ 525/84 Hatib v. National Labour Court [3], at pp. 693-694; HCJ 840/03 Israel Professional Firefighters Union — Firefighters Committee v. National Labour Court [4], at pp. 814-815; HCJ 5666/03 Kav LaOved Organization v. National Labour Court [5], at para. 28). There is no dispute that the subject before us is an important one. Nevertheless, I will already state that in my view, the National Labour Court’s decisions in the present matter are not tainted by any substantive legal error that would justify our intervention.

13. Section 135 of the National Insurance Law, relating to dependents allowances, and ss. 255(b), (d) and 262 of that Law, relating to survivors allowances, stands at the heart of the discussion and it is therefore appropriate to cite them in full.

Section 135 of the National Insurance Law refers to a widow who receives a dependents allowance pursuant to Chapter E, which deals with work accident victim insurance. It provides as follows:

135. A widow who has remarried

(a)          If a widow remarries, her right to an allowance expires and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the dependents allowance, which is calculated on the basis of the amount of the allowance as stated in s. 132(1) (hereinafter: “the allowance amount”) that was paid for the month in which she remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

However, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section, will be credited against the allowance, according to the provisions of paras. (1) – (4) of s. 262(a).

(b) If a widow’s husband from her new marriage passes away and she receives a dependents allowance or a survivors allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated, had she not remarried.

(c) Notwithstanding the provisions of sub-section (a), the Minister may prescribe certain conditions and situations in which the right of a widow who has remarried to receive an allowance will not expire.

Section 130(b)(1) of the National Insurance Law provides that the provisions that apply to a widow regarding these matters will also apply to a widower.

Sections 255(b), (d) and 262 of the National Insurance Law refer to a widow who receives a survivor’s allowance pursuant to Chapter K, dealing with Old Age Insurance and Survivors Insurance, and they provide as follows:

255. Payment of a grant

. . .

(b)          If a widow who is entitled to a survivors allowance remarries, her right to the survivors allowance will expire and the Institute will pay her a grant in two installments as follows:

(1) After the date of her remarriage — an amount equal to the survivors allowance which is calculated on the basis of the amount of the allowance as described in s. 252(a)(1) (hereinafter: “the allowance amount”) which had been paid for the month in which she had remarried, multiplied by eighteen;

(2) At the end of two years from the date of her remarriage — an amount equal to the allowance amount as it would have been paid to her, had she not remarried, for the last month of the said two years, multiplied by eighteen;

(c) If a widow’s husband from her new marriage passes away and she receives a survivors allowance or a dependents allowance because of him, she will receive the second installment of the grant, even if less than two years have passed from the date of her remarriage; the grant will be calculated on the basis of the allowance amount that would have been paid to her for the month in which her husband passed away as stated.

(d) A widower, for the purpose of this section, will be treated in the same manner as a widow.

262. A widow or widow who has remarried

(b)          A widow who is entitled to a grant pursuant to this Part due to her marriage will lose her entitlement to an allowance; however, if she is no longer married ten years after the date on which she remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated in a religious or a civil court, she will again be entitled to an allowance beginning on the date she ceased to be married, as stated, and a grant or a first installment thereof, which was paid to her pursuant to this sub-section will be credited against the allowance, subject to the following provisions:

(1)          If the widow’s entitlement to an allowance is renewed within 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the first installment, multiplied by the number of months for which she is entitled to an allowance during the said eighteen months;

(2)          If the widow’s entitlement to an allowance is renewed later than 18 months from the date on which her entitlement to an allowance expired pursuant to her marriage, the first installment of the grant will not be credited against her allowance;

(3)          If the widow’s entitlement to an allowance is renewed later than two years and earlier than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the amount to be credited against her allowance will be one eighteenth of the second installment, multiplied by the number of months for which she is entitled to an allowance during the last eighteen months of the said three years;

(4)          If the widow’s entitlement to an allowance is renewed later than three years after the date on which her entitlement to an allowance expired pursuant to her marriage, the second installment of the grant will not be credited against her allowance;

(b)          Notwithstanding the provisions of sub-section (a), the Minister may specify certain situations and conditions in which the right of a widow who has remarried to receive an allowance will not expire.

(c)           The provisions of this section will apply to a widower as well, mutatis mutandis.

14.          The question we face is, as stated, whether the provisions of ss. 135, 255(b) – (d) and 262 of the National Insurance Law are also properly applied to a widow or widower who subsequent to being widowed has become the common-law wife or husband of another partner.

The starting point of any process of statutory interpretation is the statutory language, and that language will set the limits of the interpretation, in the sense that the words of the statute may not be given a meaning that they cannot support (see MApp 67/84 Hadad v. Paz [6], at p. 670; CA 2000/97 Lindorn v. Kranit Fund for Compensation of Road Accident Victims [7], at p. 25; CA 8569/06 Director of Land Taxation, Haifa Office v. Polity [8], at para. 26). This Court has therefore held on several occasions that “the language component is not a sufficient condition for a particular interpretation, but it is a necessary condition” (CA 3622/96 Hacham v. Kupat Holim “Maccabi” [9], at pp. 646-647) and that “the judge may not  . . . realize an objective unless it has some basis — even a weak one — in the statutory language” (FH 40/80 Koenig v. Cohen [10], at p. 715; see also LCA 3899/04 State of Israel v. Even Zohar [11], at para. 14; Director of Land Taxation v. Polity [8], at para. 26; A. Barak, Legal Interpretation (vol. 2, ‘Statutory Interpretation,’ 1993), at pp. 81-84, 97-100).

15.          Can the language in ss. 135, 255(b), (d) and 262 of the National Insurance Law support a legal interpretation that also applies these provisions to a widow or widower who is living as a common-law spouse?

In order to answer this question, we must examine, inter alia, the definitional section of the statute, which is designed to establish the scope of the linguistic significance of the terms that are the subject of each definition (see Director of Land Taxation v. Polity [8], at paras. 29-30; Barak, Legal Interpretation, supra, at pp. 137-138). The definitional section of the National Insurance Law (s. 1) provides as follows: “‘his wife’ — including his common-law wife who lives with him.” The term “including” generally expands the scope of the literal meaning that may be attributed to the defined term (see Barak, Legal Interpretation, supra, at p. 138) and in Ornan v. NII [31], the National Labour Court, in reliance, inter alia, on the definitional section, held  that the term “a married woman” also includes a common-law wife. In that case, the National Labour Court rejected the NII’s argument (the opposite argument to the argument it makes here) that the term “married woman” means only an officially married woman, and held that the term “his wife” in the definitional section “means a ‘married woman’, because were this not the case, why would it have been necessary for the legislature to add at the end, ‘including his common-law wife’?” (Ibid., [31], at p. 407.) The National Labour Court also noted in that case that “there is nothing in that section [which was the subject of the dispute there], either in its substance or in its context, that contradicts the definition of the term ‘his wife’ in s. 1 of the statute, and that the rule applying to a ‘married woman’ [in that section] is the same as that applying to ‘his wife’ in s. 1 of the statute” (ibid., [31], at p. 408). This holding was reached in light of the provision in s. 2 of the Interpretation Law, 5741-1981, under which “a term that is defined in legislation will have the meaning assigned to it by the definition . .  . unless otherwise stated with regard to the particular matter, and provided that nothing in the subject-matter or context is inconsistent with the definition.”

16.          We accept the position that the term “married woman” can, in linguistic terms, support a legal meaning that includes “a woman living as a common-law wife.” But the petitioners claim that the language in the sections under discussion in this case — unlike the section which was the subject of Ornan v. NII [31] — indicates only a narrow range for possible interpretation, one which does not include a widow who is a common-law wife. This is because the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law relate to defined dates that are, in their view, relevant only to widows who have remarried officially, particularly the date on which the widow remarried and the date as of which she was no longer remarried.

I cannot accept the petitioners’ argument in this matter.

Indeed, the assumption is that “the legislature is using regular language and the language cannot be interpreted other than according to its plain meaning” (HCJ 6247/04 Gorodetzki v. Minister of Interior [12]); occasionally, however, and to the extent justified by the objective that the statute is intended to achieve, the interpreter may attribute  a unique and unusual meaning to particular words, if that meaning falls within the linguistic range delineated by the statutory language (see Barak, Legal Interpretation, supra, at pp. 117-118). In this case, and as I will describe below, it appears to me that from a linguistic perspective, the dates specified in ss. 135, 255(b), (d) and 262 of the National Insurance Law (the date on which a widow remarried or the date as of which she was no longer married) can be interpreted in a manner that applies them also to the dates on which a widow began or ceased to be a common-law wife, whichever is relevant. Indeed, while it is a simple matter to identify the establishment of a marital connection by virtue of a formal and constitutive act, the identification of a date on which a couple began to live together as common-law spouses or the date on which a couple ceased to live as such is less clear-cut, and requires a factual examination of the nature and circumstances of the relationship. In my view, however, this fact does not rule out an interpretation that applies the provisions to which the petitions before us relate to common-law spouses as well, in view of the standard criteria for determining these matters, according to which a couple will be recognized as common-law spouses if they have a conjugal relationship and a shared household (see AAA 4614/05 State of Israel v. Oren [13]; CA 1966/07 Ariel v. Egged Members Pension Fund Ltd. [14], at para. 25). Similar tests are applied by the NII with regard to the granting of allowances (see, for example, NIIApp 731/07 Kirshner v. NII [33]), and there is nothing to prevent their application where required with respect to the expiration of the right to an allowance. In any event, a party who believes that he or she has been harmed by a decision of the NII regarding this matter is free to initiate the appeal procedures prescribed by law (see and compare: HCJ 2316/05 A v. National Labour Court [15]; NIIApp1212/04 Apter v. NII [34], at p. 469).

Since my conclusion is that the language of the relevant statutory sections does not negate any of the interpretations that the parties wish to give to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, we must now proceed to determine what is the objective that underlies the legislation that we are required to interpret.

17.          The objective of the National Insurance Law with respect to survivors allowances and work accident victim insurance is “to protect against economic shortages that are liable to follow the curtailing of income as a result of a provider’s work accident, old age or death. Its purpose is not to grant rights to a person by reason of his being the relative of another person, but rather, to prevent a defined group of persons from suffering from financial shortages because they are no longer receiving their own income or the income of their provider” (NLC 30/19-0 NII v. Mano [35], at p. 77; see also: NLC 52/69-0        Leon v. NII [36], at p. 464; NLC 53/6-7 Batar v. Central Pension Fund of Histradrut Workers, Ltd [37], at p. 140; NLC 57/6-2 Central Pension Fund of Histradrut Workers, Ltd v. Kochavi [38], at para. 6; see and compare HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [16]).Thus, the survivors and dependents allowances that are paid pursuant to the National Insurance Law are intended to compensate for the loss of financial support that a person had been receiving from his or her partner as a dependent of that partner in connection with such support, and to preserve a roughly similar standard of living to that which the survivor enjoyed prior to the provider’s death (see Gorodetzki v. Minister of Interior [12], at para. 23; NIIApp 1169/01 Avital v. NII [39]; Kirshner v. NII [33], at para. 8(e)).

In light of these objectives, the right of a widow or widower to an allowance expires upon remarriage, according to the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law. This is due to the assumption that the new familial unit that has been established will be sufficient to replace the loss of income that ensued from the death of the previous partner (see NIIApp 779/06 NII v. Wolkowitz [40], per President S. Adler, at para. 3). At the same time, and in order to enable a widow or widower to adapt to the expiration of the right to an allowance pursuant to the above-mentioned sections, the statute provides that they will be entitled to a grant which is equal to thirty-six months of the allowance. (The two installments of the grant are paid within a period of two years from the date of the remarriage.) The Minister of Labour and Welfare is also authorized, by virtue of ss. 135(c), and 262(d) of the National Insurance Law, to prescribe certain circumstances and conditions under which the right of a remarried widower or widow to an allowance will not expire. The regulations that the Minister enacted pursuant to this authorization (see National Insurance Regulations (Dependents Allowance for Remarried Widows), 5737-1976) provide that a remarried widow’s right to a dependents allowance will not expire if the new husband is unable to support himself or if he is over 60 years old, provided that the new husband’s income does not exceed one twelfth of the amount specified in Item 1 of Table B of the National Insurance Law. Similar regulations have not been enacted with respect to a survivors allowance.

The objective of the provisions that cancel the right to an allowance in the event of an official remarriage, and the above-mentioned rationales which underlie that objective, are also applicable with respect to a widow or widower who has begun to live with a new partner in a common-law marriage. Indeed, a widow or widower who lives as a common-law spouse will benefit from shared income with the new partner and from a shared bearing of expenses — assuming that there is a shared household, which is a condition for the couple being classified as common-law spouses. Under these circumstances, there is no justification for the widow or widower to continue to receive a survivors allowance or a dependents allowance; such allowances are intended to provide protection from the financial shortage that the death of a provider is expected to entail.

18.          Together with the search for the specific objective of the legislation that we wish to interpret, we ought to examine the extent to which the legislation expresses the basic values of the legal system, in light of the accepted principle that these values must find expression in every piece of legislation. One of the basic values of the legal system in Israel, relating directly to the matter under discussion here, is the principle of equality, a value which has been accorded constitutional status (see HCJ 953/87 Poraz v. Mayor of Tel Aviv Shlomo Lahat [17], at pp. 329-332; Lindorn v. Kranit Fund [7], at pp. 29-30; HCJ 6427/02 Movement for Quality Government v. The Knesset [18], (per President Barak, at paras. 36-40); HCJ 4124/00 Yekutieli v. Minister of Religion [19], at para. 35). The significance of this is that when there is no relevant difference between individuals, they are entitled to equal treatment, inter alia in terms of the legal rules that apply to them. A claim of discrimination can therefore arise when a different legal rule is applied to individuals or groups between whom there is no relevant difference (see HCJFH 4191/97 Recanat v. National Labour Court [20], at pp. 343-345). The complexity involved in the implementation of the principle of equality was noted by President Beinisch in Yekutieli v. Minister of Religion [19] as follows:

‘It is not a simple matter to determine whether a particular norm violates the principle of equality. By its very nature, the question calls for a discussion of the characteristics and purposes of the norm, and a determination of the “peer group” relevant to the matter at hand. The peer group is the group of individuals or entities to which the obligation to act in accordance with the principle of equality applies . . . and it is derived, inter alia, from the norm’s purpose and from the scope of its application. Sometimes the legislature determines the peer group as a part of the norm itself, and sometimes the court must define, by means of a number of variables, what the peer group is in each specific case’ (ibid., at para. 36).

Here, the petitioners and the NII do not dispute the fact that there is a difference between the group comprising widows who have remarried by virtue of a wedding ceremony which is recognized by law, and the group comprising widows who are living as common-law wives. The parties’ disagreement relates to the matter of whether, for the purposes of ss. 135, 255(b), (d) and 262 of the National Insurance Law, the difference between these groups is a relevant one. The NII argues that an interpretation of the above-mentioned sections which excludes widowers and widows who are living as common-law spouses from coverage by those sections will create a situation whereby two groups between whom there is no relevant difference are treated differently. This argument, which the National Labour Court accepted, is a strong one, and I also believe that there is no relevant difference between the widowers and widows who have been officially remarried and those who are living as common-law spouses — no difference that justifies the application of a different legal rule to the two groups with regard to the expiration of the right to an allowance. Indeed, the members of both of these groups lost a source of income when their partners passed away, and the members of both groups have established new family units, and in relation to both groups, there is a presumption that the new partners share income and expenses. The petitioners argue in this regard that the relationship between partners who are living in a common-law marriage is less stable than the relationship between partners who were married officially, and that this creates a relevant distinction that justifies different treatment with regard to the expiration of the right to an allowance. This argument cannot be accepted, for even if we presume — in concert with the petitioners — that the relationship between partners who are living in a common-law marriage is indeed less stable than the relationship between partners who are officially married, this does not create a relevant distinction between the two groups with respect to the present matter. This is because the arrangement prescribed in ss. 135, 255(b), (d) and 262 of the National Insurance Law, which cancels the right to an allowance, also foresees the possibility that the new relationship will not last, and ss. 135(b)(2) and 262(a) of the statute therefore include a provision that a widow who remarries will regain her entitlement to an allowance —

‘ . . . if she is no longer married ten years after the date on which she was remarried, or if, within this period, divorce proceedings between her and her spouse have been initiated  . . .’

It is understood, however, that if the provision that cancels the right to an allowance also applies to widows or widowers who are living as common-law spouses, the provision that re-entitles them to an allowance if the new common-law relationship ceases to exist before ten years have elapsed since its inception will also apply to them. Thus, the alleged distinction based on the difference in the level of the stability of the relationship is also insufficient to justify the application of a different legal rule to the petitioners as widows who are now living as common-law wives, on the one hand, and to widows who have been officially remarried, on the other hand.

19. In Ornan v. National Insurance Institute [31], the National Labour Court, in a different context pertaining to the National Insurance Law, noted the implications of a discriminatory rule that involves an improper favoring of common-law wives, stating as follows:

‘We should not attribute to the legislature an intention to grant the common-law wife only benefits, and to spare her the disadvantages. The aim of the Law is to create an equivalence for all purposes — with respect to both the good and the bad — between the common-law wife and the married woman’ (ibid., at p. 408).

I find this approach to be acceptable, and it provides an appropriate response to the contention that the provisions of the National Insurance Law can be extended through interpretation when they grant benefits, but cannot be extended when the extension involves a negation of rights. Indeed, it is hard to imagine that for the purpose of granting a survivors allowance (pursuant to s. 252 of the Law) and a dependents allowance (pursuant to s. 131 of the Law), a common-law wife will be considered a “widow” due to having been the “wife” (under the definition in s. 1 of the Law) of her deceased partner (see: NLC 56/255-0 Atar v. NII [41], at p. 387; Kirshner v. NII [33], at para. 8(a)), but that she will not be considered to be the “wife” of her new partner with whom she is living as a common-law spouse with regard to the expiration of the entitlement to these rights (pursuant to ss. 135, 255(b) and (d) of the Law).

It appears to me that the same question arises regarding both the granting of rights and their expiration, i.e., whether there is a relevant distinction, with respect to either issue, between couples who are officially married and couples who are living together in a common-law marriage (see and compare 4341/99 CrimA Vidal v. State of Israel [21],                 at p. 334; CA 2622/01 Director of Land Appreciation Tax v. Levanon [22], at p. 326).

Professor Shahar Lifshitz’ comments are also pertinent here:

‘When, as the result of the attempt to equate the support given to the institution of common-law marriages and the institution of official marriage, a situation is created that favors the common-law partners, the result is untenable . . . in light of the proclivity to equate the rights of common-law spouses to those of married people, a parallel reform is required that will equate the duties imposed in the two cases . . . ’ (S. Lifshitz, Common-Law Partners From the Perspective of the Civil Theory of Family Law (2005), at pp. 235-236).

The degree to which different treatment of widows and widowers in common-law marriages (as compared to the treatment of widows and widowers who have officially remarried) is liable to create a discriminatory and even absurd situation regarding the expiration of entitlement to survivors allowances or for dependents allowances, was demonstrated in the National Labour Court’s decision, when it noted the following among the reasons for its ruling:

‘The absurdity with respect to the non-expiration of the entitlement to a dependents allowance of a widow who has established a new home with her common-law husband is exacerbated in the case in which her common-law husband dies as a result of a work accident. In such a case, according to my colleague the Vice President (in Friman), the widow will in theory be entitled, simultaneously, to two dependents allowances: one arising from the death of her official husband and one arising from the death of her common-law husband.’

This discriminatory result does indeed reach the level of absurdity and it must be avoided, not only because of the harm done to the principle of equality but also because of the rule that requires us to avoid, to the extent possible, an interpretation of statutory provisions that leads to an absurd result (see and compare, CA 165/82 Kibbutz Hatzor v. Rehovot Tax Assessor [23], at p. 74; CA 1186/93 State of Israel, Minister of Justice v. Israel Discount Bank Ltd [24], at p. 361; Barak, Legal Interpretation, supra, at pp. 280-283).

In light of the above, I believe that with respect to the expiration of entitlement to a survivors or a dependents allowance pursuant to ss. 135, 255(b), (d) or 255(b), (d) and 262 of the National Insurance Law, the widows who are living as common-law wives should be subject to the same rule as widows who have been officially remarried, as the purpose of the legislation justifies this interpretation, and as it is also an interpretation that the statutory language will support.

20.          We must still consider the petitioners’ argument that the adoption of the National Labour Court’s interpretation of the provisions of ss. 135, 255(b), (d) and 262 of the National Insurance Law, i.e., that rights to allowances will expire for widows who are living with their partners as common-law wives, unfairly discriminates against them, as compared to widows who live as common-law wives and who are entitled to pensions pursuant to the Families of Soldiers Killed in Action Law. This argument must also be rejected. First, Amendment 30 of the Families of Soldiers Killed in Action Law changed that Law’s definition of a widow to “a person who was the wife of the decedent at the time of his death, including a woman who prior to the decedent’s death was living with him and who, on the date of his death, was his common-law wife — even if she has married another person” (emphasis added), and s. 12A of that Law, whereby the widow of a decedent who remarried lost her entitlement to a pension pursuant to the Law, was cancelled  (see the Families of Soldiers Killed in Action Law (Amendment 30), 5770-3009, SH 252). In enacting these measures, the legislature demonstrated that with respect to the widows of soldiers who were killed in action, the intention was to continue the payment of a pension even after they remarried, and, in any event, if they were living as the common-law wives of other men. Second, it has been held several times that in enacting a series of laws relating to those who were wounded or who sacrificed their lives for the country, or to their families, the legislature wished to give expression to the moral obligation owed by the state, and that these laws should therefore not be viewed as intended only to provide social security, as the National Insurance Law does. This explains the difference that appears in some contexts between the language in the National Insurance Law and the language in these other laws (see: HCJ 5304/02 Israel Association of Victims of Work Accidents and Widows of Victims of Work Accidents v. State of Israel, Knesset [25], at pp. 141-142; HCJ 8487/03 IDF Disabled Veterans Organization v. Minister of Defense [26], at paras. 21-23; HCJ 9863/06 Karan - Society of Combat Veteran Quadriplegics v. State of Israel - Minister of Health [27], at paras. 11-14).

For all the reasons mentioned above, I propose to my colleagues that the petitions be denied without any order regarding costs.

 

Justice E. E. Levy

I concur.

 

President D. Beinisch

I concur in the decision of my colleague, Justice E. Hayut, and I also agree with her reasoning. Indeed, Israeli legislation and case law have recognized the status of the common-law spouse; this has certainly been the case with respect to social support and rights (see, among others, the Inheritance Law, 5725-1965; Names Law, 5716-1956; Families of Soldiers Killed in Action Law. And see, for example HCJ 693/91 Efrat v. Director of the Population Registry [28]; Lindorn v. Kranit Fund [7]; Director of Land Appreciation Taxation v. Levanon [22]). The professional literature, it is true, contains various views relating to the possibility of applying to common-law couples arrangements that are similar to those applying to married couples. For example, the argument is made that the various arrangements that apply to married couples should not be applied equally to couples living together in common-law relationships, so as not to frustrate the wishes of those who have chosen, knowingly, to refrain from entering into official marriages (see, for example, the arguments made in S. Lifshitz, Common-Law Partners, supra, at pp. 199-216). In any event, this question does not arise in the case before us, since it appears to me that even those who believe that only some of the arrangements that apply to married couples should be applied to common-law couples would agree that the arrangements arising out of social legislation should be applied to common-law couples as well (see, for example, the distinction drawn by Lifshitz between “responsive” rules and “directed” rules, supra, at p. 217).

Although the concept of common-law relationships is not a new one in our system, not all the relevant legislative arrangements have been adjusted to the changes that have occurred in modern times in the structure of the family unit. With respect to certain laws, the legislature has not responded to this issue at all (see, for example, Director of Land Appreciation Taxation v. Levanon [22], per Justice Strassberg-Cohen, at pp. 315-316:  “The laws in relation to which the question arises as to whether or not they grant rights to a common-law wife do not have uniform language. Some of them make express use of the term ‘common-law wife’or a similar term, while defining that term clearly and explicitly. Some of them . . . use the term ‘partner’ without defining it”). In the absence of any express reference by the legislature to the application of a law to common-law partners, there are courts which, in interpreting the relevant legislation, have applied various provisions and arrangements to common-law partners as well. This was the case, for example, in Lindorn v. Kranit Fund [7], in which the court held that for the purpose of paying compensation to dependents pursuant to the Civil Wrongs Ordinance [New Version], 5728-1968, both the linguistic and the legal meanings of the phrase “partner” includes, necessarily, the concept of common-law partners.

Regarding the petition before us, as elucidated in my colleague’s opinion, s. 1 of the National Insurance Law — the definitional section — provides that the term “his wife” will “include his common-law wife who lives with him.” The definitional section applies to the entire statute, and it therefore indicates that the legislature saw the relationship between common-law partners as a framework that is covered by the statute. Furthermore, common-law wives who become widowed are not denied survivors allowances or dependents allowances — the allowances which are the focus of the discussion in this petition — and common-law wives are therefore entitled to such allowances, as are married women who have been widowed. In other words, while the situation of married women and common-law wives are completely identical with regard to entitlement to survivors allowances and dependents allowances if such married women or common-law wives should unfortunately be widowed, the same exact pension would later be cancelled only for those women who have chosen to remarry through an official marriage. This result is especially problematic, as my colleague has noted, in situations in which the widow who becomes a common-law wife is widowed again when her common-law husband passes away. In such a situation, she would be entitled to the original allowance and to another allowance by virtue of the common-law husband. The absence of symmetry between the recognition of an affirmative right and the denial of that right creates, as stated, a distortion which is likely to lead to absurd results.

I therefore agree with the conclusion reached by my colleague, Justice Hayut, that the interpretation of ss. 135, 255 and 262 of the Law necessitates the denial of the allowance to widows who acquire common-law partners, in the same way that the allowance would be denied to widows who have remarried. First, I too believe that the statutory language can support this meaning, especially given the definition of the term “his wife” in the definitional section. As is known, “the main purpose of the definitions is to establish the scope of the (express or implied) meaning of the text of the terms” (Barak, Legal Interpretation, supra, at p. 138). Additionally, the linguistic context of a piece of legislation is interpreted in relation to the statute as a complete unit, which helps determine the legal meaning of a term or section within the statute (ibid., pp. 106-107). Here, the complete unit of the National Insurance Law, in its entirety, indicates that the legislature intended to include common-law partners within the statute’s coverage, and to apply to them all the relevant rights and obligations. Secondly, this conclusion is also supported by a purposive interpretation of the Law, the purpose of which is to provide compensation for the loss of the economic support that a person received from a partner in the past, as long as the person being compensated is not in a new relationship through which such support has been renewed.

I am aware that the practical meaning of this interpretation, in the petition before us, is that the petitioners will lose their entitlement to an allowance; and that when an interpretation leads to a denial of rights, we generally lean towards construing the relevant language narrowly and literally. However, in the case before us, even though according to a purposive interpretation, as my colleague Justice Hayut noted, the widows who have common-law husbands will lose their survivors allowances or dependents allowances, this result is consistent with the purpose of the legislation and promotes the basic right of equality, in a situation in which there is no reason for making a distinction between the two groups. Regarding this matter, I accept that the petitioners have not presented persuasive reasons for recognizing a distinction between them and widows who have remarried. Even if the argument that there is a difference between these groups due to the lack of obligation and stability in the common-law relationships were to be accepted — and I am not persuaded that by itself this is a well-founded argument — it would still be insufficient to justify a different interpretation than that being proposed, since in any event, the provisions of the National Insurance Law foresee the possibility that the relationship between the partners, in either an official or common-law marriage, may come to an end, and the Law provides a solution in the form of a renewal of the allowance. The same applies to the petitioners’ contention with respect to the determination of the date on which the relationship with the common-law partner is to be recognized (and thus, the date on which the allowance is terminated). In actuality, the NII is accustomed to determining such dates for various purposes listed in the National Insurance Law. Therefore, just as it is possible to establish the date on which a relationship begins for the purpose of recognizing rights, it is also possible to determine the date on which the entitlement to an allowance will come to an end.

I also agree with the position that a distinction should be drawn between the right of an IDF widow to receive a survivors allowance, on the one hand, and the rights of other injured parties to whom the legislature wished to provide social security, on the other hand. The distinction, which is anchored in primary legislation, results from the different objectives of the support provided to the different categories of injured parties. This is in no way an expression of a desire to harm injured parties who have experienced general misfortune; the intention is only to recognize the special status of those to whom the state and Israeli society owe a special moral debt. The degree to which a distinction is to be drawn and the expression given to that distinction is a matter to be determined by the legislature.

Needless to say, even though the interpretation of the National Insurance Law does lead to a conclusion that survivors allowances and dependents allowances should be eliminated for widows who have common-law husbands, it may be that the legislature should make express provision  for this in the National Insurance Law, as it has done with respect to other pieces of legislation (see, for example, the amendment to the definition of “spouse” in the Income Support Law, 5741-1980, in which it was established that the term “spouses” will “include a man and women who are a common-law couple and who live together.” The practical significance of the amendment is that common-law partners are not considered to be “singles”, entitled to the allowance paid to singles). It is further noted that we do not, in our decision, take a position regarding the appropriate interpretation with respect to other arrangements established in statutes that are not the subject of this judgment.

This interpretation conforms to the need to recognize the changes that are taking place regarding the family unit model, and displays a willingness to adjust the legal arrangements applying to traditional families to other family structures as well, subject to the changes necessitated by the differences in the relationships among these alternative family structures. Naturally, a just and egalitarian application of these arrangements requires that there be symmetry between rights and obligations, in a manner that fully realizes the purpose of the legislation. Therefore, I too see no grounds, everything considered, for intervening in the decision of the National Labour Court, and in my opinion the petitions should be denied.

 

 

Vice President E. Rivlin

I concur in the decision of my colleague Justice E. Hayut, and in the comments of my colleague President D. Beinisch.

 

 

Justice A. Proccacia

I agree with the decision of my colleague Justice E. Hayut, including with her reasoning and with her conclusions. I also agree with the additional comments made by my colleague, President Beinisch.

Social security in Israel, as reflected in the National Insurance Law, is founded on the concept of solidarity and mutual assistance. The funding for this comes from the payment of mandatory National Insurance contributions, which are collected according to the economic means of those insured, and from government funds; payments from the NII, on the other hand, are intended to provide basic-level assistance to those in need, necessary for life with dignity (see HCJ 6304/09 Lahav v. Attorney General [29], at paras. 42-59). The NII’s resources are, by their nature, limited; the realization of its objectives, in terms of providing assistance for life with dignity for the needy members of society, therefore requires that maximum care be taken so that its resources are allocated only in a manner that serves the true objectives for which they have been designated. The realization of the main objective of the National Insurance therefore requires that a good look be taken at a person’s true needs and at true neediness, and that formats and frameworks that exist only as formalities should be avoided, because they do not necessarily reflect the actual reality. The National Insurance funds are to be directed only at the “have-nots” and not at the “haves”, regardless of the particular name given to the personal status of a particular “have”; and the idea of social security requires that assistance be given to a widow only as long as her actual personal situation has not changed, and only as long as she does not live in a relationship as part of a couple, through which she is able to receive support and security. Once she has returned to a life based on being part of a couple, whether in the framework of an official marriage or in the framework of a relationship known as “common-law marriage”, she is presumed to no longer require the support of the social security system. The allowance to which she was entitled in the past, when she lived by herself and faced the struggle for existence alone, should now be directed towards other social objectives reflecting a real need. The social conception underlying the National Insurance Law strives, therefore, to examine life as it really is, according to a criterion of actuality; it distances itself from formalistic frameworks that do not reflect the true situation. In order to promote the objective of providing social security, the statute, for the most part, avoids the official frameworks of marriage and divorce and examines  the true life of a couple, as it is conducted on a daily basis (compare to the similar purpose of the Public Service Law (Pensions) [Consolidated Version], 5730-1970, and in this context, HCJ 4193/04 Gartner-Goldschmidt v. National Labour Court [31], (per Justice Procaccia, at paras. 20-21)).

The interpretation given by my colleague Justice E. Hayut to the provisions of the National Insurance Law, looking at the reality of human life, as distinguished from an official format that defines personal status, is consistent with the language of the statute, and with its social purpose.

I would further comment that equating the rule applied to a widow who lives with a common-law partner to the rule applied to a widow who remarries, for the purpose of determining entitlement to a survivors allowance or a dependents allowance, may create substantial problems regarding enforcement. What is the test for recognizing the existence of “common-law relationship”; when and how will the competent authority become aware that this type of relationship has come into being; and how will the principle of equality in enforcement be maintained in this area? These questions have not been raised before us, but we can assume that the competent authority is aware of them and is prepared to deal with them.

 

Justice H. Melcer:

I agree with the comprehensive opinion of my colleague Justice E. Hayut, and with the comments of President D. Beinisch. Nevertheless, I wish to add three comments:

(a)          I accept the conclusion that a woman who has not remarried, but who does live with her partner as a common-law wife — is comparable to a widow who has remarried, with respect to the expiration of her entitlement to a survivors allowance or to a dependents allowance which is given to her by virtue of her deceased husband. The linguistic context and a purposive interpretation of the provisions of the National Insurance Law are sufficient to establish this.

Nevertheless, in order to reach the said result, I do not need to rely on the argument that were we to hold otherwise, a widow who became a common-law wife and is now widowed of her common-law husband could be entitled to both the original allowance and to an allowance by virtue of her deceased common-law partner, and that this result borders on the absurd. I do not need such an argument because the concept of a “common-law wife” does occasionally create, by its very nature, problematic situations that may in extreme cases lead to double payments, or to divided payments, or to other complicated solutions. This can happen, for example, if the widow’s common-law partner was married to another person at the time of his death — and I will not elaborate (see ss. 130 and 238 of the National Insurance Law; CA 233/98 Katz v. Keren Makefet [30]; Atar v. NII [41]; and finally, Ariel v. Egged Members Pension Fund Ltd [14]; Lifshitz, Common-Law Partners, supra, at pp. 267-268.)  

(b)          The change in status of a widow who has remarried is usually clear and unequivocal, determined entirely by the validity of the marriage. On the other hand, a change in status that occurs when a widow becomes the common-law wife of the man with whom she lives (as in the definition of s. 1 of the National Insurance Law) is not as unequivocal. It is comprised of two cumulative conditions (see Atar v. NII [41]), and a determination that such a change has taken place will depend on the facts and circumstances (see Ariel v. Egged Members Pension Fund Ltd [14]). It therefore appears to me that prior to terminating the entitlement to an allowance, the NII should grant the person whose said entitlement is to be cancelled a full right to argue against such cancellation, over and above what would in any event be such person’s right to appeal following the decision.

(c)           It would be best if regulations were enacted pursuant to s. 262(b) of the National Insurance Law, which would establish the types of cases and conditions in which the right of a widow who has remarried to receive a survivors allowance would not expire. I have not heard any clear explanation for the fact that no such regulations have been enacted to date, while similar regulations have been enacted pursuant to s. 135(c) of the National Insurance Law regarding the non-expiration of a remarried widow’s right to a dependents allowance in certain situations (see National Insurance Regulations (Dependents allowance for a Remarried Widow), 5737-1976).

 

Justice E. Arbel

I concur in the opinion of my colleague Justice E. Hayut. I agree with her that a widow who becomes a common-law wife should be treated as a widow who has remarried, as that term is properly interpreted in the context of ss. 135, 255(b) and (d) and 262 of the National Insurance Law.

Since such a widow has again established a family life with a life partner and is again living as part of a joint household, her entitlement to continued receipt of a dependents allowance should expire, as the purpose of the payment of the allowance is to secure the dignified support of a widow who has been left without an additional provider (subject to the exceptions listed in the opinion of Justice Hayut, at p. 17). Any different interpretation would create an improper disparity between the treatment of a widow who has officially remarried and the treatment of a widow who has established a family unit with a new partner but without a wedding ceremony. I agree that the legislature’s intent would be subverted if a distinction were to be drawn between the two groups, given that the status of a common-law partner is established in the definitional section of the Law, even though I do not ignore the fact that within this framework, common-law partners may have different levels of commitment. It is indeed reasonable to attribute to the legislature an intention to grant the common-law wife both the good and the bad — meaning that a common-law wife will enjoy the rights of a married woman, but that these rights will expire in the same way as they do for a married woman. I agree with those who argue that it would be preferable if the legislature enacted an express provision establishing the termination of these rights, but as long as the legislature has not responded to the matter, and for the reasons that my colleague has described, the proposed interpretation is to be preferred. I would also add that there can be no doubt regarding the obligation of the state to those who were injured or who sacrificed their lives for the state, or to their families, and that this justifies the distinction that is made with respect to these widows, as explained by my colleague.

 

Decided as per Justice E. Hayut.

 

11Tishrei 5771.

19 September 2010.

 

H.C.J 806/88

I. Universal City Studios Inc.

2. United International Pictures Ltd.

3. Golan Globus Cannon Israel (1983) Ltd.

v.

1. Films and Plays Censorship Board.

2. Minister of the Interior.

3. Yehoshua Justman.

 

In the Supreme Court Sitting as the High Court of Justice

[June 15, 1989]

The President (Justice M. Shamgar), A. Barak, J., S. Levin, J. E. Goldberg J. and Y. Maltz J.

 

Editor's Summary

 

                The Films and Plays Censorship Board decided to prohibit the screening in Israel of the film "The Last Temptation of Christ", on the ground that it was calculated to offend the religious susceptibilities and beliefs of the Christian communities in Israel, and to cause injury to the State of Israel

                The producers of the film and its distributors petitioned the High Court of Justice for an order nisi against the Board, which was granted. On allowing the petition and making the order nisi absolute, the High Court held as follows:

               

1.       The point of departure for examining the legality of the Board's decision is the basic principle of freedom of expression, including freedom of artistic creativity, which is the central feature of freedom of human thought and the ability of the human being to attain self expression.

 

2.       Freedom of expression is widely regarded as a right, enjoying supra-legal status, and at any rate constitutes one of the most fundamental features of a democratic society. It is very wide in extent and covers the right to express views which may be unpopular or unpleasant to certain audiences.

 

3.       Restrictions on the freedom of expression must of necessity be applied as narrowly as possible in order to protect the freedom itself. Nevertheless, the freedom cannot be entirely unrestricted, but must yield, in exceptional cases, to competing values, interests and principles. This applies, however, only to extreme cases where it is clearly shown, for example, that there is a close certainty of imminent danger to public order or security in allowing unlimited freedom of expression.

 

4.       In the present case, it was not sufficient to show that the literary and artistic expression as manifested in the film was liable to cause offence to some persons. In order to disqualify the film on the grounds put forward by the Board, it must be shown that such expression was so extreme in its offensiveness against the Christian religion, that public viewing of the film must be prevented. In the present case, the intensity and extent of the offensiveness was not proved, so that the decision of the Board could not be upheld.

 

5.       The fact that the film has been released for almost universal showing, including in most Christian countries, removes the basis from the argument that the screening of the film amounts to a serious offence to Christians. The "political" argument as to potential damage to the State of Israel in allowing the film to be shown has no foundation.

 

6.       The High Court of Justice in this case was bound to intervene in the discretion of the Board in disallowing the showing of the film in order to uphold the principle of freedom of expression, since there was no basis for restricting that freedom.

 

 

Israel Supreme Court Cases cited:

[1]   C.A. 723/74 "Ha'aretz" Newspaper Publication Co. Ltd. v. Israel Electric Corporation Ltd., 31 (2) P.D. 281.

[2]        H.C. 14/86 Laor v. Films and Plays Censorship Board, 41(1) PD 421.

[3]        H.C. 146/59 Cohen v. Minister of Interior, 14 P.D. 284.

[4]        H.C. 243/62 Israel Film Studios Ltd. v. Gueri, 16 P.D. 2407.

[5]        F.H. 3/87 Films and Plays Censorship Board v. Laor, 41(2) P.D. 162.

[6]        H.C. 351/72 Keinan v. Films and Plays Censorship Board, 26(2) P,D, 81.

[7]   H.C. 399/85 Kahana v. Executive Committee of Broadcasting Authority, 41(3) P.D. 255.

[8]   H.C. 73, 87/53 "Kol Haam" Co. Ltd.; "AI Atiahad" Newspaper v. Minister of the Interior, 7 P.D. 871.

[9]   F. H. 9/77 Israel Electric Corporation Ltd, v. "Ha'aretz"Newspaper Ltd., 32(3) P.D. 337.

[10] H.C. 243/81 Yaki Yosha Co. Ltd. v. Films and Plays Censorship Board, 35(3) P.D. 421.

[11] Election Appeals 2, 3/84 Neimann v. Chairman of Central Elections Committee for the 11th Knesset; Avni v. the same 39(2) P.D. 225.

[12]      Cr. A. 255/68 State of Israel v. Ben  Moshe, 22(2) P.D. 427.

[13]      H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(2) P.D. 233.

[14]      H.C. 153/83 Levi v. Commander of Israel Police Southern District, 38(2) P.D. 393.

[15]      Cr. A. 677/83 Borochov v. Yefet, 39(3) P.D. 205.

[16]      H.C. 206/61 The Israel Communist Party v. Mayor of Jerusalem, 15 P.D. 1723.

[17]      H.C. 448/85 Dahar v. Minister of Interior, 40(2) P.D. 701.

[18]      H.C. 896/87 Ayalon Insurance Co. Ltd. v. Broadcasting Authority, 43(1) P.D. 701.

[19] Bar Association Appeal 13/86 Hoter-Yishai v. Tel Aviv District Committee of the Israel Bar, 41(4) P.D. 838.

[20]      H.C. 807/78 Ein Gal v. Films and Plays Censorship Board, 33(1) PD 274.

[21]      H.C. 680/88 Shnitzer v. Chief Military Censor, 42(4) P.D. 617.

[22]      Cr. A. 126/62 Disenchik v. Attorney General, 17 P.D. 169.

[23] H.C. 549/75 Noah Films Co. Ltd. v. Films Censorship Board, 30(1) P.D. 757.

 

American Cases Cited:

[24]      Dennis v. United States 341 U.S. 494 (1951).

[25]      New York Times v. Sullivan 84 S.Ct. 710 (1964).

[26]      Joseph Burstyn Inc. v. Wilson 343 U.S. 495 (1952).

[27]      Superior Films v. Dept. of Education 346 U.S. 587 (1954).

 

Jewish Law Source Cited:

[A]       Ecclesiastes, Ch. 8, v. 8.

 

Objection to order nisi dated 30.11.88. Petition allowed and order nisi made absolute.

 

D. Peri, S. Schretzer - for petitioners;

N. Arad, Head of High Court Cases Dept., State Attorney's Office, - for respondents

 

 

JUDGMENT

 

            Shamgar P.:

            1. This petition concerns the decision of the Films Censorship Board to ban the showing of the film "The Last Temptation of Christ".

 

            2. That film was produced by the first petitioner. The second and third petitioners are the distributors of the film world-wide and in Israel respectively.

 

            The film, which was shot in Morocco, is based on the book of the same name by the Greek author, Nikos Kazantzakis, and was staged by Martin Scorsese.

 

            As to its content, the film describes the life of Jesus from the time of his sojourn in Jerusalem - including his baptism in the River Jordan, the adherence of his apostles, his miracles and the spreading of his doctrines - up to the time of his crucifixion. The film contains realistic overtones which give expression to the clear and obvious tendency of the author and the director to introduce human elements into the image of Jesus, despite the popular conception of his in the eyes of believers in the Christian faith. At the same time there is a dominant thread in the film which is purely Christian, the descriptions of the miracles affording an outstanding example of this. In other words, as in the book so in the film there are deviations from accepted Christian religious doctrine. But as against this the creators of the film could claim that the realism and the bases for the humanisation are included in most of the artistic and theatrical creations influenced by Christian doctrine, and even in those authorised and accepted by it. Nor is it superfluous to recall that this matter has been the subject of many theological and philosophical arguments and has been the cause of theoretical disputes and religious conflicts, as is well-known.

           

            One scene, which the objectors to the screening of the film noted in particular, depicts an ostensibly erotic hallucination in which the hero of the film participates. This episode describes Jesus' reflections on a possible alternative style of living other than being the victim of crucifixion. This is one of the scenes in which descriptions of Satan's attempts at seduction are described, and is the one which gave the film its title (of "The Last Temptation of Jesus").

 

            All comments on the content of the film are made without any intention of identifying, or clearly typifying of, any ideas and descriptions in the film, and are intended only to emphasise the central theme of the dispute based on the clash of opinion between those in favour of banning the film and those in favour of allowing it to be shown.

 

            3. As appears from the letter of the Censorship Board dated October 18, the Board decided not to allow the film to be screened in Israel because "in the opinion of the Board screening of the film which goes to the very foundations of Christianity would be most offensive to the religious feelings and faith of the Christian community."

           

            The petitioners appealed against this decision to the Board, who decided not to alter its earlier decision prohibiting the showing of the film. The petition before us concerns this prohibition.

           

            4. What is the normative framework within which the court's considerations are crystallised when deciding whether or not to interfere with the discretion of the council?

           

            The basis of our examination of this question is the essential rule of freedom of expression from which emanates, inter alia, freedom of artistic creation in the fields of literature and the visual arts. In this matter it is of course irrelevant whether the creation takes the form of theoretical, philosophical treatise, or a play, or any other visual medium. For us it is clear and straight forward that a person is entitled to express his ideas and thoughts publicly, including his interpretation of past, present and future events, without any restrictions. That is the central characteristic of freedom of human thought and man's ability to achieve self-expression.

           

            The theoretical point of departure from which freedom of expression derives is that the law may not prevent a person from behaving as he pleases, unless there be a positive reason for doing so owing to harm or possible harm to others. This is what is called, inter alia, the minimal principle of freedom (see K. Greenawalt, "Free Speech Justifications, 89 Colum L. Rev. (1989) 119). In order to give meaning to the principle of freedom of expression, substantial restraint must be exercised at the time of laying down any restrictions or reservations with respect to this right. In other words, for the sake of this end a special protected status must be conferred which safeguards this freedom against any retreat in the face of an opposing interest (F. Schauer, "Free Speech: A Philosophical Inquiry" (Cambridge, 1982) 5.) A similar idea was expressed in C.A. 723/74 [1], at p. 295:

 

"...The nature of freedom of expression, described as one of the basic constitutional rights confers upon it supra-legal it constitutes a guideline for the consolidation and drafting obligation to uphold of legislation and the reviewing of the legality of governmental authorities' actions. Furthermore, it has a direct influence on the legal interpretation of every enactment. Every restriction of the bounds and right extent of such emanating from an enactment, must be construed narrowly with the aim of giving this right maximum scope and not restricting it beyond what is clearly and distinctly obligatory according to the law (H.C. 75/76, "Hilron" v. The Fruit and Marketing Board, p. 653). Freedom of expression and a provision of law aimed at restricting it do not have similar and equal status. On the contrary, to the extent to which it is compatible with the text, this right must be given preference at all times over a provision of law which has a tendency to restrict it. To sum up, the criterion to be used in safeguarding the primary of freedom of expression, when it clashes with another right, should be fully manifested not only when the legislator drafts provisions of law, but also when the law is interpreted and its provisions are applied to circumstances in which its nature and implementation are reviewed in practice."

 

            5. The problem is, as has already been hinted, that this freedom cannot be absolutely unlimited, as the rights of one person cannot be allowed to prejudice the rights and freedoms of another or disturb public order.

           

            The question, therefore, arises as to what the extent of the limitation should be or, in other words, how extreme the disturbance of public order, or the prejudice of another's rights, should be in order to justify limiting a man's freedom (of expression). In order to solve this problem recourse symmetry is had to the rules of the application of which in practice is often not easy. We shall return to this matter later.

 

            6. The Censorship Board has been vested with the power to preclude in advance the showing of a play or film which prejudices public order (H.C. 14/86 [2] p. 430). As my colleague, Justice Barak, pointed out there:

           

"...The range of the (legislative- M.S.) purpose at the basis of the Ordinance is far-reaching, and includes prejudice of public order, whether as a result of a criminal act or of an immoral act or of any other act which is offensive to the feelings of the public or to its well-being (see H. 281/78, p. 409). Justice Silberg emphasised this as follows: 'It would appear to us-without entering into details - that the criterion by which the Board should be guided, when weighing up a decision to refuse or cancel a permit, should be that a film which is an offence to morals and good taste, or which can lead to demoralisation should not be allowed to be screened (H.C. 146/59, p. 284)."

 

            There is room for questioning whether the above criterion as defined by Justice Silberg is not too broad and sweeping. In accordance with the standards acceptable to us, and in particular in the light of the special status granted to freedom of expression, we would not today think of disqualifying a film or play only because it is 'offensive to good taste'. The Board- and even the courts - are not guardians of good taste, which is a subjective concept by its very nature and content. The court would not presume to educate theatre or cinema audiences in accordance with the artistic taste of the judges, such cultural paternalism being foreign to its philosophy. According to appropriate criteria only a serious, meaningful and extreme infringement of a protected value could serve as a cause for interference of the courts with freedom of expression. A narrowing of what was said in H.C. 146/ 59 [3] to a desirable dimension can be perceived to some extent in the words of Justice Landau in H.C. 243/62 [4] at page 2413. I referred to this in greater detail in F.H. 3/87 [5], page 163:

           

"As learned counsel for the petitioner rightly pointed out, we have adopted the test of 'near certainty'. Thus we cannot accept the petitioner's suggestion that we distinguish between publication of news, to which the said rule would apply, and publication of plays, to which a more stringent rule would apply- that is the rule that the showing of a play or film should not be permitted if it is 'an offence against morality or good taste, or likely to cause demoralisation' (in the words of H.C. 146/59).

 

As already stated, I do not think that there is room for the suggested distinction and, in particular, I do not think that there is any basis for it in the present case. This court has expressed its opinion on the question of expression on many an occasion (see, for example, H.C. 372/84; E.A. 2,3/84) and the judgment to which this petition refers gave expression to the traditional approach to this matter.

 

The suggested distinction between implementing and recognising a basic right, according to whether it applies to information or to literature and culture, is inherently inconsistent, with the basic principles which it purports to uphold. In short, the theory that the courts recognise that the Board can lay down standards of morality, consolidate educational standards and ban perfor­mances which are not educational in their opinion, is too far-fetched and is not consistent with our legal concepts."

 

            7. As mentioned above, the aim of the Cinematograph Films Ordinance is to vest the Board with the power to prevent in advance the public screening of a film which is prejudicial to public order. That is, in the context of the present case, the "protected value "to which I referred above.

           

            As already explained by Justice Barak in H.C. 14/86 [2]:

           

'"Public order' is a wide term which is difficult to define and which changes according to its context. In its present context it includes endangering the existence of the State, its democratic regime and the public welfare, and offending morals, religious sentiments and a person's good name, as well as prejudicing the guarantee of fair judicial process and similar matters concerning public order (see H.C. 243/62, p. 2418; H.C. 81/78. p. 409; H.C. 807/78)."

 

            We have seen that disturbing public order - which includes also outraging religious sentiments - can be a cause for restricting freedom of expression, as has in fact been confirmed by this court in, for example, H.C. 351/72 [6] p. 813; and see also H.C. 399/85 [7], p. 295.

           

            Thus, although freedom of expression also fosters freedom of religion, such freedom does not extend to cases where there is a serious offence to religious sentiments. In other words: freedom of expression produces an atmosphere of tolerance of others' opinions, and this is the breeding ground for freedom of religion (L.C. Bollinger, "The Tolerant Society" (Oxford, 1986) and see also V. Blasi, "The Teaching Function of the First Amendment", 87 Colum. L. Review (1987), p. 387).

           

            But this tolerance should not serve as a license for seriously outraging the religious sentiments of others. One can even say that serious offence to religious sentiments is the antithesis of tolerance, which is directed to the positive cultivation and advance of human self-expression and not for outraging and suppressing feelings. Mutual tolerance among persons of different outlook, opinions and faiths is a fundamental precondition for the existence of a free, democratic society, and serious offence to feelings is not consistent with that. We have held, therefore, that both plays and films are not exempt from the obligation to refrain from seriously and sub­stantively offending the religious sentiments of others (H. C. 351/ 72 [6] above). There are, therefore, circumstances in which the basic principle of freedom of expression must retreat before such outrage.

           

            8. Hence comes the derivative question: how serious does the outrage have to be in order to justify restricting freedom of expression? In other words, as already mentioned, we accept the fact that in certain circumstances there could be a clash between freedom of expression and the aim of preserving public order, both of which are basic values of our policy concepts and our system of law.

           

            There is, therefore, a kind of competition, in the language of Justice Agranat (as he then was) in H.C. 73/53 [8], between two interests, each of which is of primary importance from the point of view of social policy.

           

            The solution to this "tug-of-war" lies in finding a balance between the competing, and even conflicting, principles (see H.C. 14/86 [2], p. 434). This balance was struck by the court by laying down a value guideline (F.H. 9/77 [9], p. 361) which is consistent with the enlightened views of our society. According to our concept, freedom of expression cannot be restricted because of an affront which is not serious. Only an extreme, offensive and deep affront would justify restricting freedom of expression (H.C. 351/ 72 [6] and H.C. 243/81[10]).

           

            9. Insofar as the probability of an affront inducing us to restrict freedom of speech for reasons of public order is concerned, we have adopted the test that if there be a "near certainty" in a concrete case that implementation of some particular right would prejudice public safety or order, then a statutory authority with the competence to do so may restrict in practice the implementation of that right (E.A. 3,2/84 [11], pp. 265-266). In that case I quoted as follows from Douglas J.'s judgment in Dennis v. United States [24]:

           

"The restraint to be constitutional must be on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California, 274 U.S. 357, 376-377:

           

'Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one'".

 

            This concept was adopted by us, as already mentioned, in that we laid down that the offence must be serious, extreme, and gross and that there must be a near and inevitable certainty that it would harm public order.

           

            The test of ''near certainty" is an objective one, and the court will examine, within the scope of judicial review in a concrete case before it, whether the rest served as a theoretical guideline only for the statutory authority or whether it was also applied as a practical criterion in a proper and correct manner.

           

            10. In the case before us was there a near certainty that there would be a serious disturbance of public order as a result of the alleged offence to religious feelings?

           

            The Board decided to impose the ban on the film on the grounds that screening it would cause serious outrage to the religious feelings and faith of the Christian community. Such outrage could, on a suitable occasion, provide a cause for disqualifying a film (H.C. 351/72 [6]). But the question before us is whether there was a real basis for the Board's opinion that the expected outrage would be so exaggerated and serious as to warrant their conclusion, which was based on two main factors: first, an independent viewing of the film and the conclusion concerning the possible outrage which could result from it; and, secondly, the many written requests which they received sought to persuade them that it was only right to ban the picture.

           

            11. I am of the opinion that in the case before us there was no justification for banning the film. I am not oblivious of the fact that the theses and theories put forward in the film often clash with accepted, official Christian doctrine. But the Christian world is also pluralistic and in order to disqualify the film one must be satisfied that the literary and artistic subjective expressions of the author, Kazantakis, and of the director, Scorsese, are so extremely offensive to the Christian faith as to warrant suppression of their public expression in Israel. The fact that the film could arouse opposition, and even disgust, amongst some of those who elect to see it, is not sufficient.

           

            In this context, one cannot ignore the fact that Jesus is portrayed in the film in a positive and sympathetic manner and that his super-human power is a basic element in the concepts of the author and director. Incidentally, the only ones to come out negatively in the film are the Jews who fought against the Romans and those among the common people of Jerusalem who did not follow Jesus. But that, also, would not justify banning the film on the basis of the criteria by which we have formulated our decisions in similar cases.

           

            For my part, the main thing is that the decisive majority of the Christian public will not see this film in Israeli cinemas but will see it throughout the Western world. I cannot see the logic of banning a film in Israel because it is ostensibly so extremely offensive to the Christian community, whereas at the same time it is being shown, without any legal restrictions, in all the countries of the Christian world (including Italy, Spain, Germany and France).

           

            I cannot accept the argument that we should restrict freedom of expression more stringently than is common in Western countries with purely Christian populations. This argument has an un­complimentary and unconvincing implication: the theory that there is a difference between the level of education and sophistication of the local Christian population and that of other countries, as suggested in several of the letters sent to the Board, contains an unjustified insult against the Christians in Israel, and, in particular, has simply no factual basis. With all due respect, there is no foundation for the opinion that the Christian inhabitants of Nazareth of Ramallah are culturally inferior to the inhabitants of Calabria or Normandy.

 

            There is no near certainty of serious and far-reaching danger to public safety which could justify limiting freedom of expression in the present case. There is no evidentiary foundation for deciding that what the Christians of Rome and Paris may see should be forbidden in Jerusalem. As to the argument about "an inclination towards evil" (in the words of Justice Agranat (as he then was) in H.C. 73/53 [8]) which could have a negative influence, I agree that one should not be oblivious to the fact that in the eyes of the believer every description which differs from the one accepted by, and sacred to him, would annoy him. But "an inclination towards evil" is not sufficient to justify the suppression of free speech, and the extent and force of the injury must be substantial as explained above in detail. The free showing of the film in purely Christian countries is sufficient, in my opinion, to negate the reasons for banning the film, and to render illogical the adoption of a more extreme stand in our country. We are used to being open-minded and tolerant to the extreme even in the face of serious affronts to values which are at the foundation of our existence (see H.C. 14/86 [2]) so that there is no justification or logic for diverting from our accepted and traditional judicial standards and adopting a more extreme attitude in matters which are the subject of this petition.

           

            I would, therefore, allow the petition and make the order nisi absolute.

 

 

A. Barak J.:

 

            I concur with the President's judgment and with the observations of Justice Goldberg. Because of the importance of the problem before us, I should like to add several comments.

           

            1. Freedom of expression is one of the basic values of our law (H.C. 14/86 [2], p. 878). It constitutes a "supreme right" (in the words of Justice Agranat, as he then was, in H.C. 73/53 [8]). There are those who vest it with a supra-legal status (C.A. 723/74 [12 ], p. 295). But even those who do not go so far regard it as being "the very essence of democracy" (Justice Agranat in Cr.A. 255/68). The justifications for this evaluation are complex and interwoven (see H.C. 399/85 [7]).

           

            One justification is the desire to lay bare the truth. Freedom of expression must be ensured in order to enable different and variegated views and ideas to compete with one another. This competition and not a directive from above, will, in the final analysis, lead to revelation of the truth. Another justification is the need for man's self-fulfilment. Only through freedom of expression can this self-fulfilment be attained. A third justification bases freedom of expression on democracy. "The principle of freedom of expression is connected closely with the democratic process" (Justice Agranat in H.C. 73/53 [8], p. 876). Freedom of expression is an essential requisite for the existence and development of a democratic regime (H.C. 372/84 [13]).

           

            The connection between freedom of expression and democracy has many different aspects. Freedom of expression guarantees an exchange of opinions between members of a society and thus enables them to formulate their approach to matters of national interest. In that way a government can be moulded, controlled and replaced. Furthermore, freedom of expression contributes towards social stability, as social pressure receives expression from speech rather than from deeds. In addition, a democratic regime is based on tolerance. Freedom of expression enhances tolerance and thus strengthens democracy. Thus between freedom of expression and democracy there is a state of mutual interdependence. Democracy is the basis for freedom of expression and freedom of expression gives democracy the breath of life. Without freedom of expression democracy loses its soul. That is why freedom of expression enjoys a special status. It ensures the existence of a democratic regime which, in turn, ensures the existence of other basic rights.

           

            2. Every discussion of freedom of expression necessarily entails reference to two separate questions: first, what is included in that basic value called freedom of expression and what is excluded from it. This differentiation creates a boundary-line for expressions which are "covered" by the principle of freedom of expression. It competes with the question of what could be called "expression" within the meaning of this basic value. For instance, would freedom of expression "cover" the giving of false evidence in court or would perjury be completely excluded from its framework? Is the right to demonstrate included with freedom of expression, and does such freedom cover commercial advertising?

           

            Secondly, what is the extent of the protection which the law gives to those expressions which are included within the framework of freedom of expression. Do they have "absolute" protection or only relative protection? And if they have only relative protection what are the criteria thereof? (see Schauer, above, p. 89).

           

            3. Our approach to the question of the scope of freedom of expression is a broad one. Such freedom applies to every expression, whether political, literary, commercial or any other, and whether verbal or behavioural (symbolic or otherwise) such as demonstrations (see H.C. 153/83 [14]). Within the framework of freedom of expression there is no differentiating between truth and falsehood. Therefore, in principle, even an expression which is defamatory is "covered" by freedom of expression (see Cr.A. 677/83 [15]). Freedom of expression extends to every expression, whatever its content, influence, or style. In the words of Justice Agranat in H.C. 73/53 [8], p. 877:

           

"The principle of freedom of expression serves as a means and an instrument for discovering the truth, since only by airing all points of view and by a free exchange of all opinions can that 'truth' be clarified."

 

            And President Shamgar supported this approach in holding that:

           

"Exchange of opinions, airing of viewpoints, public debate, the desire to know and learn and persuade are all essential tools at the disposal of every opinion, every point of view and very belief in a free society." (E.A 2/84[11], p 278).

 

            Freedom of expression, therefore, covers all opinions, whether popular or unpopular, whether those which people like to hear or those which annoy and are deviant, and those which "antagonise by their content, and disgust" (President Shamgar in E.A. 2/ 84 [11]). Freedom of expression is not only freedom to give quiet and pleasant expression to something. It is also freedom to cry out in a manner which grates on the ears (C.A. 206/61 [16] p. 1728). It also includes freedom to express an "uninhibited, robust and wide open opinion"(Judge Brennan in New York Times v. Sullivan, 1964 [25] p. 721, adopted by President Landau in F.H. 9/77 [9], p. 351) Freedom of expression covers "matters which annoy and grate on the ears" (Justice Beisky in C.A 2/84 [11], p. 325). Even an expression which is "a nasty spread of erotics, politics and aberrations of all kinds" comes within the framework of freedom of expression (H.C. 14/86 [2], p. 433). We have consequently held that racial expressions are covered by the principle of freedom of expression (H.C. 399/85 [7], p. 281). An expression offensive to religious sentiments, or which includes obscene material, is also covered by freedom of expression.

 

            4. Once a positive reply has been given to the question of "scope", the second question must be dealt with. This concerns the extent of the protection given to an expression by a particular system of law. This question assumes that we are interested only in expressions over which the principle of freedom of expression extends its protection. However, every system of law seeks to apply limitations on freedom of expression; and, therefore recognition of an expression as coming with the scope of freedom of expression does not mean that it is protected in all circumstances. The reason for this is that freedom of expression is not the only value which a democratic society seeks to preserve. There are additional values, the recognition of which justifies imposing limitations and restrictions on freedom of expression. For example, in every society it is common to find cause for restricting freedom of expression in order to protect a person's good name. Likewise, it is justified in every society to limit a person's right to demonstrate against the background of another's right to walk in the streets of the town. Similarly, it is natural for rowdy expressions to be restricted in consideration of the quality of life and the environment.

 

            The common approach in all systems of law is to regard freedom of expression as not being "absolute". Our conception is that freedom of expression is "relative". "A distinction must be drawn between freedom and unbridled license" (Justice Agranat in H.C. 73/53 [8], p. 878; President Landau in F.H. 9/77 [9], p. 343).

 

            "Freedom does not mean unbridled license, and there are circumstances in which it is vital to impose restrictions" (President Shamgar in E.A. 2/84 [11], p. 279). It could be argued that the distinction between "cover" and "restriction" is artificial, as when a "restriction" is imposed on freedom of expression then the expression is not "covered" by the principle of freedom of expression.

 

            I cannot accept this argument. The distinction between "cover" and "restriction" is very important. First, it emphasises the fact that prima facie the expression is protected, that it would require special justification in order to restrict it, and that in the absence of such justification it must be permitted. Secondly, where there is some restriction then freedom of expression would continue to exist beyond the restriction. The restriction does not establish the extent of the right, it only lays down limitations.

           

            5. The restrictions on freedom of expression take different forms, three of which are the main ones. The most serious restrictions are those which prevent expression in advance. This actually excludes publication, making the prejudice to freedom of expression immediate. This means that the protection given to the other values worthy of protection is the fullest. A less serious restriction is the criminal or civil liability of the person giving vent to the expression.

 

            Here the expression comes to light "in advance" while the perpetrator is liable "post factum". While restriction in advance "freezes" the expression, "post factum" liability "chills" it (see A. M. Bickel, the Morality of Consent [New Haven and London, 1975] p. 61). The third main restriction of freedom of expression - a "weak" one - is the regime of permits. According to this arrangement the State exercises control, through the medium of permits, over several aspects of freedom of expression. For example, permission is required for the publication of a newspaper, or a permit for holding a demonstration. It should be noted that these forms of restriction are not separated from one another. Very often the system requires a combination of several of them. Of course, the greater the combination the more severe the restrictions on freedom of expression.

 

            6. The restrictions on freedom of expression are of two kinds: first, a restriction whose source is in the content of the expression itself which is of such a nature that it could lead to consequences which a democratic society would seek to prevent. The legal system creates a balance between the freedom of expression value and values which that freedom could prejudice. Examples of instances in which freedom of expression would be curbed can be found in the defamation laws, in the criminal laws with respect to obscenity and in the sub judice rule. Censorship of films and plays would be included in this kind of restriction, as the purpose of censorship is to protect the public against the harmful content of the expression itself. As these restrictions prejudice the very essence of freedom of expression every democratic society will confine them to the most vital instances only.

           

            The second kind of restriction of freedom of expression is not connected with the content of the expression itself, but with its method of communication. The system of law creates a balance between the way in which freedom of expression operates in practice (without any connection with the content of the expression itself) and other values which are prejudiced by its application. An example of this can be found in laws which curb the freedom of demonstration. This restriction is not aimed against the content of the message which a demonstration seeks to deliver, but to the manner in which it is delivered, which could harm freedom of movement or other values which society seeks to protect (see M. Nimmer, On Freedom of Speech: A Treatise on the Theory of the First Amendment [1984] pp. 2-25; L.H. Tribe, American Constitutional Law [Mineola, 2nd ed. 1988] p. 789).

           

            7. When is it justified to restrict freedom of expression, and how should the restriction be applied? There is no general reply to this question. It all depends on the values, interests and principles with which freedom of expression clashes (see H.C. 153/83 [14]; H.C. 448/85 [17]).

           

            There can, therefore, be instances in which freedom of expression would not be restricted at all, and would be given full force, where there is no value or interest which justifies curbing it. Where there are values and interests which would justify curbing freedom of expression, a clash would be created which would require finding a balance between the restriction and the competing value. This balance could be laid down by the legislature itself. In the absence of any enactment the balance will be laid down by the courts. Since the Kol Ha-am case (H.C. 73/53 [8]) we have accepted the idea that this balance should be one of principle and not an ad hoc one.

 

            We have to establish a "rational principle" (Justice Agranat in H.C. 73/53 [8], p. 881) which would constitute "a yardstick which contains a value guideline", which distancing ourselves from any "random paternalistic yardstick, whose direction and nature no-one can evaluate in advance" (Justice Shamgar in F.H. 9/77 [8], p. 361). This yardstick balances the various conflicting values and provides a "balancing formula" in principle. This formula revolves round two axes: the seriousness of the injury which revolves around freedom of expression causes to other interests deserving of protection; and the probability of such injury occurring. I emphasise this in another case as follows:

           

"The Board's powers are determined by the need to preserve public order. This criterion raises two questions, the answers to which are relevant to the petition before us: first, what is the intensity of the harm to public order, and whether all harm, however slight, would allow use of the Board's powers; and, secondly, what is the extent of probability which must exist between the showing of the play and the harm to public order, and whether it is sufficient that there was a distant probability of this harm's occurring in order to justify the use of the Board's powers (H.C. 14/86, p. 431)."

 

            8. We must approach an examination of the petition before us against the background of this normative attitude. The first question to be asked is whether a cinematographic expression would come within the framework of the principle of freedom of expression. The unequivocal answer to this question is that freedom of expression covers also cinematographic expressions. It is true that these latter expressions have a commercial aspect, but we have held in the past that commercial expressions are also covered by the principle of freedom of expression (see Joseph Burstyn Inc. v. Wilson [26] and H.C. 896/ 87 [18]; see also Bar Association Appeal 13/86 [19]). Freedom of expression does not distinguish between different forms of expression (see Superior Films v. Dept. of Education [27]).

 

            The second question which arises is whether in the circumstances of the case before us there could, in principle, be values or interests which come into conflict with freedom of expression, requiring a balance between them to be found. For example, if freedom of expression results in harming the good name of a person or public, this would usually harm values and interests which must be protected. The balance between these competing values is effected mainly by the legislator, in the Defamation Law, 1965 (see F.H. 9/77 [9] above). Similarly, if freedom of expression violently harms public order (in the case, for instance, of bodily injury or injury to property) then it is usual to restrict this freedom for the sake of protecting physical and proprietary values (see H.C. 907/78 [20]). The same rule applies when an expression endangers the security of the State (H.C. 680/ 88 [21], or judicial integrity (Cr.A. 126/62 [22]). In the absence of sufficient legislative guidance this balance is effected mainly by case law, in which tests with respect to the nature and extent of the harm and the probability of its occurrence are laid down.

 

            9. In the circumstances of the petition before us are there interests and values which justify restricting freedom of expression? It was argued before us that religious sentiments are values which must be protected against injury caused by the implementation of the principle of freedom of expression. Is this an acceptable argument? The question is far from being a simple one. On the one hand, one can say that there is no reason for distinguishing between injury to body or property and injury to sentiments; and just as it might be justified to restrict freedom of expression in the former case so would it be justified in the latter case. But, on the other hand, one can say that every expression might harm some sentiment and recognition of harm to sentiments as a basis for restricting freedom of expression- without drawing any distinction between religious sentiments and other sentiments - could make an empty letter of freedom of expression.

           

            It is difficult to decide between these conflicting opinions. Different systems of law could produce conflicting conclusions and under any system of law the answer to the question could vary in accordance with the differences in the context in which the question arises. We can, therefore, frame the question as follows: within the framework of the Cinematographic Films Ordinance is the Censor­ship Board, established by virtue of that Ordinance, entitled to take into consideration injury to religious sentiment as a cause for restricting freedom of cinematographic expression? In my opinion the answer to this question is in the affirmative, for the following reasons.

           

            First, the very nature of "censorship" of films calls for granting this power. It is true that one can object to censorship on the grounds that there is no justification for allowing a government body to restrict freedom of expression on account of injury to sentiments. But once censorship exists then the power to restrict freedom of expression on account of injury to sentiments follows from its very nature. It is inconceivable that the only function of the Censorship Board should be to examine whether showing a film would constitute a criminal act or not. The make-up of the Board and its functions point to the fact that injury to sentiments - alongside injury to other values - is a consideration which it should be able to take into account.

           

            Secondly, in Israel it is a criminal offence to outrage religious feelings (section 173 of the Penal Law, 1977). So that the Board would be entitled - although not obliged - to include the criminal nature of a publication amongst its considerations (see H.C. 351/ 72 [6]). Furthermore, in a long series of judgments the Supreme Court has recognised outrage of feelings (religious, bereavement and others) as an injury to values which justifies, in principle, the use of the Board's powers to restrict freedom of expression (see H.C. 146/59 [3], H.C. 243/81 [10], H.C. 14/86 [2]). '"The consideration which we owe to their feelings counterbalances the abhorrence of all forms of censorship". (H.C. 243/81 [10], p. 425).

           

            10. In short, the feelings of the public are values which the Censorship Board, in its capacity as censors of films, should take into consideration and any outrage of those feelings could justify curbing freedom of expression. Against this background comes the third question which concerns the kind of outrage which would justify curbing freedom of expression. This question can be divided into two subquestions: the seriousness of the outrage and the probability of its occurrence. I shall examine each separately.

 

            11.. An outrage against public feelings must be "harsh, serious and severe" in order to justify imposing a limitation on freedom of expression. (H.C. 14/86 [12], p. 435). What is the meaning of this test? It reflects, in my opinion, the conception that a democratic society, by its very nature and content, is based on tolerance of others' opinions. In a pluralistic society tolerance is the one power allowing for shared existence. Thus, every member of the public takes upon himself the "risk" of suffering some offence to his feelings in the course of free exchange of opinions. A society which is based on social pluralism must, therefore, allow free exchange of opinions even though this may hurt the feelings of those who object to the opinions. "That is the other side of the mutual tolerance necessary in a pluralistic society (Justice Witkon in H.C. 549/75 [24] p. 764). Recognition of the fact that there is bound to be a certain degree of exposure to hurt feelings on the part of members of the public follows from the very nature of a democratic regime. A "harsh, serious and severe" outrage, justifying the curbing of free expression within the framework of censorship of films, is that same outrage which exceeds "the tolerance standard" of a democratic society (see H.C. 243/81 [10] p. 425).

           

            So that when we are concerned with the matter of a film which takes a stand on a controversial subject (historical, religious, social or other) and does so in a manner which does not involve criminal liability - in that it does not contain anything obscene or outrageous to religious feelings - it would be difficult to imagine situations in which such "harsh, serious and severe" damage is caused as crosses the boundary-line of what is permissible in a democratic society, whether it contains some factual truth or not (see H.C. 807/78 [20], p. 277). It should also not be forgotten that the same creation in the form of literature would be accepted unconditionally, and, furthermore, that no-one is forced to see a film, or be exposed to its message. This would appear to be the rule to be gleaned from the judgment in H.C. 351/72 [6], in which the Supreme Court held that a play outraged the feelings of bereaved parents and assailed moral social values, but that was not sufficient to justify curbing free expression. According to Justice Landau (at p. 816):

 

"...there is no doubt that the offences to the feelings of bereaved individuals and the public as a whole with which the words of the play testify to unprecedented strewn callousness and vulgarity. But we would still have hesitated to confirm the banning of the play, however repulsive to us it may be, were that the only reason for doing so, for fear of prejudicing the freedom of expression."

 

            In that way Justice Landau gave expression to this court's opinion that "the tolerance standard" of our society towards the expression of controversial opinions which are not against the law is very high. Only in the rare and exceptional case would there be found to have been "harsh, serious and severe" damage in a film which conveys a message not containing anything criminal to a "non-captive" audience. Such cases could occur, of course (see H.C. 243 / 81 [10]), but our tradition of freedom of expression and the fact that we recoil from imposing an early ban based on the content of the expression itself, limits such cases to only the most exceptional. These must be cases which shock mutual tolerance to the very limit.

           

            And note that the fact that screening a film may constitute a criminal offence (such as publishing something calculated to outrage religious feelings, contrary to section 173 of the Penal Law, or publishing any obscene matter contrary to section 214 of the Penal Law) is not an essential or sufficient precondition for an advance prohibition on the part of the censor. It is not an essential precondition because a film can, in certain exceptional circumstances, cause outrage in a harsh, serious and severe manner without breaking the law. It is not a sufficient precondition because a balance between conflicting values could justify refraining from imposing an early ban (through censorship) while having recourse to banning "after the event" (through ordinary criminal pro­ceedings). Nevertheless, the criminality of a play has substantial meaning, as it reflects the attitude of Israeli Society to its "red lines".

           

            12. This is of particular significance insofar as a film dealing with religious matters is concerned. It is only natural that religious beliefs should penetrate to the depths of the individual's conscience. A contrary religious belief is not only an intellectual outlook with which one disagrees. It can also constitute an outrage to feelings. The atheist can outrage the feelings of the believer. Followers of opposing faiths can outrage one another's feelings. That is the reality of life which a democratic society must accept. It is this very difference which unites us around what we have in common. Thus, a democratic society must recognise that there are outrages against religious feelings. Only in this way can those who have different religious beliefs live together. The solution is not to repress the offensive opinion. Frankfurter J. noted quite rightly that:

 

"To criticize or assail religious doctrine may wound to the quick those who are attached to the doctrine and profoundly cherish it. But to bar such pictorial discussion is to subject non-conformists to the rule of sects". (Joseph Burstyn, Inc. [27] p. 519).

 

            But nor does the solution tie in repressing all controversial opinions, as that would suffocate the human spirit. The strength of democracy lies in the freedom it accords to the creative person to release what is locked in his heart, to spread his wings and give free vent to his thoughts. "The writer or dramatist may aim, to his heart's content, the whip of criticism or satire at preachers of religion who sin, as did Moliere in 'Tartuffe' or, in our times, Hochhut in 'The Representative'." (Justice Landau in H.C. 351/72 [6], p. 815).

           

            13. The play which is the subject of this petition does, without any doubt, outrage the feelings of Christian believers. My colleague, Justice Maltz, even points to a particularly serious outrage. However, such outrages do not exceed what is permissible in a democratic society, founded on tolerance and pluralism.

 

            During the course of proceedings we asked respondents' counsel whether in her opinion screening of the film would constitute the criminal offence of publishing something which could outrage religious feelings, contrary to section 173 of the Penal Law. She replied in the negative. To her credit she noted, on the contrary, that the film has artistic value, and does not constitute a criminal offence. If to this one adds the fact - as pointed out by my colleague, the President - that the film is being shown in most countries of the world (except for India and Pakistan), including the Christian countries, in some of which there is film censorship, then it is clear that the film's offensiveness is not so serious as to justify the advance banning of its publication in a democratic state which recognises the tradition of freedom of expression and is built on tolerance of opposing opinions. In this connection any outrage committed by the publication of the book or the making of the film should not be taken into account. We are concerned only with outrages to religious feelings by the fact that the film is being shown in Israel. Furthermore, the outrage which must be considered is to the feelings of those who will not see the film, as no-one is obliged to see it. We are, therefore, not concerned here with a captive audience. In such circumstances, the offensiveness of the film does not cross the threshold of "harsh, serious and severe damage".

 

            14. In the light of my conclusion concerning the nature of the damage, I do not need to examine the question of the probability of its occurrence. According to the precedents on this subject the test of probability to be applied in matters concerning the powers of the censor is that of "near certainty." (see H.C. 243/62 [4], H.C. 14/86 [2]). It is not sufficient that there should be "malice" or the possibility - even if reasonable - that the damage could occur. There is also no need for real certainty that the harsh, serious and severe damage should actually materialise. The demand is for a causal relationship of the nature of "near certainty". If, therefore, I thought that in the petition before us the outrage to religious feelings had overstepped the permitted threshold, I would have thought that the causal test existed, as there would be not only a near certainty, but a real and indisputable certainty - that religious feelings had been outraged. I therefore concur with Justice Goldberg's comments.

           

            15. I have, therefore, reached the conclusion that screening the film will indeed outrage the religious feelings of believers, but that the damage is not harsh, serious and severe to the extent that would justify refusing a permit for the showing of the film. On the other hand, the Censorship Board was of the opinion that showing the film would outrage the religious feelings of believers in a harsh, serious and severe manner. Can we, in these circumstances, exchange the Board's discretion for our own? Would that not be non-permissible interference with the exercise of a government authority's discretion? In my opinion it is our right and duty to interfere, in such circumstances, with the Board's exercise of discretion. I discussed this in a previous case in the following words:

 

"The Board does not have the discretion to choose a possibility which does not contain the elements of near certainty and serious danger. The Board's subjective opinion that the danger is serious and that its occurrence as a near certainty is not relevant. The test of near certainty and serious danger is an objective one. The Court must be satisfied that a reasonable Board was entitled, on the basis of the facts before it, to reach the conclusion that the danger was serious and that its occurrence was a near certainty. To that end the Court has to be satisfied that the Board gave proper weight to conflicting basic principles, that is, to freedom of expression on the one hand and public order on the other hand. "Proper weight" in this case means weight that the Court is of the opinion would be consistent with the requirements of an enlightened democratic society." (H.C. 14/86 [2], pp. 438-439).

 

            The question, therefore, which is before us is a basic constitutional one. It touches on the nature of freedom of expression and its limitations. The responsibility for all these matters rests with the courts. The question before us is not that of choosing between opinions in the field of reasonableness. It is the fixing of bounds for that field itself.

           

            For these reasons I concur with my colleagues that the order nisi should be made absolute.

           

            S. Levin J.: like my distinguished colleague, Justice Barak, I too am of the opinion that the extent of our permissible interference with the decision of the Censorship Board is wide, as long as we are dealing with basic rights. From an examination of the minutes of the Board and of their decision, it transpires that the Board gave great weight to letters from intellectuals who objected to permitting the film to be screened. Some of their reasons centered on the fact that the showing of the film would be extremely offensive to the Christian population of Israel in particular, while others concentrated on the damage which could be caused to Israel itself, although even they did not deny the film's artistic value. For the reasons enumerated by Justice Barak in paragraphs 12 and 13 of his judgment, in particular, I think that the decision of the Board is not well-founded, while the "political" reason - that is, that showing the film would cause damage to Israel- is, to the extent that it served as a prop for the Boards' considerations, invalid per se in my opinion. Respondents' counsel agreed that the showing of the film would not constitute a criminal offence, and I shall, therefore, refrain from expressing an opinion on the question of what the law would be if it transpired that showing the film was indeed a criminal offence.

 

            I concur that the order nisi should be made absolute.

           

Justice E. Goldberg:

          In a clash between two basic values it is essential to assess the "comparative social importance of the various principles" (Justice Barak in H.C. 14/ 86 [2] p. 434) together with the probability, impact, extent and scope of the damage caused by one of them to the other.

           

            The probability test for the risk of the damage's occurring does not, in my opinion, come within the scope of the present case. The need to consider the probability of a risk of damage arises as long as it is not possible to make a factual finding on the basis of evidence. So then we would have to assess the extent of the likelihood of the damage occurring (or not occurring) and we would then hold that the test of "near certainty" would be the proper test for purposes of the Censorship Board's powers, as "the test of' public order would be a consequential test" (H.C. 14/86 [2] above, pp. 430-1).

           

            We would then have to assess the degree of risk that a film might be prejudicial to public order and whether this reaches the level of "near certainty" or whether this degree of certainty exists with respect to the film because "the special power of persuasion in the pictorial material would serve as an effective instrument of incitement" (H.C. 8907/78 [20] p. 278).

           

            But when we can establish in an independent way whether the film outrages religious feelings or (to give another example) if it damages the good name of any person, we do not need to assess the probability of damage being caused. We can perceive with our senses whether or not damage has been inflicted (the extent of the damage) constituting a separate question, as stated below). In our case it would appear that no-one disputes the fact that screening of the film would offend a section of those who believe in the Christian faith.

           

            The central question for us to put forward is, therefore, whether there is an irreconcilable conflict between freedom of expression and public order (as personified by an outrage to religious feelings) which obliges us to seek a solution to "the parallelogram of forces" and find a "balancing formula" between principles; or whether we have to regard this as an "ancillary" conflict and not a "frontal" one between principles, which allows for co-existence, even if not a peaceful one, making the balance "natural" and self-understood.

           

            I do not underestimate the offensiveness to some viewers of the film. But neither the gravity of the offensiveness nor its extent make me question the words of the wisest of all men: "There is no man that hath power over the spirit to imprison the spirit" (Ecclesiastes  8.8[A]).

 

            I concur, therefore, with the judgment of the distinguished President.

           

            Maltz J.:

           I approve of the analysis of the legal position established by our caselaw, as summarised in the President's judgment, and with the conclusion he has reached.

           

            In the whole film I found only one scene which I considered would give serious, extreme and rude affront to the religious feelings of Christians. I refer to the imaginary conversation between Jesus and Paul in which Paul says to Jesus: "If you had not been crucified, I would have crucified you myself"'. I weighed up whether it would not be desirable to make the showing of the film conditional upon the excision of this scene. But on second thoughts I came to the conclusion that against the background of the film as a whole this scene would not create a near certainty of endangering public safety or order.

 

            I, therefore, concur with the President's opinion that the film should be allowed to be shown.

           

            Petition allowed and order nisi made absolute.

           

            Dov Peri and Shaul Stratzker appeared for the Petitioners, and Nili Arad, Director of the High Court Division of the State Attorney's Office, appeared for the Respondents.

           

Judgment given on 15.6.89.

 

 

 

 

 

Petition granted.

12 Sivan 5767.

29 May 2007.

 

 

+

 

THIS DOCUMENT IS A DRAFT, AND IS SUBJECT TO FURTHER REVISION.

 

 

HCJ 6055/95

HCJ 7083/95

Sagi Tzemach

v.

1.            Minister of Defense

2.            Military Chief of Staff

3.            Chief Military Prosecutor

4.            Chief Military Police Officer                         HCJ 6055/95

 

1.            Major Vered Ornstein-Zahavi

2.            Major Moshe Kanobler

3.            Captain Lior Tomshin

4.            Captain Orli Markman

5.            Captain Moshe Levi

 

v.

1.            Chief Military Attorney

2.            Chief of Military Police           HCJ 7083/95

 

 

 

The Supreme Court Sitting as the High Court of Justice

[October 14, 1999]

Before President A. Barak, Deputy President S. Levin, and Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, and D. Beinisch

 

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

 

Petition granted.

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions “for other reasons,” the growing number of students covered by the exemption has pushed the matter beyond his authority. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

For the petitioner in HCJ 6055/95—Aryeh Avriel and Yehonatan Ginat

For the petitioners in HCJ 7083/95—Dan Yakir and Moshe Cohen

For the respondents—Malchiel Blass, Deputy State Prosecutor in Charge of High Court Petitions

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty, ss. 1, 2, 5, 8, 9, 10.

 

Israeli Legislation Cited:

Military Adjudication Law-1955, ss. 1 (the phrases, “tribunal officer,” “petty tribunal officer,” “senior tribunal officer”), 234, 234(a), 235-241, 236, 237, 237A, 237A(a), 237A(b), 237A(c), 237A(d), 239, 241, 243C.

Criminal Procedure Law (Enforcement Authority – Arrests), 1996, ss. 1(c), 29(a), 42, 44.

Military Adjudication Law (Amendment No. 15), 1982.

Military Adjudication Law (Amendment No. 23), 1993.

Military Adjudication Law (Amendment No. 32), 1996, s.8.

Military Adjudication Law (Amendment No. 32) (amended) 1998.

Interpretation Law-1981, ss.1 (the phrase, “day”), 9, 10(a), 10(c), 11.

Criminal Procedure Ordinance (Arrest and Search) [new version], 1969, s.16.

 

Bills Cited:

Military Adjudication Bill-1949.

Military Adjudication Bill (Amendment No. 16)-1982.

Military Adjudication Bill (Amendment No. 32) (amended)-1998.

Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release)-1995.

 

Israeli Supreme Court Cases Cited:

[1] HC 73/85 “Kach” Party v. Speaker of Knesset, IsrSC 39(3) 141.

[2] HC 2581/91 Salchat v. Government of Israel, IsrSC 47(4) 837.

[3] HCJFH 4110/92 Hess v. Minister of Defense, IsrSC 48(2) 811.

[4] HC 2320/98 El-Amla v. Commander of IDF Forces in the Region of Judea and Samaria, IsrSC 52(3) 346.

[5] CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor, IsrSC 51(2) 686.

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

[7] APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136.

[8] CrimApp 8087/95 Zada v. State of Israel, IsrSC 50(2) 133.

[9] HC 5000/95 Bartala v. Chief Military Prosecutor, IsrSC 49(5) 64

[10] CA 88/53 Kaplan v. Rosenzweig, IsrSC 9 1296.

[11] HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister, IsrSC 51(4) 367.

[12] HC 405/74 Bar-Ad v. Captain Madar, IsrSC 29(1) 54.

[13] HC 243/80 Madjhinski v. Military Appeals Tribunal, IsrSC 35(1) 67.

[14] HC 118/80 Greenstein v. Chief Military Prosecutor, IsrSC 35(1) 239.

[15] HC 695/88 Adler v. Military Appeals Tribunal, IsrSC 35(1) 67.

[16] CrimFH Ganimat v. State of Israel, IsrSC 49(3) 589.

[17] HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister, IsrSC 47(4) 715.

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

[19] HC 4541/94 Miller v. Defense Minister, IsrSC 49(4) 94.

[20] HC 3648/97 Stameka v. Interior Minister, IsrSC 53(2) 728.

 

Israeli Books Cited:

[21] 3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional] (1994).

[22] 3 Y. Kedmi, Al Haraayot [On Evidence] (1999).

 

Israeli Articles Cited:

[23] A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

[24] Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Koach [Basic Law – Power Struggles], 1 Mishpat Umimshal 323 (1992-1993).

[25] A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “According to Law], 4 Mishpat Umimshal 381 (1997-1998).

[26] A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws], 2 Mishpat Umimshal  443 (1994-1995).

[27] E. Gross, Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [Military Arrest Laws], 5 Mishpat Umimshal 437(2000).

 

 

JUDGMENT

Justice I. Zamir

 

1. These two petitions raise one primary question: the constitutionality of a provision of the Military Adjudication Law, 1955, governing the period of time in which a soldier may be detained by a military police officer before being brought before a military judge.

 

2. The first petition (HC 6055/95) was brought by a soldier performing mandatory service who was arrested by a military police officer on September 26, 1995 on suspicion of desertion and held in a military jail. After he was detained for five days without being brought before a judge, the petition was brought on his behalf. It alleges that the provisions of the Military Adjudication Law, under which the petitioner was arrested, are null and void because they violate the Basic Law: Human Dignity and Liberty. The petitioner therefore asks the Court to order his release.

 

                Not long after the petition was filed, the petitioner was brought before a military tribunal which decided to extend his detention. An indictment was later issued, the tribunal convicted him, and it sentenced him to two and a half months imprisonment. He served his sentence and was released. He then sought to amend the petition to reflect these developments, and the petition before us asks the Court for a judgment declaring invalid sections 234 and 237A of the Military Adjudication Law, which authorize an adjudication officer to arrest a soldier. That and no more.

 

                The second petition (HC 7083/95) was brought by five military officers who, at the time the petition was brought, served as military defense lawyers (Petitioner 1: the District Military Defense Lawyer; Petitioner 2: Central Command Defense Lawyer; Petitioner 3: General Staff District Defense Lawyer; Petitioner 4: Air Force and Navy Defense Lawyer; Petitioner 5: Southern Command Defense Lawyer) and by the Association for Civil Rights in Israel (Petitioner 6). This petition also asks the Court to declare sections 234 and 237A of the Military Adjudication Law invalid. It also asks the Court to bar the detention of a soldier unless it is necessary for interrogation purposes or to prevent obstruction of justice or flight.

 

                The first petition is directed against the Defense Minister, the Military Chief of Staff, The Chief Military Prosecutor, and the Chief of Military Police; the second petition is directed against the Chief Military Prosecutor and the Chief of Military Police. Henceforth, they will all be referred to as the respondents.

 

                The Court issued an order-nisi in both petitions and, because they raise the same question, decided to consolidate them.

 

A Theoretical Petition

 

                3. Both petitions have a theoretical quality. They are not based on a set of facts, and they do not ask for a remedy for a particular instance, but rather raise a legal question, of a general nature, that is not grounded in the facts of a particular case.

 

                It is true that the first petition, when brought, was indeed concrete. It alleged that the petitioner was arrested under a warrant, by a military police officer, which was issued by force of an invalid law. It therefore requested an order releasing the petitioner. Once the arrest was extended by a military tribunal, however, the petition became moot.

 

                As a general matter, once a petition becomes moot, the Court does not hear it, even if it was at one point concrete. In other words, if the case which is the subject of a petition is resolved, by itself or by judicial decision, the Court declines to consider the legal question it raises. Judicial experience warns against establishing a precedent that would seem to hover in the air. The Court needs a foundation of facts, in a given situation, in order to build a precedent.

 

                The second petition was theoretical from the outset: it raised a general question, not grounded in a specific case. The Court generally refuses to rule on these types of questions, preferring to wait until the question arises in the context of a particular case.

 

                That is the rule, but there are exceptions. There have been instances in which the Court has agreed to consider a theoretical question, of a general nature, even though it was not grounded in a particular case. This has usually happened in cases in which the petition raised an important question, but it became apparent that there was no practical way for the court to rule on it unless it was presented as a general question, unconnected to any particular case. See, e.g., HC 73/85 “Kach” Party v. Speaker of Knesset [1] at 145-46; HC 2581/91 Salhat v. Government of Israel [2] at 841; HCJFH 4110/92 Hess v. Minister of Defense [3].

 

                Such is the case before us. It raises an important question, which implicates principles basic to the rule of law. It is a question of the authority to infringe on personal liberty by arresting and detaining someone without judicial oversight. The question arises every day, year after year, for many soldiers – according to the respondents, close to 10,000 soldiers each year. The question, however, is short-lived: it arises when a soldier is arrested by a military police officer; it is concrete for just a few days, until the soldier is released or brought before a military tribunal to extend his arrest, and then the question dies. If the Court did not agree to consider the constitutionality of the detention, merely because the soldier has been released and the petition has become moot, it would never be able to consider the question. The end result would be to render the decision to detain soldiers immune from judicial review. That would be a harsh result, inconsistent with the rule of law. In order to avoid such a result, the Court must consider the constitutionality of the detention even after the question has become moot. Compare, in the context of administrative detention, HC 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria [4] at 353-54.

 

                We therefore decided to consider the two petitions on the merits.

 

 

The Problems

 

                4. On the merits, the two petitions raise three questions:

 

                a. According to section 234(a) of the Military Adjudication Law, “An adjudication officer may issue an arrest warrant for a soldier ranked lower than him who is suspected or accused of committing an offense, for a period of no longer than seven days.” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                b. According to section 237A(a) of the Military Adjudication Law, “Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours …” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                c. May an adjudication officer arrest a soldier or hold a soldier in custody, where such detention is not required for interrogation purposes or to prevent obstruction of justice or flight?

 

                5. In effect, the petitioners, and hence the respondents, focused their arguments on the second question, in other words, whether section 237A(a) violates the Basic Law: Human Dignity and Liberty.

 

                The arguments of both sides regarding the first question, whether section 234(a) violates the Basic Law: Human Dignity and Liberty, were insufficiently comprehensive and thorough to serve as the basis for a decision on the constitutionality of the statute. This is especially the case when dealing with a theoretical petition, not based on the facts of a specific case, but rather seeking adjudication of a legal question of a general nature.

 

                As far as can be gleaned from the petitioners’ legal briefs, that first question appears to be of secondary, if not marginal, importance to the petitioners, within the context of this petition.

 

                In any event, because the arguments regarding this question are not as comprehensive and thorough as they need to be, our ability to decide the question is substantively impaired. Substantively, there is a big difference between the power of arrest authorized by section 234 and the power of arrest authorized by section 237A. The arrest power authorized by section 237A is the arrest power of a military police officer. It is primarily intended to facilitate investigations of suspects. In that sense, with the changes appropriate for a military context, it is similar to the arrest power of a civilian police officer. We can therefore draw a comparison between the military and civilian power of arrest, in order to evaluate the authority to infringe on personal liberty in light of the Basic Law: Human Dignity and Liberty. On the other hand, the arrest power in section 234 is unique to the military; clearly disciplinary in nature, it gives a military commander, whether or not he or she is a military police officer, the power to arrest a soldier under his or her command, if the soldier is suspected of committing an offense of a disciplinary or other nature. For example, it authorizes a military commander in any unit to arrest a soldier who disobeys an order, including in a combat situation. There is no civilian parallel to this power. In order to accurately evaluate the essence of the power, to determine its purpose, and to decide if it disproportionately harms the soldier, the Court must know a lot more about the power than is addressed in the legal briefs submitted in this petition. Moreover, according to the respondents, this power is rarely used to arrest soldiers for longer than a day. We therefore decline to rule on the question for now. Of course, the question may return to the Court at another time, when it is ripe for adjudication. On this issue, see paragraph 11, infra.

 

                6. The third question (which arose only in the second petition, HCJ 7083/95) addresses the grounds for arresting soldiers. It essentially asks whether there is room to distinguish the grounds for arresting a soldier under the Military Adjudication Law from the grounds for arresting a civilian under the Criminal Procedure Law (Enforcement Authority – Arrests), 1996. For example, can a soldier be arrested for violating rules of military discipline? The question came before the Court in CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor [5], but the Court declined to rule on it.

 

                In this case, too, we decline to rule on the question. First, the question of which circumstances constitute grounds for arrest in the military should arise in the context of a specific case before a military tribunal, after which it may reach us through an appeal (or petition) of a decision by the appellate military tribunal. The principle of alternative remedies mandates this result. If a soldier wishes to claim that there are no legal grounds to hold him or her in custody, the ordinary and correct way to do so is to raise the claim before the body authorized to approve or extend the arrest. In this case, there is no reason to circumvent this route by leapfrogging to this court via a direct petition. On the contrary: The Court should consider the question on the merits only after the appellate military tribunal has examined it and made a decision. Second, on this question, too, the parties failed to submit the complete and thorough arguments appropriate for such a difficult and important question, particularly in light of the fact that it is submitted as a theoretical question. The arguments submitted before the Court do not constitute a proper foundation on which to build the case law.

 

                7. As noted, the only question comprehensively and thoroughly argued before the Court is the second question: whether section 237A(a) of the Military Adjudication Law, authorizing an adjudication officer who is a military police officer to arrest a soldier for 96 hours, violates the Basic Law: Human Dignity and Liberty.

 

                That is the question we will discuss and answer in this judgment.

 

                In order to respond to this question, we must first present the evolution of section 237A of the Military Adjudication Law into its current form.

 

Section 237A of the Military Adjudication Law

 

                8.  In the original version of the Military Adjudication Law, passed in 1955, only one section, section 234, authorized an “adjudication officer” to arrest a solder “who is suspected or accused of an offense.”

 

                The power of arrest imparted to an adjudication officer, like the parallel power given to a civilian police officer, has always been designed to allow the adjudication officer investigate a suspected offense. See the Explanatory Note to the Military Adjudication Bill, 1949 at 114.

 

                The original version of section 1 of the Military Adjudication Law, like today’s version, defines an adjudication officer as “a junior adjudication officer and a senior adjudication officer.” A junior adjudication officer is “a unit commander ranked no lower than captain who is not a senior adjudication officer, or another officer whom the military chief-of-staff has imparted with the authority of a junior adjudication officer.” A senior adjudication officer is “a unit commander ranked no lower than lieutenant colonel, or another officer whom the military chief-of-staff has imparted with the authority of a senior adjudication officer.”

 

                According to additional sections of the law (sections 235-241), an adjudication officer who issues an arrest warrant must immediately present it to another adjudication officer whose rank is no lower than lieutenant colonel. If the second officer does not approve the warrant, the soldier must be released within 96 hours of the issuance of the warrant. The maximum period of arrest under the warrant is 15 days, but, with the approval of an adjudication officer ranked no lower than lieutenant colonel, it may be extended for additional 10-day periods. Section 241 of the law limited the maximum total period of arrest under an arrest warrant issued by an adjudication officer to two months, “unless the accused is brought before a [legally-trained – trans.] judge of the appellate military tribunal who issues an arrest warrant for an additional period, to be determined at the time of each extension.”

 

                In addressing the power of arrest, the original version of the statute did not distinguish between an adjudication officer who is a military police officer and any other adjudication officer. It also did not then distinguish, and still does not now distinguish, between types of offenses, i.e. between military offenses, including disciplinary violations, and other offenses.

 

                9. For 27 years, these were the provisions of the statute. Only in 1982 did the Military Adjudication Law first draw a distinction between the arrest power of an adjudication officer who is a military police officer and that of another adjudication officer, via the Military Adjudication Law (Amendment No. 15), 1982. The amendment added section 237A. Under this section, which is the focus of the petition, an adjudication officer who is a military police officer (hereinafter – military police officer) may, with the approval of an adjudication officer whose rank is no lower than lieutenant colonel, issue an arrest warrant for a soldier for a period of no more than 15 days and may extend the warrant twice, for a period of 10 days each time, with the advance written approval of a military attorney. The maximum period of detention under an arrest warrant issued by a military police officer is therefore 35 days.

 

                Reducing the maximum period of detention to 35 days under the amended law, as opposed to 60 days under the previous law, was, in the words of then-Defense Minister Ariel Sharon, “… a very important amendment which really corrected a lot of injustices that were allowed to occur under the previous law.” See Knesset Record 92 (5742-1982) at 1058.

 

                Members of Knesset welcomed the proposed reduction of the period of detention, and some even proposed reducing it further, in light of the significantly shorter period of detention (at the time, 48 hours) which may be ordered by a civilian police officer. “Procedure,” quoted Member of Knesset Shevah Weiss, “… is the Magna Carta of the accused.” Id. at 1061.

 

                The amended law from 1982 also reduced the maximum period of arrest for which an adjudication officer who is not a military police officer may issue a warrant. Under the new version of section 237, arrest authorized by such a warrant may be for no longer than seven days, although such period may be extended for eight additional days, with the advance written permission of a military attorney. In other words, no more than 15 days of detention may be authorized by an adjudication officer who is not a military police officer.

 

                Why did the legislature distinguish between a military police officer, who is authorized to arrest a soldier for a maximum period of 35 days, and an adjudication officer who is not a military police officer, who is authorized to arrest a soldier for no longer than 15 days? A look at the Explanatory Note to the Military Adjudication Bill (Amendment No. 16), 1982 provides the answer:

 

In making the new arrangement reducing the period of pre-trial detention, it became clear that it was necessary to distinguish between arrest by the military police, pursuant to investigating an offense, and arrest by a commander, because of a disciplinary violation.

 

Experience shows that the military police requires, on average, up to 35 days to complete an investigation, collect the material, and hand the prosecution a properly prepared case.

 

…

 

A commander who arrests a soldier for an offense of a disciplinary, as opposed to criminal, nature, generally requires much less time to examine the circumstances of the incident and decide whether to hold a disciplinary hearing or turn the matter over to a military attorney to consider a trial before a military tribunal.

 

On the other hand, there are cases in which the commander authorized to judge the soldier for an offense is not nearby at the time (for example: an offense committed at the home base, when the unit is in training or serving outside the base), and it takes a few days or sometimes a week or more for him or her to return, figure out the circumstances surrounding the incident, and decide what to do.

Id. at 65-66.

 

10. It took 11 years for section 237A to be amended by the Military Adjudication Law (Amendment No. 23), 1993. Under the amendment, a military police officer may issue an arrest warrant for no more than ten days, and the warrant may be extended, with advance written permission by a military attorney, for a maximum total period of 25 days. In other words, the amendment reduced the maximum period of detention that could be ordered by a military police officer from 35 to 25 days.

 

The amendment also reduced the maximum period of detention that an adjudication officer who is not a military police officer (under section 234 of the law) could order: before the amendment, the maximum was 15 days; the amendment limited it to no more than seven days.

 

11. Three years later, section 237A was again amended, this time by the Military Adjudication Law (Amendment No. 32), 1996, which limited the maximum detention period under an arrest warrant issued by a military police officer to eight days. Furthermore, the amendment required the approval of a military attorney within 96 hours, in order to continue to hold a soldier through an arrest warrant issued by a military police officer (previously, the law had required the detention to be approved by another adjudication officer at the rank of lieutenant colonel or higher). The military attorney may reduce the period of detention and even release the soldier. If the arrest warrant is not subjected to review by the military attorney, the soldier must be released. Under the amendment (section 237B), if the military attorney decided that it was necessary to extend the detention beyond eight days, he or she could order a military attorney or military police officer to request an extension from a district military tribunal.

 

The amendment also phased in a reduction of the periods of detention within two years of passage. Sec. 8. First, the maximum detention period that was to be ordered through an arrest warrant by a military police officer was to be “four days.” Second, the arrest warrant would need to be reviewed by a military attorney within “forty-eight hours of arrest.” On July 26, 1998, therefore, the maximum period of detention that could be ordered by a military police officer, through an arrest warrant, was supposed to be “four days.”

 

The amendment left unchanged the maximum period of detention via an arrest warrant by an adjudication officer who is not a military police officer: the maximum period of detention was and remains seven days. However, under section 236 of the amendment, the arrest warrant would expire within 96 hours (and within two years of passage, within 48 hours) of issuance, unless it was approved by an adjudication officer ranked at least as high as lieutenant colonel or if no complaint was issued and no investigation was begun.

 

The amendment created an odd state of affairs: prior to the amendments in 1982 and 1993, a military police officer could detain someone through an arrest warrant for much longer than an adjudication officer who is not a military police officer could. The reason is that arrest by a military police officer requires more time, for purposes of investigation, than arrest by another kind of adjudication officer. Nevertheless, currently, under the 1996 amendment, an adjudication officer who is not a police officer may issue an arrest warrant and detain someone for almost twice as long as a military police officer. This odd result warrants an inquiry, and one would hope that such inquiry will be forthcoming, first from the Chief Military Attorney and then from the Defense Minister, who is charged with executing the Military Adjudication Law.

 

                12. Finally, the Military Adjudication Law (Amendment No. 32) (amended), 1998 amended section 237A again, changing the maximum period of detention from “four days” to “96 hours.” The amendment, according to the bill’s Explanatory Note, was designed “to avoid any misunderstanding regarding the precise length of detention.” This was necessary because the Interpretation Law, 1981, defines a “day” as beginning at midnight and ending at midnight the following night. See the Explanatory Note to the Military Adjudication Bill (Amendment No. 32) (amended), 1998, p. 452.

 

                Whatever the goal of the amendment, in practice, “96 hours” is generally shorter than “four days.” See section 10(a) and 10(c) to the Interpretation Law. Therefore, the amendment benefits soldiers who have been arrested.

 

                13. Taking into account all these amendments, section 237A to the Military Adjudication Law, in its current version, reads as follows:

 

(a) Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours; such adjudication officer, who issued an arrest warrant for less than 96 hours, may extend the arrest for additional periods of time, so long as the maximum period does not exceed 96 hours.

 

(b) If a soldier has been arrested by a warrant as outlined in subsection (a), such arrest shall be brought before a military attorney for review within 48 hours of arrest.

 

(c) A military attorney may approve the detention period in the arrest warrant, reduce it, or order the soldier released.

 

(d) If the provisions of subsection (b) are not implemented, the soldier shall be released from detention.

 

(e) The provisions of this section shall not apply to an arrest

warrant issued by a military police officer exercising his or her authority as an adjudication officer over a soldier in his or her unit and under his or her command, unless the offense for which the solider is arrested has been reviewed by a reviewing officer as delineated in section 252(a)(3).

 

Basic Law: Human Dignity and Liberty

 

14. The petitioners claim that the current version of section 237A of the Military Adjudication Law restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty, and is therefore null and void. According to section 5 of the Basic Law:

 

There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition, or otherwise.

 

                In principle, it would seem as though the petitioners are right that section 237A, in authorizing the arrest of a person, violates section 5 of the Basic Law: Human Dignity and Liberty. That claim, however, is problematic. Under section 10 (Validity of Laws) of the Basic Law: Human Dignity and Liberty, “This Basic Law shall not affect the validity of any law [din – trans.] in force prior to the commencement of the Basic Law.” Hence, the Basic Law could not invalidate section 237A of the Military Adjudication Law as it was formulated prior to the commencement of the Basic Law, even though that section authorized a military police officer to arrest a soldier for up to 35 days.

 

                The Basic Law: Human Dignity and Liberty may, of course, invalidate a statute passed subsequent to the Basic Law. However, the amendments to section 237A of the Military Adjudication Law, which was passed after the Basic Law entered into force, reduced the maximum period of detention. The version of section 237A in effect at the time the petitions were filed limited the maximum period of detention to 25 days. During the course of the court proceedings, the statute was amended three times, to further reduce the detention period: the first time – to eight days; the second time – to four days; the third time – to 96 hours. Each amendment limited the power to restrict liberty. As a practical matter, therefore, the statute authorizing a military police officer to issue an arrest warrant for 96 days only is a statute that benefits, rather than infringes [on liberty – trans.]. As a legal matter, can we nevertheless say that section 237A, in its current version, restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty?

 

 

A Beneficial Statute as an Infringing Statute

 

15. Can a statute that benefits – in other words, a statute that limits the infringement on a right protected by the Basic Law: Human Dignity and Liberty – be considered a statute that infringes on such a right, in violation of the Basic Law? The question is, should we evaluate the beneficial statute in light of the previous statute, such that the beneficial statute does not infringe on a right but rather advances it, or should we evaluate the beneficial statute in light of the Basic Law: Human Dignity and Liberty? That is the question in this case. If the Military Adjudication Law (Amendment No. 32) (amended) (hereinafter: “the amending statute”), which reduced the maximum period of arrest to 96 hours, is evaluated in light of the previous statute, or, a fortiori, in light of the statute as it existed prior to the enactment of the Basic Law, then there is no violation. On the contrary: It restricts the infringement on personal liberty. However, if we evaluate the amending statute in light of the Basic Law: Human Dignity and Liberty, then there is some validity to the claim that arresting a soldier for 96 hours, before he or she is brought before a military tribunal, infringes on the right to personal liberty, in violation of the Basic Law. What, then, is the correct evaluation?

 

16. This Court has yet to rule on that question. We considered a similar issue in CA 6821/93 United Bank Mizrachi Ltd. v. Migdal Agricultural Cooperative [6] (hereinafter: Bank Mizrachi [6]), in which the Court held that it has the authority to invalidate a new statute that violates the Basic Law: Human Dignity and Liberty. There, the issue was the constitutionality of a statute amending another statute passed prior to the Basic Law. The claim was that because the amending statute was integrated into the existing statute and became part of it, it enjoyed the protection for existing laws granted by section 10 (“Validity of laws”) of the Basic Law. The court rejected that argument:

 

In terms of its purpose, at the present stage, the Basic Law seeks to preserve the status quo; it does not, however, spread its protective wing over what is to come, because to do so would empty the Basic Law of its content and purpose. If we accepted the rule that the new statute is to be evaluated as if section 10 applied to it, as is the case for statutes enacted prior to the passage of the Basic Law, one would simply have to dress every new statute in the garb of an amendment to an existing law in order to exempt it from the application of the Basic Law …

 

Finally, an amendment to a statute, like any statutory provision, is a separate and new law, to which the non-applicability provision of section 10 of the Basic Law does not apply.

 

Practically, too, we should draw clear dividing lines, rather than allow ourselves to be dragged into foggy distinctions. Attempting to determine the extent to which a statutory amendment innovates and its innovative implications on legislation as a whole would create an endless system of debate and interpretation. Instead, we should draw a simple line, clear and unambiguous, based on the time at which the amendment was passed. The watershed event is the date at which the Basic Law came into force.

Id. at 263 (Shamgar, P.).

 

 

In Bank Mizrachi [6], the Court considered the legality of an amending statute that was not a beneficial statute: the amending statute aggravated the infringement on the right to property. However, the logic of President Shamgar’s holding in that case also applies to a beneficial amending statute, meaning an amending statute that limits the extent to which the prior law infringes on a basic right.

 

When the legislature enacted the amending statute, it was aware of the obligation imposed on it by the Basic Law: Human Dignity and Liberty, namely not to infringe on a basic right in contradiction of the Basic Law. The job of the Court is to evaluate whether the amending statute fulfils that obligation. In other words, the Court must evaluate the amending statute in light of the Basic Law.

 

Furthermore, the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw. Sometimes, an amending statute combines beneficial provisions with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do not may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits.

 

President Barak expressed this view in his book, Parshanut Bimishpat: 

 

The question arises as to whether to establish more lenient requirements – with respect to the clause on proportionality – in reviewing new legislation that amends an old statute. Indeed, if we apply the ordinary requirements of the limitation clause, the new legislation – which advances human rights, compared to the old law – may be constitutionally infirm. The result would then be to return to the old law, whose infringement on human rights is sevenfold worse. What, then, is the point of the amendment? On this line of thought, there should be a special limitation clause for a new statute which amends an old law. The counter-argument is that the Basic Law: Human Dignity and Liberty does not contain two limitation clauses, one for an “ordinary” new statute and one for a new statute which amends an old law. It contains just one limitation clause. Furthermore, the distinction between a “new” new statute and a new statute that amends an old statute is difficult and is likely to constitute a source of uncertainty. Finally – and this is the most important point, in my opinion – the limitation clause should not be diluted. It establishes certain minimum requirements which the legislature must follow, and those requirements should apply to every new piece of legislation to come out of the legislature’s study. Invalidating new legislation that amends an old law, because the new provisions do not fulfill the requirements of the limitation clause, is not a green light for legislative omissions. It should serve as a catalyst for deeper change, consistent with the conditions set forth in the limitation clause.

Parshanut Bimishpat [Interpretation in Law],, Parshanut Chukatit [Constitutional] [21] at 563.

 

See also A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System, Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997) [23] at 16, 25.

 

                It should be noted that even the respondents, in their briefs, do not challenge the authority of the Court to review the legality of an amending statute, even a beneficial statute, in light of the Basic Law: Human Dignity and Liberty. However, they argue that the Court should use restraint in exercising such authority, limiting it to the most extreme cases in which the beneficial law still infringes on a basic right to an intolerable degree.

 

                I am prepared to agree that the Court, in reviewing the legality of a statute in light of the Basic Law: Human Dignity and Liberty, should, where appropriate, accord significance to the fact that we are talking about a beneficial law. However, the fact that the statute benefits does not render it immune from judicial review under the Basic Law.

 

                Having said that, we must now evaluate whether the amending statute, under which a soldier can be held under arrest for up to 96 hours, infringes on personal liberty in a way that contradicts the Basic Law: Human Dignity and Liberty.

 

Personal Liberty

 

                17. Section 5 of the Basic Law: Human Dignity and Liberty constitutionalizes the right to personal liberty. Furthermore, personal liberty is a constitutional right of the utmost importance, and as a practical matter, it is a condition for exercising other basic rights. Violating personal liberty, like throwing a stone into a lake, creates expanding circles of infringements of additional basic rights: not just freedom of movement, but also freedom of expression, the right to privacy, property rights, and others. See APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136 [7] at 153. Under section 1 of the Basic Law: Human Dignity and Liberty, “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Only a free person can fully and properly exercise his or her basic rights. And personal liberty, more than any other right, is what makes a person free. For that reason, denying someone personal liberty is a particularly serious infringement. Indeed, denying personal liberty through imprisonment is the harshest punishment that a well-ordered state imposes on criminals.

 

                Detention by an administrative agent, like a police officer, is the most serious infringement on personal liberty. In contrast to imprisonment, such detention is not imposed by a court as the result of a judicial proceeding, as punishment for a crime. It is imposed by an administrative agency, based on suspicion alone, on a person who still enjoys the presumption of innocence. See, e.g., CrimApp 8087/95 Zada v. State of Israel [8] at 144.

 

                In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the degree to which it is infringed upon. Therefore, there may, for example, be a difference between the level of protection accorded to personal liberty and that accorded to the right to property, just as there may be a difference in the protection accorded in cases of complete denial of personal liberty, versus those involving a limited infringement on freedom.

 

                The conclusion: because personal liberty is a constitutional right of special importance, it deserves special protection against infringement via detention at the hands of an administrative agency. This is the kind of infringement that occurs when a military police officer arrests a soldier for 96 hours, under section 237A of the Military Adjudication Law.

 

                Of course, not every infringement on personal liberty violates the Basic Law: Human Dignity and Liberty. Like all basic rights, the right to personal liberty is not absolute. Personal liberty may, and in some cases must, be restricted, in order to protect other rights or to protect the public. The Basic Law recognizes this need and sets conditions for fulfilling it. The limitation clause of the Basic Law establishes these conditions. In any case involving infringement on personal liberty, the question is therefore whether the infringement meets the conditions established in the limitation clause, which serves as the line of defense for basic rights, including the right to personal liberty. The Court comes to protect personal liberty from a statute that infringes on it, only when the statute breaks through the line of defense drawn by the limitation clause.

 

Limitation clause: the General Clause and the Security Clause

 

18. The general limitation clause of section 8 of the Basic Law: Human Dignity and Liberty reads as follows: 

 

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

 

However, immediately after the general limitation clause, the law adds a special limitation clause for security forces. Section 9 of the Basic Law contains this clause (under the heading, “Reservation regarding security forces”):

 

There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defense Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service.

 

Because section 237A of the Military Adjudication Law restricts the personal liberty of soldiers, clearly it is also subject to the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty.

 

19. How does the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty differ from the general limitation clause of section 8 of the Basic Law?

 

                There is no doubt that the Basic Law: Human Dignity and Liberty makes everyone’s basic rights into constitutional rights.  The security limitation clause was not, by itself, designed to restrict the basic rights of those serving in the security forces. As President Barak said in CrimApp 3513/95 [5] at 688-99:

 

There is no question that the human rights protected in the Basic Law are also the rights of the soldier. The uniform does not divide the soldier from his or her constitutional human rights. Human rights are part of the rights that a soldier enjoys as a human being …

 

20. If so, what is the special purpose of the security limitation clause? On its face, the security limitation clause sets special conditions for infringing on the basic rights of those serving in the security forces. These conditions differ from those established by the general limitation clause for infringing on the basic rights of others. What are these special conditions?

 

First, under the security limitation clause, the basic rights of those serving in security forces may be infringed through enacting regulations such as military orders. How? The original version of section 8 of the Basic Law did not allow basic rights to be violated except “by a law,” until the 1994 amendment to that section also allowed basic rights to be violated “by regulation enacted by virtue of express authorization in such law.” In contrast to section 8, from the outset, section 9 allowed for the infringement on basic rights also “by virtue of a law,” in other words, through administrative regulations. See section 9 of the Interpretation Law, 1981. See also, Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Coach [Basic Law – Power Struggles] [24] at 372; A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “By Virtue of a Law”] [25] at 401-02.

 

Today, the semantic difference between the way section 8 and section 9 address infringements on basic rights through administrative regulation remains: Section 8 allows such infringement only “by a law or by regulation enacted by virtue of express authorization in such law,” while section 9 allows infringement merely “by virtue of a law.” Is there a substantive difference between the two? The Court has not yet ruled on this question. Nor is there a need to do so in this case, because the statute itself, and not implementing regulations, authorizes the infringement on personal liberty by arresting a soldier.

 

21. There are additional semantic differences between section 8 and section 9 of the Basic Law. The most obvious one is that section 9, as opposed to section 8, does not require, as a condition for violating the right, that the violating law be “befitting the values of the State of Israel,” and that it be “enacted for a proper purpose.” Does that mean that a statute, or regulations enacted “by virtue of a law” that infringes on the basic rights of those serving in the security forces, may not befit the values of the State of Israel or may be enacted for an improper purpose? The language of the statute must be interpreted according to the purpose of the statute. If we take the purpose of the statute into consideration, we must reject this interpretation, because it is likely to frustrate the purpose of the Basic Law, namely, that basic rights are the constitutional rights of every person, including, of course, a person serving in the security forces. It cannot be reconciled with section 1 of the Basic Law, under which the basic rights of a person in Israel – every person – “… will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Nor can it be reconciled with section 1A of the Basic Law, which states its purpose to be establishing “the values of the State of Israel as a Jewish and a Democratic State.” The purposive interpretation of section 9 of the Basic Law is therefore that a statute cannot infringe on the basic rights of those serving in the security forces unless it befits the values of the State of Israel and is enacted for a proper purpose. The same is true, a fortiori, of administrative regulations. If a statute or administrative regulations infringe on the basic rights of those serving in the security forces in a way that does not befit the values of the State of Israel or for an improper purpose, then we can determine that they violate these rights to an extent “greater than what is required by the nature and character of the service,” contradicting the language of section 9 of the Basic Law. See A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws [26] at 450.

 

22. The question therefore arises as to whether section 237A of the Military Adjudication Law, which authorizes a military police officer to arrest a soldier for a period of 96 hours before bringing him before a military judge, meets the requirements of consistency with the values of the State of Israel and designation for a proper purpose. The answer is that the arrest of a soldier who has committed an offense is recognized and accepted, in certain instances, as an essential means of protecting public safety. Public safety is one of the basic values of the state, and its protection is a proper purpose. That principle holds true when a civilian police officer arrests a person who is not serving in the security forces as well as when a military police officer arrests a soldier. Arresting a soldier may serve the additional purpose of maintaining the necessary discipline in the military, which is also a proper purpose. Furthermore, we can also say that the amendments made to section 237A after the passage of the Basic Law: Human Dignity and Liberty meet the requirements of values and purpose because they were passed in order to reduce the period of detention, and thus to limit the infringement on personal liberty. We may therefore conclude that, in terms of values and purpose, section 237A of the Military Adjudication Law passes constitutional muster.

 

Indeed, the petitioners do not object to the very authority of a military police officer to arrest a soldier, but rather to the period of detention which can be ordered by a military police officer. The petitioners claim that an arrest warrant authorizing 96 hours of detention, before a soldier must be released or brought before a judge to extend the detention, is disproportionately long. Therefore, they claim, it infringes on the right to personal liberty to an extent greater than is required under section 9 of the Basic Law: Human Dignity and Liberty.

 

23. Semantically, there is a difference between the proportionality test established in section 9 of the Basic Law: Human Dignity and Liberty (security limitation clause) and the proportionality test established in section 8 of the Basic Law (general limitation clause). Section 8 prevents a limiting statute from violating basic rights except “to an extent no greater than is required.”

 

In contrast, section 9 bars the limiting statute from infringing on basic rights except “to an extent no greater than is required by the nature and character of the service.” What are the implications of these different choices of language?

 

The proportionality test is flexible. In every case and for every issue, “the extent required” of an infringement on rights depends on the context of the case and issue, whether it is a context of time or place, status or role, or the like. This is true, for example, of prisoners. The Basic Law: Human Dignity and Liberty does not establish a special test for determining the proportionality of an infringement on prisoners’ rights. The implication is that infringement on a prisoner’s rights is subject to the general proportionality test. Nevertheless, the proportionality of an infringement on prisoners’ rights, like their right to freedom of expression or privacy, clearly is measured in light of the context of prison, primarily the nature and character of the status of prisoner. See, e.g., APP 4463/94 [7]. The principle holds true for a person of another status. It is therefore clear that the proportionality of the harm to a person serving in the security forces is influenced by the nature and character of the service. This means that applying the general proportionality test of section 8 of the Basic Law to those serving in the security forces would have to take into consideration the nature and character of the service, even if section 9 of the Basic Law did not explicitly say so. Thus, section 9 of the Basic Law simply states the obvious. It also, however, serves to clarify and remove any doubt: The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces. Furthermore, the proportionality is likely to vary among types of service even within the security forces. For example, the proportionality of infringing on the rights of a person serving in the military is likely to be different from the proportionality of infringing on the rights of a person in the Prison Services. As President Barak said in CrimApp 3513/95 [5]:

The military context is unique in its own right. This uniqueness justifies recognizing the possibility of a more widespread restriction of the human rights of a soldier, relative to what would be permitted for a non-soldier.

…

The question is whether the infringement on a soldier’s human rights is proportional, considering the nature and character of military service, including its uniqueness in light of the goals of the military. Comparative law from systems which have addressed similar problems will be useful. We should, however, give expression to the special nature of the Israeli military, which is a people’s army, defending the state against real dangers that lurk each and every day.

Id. at 689.

 

See also HC 5000/95 Bartala v. Chief Military Attorney [9] at 73, 75.

                The primary question raised by these petitions, therefore, is whether the authority to arrest a soldier under the Military Adjudication Law withstands the proportionality test, taking into consideration the nature and character of the military service. Is it possible to reduce the period of arrest, without undermining its purpose?

Burden of Proof

24. The answer to the question of proportionality depends, in large part, on the evidence. Has lawful evidence proven to the Court that it is possible to reduce the period of detention, thus limiting the infringement on personal liberty, without undermining the purpose of the arrest? In order to answer that question, we must first clarify who bears the burden of proof in demonstrating proportionality: the petitioners or the respondents.

The Court has yet to rule on the question of burden of proof in demonstrating proportionality, although it has arisen in prior cases. The justices have been divided on the issue. They expressed their disagreement in Bank Mizrachi [6]. Supra para. 16. In the judgment, the justices distinguished between two burdens within the burden of proof: the primary burden, which is the burden of persuasion, and the secondary burden, which is the burden of production. On these burdens, see 3 Y. Kedmi, Al Harayot [On Evidence] [22] beginning on pp. 1217 and 1273. One opinion expressed in Bank Mizrachi [6] is that the burden of persuasion passes from party to party, depending on the stage of argument. At the first stage of argument, the question is whether the statute being reviewed infringes on a constitutional right. At this stage, the statute enjoys a presumption of constitutionality. The burden of persuasion, therefore, is on the party contending that the statute infringes on a right, meaning it is generally on the person or body who is harmed by the statute. At the second stage, the question is whether the infringement on a constitutional right is legal, meaning, in accordance with the limitation clause: by law or by virtue of a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.  At this stage, the burden of persuasion that the infringement is legal falls on the party arguing for the constitutionality of the infringement, meaning it is generally on the administrative agency acting by force of the statute. See Justice Barak’s opinion, Id. at 492-98; Justice D. Levin, Id. at 458-459. An opposing opinion is that at every stage of the argument, every statute enjoys a presumption of constitutionality, and therefore, at both stages, the burden of persuasion is on the party claiming otherwise. See Justice Goldberg’s opinion, Id. at 577; Justice Bach’s opinion, Id. at 586. Another opinion, taking a middle course, divides the burden of proof at the second stage. In other words, the burden of persuasion at the second stage is on the party arguing for the constitutionality of the statute, generally the administrative agency acting by force of the statute. On the question of proportionality, however, the burden of production is on the party claiming that the infringement is not proportional, meaning it must bring evidence showing the existence of alternatives that effect a more moderate infringement on the right. See Justice Shamgar, Id. at 348; Justice Mazza, Id. at 578-79. See also a similar opinion by Justice M. Cheshin, Id. at 570. At the end of the day, however, the disagreement between the justices in Bank Mizrachi [6] remained unresolved.

                Parenthetically, I will note my doubt that case law on the burdens of proof in criminal and civil law has the same application in public law. It is true that in public law, like civil law, the applicable rule is that he who would take from his friend bears the burden of proof.  Therefore, at the first stage of argument in public law, the burden of raising a substantial doubt over constitutionality is on the petitioner claiming the unconstitutionality of a statute, regulation, or administrative decision. However, once the petitioner has raised this doubt (whether or not an order-nisi has been issued), the Court need not make do with the evidence brought by the petitioner. For example, if the petitioner succeeded in raising a substantial doubt over the reasonableness of an administrative decision or the legality of the considerations that went into it but did not produce enough evidence for the Court to definitely determine the legality of the decision, the Court need not reject the petition for lack of evidence.  It may, sua sponte, require the agency to answer certain questions or present additional specified evidence, such as affidavits, documents, and the like. This is one of the differences between an administrative proceeding and a criminal or civil proceeding. First, the difference stems from the nature of an administrative proceeding: it deals with a decision taken by an agency acting in the name of the public and for the sake of the public. In principle, therefore, the public has a right to know the facts and reasons at the basis of the decision. Second, the difference stems from the principle of rule of law; in an administrative proceeding, the Court is not just supposed to adjudicate a dispute between two parties but also to preserve the principle of rule of law. This principle requires that, if substantial doubt has been raised over the legality of an administrative decision, such doubt should be clarified, to avoid leaving an illegal decision in effect. This is also the source of the difference in the burden of proof in an administrative proceeding versus a criminal or civil proceeding. In an administrative proceeding, more than in a criminal or civil proceeding, the Court is likely to initiate actions that may be necessary to strengthen the body of evidence so that it can decide the legality of the administrative decision on the merits. Therefore, once a doubt has been raised about the legality of an administrative decision at the start of an administrative proceeding, the question of burden of proof does not arise again in the proceeding.

That is not always the case. Sometimes, even at the end of the proceeding, the body of evidence vacillates such that the Court cannot use it to make the findings necessary to decide the legality of the administrative decision. In this situation, rather than decide the legality of the administrative decision on the merits, the Court may be forced to do so by ruling on the issue of the burden of proof. However, even a decision on that issue will likely be influenced by the special nature of administrative proceedings. It is likely to be influenced by considerations of rule of law, the presumption of the constitutionality of statutes and legality of administrative decisions, the importance of the right infringed and the severity of the infringement, administrative efficiency, and other public interests. The relative weight given to these considerations may determine whether the petitioner, who seeks something from the agency, bears the burden of proof, or whether it passes to the agency. This may explain, if only partially, the differences of opinion among the justices in Bank Mizrachi [6] over the question of the burden of proof.

In any event, in this case, as in Bank Mizrachi [6], we need not resolve the dispute over burden of proof. I will therefore leave it to be examined at another time. This is possible because, after the order-nisi was issued, and at the Court’s request, the respondents produced all the necessary evidence on the question of proportionality. The evidence produced before the Court is sufficient to allow it to rule on the proportionality of the statutory provision authorizing a military police officer to arrest a soldier for up to 96 hours, without having to rule on the issue of burden of proof. As Justice Sussman held in CA 88/53 Kaplan v. Rosenzweig [10] at 1301, “If the body of evidence allows a judge to make a finding of fact, it matters not at all which party bears the burden of proof.”

In light of the evidence, does the statutory provision authorizing a military police officer to arrest a soldier for a period of 96 hours withstand the proportionality test? As a preliminary question, we must ask: what determines the proportionality test.

The Proportionality Test

                25. In a few decisions in recent years, the Court has answered the question of what determines the proportionality test. It recently repeated the answer in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11], in which the Court invalidated a certain provision in a new statute because it disproportionally infringed on the right to freedom of occupation. In order to reach its decision, the Court presented the proportionality test. This test, as the Court held, is divided into three secondary tests, as President Barak held:

The first secondary test is the test of suitability or rational connection. A legislative means that infringes on a constitutional human right – in our case, the right to freedom of occupation – is proper if it is suited to achieving the objective. There must be a suitable connection between the ends and the means. The legislative means must rationally lead to achieving the legislative objective … the second secondary test is the test of the least violative means. A legislative means that infringes on a constitutionally protected human right – in our case, the right to freedom of occupation – is proper only if the legislative objective cannot be achieved by another means whose infringement on the human right is less severe … The legislative means is like a ladder on which the legislature climbs in order to achieve the legislative purpose. The legislature must stop at the rung of the ladder which achieves the legislative purpose through a means least violative of the human right. “The legislature must start with the ‘step’ that is least violative, and slowly ascend the stairs, until it reaches the step at which the proper legislative purpose is achieved without infringing on the human right more than is necessary” … “If, under the circumstances of the case, the moderate condition, which causes less damage, is insufficient to achieve the objective, the agency may set a more burdensome condition, in order to achieve the goal” … The third secondary test is the test of the proportionality of the means (in the narrow sense). Even if the means chosen is (rationally) suited to achieving the objective, and even if there is no means more moderate, there must be a proper relationship between the benefit it will create and the scope of the infringement on a constitutionally-protected human right … this is the test that evaluates the result of the legislation, and the effect it has on the constitutional human right. If using a legislative means causes a severe infringement on a human right, and the benefit it is expected to give the public is minimal, the legislation may exceed the extent necessary (in the narrow sense).

Id. at 385.

 

                26. The arguments in this petition focused on the second secondary test: the choice of the least violative means. The petitioners do not claim that a military police officer’s arrest of a soldier for a maximum of 96 hours before the soldier must be released or brought before a judge, fails the first secondary test, namely a suitable means, or the third test, namely a proportional means. However, they contend that a military police officer’s arrest of a soldier for 96 hours cannot be reconciled with the second test, the test of the least violative means. They argue that such detention infringes on personal liberty beyond what is necessary, because it is possible and appropriate to reduce the period of detention without undermining the purpose of the arrest.

The Proportion Applied in Civilian Arrests

                27. What, then, is a proportional period for which a military police officer may detain a soldier? The petitioners claim that the proportional period for a military police officer to detain a soldier is the same period as that for which a civilian police officer may detain any person, regardless of whether he or she is a soldier. At the relevant time, the Criminal Procedure Ordinance (Arrest and Search) [new version], 1969 (hereinafter – Arrest and Search Ordinance) established the period for which a civilian police officer may detain someone. Section 16 of the that ordinance imparted a civilian police officer with the authority to arrest a person for no longer than 48 hours, after which the person must be released from detention or brought before a judge with a request to extend the detention. Such authority had existed for many years, including at the time these petitions were brought before the Court. The petitioners claimed that there was no justification for distinguishing between the arrest authority of a civilian police officer and that of a military police officer, for purposes of determining the maximum period of detention. The nature and character of military service does not justify detention by a military police officer for a longer period of time. When a military police officer arrests a soldier for 48 hours, he or she infringes on the personal liberty of the soldier, but no more than is necessary; detention for a longer period of time infringes on personal liberty to an extent beyond what is necessary. Hence, because it infringes on personal liberty beyond what is necessary, the statute authorizing a military police officer to detain a soldier for longer than 48 hours is null and void.

28. The Criminal Procedure Law (Enforcement Authority – Arrests), 1996 (hereinafter – Enforcement Authority Law) rescinded (in section 42) section 16 of the Arrest and Search Ordinance and reduced the period of detention by a civilian police officer. Under section 29(a) of that law, “a person arrested by an officer appointed under section 27 shall be brought before a judge as soon as possible, and within no more than 24 hours.” The Explanatory Note to the Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release), 1995 offered the following reason for reducing the period of detention: “This is part of a trend to protect human rights, to guarantee that a person is detained only when detention is an essential measure, and to give the court judicial review over the investigatory activities undertaken, until the detainee is brought before it.” Id. at 316. Under section 1(c) of the Enforcement Authority Law, the provisions of the law apply to detention under any law, unless otherwise provided for by law. To remove any doubt, section 44 of the Enforcement Authority Law adds a provision to the Military Adjudication Law (section 243C), under which the provision limiting detention by a civilian police officer to 24 hours does not apply to detention by a military police officer under the Military Adjudication Law.

 

29. The reduction, under the Enforcement Authority Law, of the maximum period for which a civilian police officer may detain someone from 48 hours to 24 hours did not change the position of the petitioner in HC 6055/95. After the Enforcement Authority Law was passed, the petitioner submitted an amended petition (on June 26, 1996) taking the position that the proper period for detaining soldiers, in accordance with the Basic Law: Human Dignity and Liberty, is 48 hours. Subsequently (on March 11, 1998), the petitioner even notified the court that he was not seeking to reduce the period of detention to less than 48 hours. The suggestion is that either the petitioner believed that the nature and character of military service justify arresting a soldier for 48 hours, even though a civilian police officer is not authorized to detain a person for longer than 24 hours, or he believed that the military would require a period of adjustment to prepare for a maximum detention of 24 hours, and he was therefore prepared to make do with a maximum period of 48 hours.

 

30. In contrast, the petitioners in HC 7083/95 submitted an amended petition (on July 2, 1996) in which they asked to limit the detention of soldiers to no more than 24 hours. In response to a brief by the respondents, the petitioners submitted that, “The petitioners again ask the honored Court to hold that detention for longer than 24 hours without a hearing before a judge is unconstitutional. Even if the honored Court decides that the minimal constitutional standard is 48 hours, the principle of equal application of basic rights requires limiting the period of detention to 24 hours.”

 

On this issue, however, the petitioners made a mistake. The principle of equal application of basic rights applies to equal situations. The situation of a soldier’s personal liberty is not equal to the situation of a non-soldier’s personal liberty. This court gave expression to that principle in a few cases. See e.g., HC 405/74 Bar-Ad v. Captain Madar [12] at 56; HC 243/80 Madjhinski v. Military Appeals Tribunal [13] at 72; HC 118/80 Greenstein v. Chief Military Attorney [14] at 243;  HC 695/88 Adler v. Military Appeals Tribunal [15]; HC 5900/95, supra [9] at 72-74. The Basic Law: Human Dignity and Liberty also expressed that difference in section 9 (the security limitation clause), under which the basic rights of those serving in the security forces may be violated to an extent required “by the nature and character of the service.”

 

Therefore, the question that will decide these petitions is not the question of equality in the periods of detention for soldiers and non-soldiers, but rather whether detaining a soldier for 96 hours infringes on personal liberty to an extent greater than is required by the nature and character of military service.

 

The Proper Proportionality in Detaining Soldiers

 

                31. The question of proportionality is the kind of question which has no precise answer. At what point does the infringement on a soldier’s personal liberty exceed the necessary extent? Proportionality cannot be measured. Indeed, how could we measure, in quantitative data, the level of harm caused to a soldier by detention or another infringement on personal liberty? We have no machine or formula that can measure the force or weight of the harm caused by denying personal liberty, via arrest, for one hour or one day. Nor do we have a machine or formula that can measure the profit or benefit of reducing the infringement on personal liberty by reducing the detention by an hour or a day. Similarly, there is generally no precise way to measure the cost, be it economic or social, of reducing the infringement on the right. For example, what is the social and economic cost of shortening detention by a civilian police officer from 48 hours to 24 hours? There would seem to be no way to quote a price, even in terms of money or human resources. There is certainly no way to quote a price in terms of public order and crime prevention.

 

                Indeed, human rights and public interests are not potatoes which can be weighed on a scale, one against the other, to see which side tips the scale. Because we cannot weigh, we must estimate. We must make an effort, in every situation, to correctly estimate the relative weight of human rights, on the one hand, and public interests, on the other. The proper balance between them is what determines proportionality. The greater the importance of the right infringed, and the more serious the infringement, the stronger the public interest must be, in order to justify the infringement. A severe infringement on an important right, designed to protect but a weak public interest, is likely to be considered an infringement beyond the extent required.

 

                We may imagine the relationship between the right and the public interest on one hand, and the proportionality on the other, as an equation. In contrast to a mathematical equation, however, the value of each term of the equation is not precise, and in any event, it cannot be measured. We determine the value by estimating, and an estimate is subject to dispute. Someone may disagree. However, even when the estimation is in dispute, a decision is still necessary. The Court must make a decision. Such is the role and authority of the Court. Such is also its skill. The Court is accustomed to evaluating the relative weight of competing rights and interests in a variety of contexts, based on the body of data and considerations presented, in order to arrive at the proper balance.

 

The Court does this generally, and proportionality is no exception. Making an evaluation based on the relevant data and considerations is the only way to determine whether a particular infringement on a particular right exceeds what is necessary. This is the right way to determine whether the detention of a soldier by a military police officer for 96 hours infringes on personal liberty beyond the extent required by the nature and character of military service.

 

32. The respondents of course recognize the special importance of the personal liberty of a soldier, like that of any person, and they do not dispute the appropriateness of limiting the infringement on such liberty as much as possible, taking into consideration the nature and character of military service. In that spirit, they point to the impressive reduction of the detention period that has taken place gradually, since the original version of the Military Adjudication Law permitted two months of detention by a military police officer. Just a few years ago, when these petitions were submitted to the Court, the amended law still allowed detention by a military police officer for up to 25 days. The respondents viewed even that period as longer than is proportional. Thus, even before the petitions were submitted, the military, on its own initiative, began to examine the possibility of a further reduction in the period of detention. Furthermore, even today, when the maximum period of detention by a military police officer is 96 hours, the respondents believe that it is appropriate and possible to continue to reduce the period. In the concluding paragraph of their written briefs submitted to the Court, the respondents said that:

 

The military authorities are aware of the need to continue trying to reduce the maximum period for which soldiers may be detained prior to being brought before a military judge. The respondents have worked to amend the law gradually, on an experiential basis, as part of a trend toward harmonizing the detention period, as much as possible, with that customary for the detention of civilians.

 

                This trend was expressed during a 1996 debate in the Knesset over a proposed amendment to the Military Adjudication Law that would set the maximum period of detention by a military police officer at eight days, to be reduced to four days within two years. Member of Knesset Moshe Nissim, speaking for the Knesset Committee on Foreign Affairs and Security, said:

 

One may ask, why didn’t we completely equate it with the period accepted in civilian life? I agreed with the military attorney’s office that there is a difference that we are still not equipped to address, other than gradually. In civilian life, when we are dealing with the civilian plane, the police are equipped with a station and authorized people and agreed-upon agencies scattered throughout the country. In the IDF [Israel Defense Forces – trans.], the agreed-upon agencies are not scattered among all the bases. Currently, there is no possibility of immediate communication, as there is among civilian agencies. The Foreign Affairs and Security Committee therefore completely agreed with the military attorney’s office to continue progressing toward the final reduction, but not right now. In other words, before we reach the final step of total equalization between the military agency and the civilian agency, we continue to march forward significantly, but still have not reached absolute equalization …

 

I see this as significant progress, and I believe the attorney’s office, which declared to us – and I want that declaration to be recorded in the “Knesset Record” – that they will initiate, within a short period of time, relatively quickly – it’s impossible to set a deadline – to continue to improve this issue and to achieve nearly complete or complete equality within a reasonable time. I believe they will do it. I saw their initiative, and I believe that the military attorney’s office should be applauded for its attention to this issue.

Knesset Record 155 (1996) 5784.

 

33. If this is the case, why do the respondents oppose the petitions? The respondents offer a few reasons to support their position. We will discuss each of them, one by one, beginning with the lightest and moving to the heaviest.

 

One reason offered by the respondents is that the current situation is essentially better than the situation set forth by the law. The military tries not to hold soldiers in custody for the maximum period allowed, 96 hours, unless there is a need to hold them in custody for the entire period. Similarly, the Chief Military Attorney, through the Chief Military Prosecutor, instructed all military attorneys (on July 14, 1996) “to make every effort to bring the matter of arrested soldiers to a military judge as soon as possible.”

 

Such is indeed the case. But there is nothing remarkable about that. The period of detention established in the statute is the maximum period designed for a particular purpose, primarily to conduct investigatory activities, before releasing the soldier or bringing him or her before a military judge in order to extend the detention. These activities, like any exercise of administrative power, must be done with the proper speed. See section 11 of the Interpretation Law. Once these activities have been completed, and there is no longer any purpose to the detention, the soldier must be released, even if the maximum period of detention has not yet elapsed. And even if there is justification for continuing to detain the soldier, the law requires that he or she be brought before a military judge as soon as possible, in order to extend the detention. Compare section 29(a) of the Enforcement Authority Law. This obligation, however, even if fully fulfilled in practice, still does not justify a statutory provision that establishes a maximum period of detention which is longer than is necessary.

 

Furthermore: we have no data to show how many of the soldiers arrested are held in custody for the maximum allowed period, meaning 96 hours, and whether they are held in custody when necessary or when not necessary. The petitioners assume that it is common practice for soldiers who are arrested to be held in custody until the end of the maximum period. In any event, the answers to these questions have no bearing on the result of the case. Even if we were presented with data showing that relatively very few soldiers are held in custody for the entire maximum period, it would not sufficiently answer the claim that the maximum period of detention is longer than is necessary. Such an answer could not justify a maximum detention period of two months or eight days. Such an answer could not, at the relevant time, have prevented the reduction in the maximum period of detention by a civilian police officer from 48 to 24 hours. The proportionality test for the detention period also relates to the maximum period of detention, meaning the period established by the statute, and not just the period of detention in practice for this or that soldier. If the maximum period infringes on personal liberty beyond what is necessary, that is the case even if it infringes on the liberty of just a few people. Even the personal liberty of a single individual is worthy of protection as though it were the liberty of the entire world.

 

In any event, this claim raised by the respondents appears to have failed to convince even the respondents themselves, because they concede the appropriateness of reducing the period of detention from what is it today.

 

34. The respondents raise an additional claim, in a similar vein, that, de facto, the infringement on personal liberty of a soldier arrested by a military police officer is not so severe. As they said in their briefs to the Court, “In evaluating the proportionality of the provisions for judicial review of the detention of soldiers, one should also consider the provisions which supplement judicial review – the review of arrests which military attorneys and senior adjudication officers exercise, and the right to appeal an arrest warrant.” They point to a number of sections of the Military Adjudication Law which establish a complicated arrangement for internal review of an arrest warrant issued by a military police officer. First, under section 238(a), a soldier who has been arrested may submit an appeal to a military attorney. Second, under sections 237A(b) and 237A(d), even if the soldier does not submit an appeal, the arrest must be brought before a military attorney for approval within 48 hours of the arrest, and if the arrest is not brought for such approval, the soldier is released. Third, under section 237A(c), a military attorney may order a reduction in the period of detention or the release of the soldier. Fourth, if the military attorney decides not to order the soldier’s release, the soldier may, under sections 238(b) and 238(d), submit a request for reconsideration to the military attorney. If the military attorney decides not to grant the request or appeal (under section 238(a)), he or she must bring the matter to the decision of the Chief Military Attorney or his or her deputy. And, under section 239, the Chief Military Attorney may rescind any warrant issued by an adjudication officer.

 

However, according to the petitioners, this complicated and impressive system of internal review of the arrest of soldiers does not sufficiently address the charge of a disproportional infringement on the personal liberty of the soldier arrested. First, the general rule is that arrest by virtue of an arrest warrant issued by a police officer, whether civilian or military, must be reviewed by a judge as soon as possible. True, a military attorney is a senior officer at the rank of lieutenant colonel, with legal training and legal experience, holding a respected position and even enjoying professional independence within the chain of command. However, he or she is not a judge. Review by a military attorney is internal review; review by a judge is external review. Internal review takes place in the office of the military attorney, based on documentary evidence; external review takes place in a courtroom, in the presence of the detainee. There is a substantial difference between the two. Because the arrest severely infringes on the right to liberty, it must be reviewed externally. This rule is important in principle and also in practice: the military attorney’s role, as part of the system of military justice and as a representative of the military prosecution, is likely to influence the way he or she reviews an arrest warrant.

 

Second, the large number of arrests, coupled with the tight schedule of each arrest, creates practical difficulties for a military attorney seeking to exercise review, as the statistics demonstrate. The Court requested and received statistics from the respondents (for the years 1996 and 1997) about soldiers arrested on suspicion of desertion (which account for more than 90%  of arrests by a military police officer) and released prior to the maximum period of detention, pursuant to decisions by military attorneys. The statistics show that only 6% of the soldiers arrested and brought before military attorneys were released prior to the expiration of the maximum period of detention, either because the military attorney rescinded the arrest warrant or because a military attorney failed to approve the arrest warrant within the statutorily required period.

 

It would seem, then, that internal review by a military attorney, important as it is, and as much as it affects the question of proportionality, is not an adequate substitute for external review by a military judge.

 

We thus return to the original question: Does a period of detention of no more than 96 hours infringe on the personal liberty of a soldier, as the respondents claim, to an extent no greater than is required by the nature and character of the military service?

 

35. Both the respondents as well as the petitioners seek to bolster their claims with examples from legal systems in other countries. The parties presented the Court with numerous sources from English, U.S., Canadian, and other case law and legal literature. If truth be told, however, it is difficult to glean any clear message or make effective use of examples from foreign legal systems. Indeed, in each of these systems, commanders have the power to arrest soldiers under certain circumstances, subject to review of the arrest within a short period of time. The review conducted, however, is generally internal, by commanders who do not necessarily have legal training, rather than by judges. The respondents apparently correctly point out that in none of the countries they investigated does the law require review by a military judge within 24 or even 48 hours. In contrast, the German Military Discipline Law of 1972 requires (in section 17) the release of a soldier arrested for a disciplinary violation no later than the end of the day of his or her arrest, unless a judge issues an arrest warrant, and for a criminal violation, there is no difference between the period of detention authorized for soldiers and non-soldiers.

 

In any event, the law in Israel requires us to evaluate the proportionality of the period of detention in light of the nature and character of military service in Israel. The nature and character of military service in Israel differ from those of military service in other countries. Therefore, and particularly because the law regarding review of the arrest of soldiers differs from country to country, comparative law would not appear to be terribly useful to the issue at hand.

 

36. In that case, do the nature and character of military service in Israel require or justify authorizing a military police officer to detain a soldier for 96 hours before bringing him or her before a military judge? During the course of oral arguments (in July of 1997), the Court asked the respondents if they would agree to draft an amendment to the Military Adjudication Law that would, by 1998, reduce the maximum period of detention of a soldier by a military police officer to 48 hours. The respondents notified the Court (on September 30, 1997) that, after holding consultations on that question at the highest levels of the military and with the State Prosecutor and Attorney General, they reached the following conclusion:

 

4. The military authorities in charge of the issue concluded that it would be almost impossible to reduce the initial period of arrest to 48 hours, beginning in July of 1998 … first, the military needs to learn its lessons from the transition to the current legal situation of bringing soldiers before a judge within 96 hours …

 

…

 

6. The military law enforcement system is unprepared to implement the proposed transition to extending the period of arrest within 48 hours, and an attempt to do so risks undermining the military’s system of law enforcement and discipline. The issue is not just the financial significance of expanding human resources to handle the anticipated yearly increase of thousands of arrest procedures and arrest appeals. It is also a question of formulating working rules for the different players within the military system who need to make sure that soldiers who are supposed to remain in custody are not released simply because the system has not yet taken steps to implement the new legislation.

 

7. The military system has a real fear that a transition, within a year, to a requirement that the arrest be extended within 48 hours, before the system has taken steps to properly prepare, will result in a variety of undesirable situations. These include not having enough time to complete essential investigations and collect evidence in cases involving soldiers who desert or go absent without leave. It may become impossible to summon the commanders of these soldiers to adjudicate their cases through disciplinary hearings, and investigatory activities will have to cede to increased attention to procedures involving extensions of arrest. If this happens, more soldiers are likely to absent themselves from military service, undermining military discipline, obstructing investigations, and causing other kinds of damage.

 

8. The position of the IDF should be noted: bringing a soldier for extension of arrest within 48 hours is a desirable goal. However, achieving that goal requires the military to evaluate the practical aspects and the arrangements necessary to implement it. The military has therefore decided to take a year to evaluate the new 96-hour requirement, beginning when the amendment to that effect enters into force in July, 1998. At the end of that year of evaluation, as 2000 draws near, the military will propose another amendment which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.

 

 

At the Court’s request, the respondents itemized the changes and resources that the military would need in order to prepare to reduce the period of arrest to 48 hours. They said that it would need to reinforce the means of transporting detainees, assign more people to guard detainees being transported, bolster human resources in the legal system (judges, prosecutors, defense lawyers, etc.) speed the process of transmitting legal material (via fax and other means), and the like. They estimate needing another 40 professional soldiers and another 40 drafted soldiers, as well as another 40 vehicles for transporting prisoners, eight buses, communications devices, computer systems, construction, and the like. The respondents did not provide data or explanations to serve as a basis for their estimate.

 

37. These resources would be necessary to reduce the period of arrest primarily because of the current system in place for arresting soldiers, interrogating detainees, extending arrest, and trying soldiers in a disciplinary hearing or criminal procedure. However, it may be possible to change the current procedures (if necessary, via legislation) and improve the current practices in such a way as to reduce substantially the amount of financial and human resources necessary while simultaneously conducting proceedings more quickly. For example, a primary reason for the difficulty in extending the arrest of soldiers is the practice of bringing the soldier to the military tribunal in the judicial district of the unit in which he or she serves. For example, a soldier serving in the Northern Command who commits an offense (such as desertion) and is arrested by a military police officer in southern Israel, will be taken to the Northern Command tribunal which sits in Haifa, rather than to a tribunal close to the place of arrest. We might question whether this is the optimal practice, considering the resources it requires. Perhaps if this practice is changed, and the military improves the means of electronic communication available to legal officials to facilitate the transfer of legal materials relating to detainees, it will be possible to conserve the resources which, according to the respondents, would currently be necessary to reduce the period of detention. For example, after making arrests, couldn’t the military quickly bring detainees to a single military detention center in the center of Israel? Or, perhaps it could bring them to two or three centers, each of which would house the necessary number of military attorneys and judges who could quickly review requests to extend the period of arrest?

 

However, as long as the practices of arrest and extension of arrest do not infringe on the rights of soldiers, they are the concern of the military, and it is for the military to evaluate them and decide what to do. For purposes of our question, namely whether a 96-hour period of detention is required by the nature and character of military service, we will accept the military’s estimate of the resources currently necessary to reduce the period of detention and the possible results of the reduction.

 

38. The petitioners claim that the nature and character of military service poses no special considerations that require a detention period of 96 hours. They further claim that there is nothing in a shorter period to undermine the nature and character of military service.

 

This claim of the petitioners gives an unduly narrow interpretation to the nature and character of military service. The nature and character of military service include maintaining military discipline, cracking down on absenteeism, and the like. That is why the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty allows a soldier’s rights to be infringed if it is necessary, for example, to maintain military discipline, so long as the infringement is to an extent no greater than required to serve that purpose.

 

This is the very claim of the respondents, that reducing the period of detention, at this stage, is likely to undermine military discipline, exacerbate the phenomenon of absenteeism, and lead to other consequences destructive of the nature and character of military service.

 

39. However, the respondents do not present these negative consequences as inevitable. They acknowledge that they can be prevented. In order to prevent these consequences, they say, they need two things: time and resources. The question is therefore whether at this time, these needs justify not reducing the period of detention.

 

First, we will evaluate the need for resources. Can the need for resources obstruct a reduction in the period of detention? In principle, it is possible that the scope of the resources required can, as a practical matter, prevent a reduction in the period. Indeed, as the saying goes [under the system of assigning a numerical value to the letters in Hebrew words – trans.], the gap between “desirable” and “feasible” equals “money.”

 

The respondents submitted to the Court an itemization of the resources necessary to reduce the period of detention. Para. 36, supra. These resources, while in no way negligible, are not beyond the means of the military. We must compare the scope of the necessary resources (assuming they cannot be reduced) with the scope of the infringement on the soldiers’ rights to personal liberty. Each year, military police officers arrest approximately 10,000 soldiers (mostly for the offense of desertion). What tips the scales? The answer primarily depends on the relative weight of the liberty and the resources. What, then, is that relative weight? That question puts Israeli society to the test: society is judged, among other things, according to the relative weight it accords to personal liberty. That weight should be expressed not just in lofty declarations and not just in law books, but also in the budget ledger. Protecting human rights generally has a cost. Society should be prepared to pay a reasonable price for protecting human rights. As Justice Dorner held in CrimFH Ganimat v. State of Israel [16] at 645, “A basic right, by its very nature, imposes a social cost … preserving basic human rights is not just an individual issue but rather the concern of society as a whole, and it determines the character of society.” See also HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister [17] at 759; CrimApp 6654/93 Binkin v. State of Israel [18] at 295; HC 4541/94 Miller v. Defense Minister [19] at 113, 122; APP 4463, supra [7] at 169-70. See also Barak, supra [21] at 528.

 

Considering the special weight accorded to reducing the infringement on the personal liberty of soldiers, the price that must be paid in human and financial resources to reduce the existing period of detention appears to be reasonable. This would hold, a fortiori, if additional inquiries reveal that it is possible (and this seems only logical) to change the system and practices concerning the arrest of soldiers, such that the price will go down. In any event, this price is an insufficient reason for violating the personal liberty of so many soldiers, beyond the extent required by the nature and character of military service.

 

Indeed, reducing the period of arrest by a civilian police officer from 48 hours to 24 hours required the police to make the appropriate adjustments, including expenditures of financial and human resources. That cost did not stop the legislature from reducing the period of arrest, out of its willingness to pay a price for the protection of individual liberty. See para. 28, supra. Justice Cheshin’s comments in HC 3648/97 Stameka v. Interior Minister [20] at 777 make this point (“our strict insistence on proportionality from the agency is directly proportional to the importance of the right infringed or the severity of the infringement on the right”). See also Justice Dorner’s comments in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11] at 421-23.

 

It is worth noting that Professor Emmanuel Gross, who served as the President of the Military Tribunal for five years, takes the same position, as he wrote in Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [27]. In his opinion (ch. 7, para. 1), the statutory provision permitting 96 hours of detention does not pass constitutional muster and should therefore be repealed and replaced with a shorter period. On this issue, he says, inter alia, that:

 

The State of Israel is a small state geographically, and therefore there is not and could not be a logistical obstacle, stemming from the character of military service, to bringing a solder before a judge sooner. Nor should we abide any other explanation, such as the excuse that an overworked military adjudication system is not currently prepared to handle the anticipated number of requests stemming from arrests. In my opinion, there is no justification for extending the detention of a soldier or civilian, without a judicial order, simply because the legal system is not prepared to handle it appropriately.

Id. at 459.

 

40. We still must address the military’s need for time in order to make the necessary preparations for reducing the period of detention, without undermining the discipline of the military and without exacerbating the phenomenon of absenteeism.

 

The respondents notified the Court (in September, 1997) that following the then-planned reduction in the maximum period of detention to 96 hours in July, 1998, they would need a year to evaluate the new arrangement. After making the evaluation, as 2000 was to draw near, they would propose an amendment to the statute “which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.” Para. 36.

 

Because the military itself recognized the desirability and feasibility of reducing the period of arrest, it had substantial time to prepare for reducing the period, throughout the proceedings in these petitions. So far, however, the respondents have not notified us of steps they have taken or are taking to reduce the period of time. In any event, we have not received a draft of a law proposing such reduction, although the end of the year is near, and the year 2000 is approaching. Apparently, the Court must rule on the issue.

 

Conclusion

 

41. The conclusion is that the amending statute setting 96 hours as the maximum period for which a military police officer may detain a soldier no longer meets the proportionality test. As of today, it infringes on a soldier’s personal liberty beyond the extent required by the nature and character of military service.

 

What remedy flows from this conclusion? This Court has repeatedly said that it exercises caution and restraint in declaring that a statutory provision violates the Basic Law: Human Dignity and Liberty and is therefore invalid. In this case, however, even the respondents acknowledge that the amending statute infringes on the personal liberty of soldiers beyond the extent required and desirable and that the statutorily-mandated period should be reduced to no more than 48 hours. The dispute between the petitioners and respondents appears to be over the resources necessary to achieve what they agree is desirable. Indeed, the resources required, according to the respondents’ calculations, are not of an unreasonable scope, and the respondents even agree that it is possible and desirable to invest in those resources. Considering the special significance of personal liberty, and considering that the statute at hand applies to the arrest of approximately 10,000 soldiers each year, the resources necessary are not so extensive as to prevent or even to delay amending the statute to reduce the period of time for which a military police officer can detain a soldier, to the point where the infringement on personal liberty no longer exceeds the extent required.

 

42. We therefore declare that the provision of the amending statute that sets the maximum period of detention at 96 hours infringes on the Basic Law: Human Dignity and Liberty, because it infringes on the right to personal liberty, as set out in section 5 of the Basic Law, to an extent greater than is required by the nature and character of military service. The provision is invalid.

 

43. What statutory provision should replace the invalid provision? In other words, how long can a military police officer detain a soldier, before bringing him to a military judge, without violating the soldier’s personal liberty to an extent greater than is required by the nature and character of the military service? In this case, the Court need not answer the question, because the respondents themselves concluded, in their submission to the Court, that the statute should set a maximum period of 48 hours. Does a period of 48 hours pass the proportionality test? The legislature has the authority to set the period of detention, and it has discretion to decide what period of time is required, so long as that period does not exceed the zone of proportionality. It would seem that if the legislature set a maximum period of 48 hours, as the respondents suggested, as of today, a good argument could be made that such period would not deviate from the zone of proportionality mandated by the Basic Law: Human Dignity and Liberty. At this point, the Court need not give a more binding answer.

 

44. As is well known, the Court’s declaration that a statute or statutory provision is invalid need not immediately take effect. It may be prospective, if circumstances justify it, in order to allow for the appropriate steps to be taken in order to prepare for the invalidity. See e.g. HC 1715/97 [11] at 417. The circumstances of this case warrant our deferring the effective date of the declaration of invalidity, in order to give the respondents enough time to propose the necessary bill to the Knesset, to give the Knesset enough time to debate the bill, and also to give the respondents enough time to prepare the military for the expected legislative changes. Therefore, the declaration of invalidity will not take effect until six months from the date of this decision. The respondents will pay a total of 10,000 NIS in costs to the petitioner in HC 6055/95 and a total of 10,000 NIS in costs to the petitioners in HC 7083/95.

 

President A. Barak

 

I agree.

 

Deputy President S. Levin

 

I agree.

 

Justice T. Or

 

I agree.

 

Justice E. Mazza

 

I agree.

 

Justice M. Cheshin

 

I agree.

 

Justice T. Strasberg-Cohen

 

I agree.

 

Justice D. Dorner

 

I agree.

 

Justice J. Türkel

 

I agree.

 

Justice D. Beinisch

 

I agree.

 

Justice Y. Kedmi

 

1.            Introduction

 

Regretfully, I cannot join the opinion of my colleague, Justice Zamir, even though, in principle, I agree with the theoretical analysis that underlies his decision. The reason for my dissent is, in my opinion, “procedural,” and it is two-fold: First, I see no justification in hearing these two petitions, because they are theoretical. Second, at this stage, I see no justification for intervening in the military’s years-long process of amending a statute, in an effort to equalize, to the extent possible, the period of detention with-no-judicial-order (hereinafter: arrest-without-order) to that adopted in the civilian context.

 

During the arguments in this case, the military made it clear that it is committed to reducing the period of arrest-without-order in the military context, and it even gave the year 2000 as a desirable target date. The amendment requested – and anticipated, once the military finishes preparing for it – will reduce the maximum period of arrest-without-order under section 237A of the Military Adjudication Law to 48 hours. The petitions before us are not only “theoretical,” they also fail to go beyond the period of time to which the military has already agreed. I therefore see no need for us to accelerate the legislative process, which is the practical result of our decision.

 

2.            Theoretical Petitions

 

As my colleague notes in his opinion, the two petitions at hand are theoretical petitions. As a general matter, this court “does not consider petitions … once they become theoretical or moot” because “judicial experience warns against establishing a precedent that would seem to hover in the air.”

 

The practical – the actual – implications of a court decision often serve as a standard or test of whether the decision is “correct” and grounded in reality. It is generally not a good idea to give up on this test of implementation, except under the most exceptional circumstances: an issue of special importance, on which our failure to rule would burden the public, that would justify turning the Court into an “academic” commentator, rather than the adjudicator of an actual dispute.

 

Turning to the case at hand – and acknowledging the special importance of the basic right to individual liberty and freedom of movement which it addresses – I do not think the two petitions submitted meet the exceptional criteria which would justify hearing arguments in the abstract and relinquishing the test of implementation from which we benefit when we resolve an actual problem.

 

I do not think that postponing discussion of the length of arrest-without-order in the military context to an actual case – if such case exists – will create “immunity from judicial review,” as my colleague states. The military authorities have declared that they recognize the need to harmonize these arrests in the military with civilian arrests. As a result, in practice, the system of review established by the Military Adjudication Law will be working on this issue. There is therefore no practical need for a judicial declaration of the invalidity of section 237A of the Law, before the military has completed its efforts on this front. Our intervention at this stage shows a lack of confidence in the military; accelerating legislation without the proper preparation will unnecessarily undermine the performance of the military’s system of law enforcement.

 

3.            Exercising the Authority to Invalidate

 

The Court does not evaluate acts of legislation on their merits, but rather interprets them according to their language. When interpretation of a piece of legislation reveals that it does not meet the criteria set out in a Basic Law, it must be invalidated. Invalidation of this sort stems from the intent of the legislature, which established criteria for the constitutionality of a statute and left the Court with the authority to conduct constitutional review by interpreting the statute.

 

The effort –from different directions – to present the Court as a “superlegislature” was doomed to fail from the outset. Legislative acts are the exclusive province of the legislature. The Court does not step into the shoes of the legislature but rather interprets its statutes. In this respect, the court is the “servant” of the legislature, implementing its instructions. This role does not change, even when judicial interpretation of a piece of legislation leads to its invalidity, because the statute did not meet the constitutional criteria established by the legislature itself. Interpretation of a law, at the end of the day, reflects the purpose for which it was enacted. Where the language of the statute does not properly express the purpose of its enactment and leads to its invalidity because it is “unconstitutional,” the legislature retains the authority to amend the statute and put things back to where they should be. This is generally the situation, including in cases of constitutional interpretation, whose result may lead to a law being invalidated because it is unconstitutional. The Court is the constitutional gatekeeper, while the legislature dictates the rules of gatekeeping.

 

Evaluating whether a piece of legislation withstands the constitutional test of proportionality is not a mechanical task. It requires a thoughtful and delicate balance of interests. Usually, the decision does not delineate a border “line” between “proportional” and “disproportional,” but rather a “zone of proportionality” and steps which exceed that zone. In my opinion, the Court should invalidate a statute solely because it is “disproportional” only when the statute clearly and unequivocally exceeds the zone of proportionality.

 

This court established its authority to invalidate a law in CA 6821/93 (Bank Mizrachi [6]). I see no reason to establish such authority for theoretical petitions. In any event, in my opinion, such authority should not be implemented, as a practical matter, when it is not necessary to solve an actual problem. The authority to invalidate is a unique and special power, stemming from the will of the legislature to ensure objective, external review of its statutes for compliance with the constitutional criteria it creates for itself. It is not a question of invalidating an “ultra vires” administrative decision, and we should resist any attempt to compare the two. The starting point for hearing any claim on the supposed “constitutional infirmity” of a statute is the “presumption of constitutionality”: the presumption that when the legislature passed the statute, it considered the requirements of the Basic Laws and ensured that the statute met them. Therefore, the Court can adopt a different position only if the legislature’s mistakes are clear, unequivocal, and cry out for correction. The less this power is used, the more confidence the legislature will have in the reviewer who wields it, pulling the rug from under table of those who criticize the reviewer and the review it exercises.

 

An amending statute that benefits – like a new statute – enjoys the “presumption of constitutionality,” which is based on the assumption that the legislature examined, evaluated, and concluded that the piece of legislation it creates meets the requirements of the “constitution.” The Court’s intervention in this issue tells the legislature that it erred. I personally doubt that the legislature erred in gradually bringing an old statute into conformity with the requirements of constitutional proportionality which are not required of an old statute. That is the case raised by the two petitions.

 

Because of this character of judicial review based on constitutionality, it should be used only in the most exceptional cases, when intervention is unavoidable. In this case, the military authorities recognized the need to continue amending the statute – to the extent possible, without undermining the performance of the military’s system of law enforcement – to bring it into conformity with the legislation governing civilian arrest-without-order. In this case, intervention is “avoidable.”

 

4.            An Aside

 

I would have chosen to deny the petitions on the grounds they are theoretical and do not, at this stage, justify conducting constitutional review of the latest amending provision of section 237A of the Military Adjudication Law. However, I see fit to briefly address four of the issues that my colleague discussed in his extensive and instructive opinion:

 

a.            Reviewing the Constitutionality of an Amending Statute

 

In my opinion, it is a mistake to exercise constitutional review over provisions of an unquestionably “beneficial” amending statute. Rather, for purposes of constitutional review, it should be treated as part of the original statute which it amends. Doing so will encourage the enactment of beneficial amending statutes. That is especially the case for a beneficial amending law that is part of a process of bringing an old statute into conformity with the constitutional requirements that came into effect only after the statute was enacted. Paving the way for constitutional review of a “beneficial” amending statute will deter the legislature from gradually amending old statutes, freezing them in their current form. In my opinion, it is in the public interest to leave room for “improving” burdensome provisions in an “old” statute, in order to bring it closer to provisions which meet the progressive standards of the Basic Law.

 

As a matter of interpretation, it will often be difficult to characterize an amending statute as “beneficial” or “non-beneficial.” The desire to avoid interpretive difficulties, however, cannot trump the public’s interest in a process of “beneficial revision” – generally, and particularly as a stage in the process of gradually amending “old” laws which the Basic Laws buttressed from constitutional review.

 

However, “exacerbating” infringements of rights protected by the Basic Laws is unacceptable. The same public interest that requires us to protect a “beneficial amendment,” in order to encourage such amendments, mandates “constitutional” intervention in cases of an “amendment-exacerbating-the infringement” of a basic right. Exacerbating the infringement reflects an “innovation,” and it contradicts the Basic Law. On the other hand, moderating the infringement reflects “progress,” is consistent with the Basic Laws, and advances the purpose of their enactment.

 

In the case at hand, the amending statute “benefits” in every possible aspect. In my opinion, that is reason enough to deny the petitions and leave the military authorities to continue their efforts to bring their practices into conformity with the rules for civilian arrests. It is consistent with my objection to subjecting a beneficial amending statute to the requirements of the Basic Laws. It also flows, in my opinion, from the restraint required of the Court on this issue. That would be true even if we accepted the principle that a beneficial statutory amendment – like an “exacerbating” statutory amendment – is subject to the constitutional conditions dictated by the Basic Laws.

 

b.            Limitation Clause: General and Military

 

I accept my colleague’s opinion that section 9 of the Basic Law: Human Dignity and Liberty includes the requirement of section 8, namely that a violating law must “befit … the values of the State of Israel” and be “enacted for a proper purpose,” although section 9 does not explicitly say so.

 

The difference between the two limitation clauses of sections 8 and 9 is the additional, binding requirement of section 9: “by the nature and character of the service.” In our case, it is service in the IDF. As my colleague pointed out in his opinion, “The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces.”

 

In the military, the length of the arrest-without-order – designed to investigate the suspicion underlying the arrest, so that a decision over whether to extend the arrest can be made – is in large part dictated by a series of factors linked to “the nature and character of the service.” Among other factors, two stand out. The first is the interaction between the deployment of the military and the location of its legal institutions, in light of their jurisdiction over the soldier arrested. The military has a special interest in maintaining authority and jurisdiction within the different forces and according to the existing command structure. The second factor is the geographical distances that generally exist between the place of arrest and the location of witnesses who must be questioned as part of a preliminary investigation of the suspicions underlying the soldier’s arrest-without-order.

 

Reducing the period requires preparation and investment in resources. It may also require amendments to related legislation. Considering the nature and character of the service, it may become apparent that the ability to reduce the time period is limited, such that the end result will be different from its civilian counterpart. That is apparently the reason that the petitioner in HC 6055/95 limited his request to reducing the period of arrest-without-order to 48 hours, even though the civilian period had been shortened to 24 hours.

 

Indeed, as my colleague pointed out, a factor in determining the scope of the proportionality requirement is “the feasibility test.” The military declared its aspiration to attain a “reduced period” of 48 hours but requested time to prepare, including time to obtain the required budgetary resources. The military requested an “extension” in order to make the systematic changes that would “allow” it to reduce the period to 48 hours. Naturally, the “feasibility” test can be conducted only after the military has completed its preparations, and there is no claim that the IDF is dragging its heels.

 

c.             The Economic “Cost”: A Consideration of Proportionality

 

I personally think that the “economic cost” should not necessarily be disqualified as a consideration in determining what is proportional. I disagree with the rule that “proper” proportionality – as a conceptual standard – justifies and requires paying any price.

 

                If meeting the objective-conceptual, constitutional demands of proportionality puts a heavy burden on public economic resources, at the expense of other public interests, that “cost” cannot be ignored. It is one of the factors that delineate the zone of proportionality. In my opinion, we cannot rule out a situation in which the “economic cost” significantly influences where to draw the boundaries of the zone of proportionality.

 

                d. The Results of Invalidating a Beneficial Amending Statute

 

As the Bank Mizrachi [6] decision stated, invalidating a beneficial amending statute has the effect of “returning the situation to the status quo.” In other words, the constitutional situation “will worsen,” despite the legislature’s attempt to benefit. We have no real guarantee that, once we invalidate an amending statute that only “partially” benefits, the legislature will complete the “benefit” by bringing the old statute into complete conformity with the requirements of the Basic Laws. Nor can we require the legislature to do so, because provisions of an “old” statute are protected by the Basic Law: Human Dignity and Freedom.

 

                Indeed, from a public interest standpoint, invalidating a provision of a beneficial amending statute will encourage a public movement to press for amending legislation that immediately – not gradually – conforms to the requirements of the Basic Laws. To me, it is clear that invalidating a beneficial amending statute does more harm than good to the public interest. In any event, the Court should take these consequences into consideration before intervening to invalidate beneficial amending legislation.

 

5.            Conclusion

 

In conclusion, if my opinion were to win a majority, we would not intervene to invalidate a beneficial amending provision, in a situation in which the relevant executive authority has declared its intention to continue a gradual path of bringing the statute into compliance with the requirements of the Basic Laws. This is especially true where, as is the case here, the executive authority has thus far been true to its word.

 

                Exercising our authority to invalidate in this case is likely to undermine the “uniqueness” and “specialness” of that authority, which is expressed, in part, by limiting its exercise to rare circumstances when using it is “unavoidable.” It is likely to put that authority on par with the authority to invalidate an ultra vires administrative provision. I personally would avoid that result, as much as possible.

 

Decided by a majority, as per the opinion of Justice Zamir, with Justice Kedmi dissenting.

 

October 14, 1999.

 

 

 

 

 

 

 

 

1.    I agree with the conclusion of my colleague, Vice President E. Rivlin, to the effect that s. 5 of the Temporary Provision should be invalidated. This is because of the conflict between the section and the provisions of the Basic Law: Human Dignity and Liberty. More specifically, I note that in my view, the provisions of s. 5 of the Temporary Provision are inconsistent with the principle of human liberty as it pertains to freedom from detention, as described in s. 5 of the Basic Law. I do not see any need to state my position regarding the question of whether the section in the Temporary Provision is also in conflict with other provisions of the Basic Law, especially regarding human dignity.

2.    Section 5 of the Temporary Provision effectively suspends the right of a suspect to be present at the detention proceedings being conducted against him. In my view, the suspect’s right to be present in court is derived from the right to liberty, either directly, or pursuant to the right to due process. What makes the case before us unique is that along with the denial of the said right, the law also allows for the possibility that another right will also be denied — the right of a criminal suspect to be in contact with his attorney (s. 35 of the Arrests Law). This right is a critical element of the right of any suspect to be represented by an attorney that he has chosen. In my view, this last right is also derived from the right to personal liberty, and it makes no difference whether the derivation is direct or pursuant to the right to due process.

3.    Theoretically, the authority to deny the two mentioned rights — the right to be present at the detention hearings and to be in contact with an attorney — can be exercised separately, rather than simultaneously. There is certainly the possibility of communication between the suspect and his attorney being prohibited, while the suspect is nevertheless permitted to be present in court. Section 35(g) of the Arrests Law expressly provides that when it has been decided to refuse to allow a suspect to meet with his attorney, the hearing regarding a request for detention or release or regarding an appeal, will be conducted separately for the arrestee and for his attorney “in a manner that prevents contact between them”, unless the court decides otherwise. In such a case, the judge must also serve as a type of go-between for the suspect and his attorney. What is clear is that in such cases the suspect may be present in court and can present his arguments before the judge, even if he is not permitted to communicate with his attorney. It is theoretically possible for a suspect’s right to be present in court to be denied, without his right to meet with his attorney having been suspended ― but this does not occur in reality, for various reasons. It appears that in every instance in which the right to be present in court during a detention hearing has been denied, the suspect’s right to meet with his attorney has also been denied. The significance of this simultaneous denial of the two rights (or, as my colleague Justice Naor calls it, the “cumulative effect”) is clear. In a formal sense, the lawyer may represent the suspect during the detention proceedings, but it is understood that the ability to provide proper representation under such circumstances is extremely difficult. This difficulty is added to the fact that the suspect is himself unable to be present in court. The judge therefore rules on the matter, in such a case, even though he is unable to hear the suspect’s statements. Although it cannot be said that the proceeding becomes an ex parte proceeding, since the suspect’s attorney is present, it does become a proceeding in which that attorney is acting with one hand tied behind his back and the court is provided with only a partial picture (as my colleague the Vice President wrote in para. 31 of his opinion). It should be noted that in the instant case, the two rights were suspended simultaneously. Nevertheless, we have not been provided with information regarding the duration of the period in which there was an overlap between the denial of both rights.

4.    There is no need to explain that under such circumstances, in which the two mentioned rights are both denied, there is a built-in danger that the process will not fulfill the due process requirement. However, even if there has been a violation of a fundamental right to personal liberty, this is not all that is be said of the matter — instead, it is necessary to examine whether the violation satisfies the tests prescribed in the limitations clause in s. 8 of the Basic Law. This examination must, in my view, relate to the period of time in which the mentioned rights are both denied simultaneously. It cannot be that a suspension of a right for a period of forty-eight hours is to be equated with its suspension for a period of twenty days. More concretely, it can be said that the proportionality requirement of the limitations clause requires an investigation of the degree of the possible violation of the right due to the simultaneous suspension of the right to meet with an attorney and the right to be present at detention hearings, arising from the length of time involved.

5.    The maximum period in which it is permissible to deny a meeting between a suspect and his attorney is twenty days (s. 35(d) of the Arrests Law). Regarding the prevention of a suspect’s presence in court, the maximum period is nineteen days (s. 5(1) of the Temporary Provision, which states that the period of detention that a court can order may be for less than twenty days; on the assumption that the day of the hearing is not included, we thus arrive at a maximum period of nineteen days). Thus, there is authority to prevent a suspect from meeting with his attorney, and to prevent his presence at the detention hearings, for a period of eighteen days. In my view, a period of such length does not comply with the proportionality requirements of the limitations clause — either with respect to the least violative measure test or the narrow proportionality test.

6.    Because the defect in the provisions of s. 5 of the Temporary Provision arises from the above-mentioned lack of proportionality (in its broader sense), I do not believe that as a matter of principle, there is any impediment preventing the legislature from adopting a different arrangement regarding the prohibition of the suspect’s presence at the detention hearings. Of course, any new arrangement of this matter must take into consideration the existing arrangement regarding the prevention of the suspect’s meeting with his attorney. In other words, in order for the new arrangement to comply with the proportionality principle of the limitations clause, care must be taken regarding the simultaneous application (or the cumulative effect) of the provisions regarding the prohibition against the suspect’s meeting with an attorney and the ability to conduct hearings in the suspect’s absence. A new and proportionate arrangement may take various forms. We note, inter alia, the possibility of shortening the period of time during which the two restrictions — the denial of the suspect’s ability to appear in court and the prohibition against his meeting with an attorney — would apply simultaneously. In my opinion, it is doubtful that the shortening of the period in which both applied would be sufficient. An additional possibility would be a significant limitation of the grounds that could be used to justify the prohibition of the suspect’s presence at his detention proceedings (see also Justice Naor’s opinion). It is important to find a solution that combines the two possibilities noted here.

7.    I do not agree with the view expressed by my colleague, Justice Naor — to the effect that our holding regarding the invalidity of s. 5 of the Statute should take effect six months from now, in order to allow the legislature time in which to respond. As we have been told, the authority to prohibit a suspect’s presence during detention hearings is exercised only rarely. For any particular suspect being discussed, it makes no difference at all that his case is unusual or even unique. What is important for the particular suspect is that there has been a disproportionate violation of his right to personal liberty. Thus, the rarity of such cases — those involving the use of the said — is not sufficient to qualify a defective arrangement. To the contrary, the fact that there are only few such cases justifies the immediate implementation of the decision to invalidate the arrangement. Furthermore, such immediate implementation will provide an incentive for the parties involved to act quickly and energetically so as to find an alternative arrangement which will be proportionate, and which will pass constitutional muster.

Decided as stated in the opinion of Vice President E. Rivlin, to allow the appeal as described in para. 35 of his opinion, holding that s. 5 of the Criminal Procedure (Arrest of a Security Offense Suspect) (Temporary Provision) Law, 5766-2006 is invalid.

27 Shvat, 5770.

11 February 2010.

 

 

 

HCJ 5591/02

1.            Halel Yassin

2.            Ibrahim Puzi Abrahim Siam

3.            Iad Nebil Aish Alaba’ad

4.            Sha’ar Manjed Yusef Mansuer

5.            Mustafa Ahmed Basharat

6.            Mahmus Shabana—Hebron

7.            Ramzi Mahmud Fiad

8.            Adalah—The Legal Center for Arab Minority Rights in Israel

9.            Kanun—The Palestinian Organization for the Protecion of Human and Enviormental Rights

10.          The Center for the Defense of the Individual founded by Dr. Lota Zetzberger

11.          B’tselem—The Israeli Information Center of Human Rights in the Occupied Territories

12.          Addameer—Prison Support and Human Rights Association

13.          Alhak—The Law in Service of Human Rights

14.          Almrah Center—Legal Social Center

15.          Nadi Alasir Alfalstini—West Bank

16.          The Public Committee Against Torture in Israel

17.          Physicians for Human Rights

v.

1.            Yoni Ben-David—Commander of the Kziot Military Camp-Kziot Detention Facility

2.            Binyamin Ben-Eliezer—Minster of Defense

 

The Supreme Court Sitting as the High Court of Justice

[December 18, 2002]

Before President A. Barak, Justices D. Beinisch and I. Englard

 

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

 

Facts: In the context of IDF operations against the terrorist infrastructure in areas of the Palestinian Authority (“Operation Defensive Wall”), thousands of suspects were detained. Due to overcrowding, some of these petitioners were transferred to the Kziot detention facility in the Negev region. Most of the detainees were detained pursuant to administrative detention orders. This petition concerns the detention conditions of these detainees.

 

Held: The Supreme Court held that the presumption of innocence should be applied to the detainees, as they are being held under administrative detention orders, and have neither been tried nor convicted. The Court further held that the army must ensure that the detainees be treated humanely, and in recognition of their essential human dignity. In determining whether the detainees were being treated humanely, the Court had recourse to domestic Israeli law as well as international law. Concerning the petition at hand, the Court held that, due to inadequate preparation on the part of the army, the initial conditions of detention did not meet minimum standards. In the intervening time, however, the army had improved conditions to the point where they did meet Israeli and international standards.

 

Basic Laws cited:

Basic Law: Human Dignity and Liberty

 

Legislation cited:

Emergency Powers (Detentions) Law-1979

Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996, §§ 1(c), 9(a)

 

Regulations cited:

Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981, §§ 5(a), 5(b), 6(a), 6(b), 8(a), 8(c)

Emergency Regulations (Offences Committed in Israeli-Held Areas—Jurisdiction and Legal Assistance)-1967

Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997

 

Treaties Cited:

The International Covenant on Civil and Political Rights (1966),

Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949

 

 

Israeli Supreme Court cases cited:

[1]          HCJ 3278/02 The Center for the Defense of the Individual founded by Dr. Lota Salzberger v. Commander of the IDF Forces in the West Bank, IsrSC 57(1) 385

[2]          HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801

[3]          HCJ 2320/98 El-Amla v. Commander of the IDF Forces in the West Bank, IsrSC 52(3) 246

[4]          HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank, IsrSC (unreported decision)

[5]          HCJ 355/79 Catlan v. The Prison Service, IsrSC 34(3) 294

[6]          CA 5942/92 John Doe v. John Doe, IsrSC 35(1) 536

[7]          HCJ 221/80 Darvish v. The Prison Service, IsrSC 50(2) 749

[8]          HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service, IsrSC 38(2) 826

[9]          HCJ 337/84 Hokma v. The Minister of the Interior, IsrSC 50(4) 136

[10]        CA 4463/94 Golan v. The Prison Services, IsrSC 52(5) 826

[11]        HCJLA 6561/97 The State of Israel v. Mendelson, IsrSC 52(5) 849

[12]        HCJL.A. 823/96 Vanunu v. The Prison Service, IsrSC 51(2) 873

[13]        HCJ 3114/02 Barake v. The Minister of Defense, IsrSC 56(3) 11

 

Foreign Books cited:

[14]        J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)

 

Petition denied.

 

For the petitioners—Morad Alsana; Hasan Gabarin; Mahmud Gabarin

For the respondents—Shai Nitzan

 

 

 

JUDGMENT

President A. Barak

This petition concerns the detention conditions of detainees from Judea and Samaria who are being held in administrative detention at the Kziot detention facility.

 

Facts

 

1.            Both Israel and the area have suffered intense terrorist activity.  In Operation Defensive Wall, the government decided to pursue military operations against the Palestinian terrorist infrastructure in Judea and Samaria.  Within the framework of this operation, many suspects have been detained. See HCJ 3278/02 The Center for the Defense of the Individual founded by Dr. Lota Salzberger v. Commander of the IDF Forces in the West Bank [1].  The detainees were originally held in temporary facilities which were set up in brigade headquarters.  After an initial screening took place, those who were chosen to remain in detention were moved to the Ofer Camp detention facility in Judea and Samaria.  Due to overcrowding, some of the detainees were moved to the detention facility in Kziot, which is located in the Negev, in the south of Israel.

 

2.            Kziot Camp was opened in the second half of the 1980s.  It primarily held administrative detainees from the area.  The conditions of the detention in the camp were the subject of a comprehensive examination by this Court in HCJ 253/88 Sajadia v. The Minister of Defense [2].  The facility was shut down during the second half of the 1990s. In April 2002, once it became clear that Israel would continue holding a substantial number of detainees for security reasons, and that it would be impossible to hold them in Ofer Camp, Kziot Camp was reopened on short notice.  The majority of the detainees are being held at Kziot Camp under administrative arrest warrants which were issued against them in the area.

 

Arguments

 

3.            Petitioners complain about the conditions of the detention in Kziot Camp. Their chief complaint concerns the fact that the detainees are being held in tents.  Petitioners claim that tents do not provide suitable means of detention.  The tents do not shield against the rigors of desert weather, such as heat during the day and cold during the night.  The tents cannot be shut and, as such, sand, mosquitoes, crickets, insects and reptiles enter the tents and disturb the detainees.  The petitioners also complain of overcrowding in the tents. Furthermore, they contend that the food that the detainees are supplied with is insufficient and of low-quality.  The detainees, who are exposed to the intense heat of the Negev, are not supplied with cold water. The detainees do not receive sufficient clothing, and they are unable to launder the little clothing they do receive.  The beds are such that it is difficult for the detainees to sleep properly. The beds are actually wooden beds with mattresses that rise 10 to 15 centimeters above the ground.  As a result, many of the detainees wake up in the middle of the night to find their faces or bodies covered with crickets and insects. Petitioners claim that the amount of soap supplied is insufficient, and that there are not enough showers.  There are no toilet seats in the bathrooms.  The doctor is not easily accessible nor does he speak Arabic.  The petitioners complain that 220 volt electricity does not run through the tents.  Consequently, the detainees are unable to use electrical appliances, especially televisions and fans.  The detainees are not permitted to communicate with their families via telephone.  They are not provided with newspapers and books, nor is there a canteen on location.

 

4.            In respondents’ reply, they claim that the petition was submitted at the end of June 2002. As such, the evidence presented by the petition consists of affidavits submitted by detainees who were held in Kziot Camp in April, and the last of which was submitted at the beginning of May.   Those were the first months of the detention facility's renewed operation, which was reopened on short notice. Between the submission of the petition and the submission of respondents’ reply brief on October 11, 2002, the facility underwent many improvements. Most of petitioners’ claims have been resolved.  In June of 2002, the Attorney-General visited the detention facility, observed the detention conditions and listened to the complaints of the detainees.  During his visit he observed that although the living conditions were not comfortable, especially due to overcrowding and the climate, they were nevertheless reasonable in relation to the reality in Israel.  He added that the conditions did not substantially differ from those provided to the soldiers who carry out detention operations and security functions in the facility, or from the conditions provided to IDF soldiers in general.  While visiting the facility, the Attorney-General investigated various options for improving the detention conditions.  Since then, these suggestions have been implemented.  At the time that respondents submitted their reply the facility held 939 detainees, dispersed throughout four divisions.  Each division was divided into four sub-divisions.  Located within each sub-division were three double “12 tents,” in which 20 detainees were held. 

 

5.            Referring directly to the specific claims made by the petitioners, respondents asserted that the tents are not overcrowded.  Respondents claim that the tents in the facility provide suitable protection against the rigors of the weather.  The quality and quantity of the food provided to the detainees is satisfactory.  In the summer, they are supplied with a large quantity of ice.  The wooden beds and mattresses meet the same standards as those provided to IDF soldiers.  There is no want of clothing in the facility.  A fountain with a large number of faucets may be found in every sub-division.  The detainees are supplied with a sufficient amount of soap.  The level of personal hygiene in the bathrooms and showers is satisfactory.  There is an infirmary operating in the facility which employs three doctors and thirteen medics.  Medical inspections are performed daily in the facility.  When necessary, patients are quickly transferred to the central hospital in the Negev, Soroka Hospital in Beer Sheva.  There is also a dental clinic on location, which employs a dentist.  For security reasons, detainees are not permitted to use telephones to call out of the facility.  The detainees maintain communication with their families via letters.  The Red Cross visits the facility.  The detainees are provided with Hebrew and Arabic newspapers, and they are allowed to use battery-powered radios.  The Red Cross has provided games and a ping-pong table to each sub-division.  There is an operational canteen in the facility.  For security reasons, the sub-divisions are not connected to 220-volt electricity—all tents are illuminated by 24-volt light bulbs.  At night, after the detainees are accounted for, extension chords are utilized in order to allow the detainees to watch television.

 

Arguments of October 15, 2002

 

6.            In oral arguments, petitioners admitted that improvements had been made since the submission of their petition.  Nevertheless, they claim, these improvements are insufficient. Petitioners reiterated their claims against the use of tents and the lack of 220-volt electricity.  They complained of insufficient bathroom stalls and cleaning equipment.  Additionally, they complained that snakes and mice had been found in the area.  Petitioners protested the absence of tables in the facility, which forces the detainees to eat by their beds, which consequently become filthy.  Respondents answered that the old tents had been replaced with new ones.  They asserted that the location is now sprayed for snakes and other animals.  However, regarding the issue of electricity, security considerations prevent any change in the situation.

 

Normative Framework

 

7.            It is appropriate to open this discussion with the normative framework of this case, as was done by Justice Shamgar in Sajadia [2].  This is in response to the possible claim that, since the detainees being held in Kziot Camp are terrorists who have harmed innocent people, we should not consider their detention conditions. This argument is fundamentally incorrect.  Those being detained in the Kziot Camp have not been tried; needless to say, they have not been convicted.  They still enjoy the presumption of innocence.  Justice Shamgar expressed this notion in Sajadia [2]:

 

An administrative detainee has not been convicted, nor is he carrying out a sentence.  He is detained in accordance with a decision made by an administrative-military authority, as an exceptional emergency means due to security reasons …. The aim of the detention is to prevent security hazards, which arise from actions that the detainee is liable to commit, where there is no reasonable possibility of preventing such hazards through standard legal action, such as criminal proceedings, or by taking administrative steps with milder consequences…. The difference between a convicted prisoner and a detainee being held in order to prevent security hazards, is manifest in the status of the administrative detainee and his detention conditions.

 

Sajadia, [2] at 821. In the same spirit Justice Bach noted:

 

With all due respect for security considerations, we must not forget that we are talking about detainees deprived of liberty without their having been convicted of any crime in standard criminal proceedings. We must not be satisfied with a situation in which the detention conditions of these detainees are poorer than the conditions of prisoners who have been sentenced to imprisonment after being convicted.

 

Sajadia, [2] at 831. In a different context, Justice Zamir indicated that:

 

Administrative detention deprives an individual of his liberty in the most severe fashion.  Liberty is denied, not by the court, but rather by an administrative authority; not by a judicial proceeding, but rather by an administrative decision.

 

HCJ 2320/98 El-Amla v. Commander of the IDF Forces in the West Bank [3].

 

Not only should we not allow the detention conditions of administrative detainees to fall short of those of convicted prisoners, we should also strive to ensure that the conditions of detainees surpass those provided to prisoners. These detainees continue to enjoy the presumption of innocence. See HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank (unreported case) [4]. This approach was established by the Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981 [hereinafter the Detention Regulations].  The security considerations that led to the detention of these people do not justify holding them under unsatisfactory conditions. 

 

8.            The detainees were lawfully deprived of their liberty.  They were not, however, stripped of their humanity. In an affair that occurred more than twenty years ago, prior to the legislation of the Basic Law: Human Dignity and Liberty, I remarked:

 

Every person in Israel enjoys the basic right to bodily integrity and the protection of his dignity as a human being…. Convicts and detainees are also entitled to the protection of their bodily integrity and human dignity.  Prison walls do not come between the detainee and his human dignity.

 

HCJ 355/79 Catlan v. The Prison Service [5]. This is especially true after the enactment of the Basic Law: Human Dignity and Liberty, “which does not focus on the proclamation of the existence of fundamental rights, but rather on their essence, their extent and their practical realization.” CA 5942/92 John Doe v. John Doe [6]. (Shamgar, P.) Therefore, the army must ensure that the detainees be treated humanely, and in recognition of their human dignity. See The Center for the Defense of the Individual, [1] at par. 22.  The detention conditions must guarantee civilized and humane life. HCJ 221/80 Darvish v. The Prison Service [7]. Human dignity, which constitutes the foundation of the Basic Law: Human Dignity and Liberty, together with the values of Israel as a Jewish and democratic state, forms the normative lens through which we examine the dentition conditions of detainees.  This framework is not one-sided.  Human liberty is not its sole consideration.  Nor is national security its sole consideration.  The framework attempts to achieve a balance—at times delicate—between the need to guarantee conditions of detention as humane as possible and the need to guarantee national security. 

 

9.            An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel.  They also apply to whoever is detained in the area pursuant to security legislation.  This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas—Jurisdiction and Legal Assistance)-1967, which states:

 

Where an arrest warrant or detention order has been issued against any person in the area, pursuant to the proclamation or the order of a commander, such a warrant or order may be executed in Israel in the same manner that arrest warrants and detention orders are executed in Israel; and that person may be transferred, for detention, to the area where the crime was committed.

 

In Sajadia [2] the court held, based on this regulation, that Kziot Camp must heed the Detention Regulations as well. See also HCJ 1622/96 Abad Al Rahman Al Ahmed v. The General Defense Service [8].   Regulation 5(a) of these regulations states that “a detainee in a detention facility shall receive the same meal portion provided to the jailers in that detention location.”  The regulations do not specify that there must be an operative canteen in the facility.  However, they do specify that “in a detention facility which has a canteen, the commanding officer may permit the detainees to purchase goods there.”  The regulations also state that “a detainee is entitled to receive medical treatment and medical equipment, as is demanded by his health condition.” See Regulation 6(b).  Regulation 6(a) specifies that “a detainee shall be examined monthly by a doctor designated by the commander, and at any time where it becomes necessary to do so.” The Detention Regulations also state that “a detainee is entitled … to receive bathing and cleaning materials as necessary,” regulation 8(a), as is he entitled “to receive newspapers and books for reading, as has been decided by the commander” regulation 8(c). 

 

10.            Aside from these regulations, which concern the conditions of administrative detention, comprehensive rules concerning the conditions of “regular” detention may be found in other legislation and regulations.  Section 9(a) of the Criminal Procedure (Jurisdiction and Enforcement—Detentions) Law-1996 states that “a detainee shall be held under suitable conditions, which shall not harm his health or dignity.” Detailed instructions may be found in the Criminal Procedure Regulations (Jurisdiction and Enforcement—Detentions) (Holding Conditions in Detention)-1997. 

We shall now turn to the provisions of international law regarding detention conditions.

 

International Law

 

11.          Israel is not an isolated island. She a member of an international system, which has set out standards concerning conditions of detention.  The most significant of these may be found in article 10(1) of the International Covenant on Civil and Political Rights (1966), which states:

 

All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

 

This rule, which has the force of customary international law, see The Center for the Defense of the Individual, [1] at par. 23, is in harmony with the Basic Law: Human Dignity and Liberty, which protects the dignity of all persons, including detainees.  Another important source of international law is the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. These principles were endorsed by the United Nations General Assembly in 1988.  They establish principles for all forms of detention, including administrative detention. These principles, even if they are not directly binding in internal Israeli law, set forth standards by which any reasonable government authority should act. In this matter we must also refer to article 11(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and Fight Against Terrorism, which asserts that:

 

A person deprived of his/her liberty for terrorist activities must in all circumstances be treated with due respect for human dignity.

 

12.          The Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter The Fourth Geneva Convention] provides an additional legal source for examination of the detention conditions in Kziot Camp.  This convention sets forth comprehensive arrangements concerning conditions of detention. The validity of the convention with regard to the detention conditions at Kziot is not a subject of dispute before us, as Israel sees itself as bound by the humanitarian provisions of the convention. We have reviewed the details of these provisions in The Center for the Protection of the Individual [1], at par.23.

 

13.          Israeli common law provides an additional legal source concerning this matter.  Our common law includes a long list of judgments concerning the conditions of detention in Israel.  These judgments are founded on the need to strike a proper balance between the liberty of the individual and the security needs of the public. Justice M. Elon explained the guiding principle of this balance:

 

It is an important principle that every civil right to which a person is entitled is preserved even when he is imprisoned or detained. Imprisonment does not deprive anyone of any right, unless such deprivation is an inherent part of detention—such as taking away one’s freedom of movement—or where an explicit statute refers to this matter.

 

HCJ 337/84 Hokma v. The Minister of the Interior, [9] at 832. In the same spirit Justice Matza wrote:

 

It is a firmly established precept that, even between prison walls, a person’s fundamental rights “survive.” Such rights belong to the prisoner (as well as the detainee) even within his prison cell. The only exceptions to this rule are the prisoner’s right to freedom of movement and other limitations which are inherent to depriving him of his personal liberty, or which are based on explicit legal instructions.

 

CA 4463/94 Golan v. The Prison Services, [10] at 152-53. Justice Matza continued, [10] at 155:

 

We do not allow the deprivation of basic human rights, which the prisoners require. These rights consists not only of the prisoner’s right to eat, drink and sleep, but also the right to have these needs supplied in a civilized manner.

 

These decisions and others like them, whether directly or indirectly, provide standards by which we can examine the detention conditions in Kziot. See, e.g., HCJLA 6561/97 The State of Israel v. Mendelson [11]; HCJL.A. 823/96 Vanunu v. The Prison Service [12]. Furthermore, Israeli administrative law applies to the actions of every government authority in Israel. Thus, these principles apply to the actions of respondents, including the establishment and maintenance of detention conditions.  As such, the detention conditions must be reasonable and proportional. See Center for the Defense of the Individual [1]. One may learn about the standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners, which were adopted by the United Nations in 1955. See Droish, [7] at 539; Sajadia, [2] at 832.  These standards apply to all forms of imprisonment, including detention.  We reviewed the details of these instructions in Center for the Defense of the Individual, [1] at par.23.

 

From the General to the Specific

 

14.          Soon after the reopening of Kziot Camp, conditions of detention there underwent changes.  This reopening was done hastily and without preparation.  The detention conditions encountered by the first detainees, whose affidavits are attached to this petition, did not meet the necessary minimum standards. There was no justification for this.  Operation Defensive Wall was planned in advance.  Its main goal was “to prevail over the Palestinian terror infrastructure, and to prevent the recurrence of the terror attacks which have plagued Israel.” See HCJ 3114/02 Barake v. The Minister of Defense [13]. It was obvious to all—or at least should have been obvious—that one of the consequences of the operation would be a large number of detainees.  As such, it was necessary to prepare detention facilities in advance, which would satisfy minimum standards.  This was not done.

 

15.          In time, the conditions were improved and the necessary minimum standards were met.  In certain matters, the conditions now exceed minimum standards.  For example, the tents are no longer overcrowded; the quantity and quality of the food supplied is satisfactory.  The detainees are supplied with an adequate quantity of ice.  There are sufficient changes of clothes available.  The conditions of personal hygiene, as well as the general level of sanitation, are both satisfactory.  The medical treatment is satisfactory.  The detainees are provided with newspapers, and they are allowed to use battery-operated radios.  In each section there are ball games and a ping-pong table.  There is an operational canteen on location.  In fact, during oral arguments, respondents dropped many of the claims raised in their petition.  We will therefore focus on a number of issues, which have not been resolved.

 

16.          The first issue relates to the detainees’ being held in tents.  According to petitioners, the environmental conditions in the Negev—with regard to weather conditions, as well as with regard to the sand and insects that easily penetrate the tents—require that the detainees not be held in tents.

 

 In their reply respondents emphasized that the tents provide suitable protection against the rigors of Israeli weather.  They added that thousands of soldiers, including those who supervise the detainees in Kziot, regularly reside in tents for long periods of time. However, it must be noted that, while the conditions of the soldiers are both important and relevant to this petition, they cannot provide a decisive answer. Furthermore, the Detention Regulations do not address this matter. Even so, it has been accepted practice—both in Kziot and in the military prison in Megiddo—that detainees and prisoners reside in tents.

 

17.          Article 85 of the Fourth Geneva Convention concerns living conditions.  It states that the detaining authority must ensure that the detainees:

 

[B]e accommodated in buildings or quarters which afford every possible safeguard as regards hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war.

 

In Pictet’s explanation of this rule, he asks:

 

Could the term ‘buildings or quarters which afford every possible safeguard as regard hygiene and health, and provide efficient protection against the rigors of the climate and the effects of war’ be taken to mean camps made up of tents?   This practice is allowed in the case of prisoners of war where the Detaining Powers follow the same procedure for their own troops.  During the Second World War it proved satisfactory in certain climates when some essential improvements had been carried out (cement floors, brick walls, stone paths and access roads).  The same latitude, however could hardly be granted with regard to civilian internees and it seems clear that ‘buildings or quarters’ must be taken to mean structures of a permanent character.

 

See J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 386 (1958). I doubt that Pictet’s interpretation is correct.  It seems that a better approach would vary according to the time and place.  It depends upon the nature of the tents on the one hand, and the conditions of the location on the other.  Additionally, a significant factor is whether the detention is short-term or long-term, whether it lasts months or even years.  Ultimately, the test is one of reasonableness and proportionality. Thus, we call for this matter to be investigated.

 

18.          The second issue is the height of the beds. Petitioners complain of the height of the beds being 10-15 centimeters.  They claim that, as a result, many of the detainees find their faces covered with insects, which easily enter the tents.  In response, respondents argued that the detainees have makeshift beds, which they independently built from the cots found in the sub-sections of the facility.  Whether or not this answer has resolved the problem is unclear.  We ask that this matter be thoroughly reexamined.  For as long as the detainees remain in tents, the army should do all in its power to provide the detainees with reasonable sleeping conditions.   The fact that detainees built make-shift beds with their own hands points to the existence of a problem. This fact also indicates that making the beds higher does not raise security issues.  In these circumstances, the obligation to resolve this problem rests on respondents. They must address this issue.

 

19.          The third matter which has not been resolved is the absence of toilet seats in the bathrooms.  Respondent's reply does not specifically refer to this matter, save the general statement that the authorities consider the level of personal hygiene satisfactory.  This matter also requires reexamination.

 

20.          The fourth unresolved issue is the absence of tables for eating.  In The Center for the Defense of the Individual [1], respondents argued that this matter raises security issues. Respondents did not repeat this argument here. Instead, they argued that erecting tables would cause overcrowding. We presume that, for those who request it, eating on tables, as opposed to on the floor, is one of the conditions which “guarantee civilized and humane life.” Darvish [7], at 538 (H. Cohen, D.P.) Other than their general argument regarding lack of space, we received no relevant explanation from the respondents.  We ask that this matter be thoroughly examined and satisfactorily resolved.

 

Again in the Matter of Detention Conditions and Judicial Review

 

21.          In this petition we have dealt with the fine details of detention conditions.  Such is our duty, and we do not take it lightly.  Nevertheless, this is not an optimal arrangement, neither from the perspective of the rights of the detainee, nor from a security perspective.  It is necessary that there be an “intermediate body” between the detention authorities and the High Court of Justice.  Such a body must be able to carry out prolonged surveillance and supervision.  The body must be well informed about security requirements and the needs of the detainees and must be able to advise the respondents about all matters regarding detention conditions.  Justice Shamgar emphasized the need for such an arrangement in Sajadia, [2] at 825-26:

 

As such, we find it appropriate to direct the respondents' attention towards the need to determine efficient manners of inspection and supervision. Our suggestion is that the respondents consider nominating a permanent advisory committee, which will carry out constant inspection and will report and advise the respondent on the matter of the detention conditions in the Kziot detention facility.  The head of the committee can be a senior military judge from the military tribunal units, and the committee may consist of experts from the fields of medicine, psychology, and jailing management.

 

We are confident that the respondents will take our suggestions into account, and that the proper steps will be taken in order to realize them.

 

22.          Furthermore, it should be reconsidered whether it is appropriate that the army be responsible for the detention conditions of administrative detainees from the area.  It is our opinion the government should consider placing this responsibility in the hands of the Prison Service.  Such a resolution would allow a number of advantages.  First, the responsibility of tending to detainees and detention conditions will be placed in the hands of a body whose expertise is in this field.  Second, the Prison Service operates in accordance with a intricate system of law.  These laws guarantee that an appropriate balance is struck between security needs and the rights of the detainees.  For example, under these laws, the detainees will have the opportunity to submit “prisoner petitions,” which will ensure judicial review over their detention conditions.  We are well aware of the problems which arise from our suggestion.  We ask that the matter be considered both practically and normatively.  There should be an investigation concerning whether legislative modification would be necessary for the implementation of this suggestion, or whether it would be possible, and perhaps even necessary, to achieve this result in the context of existing law. See section 6 (b) of the Emergency Regulations (Judea and Samaria, and the Gaza Strip—Jurisdiction and Legal Assistance) (Extension of Validity)-1977, and section 1(c) of the Criminal Procedure (Jurisdiction and Enforcement—Detention)-1966.

 

Petition Denied.

 

Justice D. Beinisch

 

I agree.

 

Justice Y. Englard

 

I agree.

 

Petition denied, as per the opinion of President A. Barak

December 18, 2002

 

 

 

 

TRANSLATED BY:              Leora Dahan

EDITED BY:                          Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards  elig@supreme.court.gov.il

 

 

 

                

                                      HCJ 2599/00

1.                            Yated – Non-Profit Organization for Parents of Children with Down Syndrome

2.            54 Parents (Anonymous)

v.

1.            The Ministry of Education           

2. The Minister of Education      

 

The Supreme Court Sitting as the High Court of Justice

[August 14, 2002]

Before Justices T. Or, D. Dorner, E. Levi

 

Petition for an order nisi. Petition accepted.

Facts: The Special Education Law, 1998, provides that the State must provide special education, as per the definition of that term in the statute. Petitioners are the parents of children with special needs who are integrated into the regular educational system. They claim that that State does not provide financial aid to aid them with the expense of educating their children. Petitioners assert that this infringes their children’s fundamental rights, discriminates against them, and violates the provisions of the Special Education law.

 

Held:. The Court held that the right to education is a fundamental right. This right is recognized by sources of Jewish law, the law of the State of Israel, international law, and the laws of foreign countries. The Court interpreted the  provisions of the Special Education Law, 1998, in light of this fundamental right. It held that the State had an obligation to provide special education, free of charge, to those children with special needs who have been integrated into the regular educational system.

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty

 

Statutes Cited:

Special Education Law, 1998

Compulsory Education Law, 1949

Rights of the Student Law, 2000

Equal Rights for People With Disabilities Law

Special Education Law (Amendment No.6), 2002

 

Treaties Cited:

The International Covenant on Economic, Social and Cultural Rights of 1966

Convention on the Rights of the Child, 1989

 

Israeli Supreme Court Cases Cited:

[1]          HCJ 7715, 1554/95 Shoharie Gilat v. The Minister of Education and Culture, IsrSC 50(3) 2

[2]          HCJ 4541/94, Miller v. Minister of Defense, IsrSC 49(4) 94

[3]          HCJ 7081/93, Botzer v. Municipal Council of Maccabim-Reut, IsrSC 50(1) 19

[4]          FH 10/69, Boronovsky v. The Chief Rabbis of Israel, IsrSC 25(1) 7

[5]          HCJ 153/87, Shakdiel v. The Minister for Religious Affairs, IsrSC 42(2) 221

[6]          HCJ 953/87, 1/88, Poraz v. Mayor of Tel-Aviv/Jaffa, IsrSC 42(2) 309

[7]          CrimA 131/67 Kamier v. The State of Israel, IsrSC 22(2) 85

[8]          CA 522/70, Alkotov v. Shaheen, IsrSC 25(2) 77

[9]          CrimA 3112/94, Abu Chassan v. The State of Israel, IsrSC 53(1) 422

 

[10]        HCJ 1113/99 Adallah – The Legal Center for the Rights of the Arab Minority in Israel v. The Minister for Religious Affairs, IsrSC 54(2) 164

[11]        HCJ 507/81 Abu Hatzeira v. The Attorney-General, IsrSC 35(4) 561

 

Foreign Constitutions Cited:

[12]        Constitution of Belgium

[13]        Constitution of South Africa

[14]        Constitution of Spain

[15]        Constitution of Ireland

 

United States Cases Cited:

[16]        Oberti v. Board of Educ., 995 F.2d 1204 (2d Cir. 1993)

[17]        Daniel RR v. State Bd. Of Educ., 874 F.2d 1036 (5th Cir. 1989)

 

Israeli Articles Cited:

[18]        Gershon Gontovnik, The Constitutional Law: Direction of Development after the Constitutional Revolution, 22 Iyunie Mishpat 129 (1999)

 

Jewish Law Sources Cited:

[19]        Maimonides, Laws of Torah Study, Ch. 1,2

[20]        Babylonian Talmud, Tractate Nedarim 81b

 

For petitioners—Omri Kabiri, Ori Kaidar

For respondents— Dana Briskman, Office of the State Attorney

 

JUDGMENT

Justice D. Dorner

This petition raises the following questions: Are children with special needs only entitled to free special education in a special education institution? Or is the State also under an obligation to provide free special education to children with special needs who have been integrated into the regular education system?

The Statutory Provisions

1. Section 4 of the Special Education Law, 1988 provides that “[t]he State is responsible to provide special education under this law.” Sections 3 and 7 of the statute regulate the placement of children with special needs in educational institutions. Pursuant to section 3 of the law:

A child with special needs is entitled to free special education in a special education institution in his area of residence. Where an institution is not located in the child’s area of residence, the local education authority must provide such special education, in a suitable institution, as close as possible to the child’s area of residence, even if this institution is located within the jurisdiction of another municipal authority.

Section 7 of the law further provides:

(a) The Placement Committee shall determine the eligibility of a child with special needs for special education and his placement in a special education institution.

(b) In determining the placement of a child with special needs, the Placement Committee shall prefer placement in a recognized educational institution which is not a special education institution.

(c) Where the Placement Committee has decided on the placement of a child with special needs in an institution as stated in subsection (b), the Committee shall recommend the treatment or special lessons that shall be given in that institution.

Section 1(a) of the law defines the terms “special education,” “special education institution,” and “recognized educational institution” in the following manner:

“special education” – systematic instruction, teaching and treatment given under this law to a child with special needs, including physiotherapy, speech therapy, occupational therapy, and treatments as per other professional disciplines that shall be determined, all in accordance with the needs of the child with special needs;

“special education institution” – a recognized educational institution in which special education is provided, including a class in a recognized educational institution in which special education is provided;    

“recognized educational institution” – as defined in the Compulsory Education Law, 1949.

Facts, Procedure, and Claims

2. Yated, a registered non-profit organization, together with 54 parents of children with Downs syndrome, asks that we order the State to provide free special education to children who, though having special educational needs, have been found suitable for integration in regular educational institutions. Petitioners claim that the authorities are required by the Special Education Law to finance special education in any educational institution where a child is placed. They claim that the approach expressed in section 7(b) of the law requires the Placement Committee to prefer the placement of children with special needs in a regular educational institution. Furthermore, pursuant to the policy of the Ministry of Education, children with special needs should, wherever possible, be placed in the regular educational system and also be given additional educational assistance. Petitioners explained that the Ministry of Education, though it encourages such integration, does not provide financial aid. As such, the financial burden falls on the parents. As such, parents who are unable to bear these expenses are forced to transfer their children to special education institutions, despite the fact that these children have been found suitable for integration into the regular educational system.

Petitioners referred us to the State Comptroller’s Report. This report examined the special education framework for 2001 and concluded that the budgetary framework, as set forth above, was inadequate. Report No. 52B of the State Comptroller (2001) noted that the Ministry of Education’s interpretation of the law was that there was no entitlement to receive free special education within the regular education framework. The Report noted that this interpretation found expression in the Ministry’s guidelines and in the allocation of resources. Special education institutions received monies as per the services to which their pupils were entitled. In contrast, the budgetary allocation for the integration programs did not suffice to meet the needs of the integrated pupils. The Report also stated that, in recent years, the number of hours allocated by the Ministry of Education has been inadequate to meet the needs of the integrated students. Moreover, a large majority of the monies of the Special Education Department is directed to special education frameworks; only a small part thereof is directed to integration. The Report concluded by stating that the limited resources allocated to the integration program do not meet the needs of the children in the program. Under these circumstances, the economic and psychological burden of integration falls on the children’s parents, who are forced to finance the services independently. Since most families lack such resources, the integration options for many children are limited.

This was the background for petitioners’ claim that the policy of the Ministry of Education violates the right to education – a fundamental right. They further alleged that this policy infringes the fundamental right to equality. This is because it discriminates between parents whose children’s special education needs are paid by the Ministry of Education and between parents who are forced to bear these costs independently. Furthermore, they claim, the policy also discriminates between those children integrated into regular classes – as their parents can bear the expenses involved – and those children placed in special education institution solely due to their parents’ inability to bear those expenses.

3. In its response, the State did not dispute the pedagogical advantages of integrating children with special needs into regular educational institutions, and that the policy of the Ministry of Education was to encourage such integration. As part of this policy, since 1996 the Ministry of Education has even implemented programs for children with special needs who have been integrated into the regular education system.  The Minister of Education appointed a public committee in 2000, which noted the importance of giving preference to integration within the regular education system, as provided by the Special Education Law. The Committee also noted the inadequacy of the resources allocated towards such integration. Internal ministerial committees were appointed to implement the recommendations of the public committee. These determined that the regular education system should be granted monies for additional integration hours and personnel trained in special education. They further determined that those special education students studying within the regular education system should receive the services provided by the law, as available resources allow.

The State claims that, subject to budgetary pressures, significant resources are allocated towards integration. Even so, the State contended that the clear import of section 3 of the law is that the right to free special education, which is conferred by section 4 of the law, can only be realized in an institution for special education or in a special education class within a regular institution. The actual extent of assistance granted to children with special needs in the regular education system is subject to the discretion of the Placement committee. The State claimed, however, that the Placement Committee is not authorized to provide assistance for all “special education,” as per the broad definition of that term in the law. They further argued that, pursuant to section 7(b) of the law, the State is under no statutory obligation to provide such assistance. This is because the decisions of the Placement Committee are only recommendations; their realization is contingent upon the resources actually available to the State.

The Right to Education

   4. The right to education has long been recognized as a basic human right. The right is anchored in the Universal Declaration of Human Rights of 1948. Article 26 of this Declaration provides that every person has the right to education and that education must be free, at least in the elementary and fundamental stages. The International Covenant on Economic, Social and Cultural Rights of 1966 was also ratified by Israel in 1991. This declared in article 13 that education should be directed to the full development of the human personality, and that it should strengthen the respect for human rights and fundamental freedoms. It also determined that elementary education should be compulsory and freely available. See XXXI Treaties of Israel 1037, at 205. The right to education is also anchored in articles 28 and 29 of the Convention on the Rights of the Child, 1989. See XXXI Treaties of Israel 1038, at 221.

   The right to education is also anchored in numerous constitutions, such as the Belgian Constitution (article 24) [12], the South African Constitution (article 29) [13], the Constitution of Spain (article 27) [14], and the Irish Constitution (article 42) [15]. The German Constitution and the constitutions of most of the states of the United States establish the government’s responsibility to provide education for its citizens.

  5. In Judaism the right to education and the obligation to educate are fundamental, and are deeply rooted in Judaic sources. The traditions of scholarship and diligence which have characterized Judaism for thousands of years are firmly grounded in a variety of obligations under Jewish law. Education and study were seen as being of equal value to all other religious commandments combined. The best students were directed into education and teaching, and the teachers were mandated to facilitate equal education for all, so as to avoid discrimination against the poor. See Maimonides, Laws of Torah Study, Ch.1 [19]. In this context the Babylonian Talmud states: “[b]e heedful of [do not neglect] the children of the poor, for from them the Torah goes forth.” See Babylonian Talmud, Tractate Nedarim 81b [20].

The obligation of education was not only imposed on individuals. It was the responsibility of the entire community. The community was responsible for ensuring the education of all children whose parents could not take care of them. The community had to provide this critical service and make it equally available to all persons. It was the community that bore the burden of the consequences of the failure to provide education. This was Maimonides’ ruling on the matter:

In every country, district and town we should arrange for study classes for the children. A city which does not have schools for its children is excommunicated until arrangements for classes are made.

See Maimonides, Laws of Torah Study, Ch. 2 [19].

6. Shortly after its establishment, with the enactment of the Compulsory Education Law, 1949, the State of Israel delineated the scope of its obligation to ensure the rights of its citizenry to education. This law sets out an arrangement for compulsory education for every boy and girl until the age of 15, as well as the State’s responsibility to ensure the provision of such education. More recently, the right of children to education in Israel was anchored in the Rights of the Student Law, 2000. The purpose of this law is to determine the principles for the rights of the student in the spirit of human dignity and the principles of the United Nations Convention on the Rights of the Child.

Case law, too, recognized the right to education as a fundamental right. Justice Theodor Or made the following comments regarding the importance of this right:

One cannot exaggerate the importance of education as a social tool. This is one of the most important functions fulfilled by the government and the State. Education is critical for the survival of a dynamic and free democratic society. It constitutes a necessary foundation for every individual’s self-fulfillment. It is essential for the success and flourishing of every individual. It is crucial to the survival of society, in which people improve their individual well-being and thus contribute to the well-being of the entire community.

HCJ 7715, 1554/95 Shoharei Gilat v. Minister of Education and Culture, at 24 [1].

The right to free education is also an expression of the principle of equality. It enables every child to realize their innate talent and potential, to integrate into society and to progress therein, irrespective of their parents’ socio-economic status.

Even so, to date, the question whether the right to education is included in the right to human dignity, as defined in sections 2 and 4 of the Basic Law: Human Dignity and Liberty, has yet to be definitively resolved. Indeed, Justice Or contended that the right to education was not included in the right to human dignity. See HCJ Shoharei Gilat, [1] at 26. But this was a solitary view, and the other two justices preferred to leave the question open. Id. at 34.

Discrimination in the exercise of the right to education, if occasioned on the basis of group affiliation, may indeed be regarded as degradation that violates the right to human dignity. Compare HCJ 4541/94 Miller v. Minister of Defense, [2] at 131-32. By contrast, unequal treatment occasioned by political, administrative, or budgetary reasons is not degrading, and does not, therefore, violate human dignity. For our purposes, discrimination against children with special needs, though rooted in their group affiliation, is motivated by budgetary considerations. As such, the question of whether such discrimination violates human dignity is not unequivocal and I see no need to answer it. Petitioners did not claim that the law should be annulled because it violates the right to human dignity. Their claim was rather that the law should be interpreted and applied in light of the right to education. Indeed, the basic right to education, as established by statute, our case law, and international law, is of independent validity, and has no necessary connection to the right to human dignity prescribed by the Basic Law: Human Dignity and Liberty. See Gershon Gontovnik, The Constitutional Law: Direction of Development after the Constitutional Revolution, 22 Iyunei Mishpat 129, 132-47 (1999) [18].

 

The Right to Special Education

7. The right to special education is a derivative of the right to education. Children with special needs are not able to exercise their right to education unless they receive special education that addresses their needs. Accordingly, the signatory States to the Convention on the Rights of the Child recognized the right of children who are physically or mentally disabled to enjoy full and decent lives in conditions that ensure dignity, promote self-reliance and facilitate their active participation in communal life. See section 23 of the Convention. In order to ensure the protection of these rights, the Convention provides:

Party States recognize the right of the disabled child to special care. Party States shall encourage and ensure the extension, subject to available resources, to the suitable child and those responsible for his or her care, of assistance for which application is made and which is appropriate to the child’s condition and to the circumstances of the parents or others caring for the child.

Children with special needs are entitled to an education suitable for their needs; this right is recognized in most of the countries around the world. For example, in the United States, the Individuals with Disabilities Education Act, 20 USCS § 1400 et seq. provides:

The purposes of this title are:

(1) (A) to ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living;

Many States have also recognized the importance of integrating people with special needs generally and children in particular into regular frameworks, and have created statutory arrangements for such integration. Thus, the Disabilities Education Act provides, in section 1412(a), that preference shall be given to placing children with special needs in the regular education system:

5. LEAST RESTRICTIVE ENVIRONMENT-

(A) [States must establish procedures to ensure] to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.

See also Oberti v. Board of Education, 1204 F. Supp. 995 (2d Cir. 1993) [16]; Daniel R.R. v. State Board of Education, 874 F. Supp. 2d 1036, 1049 (5th Cir.1989) [17].

In a similar vein, section 6(a)(2) of the Equal Rights For People With Disabilities Law of 1998 provides that “the exercise of right and the grant of services to a person with disabilities shall be carried out … within the framework of the services granted and intended for the general public, after making such adjustments as may be required under the circumstances….” We ourselves ruled that the integration of the handicapped in the regular fabric of community life is intended to protect the dignity and the liberty of such persons, by ensuring equality and participation in society. HCJ 7081/93 Botzer v. Municipal Council of Maccabim-Reut, [3] at 19. This is the background for the interpretation of the Special Education Law.

Interpretation of the Law

8. As stated above, the questions raised by this petition are: Is the right to special education conferred by the Special Education Law limited to special education provided in separate institutions for special education (as argued by the State)? Alternatively, does this right extend also to special education provided to children studying in the regular education system (as argued by petitioners)?

Our presumption is that statutes are interpreted in a manner commensurate with the basic values of the legal system. As such, our interpretations must accord with the principle of equality. See, for example, FH 10/69 Boronovsky v. The Chief Rabbis of Israel, [4] at 35; HCJ 153/87 Shakdiel v. The Minister for Religious Affairs, [5] at 275; HCJ 953/87, 1/88 Poraz v. Mayor of Tel-Aviv/Jaffa, [6] at 320-29. Similarly, statutory interpretation must harmonize with the right to education, including the right to special education.

Another rule of interpretation is the presumption that the norms adopted by the State should be in accord with the norms of international law by which the State is bound. According to this presumption, all rules will, wherever possible, be interpreted in a manner consistent with the norms of international law. See CrimA 131/67 Kamier v. The State of Israel, [7] at 80; CA 522/70 Alkotov v. Shaheen, [8] at 80; CrimA 3112/94 Abu Chassan v. The State of Israel, [9] at 430 (Landau, J.).

These interpretive presumptions may be rebutted only when the language of the statute, or its particular purpose as specified in the law, cannot be reconciled with the general values of the legal system or with the international norm. See Poraz, at 329-30 [6]; Kamier,[7] at 112.

9. For our purposes, the Special Education Law is intended to provide special education free of charge to any child with special needs, in order to ensure that he fulfills his potential and that he integrates into society. See also the Explanatory Notes to the Special Education Law Bill, 1988. The notes point out that special education is intended to aid integration into society and ensure the full development of the innate potential – physical, intellectual, and emotional – of each student. This purpose conforms with and gives expression to the right to education, the principle of equality, and the international conventions ratified by the State of Israel.

Section 7 of the law, which discusses special education in a regular educational institution, does not specifically provide that such education must be funded by the State, as it provides in section 3 regarding special education in separate institutions and classes. However, in view of the rights to education and to equality, the principles of international law, as well as the purpose of the law as described above, the necessary conclusion is that the funding duty of the State also applies to the assistance required for a child with special needs integrated into a regular educational institution.

Until now, the State has been guided by a discriminatory interpretation, which leads to an unreasonable result. The Special Education Law prescribes two paths for the provision of special education. The first path is within the separate framework of special education. The second path is within the regular educational framework. In the latter path, children receive assistance as determined by the Placement Committee in accordance with their needs. It is implausible that the Knesset would have arbitrarily decided to limit the State’s duty to provide free special education to only one of these statutory frameworks. This is especially true in light of the undisputed fact that the regular framework has substantial advantages.

Furthermore, it is unacceptable that parents of children with special needs should waive their children’s right to integration within the framework of regular education solely due to financial difficulties. This would undermine the very heart of substantive equality. The aspiration for such equality is manifest in the goal to provide equal opportunities for every child in Israel. When children with special needs are sent to frameworks for special education rather than the regular education framework – solely due to financial reasons – these children are deprived of this equal opportunity. Such discrimination is unacceptable.

10. The State’s claim – that the duty of assistance under section 7 of the law is narrower than the duty set out by the definition of special education – is unacceptable. The provision regarding the recommendation for separate assistance is the natural result of placing a child with special needs in a regular educational framework. In such a case, it is the Placement Committee’s duty to determine the type of assistance the child requires. This determination is classified as a “recommendation,” not because the State is released from its duty to provide the assistance, but rather because flexibility is required in implementing the recommendation. This implementation must consider the evolving needs of the particular child.

The Remedy

11. A purposive interpretation of the law requires that the state implement it in accord with the principle of equality. Discharge of this duty requires an equal budgetary allocation for all the frameworks providing special education. In this context, a distinction must be made between the current budget and future budgets, beginning with the next fiscal year.

As for the future: it is clear that it is incumbent upon the Ministry of Education, with the assistance of the Ministry of Finance, to allocate its budget in a manner that implements the law as interpreted by this judgment. The Supreme Court has elucidated the nature of this obligation in the context of cemeteries, which are the responsibility of the Ministry for Religious Affairs:

In all of its actions, the Ministry for Religious Affairs, like any public body, must be guided by the principle of equality; as such it must adhere to this principle already in the preparatory stages of the draft budget for the coming year. At this stage the workers of the Ministry, together with the workers of the Ministry of Finance, may adopt one of two main routes: The first is for the Ministry for Religious Affairs to stipulate the total amount designated for cemeteries of all religions in the draft budget itself. The Ministry for Religious Affairs will then divide that amount between the cemeteries of the different religions, naturally on the basis of equal allocation. The second route is for the Ministry for Religious Affairs to designate, in the draft budget, different amounts to the cemeteries of different religions.

HCJ 1113/99 Adallah – Legal Center for the Rights of the Arab Minority in Israel v. The Minister for Religious Affairs, [10] at 182 (Zamir, J.)

Similarly, in our case, the State must allocate its budget for the coming year in a manner that implements the right to education on the basis of equality. This can be done by the allocation of one global sum for educational expenses, to be subsequently divided up on an equal basis. Alternatively, this right can be realized by making a separate allocation, within the framework of the draft budget itself, of sums designated for the education of these children in institutions of special education as well as in regular schools.

 And as for the present year: the appropriate remedy when human rights are violated is to compel the authorities to undo this breach immediately, even if this involves amending the budget structure. Such was the ruling of this Court in HCJ Adallah, [10] at 185-86:

Now it may well be that the Ministry for Religious Affairs has already decided on its budgetary allocation for cemeteries for the present year; it may even have notified the particular bodies who are to receive the funds, and they would have certainly planned their activities for the year on the basis of that notification. Indeed, some of the money may already have been transferred, pursuant to such notification. Nonetheless, and despite the possible difficulty, the Ministry can still, and indeed, must uphold the principle of equality between the different cemeteries. This applies even at this stage of the year, regardless of any additional administrative burdens and any additional funding that may be required for the cemeteries. If indeed there is a need for additional funding, the Ministry for Religious Affairs must take measures (with the assistance of the Ministry of Finance, if required) to obtain it. Such measures may be achieved by economizing in other sections of the Ministry, by digging into the reserves of the Ministry, or by any other manner.

This is the rule, but in the present case it would be inappropriate for us to issue a rigid order, one that applies to the current fiscal year. For we fear that, as a result of the current dire economic straits in which the State finds itself, a renewed budgetary allocation would adversely affect those children with special needs currently being educated in special education institutions. In many cases the situation of these children is more acute than that of those in regular educational institutions, and it is not appropriate that the realization of the rights of the latter be at the expense of the former. Even now, however, the State should, wherever possible and at least partially, attempt to provide funding for the education of children with special needs in the regular educational institutions.

 

I therefore propose that the petition be accepted in the sense that it will be declared that the State has not discharged its statutory duty to provide free special education for children placed in regular educational institutions; that it must quickly adopt the measures necessary for it to come into compliance with the statutory requirements; and that it must comply with these requirements no later than the preparatory stages of the budget for the coming fiscal year, all subject to the restrictions of section 7(e) of the law. I also suggest that the State should bear petitioners’ costs, in the sum of NIS 15,000.

Justice E. Levi

I agree.

Justice T. Or

1. Petitioners suffer from Down Syndrome and, as such, they require special treatment and guidance in school. As with all other children of compulsory education age, each of them is entitled to free special education, pursuant to section 6 of the Compulsory Education Law, 1949. Our concern is whether they are also entitled to receive “special education” free of charge in a regular school. Petitioners assert that this right is conferred by statute. The State claims that the statute confers that right only to children with special needs who are studying in a special education institution, and not to those studying in a regular framework.

Like my colleague Justice Dorner, I also believe that the State is obligated to provide free special education (within the statutory limitation, see infra para. 10) to children with special needs who have been integrated into the regular framework of a recognized educational institution, and not only to children with special needs who have been integrated into a special education institution. In my view this is the 

necessary conclusion to be drawn from the provisions of the Special Education Law, 1988.

2. The Special Education Law is concerned with providing special education to children with special needs. Section 1(a) of the law sets out the following definition of a “child with special needs:”

“child with special needs” – a person between the ages of three and twenty one who has limited ability for adaptive behavior and is in need of special education.

The special education required by the child with special needs is also defined in section 1(a) of the law:

“special education” – systematic instruction, teaching and treatment given under this law to a child with special needs, including physiotherapy, speech therapy, occupational therapy and treatments as per additional professional disciplines that shall be determined, all in accordance with the needs of the child with special needs;

The import of these two definitions is that a child with special needs is not only a child who receives special education in the framework of a special education institution, but also a child who has been integrated into a regular recognized educational institution.

3.            According to the statute, a child with special needs may be directed by the educational authorities to one of two kinds of institutions. The first is a special education institution, defined by section 1(a) of the law as “a recognized educational institution in which special education is provided, including a class in a recognized educational institution in which special education is provided.” The second is a recognized educational institution, though not a special education institution, in which the child is integrated into a regular class. Placement Committees are authorized to place the child in either one of these frameworks. These committees were established pursuant to the statute, which prescribed the manner of their appointment, their composition, and their powers. See sections 5-13 of the law. The law also established an Appeal Committee, to which appeals can be made against the decisions of Placement Committees.

Recently, section 7(A1) was added to the law, and it provides for the possibility of placing a child with special needs in a special education institution even without a referral from the Placement Committee. See Special Education Law (Amendment No.6), 2002. Similarly, a child with special needs may be placed in a regular class even without a referral from the Placement Committee. Referrals by the Placement Committee, however, remain the principle manner of placement.

4. Section 7(b) of the law sets forth guidelines for the Placement Committee. It provides:

In determining the placement of a child with special needs, the Placement Committee shall prefer placement in a recognized educational institution which is not a special education institution.

These guidelines are directed towards the best interests of the special needs child. From the perspective of such a child, a regular study framework is preferable, if integration is possible. This is the position of the education authorities, of the Ministry of Education, and of the special committee established by the Minister of Education, the Margalit Committee. This recommendation is also consistent with the purpose of the law, which is to accommodate, as far as possible, the integration of children with special needs into society. This purpose is set out by section 2 of the law, which provides that:

2. The aim of special education is to advance and develop the skills and ability of the child with special needs, to improve his physical, intellectual, and emotional behavior, and to impart knowledge, skills and habits, and to facilitate his integration in both society and the workforce.

For our purposes, however, the important factor is that section 7(b) regards all children referred by the Placement Committee to the framework of regular education as “children with special needs.” Such children are those who require “special education” as defined by the law, namely those children who require systematic instruction and teaching as provided by the statute, in accordance with their needs, within the definition of “special education” in the law.

5. The conclusion from all of the above is that placement of a child with special needs – whether in a special education institution or as an integrated child in a regular educational institution – is regulated by the law; and that “special education” is provided to both categories: both to the integrated child with special needs as well as to the child with special needs who learns in a special education institution.

6.            It is against this background that section 4(a) of the law must be read. This section provides that “[t]he State is responsible for the provision of special education pursuant to this law.” This section must be interpreted to provide that it is the State’s responsibility to provide special education free of charge. As stated above, “special education” within the meaning of the law means special education provided for children with special needs. This applies regardless of whether such education takes place within a special education institution or within an institution for regular education. The term “pursuant to this law” in the concluding part of section 4(a) directs the interpreter of the law, first and foremost, to the definitions in section 1(a) of the law. As we observed above, these definitions designate special education for every child with special needs. Second, it directs him to the special arrangements of the statute concerning the manner of providing special education, which I will discuss below. I should also note that section 4(a) comes in addition to the provisions of section 3 of the law, which provides that a child with special needs studying in a special education institution is entitled to receive free education in that institution. Such education must, to the extent possible, be located near his place of residence.

This interpretation of section 4(a) is preferable to the alternative interpretation that the section only identifies the body that has responsibility for providing the special education which, pursuant to section 3(a), must be provided free of charge to those learning in a special education institution. The interpretation is preferable because it conforms with the interpretative principles elucidated by my colleague, Justice Dorner, especially the principle that a statutory provision must, whenever possible, be interpreted in a manner that does not discriminate. Justice Barak dwelled on this point in HCJ 507/81 Abu Hatzeira v. The Attorney-General, [11] at 561, 585:

A fundamental principle, which serves as a legislative purpose of all acts of the legislative body, is the principle of equality before the law …. One must therefore presume and interpret legislative acts as being intended to realize this purpose and not to contravene it

This is also true in our case. The interpretation that section 4(a) provides for free special education for all children with special needs accords with the principle of equality, and also accords with the general purpose of special education, as defined by the law itself. As such, this is the appropriate and correct interpretation of the section.

7.            The current statutory arrangements regarding the two educational frameworks are not set out in the same amount of detail. The statutory arrangement concerning special education institutions is comprehensive. See chapter 4 of the statute. By contrast, the arrangement for the studies of integrated children is not detailed to the same extent. Nonetheless, the definition of “special education” in section 1(a) of the law makes it clear that special education must be adjusted to the needs of every child, including children integrated in the regular educational system. The definition even articulates the assistance that must be provided to all children in special education. Furthermore, section 7(c) instructs the Placement Committee as follows:

Where a Placement Committee has decided on the placement of a child with special needs in an institution as defined in subsection (b), the Committee shall recommend the treatment or special lessons that he shall be given in that institution.

In other words, the law even regulates the procedure to be adopted by the Placement Committee when it recommends extra support for an integrated student. This arrangement is only partial, and does not touch on the details of the study program. In practice, as things currently stand, institutions for regular education in which children with special needs are studying must adjust their syllabus to the needs of those children.

The current absence of a statutory arrangement regulating the development of a syllabus for integrated children is undesirable. The legislature is aware of the problem and, at this time, steps are being taken to amend the law and add a chapter that regulates the development of a syllabus for integrated children. In December 2001 a bill was tabled in the Knesset, entitled “Special Education (Integration of Children with Special Needs into Regular Frameworks) Law, 2001.” This bill adds Chapter D1 to the statute, entitled “The Integration of a Child with Special Needs into the Regular Education System.” Section 20B of the bill provides:

An integrated child shall be entitled, within the framework of his studies in a regular institution, to additional systematic instruction and teaching, and to special services set out in this statute;

The amendment, however, does not affect the issue of free special education, to which integrated children are entitled under section 4(a) of the law.

8.            In its arguments against this interpretation of section 4(a) the State relies primarily on the provisions of section 7(c) of the law. The State claims that the fact the Placement Committee can only recommend the treatments or lessons that are to be given to the integrated child indicates that the integrated child does not have a right to receive such treatments and lessons in the framework of the regular institution in which he is to study.

I concur with my colleague Justice Dorner; a different interpretation must be given to this provision. The latter does not purport to resolve the question of whether treatments and lessons required for integrated children are to be provided free of charge. For, as stated above, section 4(a) of the law answers that question. Section 7(a) is only intended to charge the Placement Committee with the duty of specifying what it considers to be the needs of the child. The Placement Committee examines and assesses the child’s condition and may deem it appropriate to refer him to the regular education framework. Accordingly, and having regard for the Committee’s knowledge of the particular circumstances of the child concerned, it is only natural that it be charged with informing the institution to which the child is referred regarding that child’s special needs. The fact these provisions are limited to the Committee’s recommendation regarding lessons and treatments does not derogate from the integrated child’s right to receive free “special education,” as defined by the statute. This right to special education is granted by other sections of the statute. It is not limited by the particular fact of the child’s placement in an institution for regular education. Nor is it limited by the fact that the Placement Committee’s opinion regarding the special education required by the child is only a recommendation.

9. It should be added that, in their response to the petition, respondents noted that they recognize the importance of the integration of children with special needs in regular education frameworks. They further mentioned that the Ministry of Education makes every effort to use the resources at its disposal in order to advance the interests of children in integrated frameworks. In respondent’s words:

There are guidelines for the teacher to develop individualized educational programs which take into consideration the specific learning difficulties of every student.

The principle of equality mandates the provision of tools for the integration of children with special needs into the framework of regular education. The principle requires equality between children with special needs in regular educational frameworks, and between children with special needs in special education frameworks. It also requires the provision of equal opportunities to children, regardless of any special needs they may have.

This is also the import of the Equal Rights for People with Disabilities Act, 1998, whose goal it is to integrate persons with disabilities into society.

I mention this fact in order to clarify that, even before this judgment, the Ministry of Education did not ignore the needs of integrated children, and made efforts to locate resources in order to provide financial aid. It is now clear, however, that the Ministry is obligated to provide free special education for all children with special needs. 

10. The legislature was aware of the budgetary ramifications of the implementation of the law. Section 7(e) deals with this problem and establishes a mechanism for a “budget increase” in favor of special education. The section provides:

The Minister of Education, with the approval of the Minister of Finance, shall, with respect to each academic year, fix a budget for an increase in the number of persons entitled to special education. The Minister of Education shall determine the number of entitled persons that the Placement Committee may approve for each academic year.

The existence of a “budget increase” mechanism attests to the real problem confronting those dealing with special education: the resources at their disposal do not enable the provision of free education for all children with special needs. This being the case, the Ministers are required to determine, on an annual basis, the quota for those entitled to special education. From now on, the Ministers will also have to include integrated children in the “budget increase” section. And, as clarified in the judgment of my colleague, Justice Dorner, this applies to the next budgetary year.

 

 

 

Based on all of the above, I concur with the opinion of my colleague, Justice Dorner.

 

Decided as per the opinion of Justice Dorner.

August 14, 2002

Crim. A. 112/50

 

           

GAD BEN-IZHAK YOSIFOF

v.

THE ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal.

[March 29, 1951]

Before: Smoira P., Silberg J., and Landau J.

 

           

Criminal Law - Bigamy committed by Jews contrary to s. 181 of Criminal Code Ordinance, 1936 - Whether section ultra vires on grounds of discrimination - Jewish Law - Freedom of religion and conscience - Prohibition of polygamy not contrary to Jewish Law.

           

                The appellant, an Israel Jew belonging to the Caucasian community, married in the year 1936. He married a second time in the year 1950 while the first marriage still subsisted. He was convicted of bigamy under s. 181 of the Criminal Code Ordinance, 1936 1) and sentenced to imprisonment for one year. On appeal it was argued that s. 181 was ultra vires the powers of the High Commissioner by reason of Article 17(1)(a) 2)2) of the Palestine Order in Council 1922 (as amended) in that the section introduced discrimination between the inhabitants of Palestine, namely, between Moslems and Jews, and in that it restricted freedom of conscience and worship.

               

                Held:      Dismissing the appeal,

          (1) that as the section did not discriminate against men and women of the same community regarded as one unit there was no discrimination within the meaning of Article 17(1)(a) of the Order in Council.

          (2) The question of freedom of worship did not arise in this case.

          (3) As regards freedom of conscience, religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. The Jewish religion does not compel polygamy, and accordingly no ground exists for the suggestion that there was any infringement of the right to freedom of conscience.

 

          Per Silberg J. Bigamy was never an institution rooted or permanent or favoured in the life of the Jewish people.

 

Palestine cases referred to :

(1)   Cr. A. 85/38 - The Attorney-General v. Ya'acov Ben Yehiel Melnik (Kimhi) : (1939) 6 P.L.R. 34.

(2)   C.A. 119/39 - Pessia Nuchim Leibovna Shwalboim v. Hirsh (Zvi) Shwalboim : (1940) 7 P.L.R. 20.

(3)   M.A. 18/28 - The Attorney-General v. Abraham Alt shuler: (1920-1933) 1 P.L.R. 283.

(4)   M.A. 9/36 - Sharif Esh-Shanti v. The Attorney-General: (1937) 1 S.C.J. 31.

(5)   H.C. 109/42 - Vaad Adat Ashkenazim, Beit Din Hassidim v. District Commissioner, Jerusalem and others : (1942) 9 P.L.R. 715.

 

Israel cases referred to :

(6)   H.C. 10/48 - Zvi Zeev v. Gubernik, the District Commissioner, Urban District of Tel Aviv and others : (1948) 1 P.D. 85.

(7)   C.A. 376/46 - Aharon Rosenbaum v. Sheine Miriam Rosenbaum : (1949) 2 P.D. 235.

(8)   H.C. 8/48 - Shlomo Gliksberg v. Chief Execution Officer, Tel Aviv and others : (1949) 2 P.D. 168.

 

American cases referred to:

(9)        Quaker City Cab Co. v. Commonwealth of Pennsylvania : 48 S.C.R. 553.

(10)      Lindsley v. National Carbonic Gas Co. : (1911) 31 S.C.R. 338.

 

Wiener for the petitioner.

E. Shimron, State Attorney and E. Hadaya, District Attorney of Jerusalem, for the respondent.

 

            LANDAU J.  The appellant, Gad Ben-Izhak Yosifof, was convicted by the District Court of Jerusalem (Halevy P.) of the felony of bigamy, in contravention of section 181 of the Criminal Code Ordinance, 1936, as amended in 1947, and was sentenced to imprisonment for one year. His appeal in directed both against the conviction and the sentence. Upon the suggestion of Dr. Wiener, counsel for the appellant, and with the consent of the State Attorney, we decided to hear the appeal in two stages - the first stage relating to the conviction, and the second stage (should we reject submission of counsel in regard to the conviction), relating to the sentence.

           

2. The facts are set out in detail and with great clarity in the judgment of the learned President of the District Court, and since they are almost undisputed, there in no need for me to repeat them at any length. The appellant, an Israel Jew belonging to the Caucasian community, married ~ woman in the year 1936, and she has born him five children. His marriage with her in still subsisting. In the year 1950 the appellant married a second wife by religious rites with the consent of the office of the Rabbinate in Jerusalem. He obtained this consent by a false declaration which was supported by two witnesses, in which he concealed the fact of his existing marriage.

 

3. Dr. Wiener's submissions in regard to the conviction were directed solely to the legal basis of the judgment of the District Court. Dr. Wiener in fact denies the validity of section 181 of tile Criminal Code Ordinance, as amended. His arguments are these : that in enacting the section referred to the legislature in the days of the Mandate exceeded the powers conferred upon it by Article 17(1)(a) of the Palestine Order in Council, 1922, as amended in 1923, in that :

 

        (a)    Section 181 of the Criminal Code Ordinance discriminates           between the inhabitants of Palestine;

 

            (b)        the section restricts freedom of conscience and         worship.

           

4. In order to understand these submissions it in necessary for me to deal shortly with the history of these sections. Section 181 of the Criminal Code, in its original form, provides :

 

            "Any person who, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, is guilty of a felony and is liable to imprisonment for five years. Such felony is termed bigamy;"

 

            The section then proceeds to provide for three situations which, if established by the accused, will afford him a good defence. These are:

           

"(a) that the former marriage has been declared void by a court of competent jurisdiction or by a competent ecclesiastical authority; or

 

(b) the continuous absence of the former husband or wife, as the case may be, at the time of the subsequent marriage, for the space of seven years then last passed without knowledge or information that such former husband or wife was alive within that period; or

 

(c) that the law governing the personal status of the husband both at the date of the first and at the date of the subsequent marriage allowed him to have more than one wife."

 

            Special attention should be directed to the opening words of the section which require as one of the elements of the offence that the new marriage shall be void by reason of its having taken place during the lifetime of the husband or the wife of the previous marriage. This is an exceptional requirement, the basis of which was the desire of the legislature to adapt this provision of the Criminal Law to the conceptions of the Moslem religion which permits more than one wife. The second marriage of a Moslem is not void, and the prohibition imposed by section 181, therefore, does not affect him. It was also the purpose of the third defence mentioned in the section referred to, to protect a person whose personal law permits him to have more than one wife.

           

5. The Jewish law of marriage, however, was overlooked by the mandatory legislature from the outset, and the language of the section was not made appropriate for the special position created in Jewish law when a man marries two wives. According to that law, as is well-known, the second marriage remains valid throughout, and may be terminated only by divorce. It follows that the language of the section in its original form imposed no obstacle to polygamy among Jews, as appears from the judgment of the Supreme Court in Attorney-General v. Melnik (1), in which a Jew was acquitted of the offence of bigamy because of the defective drafting of the law.

 

6. Some years passed until the publication in 1947 of the amended section 181, which was drafted with the intention of bringing the provisions of the criminal law in regard to bigamy into conformity with Jewish law. And this is the solution which the legislature found to this problem:

 

(1)       The requirement at the beginning of the section that the new marriage should be void was deleted, and it was provided as to the future that the offence is committed whether the subsequent marriage is valid, or void or voidable. In this way the section was also made applicable to the second marriage of a Jew which is not void. It would appear that as far as Moslems are concerned, it was decided by the legislature that the original language employed at the beginning of the section was not necessary to exclude them from its operation, since they are in any case excluded by "the third defence" provided in the law governing personal status which permits polygamy.

 

(2)       The second and third defences provided for in the original section were restricted. Cases in which the law as to marriage applicable to the wife or husband at the date of the subsequent marriage was Jewish law, were excluded from the second defence, and cases in which the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law, were excluded from the third defence.

 

            In place of these defences which were excluded a new fourth defence was laid down for Jews, namely, the case in which "the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage, was Jewish law and that a final decree of a rabbinical court of the Jewish community ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage. ''

           

7. Dr. Wiener's whole argument, as 1 have said, was directed to the point that section 181 is inconsistent with Article 17(1)(a) of the Palestine Order in Council. The provisions of that Article, in so far as they affect the problem before us, are as follows : -

 

            "The High Commissioner shall have full power and authority..... to promulgate such Ordinances as may be necessary for the peace, order, and good government of Palestine, provided that no Ordinance shall be promulgated which shall restrict complete freedom of conscience and the free exercise of all forms of worship, save in so far as is required for the maintenance of public order and morals; or which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion, or language."

           

            Article 83 of the Order in Council again emphasises that "All persons in Palestine shall enjoy full liberty of worship subject only to the maintenance of public order and morals..." This section is in the general chapter of the Order in Council, and it adds nothing to the provisions of the amended Article 17(1) (a) which deals particularly with matters of legislation. The source of Article 17(1)(a) is Article 15 of the Mandate for Palestine from which it has been copied almost word for word. These conceptions, which were embodied in Article 15 of the Mandate, were not new, but had already found their place in the world of political thought in the French Declaration of the Rights of Man and the Citizen, of the year 1789, and in the days of the first ten amendments of the American Bill of Rights of the year 1791. The principle of non-discrimination reflects the aspiration of the equality of all citizens before the law. Freedom of conscience and worship is one of the liberties of the subject which is guaranteed to him under every enlightened democratic regime. In the declaration of the establishment of the State of Israel it is said:

           

            "The State of Israel... will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race, or sex. It will guarantee freedom of religion, conscience, language, education, and culture..."

           

            Dr. Wiener mentioned these words in His argument, but he drew no legal conclusions from them. In this he was correct, for the court has already held in Zeev v. Gubernik (6), that that declaration "contains no element of constitutional law which determines the validity of various ordinances and laws, or their repeal". Dr. Wiener agreed, therefore, that if the Knesset of the State of Israel were to enact a section such as section 181, he would not have been able to challenge its validity. His submission, therefore, is limited in scope and touches only upon the situation which existed during the time of the Mandate. I am in agreement with him and with the learned President of the District Court that if it should indeed emerge that there existed an inconsistency between section 181 of the Criminal Code Ordinance and Article 17(1)(a) of the Order in Council and that section 181 was void ab initio, then it was not a part of "the existing law" in accordance with section 11 of the Law and Administration Ordinance, 1948, and would therefore be invalid in the State of Israel as well.

 

8. The learned President of the District Court in his judgment rejected the general submission of Dr. Wiener both in regard to discrimination and also in regard to freedom of conscience and worship. He summarised his opinion in paragraphs 21-28 of his judgment, which read as follows :-

 

            "21. The institution of monogamous marriage is regarded among all peoples, in all faiths and in all communities in which it exists as one of the most valuable conceptions of human culture. The establishment of the family and the peace of the community depend upon it. The institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists. In Palestine, where it exists in proximity to the institution of polygamous marriage, it requires stringent protection."

 

            "22. It cannot be conceived for one moment that the Palestine Order in Council wished to prevent the Mandatory legislature from affording monogamous marriage in Palestine effective protection by means of the criminal law. All that was demanded by the Order in Council in this connection was that the law of bigamy should not prejudice that section of the population whose law of personal status recognised polygamy."

 

            "23. Section 181 was designed to protect the institution of monogamous marriage which existed in a certain section of the population of the country and in no sense prejudices the institution of polygamous marriage which exists among another section of the community. In other words, the object of section 181 is to protect those men and women (and their children) whose marriages, in accordance with their law of personal status, are monogamous marriages. Section 181 takes care not to prejudice the law of personal status (religious or national) of any inhabitant. It does not prejudice liberty of religion (which is included in the guarantee "of freedom of conscience and worship") but, on the contrary, it respects that liberty in all its provisions. Were it necessary for me to base my judgment upon this ground, I also would not hesitate to decide that the criminal law defending monogamous marriage is required "for the preservation of public order and morals". As far as discrimination in favour of the Moslems is concerned, it is not section 181 which created the distinction between the law of monogamous and polygamous marriage in Palestine; this distinction exists and is rooted in fact and confirmed by the Order in Council upon which counsel for the accused relies. It is for these reasons that I decide to reject the general submissions of counsel for the accused to the extent that they do not touch upon the special provisions of section 181 in regard to Jews."

 

            In so far as the special provisions of section 181 relating to Jews are concerned, it was held by the President - after a comprehensive survey of the development of Jewish law in this field - that "Jewish law does not permit a person to take a second wife in Palestine, unless he first obtains permission so to do according to law". In support of this opinion the President cited in his judgment a number of authorities on Jewish law which he culled from Rabbinical literary sources. He therefore rejected the idea that there exist in Palestine Jews of the Eastern communities who are permitted by Jewish law to take more than one wife without special permission so to do, and held that section 181 is in full conformity with Jewish law.

           

9. Dr. Wiener strongly attacked the general theories of the learned President. In his opinion there is no room for these propositions in the judgment of a judge whose duty it is to interpret the law and not express opinions on social problems such as the preference of monogamy over polygamy.

 

            I see no substance in these criticisms of Dr. Wiener. The learned President did not just express opinions. He refrained, for example, from expressing generally any preference for the system of monogamy over that of polygamy, but particularised and said (in paragraph 21 of his judgment) that "the institution of monogamous marriage deserves and requires the protection of the criminal law in all countries where it exists." We find nothing wrong in this expression of opinion. It is not the function of a judge simply to interpret the law mechanically. A judge is sometimes required to interpret abstract conceptions such as, in the case before us, "discrimination" and "freedom of conscience". It is of no avail in such circumstances to attempt to confine oneself within the four corners of legal theory. The judge must make a thorough investigation, must weigh the benefit of the community and that of the individual, the degree of justice and equity, and other considerations such as these in order to reach a correct assessment of the intention of the legislature.

 

10. Dr. Wiener argued his submissions in regard to the merits of the case under two headings - the one dealing with discrimination, and the other with freedom of religion and worship. I shall deal with the submissions in that order. Dr. Wiener confined his argument with regard to discrimination to the following points:

 

            (a) The idea that there exists a distinction in principle between monogamy and polygamy has no basis in the law of Palestine. According to the intention of the legislator who drafted the Order in Council marriage is an institution common to all communities, and the Mandatory legislature could not therefore lay down in subsequent legislation on marriage different principles for different communities. The criminal law relating to bigamy falls within this rule.

           

            (b) An argument that the legislature adjusted the section in question to the religious needs of the different communities cannot be justified, since section 181 is not so drafted, and in any event there was no necessity for a High Commissioner to set himself up as a "policeman" for the religious communities.

 

            (c) The test of discrimination is an objective test and we must not, therefore, enquire into the intentions of the legislator. The prohibition against discriminatory laws is absolute without its being reserved to matters of the maintenance of public order and morals, for these are only mentioned in connection with freedom of conscience and worship.

 

11. Mr. Shimron, the State Attorney, argued against this submission upon the question of discrimination. In his submission the prohibition against discrimination does not mean that the legislature must introduce a mathematical equality between all citizens. Discrimination must not be confused with distinction. The prohibition extends only to discrimination to the disadvantage of a particular group of people. The Palestine legislature, however, did not discriminate in favour of one community or against another community. It found itself faced with a varied social and legal state of affairs in the different communities, with each community having its own way of life. It therefore tried to find a legislative solution which would be in conformity - as far as possible - with this existing situation. The solution which it found is a reasonable and not a capricious one. Mr. Shimron, in his submissions, relied upon judgments of the Supreme Court of the United States which, in interpreting the Fourteenth Amendment of the Constitution of the United States in connection with the equal protection of the laws, decided that this amendment does not prevent classification of different groups within the community by the legislature.

 

12. It must be pointed out at the outset that Article 17(1)(a) of the Order in Council does not provide in general terms that all discrimination is forbidden. The article lays down, however, in a consolidated form, three aspects according to which discrimination between inhabitants of the country is forbidden, and these are on the grounds of race, religion, and language. Does section 181 mention religion as a reason for differentiating between the communities? Counsel for the parties did not deal specifically with this question. It seems to me that the matter is open to doubt. In the time of the Mandate the court recognised Jewish law as "the national law" of the Jews of Palestine (see Shwalboim v. Shwalboim (2)). I do not think that, in speaking in section 181 of the person whose law relating to marriage is Jewish law, the mandatory legislature intended to restrict this conception to Jews who were members of the Jewish community as a religious community. It designedly created a special class of people who are distinguished by their law of personal status. This has little effect, however, as far as Article 17(1)(a) of the Order in Council is concerned, for if the dividing line under section 181 is not religion we shall be compelled against our will to reach the conclusion that the differentiation is based on race, or on a conception of religion and race combined.

 

13. It seems to me that the articles of the Order in Council itself destroy the contentions of Dr. Wiener that marriage under the Mandatory law was considered the same institution for all the communities. The legislature allocated jurisdiction in matters of marriage between the different religious communities, and in so doing it was undoubtedly aware of the wide distinction between the various laws of marriage of the main communities in the country. See in this regard the judgment of this court in Rosenbaum v. Rosenbaum (7). It was only in 1989 that the first step was taken to introduce a unified law of marriage for persons who were not members of the recognised religious communities (see Article 65A of the Order in Council). This provision, however, merely provided the additional legislative framework, but this frame was never filled with content. It is clear to me that the law of marriage which existed in the time of the Mandate and which exists in this country today is not a single one, but is varied according to the different systems of personal law.

 

14. What is the correct meaning of the expression "discrimination", which appears in Article 17(1)(a)?  It is true that according to its etymological source this English word means no more than "distinction" and not necessarily a distinction for good or bad. In the social sciences, however, the word has acquired a more restricted connotation.

 

            I quote from the Encyclopaedia of the Social Sciences, New York, 1948, vol. 14 at p. 131 where it is said: -

           

"The term social discrimination may be tentatively defined as unequal treatment of equals, either by the bestowal of favors or the imposition of burdens."

 

and further on the same page :-

 

"Discrimination should not be identified or confused with differentiation or distinction."

 

and on page 182 :-

"Discrimination carries with it the idea of unfairness."

 

            I have already explained that the expressions which I am considering here are not merely legal terms. They are the common heritage of people with a democratic tradition and we do not hesitate therefore to seek assistance from American non-legal sources. The distinguishing feature implicit in the expression "discrimination" is an attitude which is unequal and unfair - for different classes of people. This is also the opinion of the English judges in the time of the Mandate. In the well-known case of Attorney-General v. Altshuler (3), for example, the court asked in its judgment at p. 286 :

           

"Can it be said because the bye-law in question makes a distinction in favour of the minority ...that there is, therefore, not a discrimination against the majority."

 

and it replies :

 

''.. .it is just as much discrimination when the majority suffers as it is when a minority is discriminated against.''

 

            I quote these passages only for the sake of the linguistic interest which they possess, without expressing any opinion as to the correctness of the view of the majority of the judges on the merits. The same expression, as used in the book of Exodus, (8, 18; 11, 7) 1) is used to connote a distinction for good or for evil.

           

15. I have considered the American judgments cited to me by Mr. Shimron, and particularly the judgment of Mr. Justice Brandeis in Quaker City Cab Co. v. Pennsylvania (9), which interprets the "Equal Defence Clause" in the American Constitution (the Fourteenth Amendment). However I cannot derive any assistance from this judgment for the problem before us, for the amendment referred to does not mention the expression "discrimination" and the American court, in interpreting the amendment, proceeded on the assumption that discrimination (that is to say, actual discrimination either in favour or against a particular class of persons) is permitted subject to the condition that it expresses itself in the form of classification on a reasonable basis (ibid., p. 556), while in our case discrimination is forbidden in all circumstances and is not limited by considerations of public order, and other considerations of a like nature.

 

16. Nevertheless, I am of the opinion that in substance Mr. Shimron's submission is correct. I have said that discrimination means a distinction for good or for bad. Article 17(1)(a) does not forbid a different legislative arrangement in respect of different classes of persons, provided that the arrangement involves no discrimination for good or bad. For example, the Language of Courts Rules provide in rule 4 that every summons, every official copy of a judgment and every official document shall be issued in the language of the person to whom it is addressed. This provision involved a distinction between different classes of people by reason of language. Would it ever occur to us to say that this is discrimination because from an objective point of view one law has not been laid down for all? On the contrary, it would appear that here we have a desire to confer equal status upon all the official languages. And so it is in the case of marriage. The Mandatory legislator decided that the time had come to prohibit bigamy by a prohibition in the Criminal Code. Two roads were open to it. It could have imposed a general prohibition upon the members of all communities or find a compromise between the desire to prohibit bigamy, and the social realities of the country. Dr. Wiener admits that a general prohibition would not have been beyond the competence of the Mandatory legislator, but he denies its power to lay down different laws for different communities. I cannot accept this opinion. A legislature does not operate in a vacuum, but is faced with an actually existing social state of affairs with its various manifestations, and must formulate legal forms to meet that situation, and also direct its development in the future. As far as the institution of marriage is concerned, the legislator found himself confronted, as raw material, with a reality consisting of varied outlooks which were fundamentally different. It found that the population of the country was not homogeneous, but that it consisted of different peoples and communities, each with its own laws and customs. Can we say that the Mandatory legislature committed a breach of the principle of non-discrimination because it did not impose its will on the existing situation but to some extent yielded to reality? There is an even more important factor. I am not dealing here only with a difference between actually existing situations, but a difference which was already established in the written law which applied before the Mandatory legislator began to act. Legislatory recognition of the differences between the outlooks of the peoples and communities in the country was already introduced into the Order in Council itself, which did not introduce one law for all people in the country but in matters of personal status handed over such matters - at least in part " to the jurisdiction of the courts of the communities. The draftsman of the Order in Council also added little that was new, and only recognized a legal situation which already existed previously in the time of the Turks. The Mandatory legislature, therefore, was consistent, and in drafting section 181 not in a single form but in a varied form, continued to build upon legal foundations which had already been laid down for some time.

 

            Counsel for the appellant is correct, however, in submitting that in the ultimate result the test must remain objective. It is possible that the intention of the legislature was desirable, but that it failed in its efforts, and that its solution in fact prejudices a particular class of persons, and discriminates against them in favour of others. We are not, therefore, relieved from the task of examining the details of the legislative arrangement which was made in the matter before us. I shall not be influenced by the dotting of i's and the crossing of t's, and should it appear that in essentials no discrimination has been introduced by the legislature, the court will ratify its actions and not invalidate them.

           

17. The object of respecting the provisions of the law of personal status of each person in Palestine is abundantly clear from section 181. We know from the explanatory notes to the proposed amendment that it was drafted after consultation with the Chief Rabbinate and was intended to satisfy its requirements. Rabbi Ya'acov Baruch, the Principal Secretary of the Office of the Rabbinate in Jerusalem, who gave evidence in this case, also confirmed that the Chief Rabbinate had approved this amendment (see also the article of P. Dikstein, "Ha-Praklit" January, 1946, p. 18). There is therefore no doubt as to the good intentions of the legislature towards the Jews. From an objective point of view as well, however, although there is here a difference in the legislative arrangement, there is no discrimination against anyone. Wherein lies the discrimination upon grounds of race or religion in handing the final decision in regard to permission to marry more than one wife - and thereby the exclusion of a person from the general provisions of section 181 - to the competent Rabbis of the Jewish community? I shall deal later with the question to what extent the contents of this section are consistent which Jewish law and I shall assume for the moment that there is no absolute consistency between them - but that does not mean that the provisions of the section are ultra vires, for in my opinion the legislature was entitled to introduce an innovation in the secular law (and a prohibition of bigamy is a matter belonging to the secular law) by transferring an additional duty to the religious courts of the Jewish community whose power to issue binding decisions is itself derived from the secular law. In so doing the Mandatory legislature did not constitute itself as a "policeman" in matters of religion. It remained within the ambit of its powers, and merely used the existing machinery of the religious courts in order to achieve its purpose after giving full consideration to the feelings of the Jewish community.

 

18. And that is not all. Without expressing an opinion as to the social and moral values of monogamy and polygamy it may in any event be laid down with certainty that that outlook which sees an advantage in a number of wives is basically a "masculine" outlook, for a prohibition against a number of wives restricts, as it were, the liberty of the male. The prohibition of bigamy, however, has the important social purpose of protecting the first wife. To release the man from the prohibition against bigamy contained in the criminal law would be to lower the status of the wife. It is for us to decide whether there exists here discrimination against the members of a particular race or religion, and we may not take a one-sided view of the problem. We must ask ourselves whether the men and women of the same community regarded as one unit are discriminated against. The answer to this question cannot be otherwise than in the negative.

 

19. For these reasons I reject these submissions of Dr. Wiener, and in my view section 181 of the Criminal Code Ordinance, 1936, is not repugnant to the provision against discrimination in Article 17(1)(a) of the Order in Council.

 

20.  I shall now pass to consider the second submission relating to freedom of conscience and worship. In my opinion the question of freedom of worship does not arise here at all. The intention of the legislature was directed to forms of worship among the different religions - in regard to matters between man and his God, and not in regard to matters between man and man.

 

            I shall therefore confine the enquiry to freedom of conscience. This is an ethical conception dealing with knowledge of good and evil. A man may derive his opinions on good and evil from a source which is not religious. A religious man, however, is guided in matters of conscience by the commandments of his religion, and we therefore accept the assumption that the complete application of the principle of freedom of conscience also demands freedom of religion.

 

            Dr. Wiener's main submission was that the Mandatory legislature, in laying down rules relating to marriage, trespassed upon the area of religion since, according to the Order in Council. marriage is a religious institution. Freedom of conscience means freedom to live according to the dictates of religion. Jewish law permits polygamy at least among those communities which have not accepted the Ban of Rabbenu Gershom.1) In certain cases polygamy is even almost a religious duty. The test is objective, and it makes no difference if the appellant belongs to one of those communities. And if section 181 is repugnant to the religious customs of any community, then it must be invalidated completely. The section is prejudicial in particular to those Jews who are not members of the Jewish community, for it compels them to approach the courts and the Chief Rabbis whose authority they do not recognise - in order to secure permission to marry. In explaining these submissions, Dr. Wiener readily conceded, as I have said, that had the legislature introduced the prohibition on bigamy generally by imposing a criminal prohibition, it would not thereby have exceeded its powers, for a prohibition such as this would evidence a desire to regulate the question of bigamy purely from the secular angle.

 

            Mr. Shimron's submission on this aspect of the matter was as follows. The question of marriage is secular and not religious, and legislation regulating this matter has no effect upon religious sentiment. Freedom of conscience and freedom of action are not the same thing, for freedom of conscience is confined to the realm of thought alone. Mr. Shimron supported the conclusions of the learned President in the court below that there is no inconsistency between section 181 and Jewish law, and submitted that the fact that a minority do not recognise the rabbinical courts can have no decisive effect on the matter.

           

2l.  I do not think that freedom of conscience is limited to freedom of thought alone. A man who enjoys freedom of conscience must not be deprived of the right to obey the dictates of his conscience by action. The proviso to Article 17(1)(a) in regard to public order and morals is sufficient to prevent harmful acts which some may seek to justify on the ground of freedom of conscience. Even Esh-Shanti v. Attorney-General (4), upon which Mr. Shimron relied, does not go so far as to hold that freedom of conscience is limited to matters in the realm of thought alone.

 

22.  I reject the remaining arguments of Dr. Wiener in regard to freedom of conscience. I think that Dr. Wiener destroyed his own argument by conceding that there may also be a secular approach to the subject of marriage. If, in principle, the secular law relating to marriage may be imposed upon all the inhabitants of the country, why should legislation which seeks to respect the demands of various religions, according to the grasp of the secular authorities after they have consulted the Jewish religious authorities before enacting the law, be forbidden? This is not trespassing upon the field of religion. On the contrary, as T have said, there was a clear desire to follow the golden mean between the religious sphere - as defined by the religious institutions themselves - and the secular sphere.

 

23. I would add here that it is by no means clear that according to Jewish law, the law of marriage belongs to the field of religion It is true that the Order in Council speaks of religious courts, and the draftsman undoubtedly assumed as a matter which was self-evident that religious courts deal with matters before them in accordance with laws of a religious character. But the draftsman had no power to change the essential nature of Jewish law. It is true that that law is based entirely upon a religious foundation since its source is the Law of Moses. There is, for example, no essential distinction between the law of persons and the law of property from the point of view that one is religious and the other secular, for they are all bound up together in one legal system. It would not be right, therefore, to attribute an essentially religious character just to the law of persons, thus distinguishing it from other branches of Jewish law. In other words, from the point of view of Jewish law (and it is with this law that we are dealing at present and not with the point of view of the secular legislature which drafted the Order in Council), the Law of Moses regulates all branches of civil and criminal law, and there is no difference between the intervention of the secular legislature in the field of the law of persons and its intervention in any other field of the law as a whole. No one will contend, for example, that in laying down the secular law of property the legislature was guilty of trespassing upon the field of religion, and the same applies to the intervention of the legislature in the law of marriage.

 

24. This is not all. Religious compulsion can only exist where religion either imposes or forbids the doing of a particular act, and the secular legislature compels a breach of the imposition or prohibition. There can be no question of such compulsion in regard to acts which religion merely permits, without any absolute imposition or prohibition. Dr. Wiener must show, therefore, that there exists an inconsistency between an order of the secular legislature and some absolute directive in Jewish law which compelled polygamy. Dr. Wiener did point, indeed, to a number of instances in which such an inconsistency, as it were, would exist were polygamy obligatory under Jewish law. The President of the District Court, however, has shown convincingly that the legislative regulation of marriage introduced by section 181 is in complete accord with the principles of Jewish law as they have developed throughout the ages, and that custom in Palestine, binding all the communities, generally forbids polygamy. A man is not permitted - and certainly is not obliged - to marry more than one wife, on the strength of his own decision alone. He is required for this purpose to procure a special permit which will only be issued on certain conditions now laid down, inter alia, in the Rules of Procedure of the Chief Rabbinate of Palestine of the year 1943. This ground in itself is sufficient to answer any argument about the infringement on the freedom of religion, though this does not diminish the force of the other considerations which we have already mentioned to contradict this argument.

 

25. In conclusion, the submission relating to that minority which did not recognise the Jewish community also cannot stand the test of analysis. Knesset Yisrael was regarded by the Mandatory authorities as the organisation of the Jewish community, and all efforts to secure legal recognition for other bodies failed (see for example the case of Vaad Adat Ashkenazitm v. District Commissioner (5)). The Mandatory legislature was consistent, therefore, in leaving the final decision relating to the issue of a permit in the hands of the Chief Rabbis of Knesset Israel. I have already rejected the submission relating to an infringement of liberty of conscience in its material aspect. Can the undisputed fact that it is necessary to approach the religious courts of Knesset Israel and the Chief Rabbis in order to secure the necessary permit be regarded as infringing freedom of religion?  This contention cannot be accepted any more than the argument of a person that he cannot recognise the authority of the courts of the State at all because of considerations of conscience. The provision relating to freedom of conscience is subject to the condition relating to the maintenance of public order which demands of every citizen that he accept the authority of the courts established by law. A Jew was not obliged to be a member of Knesset Israel, but it cannot be deduced from this that the legislature was unable to confer jurisdiction upon the courts of the Rabbinate over persons who were not members of Knesset Yisrael. Section 181(d) of the Criminal Code Ordinance, 1936, indicates the existence of such a jurisdiction, for this section gives official recognition to a permit of the rabbinical courts in respect of any person whose personal law is Jewish law, that is to say, also in respect of Palestinian Jews who are not members of Knesset Yisrael. It is difficult to see how the legislature could have provided otherwise since the recognition of the State was accorded only to these courts as the religious courts of the Jewish community.

 

26. For the reasons stated above I am of the opinion that the appeal against the conviction should be dismissed.

 

            SILBERG. J.  I am also of the opinion that the appeal should be dismissed.

           

2. In the submission of counsel for the appellant, section 181 of the Criminal Code Ordinance is invalid for two reasons :

 

            (a) It restricts freedom of conscience.

            (b) It discriminates between one person and another on grounds of religion.

           

            The remaining arguments and contentions of counsel for the appellant are merely branches of his two main submissions as set forth below.

           

3. As far as counsel's first submission is concerned, I should say at once that I entirely disagree with the opinion of the State Attorney that the guarantee of freedom of conscience extends only to the protection of freedom of thought. Thoughts are not punishable nor are they subject to other sanctions, and there is therefore no need to protect them. It follows that the freedom of conscience which enjoys the protection of the legislature must necessarily include a man's acts and deeds, the fruit of the exercise of his conscience, provided always that they do not exceed the bolunds of his purely personal affairs. When they do exceed these limits, they again become subject, like all other activity - to the surveillance of the law.

 

4. The question, therefore, is whether section 181 really restricts a person's freedom of conscience. I could, in fact, limit the question and define it in this way: whether the section referred to restricts the individual freedom of conscience of the appellant in this case, in the particular circumstances of this case. I do not wish, however, to divide the problem in this way, since I have in the result reached a negative conclusion in regard to this question even in its full connotation.

 

5. How is there likely to be a restriction on freedom of conscience in the circumstances of the present case?

 

            There is no doubt that freedom of conscience also includes freedom of religion. In order to show, however, that some prohibitory provision of the law restricts freedom of religion, it is not sufficient to establish that religion does not forbid the act in question. It is necessary to go further and prove that the doing of that act is demanded by religion - that religion commands and obliges the performance of that act. Not everything that is permitted by religion need necessarily be permitted by law. These two areas, therefore, are not identical. The one deals with matters between man and God, and matters between man and man, while the other also deals with matters between man and the State.

 

            In making these observations we need scarcely consider the validity in Palestine of the Ban of Rabbenu Gershom, and whether a Sephardi or Caucasian Jew here in Israel is permitted by law to marry more than one wife. Even if we assume - and I do not imagine that that is so - that the Ban of Rabbenu Gershom has no application to a Jew who comes here from tile regions of the Caucasus, the constitutional validity of section 151 will remain completely unaffected. It is not necessary, therefore, for me to enter into an examination of the interesting theoretical problems in which counsel for the appellant involved himself, namely, whether the Ban of Rabbenu Gershom (or its voluntary continuation after the year 5000 A.M.), is to be determined by the place in which a person is situated - in accordance with the opinion of some commentators - and whether it applies, therefore, to all the inhabitants of that place - even to new immigrants from countries in which the Ban is not acted upon, or whether it is only a personal obligation - in accordance with the opinion of other commentators - and has no application to a person who comes to a place where the Ban is accepted from a place where it is not accepted. (See Shulhan Aruh - Even Ha-ezer - I,9, and commentators ad loci Knesset Hagedola - Even Ha-ezer, Annotations Bet-Yosef, 1,22 (in the name of Rabbi Itzhak Hen); compare, however, Responsa of Nissim, 48; Kol Eliyahu, 2, Responsa on Even Ha-ezer, 12, and Knesset Hagedola, 20, q.v.)

 

6. The correct definition of the question, therefore, to put it shortly and yet accurately, is as follows : whether a man from Israel is obliged, by law, to take more than one wife or not. Counsel for the appellant advanced a novel submission in regard to this question, namely, that since the commandment to be fruitful and multiply is the first commandment in the Bible - first in order and in importance - any provision in the law which restricts the number of wives a man may marry is likely to lead to that commandment's being disobeyed. In support of his argument, counsel relied upon "She-elat Ya'avetz" of Rabbenu Ya'acov Gershom as being calculated to prevent a man fulfilling the commandment to be fruitful and multiply, and as preventing the increase of the seed of Israel. It is possible to go further in the spirit of counsel's submission, and to argue that the prohibition against bigamy is also likely to prevent the fulfilment of the commandment requiring a man to marry the childless wife of his deceased brother - in so far as that commandment is still observed in this country. I mean to refer to those Eastern communities who follow the opinion of Rabbi Izhak Alfasi and Maimonides that it preferable for a man to marry his deceased brother's widow than to give her her release, as is done by the Ashkenazi community in accordance with the opinion of Rabbi Moshe Isserlis. (See the dispute between Abba Shaul and the Rabbis, Yevamoth, 39b; Bechoroth, 13a; Rabbi Itzhak Alfasi, Yevamoth, Chapter "Ha-Holets" (Chapter 4); Maimonides "Yibum Vehalitsa" - 1,2; Annotations Rabbi Moshe Iserlis, Shulhan Aruh, even Ha-ezer - 165,1). I refer to those who are of the opinion that the commandment referred to should be observed even by those who are already married (Pit'hei-Tshuva, Shulhan Aruh - even Ha-ezer, 165, subs. (c), which is opposed to the responsum of Rabbi Itzhak Bar-Sheshet, Title 302 quoted in Bet Yosef and in the interpretation Even Ha-ezer at the beginning of chapter 165).

 

            This submission, however, has no substance whatsoever. Without entering into the question of the meaning of Article 17 of the Order in Council - whether it prohibits legislation which is intended from the outset to prejudice the dictates of religion, or whether it also invalidates any law which is likely, in particular circumstances, to prevent the observance of one of the religious duties - without embarking at all upon an investigation of this problem, there is a very simple answer to the submission of counsel for the appellant in this case. That answer is that this section 181 has already concerned itself from the outset with preventing any possible conflict between the law and religion, and has provided a special method for the resolution of any conflict between them. I refer to the "permission" set out in subsection (d) of the section. It is provided in that sub-section that a person who has more than one wife will be free from guilt ("it is a good defence to a charge under this section") if he proves that the law as to his marriage (both his first and subsequent marriage) is Jewish law, and that "a final decree of o rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine, and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage". And since the rabbinical court and also the two Chief Rabbis will certainly, no less than any other person, give proper consideration to the observance of religious duties and, if it appears to them correct to do so both from the legal point of view and the facts of the case, will grant the permission requested, there is a sufficient guarantee of "freedom of religion". Where have we grounds for complaint against the Palestine legislature? Was the Mandatory legislature obliged to constitute itself the guardian of matters of religion, and to impose or permit the fulfilment of a commandment which even the religious court is not prepared to permit? I would be very surprised indeed if that were so!

           

7. But counsel for the appellant continued to urge that it was just this very subsection - subsection (d) of section 181 - which constitutes a serious inroad into the freedom of conscience and religion. He submitted that the jurisdiction of both "the rabbinical court of the Jewish community" (which is the court of "Knesset Yisrael"), and that of the two Chief Rabbis, extends to members of "Knesset Yisrael" alone1) (see Gliksberg v. Chief Execution Officer (8), and judgments there cited), and a man who is not a member of Knesset Yisrael can derive no benefit from a "permission to marry" given by a court such as this. It follows that a man who is about to take a second wife will be compelled, against his will, to join the Knesset Yisrael in order to secure the legal validity of the permission referred to. Can there be any greater religious compulsion than this?

 

            There are two replies to this submission which, in my opinion, is without substance.

 

(a) First, I have grave doubts whether the jurisdiction of the rabbinical court is limited here too, in regard to the defence provided for in section 181(d),to members of Knesset Yisrael only. Without expressing any final opinion I am inclined to think - as was said by the learned President of the District Court in paragraph 48 of his judgment - that by virtue of the provisions of rule 6(1) of the Jewish Community Rules, 2)read together with the provisions of Article 9(2) of the Palestine Order in Council (Amendment), 1939,3) section 181 confers a special jurisdiction upon the court of Knesset Yisrael and upon the Chief Rabbis to grant permission to marry also to a person who is not a member of Knesset Yisrael ;

           

b) Secondly, even if we assume that this is not so, and that a man who is very anxious to marry a second wife is compelled, whether he likes it or not, to become a member of Knesset Yisrael - is this something so very shocking? Is this to be treated as "interference with the freedom of religion"? Is the religion of a member of Knesset Yisrael any different from the religion of a person who is not a member of the Knesset ? Religious "compulsion" such as this  means nothing, and it is difficult to submit with any seriousness that the whole legal force of section 181 is to be destroyed because of this feature.

           

8. Before leaving this subject I wish to touch shortly upon another point which also provides a simple and complete solution, in quite another way, to the problem of the freedom of conscience and religion. It is well known that Article 17 of the Order in Council lays down one proviso in respect of the prohibition on the restriction of freedom of conscience, and that is in so far as is required "for the maintenance of public order and morals" (do not read: "and morals" but "or morals"). Dr. Wiener, for his part, has introduced a proviso to the proviso and contends that the word "public" in this context means the whole public and not only a part of the public. I do not know from where this doctrine is derived, nor whether there was any place for it in the conditions of life which prevailed in Mandatory Palestine. It seems to me that in a heterogeneous society, with its many variations and different cultural groups, we can very well imagine that a particular law was necessary for "the maintenance of order" in only one of the different sectors of the population of the country. It can hardly be imagined that the position was otherwise. And the word "order" does not mean only the prevention of disorder. It includes also the maintenance and regulation of particular forms of living and cultural values in which that particular section of the community is interested, and which it holds dear. And if this is so, the amendment to section 181 - which was introduced under pressure from the Jewish community as a whole - is absolutely valid and completely unexceptionable even if the fullest effect be given to the proviso in Article 17.

 

            It would in fact have been possible to solve the whole problem by the process of reasoning set forth above alone. Since in my opinion, however, there was no restriction whatsoever on the freedom of conscience and religion in the circumstances of this case I found it necessary in the preceding portions of my judgment to deal with other aspects of the problem.

 

9. 1 pass now to the second and more serious submission of counsel for the appellant, namely, that of discrimination. This is an argument of substance which demands careful consideration. The conception discussed in the preceding paragraph can in any event have no place in regard to this portion of the enquiry, for the provisions of Article 17 prohibit discrimination in all circumstances - even if it be necessary for the maintenance of public order, since the proviso has been omitted from the concluding portion of the Article.

 

            Article 17, as enacted in Article 3 of the Palestine (Amendment) Order in Council, 1923, provides as follows :

           

".....no Ordinance shall be promulgated.....which shall tend to discriminate in any way between the inhabitants of Palestine on the ground of race, religion or language."

           

            It is Dr. Wiener's submission, stated shortly, that since, in terms of the real and practical application of section 181, bigamy - that is to say, having more than one wife - is permitted for Moslems, but is forbidden to Jews and Christians, the law discriminates between one man and another on grounds of religion.

           

            For the sake of accuracy it must be added that Dr. Wiener does not complain - nor can he complain - that bigamy is permitted for Moslems, and that, as it were, there is discrimination in their favour. It was not this legislative act which permitted them to indulge in bigamy, for they were permitted to take more than one wife before this Act was promulgated. His main argument is that section 181 prohibits bigamy for Jews to a greater extent than for members of any other community, for, differing in this respect from other communities, they are forbidden to contract bigamous marriages even where their religious law permits them to do so (see the language of subsection (c)). It follows that the law has discriminated here, and has discriminated against the members of the Jewish community.

           

10. It is still not clear whether counsel for the appellant complains of discrimination on the grounds of race or on the grounds of religion. It would appear, however, that Dr. Wiener complains of religious discrimination, for he has emphasised before us again and again that section 181 makes the discrimination dependent upon the nature of the law which applies to the marriage of the offender; whether that law is Jewish law, or "some law which is not Jewish law".

 

11. It seems to me that it is just there - in those words and in that definition - that the weakness in counsel's argument appears. The language of the section is as follows : -

 

". . . . . provided that it is a good defence to a charge under this section to prove : -

........................................................................

 

(c) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was a law other than Jewish law and allowed him to have more than one wife, or

 

(d) that the law as to marriage applicable to the husband both at the date of the former marriage and at the date of the subsequent marriage was Jewish law and that a final decree of a rabbinical court of the Jewish community, ratified by the two Chief Rabbis for Palestine and giving permission for the subsequent marriage, had been obtained prior to the subsequent marriage.''

 

This language leads to two conclusions:

 

(a) That section 181 makes the conviction and sentence dependent - not on the racial or religious affiliation of the wrongdoer, but upon a third test which is different from both of these, namely, what is the law which is applicable to the marriage of the offender;

 

(b) that the whole difference between the two classes of cases expresses itself, as a matter of fact, in one point alone, and that is that while it is sufficient for a man whose law is not Jewish law to prove, even at the trial itself, that his personal law - that is to say, that law applicable to his marriage - permits him to marry more than one wife, a man who is subject to Jewish law is obliged to prove that before his second marriage was celebrated he had produced a certain certificate laying down that he was permitted, individually, to marry a second wife. In other words, in regard to a man such as this - who falls into the second class - a criminal court will not be satisfied with the evidence of an expert with an abstract legal opinion, but will demand the production of an actual personal certificate issued to him, before he is married to the second wife.

           

12. As I have already indicated, the submission of discrimination as advanced by counsel for the appellant is completely destroyed by these considerations. In order to explain the principle we must deal shortly with the question of the special legal situation of "matters of personal status" and the place which they occupy within the framework of the general civil law of the State.

 

13. As everyone knows, the Palestine legislature divested itself of the power to lay down its own new principles in matters of personal status, and for reasons which are understandable and well-known it generally transferred the regulation of such matters - both from the point of view of procedure and from the point of view of substantive law, to the different religious codes of the various communities. Matters affecting the marriage and divorce of a Palestine citizen, who is a member of one of the recognised communities, are dealt with, even in the civil courts (when the question, for example, arises before them incidentally) in accordance with the religious law of the community in question. That also applies in regard to the duty of maintenance by a Palestinian husband in a claim brought against him in a civil court, and also to other similar types of claim.

 

            The matters which I have so far mentioned are simple, plain and well-known, and there is no reason to discuss them at any length. There arises, however, an interesting question which is not so simple, and that is the explanation of the rule which I have stated. Did the Palestine legislature, from the legislative point of view, leave a vacuum, and in respect of these matters employ foreign legal norms which have no place in its own system of law? Or did the Palestine legislature take over these legal norms, and make them an integral part of its own general system of civil law? This question is not, as we shall see, a merely theoretical one.

           

14. Even if there could have been some hesitation on this question up to the year 1945, the problem was completely settled with the promulgation of the Interpretation Ordinance 1945, and the matter is no longer open to any doubt. Section 2 of that Ordinance provides distinctly that the expression "law" also includes "the religious law (both in writing and verbal). . . . . which is in force, or which will be in force in future in Palestine." These words are crystal clear, and any interpretation of them would he superfluous. The legislature has in this section expressed its opinion in unmistakable language that the religious law, to the extent that it is in force in Palestine, itself constitutes an integral part of the law of the State. That is to say, that if a district court deals, for example, with the obligation of a Jewish husband who is a citizen of Palestine to pay maintenance, and it applies - as it is obliged to do - Jewish law, that part of Jewish law which deals with the question is regarded as if it had been enacted as one of the laws of the State. This, moreover, is the only reasonable and the only possible approach to the matter. Religious law is not "a foreign branch" which is grafted onto the trunk of the tree from without, but, to the extent that it was recognised, is itself inextricably interwoven with the boughs of the tree and forms a portion of its boughs and its branches.

 

15. Let us return to our problem, and examine the influence of this approach on the question before us. The effect is patent and clear : the basic idea which lies at the foundation of section 181 - at the foundation of all the provisions of that section - is to prevent an intrinsic and unreasonable conflict between different portions of the law of the State. For since, in the field of the civil law, there is no single arrangement common to all of the laws of marriage and divorce for all the inhabitants of the country, each community having its own laws, and ifs own forms, so it would be inappropriate to lay down one equal law for all sections of the inhabitants in the field of criminal law. It would be insufferable if there were a contradiction between the civil "permission" to commit bigamy, and the criminal prohibition of bigamy, and if these two conceptions did not coincide. The legislature therefore laid down as a general rule that if the civil law - that is to say, the "religious law" in accordance with which civil questions relating to the marriage of the offender are to be determined - permit him to marry more than one wife, it - the legislature - does not wish to prohibit him from so doing from the point of view of the criminal law. Here, however, the legislature was confronted with a difficulty in respect of members of the Jewish community, or to use the language of the legislature, persons the law of marriage applicable to whom was Jewish law. The difficulty was that Jewish religious law in fact recognises the validity of bigamous marriages - that is to say, having more than one wife - but it does not "permit" such marriages in a general and absolutely unrestricted form. On the contrary its general attitude to them is negative, and it only permits them subject to many reservations and conditions. Hence the legislature found itself confronted with a very complicated situation - a situation complicated from the legal point of view. It could not understand the situation in question nor did it believe that it could itself solve the problem. Who would investigate and who would decide if the particular person who married more than one wife was in fact permitted by Jewish law to marry a second wife? Could such an important and complicated question be decided on the basis of experts who would be heard by the court after the event? What, therefore, did the legislature do? It established special machinery, namely, the rabbinical courts of the Jewish community, together with the two Chief Rabbis of Palestine, and it transferred to them - and to them alone - the power of deciding the question whether a second marriage on the part of the husband could be permitted - resulting naturally in his exemption from punishment - or not.

 

            In short, the legislature did not act here with discrimination and did not discriminate in any way on the basis of religion or race. Also in regard to Jews, the legislator did not depart from the basic principle that no distinction should be introduced between the civil and criminal aspects of bigamy, but it refrained from deciding itself upon the civil aspects of the matter - being mindful of its failure in 1988 - and it transferred the matter to more competent hands, namely, to the religious courts and the Chief Rabbis, who were to decide the matter before the commission of the act. This is not a case, therefore, of racial or religious discrimination, or of discrimination at all. It is a necessary consequence of the legal differences between those portions of the law by which the legislature regulated matters of personal status of the citizen. In the field of the civil law of personal status, however, the legislature was compelled to lay down different legal norms for each community by means of the religious laws. No one has ever questioned the correctness of this course. All that the legislature proceeded to do, in the field of criminal law, was to draw the practical and logical conclusions from this distinction in the civil law.

           

16. And now one word on tile question so ably dealt with by the State Attorney relying on judgments given by the American courts, and in particular on the theory expressed in one case, Lindsley v. National Carbonic Gas Co. (10), by Mr. Justice Deventer of the United States Supreme Court. Not all discrimination is discrimination in the full sense, for in some cases it is nothing more than drawing a distinction. Drawing a distinction in which way? - when there exists a real difference between the two persons between whom discrimination is alleged on any reasonable basis, and the discrimination is not capricious (see p. 340, column g, ibid.). The conception lying behind the prohibition against discrimination is that a man shall not be prejudiced only because of his belonging to a particular race or religion, and there is no discrimination when it is not only on the basis of race or religion that the distinction exists, and where there is no prejudice. The discrimination in section 181 is only in the nature of a distinction. A Jew is not punished for polygamy because he is a Jew; but he is restrained by the threat of punishment from taking more than one wife seeing that the society to which he belongs - the Jewish community - has itself laid down that taking more than one wife is inconsistent with its moral and cultural conceptions - that it can no longer permit that practice. It therefore requested the legislature to prohibit the taking of more than one wife in its own interest, and the legislature acceded to this request. What we have here, therefore, is not a discrimination which is prohibited, but a distinction which is permitted, in no way offending the provisions of Article 17. This conception is in fact similar to that expressed above in paragraphs 14 and 15, expressing indeed two sides of the same coin.

 

17. In conclusion I wish to point out that ~ unreservedly associate myself with the conclusions of the learned President of the District Court in regard to the validity of the Ban of Rabbenu Gershom and the extent of its application in this country. It is a widely-accepted principle that that Ban - or the custom which has remained after the year 5000 A.M. (see Responsa of Hatam Sefer - Even Ha-ezer - s. (d)) - is valid in Israel, and binds everyone who enters this country. The authorities for this proposition were cited fully in the judgment of the learned President. I only wish to add that already in tile period of the Amoraim - some 700 years and more before the Ban of Rabbenu Gershom - there expressed itself - here and there - an inclination against polygamy, from the spiritual point of view. If the Amora Rabbi Ami, who lived in the 4th Century, said, "that I say : everyone who marries a second wife shall divorce his first wife (if she so desires) and pay her the sum of her ketuba" (Yebamot, 65a). Pay particular attention to tile strong introduction "that I say !" - this shows there were even in that far off time, people who were in favour of this idea. And even Raba, who differed from the opinion of Rabbi Ami in connection with this principle, said "A man may marry more than one wife if he is able to support them", also expressed his opinion indirectly elsewhere, and took it for granted that it is in no sense a natural thing that a man should marry more than one wife, and that it is necessary - at least from the moral point of view - to procure the consent of the first wife to such an act (see the reply of Raba to Abayeh - Kiddushin - 7a : "So he said to her at the time of the marriage -  that if I wish to marry another woman, I shall do so"). Any one who knows how to read between the lines will find many such expressions of opinion widely spread throughout our ancient literature, but this is not the place to dwell upon this subject at any length.

 

            In short, bigamy was never an institution which was rooted, or permanent or favoured, in the life of the Jewish people. It was merely 'tolerated', if one may use this expression - and what was laid down by Rabbenu Gershom, the Light of the Exile, at the beginning of the 11th Century, was no more than to put the final touches upon a gradual and deep development throughout the generations.

            It is my opinion, therefore, that the appeal should be dismissed, and the conviction confirmed.

           

            SMOIRA J.  I have read the judgments of my colleagues Silberg J., and Landau J., and I have nothing to add. They have both reached the conclusion that the appeal should be dismissed, and I am in agreement with their opinion.

            We therefore dismiss the appeal against the conviction.

            After hearing counsel for the appellant, the appellant himself, and the District Attorney, we find no ground for imposing a lighter penalty. We also dismiss the appeal against the sentence. We confirm the judgment and sentence of the district court .

           

            The appellant will be imprisoned for a period of one year from today.

           

Appeal dismissed.

Judgment given on March 29, 1951.

                                                                                                                LCA 8821/09

 

Pavel Prozansky Physicians for Human Rights

 

v.

 

Layla Tov Productions Ltd

 

 

 

The Supreme Court

[27 June 2011]

 

Before Justices (Ret) E.E. Levi, S. Joubran,Y. Danziger

 

Application for leave for appeal against the decision of the District Court in Central Region, in LSC 21939-06-09 on 19 October 2009 handed down by Hon. Judge A. Yaakov.

 

Facts:

 

Held:

 

Israeli Legislation Cited

Basic Law:  Human Liberty and Dignity

Contracts (General Part) Law, 5733-1973, ss. 12,39

Defense Service Law [Consolidated Version] 5746-1986,

Equality of Opportunities in Labor Law, 5748-1988

Equality of Opportunities for Disabled Persons Law, 5758-1998,

Equal Retirement Age for Female and Male Employees Law, 5747-1987

Retirement Age Law, 5764 – 2004

Prohibition of Discrimination against Blind Persons Accompanied by Guide Dogs, 5753-1993

Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000, ss. 1,2 (a) 3 (a),4, 5,6, 6(3)

 

Adjudication of Small Claims (Procedure) Regulations 5737-1976, r. 11

Civil Procedure Regulations, 5744-1984, rr. 97 (a),  157 (2)

 

Israeli Supreme Court cases cited:

[1]          LCA 292/83 Sergoz v. A. Ofek Ltd ,IsrSC 48 (3) 177 (1994).

[2]          CA 127/52 Roznak v. Dauman, IsrLR 6 722.

[3]          CA 130/74 Rahman Shaadi – Development and Building Company Ltd v. Hillel, IsrLR 28(2) 399, 401.

[4]          HCJ 68/69 Bergman v. Minister of Finance, IsrSC 23 (1) 693 (1969); IsrSJ 8 13

[5]          Peretz v. Kfar Shemarhyahu, IsrSC 16, 2101, 2114 – 2115 (1962); IsrSJ 4 191

[6]          HCJ 104/87 Nevo v, National Labor Court, IsrSC 44 (4) 749 (1990).

[7]          HCJ 721/94/94 El-Al Israel Airwayw Ltd v. Danielovitz IsrSC 48 (5) 749 (1994); 1992-4] IsrLR 478.

[8]          CA 239/92  Egged, Cooperative Association in Israel Ltd v. Mashiah, IsrSC 48 (2) 66, pp. 72-73 (1994)

[9]          CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum,  IsrSC 46(2) 464, 530 (1992)

[10]        FH 22/82 Beth Jules Ltd. v. Raviv Moshe and Co.  [  ], p. 441

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

[12]        4948/03 Elhanati v. Minister of Finance  (not reported, 15.6.2008.

[13]        HCJ 5325/01 Amutat L.B.N Promotion of Womens' Basketball v. Ramat Hasharon Local Council,  IsrSC 58(5) 70 (2004); and see comments

[14]        AP 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality [10], ss. 49-50 (not reported)

[15]        HCJ 678/88 Kfar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501

[16]        HCJ 6051/95 Recanat v. National Labor Court, IsrSC 51(3) 289 (2002)

[17]        FHHC Recanat v. National Labor Court, IsrSC 57 (1) 419 (2002) 330, 351-350

[18]        HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval. Committee [17] [2003] IsrSC 57(1) 419

[19]        HCJ 746/07 Reagan v. Ministry of Transport [   ] (5.1.2011)

 [20]       CA 3414/93 On v. Diamond Stock Exchange Works Ltd , p. 196  (1995)

[21]        CA  294/91 Kehillat Yerushalim Burial Society v. Kestenbaum  (1992)

'[22]       C.A. 10064/02 "Migdal Insurance Company Ltd v. Abu Hana (not reported, 27.9.2005).

[23]      HCJ 528/88 Avitan v. Israel Lands Administration IsrSC 43(4) 297 (1989)

[24]        HCJ 6427/02 Movement for the Quality of Government (not reported, 11.5.2006)

[25]        HCJ 3751/03   Ilan v. Tel Aviv Municipality  at p. 828. 

[26]        HCJ  4124/00 Arnon Yekutieli z”l v. Minister of Religions (not reported, 14.6.2010 .

 

American Cases cited

[27] Craig v. Boren, Governor of Oklahoma, 429 U.S. 190 (1976)

[28]  Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985) 

[29]  Pennsylvania Liquor Control Board v. Dobrinoff, 80 Pa. Commw. 453 (1984)  (Pennsylvania U.S.A)

[30]  Ladd v. Iowa West Racing Association, 438 N.W. 2d 600 (1989) (Iowa, U.S.A)

 

English Cases Cited

[31] James v. Eastleigh Borough Council, [1990] 2 All ER

 

For the petitioners — A. Avidan.

For the respondent — B. Shamker, A. Afriat.

 

 

JUDGMENT

 

 

Justice Y. Danziger

This is an application for leave to appeal the judgment of the Central District Court (Judge A. Yaakov) in LSC 21939-06-09 of 19 October, 2009 which rejected the application for leave to appeal filed by the applicant against the decision of the Small Claims Court in Rehovot (Judge G. Barak) in SC 1274/09, of 16 June, 2009 in which the court dismissed the applicant’s monetary claim against the respondent on the grounds of discrimination under the Prohibition of Discrimination in Products, Services and Entry into Public Places Law, 5761-2000 (hereinafter – Prohibition of Discrimination Law or the Law).

This application for leave to appeal raises two questions that require resolution. The first concerns the interpretation of Regulation 11 of the Adjudication of Small Claims (Procedure) Regulations 5737-1976 (hereinafter: the Adjudication Regulations), which provides that where the defendant fails to attend, “the court will render a decision based on the statement of claim”; the second pertains to the legitimacy of the distinction between men and women with respect to the minimal age for entry into places of entertainment. However, before entering the thick of the fray regarding these subjects, we will review the factual background which brought the applicant's claim before us and the pleadings of the parties.

Factual Background and Previous Proceedings

1.            The respondent operates a clubhouse known as Truman Capote in Rehovot.   As part of clubhouse policy, the respondent fixed the following minimal entry ages for visitors: for men – those born in 1982, and for women – those born in 1984. The applicant was born in 1984.   On 25 April, 2008 the applicant came to the clubhouse operated by the respondent and by reason of his age was denied entry.  On other occasions too the applicant was denied entry by reason of his age.  Accordingly, the applicant filed a monetary claim in the Small Claims Court for the  sum of NIS 30,000, claiming that he had been illegally discriminated against, in contravention of the Prohibition of Discrimination Law.

2.            The respondent submitted a statement of defence and the plaintiff submitted a response, and a hearing date was scheduled. On the scheduled date however, the respondent failed to attend and the Small Claims court decided to examine the pleadings before giving its decision.

3.  In its decision the Small Claims Court ruled that despite the non-attendance of a representative on the respondent's behalf, the claim should nonetheless be dismissed, for the reason that the Prohibition of Discrimination Law does not prohibit age-based discrimination with respect to entry into public places as defined in the Law.

The applicant filed an application for leave to appeal in the District Court against the decision of the Small Claims Court.

The Decision of the District Court

4.            The District Court rejected the application.  At the first stage, the District Court addressed the applicant’s argument that under Regulation 11 of the Adjudication Regulations the Small Claims Court should have accepted the applicant’s declaration affirming the truth of that which was alleged in the statement of claim, and given a decision that accepted the claim.  The District Court ruled that under Regulation 11 of the Adjudication Regulations in the event that the defendant fails to attend, the plaintiff will affirm the truth of his claim before the Small Claims Court, and the court will then give a decision based on the statement of claim. However, this does not prevent the court from exercising its discretion to dismiss the claim in appropriate cases.  The District Court ruled that upon fulfilment of the conditions in Regulation 11 of the Adjudication Regulations the Small Claims Court is obligated to rule on the basis of the facts in the statement of claim, but is not limited to the legal conclusions that the plaintiff draws from these facts.

5.            The District Court then proceeded to address the applicant’s claim that the Small Claims Court erred in deciding the question of whether or not there had been age-based discrimination when the applicant himself had made no claim to that effect as grounds for his action. The applicant claimed that the discrimination in the case at hand was gender-based and that this had likewise been his claim in the Small Claims Court. The District Court ruled that on this point the applicant was correct and that the Small Claims Court erred in failing to address the question of gender-based discrimination.  Nonetheless, it ruled that the application should be dismissed because the conclusion reached by the Small Claims Court was just and correct. In this context the District Court ruled that gender-based distinction is permitted under Israeli legislation in various matters, citing the example of variant ages of men and women for going on pension and [arguing] that in the present context too the distinction between men and woman was justified, for two reasons:

 “In places of entertainment there is a difference between men and women. These are places where they drink intoxicating beverages with the potential for wild behaviour as a result. Experience teaches that the lower the age of the participants is, the higher the probability that youths or young men who drink to a state of inebriation will conduct themselves inappropriately.  This kind of inappropriate behaviour – again in accordance with experience – is more characteristic of men and less of women.

Another aspect concerns the difference between men and woman in terms of mental maturity. Concededly, no expert opinions were furnished, but experience teaches that women reach mental maturity before men. On this point, note the age for the obligatory fulfilment of commandments for  women and for men and their potentiality for sexual relations in accordance with the halakhah [p. 4 of the judgment].

 

In view of the above the District Court ruled that the distinction made by the respondent at the entry to the clubhouse was a permitted distinction and it therefore dismissed the application for leave to appeal. The applicant had difficulty in accepting this ruling, and hence the application for leave to appeal before us, and which in the wake of the hearing conducted on 27 June, 2011, we decided to allow, and to conduct a hearing of the appeal by way of written summations. 

Arguments of the Parties

6              The Procedural Level – Interpretation of Regulation 11 of the Adjudication Regulations

The parties’ dispute in this context concerned the interpretation of the provision whereby in the event of the defendant failing to attend “the court will render a decision based on the statement of claim”.  The applicant - by way of his attorney, Adv. Ayal Avidan – argues that this provision instructs the Small Claims Court to accept the claim in full "automatically". The applicant argues that this manner of interpretation equates the defendant’s standing with that of the plaintiff, whose claim will be dismissed, according to the regulation, should he fail to attend the hearing of his claim;  it realizes the goals of the institute of small claims, which is to provide the citizen with a prompt and efficient legal solution and it embodies an appropriate policy towards litigants who belittle the court.

On the other hand, the respondent argues - by way of his attorney,Adv. Boris Shamkar and Adv. Asher Apriat - that Regulation 11 of the Adjudication Regulations only states that where the defendant fails to attend, and assuming the fulfillment of the additional condition prescribed by Regulation 11, the Small Claims court is permitted to render judgment based on the facts  of the statement of claim, but by no means is it restricted to the legal arguments of the plaintiff.   This being so, argues the respondent, a situation may arise in which despite the defendant’s non-attendance at the hearing, his claim will be dismissed because the facts of the statement of claim do not reveal any legal grounds that could entitle the plaintiff to a remedy.  On the merits, the respondent claims that in the first place there was no real factual dispute, and the central question was of a legal nature, and that his non-attendance at the hearing was exclusively the result of a mishap and not of a belittling of the court.

7.            The Substantive Level – The Claim of Discrimination in Entry into a Public Place.

The applicant claims that the Magistrates Court and the District Court erred when ruling in contravention of the Prohibition of Discrimination Law which prohibits gender-based discrimination in the entry to public places.  As for the respondent's claim and District Court's holding that the distinction between men and women in the entrance into clubhouses is relevant in view of the fact that men are more prone to unruly behavior than women, the applicant argues that this is a generalization with no scientific basis and is tainted by prejudice. The applicant also disputes the holding that women mature faster than men, claiming that the physiological differences between women and men referred to by the respondent have no relevance for the distinction it adopted in the entry into the clubhouse under its management. The applicant argues that the respondent has cynically enlisted these differences between genders in order to legitimate its adoption of an illegal policy of discrimination.  

On the other hand, the respondent argues that the fact of its being a private business which enjoys freedom of occupation, the right to property and freedom of contract, confers it the right to fix a minimum age threshold for those entering the gates of the clubhouse under his management, intended to give it an "adult, orderly character". The respondent cites examples indicating the ubiquity of minimum age limits in our lives, inter alia citing the minimum age for taking out a license, the age of criminal responsibility the minimal marriage age, the legal capacity age and more. The respondent further claims that one cannot view men in general and men under the age of 26 as a "group" to whom the Prohibition of Discrimination Law applies, and whom it is intended to protect. The respondent's argument in this context pertains to the interpretation of the Law, which in its view was not intended to protect powerful groups do not suffer historical discrimination and whose discrimination is not accompanied by elements of humiliation and violation of autonomy.  

On the merits, the respondent denies that the applicant suffered from any humiliation, referring to the holding of the Small Claims Court that the applicant’s repeated visits to the clubhouse were for the purpose of establishing grounds for claim.  The respondent further claims that the distinction between men and women is marginal and temporary, and that the case is not one of discrimination solely based on gender, such as would justify strict treatment, given that men over age 26 are permitted to enter the clubhouse. As for the relevance of the distinction between men and women, the respondent affirms the decision of the District Court, and argues that the distinction is relevant and legitimate given the fact that statistically, among many couples the man is older than the woman. As such – so claims the respondent – there is a commercial justification for determining a lower minimal entrance age for women so as not to lose many potential couples. Finally, the respondent points out that even the legislature distinguished between women and men for specific purposes, referring to the Retirement Age Law, 5764 – 2004 (hereinafter – Retirement Age Law), and the Defense Service Law [Consolidated Version] 5746-1986, from which he deduces a fortiori his prerogative, as a private dealer, to distinguish between women and men.

Deliberation and Decision

 8.           Having examined the application for leave to appeal, the response thereto and the parties’ summations and having heard the parties’ argumentations during the hearing conducted before us, my view is that the respondent’s policy of distinction is a policy of discrimination that is prohibited under the Prohibition of Discrimination Law. This being so, I propose to my colleagues that we should allow the appeal and we should rule that respondent wronged the applicant when it discriminated against him in contravention of the law prohibiting discrimination and that we obligate him to compensate the applicant.  However, before discussing this matter, I wish to devote the following paragraphs to the subject of the interpretation of Regulation 11 of the Adjudication Regulations, regarding which I concur with the view of the District Court.

Interpretation of Regulation 11 of the Adjudication Regulations.

9.            In the dispute between the parties on this matter my view is that the respondent is right and that the wording and the purpose of Regulation 11 of the Adjudication Regulations support the conclusion that the Small Claims Court was authorized and even obligated to dismiss the claim even when the defendant did not attend the hearing on the matter, even if it considers that the facts described in the statement of claim and affirmed in the plaintiff’s declaration, do not establish a grounds of claim.

10.          Regulation 11 of the Adjudication Regulations, the heading of which is “Failure to Attend Trial”

 

“Where the plaintiff attended and the defendant did not attend – the court will decide on the basis of the statement of claim, provided that the plaintiff declared the truth of that which is stated in his statement of claim before the court (emphasis not in source – Y.D.)

 

11.          The purpose of this provision is to alter the burden of proof which is imposed on the plaintiff in a regular claim, given the circumstances of the defendant’s failure to attend.  In a regular civil claim, in similar circumstances in which the defendant fails to attend the hearing on his matter, Regulation 157 (2) of the Civil Procedure Regulations, 5744-1984 (hereinafter: Civil Procedure Regulations) prescribes that the plaintiff must “prove his claim to the extent that he bears the burden of proof and he will then be entitled to the requested remedy and any other appropriate remedy”. Clearly, the legislator sought to be accommodating with the plaintiff in a small claim in a similar situation, and sufficed with a declaration affirming the contents of the statement of claim. This arrangement reflects an appropriate balance that has consideration for the values of prompt and efficient resolution of civil disputes, which become particularly important  in the context of the small claim, and the fact that disputes adjudicated in the Small Claims Court are monetary disputes involving limited sums of money (See:  LCA 292/83 Sergoz v. A. Ofek Ltd, IsrSC [1] at pp. 189 – 191; see also in general, Sinai Deutch, “The Small Claims Court as the Protector of the Consumer”, Tel-Aviv Law Review 8 (1981) 345)

12.          As I see it, the applicant is arguing for an interpretation that attempts to effectively impose upon the court the legal conclusions and the remedies that he seeks in this claim. This approach is at variance with the wording of Regulation 11 of the Adjudication Regulations, nor is it consistent with the basic principles according to which the resolution of the question of whether a particular set of facts establishes legal grounds, and entitles the plaintiff to the remedies he requests is reserved for the court and lies at the heart of the judicial decision. The presumption is that had the legislator sought to limit the court’s discretion with respect to the judicial decision, he would have used explicit and unequivocal language, whereby in the event of the defendant’s non-attendance, the court would “accept the claim”, or some other similar wording which could have attested to the automatic acceptance of the claim with its remedies

13.          Furthermore, comparison to Regulation 97 (a) of the Civil Procedure Regulations similarly teaches us that the District Court’s interpretation of Regulation 11 of the Adjudication Regulations is correct. Similar to the Adjudication Regulations, Regulation 97 (a) of the Civil Procedure Regulations determines that in the event of the defendant’s failure to defend himself (in the current case - by failing to submit a statement of defense within the prescribed period), the “court or the registrar will issue a judgment in his absence, based on the statement of claim alone”. For a long time already, even before the enactment of the Civil Procedure Regulations, this rule has been interpreted in a manner that leaves the court discretion to refuse to grant that which was requested in the statement of claim, inter alia, if it deems that the statement of claim does not show grounds for claim. In this context Justice Yoel Sussman wrote the following valuable comments in Civil Procedure Regulations (2009) (Tenth Edition) 343:

 

Indeed there may be other cases in which the plaintiff will not be given a judgment ex parte, either with or without proof, such as when the statement of claim does not show grounds…[ibid, p. 263. in this context see also CA 127/52 Roznak v. Dauman[2]; and compare: CA 130/74 Rahman Shaadi – Development and Building Company Ltd v. Hillel [3] 401); Moshe Keshet, Procedual Rights and Civil Procedure ,Vol. 1 (2007) 468); Uri Goren, Subjects in Civil Procedure (2009),343.  

 

14.          In view of the above, it is not surprising that the Small Claims Court has full discretion in determining the legal conclusions and remedies stemming from the facts of the statement of claim, even when the conditions prescribed in Regulation 11 of the Adjudication Regulations are satisfied. I should mention that in the absence of a factual dispute between the parties, I was not required to address the question of the extent to which the Small Claims Court is “bound” by the facts set forth in the statement of claim when ruling “on the basis of the statement of claim” under Regulation 11 of the Adjudication Regulations.  The legal arrangement under Regulation 11 differs from the arrangement prescribed for ruling “on the basis of the statement of claim” in a regular claim, and the question will be resolved at the appropriate time.

Prohibited Discrimination or Permitted Distinction in the Entry into the Respondent’s Clubhouse

15.          First, I should mention that in the case before us there is no dispute regarding the applicability of the Prohibition of Discrimination Law to the respondent. Under s. 2 (a) of the Prohibition of Discrimination Law, a “public place” is “any place intended for public use, including a “discothèque”. As such, it is not, nor can it be disputed that the respondent’s occupation is the operation of a public place. The inevitable conclusion is that the respondent is not permitted to discriminate between men and women in the matter of “allowing entry” into the clubhouse that it operates.

16.          I will further mention that I see no reason to address the respondent’s claims regarding the legitimacy of establishing a minimal age for entering the clubhouse, because, as determined in the District Court’s ruling, the applicant did not allege age-based discrimination, but rather gender-based discrimination. In other words, the applicant did not contest the establishment of a minimum entry age to the clubhouse per se, but rather the fact that the respondent prescribed a different entry age for men as distinct from women. This being the case, the respondent’s claims regarding its prerogative to determine a minimal entry age and to that end, its references to laws that prescribe age levels for various goals, such as the minimum age for taking out a license, and the minimal age for marriage, all miss the principal issue, which I will proceed to discuss. The main question relates to the legitimacy of the respondent’s practice, that distinguishes between men and women for purposes of the minimal entry age into the clubhouse that it operates.

The Scope of the Prohibition of Discrimination Law

17.          First, before I address the relevant provisions of the Prohibition of Discrimination Law, I wish to preface with some comments on the application of the principle of equality in private law, which will provide the basis for the task of interpreting the Law. It is well known that the right to equality was already recognized as part of the Declaration of the Establishment of the State of Israel, which promised that "the State of Israel….. will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex”. Israeli law similarly recognized the importance of the right to equality, and conferred it the status of a basic right that  must guide the activities of the sovereign authorities. In this context it is impossible not to cite  HCJ 68/69 Bergman v. Minister of Finance, { }[4], and the comment of Justice M. Landau, frequently cited in the decisions of the courts, that: 

 

‘We do not have such an express provision, neither in a written constitution nor in an "entrenched" provision of a basic law. Nevertheless this unwritten principle is the soul of our entire constitutional regime.’

 

See also in the  Equal Rights for Women Law, 5711-1951, which was enacted soon after the establishment of the state, and which guaranteed that ”Women and men shall be equal for purposes of every legal act" [section 1A (a)].

18.          However, the right to equality was not restricted to public law, and in an ongoing process gradually penetrated into private law as well, specifically into Contracts Law. This development reflected a broader transition in private law in general and specifically in contracts law, from individualism to collectivism; from conceptions of pure market economy, in which each individual promotes his own affairs, disregarding the concerns of others, to conceptions that encourage cooperation, recognizing the extra power that certain parties have and seeking to restrict it to prevent its abuse in a manner that violates the freedom of others, in the understanding that freedom without equality is not freedom [see Nili Cohen, "Equality v. Freedom of Contract" HaMishpat 1 (1993), 131-132, 134-135  (hereinafter: Cohen, Equality versus Freedom of Contract); Nili Cohen, "Status, Contract, and Causing the Breach of Contract, HaPraklit 39, 304,304-308 (1990).

Initially, the principle of equality was applied to the actions of the public authority in the private sphere [see HCJ 262/62 Peretz v. Kfar Shemarhyahu, [5] 191; Daniel Friedman,

"The Application of Obligations from Public Law to Apartment Public Authority Operating in the Private Sector" Mishpatim 5 (1975) 598 (hereinafter- Friedman).    Later on, it was also applied to private bodies performing public functions of a public or quasi public status, and was also recognized in labor law and in the law of cooperative associations [see e.g. HCJ 104/87 Nevo v, National Labor Court, [6] (hereinafter: the Nevo case); HCJ 721/94/94 El-Al Israel Airwayw Ltd v. Danielovitz

[7]; and also compare with the application of other norms from public law, in the realm of civil law: CA 239/92  Egged, Cooperative Association in Israel Ltd v. Mashiah, IsrSC 48 (2) 66, [8] pp. 72-73 (1994); CA 294/91 Hevra Kadisha Kehillat Yerushalayim v. Kestenbaum  [9] p. 530 ; in this context also see Peter Benson, Equality of Opportunity and Private Law, in Human Rights in Private Law 201 (Daniel Friedmann & Daphne Barak-Erez eds., 2001), according to which the judicial application of the principle of equality in the private law must be limited to those cases in which the private body  has quasi public characteristics, or where it offered an asset for public use.] Finally, there were also some who argued that the principle of equality should also be applied to tenders between totally private bodies, even when the tenderor explicitly released himself from accepting the cheapest bid or any bid at all [ see minority opinion of Judge (former title) A. Barak in FH 22/82 Bet Jules Ltd. v. Raviv Moshe Ltd  [10] at pp. 479 – 485; for critique of this approach, see Gabriella Shalev "The Influence of Basic Law: Human Dignity and Liberty on Contracts Law",  Kiryat Hamishpat 1, 41 (2001); Gabriella Shalev, Contracts and Tenders of a Public Authority (1991) 253-254].

These developments were made possible, inter alia, by the provisions of ss. 12 and 39 of the Contracts (General Part) Law, 5733-1973 (hereinafter: The Contracts Law), which absorbed the doctrine of good faith in Israeli law, and the provision of s. 30 of the Contracts Law which enables the invalidation of a contract the making, contents, or purpose are contrary to “public policy”. Alongside the general legislation, specific legislation too, devoted to specific subjects, found it proper to absorb the values of equality as part of the private law. In the framework of this legislation one can enumerate the Equality of Opportunities in Labor Law, 5748-1988, the Equality of Opportunities for Disabled Persons Law, 5758-1998, the Prohibition of Discrimination against Blind Persons Accompanied by Guide Dogs, 5753-1993, and the Prohibition of Discrimination Law – the focus of the hearing before us, the purpose of which is “to promote equality and prevent discrimination in the entry to public places and the supply of products and services” [s.1 of the Law].

19.          All the same, privacy is not a fundamental value in the private law. On the contrary, in the private sphere freedom is the rule, and equality is the exception – an exception that is usually applied when there is a significant gap between the parties or when one of the parties occupies a quasi public position (see Cohen, Equality versus Freedom of Contract, at p. 137]. This is exemplified by a person’s freedom to enter into a contract with whomever he pleases, for reasons that may be arbitrary and which need not be consistent with the principle of equality. The distinction between the rule and the exception in this context was admirably articulated by Prof. Daniel Friedman as follows:  

‘The law of contracts is based on “the autonomy of the will”. The general principal is that a person is under no obligation to enter into a contract, and a person wishing to enter into a contract is free to choose his partner from among all those who are prepared to contract with him. Accordingly, a person cannot complain that another person refused to enter into a contract with him, to sell him an asset, to rent him an apartment, or to accept him for work. This principle is subject to a small number of exceptions. For example, according to the common law, a person occupied in a “Public  calling” such as a public transporter, must serve all those who come to him.  There may also be legislative intervention in the freedom of contract, which may restrict or annul a person’s ability to refuse to enter into a certain category of contract. This category may also include the laws, which have been enacted in various states, that prohibit discrimination for reasons of race, gender or religion. This prohibition may apply to various activities in the realm of private law, such as the renting or sale of assets." (Friedman, p. 605-606); in this context and with regard to the Prohibition of Discrimination Law, see Moshe Cohen-Alyah “Liberty and Equality from the Perspective of the Prohibition of Discrimination in Products and Services”, Alei Mishpat 3, (2003) 15)].

 

20           The importance of the value of liberty private law, is beyond dispute [see: Daniel Friedman and Nili Cohen, Contracts, Vol. 1 (1991) ss. 3.18 – 3.19; Gabriela Shalev,  The Law of Contracts – General Part (2005) pp. 82-94; for discussion of the tight connection between freedom of contract and human dignity, see Roger Brownsword, Freedom of Contract, Human Rights and Human Dignity, in Human Rights in Private Law 181 (Daniel Friedmann & Daphne Barak-Erez eds., 2001). However, I do not think that in our case one can agree to the narrow interpretation which the respondent argues for regarding the application of the Prohibition of Discrimination Law.  The case before us is unique in the sense that the group discriminated against, at first blush, is supposedly the stronger group which does not suffer from historical discrimination. Naturally, most of the cases in which the court has dealt with discrimination were cases of discrimination against a group in respect of which there is historical ongoing discrimination. All the same, I think that the language of the law, the legislative intention at the time of its enactment, which can be inferred from the explanatory note of the draft bill, and the goal of the Law, all support an approach whereby the applicatory scope of Prohibition of Discrimination Law, proscribes all kinds of discrimination deriving from the reasons mentioned therein, regardless of whether it is directed against a group that suffers from ongoing discrimination, or against a "powerful" group, and regardless of whether it involves elements of humiliation and violation of autonomy or not.  I will elaborate.

21.          The Wording of the Prohibition of Discrimination Law.  Section 3 (a) of the Law establishes the prohibition of discrimination, and states, inter alia, that a person occupied in the operation of a public place is not permitted to discriminate in granting entry into a public place by reason of sex, and in the words of the Law:

Any person whose business is the supply of products or of public services, or who operates a public place, shall not – in the supply of products or of public services, in admitting to a public place or in providing a service in a public place – discriminate because of race, religion of religious group, nationality, country of origin, sex, sexual inclination, opinion, political allegiance, personal status, or parenthood.

The language of s. 3 is unequivocal, and makes no distinction between the groups against whom there is a history of discrimination and groups who have not suffered historical discrimination. The word "group" is used primarily in s. 6 which determines that where it is proved that "a group characterized by one of the grounds for discrimination enumerated in section 3" was discriminated against in the ways enumerated in ss. 2 – 4, a presumption of prohibited discrimination arises. These sections too make no distinction between groups that suffered from historical discrimination and others, and this indicates that the silence of s. 3 with respect to the identity of the "group" that was illegally discriminated against is not incidental and that the legislator's view was that any discrimination based on the reasons enumerated in s. 3 is illegal. 

22.          The Draft Bill of the Prohibition of Discrimination Law and its Explanatory Note.  From the explanatory note of the draft bill it is evident that the legislator did not intend to limit the Prohibition of Discrimination Law exclusively to the protection of groups that had suffered from historical discrimination. Hence, the introduction to the Draft Bill of the Prohibition of Discrimination in Products, Services and Entry into Public Places, 5760-2000, Hatz'ot Hok 370 states the following:

 

"A refusal to allow a person to enter a public place or to provide him with a service or a produce purely by dint of his association with a group, and especially a group with a history of discrimination, gives rise to a grave violation of human dignity [ibid., p.370]'

 

 Indeed, the Explanatory Note points out that discrimination based on affiliation with a group that has a history of discrimination is particularly offensive, but it notes that discrimination against a person "purely by reason of his affiliation with a group" by definition, impairs his dignity. This makes it clear that the legislator did not intend to limit the coverage of the Prohibition of Discrimination Law strictly to the protection of those groups who had and continue to suffer from ongoing discrimination.

23.          The Purpose of the Prohibition of Discrimination Law.  The realization of the purposes of the Law – prevention of discrimination in entry into public places and in the provision of products and services, and the promotion of equality between individuals belonging to different groups in the society, and the protection of their dignity – necessitates the rejection of the construction for which the respondent argues. Disqualification of discrimination of men serves the purposes of the Law and contributes to the promotion of equality in a manner that benefits the entire society.

24.          Discrimination based on a person's affiliation with a particular group carries a message of rejection of a characteristic embedded in that person and as such violates his dignity. In this context incisive comments were made by Justice D.Dorner in HCJ 4541 Miller v. Minister of Defense [11], which  discussed women's participation in pilot's course in the I.D.F  and she noted that not every violation of liberty involves human humiliation, but ruled that:.                 

This is not the case with respect to certain types of discrimination against the background of group affiliation, including against groups, including sex discrimination, and also racial discrimination. Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature (ibid., p. 132)

 

In this context also see the comments of Justice (former title) A. Barak in HCJ 953/87 Poraz v. Shlomo Lahat Mayor of Tel-Aviv, 309 (1988) [8]:

 

                The need to guarantee equality is natural to man. It is based on considerations of justice and fairness. One who seeks recognition of his right must recognize the right of the other in order demand a similar recognition. The need to maintain equality is critical for a society and for the communal consensus upon which it is based. Equality protects the government from arbitrariness. Indeed, there is no factor more destructive to society than when its sons and daughters feel that they are being treated unequally. A sense of inequality is one of most unbearable of feelings; It undermines the forces that consolidate society. It erodes people’s self-identity (ibid., p.332)

 

It is clear that the results of discrimination on the basis of affiliation to any particular group, the feeling of exclusion and the erosion of self-identity also gravely violate human dignity. The humiliation and the violation of autonomy is the foreseeable result of the discrimination of the kind under discussion, and contrary to the respondent's claim, proof of this is not a condition for realization of the right that the Law confers upon the discrimination victim.  The violation of human dignity will be particularly severe when the discrimination is based on a stereotype. Stereotypes also exist with respect to those who are included in a group that does not suffer from historical discrimination, and as we will elaborate below, our case in which the discrimination was justified by a stereotype that was imputed to the group of men, is a striking example of this. Offenses of this kind are not consistent with the basic values of the State of Israel as a democratic state, and which the legislator intended to eliminate, inter alia, by the Prohibition of  Discrimination Law, under discussion here.

25.          Moreover, interpretation of the Law so that it  prohibits any discrimination for the reasons enumerated therein regardless of whether the party discriminated against belongs to "strong" side or to the side that was historically discriminated against, may specifically bring about the uprooting of the phenomenon of historical discrimination motivated by different social stigmas. In this context, and in relation to discrimination between men and women the following pertinent comments were made by Leo Kanowitz, one of the pioneers in the research field of women and law in his book Women and the Law: The Unfinished Revolution:

As long as organized legal systems, at once the most respected and most feared of social institutions, continue to differentiate sharply, in treatment or in words, between men and women on the basis of irrelevant and artificially created distinctions, the likelihood of men and women coming to regard one another primarily as fellow human beings and only secondarily as representatives of another sex will continue to be remote. When men and women are prevented from recognizing one another’s essential humanity by sexual prejudices, nourished by legal as well as social institutions, society as a whole remains less than it could otherwise become.” [Leo Kanowitz, Women and the Law: The Unfinished Revolution 4 (1969)]. 

        These comments have retained their force. In order to uproot the phenomenon of historical discrimination, any attempt to distinguish between men and women on irrelevant grounds must be rejected. Any such distinction not only offends the dignity of the party discriminated against and perpetuates the existing stereotype, but also sharpens and preserves irrelevant differences or differences that rely on those stereotypes. This being so, even if in a particular case, such as the one before us, the discrimination is not directed against  party that is historically discriminated against, it will ultimately perpetuate that historical discrimination and above all else be harmful specifically to that group.

25.          A similar case in which the direct victim of the discrimination was a man, and where the discrimination actually reflected the stereotypic approaches to women arose in the HCJ 4948/03 Elhanati v. Minister of Finance [12]  (hereinafter: Elahanti), in the framework of which a number of petitions were heard concerning the policies of the veteran pension funds that awarded a widower less rights in the pension accumulated by his deceased female spouse than it gave to a widow in similar circumstances of the death of her male spouse.  Inter alia, the Funds claimed that the distinction between widows and widowers among parties insured by pensions is justified in view of the relevant difference that stems from the reality of life in which women earn less than men, leave the work market earlier, and have longer life expectancy than men, in a manner that justifies increased support for widows over widowers.  Justice E. Hayut rejected this claim, establishing the following holdings:  

No reasonable explanation was given by the Funds for this discrimination, apart from stereotypic approaches which view the women as the secondary supporter and as having inferior status in the labor market in terms of the salary that she receives; the willingness to employ her; and in terms of the duration of her employment.   Even though, regrettably, some of these approaches still have a foothold in the Israeli labor market it seems indisputable that this is an undesirable reality the total uprooting of which should be pursued unrelentingly. This being so, any arrangement that relies on these stereotypes to justify discrimination between men and women regarding the rate of the survivors pension can only be regarded as an arrangement that violates the dignity of women as workers and as members of the Fund and the dignity of widowers, because it unjustifiably reduces their standard of living after the death of their wives. In that sense this is discrimination that is tightly and substantively connected to human dignity, and the harm occasioned thereby constitutes a violation of the fundamental right of the widowers and their deceased wives to dignity in accordance with the model endorsed by this court…" (ibid., s.  26 of Justice Hayut's decision).

27.  Foreign case law too provides ample evidence of the negation of gender-based discrimination against men, and specifically age discrimination, while stressing the imperative of neutralizing the irrelevant distinctions and stereotypes that perpetuate the historical discrimination.  See for example, in the famous case of Craig v. Boren, Governor of Oklahoma, 429 U.S. 190 (1976)  [27] (hereinafter: Craig) which considered a petition to strike down a law enacted in the State of Oklahoma in the U.S.A. which provided that women would be entitled to purchase a particular alcoholic beverage upon reaching the age of 18 whereas men would not be able to purchase that beverage until reaching the age of 21. The Supreme Court of the U.S.A. rejected the respondents' arguments that relied on surveys showing that young men are more prone to drunken driving than young women and it struck down the law as being in violation of the 14th Amendment of the U.S.A. constitution.  Of special significance is the comment that the stereotypes upon which the law was based also influenced the statistics that the respondent relied upon in that particular case [ibid., note 14 of Justice Brennan's decision].

Further regarding the Craig [27] decision, pertinent comments were made by Prof. Katherin Mackinnon, who relates to the arguments of Justice Ruth Bader Ginsburg, who at the time was the attorney who represented one of the amicus curie and who currently serves as a justice on the U.S.A Supreme Court. The comments concern the covert discrimination against women underlying the discrimination against men:

 

“…in Craig v. Boren, which adjudicated men not being allowed to drink and drive as young as women - that fundamental grinding issue of women's everyday lives that created the leading doctrine under all our claims are now adjudicated - Ruth argued that this rule is ‘part of the myriad signals and messages that daily underscore the notion of men as society's active members, women as men's quiescent companions.’… We are just along for the ride. She shows here how discrimination against men discriminates against them, which is real, while hiding deeper discrimination against women at the same time. ”[Catharine A. MacKinnon, Symposium Presentation: Rutgers School of Law – Newark and the History of Women and The Law: A Love Letter to Ruth Bader Ginsburg, 31 Women's Rights L. Rep. 177, 182 (2010); see also: Catharine A. MacKinnon, Sex Equality 228-29 (2nd ed., 2007)].

 

In another case  James v. Eastleigh Borough Council [28] (hereinafter: James) which was heard by the House of Lords in Britain, the matter discussed was similar to the case before us, based on discrimination against men against the background of a determining different ages for the receiving of benefits. In that case, the appellant and his wife, a 61 year old couple, visited a swimming pool that exempted pensioners from paying entrance fee. The significance of the exemption was that women above 60 were exempted from entrance fee whereas men would only be exempted upon reaching the pension age determined for men in England, which is 65.  The House of Lords accepted the appeal, declaring that this policy constitutes prohibited discrimination in accordance with the Sex Discrimination Act 1975, which is essentially similar to the Prohibition of Discrimination Law forming the subject of our discussion. Lord Gold pointed out that the policy of the law was to promote equal treatment of men and women [ibid., p. 617[

In other cases too, that adjudicated state laws that are essentially similar to the Prohibition of Discrimination Law forming the subject of our discussion, it was held that discrimination against men in private businesses by reason of their sex is prohibited. For example, in the case of Koire v. Metro Car Wash [28] at p. 24, it was held that granting discounts to women in business for washing cars and for entry into a clubhouse constituted prohibited discrimination in contravention of the Unruh Civil Rights Act (Civil Code § 51). In that case the Californian Supreme Court disqualified a practice known as "Ladies Day" or "Ladies Night" as the case may be, ruling that:

 

“…differential pricing based on sex may be generally detrimental to both men and women, because it reinforces harmful stereotypes.” [p. 34].

 

[see also: Pennsylvania Liquor Control Board v. Dobrinoff [29] at 453 the disqualification of a practice whereby women received an exemption from entrance fee to a bar, being in contravention of the prohibition of discrimination law prescribed in the state law); Ladd v. Iowa West Racing Association [30] at 600 – disqualification of policy that grants women discounts in a sprinting installation, in view of the prohibition of the discrimination prescribed in the state law)]

  

We can thus see that also in the states that influenced Israeli law, which enacted laws similar to the Prohibition of Discrimination Law many years prior to its enactment here, they recognized the need to eliminate all forms of discrimination, even in the cases in which it was directed at affiliates of a group that had not suffered from historical discrimination. The rationale for the approaches taken by the courts in the U.S.A. and England is the same rationale that underlay the Prohibition of Discrimination law that I addressed above; promotion of equality by way of uprooting stigmas and stereotypes that provide justification for the distinction between different groups and specifically been men and women.

28.          I will note that a ruling whereby the Prohibition of Discrimination Law also prohibits discrimination against groups that have not suffered historical discrimination, does not preclude the possibility of preferring a particular group in order to totally eliminate discrepancies and to promote substantive equality. Indeed, both in the private sector and in the third sector, to which the Law likewise applies, the promotion of social goals is occasionally permitted in the form of affirmative action. Preference of this kind is not considered as discrimination within the meaning of the Law. On the contrary:  Affirmative action is intended for the realization of equality in the substantive sense, in the recognition that certain groups are separated by primal differences that can only be bridged by way of giving preference, whether in the allocation of resources or by other means, to the group that suffers from discrimination as a result of prolonged discrimination [compare: HCJ 5325/01 Amutat L.B.N Promotion of Womens' Basketball v. Ramat Hasharon Local Council [13]; and see comments of  Justice Y. Amit in AP 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality [14], ss. 49-50 (not reported). All the same, in a case in which the claim of affirmative action is made, it should be examined whether it is really affirmative action or whether the claim is nothing but a smoke screen to conceal statutorily prohibited discrimination. At all events, in our case, this issue does not arise since the respondent did not claim that the discrimination it had adopted was actually affirmative action and under the circumstances at all events there would have been no basis for such an argument had it been raised.

29.          Summing up this point, the realization of the purpose of the Prohibition of Discrimination Law compels the negation of discrimination based on one of the reasons enumerated therein, even if the discriminated party does not specifically belong to a group that has suffered from historical discrimination, and it is not necessary to prove that in the concrete case the discriminated party suffered from humiliation or the violation of his autonomy.  The negation of all ungrounded discrimination will contribute to the maintenance of the dignity of those included in each one of the groups and will contribute to the overall elimination of discrimination. These comments are consistent with our comments above, as well with the language of the Law and the legislative intention, as it received expression in the draft bill.

Illegitimate Discrimination or Permitted Distinction – the Question of the Relevancy of the Distinction

30. Having concluded that the Prohibition of Discrimination Law also applies to cases such as ours, it remains for us to examine whether there is any basis for the respondent's claim that our concern is with a permitted distinction based on a relevant difference, or whether it is a case of illegitimate discrimination, as claimed by the applicant.

Indeed, discrimination between persons becomes illegitimate only where it is not based upon a substantive and relevant difference between them. It has been ruled more than once that discrimination "means an arbitrary practice of unequal treatment, which has no justification due to the absence of a logical and significant difference under the circumstances between one and the other (comments of Justice T. Or in HCJ 678/88 Kfar Veradim v. Minister of Finance [15]  at p.501

31.          As mentioned, the respondent claims that the distinction it adopted was substantively justified in view of the reality of life, in which with most couples the woman is younger than the man.  The respondent learned of this reality from the data of the Central Bureau  of Statistics, which indicate that statistically, among most of the heterosexual married couples, the man is slightly older than the woman. This claim is supplemented by the difference found by the District Court regarding the actual reality in which there is a "greater likelihood that youths or young men who drank to a state of inebriation would behave inappropriately" and the "different mental maturity of men and women".

32.          It will be recalled that s. 6 of the Prohibition of Discrimination Law establishes presumptions of prohibited discrimination, including the presumption under subsection (3) which arises when the defendant conditions entry into a public place for "a group characterized by one of the grounds for discrimination enumerated in section 3 on compliance with conditions that are not required of persons who do not belong to that group". This is the case confronting us. The respondent conditioned the entry of men into the clubhouse that it operated upon the fulfillment of a particular condition, namely - being 26 or older – this being a condition which is stricter than the one required of women seeking to enter the very same clubhouse, and which was not required of them. Accordingly there arises an automatic presumption of discrimination in contravention of section 3 of the Law.

33.          According to my approach, the respondent’s claim that relies on the different age of marriage for men and women cannot justify the distinction made by the respondent in the context of entry into the clubhouse that it operates.  Presumably the people coming to the clubhouse are not only couples and certainly not only married couples, to whom the statistics relied upon by the respondent relate. This being the case, it would seem that a priori, under the circumstances of the case the difference pointed to by the respondent cannot be classified as a “logical and significant difference” in the words of Justice Or in the Kfar Veradim case [15] case. The respondent did not demonstrate that this data is reflective of its clients, nor did she show that the discrepancy in minimal entry ages into the clubhouse that she operated was derived from these statistics. As such, the respondent has not succeeded in its attempts to refute the presumption of discrimination that arises by force of section 6 (3) of the Prohibition of Discrimination Law.

34.          In my view, the distinctions relied upon by the District Court cannot justify the discrimination in the case at hand. These determinations, which relied upon “life experience” of the court, do not belong to the category of matters that are part of judicial knowledge and no evidence was brought to prove them. Moreover, even if these determinations contain a grain of truth, it may be presumed that it would be limited and narrow and does not reflect the rule, and as such cannot justify the stigmatizing of all men of the relevant age and the discrimination against them. In this context valuable comments were made by Justice Y. Zamir in HCJ 6051/95 Recanat v. National Labor Court, [12], p. 289 (hereinafter: Recanat case):

 

The social norm is the ground from which social discrimination grows: discrimination based on race, religion, country of birth, gender and others. The stereotype is the enemy of equality.  It creates a vicious circle that perpetuates discrimination (ibid. p. 355; see also FHHC 4191/97 Recanat v. National Labor Court, [16]

In this context it similarly relevant comments were made by Justice M. Cheshin in HCJ 2458/01 HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval. Committee [17] p. 419:

At the end of the day, we all live in a particular social milieu, and we assimilate the accepted societal views that enter our bodies and minds through social osmosis. But we must not confuse reality with values, as indeed, the test requiring equality – like the prohibition upon discrimination – were created, and both exist, precisely in order to combat “accepted societal views”. … These and other laws were intended to uproot “accepted societal views” – accepted although improper – and the Court and the legislature will be vigilant and will act to instill in society values of equality that are built upon the abilities of the individual, and not upon a stereotype associated with a group to which a person belongs.[ibid., p. 451].

Were we to agree with the reasoning of the District Court we would find ourselves in a "vicious circle" that perpetuates the discrimination, in the words of Justice Y. Zamir in the Recanat [16] case. To break out of that vicious circle a distinction must be made between a permitted distinction that accurately reflects the members of the group under discussion claiming discrimination, and the stereotype that is attached to that group but which is not reflective of its members. In the case before us, I have no doubt that the determination that 25 year old men, who are not permitted to enter the clubhouse operated by the respondent, are less mentally mature and more prone to wild behavior and inebriation than women of the same age, whose entrance to the clubhouse is permitted - is not reflective of a general rule.  This being the case, a claim to that effect cannot serve as a basis for a distinction between men and women 

35.  I will further add that I found no substance in the respondent's reference to legislation that makes an age-based distinction between men and women. First, the justification of the distinction depends upon the legislative goal and the question of whether in terms of that goal there is a relevant difference between men and women, and it is clear that the law applying to the matters referred to by the respondent does not apply to the case before us.  Second, legislation may be discriminatory and yet retain its validity, whether because of the fact that the discrimination therein does not amount to a violation of constitutional basic rights, or because of other competing interests, or in view of the fact that it preceded the Basic Law. One way or another, the respondent will not be allowed to rely on the statutory distinction between men and women with respect to retirement ages regarding which it has already been held that this Court views it with disfavor [see e.g. Elhanati [12], s. 25 of Justice Hayut's ruling; the case of Nevo [6], at p. 770; and compare to the comments of Lord Bridge in the James case [31], p. 611 where he rejected the claim that a distinction between men and women with respect to the age for granting an exemption from an entrance fee to a public swimming pool is justified in view of its reliance on the statutory  retirement age. I will further add that neither did I find any substance in the claim that the distinction in this case warrants lenient treatment because of its "temporary" character, given that the degree of the offence caused by discrimination is not derived from its temporary nature, and at all events not exclusively so. Rather, it derives primarily from the message it conveys to the party discriminated against and to his environment regarding the characteristics of that party.  I dwelt upon the negative messages of discrimination of this nature in my comments above, and there is no need to repeat them.

36.          After the opinion of my colleague Justice S. Joubran was placed upon my table and having examined it in depth, I find it appropriate to clarify and to make the following comments.

Based on my final conclusion regarding the interpretation of the Prohibition of Discrimination Law, according to which the Law prohibits in principle any gender-based discrimination, both against men and against women, my colleague concludes that I adopted an approach which is "gender blind".  However, this is not the case. In my opinion I did not adopt any particular model, and I certainly did not adopt the "gender blind" model.  Rather, it is based on a number of different reasons, all of which lead to the conclusion that the applicatory scope of the Prohibition of Discrimination Law was intended to prohibit in principle any kind of gender-based discrimination, whether of men or of women.  Accordingly, among my reasons I clarified that discrimination against men frequently involves a discriminative and stereotypic approach specifically towards women [see sections 25 – 27 of my opinion).   Conclusions of this kind are explicitly expressed in the comments of Justice E. Hayut, in the case of Alhanati [12] and of Prof. Mackinnon, which inter alia I relied upon. As I explained, discrimination against men often perpetuates, specifically, discrimination against women. This being so, there is need for a clear rule in order to realize the purpose of the Law in an effective manner; a rule that can ensure the prevention of discrimination as such, and which obviates the need to examine the roots of the discrimination in each and every case.  As explained in my opinion, this conclusion is also consistent with the language of the Law and the legislative intention in its enactment as indicated in the Explanatory Note of the Draft Bill. The normative approach, according to which discrimination against men is prohibited in the same way as discrimination against women, within the defined scope of the Law, is intended to serve an instrumental need and does not rely on the world view that my colleague ascribes to me.

Nor can I agree with my colleague's determination that the case at hand does not necessitate a decision on the applicatory scope of the principle of equality in those cases in which the victim is the member of a dominant social group – i.e. the group of men, because at all events the offense in this case is mainly against women. I should emphasize that while I agree that the clubhouse policy is also offensive to woman, in the case at hand one cannot ignore the simple fact that the applicant is a man and not a woman and he cannot request a remedy for discrimination that does not offend him. Any other determination would pave the way for claims filed by those who are not directly affected by the discrimination and this would contradict first principles concerning the requirement that the plaintiff must demonstrate personal grounds of claim. My opinion therefore focuses on the offense caused to the applicant, whereas the considerations pertaining to the discriminatory policies against women were adduced, as stated in order to support an interpretation that, in terms of the defined scope of the Law, disqualifies gender-based discrimination as such. 

On the merits too, I feel that a real difficulty attaches to the analogy drawn by my colleague between the manner in which the principle of equality was anchored in the constitutional law, and specifically the manner in which this principle was derived from the right to dignity in Basic Law: Human  Dignity and Liberty, and my colleague's determination that "its uniqueness [of the Prohibition of Discrimination Law – Y.D) lies in its formulation of operative tools placed at the disposal of the victim of discrimination when requesting a remedy from the court."

First, the material is entirely different. The Prohibition of Discrimination Law deals with the relations between the person who offers his asset for the use of the public at large or provides a service to the public at large in a defined area of services, and the consumer public. The constitutional principle of equality, on the other hand, as long interpreted in this Court's case law, is intended to apply in the relations between the individual and government, or quasi-governmental entities. As I explained in my own opinion, the application of the principle of equality in the situation of relations between individuals involves weighty considerations, which do not necessarily exist when the duty of equal treatment devolves on a public authority.

Second, and most importantly – the legislative arrangement in the Prohibition of Discrimination Law is absolutely different from the legislative arrangements that anchor the principle of equality in the public law. In particular, there are striking differences between the arrangement in the Prohibition of Discrimination Law, and the arrangement under Basic Law: Human Dignity and Liberty. Thus, for example, Basic Law: Human Dignity and Liberty did not explicitly anchor the principle of equality, and the principle is derived from the right to dignity, in a manner that also outlines its scope of application [in this context see the comments of Justice Dorner in the Miller case [11], at pp. 131 – 132, where she explains that the right to equality was omitted during the process of enacting Basic Law: Human Dignity and Liberty, and the scope of application of the principle of equality derived from this law will be limited to the those cases in which the violation has an element of humiliation that involves the violation of the right to dignity]. Moreover, the balancing mechanisms established in these legislative acts are entirely different. Hence, whereas Basic Law: Human Dignity and Liberty includes a limitations clause in the framework of which it must be considered whether the violation of a protected right is consistent with the values of the State of Israel, is intended for an appropriate goal, and is proportionate, the Prohibition of Discrimination Law establishes a different, more detailed mechanism, that is anchored in s. 3 (d) of the Law.  According to that section, for example, discrimination will be permitted when the discrimination is necessitated by the essence and the nature of the product or when failure to distinguish will result in product or the service being denied to part of the public, having consideration for the nature of the product. Concededly, in the circumstances I did not find it necessary to address the balances that are established in the Prohibition of Discrimination Law. However, I do not believe that one can draw direct conclusions from the manner in which the principle of equality was interpreted when derived from the right to dignity in the Basic Law: Human Dignity and Liberty, without having given the appropriate weight to the different legislative arrangements. However, inasmuch as the case before us does not raise these issues, I have not found it necessary to rule definitively on the differences between the various legislative acts, and these matters can be left for another time.  

Another point which I found problematic in my colleague's opinion was its determination that the principle of equality and the principle of freedom are on the same level of the hierarchy in the private sphere, and that they must be balanced in cases in which they conflict "in light of a complex perspective of property on the one hand, and of state responsibility for the functioning of the civil sector on the other hand." According to my approach, as expressed in my ruling, the starting principle, which is the underlying basis of private law, is the principle of freedom. Indeed, as my colleague correctly points out the contemporary regulations subject numerous private entities to the norms of equality. Nonetheless, even if the principle of equality in private law is subject to many exceptions that extend from the actions of public bodies acting as private bodies, to the activities of quasi public bodies, and finally in the actions of private bodies that have tremendous significance for the broad public, this does not mean that the principle of equality has the same status as the principle of freedom and that each case should be balanced in the light of its unique circumstances. In private law, the principle of equality should only be applied to cases in which private bodies fulfill public functions or when the public authority functions in the private sphere, and to the extent that the issue concerns entirely private bodies, i.e. such as do not have any public or quasi public standing, the principle of equality should be applied pursuant to explicit legislation. I am aware of the considerable difficulty in distinguishing between the private and public sphere, but this difficulty should not affect the basic rule, which is that in commercial contexts, the principle of freedom is the rule, whereas equality is the exception.  In this context incisive comments were made by Prof. Cohen in her article that was cited in the beginning of my opinion, according to which:

 

The distinction between private and public [for determining the scope of the duty of equality – Y.D.] runs like a silver thread through the considerations. This distinction is difficult to demarcate. A public authority is prohibited from discriminating both in the realm of private and public law. But what about the case of the supplier who operates under a standard contract in the private law, as well as in accordance with a license from the authority, and who serves the public in its entirety?

It seems that it is easier to determine when the obligation of equality is obligatory than to determine when the duty does not apply. Accordingly, in a classically commercial context between two "private" contracting parties the court will be wary of imposing a sweeping duty of equality. Such a duty could well impinge upon the important value of competition, which underlies the principle of freedom of contract [Cohen, Equality versus Freedom of Contract, p. 147].

 

                Furthermore, I believe that despite the differences between myself and my colleague on this matter, one cannot ignore the fact that this question has effectively been ruled upon, when the majority ruled in the further hearing in Beth Jules [10] case that:

The public authority’s duty to conduct itself based on equality and in the absence of discrimination in the private sphere as well does not mean that inequality and discrimination in economic competition, as such, constitute a lack of integrity and good faith.  On the contrary – according to our legal and social conception competition is acceptable, honest, and even desirable. Inequality and discrimination are illegal in a tender of a public authority, because as a public authority it is obligated to serve the public on the basis of equality, and it is forewarned not to abuse its authority when dealing with the less powerful individual. The introduction of the obligatory principle of equality into the principle of good faith – as though its absence violates the principle of good faith – is an attempt to give the concept of good faith a meaning that the legislature never considered, and which has no legal and moral justification. Precisely because the principle of good faith is one of the most important and unique value-based norms in our legal system, expressing the additional soul of this system, we must be wary of conferring it a meaning which is remote from its content and which in itself has no justification (ibid, p. 471-472)

 

These words are certainly applicable to the dispute between my colleague and myself. However, since in the case at hand there is specific legislation and it is not disputed that the principle of equality applies to the respondent, then in this subject too it is not necessary to give a definitive ruling

     Final Word

37.  In closing I again wish to stress the obligation incumbent upon all who engage in providing services to the public to grant equal treatment to both genders in relating to all of the sectors of society (compare to the rulings in HCJ 746/07 Reagan v. Ministry of Transport [19] in paragraphs EE and HH of Justice E. Rubinstein's decision, in section 8 of Justice S.  Joubran's decision, and in section 1 of my decision.  Conduct of this kind will contribute to the elimination of stereotypes and will encourage integration, and in doing so will promote a more equal and just society for all sectors of society.

38.          Having concluded that the Prohibition of Discrimination Law also protects men who suffer from unlawful discrimination, and that in the case at hand our concern is with unlawful discrimination given the failure to prove any relevant difference, I would propose to my colleagues to overrule the decision of the District Court and to rule that the respondent discriminated against the applicant, in contravention of the prohibition of discrimination prescribed in s. 3 of the Prohibition of Discrimination Law, and in a manner that constitutes a civil wrong pursuant to s.5 of the Prohibition of Discrimination Law.

39.          Since the determination of compensation pursuant to s.5 of the Law does not require proof of damage, I would suggest to my colleagues to award the applicant compensation for the sum of NIS 20,000 and NIS 10,000 for court expenses and attorneys fees, for his expenses in all three instances.

                                                                                Judge

 

Justice (Ret.) E.E. Halevi

I agree

 

                                                                                Judge (Ret)

 

Justice S. Joubran

There are two questions before us in this case. The first is of a procedural nature, and concerns the appropriate interpretation of Regulation 11 of the Regulation 11 of the Adjudication of Small Claims (Procedure) Regulations 5737-1976 (hereinafter: the Regulations).The second question is a substantive one, going to the very heart of the Prohibition of Discrimination in Products, Services and Entry into Public Places Law, 5761-2000 (hereinafter – Prohibition of Discrimination Law).

In the opinion of my colleague, Justice Y. Danziger, it was held that Regulation 11 of the Regulations should be interpreted in a manner that authorizes and even obligates the court to dismiss the plaintiff's claims even when the defendant does not attend the hearing, if it finds that the facts described in the statement of claim do not establish a grounds of claim. I concur with this holding of my colleague.

Regarding the application of the Prohibition of Discrimination Law, my colleague held that the Law should be interpreted as applying to any kind of discrimination, irrespective of whether the group is a weak or dominant group in society (s. 11 of the decision of Justice Y. Danziger). In doing so, Justice Y. Danziger endorsed what is known as the "difference blind" model for the purpose of interpreting the Prohibition of Discrimination Law.  While I too believe that the necessary result of this decision must be the acceptance of the applicant's appeal, I wish to take a different path than the path taken by my colleague.

The Applicatory Scope of the Prohibition of Discrimination Law

The application for leave to appeal before us invites the court to interpret the Prohibition of Discrimination Law, in a manner that would prohibit any distinction based on sex, gender, sexual identity etc.   In effect, this interpretation asks the court to formulate the application of the Prohibition of Discrimination Law independently of the general rules that prohibit discrimination, which are based on Basic Law: Human Dignity and Liberty (paragraph 43(a) of the application for leave to appeal).

In my understanding, an examination of the Law and the Explanatory Note does not lead to the conclusion that there is a difference between the constitutional conception of equality in our law and the conception of equality embedded in the Prohibition of Distinction Law.  The interpretation given to a specific law, especially when the law is worded in constitutional language such as in the case before us, should be consistent with the general constitutional framework of Israeli Law.  President (Ret) A. Barak made the following pertinent comments on this matter:

A statute is not a one-time act of a transient legislature operating in a legislative vacuum. A statute is a single link in the legislative chain of a permanent legislature. The statutes taken together create the legal system's legislative project. This project is the environment surrounding every statute. The legislative environment influences the interpretation of the statute […] The assumption should be that legislative harmony should be maintained within the legislative system, so that the interpretation to be given to one statute should "seamlessly blend into the texture of the legislation so that they become a unified, single whole" (Aharon Barak, Interpretation in Law (Part 11),Nevo, 5753, 320 328, my emphasis – S.J).

Clearly, this does not mean that the particular law becomes redundant. The particular law creates a legal framework that reflects the manner deemed appropriate by the legislator to confront a constitutional violation in a given context. Hence, the Prohibition of Assimilation Law structures the operation of the right to equality in the civil realm on two levels – the applicatory scope of the right, and the nature of the remedy granted where the right is violated.

First, the Law determines the applicatory scope of the principle of equality in the business sector. The question of balance in the business sector, between equality on the one hand, and freedom to discriminate on the other hand, is a complex question, which this Court has addressed on a number of occasions in the past (see for example: FH 22/82 Beth Jules Ltd. v. Raviv Moshe and Co.  [10], p. 441. In that sense, the Law reflects the clear legislative intention to prohibit discrimination even when practiced by privately owned institutes that serve the public at large. But note: the Law does not impose a blanket prohibition on discrimination. Rather, the legal conception embedded in the Law is that institutes that serve the public at large cannot be regarded as belonging in full to the private sphere inasmuch as their activity takes place in the public sphere. As such, newspapers, clubhouses, service providers etc, are obligated to operate in a manner that upholds the principle of equality.  The conception that privately owned bodies operating in the public sphere are governed by the human rights discourse is deeply rooted in the Israeli legal system, and finds expression in the numerous obligations imposed on these bodies, such as the Stock Exchange, transport companies etc (see for example CA 3414/93 On v. Diamond Stock Exchange Works Ltd [20], p. 196; CA 294/91 Kehillat Yerushalim Burial Society v. Kestenbaum [21]. From a theoretical perspective too, the Law reflects the understanding that in a reality in which significant parts of the individual’s every day life are affected by civil institutions, a demarcation of the right to equality exclusively  with respect to institutions owned by the State would perpetuate a discriminatory reality. Against this background the Law establishes a particular normative framework that defines the constitutional obligations that apply to the activity of a privately owned business. In that context, the following comments of Justice Zamir are pertinent:

It is a mistake to make a sharp distinction between private property and public property. Not all assets can be classified as either “private apartment” or “public building”. Reality is more complex, featuring shades and variations thereof. It also acknowledges assets that combine foundations of private property mixed with varying concentrations of foundations of public property. For example, how should one define a university campus, a sports stadium, or a supermarket?

Property cannot be sharply divided into public and private property, and the same is true for the law applying to property. Private property, while belonging to the realm of private law, is does not exist outside the sphere of public law.  For example, it is subject to planning and building laws. And, there are categories of private property that are governed by the fundamental principles of public law, as if they were public property.  Indeed, in the law of property and in other areas too there is no sharp distinction between private law and public law. Public law spills over into the private law (On v. Diamond Stock Exchange Works Ltd [20], 203-204)

What emerges from all of this is that in numerous contexts the principle of equality is an integral component of the activity of business bodies in the civil realm, and should not be viewed as an exception to the right of an individual operating in the civil realm, to freedom and to owners' caprice.  The relationship between these two values – when in conflict – should be examined in accordance with the specific normative context, and in light of a complex perspective of property on the one hand, and of state responsibility for the functioning of the civil sector on the other hand (on social values as being a substantive part property, see Hanoch Dagan, Property at a Crossroads (2005) (Ramot, Tel-Aviv University) 27- 65. At all events, in our case, given the existence of the Prohibition of Discrimination Law, consideration of the general balance between these two values is not required for purposes of a decision.

Second, the Law establishes  a practical mechanism that enables the individual victim of discrimination to receive a financial remedy for the harm he incurred.  Section 5 of the Law determines that:

Civil wrong

                5.            (a) An act or an omission in violation of sections 3 and 4 constitutes a civil wrong and the provisions of the Civil Wrongs Ordinance [New Version] shall apply to them, subject to the provisions of this Law

                                (b) In respect of a wrong under this Law the Court may, without proof of damage, adjudge compensation that shall not exceed NS 50,000;

The question of the compensation for a constitutional tort has been the subject of serious and profound debate in legal writing, but has yet to find expression in the case-law of the Court, and it is doubtful whether from an institutional perspective this Court should be the one to formulate the remedies available to victims of constitutional torts (for the institutional advantage of the legislative authority in the formulation of constitutional remedies, see Daphne Barak Erez, Constitutional Torts, Borsi, 5754, 175-178). At all events, in a number of contexts such as violation of privacy and the tort of defamation, the legislators formulated specific arrangements that provide a remedy for the victim of a constitutional tort. This also holds true for the case before us.

The uniqueness of the Prohibition of Discrimination Law is not, therefore, in its creation of a new conception of equality that goes beyond the general conception of equality that applies to constitutional law. Its uniqueness lies rather in its conferral of operative rules to the victim of discrimination seeking a remedy from the court. Justice D. Dorner aptly determined that:

 

I agree with the result reached by the Vice-President. However, in my opinion, the respondent’s right does not derive only from the Equal Opportunities Law, but also derives from the general principle of equality that has, for some time, been a part of our labor law.

 

In my view, the original version of the Equal Opportunities Law reflected the principle of equality but did not establish it. Thus, for instance, in Nevo v.National Labour Court [6], a provision that provided a different retirement age for men and women was disqualified on the basis of the principle of equality. This disqualification was based on the legal position prior to the Equal Retirement Age for Female and Male Employees Law, 5747-1987, which made the retirement age the same for women and men, while preserving the right of women employees to early retirement […]

Similarly, the amending law did not change the existing law concerning equal rights for homosexuals, but merely gave expression to it [7]

(HCJ 721/94 El-Al Israel Airway Ltd v. Danielovitz [6] pp. 778-779, emphasis mine – S.J).

Were my opinion to be accepted, that the concept of equality in the Law should be construed in the light of the general concept of equality in Israeli law, it would not be possible to give a “difference blind” interpretation of equality, as I will presently explain. 

Two Levels of the Right to Equality

As mentioned, my colleague, Justice Y. Danziger endorsed the “difference blind” model of equality in his opinion. According to his approach, the language and the purpose of the law lead to the conclusion that any distinction based on the identity of the individual, as anchored in the Law, is a prohibited distinction. In this context my colleague elaborated on the fact that stereotypic conceptions also exist with respect to the stronger groups in society, and the Law likewise seeks to eliminate them. Furthermore, my colleague opines that the elimination of the stereotypic conceptions will ultimately lead to the elimination of the stereotypic conceptions of the weaker groups of the population. Finally, my colleague’s opinion reiterates first principles, to the effect that affirmative action aimed at promoting substantive equality in society, should not be regarded as discrimination. On the merits, my colleague dwelt on the fact that the respondent failed to prove the existence of factual basis for drawing a distinction between men and women and hence the case is one of discrimination proscribed by law.

It is well known that the court will recognized the existence of discrimination where those who are equal are treated differently. To do this, the court must first determine which equality group to relate to. One way of proving discrimination is to show that two groups that are equal to each other are treated differently. This path was taken by my colleague. The respondent did not prove any basis for its claims that men are more violent or more dangerous and hence failed to discharge the onus imposed on one who seeks to distinguish between a group of men and a group of women.

In my view, the discrimination tainting the respondent's policy is more profound. This kind discrimination arises where the categorization per se reflects a discriminatory point of departure. This point of departure assumes homogeneity between the male and female members of each category, even in the absence of any reason for assuming such homogeneity.  The deconstruction of the point of departure whereby the categories are "natural" exposes the substantive question pertaining to the manner in which the categories are formulated. In this way, feminist researchers demonstrated how "objective" science that identifies biological differences between men and women is actually biased science that assumes that which it seeks to prove (see Sandra G. Harding, Whose science? Whose knowledge? Thinking from Women's Lives, Cornell U. Press. 1991). Similar critiques have been made regarding the characterization of a group in accordance with its sexual inclination (see inter alia, Michel Foucault, The History of Sexuality: The Will to Knowledge, and in the Israeli context see Hedi Viterbo,The Crisis of Heterosexuality: The Construction of Sexual Identities in the Israeli Defamation Law" Tel-Aviv Law Review 33 (2010)  To be precise -  this does not mean that categories are meaningless in an individual or social context. The necessarily artificial nature of any particular category does not lead to the conclusion that these categories are of no significance in the lives of individuals in a society. Individuals are created and world views are formulated in the light of these social categories or in opposition to them.  Simone de Beauvoir's famous statement "One is not born, but becomes a woman. No biological, psychological, or economic fate determines the figure that the human female presents in society: it is civilization as a whole that produces this creature, intermediate between, male and eunuch, which is described as feminine" (The Second Sex, vol. 2, p. – emphasis mine S.J.) does not mean that each person is free to choose any position on the gender continuum.  Rather, its meaning is only that the manner in which the gender identity is conceived is artificial. This being the case, we must be cognizant of the manner in which we establish societal identities and conceptions. In this context, the human rights discourse, and specifically of the right to human dignity and equality is not only meaningful on the level of examination of the equality between groups, but on a deeper level too, relating to the manner in which groups are constituted in a society.  A situation in which a particular group is characterized by homogeneity, so that a negative value is ascribed to each member of the group (even if only statistically) is one that does not respect the individual and which violates the right to equality of the individuals of the group. Regarding this the scholar Orit Kamir made the following valuable comment:        

                "This paper shows that both the equality of liberty (negative) and the Aristotelian formula of equality, are conceptions that are socially conservative; they do not promote – nor even allow – a serious critique of the current societal reality, or the exposure of the deep categories of discrimination on which it based, and which it both establishes and perpetuates.  Both of them perpetuate the division of resources and power in the society and only enable the identification and the rectification of mistakes and domestic injustices in the framework of the governing status quo which is taken for granted.

    It should be noted that this conception has also struck roots in our legal system. Hence in the Abu Hanna [22] case, which discussed the propriety of considering statistical data concerning the earning of various population groups, in determining compensation for a minor's loss of her earning capacity, Deputy President E. Rivlin, held that:

The use of statistical data relies on gender, racial or ethnic affiliation of the victim, giving effect to the resource allocation practiced in a society. It weighs up the past but does not reflect a reality that anticipates the future. It is not normatively appropriate (C.A. 10064/02 "Migdal" Insurance Company Ltd v. Abu Hana [22].

    Obviously, this does not mean that this kind of distinction will be disqualified in each and every case. A distinction between groups based on statistical characteristics may be recognized as a permitted distinction, just as a violation of equality may be found to be permitted. In these cases the offending party will have to prove not only that the different treatment of equal groups complied with the requirements of statute and case law, but also that the actual division into groups and their perception as a relevant reference point complies with these requirements.

   

 

Identification of the Equality Group

In this appeal the respondent's attorney claims that men under the age of 26 are not a homogenous group featuring a defined interest that entitles it to protection under the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places, 5761-2000. His approach is that the appropriate interpretation of the Law leads to the conclusion that the Law's purpose is to protect weaker populations and not to prevent "arbitrary" discrimination against individuals who belong to socially dominant groups.

The respondent's approach is therefore that the point of departure for the discussion in this case is the harm caused to men by reason of the distinction regarding the entry to the clubhouses.  The question of the application of the Law to the majority population is a complex one.  Clearly, any person, even if he belongs to the dominant population of the society, will feel discomfort if he merits treatment that differs from others purely by future of his being part of the dominant population. This is the logic that was the foundation of a long series of decisions from all around the world that prohibited racial preference for blacks in the universities and in professional tests, for women's only parties, and others. This is also the basis of the opinion of my learned colleague, Justice Y. Danziger. All the same, this approach, which is blind to origin, gender etc, has merited a variety of approaches in legal writing.  For example, the scholar Catherine Mackinnon pointed out that the combination of a reality not based on equality and the disregard of basic conditions of inequality in the legal system is a combination that perpetuates the power based relationships and the gender subordination:

I will also concede that there are many differences between women and men. I mean, can you imagine elevating one half of a population and denigrating the other half and producing a population in which everyone is the same? What the sameness standard fails to notice is that men’s differences from women are equal to women’s differences from men. There is an equality there. Yet the sexes are not socially equal. The difference approach misses the fact that hierarchy of power produces real as well as fantasized differ- ences, differences that are also inequalities. What is missing in the difference approach is what Aristotle missed in his empiricist notion that equality means treating likes alike and unlikes unlike, and nobody has questioned it since. Why should you have to be the same as a man to get what a man gets simply because he is one? (Catherine Mckinnon, "Difference and Dominance" in Legal Feminism in Theory and Practice, Resling Pub. 2005 (Eds. Daphne Barak-Erez, translated into Hebrew - Idit Shorer, pp. 29-30)

And further on:

If sameness is your standard for equality, if my critique of hierarchy looks like a request for special protection in disguise. It’s not. It envisions a change that would make possible a simple equal chance for the first time. To define the reality of sex as difference and the warrant of equality as sameness is wrong on both counts. Sex, in nature, is not a bipolarity; it is a continuum. In society it is made into a bipolarity. Once this is done, to require that one be the same as those who set the standard—those which one is already socially defined as different from— simply means that sex equality is conceptually designed never to be achieved.[...] Doctrinally speaking, the deepest problems of sex inequality will not find women “similarly situated” to men. Far less will practices of sex inequality require that acts be intentionally discriminatory. All that is required is that the status quo be maintained. As a strategy for maintaining social power first structure reality unequally, then require that entitlement to alter it be grounded on a lack of distinction in situation; first structure perception so that different equals inferior, then require that discrimination be activated by evil minds who know they are treating equals as less (ibid, p.34, emphasis mine – S.J.)

     For a survey that demonstrates how the laws of the prohibition of discrimination actually operate in the U.S.A. to maintain the societal status quo and provide a remedy primarily to the powerful groups of society, see inter alia: Ruth Colker, Whores, Fags, Dumb-Ass Women, Surly Black and Competent Heterosexual White Men: The Sexual and Racial Morality Underlying Anti-Discrimination Doctrine, 7 Yale J.L. & Feminism 195 (1995); Janice C. Janice C. Title VII and Reverse Discrimination: The Prima Facie Case, 31 Ind. L. Rev. 413 (1998).

This Court too recognized that there are places in which a minority group can exclude members of the majority group without that exclusion being viewed as prohibited discrimination (HCJ 528/88 Avitan v. Israel Lands Administration [23] .The qeustion arose in particularly sharp terms in  the Movement for Quality of Government  case (HCJ 6427/02 Movement for Quality of Government v. Knesset [24] (hereinafter: Movement for Quality of Government case). That case concerned the constitutionality of the Deferral of Military Service for Yeshiva Students Law, 5762-2002 and in an expanded panel of seven justices a profound dispute emerged regarding precisely this issue.  Justice A. Grunis handed down a ruling that rejected the applicability of the principle of equality to the majority group with respect to the judicial review of legislation, ruling that

In my view there is no grounds  for this court to invalidate the law. The reason for this is that there is no justification for this court to exercise judicial review of the law, which is  a law that grants a privilege, and where the majority claims a violation of equality. In other words when a majority acts by democratic means and adopts a law which confers preference to a minority, the court should not become the patron of the majority. A ruling that the act of the majority is illegitimate on the grounds of inequality constitutes an act of patronage that has no place in circumstances such as these (para. 1 of Justice A. Grunis’ opinion)

Justice Cheshin, on the other hand, ruled that in his view the principle of equality should be applied to all of the individuals in society, and not only to minority groups:

The principle of equality is not alien to us. We encounter it quite frequently except that always – to be precise – almost always – it arises in the context of human rights. Equality however (justice, fairness) is not confined to the definitions of human rights; it is also an operative principle in the realm of government and society. These two conceptions of equality – equality in the realm of the individual and equality in the general public realm – are two sides of the same coin.  A society that has chosen a democratic regime to direct its conventions and lifestyle must at all times subscribe to the principle of equality as the principle that regulates relatons between the state, the society, and every individual of that society (ibid, para. 12 of Justice M.Cheshin's opinion, emphasis mine – S.J.) 

The approach taken by President A. Barak, concurred with by the majority of the justices on the panel, attempted to formulate an interim  model, which extended the application of equality to any case involving a violation of individual autonomy, but did not frame a broad rule that would apply the right to equality to all distinctions between individuals in a society. The President ruled as follows:

The interim model does not limit human digntity exclusively to matters of degradation and humiliation, but neither does it extend it to all human rights. Accordingly, human dignity includes those aspects of human dignity that in various constitutions find expression in the form of specific human rights, but which in our view are characterized by their tight and substantive connection to human dignity (whether to its nucleus or its periphery). According to our  approach the definition of human dignity would also include discrimination that does not involve humiliation, provided that it is tightly related to human dignity in the sense of expressing the autonomy of individual will, free choice and freedom of action, and other similar aspects of human dignity as a constitutional right" (para. 38 of President Barak's opinion).

                Regarding the approach taken by Justice A.Grunis he wrote the following:

According to the approach of my colleague, Justice A. Grunis, one must distinguish between protection of the majority and protection of the minority; one must distinguish a between protection of the substance of the democracy and protection of its decision making process. My colleague does not explain the parameters for these distinctions. How are we to distinguish between the majority and the minority and how are we to distinguish between substance and process? For example, in a multiparty parliamentary regime, based on coalitions – who is the majority and who is the minority? A small party that holds the balance of power in the coalition – do its supporters belong to the majority or the minority?  Is a violation of the freedom of speech a violation of the substance of democracy, or of a democratic process? Does strict adherence to equality in the right to elect and to be elected protect the substantive values of democracy or perhaps it protects the democratic process?" (para. 76 of President A. Barak's opinion).

The question of the border between the legitimate exclusion of members of the majority group by the minority group, and exclusion which constitutes discrimination, does not admit of a simple solution.  Clearly, both cases should be assessed in a different manner in different circumstances. Hence, a case in which the majority is discriminated against by force of Knesset legislation, such as in the  Movement for Quality of Government case [24] differs from a case in which the majority is discriminated against by privately owned businesses (in this context, see also Justice M Cheshin’s decision in HCJ 3751/03   Ilan v. Tel Aviv Municipality [25]  at p. 828’; compare also to: [26]  HCJ  4124/00 Arnon Yekutieli z”l v. Minister of Religions (not reported, 14.6.2010 and references).

Even so, in my view, guidelines may be drawn for examining this question as it relates to the discrimination of an individual belonging to a dominant social group, by civil entities. The court must weigh up the scope of the infringement on the ability of the weaker group of maintaining its culture and lifestyle if the exclusion is prohibited. As opposed to this, the court must examine the alternatives available to the dominant population and the harm sustained by members of the majority group by reason of the exclusion. At all events, as I will presently explain, even though the overt harm in our case is caused to men, the clubhouse’s policy involves harm of a more fundamental nature to women. As such, I am not required to decide the question of the applicatory scope of the principle of equality in cases in which the victim is the member of a dominant social group, and my recommendation to my colleagues is to leave the matter pending.

The Respondent's Policy as a Policy that Discriminates Against Women

In another case the Jerusalem Magistrates Court considered the question of whether granting a discount for entry into a clubhouse is permitted affirmative action (SC (Jer) 3043/09 Givon v. Timor (not reported, 5.5.2010). The owners of the clubhouse claimed that the discount granted to women us actually of benefit to men, since men generally pay for their partners and alternatively they claimed that the clubhouse's policy should be viewed as affirmative action.  In his decision, Judge A. Tenenbaum rules that granting a discount to women at the entry to the clubhouse (in that case under the slogan of "Women free and Sushi free") is illegal. The reason is not because it harms the man, but rather because a policy of this kind both assumes and perpetuates the image of the woman as the weaker party, lacking economic capacity, and thus generates a distinction based on stereotypic presumptions.

The question of a distinction between man and women, and whether it is by discriminatory by definition, came before this Court in the context of separation on public transport (HCJ 746/07 Naomi Reagan v. Ministry of Transport [27]. Two values competed for preference in that case – the freedom of religion and conscience of the populations who preferred segregation of sexes in public transport and the right of woman to equality and dignity. The court ruled unanimously, based on the policy of the Ministry of Transport, that forced segregation of men or women who do not want it is prohibited. The question remaining for the court's resolution was whether to allow segregation of the sexes on a voluntary basis and how to ensure that the segregation was indeed voluntary and not coerced.  Against this background the court established a trial period to examine the ability of the Transport Ministry to operate an exclusively voluntary segregation system. It added that should the reality on the ground reflect a reality of forced segregation, this would be weighty consideration for the disqualification of the practice in its entirety (para. 1 in the decision of Justice Y. Danziger).

In the case before us, the respondent wants to preserve a policy of gender-based distinction, forced upon all those who enter his gates, regardless of whether they desire it or not. The respondent seeks to maintain a distinction that lacks anchorage in cultural or religious values, nor does it seek the aegis of the right to cultural autonomy. In fact, even though the respondent aspires to present his policy as motivated by the desire to create a place with a particular atmosphere, the particular atmosphere to which the respondent aspires emits a pungent odor of a gender-based hierarchy. Presumably, the age-based distinction between men and women creates a reality in the clubhouse that is structured on the basis of a stronger and weaker party. The man, who is older and hence, on the average, has the most education, the most money and the mental and emotional maturity that accompany physical maturity, stands in contrast to the woman whose principal relevant feature is the fact of her being younger. This structure reflects a customary social code governing men-women relationships, one which is frequently reinforced by images generated in the theatre, in literature and other forums that perpetuate built in relationships based on power. Even more precisely, whereas various cultural products generate the preservation of the gender-based hierarchy by presenting it as "natural", the respondent forcefully ensures its preservation by obliging those entering the gates of the clubhouse to act in accordance with this patriarchal framework.  Clearly, this is not an exceptional or rare phenomenon. The respondent's  policy is practiced openly in many places of entertainment. An equally large number of entertainment venues adopt a practice of selection among those coming into its gates, granting entry to women who are younger than the "formal" minimal age for visitors and by doing so maintain a gender-based distinction even without its overt trappings.

The policy of distinction practiced by the respondent is implicitly based on essentialist assumptions concerning the connection between sex and gender. According to this approach, men tend to be more violent that women of the same age. These notions are the reverse side of the stereotypic notion that views women as delicate and fragile. Even if the respondent adduced evidence in support of its claims (and the respondent did not bring any support of this kind), it would not have justified the discrimination. Data of this kind could only have justified a situation whereby a greater number of men of  certain ages were denied entry in view of their personal behavior and the fear of violent behavior on their part.  Just as the clubhouse conducts a check of man above 26 and of women above age 24, when entering the clubhouse, it could likewise conduct a check of men between age 24 and age 26.

In this context is bears note that the conclusion of this analysis would not change even against the background of the claim that many women prefer the said arrangement. One of the fathers of liberalism, J.S. Mill points out in his book The Subjugation of Women,  that it is impossible to assess the existence of autonomy and free choice in an environment of gender repression.  In the preface to the Hebrew edition, the scholars Yofi Tirosh and Zohan Kochabi wrote the following:

He (Mill – S.J.) warns men not to delude themselves that they perfectly understand women because they have had romantic relations with them. The romantic and sexual interaction confers very specific roles to women, from which one may learn something about women's femininity but not much about their humanity […] hence the yearning that men should appropriately develop is the yearning for social conditions that enable them to encounter women as people, absent the barriers and limitations of power relations.

 

This understanding is to a large degree pertinent for our times too. Today too little girls, young lasses and women repeatedly receive the message that they are measured and evaluated by virtue of their body and beauty, their success in getting married and maternity, along with their attentiveness, consideration and support for those who surround them, while giving up on their own desires to accommodate the desires of others. Today too we read the columns that advise the woman "to give" even when she is not interested, or that recommend that the learn to dance like a stripper in order to maintain the vitality of sexual relations with her spouse. In other words, we assume that had Mill been writing today he would have inveighed against excessive enthusiasm about  idea such as freedom of occupation in contexts such women engaged in prostitution, or simplistic reliance on the notion of respecting women's autonomy when attempting to understand, explain and struggle  against the physical, mental and financial damage that women do themselves by way of operations and diets. The conclusion is that there is a need to focus on the creation and reinforcement of alternative life paths for women, through which they can earn evaluation, recognition and satisfaction even without being physically captivating or having to offer their sexuality as a consumer product (John  Stewart Mill: "Subjugation of Women"- Translation [into Hebrew] – Shunamit Lifshitz, Resling, 2009, pp. 23 – 24).

               

These comments are relevant for our purposes too. We still live in a social structure that repeatedly conveys a message to women that their central power and the basis of their definition is their external appearance. Our discourse still abounds with images that define the woman based on her age. In the framework of that discourse real equality is not possible. This kind of real equality will be attained on the day that we succeed, as a society and as individuals, in learning to recognize the humanity of every male or female that we meet, irrespective of biological gender, and without interspersing the existing hierarchy among these categories.

Against this background the policy of discrimination according to which the respondent operates cannot continue, not because of the harm caused to men, but rather because of the grave harm embedded the respondent's policy, which is the harm to women.

Epilogue

The phenomenon of selection at the entrances to clubhouses based on prohibited criteria such as gender, origin, and race are first and foremost evidence that discrimination has yet to be eliminated from our country.  The very existence of men and women selectors whose entire role is to screen out those coming for entertainment, and to choose those who are considered "suitable", based for the most part on stereotypes (in contrast to security guards who prevent entry exclusively on the basis of fear of obstreperousness) is a disturbing phenomenon, and I am doubtful as to whether any justification can be found for it, except for in rare cases.  The legislators were aware of this phenomenon in their deliberations over the law at the time of its enactment.  Hence, M.K. Eli Ben-Menachem explained that: "Clubhouse owners, honored chairman, prove that not only do they not give a damn about human morality, which is basic Jewish morality – they continue along the path of discrimination, racism and hatred of the other, intentionally disregarding the Israel lawbook  and continuing the practice of selection with increasing intensity (debate on 10 November 2004, on Draft Bill of Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law, 5761-2000, Draft Bill P/4 – emphasis mine S.J).  The ubiquity of this phenomenon and the willingness of countless men and women to blithely ignore it, compels the court to take measures to realize the purpose of the Law in a manner that creates real deterrence against discrimination.

This was the background for the enactment of the Prohibition of Discrimination Law. This law is a central law in a complex and ramified legislative network that has one goal – the promotion of substantive equality in  the State of Israel.  Naturally, being tender in years, the Law has yet to merit a comprehensive and sufficiently serious discussion; indeed, this is the first hearing in this Court that focuses on the Law as the central grounds of the pleadings. As mentioned, the significance of this Law does not lies in the establishment of a new standard of equality, but rather in the  formulation of a practical framework that provides a practical remedy to the victim of discrimination. Once the legislators have had their say it is incumbent upon the court to take measures to realize the legislative purpose in the optimal sense. Obviously, many questions pertaining to the application of the Law have yet to be properly answered and there are disputes between the procedural forums concerning the manner of interpreting the Law. These questions do not necessitate an answer for purposes of our case and will certainly be clarified by this court at some future time.

 

Judge

               

 

It was decided in accordance with the judgment of Justice Y. Danziger