Constitutional Law

[1]HCJ 168/91 Marcus v. Minister of Defense, IsrSC 45(1) 467

Abstract:

Facts: The petitioner, who had been growing a beard for many years, requested to exchange his protective kit and gas mask, which had been provided to him before the 1991 Gulf War, for a new kit, designed for those with beards. In order to obtain the special kit, the Civil Defense Authority required the petitioner to sign a statement that he grew a beard for religious reasons, in accordance with the applicable Civil Defense Regulations. The petitioner, who was not a religious man, refused to sign the statement. The petitioner appealed to the Supreme Court, arguing that the regulations were unconstitutional, as they discriminated between those who grew beards for religious reasons, and those who grew beards for reasons unrelated to religious conviction.

Held: The Court held that the right to grow a beard forms a part of one's human dignity, regardless of whether that beard is grown for religious reasons. As with any other right that forms a part of human dignity, the right to grow a beard is protected under the Basic Law: Human Dignity and Liberty. As such, the right can only be infringed in accordance with the conditions set out by the limitations clause of the Basic Law—that the infringement be expressly set out in a statute, that it accord with the values of Israel as a Jewish and democratic state, and that it not infringe the protected right more than necessary. The Court held that the applicable regulation did not meet these conditions and, as such, was unconstitutional.

Petition granted.

Voting Justices:

Mazza, Eliahu

Primary Author

majority opinion

Tal, Tzevi Eliyahu

Author

concurrence

Strasberg-Cohen, Tova

Author

concurrence

Full text of the opinion:

HCJ 205/94

Akiva Nof

The State of Israel – The Ministry of Defense

The Supreme Court Sitting as the High Court of Justice

[19 January 1997]

Before Justices E. Mazza, T. Strasberg-Cohen, T. E. Tal

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

Petition granted.

Legislation Cited:

Basic Law: Human Dignity and Liberty

Civil Defense Regulations (Protective Kits)-1990

Civil Defense Regulations-1951

Israeli Supreme Court Cases Cited:

[2]HCJ 4919/90 Miller v. Minister of Defense, IsrSC 45(2) 293

[3]AAP 4463/94 Golan v. Prison Authority, IsrSC 50(4) 136

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

[5]FH 10/96 Boronovski v. The Chief Rabbinate of Israel, IsrSC 25(1) 7

[6]HCJ 4541/94 Alice Miller v. Minister of Defense, IsrSC 49(4) 94

[7]HCJ 453, 454/94 Israel Women's Network v. Government of Israel, IsrSC 48(5) 501

[8]HCJ 4298/93 Jabarin v. Minister of Education, IsrSC 48(5) 199

[9]HCJ 156/75 Deka v. Minister of Transportation, IsrSC 30(2) 94

[10]HCJ 389/80 Dapei Zahav v. Broadcasting Authority, IsrSC 35(1) 421

[11]HCJ 4769/90 Zidan v. Minister of Labour and Welfare, IsrSC 47(2)147

[12]HCJ 327/92 Israel Fruit Growers' Association v. Government of Israel, IsrSC 47(3) 387

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

United States Cases Cited:

[14]Griswold v. Connecticut, 381 U.S. 479 (1965)

[15]Breen v. Kahl, 419 F.2d 1034 (1969)

[16]Farrell v. Smith, 310 F. Supp. 732 (1970)

[17]Tinker v. Des Moines Independent School District, 93 U.S. 503 (1969)

[18]Griffin v. Tatum, 300 F. Supp. 60 (1969)

[19]Richards v. Thurston, 304 F. Supp. 449 (1969)

[20]Westley v. Rossi, 305 F. Supp. 706 (1969)

[21]Carter v. Hodges, 317 F. Supp. 89 (1970)

Jewish Law Sources Cited:

[22]Leviticus 19:27

[23]Shulchan Aruch, Yoreh Deah, Laws of Shaving

[24]11 Talmudic Encyclopedia 125-26 (S. Zevin ed. 1965)

[25]Babylonian Talmud, Tractate Baba Metzia, 84a

For the petitioner—Petitioner argued pro se.

For the respondent—M. Blass (Office of the State Attorney)

JUDGMENT

Justice E. Mazza

This petition, for which an order nisi was granted, involves a request for a special gas mask kit, designed especially for bearded persons. The petition further calls for Regulation 4B of the Civil Defense Regulations (Protective Kits)-1990 [hereinafter the Regulations], to be struck down, as they discriminate against the petitioner—in comparison to other bearded persons—by denying him the unconditional right to receive such a special protective kit. The petition was submitted and oral arguments were conducted in 1994. Although I unfortunately delayed handing down my decision for far longer than desirable, the petition, which was relevant upon its submission, remains (unfortunately) so relevant today.

The Facts

2. The petitioner has a beard, which, according to his declaration, he has worn for decades. The petitioner was supplied with a protective kit immediately prior to the 1991 Gulf War. At the beginning of 1994, the petitioner responded to a call directed towards all citizens of Israel to replace their old protective kits. Intending to replace the kit in his possession with a new one, the petitioner made his way to the Civil Defense Authority. As a bearded man, the petitioner expected to receive a special kit, which includes a special gas mask intended for bearded men.

Upon his arrival, the station’s commander explained to the petitioner that, under Regulation 4B of the Regulations, receipt of the special kit was contingent upon his signing a “bearded persons’ declaration," as proof of the fact that “he wore a beard for religious reasons." The petitioner was then handed the declaration, with the following wording to examine and sign, if he wished to receive the special kit:

Declaration of a Bearded Person

I, the undersigned ... hereby declare as follows:

1. Religious beliefs prevent me from shaving off my beard.

2. If and when, for any reason, I remove my beard, I agree to immediately return the protective kit designed especially for bearded persons that I have received.

3. This declaration serves as evidence of my entitlement to a protective kit under the Civil Defense Regulations (Protective Kits)-1990.

4. I undertake to keep the special protective kit in my possession and not to transfer it to any other person.

As a secular person, who wore a full beard for reasons unrelated to any religious conviction, the petitioner was unable to sign the said declaration. Having refused to sign, he was obliged to make do with a regular protective kit, not designed to meet his needs, and which did not offer him the same protection provided to users of the special kit, which was designed for bearded persons.

The Regulations

3. The wording of the declaration, which the petitioner was requested to sign, appears in Schedule 7 to the Regulations, and the obligation to make the declaration is set out by Regulation 4B. Regulation 4B, as well as Schedule 7, were added to the Regulations in the form of an amendment in 1993. See Civil Protection Regulations (Protective Kits) (Amendment)-1993. The Regulation stipulates as follows:

4B – Kits for Bearded Persons

(a) Where the Authority believes that, due to the wearing of a beard, a protective kit will not produce reliable results, the Authority shall proceed in the following manner:

(1) If the person proves that he wears a beard for religious reasons, he shall be issued a protective kit, specifically designed for bearded persons;

(2) Absent proof of the like stated in paragraph (1), the person shall be issued a protective kit according to the estimated size and shape of his face, until it becomes possible to fit him with a standard protective kit.

(b) The aforementioned in sub-regulation (a)(1) shall be proved by submission of an affidavit in accordance with Schedule 7.

4. For a proper understanding of the circumstances leading to the enactment of Regulation 4B, we must go back to the end of 1990, immediately prior to the Gulf War. As part of the defensive preparations for a potential missile attack with chemical warheads, it was decided to supply the civilian population with personal protective kits against chemical warfare. Initially, these protective kits were allocated exclusively to Israeli citizens, but, following the ruling of this Court in HCJ 168/91 Marcus v. Minister of Defense ‎[1], the kits were also issued to residents of the administered territories in the West Bank and Gaza [hereinafter the administered territories], who were not Israeli citizens.

The principal component of the protective kit is the gas mask. The wearing of a gas mask is intended to provide the wearer with maximum protection against the penetration of chemical substances into the respiratory tract. For the mask to be effective, the wearer must breathe exclusively through the filter. Thus, for the mask to offer effective protection, care must be taken to ensure the mask is hermetically sealed over the face. The standard mask, which is suitable for the majority of the population, is not appropriate for the specific needs of certain segments of the population, such as infants, children, the sick and persons with other disabilities.

It soon became clear that bearded men also had difficulty wearing the standard mask. The beard, particularly long beards, apparently prevented hermetic sealing, and rendered the mask ineffective. This difficulty can be overcome with the assistance of an “air pump," a device that contains a miniature motor, which, when operated, blows a stream of air into the cavity of the mask, at a pressure slightly higher than atmospheric pressure. The constant stream of air released from the mask prevents the penetration of polluted air into the mask. Significantly, the price of a mask with an air pump is more than twice the price of the standard mask.

Due to budgetary constraints, the State initially refrained from purchasing special masks for bearded men. Immediately prior to the Gulf War, however, the demand for special masks began to increase, especially among the religious population where the percentage of bearded men is particularly high. Initially, the authorities, invoking budgetary considerations, rejected these requests. This refusal led to the petition in HCJ 4919/90 Miller v. Minister of Defense ‎[2]. There, in the affidavit submitted by the head of the Civil Defense Authority to the Court, prior to oral arguments, it became apparent that a practical, albeit partial, solution had been found for the special problems of those with beards. On the basis of the affidavit and the facts, the Court did not consider it necessary to intervene, and the petition was dismissed.

5. At the end of 1993, in preparation for replacing the protective kits, and having learned the lessons of Miller ‎[2], the Minister of Defense decided to enact regulations governing special kits with air pumps. Drawing his authority from sections 22I and 22K of the Civil Defense Regulations-1951, and with the approval of the Foreign Affairs and Defense Committee of the Knesset, the Minister of Defense enacted the Regulations in 1994, adding three central provisions: Regulation 4A stipulated that a person who, after being measured at a “measuring station," was found to be unsuitable for a normal kit, due to the form or size of his face, was entitled to receive an air pump. Regulation 4B codified the matter of bearded persons’ entitlement to special kits. Finally, Regulation 4C codified the entitlement to special kits for those who needed them due to health reasons. Relevant to this petition is the enactment of Regulation 4B and the declaration appearing in Schedule 7 to it, both of which we have already quoted verbatim.

The Petition

6. In his petition, the petitioner contests both the legality and the reasonableness of Regulation 4B. In defining the entitlement to receive special protective kits, the Regulation distinguishes between persons growing a beard for religious reasons, and those growing beards for other reasons. The petitioner claims that this distinction has no legal basis and that the Regulation blatantly and arbitrarily discriminates with respect to residents with identical needs.

Furthermore, the petitioner argues that the regulations implicitly presume that secular men with beards, unlike their religious counterparts, can be coerced, in anticipation of imminent danger, into an unwanted change in their appearance. This presumption, he contends, is arbitrary. In its current form, the Regulation is unlawfully discriminatory and, in any event, should be struck down, as it is blatantly unreasonable. The petitioner is not unaware of the increased financial burden of making these special protective kits available to secular wearers. However, he claims that he would have refrained from filing the petition had all men with beards—irrespective of their religious convictions—been required to pay the difference between the cost of the regular kit and that of the special kit, and that only those who declare themselves financially unable to pay this fee be exempted from paying.

7. In its responding affidavit, the State denies the petitioner’s claim of discrimination. The State contends that, in principle, the entire population should make due with the regular protective kit. Nevertheless, the Regulations do recognize the special needs of three sectors of the population, one of these being men prevented from removing their beard by religious reasons. The State further claims that the distinction drawn between those growing beards for religious reasons and those growing beards for other reasons is of practical necessity, as the price of a special kit is two and a half times greater than that of an ordinary kit. As such, budgetary considerations prevent the State from providing special kits on demand.

In light of the above, the State asserts that it was reasonable to limit the supply of special kits to those specific sectors of the population who truly need them and not those who, for reasons of aesthetics or convenience, choose not to shave. The existence of specific personal preferences does not warrant the expenditure of additional millions of the State budget, which are needed to finance more important and pressing needs. This distinction rests on the State’s assumption that, in a situation of war and imminent threat to life, anyone who grows a beard for reasons of aesthetics or convenience will, without hesitation, “sacrifice” his beard in order to ensure his personal security. This may not be the case where the beard is being grown for religious reasons. Under those circumstances, a religious beard-wearer risks missing the opportunity to act quickly enough to save himself if, by virtue of his religious beliefs, he hesitates to shave.

The State contends that the distinction it makes between religious and other beard wearers is well-founded, and based on the Miller [2] decision. There, this Court recognized that “growing a beard, for Jews who are accustomed to it, is part of their religious way of life. It is well known that many worthy Jews adhered to this custom since early times, even in times of suffering and oppression,” Id. at 295, and the Court urged the State to “make every possible effort to promptly procure and allocate kits suitable for that particular sector of the public.” Id. at 296.

Beards and Human Dignity

8. In my opinion, a person’s right to grow a beard is a part of his human dignity, irrespective of his beliefs or religious convictions. Indeed, a person’s right to dignity includes the right to fashion and maintain his appearance. Clearly, a beard often forms part of one's self-image and very identity, especially to one who has worn it for years.

As stated above, the State claims that, for the secular, growing a beard most likely only serves needs of convenience or aesthetics. Indeed, experience shows that, in many cases, especially amongst the younger generation, the decision to grow a beard is the product of passing phases or in anticipation of a certain activity, such as enlistment into the army or a backpacking tour abroad. This is not the case with regard to those who grow their beards continually over a long period of time, and not for the purpose of experimenting with fashion trends or for practical reasons of convenience during a specific period of their lives. With respect to the latter categories, the beard is grown for the purpose of fashioning one's personality and appearance. In so doing, a man realizes his personal and autonomous will; his right to do so is part of his human dignity.

Indeed, the psychologist’s report submitted to us by the petitioner stated as follows: “psychologically speaking, a beard is a part of a person’s self-image, even when it is not grown for religious reasons." Furthermore, the report states, “the beard is experienced as an integral part of the person’s face, as part of the image that he presents to others, and which influences his relationships with others." The State did not contest these conclusions. Indeed, they reflect generally known facts, based on life experience. Clearly, the beard of a man who has grown one for many years inevitably becomes an integral part, not only of his self-image, but also of his very identity. In this sense, there is no difference between someone who grows a beard for religious reasons, and someone who does so for other reasons. The beard becomes a part of one's identity over time, irrespective of whether the individual in question is religious or secular. It becomes the way he sees himself and is the way he is perceived by his peers. In fact, it is well known that a full beard is not only part of the recognized image of many rabbis, but is also associated with other famous personalities, such as Benjamin Zeev Herzl and Yosef Chaim Brenner, whose beards were completely unrelated to religious convictions.

9. The right to grow and maintain a beard, as an attribute of one’s self-image and identity, forms part of a person’s human dignity in the most fundamental sense. Attempts will probably be made to examine whether this right can be classified as constituting a part of various specific basic rights, such as freedom of speech, the right to integrity of the body, or the right to privacy. Personally, I see no reason for the Court to deal with the issue. It will be noted that the United States courts, which addressed the issue in an entirely different context, chose to avoid determining the precise, normative classification of this right. There, the matter arose in the late sixties, against the backdrop of a fashion trend of growing hair long, a style popular among the youth. This fashion trend contravened the regulations of various educational institutions, which required students to cut their hair. In dealing with numerous petitions, the American courts recognized that growing a beard or long hair is an expression of personal freedom, with which, in the absence of any compelling legal justification, the authorities had no right to interfere. However, following Griswold v. Connecticut, 381 U.S. 479 (1965) ‎[14], which interpreted the Ninth Amendment to the United States Constitution, the courts did not find it necessary to rule on “whether this right is designated within the penumbras of the First Amendment freedom of speech," Breen v. Kahl, 419 F.2d 1034 (1969) ‎[15], or whether it was “encompassed within the Ninth Amendment as an additional fundamental right which exists alongside those fundamental rights specifically mentioned in the first eight constitutional amendments." Id. Either way, “the right to wear one’s hair at any length and in any desired manner is an ingredient of personal freedom, protected by the United States Constitution.” Id. The same applied to the right to grow a beard:

This Court also accepts the view that the right to grow a beard or to wear one’s hair at any length is an aspect of personal liberty protected by the United States Constitution.

See Farrell v. Smith, 310 F. Supp 732, 736 (1970) ‎[16].

Similarly, in Tinker v. Des Moines Independent School District, 93 U.S. 503 (1969) ‎[17], the United States Supreme Court saw no need to rule on whether the said right constitutes a part of freedom of speech in its non-verbal sense (symbolic speech). There, it was decided that students who wore black bands within the precincts of the school, as a means of protesting U.S. involvement in Vietnam, were entitled to do so as part of their constitutional right to the freedom of expression. The Court was satisfied with simply ruling that the right existed and that it warranted protection against the State:

It is sufficient that the right exists and is protected from state infringement by the Due Process Clause of the Fourteenth Amendment.

Id. at 736-37. See also Griffin v. Tatum, 300 F. Supp. 60 (1969) ‎[18]; Richards v. Thurston, 304 F. Supp. 449 (1969) ‎[19]; Westley v. Rossi, 305 F. Supp. 706 (1969) ‎[20]; Carter v. Hodges, 317 F. Supp. 89 (1970) ‎[21], all of which were decided during the same period, against the same backdrop of a fashion trend of students growing their hair long.

10. Similarly, in the case at bar, I prefer not to address the issue of the proper classification of the right to grow a beard—whether it is a right specifically enumerated in the Basic Law: Human Dignity and Liberty, such as the right to bodily integrity and the right of privacy, or not expressly specified therein, such as freedom of speech. The question of what rights are included within the concept of human dignity, as set down by the Basic Law, has sometimes been a source of dispute. See, e.g., AAP 4463/94 Golan v. Prison Authority ‎[3], paras. 156-57 (Mazza, J.), paras 190-91 (Dorner, J.) In the case before us, such a classification is not necessary. Human dignity, as a protected constitutional value, has a broader meaning than the sum total of all of the specifically recognized rights. See the opinion of Justice Barak in HCJ 5688/92 Wechselbaum v. Minister of Defense ‎[4], at 827:

What is encompassed by the right to "human dignity" will be determined, in accordance with the views of the enlightened public in Israel, on the basis of the purpose of the Basic Law: Human Dignity and Liberty. At the basis of this concept is the recognition of the person as a free agent, developing his body and spirit according to his own will, within the social framework of which he is a part and upon which he is dependent. "Human dignity" encompasses a range of facets.

Compare also the text of Justice Barak’s article in Human Dignity as a Constitutional Right, 41 Hapraklit 271, 279 (1993-94); c.f. Protected Human Rights: Scope and Limitations, 1 Mishpat Umimshal 253, 261 (1992-93). Our concern here is with a person's right to his self-image, a right that is undoubtedly part of human dignity.

Regulation 4B: Relevant Distinction or Prohibited Discrimination?

11. The right to grow and maintain a beard is a right granted equally to all men, be they religious or secular. As with any recognized right, it is by no means absolute, and may, according to the limitations clause of the Basic Law, be infringed provided the infringement is by statute (or by virtue of a statute that contains a specific empowering clause), that it befits the values of the State of Israel as a Jewish and democratic state, and is enacted for a proper purpose and to an extent no greater than required. See Basic Law: Human Dignity and Liberty, § 8. It is from this starting point that we will examine the provisions of Regulation 4B.

With respect to the stated entitlement, Regulation 4B clearly distinguishes between bearded men who are religious and those who are not, or who, in any event, are not prepared to declare that they are growing a beard for “religious reasons." In other words, the right to receive a protective mask suited for bearded men is, under the Regulations, granted exclusively to religious men, while non-religious bearded men are not entitled to receive that kind of protective kit. Since the standard protective kits do not provide bearded men with the personal protection they require, in times of danger, non-religious bearded men will have to choose between two evils: either shaving off their beards or endangering their lives. In enacting Regulation 4B, the Minister of Defense assumed that, in times of danger, non-religious men would readily shave off their beards, rather than endanger themselves. This, the Minister presumed, was not the case for bearded religious men, whose beard is grown for religious reasons. Seeing as how supplying special protective kits for all bearded men would impose a heavy financial burden on the State, a burden that is irreconcilable with the Defense Ministry’s order of priorities, the Minister of Defense decided to distinguish between the two sectors of the population and to supply special kits exclusively to those men who, at times of danger, would presumably not consent to removing their beards.

12. Is the distinction adopted by Regulation 4B between the two classes of bearded men lawful? The law is that distinctions may be justified by a relevant difference. Herein lies the difference between prohibited discrimination and legitimate distinctions which the law must continually make. See FH 10/96 Boronovski v. The Chief Rabbinate of Israel ‎[5]; see also Alice Miller v. Minister of Defense ‎[6]. Where there is no relevant difference, application of a different standard to people with identical needs constitutes prohibited discrimination. Prohibited discrimination violates the human dignity of those who are subjected to it. This, in my opinion, follows necessarily from the premise that equality too is part of human dignity. See HCJ 453, 454/94 Israel Women's Network v. Government of Israel at 526 ‎[7] (Mazza, J.). The existence of a relevant distinction should be examined “with regard to the particular purpose for which the distinction is applied." This is to say:

[T]here must be a direct and concrete connection between the special characteristics found in one category but not in the other, and the purpose for which it is permitted to prefer one category over the other.

Alice Miller ‎[6], at 110.

13. The State’s position is that the differential treatment given to religious men with beards is based on a legitimate distinction, namely, their religious beliefs. I cannot accept this contention. While it is true that a person’s religious beliefs can be a relevant factor for different treatment in various context, see HCJ 4298/93 Jabarin v. Minister of Education ‎[8], it cannot serve as a proper foundation for the distinction made in the case at hand.

The distinction made by Regulation 4B is presumably based on the premise that growing a beard is a religious commandment. Examination of Jewish law, however, reveals that religion does not require Jewish males to wear a beard. Instead, the relevant religious obligation only prohibits shaving one's beard with a razor, in accordance with the traditional interpretation of the verse “neither shalt thou mar the corners of thy beard." Leviticus 19:27 ‎[22]. Exegesis has explained this verse to mean that “he shall not be guilty except where he destroys his beard with a blade, but with scissors it is permitted, even if they resemble a blade.” Shulchan Aruch, Yoreh Deah, Laws of Shaving ‎[23]. There are also other religiously permissible methods of removing one’s facial hair. See 11 Talmudic Encyclopedia 125-26 (S. Zevin ed. 1965) ‎[24]. Similarly, the presumption that the observant Jew may refuse to remove his beard, even where his life is at stake, is unfounded, as the religious obligation of “saving of life” takes precedence and, according to Jewish Law, would always prevail over the prohibition related to destroying one’s beard. This having been said, it cannot be denied that growing a beard for the religious person, while not necessarily a mandatory religious commandment, nonetheless constitutes a part of his religious lifestyle. Indeed, the religious Jew’s right to grow and maintain his beard is part of his human dignity as a religious Jew. Thus, even though, in cases involving "saving of life," his obligation to preserve his life would override most other religious commandments, he should not be put to such a test which may prove too difficult for him and which would risk endangering his safety. In the words of Deputy President Elon, in Miller [2], at 295-96:

The principle of "saving life" is completely unrelated to the question presented for our deliberation today. For the observant Jew, growing a beard is a part of a religious lifestyle. It is well known that this custom has been widely observed, since early times, even in times of crisis. In this context, as with all other religious commandments and laws, when a person is confronted with the choice of either transgressing the law or saving his life, the saving of life takes preference. … It is, however, clear that a person should not put himself in a situation where he must choose between transgressing and saving his life, and must make every effort not to put himself to such a test. Consequently, in the case before us, if and when that "moment of truth" arrives, the saving of life takes precedence over the growing of a beard and, if the bearded man does not have a kit that can save him from that danger unless he first removes his beard, he is under a religious obligation to remove his beard. This, however, has nothing to do with the authorities’ obligation to adopt all necessary measures to ensure the supply of protective kits suited for bearded men, in order to prevent them from being confronted with such a difficult choice. The requirement to shave off the beard is detrimental to the religious public and, as such, cannot be required by the Civil Defense Program of the State of Israel. In any case, it would not be observed by the majority of the religious public. The respondents must therefore make every effort to procure the appropriate kits for this public and proceed to allocate them.

Having established that growing a beard is part of the religious man’s way of life, the question now arises as to whether the secular man, who decides to grow a beard as part of his lifestyle, is any different from his religious counterpart. I have done my utmost but have not found any distinction between the two. Clearly there is a difference between the reasons motivating each of them to grow a beard, but this difference does not constitute a relevant distinction for the purposes of distinguishing between the two. The human dignity of the religious person incorporates his right to grow and maintain his beard as a part of his religious lifestyle. Similarly, the secular person’s right to grow a beard as part of his non-religious lifestyle warrants equal protection. Regulation 4B is based on the assumption that only the religious bearded man, as opposed to his secular counterpart, is liable to be confronted with the dangerous choice of whether or not to shave off his beard even in a situation of imminent danger. However, this premise, besides being empirically groundless, is also irrelevant. It is quite likely that in a life threatening situation, the religious man and the secular man will conduct themselves similarly and, if they find themselves in a situation in which their beard threatens their lives and saving their life depends on their readiness to shave off their beard, they would choose not to take the risk. In fact, the question of what constitutes a life-threatening situation is a difficult and complex one and it is improper to put either the religious man or his secular counterpart in the position of having to make that choice.

14. In his arguments, counsel for the State relied, as noted, on the Miller ‎[2] decision. It bears mention, therefore, that this Court’s ruling in Miller ‎[2], provides no basis for the distinction between religious bearded men and other bearded men. Of course, the Miller ‎[2] petition was filed by, and in the name of, religious bearded men, and concentrated primarily on the needs of bearded men from religious circles. In the judgment of Deputy President Elon, the needs of those sectors of the population received special emphasis. Nonetheless, the State’s position in Miller ‎[2], which led the Court to deny the petition, made no distinction between religious bearded men and other bearded men. There, the head of the Civil Defense stated in his affidavit:

The defense establishment is, as stated, aware of the needs of bearded men and does its utmost to solve their problems, as well as the problems of other sectors of the population.

It was recently decided, after consultations with the Prime Minister and the Ministers of Defense and Finance, to approve the allocation of five million NIS towards the production and allocation of special kits for bearded men.

This allocation still does not provide a complete solution to the entire population of bearded men. The allocation of 5 million NIS reflects the limitations of the current rate of production, in consideration of the totality of the above needs.

Miller ‎[2], at 295 (Shamgar, P.) From this affidavit, it emerges that the State cannot immediately provide special kits for all bearded men. However, the affidavit does not state that the special kits were intended to satisfy the needs of religious bearded men exclusively, or that, in the allocation of such kits, religious bearded men are or will be entitled to any preference over other bearded men.

15. In light of the above, Regulation 4B contains a discriminatory provision that infringes the principle of equality and violates human dignity. Examination of the Regulation in accordance with the requirements of the limitations clause of the Basic Law indicates that the provision does not even meet the first requirement of the Basic Law's limitations clause, as the discriminatory provision in question was not enacted by statute but, rather, by regulation. Furthermore, even if the Regulation (enacted at the end of 1993) were to be examined under section 8 of the Basic Law as amended in 1994 (which came into force in March 10, 1994, subsequent to the enactment of the Regulation), the same result would be reached. The Civil Defense Law, on the basis of which the Regulation was enacted, contains no express statutory authorization for the enactment of the regulation, as required under the amended provision of section 8 of the Basic Law. Needless to say, a regulation which adopts standards that are obviously discriminatory does not befit the values of the State of Israel. It therefore follows that questions concerning the purpose or the degree of the violation, as per a later prong of the Basic Law, do not need to be addressed.

Furthermore, having established that the Regulation violates the principle of equality, it follows that, under the principles of administrative law, and even before consideration of the Basic Law, the Regulation should be struck down. Indeed, it may be struck down either as a result of the Minister having deviated from his substantive authority—as distinct from procedural or formal authority—under the principles of administrative law, see HCJ 156/75 Deka v. Minister of Transportation ‎[9], at 101-02 (Shamgar, P.), or, at the very least, because the Regulation is patently unreasonable, see HCJ 389/80 Dapei Zahav v. Broadcasting Authority ‎[10], at 436, 439 (Barak, J.). In this context, I am quite aware of the fact that Regulation 4B was enacted with the approval of the Foreign Affairs and Defense Committee of the Knesset. It is incumbent upon us to be particularly cautious with respect to secondary legislation that was approved by one of the Knesset’s Committees See HCJ 4769/90 Zidan v. Minister of Labor and Welfare ‎[11], at 172. Even so, in light of the discriminatory provision of the Regulation, there is, in my view, no way to avoid its being struck down.

Human Dignity and Budgetary Considerations

16. The State invoked budgetary considerations as a justification for the distinction made by Regulation 4B. I accept that budgetary considerations are of considerable importance in the adoption of any governmental decision. See HCJ 327/92 Israel Fruit Growers' Association v. Government of Israel ‎[12], at 391-92. Indeed, in cases where the State authorities seek to meet a particular public need and existing resources at their disposal are less than is required to satisfy the need in its entirety, the authorities must establish criteria for the allocation of its resources. However, these criteria must be characterized by equality, and budgetary constraints cannot be invoked to justify unlawful discrimination. Furthermore, equality in our law is a social, result-orientated norm. See The Israel Women’s Network ‎[7], at 516. Hence, any secondary legislation that has the effect of infringing on equality is invalid, even when there was no discriminatory motive for its enactment. See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa ‎[13] at 334 (Barak, J.)

What, then, are the acceptable criteria for allocating protective masks for bearded men? When the issue of allocation of protective kits to the residents of the administered territories arose, this Court ruled that it was prohibited for the State to differentiate between Jewish residents and Arab residents and that, once the State decided that security considerations necessitated the allocation of protective kits to Jewish residents, it was also obliged to provide the same kits to Arab residents. See Marcus [1]. In the absence of any relevant basis for drawing a distinction between various groups of persons, the State was obligated to provide protective kits to all the residents. This is a standard of absolute equality. In our case, with respect to determining entitlement to special protective kits, we can be satisfied with a criterion of “relative equality"—as opposed to “absolute"—provided that the equality is substantive. In other words, the State has no absolute obligation to provide protective kits to all bearded men, and, based upon budgetary limitations, may determine that only a certain portion of the population should receive such kits. Such a distinction would respect the imperative of equality, if it was based on relevant considerations. In my view the primary consideration that should guide the State is rooted in the distinction between bearded men whose beard forms part of their identity and way of life—and for whom the obligation of removing the beard would violate their human dignity—and between other bearded men, for whom the growing of a beard was a recent initiative, taken for reasons of aesthetics or of convenience for a limited period of time.

The petition at bar proposed an arrangement in which the supply of a special kit to bearded men would be contingent upon the payment of the difference between the cost of the special kit and the cost of the standard kit. Those with limited financial resources would be exempt from this payment. Personally, I am skeptical as to whether this would be an appropriate arrangement. In my view, a better alternative would be similar to the current arrangement in Schedule 7: the declaration of the bearded man himself. Thus, for example, the Regulations could stipulate that the supply of a special kit is conditional upon the bearded person signing a declaration stating that his beard is a part of his self-image, identity and way of life, that he has no intention of shaving it off and that, in the event of his removing it, he will return the special kit. Admittedly, such declarations can not completely prevent impostors from demanding and fraudulently obtaining special kits. However, this sort of arrangement is no less efficient than the existing one, under which the authorities are satisfied with the declaration of the applicant that he grows his beard for religious reasons. Needless to say, the arrangement proposed is but one example of a possible arrangement. The respondents are free to consider other reasonable options, including the possibility of spreading out the distribution of special kits over several months.

17. If my opinion is accepted, the order nisi granted for this petition will be made final. The discriminatory part of Regulation 4B and the language of the declaration in Supplement 7 of the Regulations will be declared void and the Minister of Defense shall be charged with establishing a new arrangement for the allocation of protective kits for bearded men, based upon criteria that respect the principles of equality. The new arrangement shall be determined in regulations that will be published no later than 90 days from today and the petitioner’s entitlement to receive a special protective kit shall be reexamined under the new arrangement.

The petitioner, who argued his own case, is a lawyer by profession. In view of this decision, the State is hereby ordered to pay the petitioner legal fees in the sum of 10,000 NIS.

Justice T. E. Tal

I concur with the judgment of my colleague, Justice Mazza, but would like to add the following comments.

It seems to me that it would have been preferable had the petitioner refrained from turning his beard into an issue of human dignity. As it is, the public discourse in Israel is laden with tension. It would be preferable that people refrain from turning every cause of action into a campaign requiring the attention of the Supreme Court. According to the State's response, the petitioner had the option of purchasing the protective kit for bearded men for a small fee. In this way, the petitioner could have achieved his aims without imposing himself as an additional burden on already depleted public funds. However, the claim having been phrased as a matter of principle, the Court had no choice but to address the petition.

As stated, I concur with Justice Mazza’s view. I also believe that his conclusion is correct in terms of appropriate legal policy. Any discrimination, even where legitimate, creates feelings of injustice (even if such feelings are unwarranted). As such, it is preferable to avoid discrimination, unless such is demanded by a relevant distinction.

In the case before us, just as a religious man should not be put to the test of having to remove his beard (even in circumstances under which, according to many religious authorities, no prohibition is involved), so too, a person whose beard is for the “enhancement of his appearance” should not be put to the same test. See Babylonian Talmud, Tractate Baba Metzia, 84a ‎[25], which refers to the beard as “the dignity of the face."

Justice T. Strasberg-Cohen

My colleague, Justice Mazza, provided an extensive survey of the issue of basic rights and human dignity regarding the right to grow and maintain a beard. It appears to me that the existence of this right is by no means disputed. However, no one requested that the petitioner remove his beard. The issue at bar was far more prosaic, namely, whether a special mask—a mask that one can receive by paying an additional sum, beyond the cost of a regular mask—should be allocated to a bearded man who is not religious just as they are allocated free of charge to men who grow their beard for religious reasons; In legal parlance, the issue is whether the relevant regulation is discriminatory and should therefore be struck down.

In my opinion, there is a substantial difference between the situation in which a person is prohibited from growing a beard or long hair, as per the cases cited in American case law—those cases presenting appropriate circumstances for claiming a violation of basic human rights, human dignity, privacy and the right to fashion one's own personality and appearance—and a situation in which a person can grow a beard freely, but upon requesting a special mask, is asked to pay an extra sum because the State does not have the money to hand them out free. Had the State refrained from allocating special masks free of charge to anyone, and the reasons for doing so were reasonable and pertinent, it is highly doubtful that I would have seen any room for this Court’s interference. However, I am satisfied that the actual regime set out in Regulation 4B constitutes discrimination, as the State has decided to allocate the special masks free of charge to bearded men only. As such, the regulation lacks any moral or legal justification and must, therefore, be struck down.

Together with my colleagues, I too am of the opinion that a final order should be issued regarding the petition.

Petition granted.

29 January 1997

Full opinion:

Nof v. Ministry of Defense.pdf

New Family v. Minister of Labor and Welfare

Case/docket number:

HCJ 4293/01

Date Decided:

Tuesday, March 24, 2009

Decision Type:

Original

Topics:

Administrative Law

Disclosure of information

Discretion

Family Law

Adoption

Abstract:

Facts: The institution of intercountry adoption of children in Israel, i.e. the adoption in Israel of children from abroad, is regulated by the Adoption of Children (Amendment no. 2) Law, 5756-1996. By virtue of his authority under this Law, the Minister of Labor and Welfare has issued “Rules and Professional Guidelines for the Operation of a Recognized Non-Profit Organization”, rule 4(b)(1) of which states that a person wishing to adopt a child in the framework of an intercountry adoption will not be deemed eligible to do so if the age difference between himself and the child exceeds 48 years on the date of submission of the application to adopt. According to the petitioners, this maximum age difference rule is unlawful and must be struck down, in that it is incompatible both with fundamental constitutional principles, and with proper administration. Alternatively, the petitioners are asking the Court to order that the rule be amended to the effect that the recognized non-profit organization – the adoption association – is granted discretion to approve eligibility for adoption even when the age difference between the prospective adopter and the child exceeds 48 years, when special circumstances justify so doing; and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the excessive age difference.

The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.

Held: On the constitutional plane, the Court considered the question of whether people seeking to adopt a child had a constitutional right to do so; if so, what were the nature and origins of this right and did the state have a correlative duty to enable realization of such a right. Although the Justices in the majority were of the opinion that no such constitutional right exists, President Beinisch, writing the majority opinion, held that in the circumstances of the case, no ruling was required on this question, and in view of its sensitivity and complexity, it is best left with no firm determination.

On the administrative plane, the Court held that the rule is reasonable and does not discriminate unlawfully against prospective intercountry adopters vis-à-vis other groups such as persons adopting domestically, biological parents and people entering into embryo carrying agreements. Nevertheless, the majority Justices held that the negation of discretion to depart from the rule in special, justified circumstances was not reasonable. This conclusion does not, however, dictate that the private adoption associations be granted discretion in respect of the rule; rather, according to President Beinisch, the correct interpretation of s. 36A of the Adoption of Children Law, 5741-1981, is that the statutory appeals tribunal established by virtue of the Law is authorized to consider requests to depart from the rule in intercountry adoptions, in special circumstances. In this sense, the Court granted the petition in part by recognizing the possibility of departure from the rule. The Court dismissed the concern of the respondent that allowing exceptions to the rule would deflect the focus of attention from the best interests of the child to the interests of the prospective adopters, stating that no major breach of the bounds of the rule was entailed by the existence of a statutory mechanism for considering exceptional cases, and that suitable criteria would be formulated by the appeals tribunal for this purpose.

Voting Justices:

Primary Author

majority opinion

Rivlin, Eliezer

Author

concurrence

New Family v. Minister of Labor and Welfare.pdf

Author

dissent

Full text of the opinion:

HCJ 4293/01

1. New Family

2. Dr. Ruth Zimmerman-Shahar

3. Dr. Ron Shahar

4. A Minor

5. David Ben Nahum

Minister of Labor and Welfare

The Supreme Court sitting as the High Court of Justice

[24 March 2009]

Before President D. Beinisch, Vice President E. Rivlin and

Justice A. Procaccia

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

The High Court (per President Beinisch, Vice-President Rivlin concurring and Justice Procaccia dissenting), granted the petition in part.

Legislation cited:

Adoption of Children Law, 5741-1981, and ss. 3, 4, 5, 6, 36a, 25, 28H, 28N

Adoption of Children (Amendment no. 2) Law, 5756-1996

Basic Law: Human Dignity and Liberty 1992; and s. 1A, 2, 4

Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996

National Health Insurance Law, 5754-1994 (Second appendix)

National Health (IVF) Regulations, 5747-1987

Youth (Care and Supervision) Law, 5720-1960

Israeli Supreme Court cases cited:

[1] HCJ 243/88 Consellos v. Turgeman [1991] IsrSC 45(2) 626.

[2] HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior (2006) (unreported).

[3] CA 2266/93 Anon. v. Anon. [1995] IsrSC 49(1) 221.

[4] CA 3009/02 Anon. v. Anon. [2002] 56(4) 872.

[5] HCJ 2245/06 MK Neta Dobrin v. Prisons Service (2006) (not yet reported).

[6] LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents (2005) (not yet reported).

[7] CFH 2401/95 Nahmani v Nahmani [1996] IsrSC 50(4) 661.

[8] HCJ 2458/01 New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [2003] IsrSC 57(1) 419.

[9] HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [1992] IsrSC 46(2) 464.

[10] CA 7155/96 Anon. v. Attorney General [1997] IsrSC 51(1) 160.

[11] CA 5587/93 Nahmani v. Nahmani [1995] IsrSC 49(1) 485.

[12] CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [2003] IsrSC 57(5) 385.

[13] CFH 7015/94 Attorney General v. Anon. [1996] IsrSC 50(1) 48).

[14] HCJ 415/89 Alon v. Child Services [1989] IsrSC 43(2) 786.

[15] CA 10280/01 Yarus-Hakkak v. Attorney General [2005] IsrSC 59(5) 64.

[16] CA 577/83 Attorney General v. Anon. [1984] IsrSC 38(1) 461.

[17] LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [2005] IsrSC 59(1) 596.

[18] HCJ 4769/90 Zidan v. Minister of Labor [1993] IsrSC 47(2) 147.

[19] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[20] HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [1988] IsrSC 42(2) 309.

[21] HCJ 217/80 Segal v. Minister of the Interior [1980] IsrSC 34(4) 429.

[22] HCJ 935/89 Ganor v. Attorney General [1990] IsrSC 44(2) 485.

[23] HCJ 558/79 Jamal v. Jewish Agency [1980] IsrSC 34(1) 424.

[24] CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [1975] IsrSC 29(1) 22.

[25] HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [1982] IsrSC 36(2) 1.

[26] CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [1990] IsrSC 44(1) 661.

[27] HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [1992] IsrSC 46(1) 191.

[28] HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693.

[29] HCJ 678/88 Kfar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[30] HCJ 6051/95 Recanat v. National Labor Court [1997] IsrSC 51(3) 289.

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

[32] HCJ 59/88 Zaban v. Minister of Finance [1988] IsrSC 42(4) 705.

[33] HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [1994] IsrSC 58(2) 358.

[34] HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [1983] IsrSC 37(2) 115.

[35] HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister [1998] IsrSC 52(4) 193.

[36] HCJ 20594 Nof v. State of Israel – Ministry of Defense [1996] IsrSC 50(5) 449.

[37] FH 10/69 Boronowsky v. Chief Rabbi of Israel [1971] IsrSC 25(1) 7.

[38] LFA 5082/05 Attorney General v. Anon. (2005) (unreported).

[39] CrA 3439/04 Bazak (Buzaglo) v. Attorney General [2004] IsrSC 59(4) 294.

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

[41] CA 1165/01 Anon. v Attorney General [2002] IsrSC 57(1) 69.

For the petitioners – S. Oren; I. Rosenblum.

For the respondent – E. Golomb.

JUDGMENT

Justice A. Procaccia

1. The Adoption of Children (Amendment no. 2) Law, 5756-1966 (hereinafter: “the amending Law”) regulated, for the first time in Israel, the institution of intercountry adoption. It established that intercountry adoptions will be carried out by means of non-profit organizations whose sole purpose is to operate in the area of these adoptions (hereinafter: “adoption associations”); these adoption associations were granted recognized status for this purpose. Section 28[37] of the amending Law authorizes the Minister of Labor to lay down rules and professional guidelines for the operation of a recognized adoption association. By virtue of this authorization, in 1998 the Minister of Labor and Welfare issued “Rules and Professional Regulations for the Operation of a Recognized Adoption Association”. These Rules lay down the following provision in relation to the maximum permissible age difference between adoptive parents and the child who is a candidate for an intercountry adoption:

4(b) An adoption association will not certify that an applicant is eligible to adopt a child, if, on the date of submission of the application, one of the following applies to him:

(1) The age difference between the applicant and the child exceeds 48 years; if the applicants are a couple, the age difference between each of the applicants and the child exceeds 48 (Official Gazette 5758, at p. 1580) (hereinafter: “the maximum age difference rule”).

This provision, amongst the other rules, prescribes how the recognized adoption association must examine the application of prospective adopters, and in what circumstances the application to adopt cannot be approved due to the age difference between the prospective adopter and the child, which exceeds the maximum permissible difference.

2. The petition is primarily concerned with review of the constitutionality of the rule that sets a maximum age difference between the person seeking to adopt and between the child as a preliminary condition of adoption. According to the petitioners, a conclusive determination concerning the maximum age difference as aforesaid is unlawful, and it must be struck down, both because it is contradictory to fundamental constitutional principles, and because it does not comply with the criteria for proper administration. Alternatively, the petitioners request that the Court order that the maximum age difference rule be changed so as to reduce the damage that it may cause; their suggestion is that a recognized adoption association be granted discretion to approve adoption even when the age difference between the prospective adopter and the child exceeds 48 years, in cases in which special circumstances prevail, and that it be possible to appeal the decision of an adoption association that refuses to approve an adoption due to the age difference exceeding the maximum.

The parties

3. Petitioner no. 1 is an organization that operates for the advancement of the rights of families in Israel, and to promote recognition of the family as a constitutional unit. Petitioners nos. 2 and 3 are a couple who have one minor child, whom they adopted in Guatemala (petitioner no. 4). Petitioner no. 5 is a widower and father of two minor children, who were adopted by him and his late wife in the United States. Petitioners nos. 2 and 3 and petitioner no. 5 all applied to adopt another child from abroad, since their age prevents them from adopting a child locally. Each sought to adopt a new-born child in order to raise him from the time of his birth. Pursuant to the maximum age difference rule, the adoption of a new-born child was not approved, due to their age on the date of submission of the application, which exceeded the maximum allowable age difference. Petitioner no. 2 was born in 1950, petition no. 3 was born in 1949, and petitioner no. 5 was born in 1948. At the same time, intercountry adoption of children was approved for these petitioners, whose ages at the time of the applications complied with the maximum age difference rule.

The respondent is the Minister of Labor and Welfare, who is the competent authority in relation to setting the rules that are the subject of this petition.

The arguments of the petitioners

4. The petitioners claim that the maximum age difference rule is unlawful both from a constitutional and from an administrative point of view. Regarding the constitutional plane, it was contended that the right to a family is a constitutional right that embraces the right to parenthood, which may be realized in any manner whatsoever – be it by way of natural parenthood or by way of adoption. As such, the right to adopt is a constitutional right protected by Basic Law: Human Dignity and Liberty 1992. The maximum age difference rule violates the basic right of prospective adopters to a family, by setting a rigid, inappropriate ceiling, and it does not allow for deviation even in special circumstances. According to the argument, this violation of the basic right to a family and to parenthood does not comply with the limitations clause in the Basic Law. The rule is not derived from explicit authorization in the Law, it does not befit the values of the State, it is not intended for a proper purpose, it is not proportional, particularly in view of the fact that it was introduced as a categorical provision allowing no discretion, and without any room whatsoever for special exceptions. According to the petitioners, the said rule is deeply damaging not only to people who seek to adopt, but also to the best interests of the child who is a candidate for intercountry adoption, since handing him over for adoption to a couple in Israel, even if the parents are older, is preferable on his part to leaving him to grow up in difficult circumstances in his country of origin.

5. On the administrative plane, the petitioners argue that the maximum age difference rule suffers from extreme unreasonableness in setting a rigid allowable age difference, without proper factual or scientific basis; moreover, it creates grave discrimination and a violation of equality between, on the one hand, the petitioners and others like them who wish to adopt, and between other population groups – such as natural parents who may bring children into the world with whatever age difference without state interference; similarly, the state does not interfere in the decision of couples to bring a child into the world by means of a surrogate mother by virtue of the Embryo Carrying Agreements (Approval of the Agreement and the Status of the Child) Law, 5756-1996 (hereinafter: “Embryo Carrying Agreements Law”) or by other artificial means of reproduction undertaken by the mother that lead to natural birth. Moreover, discrimination exists between the domestic arrangement governing adoption, in respect of which a flexible age difference rule, allowing for deviation, has been set, and intercountry adoption, in respect of which the rule is rigid and has no allowance for special circumstances.

The arguments of the respondent

6. The respondent rejects the basic point of departure of the petitioners’ arguments, whereby they have a constitutional right to adopt a child. In his view, the right to adopt is not recognized by either Israeli law or International law as a basic constitutional right. The right to natural parenthood is, indeed, recognized as a basic right, as a component of respect for the autonomy of the individual in society, and the conception of non-intervention of the state in a person’s intimate decisions concerning the establishment of a family blends into this. The institution of adoption, on the other hand, focuses on the welfare of the child, and the interest of those seeking to adopt in realizing their parenthood is ancillary and secondary to the principle of the best interests of the child. People who wish to adopt do not have a right to adopt; a fortiori they do not have a constitutional right to adopt. Their desire to adopt will be realized only to the extent that it is compatible with the principle of the best interests of the child who stands before them at the center of the laws of adoption. Adoption is a subject of a public nature, which involves the formulation of rules and their application in all that concerns handing children over for adoption in order to promote their welfare. It is not like the right to natural parenthood, the essence of which is the freedom to bear children without the intervention of the state. The respondent further argues that even if a constitutional right of the petitioners to adopt were recognized, and even on the assumption that this right was breached as a result of the maximum age difference rule – even then this would be a proportional violation that was intended for a proper purpose, i.e., protection of the best interests of children adopted in intercountry adoptions.

7. With respect to the administrative plane, it was argued that the maximum age difference rule conforms to the criteria of propriety according to the rules of administrative law. The rule was adopted in light of purely professional considerations, in accordance with the recommendations of the Advisory Committee to the Minister. The contents of the rule are reasonable, it was intended to promote the best interests of the child, and it does not discriminate between the petitioners and others like them who wish to adopt, and between other groups.

Before embarking on an in-depth analysis of the arguments of the parties, we will describe the background to the institution of intercountry adoption and the rationale underlying the Israeli legislation. What we say has direct ramifications for the question under discussion in this case.

Intercountry adoption – general background

8. The amending Law, passed by the Knesset on 1 May 1996, regulates, for the first time, the question of intercountry adoption in Israeli law. The amendment was conceived against the background of a legislative procedure that originated in a government bill (Adoption (Amendment) (Intercountry Adoption) Bill, 5754-1994 451) and private bills that were consolidated into one bill (Adoption of Children (Intercountry Adoption) Bill, 5756-1995, Draft Laws. 5756, 238). The Bills were discussed together in the Knesset Law and Constitution Committee, which drafted the bill that was eventually brought for the approval of the Knesset. The Amendment was enacted against the background of a reality in which the number of Israelis who applied to adopt children from outside of Israel had grown, due to the scarcity of children available for adoption in Israel in relation to the large number of people seeking to adopt, which resulted in many people having to enduring long waiting periods. This scarcity created a widespread phenomenon of adoption by Israeli couples through non-conventional, non-regulated channels, sometimes without the children even being registered in the local registry. Some Israelis were even involved in illegal acts of abduction of and trade in children (for example, HCJ 243/88 Consellos v. Turgeman [1]). The sad plight of many Israelis who sought to adopt a child abroad after they failed to adopt in Israel, and the many difficulties that accompanied such adoptions due to concern for the status of the child in Israel, led to legislative initiatives in the Knesset to resolve this difficult situation (see for example, the comments of MK Limor Livnat, Knesset Proceedings 24.5.94, at p. 7494; and MK Avi Yehezkel, ibid., at p. 7487).

9. This distressing situation led, in the end, to the amendment of the Adoption of Children Law, 5741-1981 (hereinafter: “Adoption Law”), by means of the creation of a detailed statutory arrangement for the intercountry adoption of children in Israel. Intercountry adoption is not exclusive to Israel. The need to regulate intercountry adoption intensified in many states in light of the development of criminal activities involving the abduction of and traffic in children in connection with adoption (N. Maimon, Child Adoption Law (1994), at pp. 597-599). Against this background, the Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption (hereinafter: “Convention on Intercountry Adoption”) was signed in The Hague in 1993. The aim of the Convention is to create a system of cooperation between different states in order to ensure the welfare and best interests of children who are handed over for foreign adoption, and to prevent trafficking in children (art. 1 of the Convention). Israel signed the Convention on 2.11.1993 and ratified it on 28.12.1998 (Kitvei Amana 1258, vol. 41). The government bill is a result of Israel’s adoption of this Convention, which required extensive deployment, including changes in internal legislation and the establishment of bodies to deal with intercountry adoption in Israel.

10. This arrangement of intercountry adoption was intended to provide a response to childless Israelis who encountered difficulties in adopting children in Israel, and to facilitate the process of adoption for them by means of adoption of a child from abroad. It was intended to ensure that the process of intercountry adoption would be carried out in a proper manner and by a legal process. The arrangement was also intended to confer recognition on the status of children who were adopted in intercountry adoptions before this subject was regulated by law. At the same time, it is important to emphasize that although the background to the legislation was the intention to alleviate the plight of those seeking to adopt, and to open up to them new avenues that would answer their yearning for parenthood, the arrangement of intercountry adoption should not be understood as deflecting the focus of adoption from the best interests of the adopted child to the wellbeing of those seeking to adopt. The purpose of the arrangement is to find an appropriate response for children who cannot be raised by their natural families for one reason or another, and who are in need of a home with an adoptive family. The best interests of the child was and remains the central axis around which the laws of adoption, including intercountry adoption, are built (this found expression in the words of MK Zandberg during the deliberations on the first reading of the amending Law in the Knesset (Knesset Proceedings 24.5.94, at p. 7500).

11. This protection of the best interests of children adopted in intercountry adoptions is manifest in s. 28D of the amending Law, which states that a recognized adoption association is obliged to act “in such manner as to safeguard the best interests of the child and with respect for his basic rights, including those that are recognized in International law; the recognized adoption association will also have a fiduciary obligation in relation to any person who has applied to it to adopt a child . . ., as long as this is not detrimental to the fiduciary obligation vis-à-vis the child” [emphasis added]. This provision was explained by the Chairman of the Law and Constitution Committee during the deliberations on the draft law at the second and third readings:

‘We hereby establish that the adoption association has an absolute fiduciary obligation to the principle of the welfare of the child, and a fiduciary obligation to the adopter – again, as long as the principle of the welfare of the child is not affected. The principle of the welfare of the child overrides all other interests, including the fiduciary duty to the adopter’ (Knesset Proceedings 11.3.1996, at p. 5151) [emphasis added].

12. On the international level, too, intercountry adoption arrangements are founded on the concept of concern for the best interests of the adopted child. The adoptive parents are not at the focus of attention of this law. The aspiration to safeguard the best interests of the adopted child as a central purpose of the intercountry adoption arrangement is evident in the Convention on Intercountry Adoption, the Preamble to which declares that the states signatory to the Convention [are] “[C]onvinced of the necessity to take measures to ensure that intercountry adoptions are made in the best interests of the child and with respect for his or her fundamental rights, and to prevent the abduction, the sale of, or traffic in children.” Protection of the best interests of the child is included in the objectives of the Convention as follows:

Article 1: The objects of the present Convention are -

a) to establish safeguards to ensure that intercountry adoptions take place in the best interests of the child and with respect for his or her fundamental rights as recognized in international law [emphasis added].”

Two additional international documents that emphasize the need for special protection of the child in an intercountry adoption are the Declaration on Social and Legal Principles relating to the Protection and Welfare of Children with Special Reference to Foster Placement and Adoption Nationally and Internationally, and the Convention on the Rights of the Child, adopted by the United Nations in 1989, which Israel joined in 1991 (Kitvei Amana 1038, vol. 31, at p. 221). These two international documents also state the need to compare the criteria governing internal and intercountry adoptions. Art. 20 of the Declaration states:

‘In intercountry adoption, placements should, as a rule, be made through competent authorities or agencies with application of safeguards and standards equivalent to those existing in respect of national adoption. In no case should the placement result in financial gain for those involved in it.’

Art. 21 of the Convention on the Rights of the Child, which deals with adoption, states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

. . .

(b) Recognize that intercountry adoption may be considered as an alternative means of child’s care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child’s country of origin;

(c) Ensure that the child concerned by intercountry adoption enjoys safeguards and standards equivalent to those existing in the case of national adoption;

(d) Take all appropriate measures to ensure that, in intercountry adoption, the placement does not result in improper financial gain for those involved in it’ [emphasis added].

13. Precisely because the motivation for intercountry adoption is the distress of prospective adopters who do not manage to adopt in Israel, particular importance is attributed to the emphasis placed – in intercountry adoption as in domestic adoption – on the obligation to position the best interests of the child as the paramount consideration in all situations. In the real world, there is liable to be some discrepancy between the criteria for domestic adoption and intercountry adoption, if only due to the significant difference in the number of children available for adoption in each of these spheres. Experience demonstrates that as the number of candidates for adoption decreases, so the criteria for adoption become more rigid and stricter. The institution of intercountry adoption arouses concern for a conceptual obfuscation between the interests of the adopters and the best interests of the child. This obfuscation creates difficult moral dilemmas, as noted by N. Maimon in her book:

‘The supporters believe that encouragement should be given to such [intercountry – A.P.] adoption, which saves children and babies from life in institutions, from poverty, homelessness and even death . . . The supporters point out that intercountry adoption attests to the desire to save homeless children and it may well bring down barriers between western states and the states of origin of the children. They also cite studies that demonstrate success in intercountry adoption. The opponents of intercountry adoption, on the other hand, claim that such adoption cuts the children off from their heritage and their culture, and integrates them into a culture that is alien to them. This is liable to create problems of identity in the children when they are older. They further claim that the children taken for adoption are white children who are sought after by childless couples . . . and that there is no demand for children who roam the streets. The opponents point out that intercountry adoption is designed to serve the purposes of childless couples from the West, and it is not the best interests of the child that are foremost in their concerns, and that the one-sided transfer of children from poor to rich countries, from their culture to a culture that is alien to them, will not break down cultural and political barriers. The best interests of the children, so say the opponents, requires that states in the West aid the poor states and the families who struggle to raise their children, and that they supply funds and help in establishing proper welfare systems, so that the children remain in the states with their own culture and tradition. The opponents further argue that intercountry adoption causes crime, trafficking in children, placement of children with couples who have been rejected as adoptive families by the welfare authorities in their own countries’ (Maimon, supra, at pp. 593-594).

The moral difficulty inherent in the blurring the boundaries between the interests of those seeking to adopt and the best interests of the child was addressed by MK Yitzhak Levy during the debate in the Knesset, as follows:

‘. . . Israeli society applies pressure, and because Israeli society applies pressure, the Knesset proceeds to enact a law for bringing children from abroad. When children are brought from abroad, the concern is not for the children [but] for the parents (Knesset Proceedings 11.3.96, at p. 5155; emphasis added).

These concerns are not baseless. They obligate the state to be particularly careful in safeguarding the interests of children adopted in intercountry adoptions, and to take special care not to become a tool whose main purpose is to enable realization, come what may, of the aspirations of those seeking to adopt a child.

14. Finally, to conclude these preliminary remarks, it is important to point out the significant innovation in the new statutory arrangement, namely, that intercountry adoption will be carried out through recognized adoption associations, the supervision of which is the responsibility of the Ministry of Labor and Welfare. In this, intercountry adoption differs from domestic adoption, which is in the hands of the Child Services under the supervision of state authorities and the Ministry of Labor and Welfare. Regulation of intercountry adoption by means of the recognized adoption associations has both advantages and disadvantages. On the one hand, action through the adoption associations is particularly efficient with respect to the connection with the foreign states, and it provides an effective response to the needs in this area; on the other hand, placing the determination of the eligibility to adopt in the hands of private organizations, with all the implications thereof, is a complex matter that naturally requires strict, meticulous supervision on the part of the state authorities. The balance between these advantages and disadvantages is achieved by conferring various powers on the adoption associations, including the determination of eligibility of a person seeking to adopt; and parallel to this, establishing various criteria for recognizing these associations, imposing various obligations on them, and supervising their activities by means of a central intercountry adoption authority, in the person of a chief welfare officer, to be appointed by the Minister of Labor and Welfare (s. 28B of the Law). The appropriate balance for the proper and effective operation of the adoption associations is also achieved by means of rules and guidelines for their operation, which the Minister of Labor and Welfare is authorized to prescribe by virtue of s. 28 [37] of the amending Law, pursuant to which the rule at issue in this petition was introduced. Matters were presented as follows in the debate on the amending Law at the second and third readings:

In the bill presented by the Government of Israel, it was proposed that intercountry adoption be supervised and administered by the Government, by the Ministry of Labor and Welfare. On the other hand, several private bills were tabled . . . We decided that intercountry adoption will be carried out by adoption associations, for whom we set very rigid, very strict rules of recognition. We must struggle and fight and take precautions at all times against erring, and being in a position –which is familiar to many, or some foreign states – in which there is in fact traffic in children. The assumption is that these adoption associations [will be] under very rigid supervision – and this will be the task of the Ministry of Labor and Welfare . . . And because they will have a proven record and proven professional capabilities, they will perform this task better than the Government. They have greater freedom to do this work in the Ukraine or Brazil or Rumania, and they will raise the total number of child adoptions. As we have said, extremely strict conditions’ (Chairman of the Law and Constitution Committee, Knesset Proceedings 11.3.96, at p. 5150; for the different positions on this subject, see: the two bills above and the debate on the first reading, ibid., 24.5.94, at p.7485 ff.).

Decision

15. The petitioners’ arguments challenge the maximum age difference rule on two fronts: the constitutional front and the administrative front. On the constitutional front, the petitioners seek to convince us that the right to adopt is a constitutional right that inheres in the right to a family and to parenthood. The maximum age difference rule violates this right in a manner that is incompatible with the limitations clause, and it must therefore be set aside.

Parallel to this, the petitioners argue against the validity of the rule on the administrative level, and focus on it being – according to them –unreasonable and discriminatory. The two parallel lines of argument drawn by the petitioners give material expression to the borderline between the constitutional and the administrative examination of the act of secondary legislation of the competent authority, as well as their interface.

Let us begin with the constitutional examination.

The constitutional examination – is the right to adopt a constitutional right?

16. On the level of the constitutional argument, the questions to be considered are these: Does a legal right to adopt a child exist? Does this right enjoy the status of a constitutional right, as a derivative of the right to a family and to parenthood anchored in Basic Right: Human Dignity and Liberty? If the answer is positive – does the maximum age difference rule comply with the criteria of the limitations clause in the Basic Law? These are the questions that we will endeavor to answer.

The right to family and parenthood

17. Basic Law: Human Dignity and Liberty entrenches a person’s right to dignity and liberty, thus embracing the values of the State of Israel as a Jewish and democratic state (s. 1A of the Basic Law). It states that there shall be no violation of the life, body or dignity of any person as such, and that all persons are entitled to protection of their dignity (ss. 2, 4). Within the parameters of the right to human dignity is the right of a person to a family (HCJ 7052/03 Adalah – the Legal Center for Arab Minority Rights in Israel v. Minister of the Interior [2]). From the right of a person to dignity stems his right to a family, and it therefore constitutes a constitutional right protected by the Basic Law (CA 2266/93 Anon. v. Anon [3], at p. 235; CA 3009/02 Anon. v. Anon. [4], at p. 894). The right to a family is one of the central foundations of human existence. “It reflects the existential essence of a person, and the manifestation of his realization of self” (Adalah v. Minister of the Interior [2], at para. 6 of my judgment). From the right to a family is derived the right to parenthood on the one hand, and the right of the child to grow up in the bosom of his natural parents on the other. Within the framework of the right to family, the natural right of parents to raise their children and the right of the child to grow up in the bosom of his family are recognized. The right to parenthood and the right of a child to grow up with his natural parents are interwoven rights, and together they establish the right of the family to autonomy:

‘The depth and intensity of the parental bond, which incorporates the natural right of a parent and child to a living bond between themselves, made of familial autonomy a value enjoying a legal status of the highest degree, violation of which is tolerated only in the most extraordinary situations’ (Anon. v. Anon.[4], at p. 894).

18. The right to a family is derived from the right to privacy and from the realization of the principle of the autonomy of individual will, located at the very kernel of the concept of human dignity. “The family and parenthood are the realization of the natural inclination to propogation of the generations and realization of the individual in society” (HCJ 2245/06 MK Neta Dobrin v. Prisons Service [5]; LFA 377/05 Anon. & Anon., Designated Adoptive Parents of the Minor v. Biological Parents [6]; CFH 2401/95 Nahmani v Nahmani [7], at p. 719; HCJ 2458/01 New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 447). Amongst the constitutional human rights, the right to parenthood and family ranks highly, following protection of the right to privacy and physical integrity: “The right to physical integrity is designed to protect life; the right to a family is what imbues life with significance and purpose” (MK Neta Dobrin v. Prisons Service [5], para. 12). “These rights are fundamental to human existence, and it is difficult to imagine human rights which equal them in their importance and their impact” (Anon. & Anon. v. Biological Parents [6], at para. 6 of my opinion).

19. The right to establish a family is also recognized under international law. Article 16 of the Declaration of Human Rights establishes the right of a person to marry and raise a family, as does art. 23 of the Covenant on Civil and Political Rights. Article 12 of the Declaration of Human Rights and art. 17(1) of the Covenant on Civil and Political Rights establish the right to privacy and to protection from arbitrary interference in family life. The European Convention on Human Rights establishes, in art. 8, a person’s right to respect for his private and family life, and in art. 12, the right to marry and to found a family.

20. The right to family and parenthood is related to the concept of a person’s personal autonomy, and to his right to privacy. It is understood as a freedom that may not be violated by interference on the part of the government or other factors. This is a right which does not have a correlative duty of the government to take positive action in order to effect its realization. And indeed, “a free society imposes minimal limitations on the voluntary choices of the individual” (HCJ 294/91 Chevra Kadisha “Kehillat Yerushalayim” v. Kestenbaum [9], at p. 481; CA 7155/96 Anon. v. Attorney General [10], at p. 175). This is particularly true with respect to the aspirations of a person to realize his personality and personal experience by means of establishing a family and bringing children into the world.

In Nahmani v Nahmani [7], Justice Dorner discussed the negative character of the right to a family as a right that restricts state interference in a person’s freedom of choice to a minimum:

‘Freedom in the full sense is not only freedom from outside interference of the state or of others. It also includes a person’s ability to control his way of life, to fulfil his basic aspirations and to choose between a range of possibilities through the exercise of discretion. In human society, one of the forceful expressions of the aspiration which if not satisfied will cause many people not to regard themselves as free in the full sense of the word is the aspiration to parenthood. This is not a purely natural-biological need. We are dealing with a freedom which in human society symbolizes the particularity of a person. “Any person who does not have children is considered as dead” said R Joshua b. Levi (Nedarim 49b). Indeed, most people – men and women alike – see propagation as an existential need that gives meaning to their lives’ (at p. 719).

In the words of Justice Strasberg-Cohen (ibid., at p. 682):

‘The right to be a parent is, by its nature, its essence and its characteristics, a natural, inherent right, embedded in the person. This is a right which has no correlative legal obligation, neither in the relations between the state and its citizens nor in the relations between the spouses themselves’ [emphasis added].

(See also the first proceedings in the Nahmani case: CA 5587/93 Nahmani v. Nahmani [11], at p. 499; P. Shifman, Family Law in Israel (5749-1989, vol. 2), at p. 139.)

The conception of the right to parenthood in the international conventions, too, is that of a negative right, the principal thrust of which is protection from arbitrary interference of the state in the private lives of a person, his family and his house (on this point, cf: D. Barak-Erez, “Symmetry and Neutrality: Reflections on the Nahmani Case”, (1996) 20 Iyyunei Mishpat 197, 199-200 [Heb.]).

21. The right to a family and to parenthood as a constitutional right does not achieve full expression in all circumstances. Like other constitutional rights, the right to a family as a freedom that is protected from interference is not absolute. In exceptional circumstances, the law and the authorities are likely to intervene in this right, and to restrict the extent of constitutional protection afforded it, when it is confronted by another important, conflicting value. The legitimacy of violating the right to a family and to parenthood is conditional upon compliance with the criteria of the limitations clause. These criteria reflect the required balance between the import of the basic rights and that of conflicting rights, needs and values, whether of the individual or of society. If a violation of a human right is to meet the constitutional test, its place must be in an appropriate arena of balances, in which the weight of the right is balanced against that of the conflicting right (CLA 3145/99 Bank Leumi Leyisrael Ltd. v. Hazan [12]; MK Neta Dobrin v. Prisons Service [5], at para. 12).

Thus, for example, in certain circumstances, when realization of family life causes serious harm to the child, the state intervenes in order to protect his wellbeing, and exceptional situations may arise in which natural parenthood will be temporarily or permanently negated by virtue of the Youth (Care and Supervision) Law, 5720-1960 (hereinafter: “Youth (Care and Supervision) Law”) (Anon. v. Anon. [4]), or by virtue of the Adoption Law. Conditions may arise which will require the state to exercise its authority to remove a child from his parents in order to protect his safety and wellbeing, and also to hand him over to another family for adoption, thus separating him temporarily or permanently from his natural family. Regulation of these powers and their practical application are subject to the conditions of the limitations clause, since what is involved is a violation of a human right to realization of the family bond and parenthood. Other situations of intervention in the right to family may arise where the realization of this right of a resident of Israel who wishes to unite with a spouse from the Area of Judaea and Samaria clashes with considerations of state security (Adalah v. Minister of the Interior [2]).

The right to adopt

22. Alongside the right to a family as a “passive” right, the essence of which is protection of a person’s personal autonomy from unconstitutional violation, stands the question of the status of the right to parenthood, which the individual seeks to realize by way of adoption of a child born to different biological parents, whether because he is not able to bring a child into the world, or whether because he wishes to forge a parental bond with an adopted child for some other reason. Does the constitutional right to a family extend to the right to adopt a child, where limitation of this right is possible only in accordance with the principles of the limitations clause, or shall we say that the constitutional right to parenthood does not embrace a right to sue the state to intervene in order to make possible its realization by one means or another, including by way of adoption. The question from another angle is whether the constitutional right to a family and to parenthood, which is granted to every person per se, engenders a right to obligate the state to act in order to make family or parenthood possible in the event that a person is not able, or does not want, to realize them in a natural way, e.g., by way of adoption, or through surrogacy, or by IVF. Does a lack of action on the part of the state amount to a “violation”, the constitutionality of which is subject to the limitations clause? These questions are complex and multi-faceted. They touch on the connection between a constitutional right and the means available to a person for realizing the right. They involve issues with extensive normative, moral, social and other ramifications. The approaches to their solution are subject to the influences of time, place and circumstance.

23. At the same time, for our purposes, it may be said that according to the constitutional conception prevailing in our system, recognition of a constitutional right to parenthood and to family rests on the assumption that the right is protective in nature, and it does not give rise to a correlative obligation of the government to act. It is concerned primarily with protection from government interference, as opposed to fulfilment by the government of a duty to take positive action to provide various means aimed at enabling realization of the right. The right to parenthood extends over the autonomy of the individual will. It does not spill over into an area in which intervention of the state is required for its realization. Intervention of the state in areas such as adoption, surrogacy and artificial reproduction, which constitute different means of realizing parenthood, occurs in the framework of its governmental activity, and it is subject to administrative judicial review; but it is not the expression of a duty that exists as a response to a person’s constitutional right to realization of parenthood by alternative means to natural birth. It is not out of the range of possibility that changing times, social dynamics and human needs will bring with them, over time, changes in the constitutional conception regarding the role of the state in providing the means for realization of a person’s right to family and parenthood. On this matter, the considerations pertinent to the different means are not necessarily identical, and the adoption of a child, who is an independent entity and the subject of rights, is unlike means that are designed to enable childbirth, such as surrogacy and IVF. The question of the extent to which the state must help the individual by making available the means for assisted reproduction through artificial reproductive techniques is difficult and complex. The greater the intervention required from factors external to the reproductive processes, the further removed we become from the inner core of the right to parenthood, which is based on the autonomy of the individual and his independent right to make decisions that determine his fate without external interference. The extent of the state’s obligation to take positive action to help the individual to realize his natural parenthood by artificial means is a difficult and multi-faceted issue. In this context, various questions arise concerning the obligation to establish a system for the purpose of IVF and surrogacy (see National Health Insurance Law, 5754-1994 (Second appendix); National Health (IVF) Regulations, 5747-1987; and Surrogacy Agreement Law). The relationship between the conception of the right to a family and parenthood as a right of a protective nature, and between the extent of the legitimate expectation of the individual that the state will help him, actively, in realizing his right to parenthood by different means, raises complicated and difficult questions (M. Corinaldi, “The Question of Surrogacy in Israel – Comments on the Embryo Carrying Agreement Law, 5756-1996; Aloni Committee Report”, Hamishpat 3 (5756), 63, 67, 69).

Professor Shifman relates to the issue as follows:

‘From the point of view of possible intervention of society, the characteristic components of the substance of the right to be a parent, which are not hewn from the one block, should be noted. The primary component is the right to biological parenthood . . . . Particular attention should be paid to the distinction between the negative and the positive aspects, i.e. between restriction of the freedom of a person to take action to realize his right to parenthood in a way that he considers appropriate, and between negation of the assistance of society. The parameters of the positive assistance of the state are determined, inter alia, by means of the changes in the definition of legal parenthood that society is prepared to make in order to fulfil and confirm the desires of the individual (Shifman, ibid., at p. 169-170).

These questions greatly exceed the bounds of the discussion in this case insofar as they concern the various means of realizing parenthood other than by way of adoption. This is because the predominant conception in the area of adoption is built on the assumption that the adoption arrangement is designed first and foremost to provide a suitable response to the needs of needy children in cases in which the natural environment into which they were born and in which they were being raised was not capable of providing their basic needs. Handing a child over for adoption, and realization of the parenthood of the adoptive parents are an important by-product to which great moral value is attributed by society, but realization of parenthood by way of adoption is not the major purpose of the institution of adoption.

25. Adoption provides a response to the yearning of people to realize parenthood of children. Its importance from this aspect is obvious. At the same time, the state adoption arrangements are not part of a prospective adopter’s constitutional right to a family and to parenthood, and it does not establish a derivative constitutional right of that person to demand that the state enable realization of parenthood by means of adoption. As a citizen, he has a right to expect that the adoption arrangements will be applied by the state in a proper manner that comports with the criteria of public law, but this does not give rise to rights on the constitutional plane.

The focus of the child adoption arrangements under the Adoption Law is the best interests of the child whose natural environment and biological family cannot supply his basic physical and psychological needs. They confer on the state the power and authority to intervene in the natural family unit in order to safeguard the welfare of the minor child where the essential conditions for his growth are unavailable to him. The crux of the institution of adoption in the modern era is the wellbeing of the child, whose physical and psychological needs require attention (H.E. Still-Caris, “Legislative Reform: Redefining the Parent-Child Relationship in Cases of Adoption”, 71 Iowa L. Rev. (1985-6), 265).

The Adoption Law, in its basic conception, is directed at the wellbeing of the child. Section 1(b) of the Law, which constitutes the basis and corner-stone for an adoption order, states:

“An adoption order and every other decision by virtue of this Law will be issued if the Court deems them to be in the best interests of the adoptee.”

The arrangement in the Adoption Law is built on the basis of concern for the welfare of the child, recognition being accorded to the status and the constitutional rights of the biological parents to a family relationship and to realization of their parenthood, and subject to the provisions of the Law. The Adoption Law does not presume the existence of a right to adopt; it presumes the possibility of the existence of the ability to adopt when certain conditions of eligibility are fulfilled (sec. 3 of the Law): age and religion (secs. 4 and 5), and a successful trial period (sec. 6).

Indeed, a person’s decision to realize his parenthood by way of adoption belongs in the area of personal autonomy, which is protected from external state intervention. However, actualization of this decision goes beyond the bounds of personal autonomy, and it is subject to the adoption arrangements determined by the state, the main purpose of which is to promote the interests of the child, with those seeking to adopt fitting into the process of adoption in furtherance of the purpose of the welfare of the child, which will always be the central interest and concern of the institution of adoption (CFH 7015/94 Attorney General v. Anon. [13]).

26. The centrality of the principle of the best interests of the child in adoption proceedings is also a leading theme in the Convention on the Rights of the Child (which Israel signed and ratified) which states:

‘States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration . . .’ (art. 21).

The child enjoys an independent legal status, he is the subject of rights and obligations, and the accepted law is that in every decision that is taken in his regard, consideration must be given, first and foremost, to his best interests:

‘In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration’ (art. 3(1)).

The Committee for Examining Basic Principles in the Area of the Child and the Law and their Application in Legislation, chaired by Judge Saviona Rotlevy (December 2003), related to this matter in the following terms:

‘The Convention creates a broad duty on the part of states in all concerning the application of the principle of the best interests of the child. First, in determining that in relation to every action or decision undertaken in relation to children by the various state authorities, the best interests of the child will be the paramount consideration. In this way the Convention introduces the criterion of the best interests of the child into every public enterprise concerning the child, and into each action undertaken by private entities in the area of welfare. The significance of this determination . . . is that the whole body of rights, needs and interests of children enjoys a certain substantive priority over other considerations when a decision involving them is being made. This priority stems from the fact that the decision or action under discussion involves the child himself, and it is therefore natural that the determination in the framework of such decision or action will concentrate on the child himself’ (General Part of the Report of the Committee, at pp. 128-129).

(On the implementation in Israel of the Convention on the Rights of the Child see also: Israel Report of the Implementation of the Convention on the Rights of the Child, Ministry of Justice and the Ministry of Foreign Affairs, submitted to the United Nations Committee for the Rights of the Child in February, 2001, esp. pp. 154-160, which discuss adoption. On the historical development of the concept of “the best interests of the child” see: J. Ben-Or, “On the Meaning of the Concept ‘Best Interests of the Child’”, 29 (5734) Hapraklit, 608. On the transition from the “best interests of the child” to the theory of “the rights of the child” see: Y.S. Kaplan, “Children’s Rights in Israel Case Law – First Stage of Transition from Paternalism to Autonomy”, Hamishpat 7 (2002), 303; and Anon. v. Anon [3]).

27. The best interests of the child in terms of the Adoption Law are incompatible with the existence of a recognized legal right of a person seeking to adopt. The assumption regarding such a right distances the best interests of the child from the focus of interest of the institution of adoption, and it cannot be reconciled with the idea that the state has a humanitarian duty to care for needy children as an absolute aim which is not subject to the rights of others. Consideration of the aspirations of those seeking to adopt at the level of realization of this right would combine external considerations with those of the interests of the child, and detract from the realization of this central principle. This approach finds expression in the case law and the legal literature: they contain no legal recognition of the right of a person to demand that the state hands him a child for adoption, the child being an independent entity, with rights and existence of its own, unless this is essential for the purpose of protecting his welfare and best interests, and for that purpose alone. The duty of the state to safeguard the welfare of children in the hands of adoptive parents who are fit for that rule, in a situation in which the biological nuclear unit to which the child belongs cannot provide an appropriate response (cf. HCJ 415/89 Alon v. Child Services [14], at p. 791). The focus of the duty is on the best interests of the child. It does not encompass the aspirations of the prospective adopter to the extent of conferring upon him a legal right.

‘No person has the right to adopt a child. The argument that every citizen has the right to adopt rests upon a conception that has long disappeared from the enlightened world’ (per Vice-President Mazza in CA 10280/01 Yarus-Hakkak v. Attorney General [15], at p. 93).

This was discussed by C. Goldschmidt in his article “Adoption, Common Law Marriage and Homosexuality” (Hamishpat 7 (2002), 217), who said, inter alia (at p. 238):

‘It is not my intention to argue that a person has a “right” to adopt a child: there is no “right” here opposite which stands a duty of the state. The argument concerning the “right to adopt” of every citizen is an argument that rests on the proprietary conception of children, an argument which has long disappeared from the enlightened world . . . . Moreover, the right is that of the child, the right to grow up in a regular family unit, which will provide him with all that he needs for his development and growth until he is an adult who can take care of himself. The state bears a duty to provide the basic conditions so that the right of the child is not violated, particularly in situations in which the family unit itself does not succeed in providing these . . .’

28. Under comparative law, systems that are similar in their approach to the Israeli legal system, have not recognized a basic constitutional right to adopt a child in the broad sense.

In the United States, the existence of a right to adopt as a constitutional right has not been recognized:

‘It is manifestly clear that not every prospective adoptive parent has an expectation or entitlement sufficient for the recognition of a constitutional liberty interest in the right to adopt a child’ (2 AM. Hur. 2d Adoption §14 (1994)).

In the American case law presented to us by counsel for the state in the supplementary summation, a series of judicial rulings were cited to the effect adoption is not to be regarded as a constitutional right, and that such recognition would be liable to upset the correct balance between the various considerations and interests involved in the process of adoption.

Owing to their importance, we will quote at length from these cases (all emphases added). In Griffith v. Johnston 899 F. 2d 1427 (1990), the Court said as follows:

‘Although the Supreme Court has rendered decisions defining various elements of family relationships as “fundamental interests” none of those cases announced a “fundamental interest” in adopting children. What consequences would flow from the recognition of such an interest are unclear. The adoption process is now heavily regulated by states for the protection of all parties involved . . . . If the right to adopt is “fundamental”, must the courts review whether states may require that adoptive parents be sane, honest, financially capable or otherwise qualified to be good parents? When does the “fundamental right” to adopt overcome the right of privacy of the birth parents? May the state decide that certain kinds of children, contrary to the wishes of particular prospective parents, may not be adopted? To assert that such an individualized “fundamental right” exists is sloganistic and oxymoronic, since society must balance the interests of at least three parties – birth parents, child, adoptive parents – when legitimating adoptions.’

See also the judgment in Lofton v. Secretary of the Department of Children and Family Services, 356 F. 3d 804 (2004), as follows:

‘Neither party disputes that there is no fundamental right to adopt, nor any fundamental right to be adopted . . . see also Mullins v. Oregon, 57 F. 3d 789 (9th Cir. 1995) (“Whatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest.”), Lindley 889 F. 2d at 131 (We are constrained to conclude that there is no fundamental right to adopt"). Both parties likewise agree that adoption is a privilege created by statue and not by common law . . . Because there is no right to adopt or to be adopted, it follows that there can be no fundamental right to apply for adoption.’

In addition, see the decision in Behrens v. Regier, Secretary of the Florida Department of Children and Families, 422 F. 3d 1255 (2005): here too, the ruling was that there is no recognized right of adoption, and that at the center of the process of adoption is the rights of the child, as opposed to those of the prospective adopter:

‘Beherns has failed to point to any provisions of Florida law that grants prospective parents, like him and his wife, the right to adopt an unrelated child. In fact, Florida courts have held that no such right exists. . . . .

Additionally, Behrens cannot establish that, under Florida law, he has any legal claim of entitlement to have his adoption application approved. . . . Florida adoption laws – like the adoption laws of most states – provide that the decision to place a child in a prospective home is a discretionary one, where “the best interests of the child” always govern. . . . Hence, adoption is not viewed from the perspective of what rights prospective parents may possess; rather the “intended beneficiary of [an adoption] proceeding is the child to be adopted.”’

The State also referred to the analysis of the American case law on this matter in L.D. Wardle, “Preference for Marital Couple Adoption – Constitutional and Policy Reflections”, 5 Journal of Law and Family Studies (2003) 345.

In explicit provisions in the Adoption Law of the State of New South Wales, 2000, Australian law clearly states that a person does not have a right to adopt a child. Section 8 of the NSW Law prescribes:

‘8(1) In making a decision about the adoption of a child, a decision maker is to have regard (as far as practicable or appropriate) to the following principles:

(a) the best interests of the child, both in childhood and later life, must be the paramount consideration.

(b) adoption is to be regarded as a service for the child, not for adults wishing to acquire the care of the child.

(c) no adult has a right to adopt the child. . . .’

The Adoption Law, 1994 of the State of Western Australia states, in the Second Appendix to the Law, that there is no right to adopt:

‘1(3) There is no right to adopt a child. The adoptive or prospective adoptive parent with whom the child is placed with a view to the child’s adoption has the right to bond to the child.’

The State in our case also cited case law of the European Court of Human Rights. The European Council for Human Rights determined, on a number of occasions, that no right to adopt arises by virtue of the European Convention for the Protection of Human Rights and Fundamental Freedoms. On this subject, the court in the case of X and Y v. United Kingdom, (977) 12 DR 32 said as follows:

‘Whilst it is implicit in Article 12 that it guarantees a right to procreate children, it does not as such guarantee a right to adopt or otherwise integrate into a family a child which is not the natural child of the couple concerned".

See on this matter also the ruling in Dallilla Di Lazzaro v. Italy Eur. Commn. HR, App. No. 31924/96, admissibility decision of 10 July 1997, 90 DR. 13:

‘The right to adopt is not, as such, included among the rights guaranteed by the convention and . . . Article 8 does not oblige States to grant to a person the status of adoptive parent or adopted child.’

See also X. v. Belgium and the Netherlands, (1975) 7 DR 75; X v. Netherlands, (1981) 24 DR 176.

In Frette v. France, 36515/97 [2002] ECHR 156, the European Court for Human Rights ruled that the decision of the French authorities to reject the application of an unmarried man with homosexual tendencies to adopt a child does not in contradict art. 8 of the European Convention on Human Rights. The court said as follows:

‘The court notes that the Convention does not guarantee the right to adopt as such. Moreover, the right to respect for family life presupposes the existence of a family and does not safeguard the mere desire to found a family. . . .’

And further on it stated:

‘Adoption means “providing a child with a family, not a family with a child” and that the state must see to it that the persons chosen to adopt are those who can offer the child the most suitable home in every respect. The court points out in that connection that is has already been found that where a family tie is established between a parent and a child, “Particular importance must be attached to the best interests of the child, which, depending on their nature and seriousness, may override those of the parent. . .”.’

See also the ruling of the European Court in Pini v. Romania [2004] ECHR 780/01.

Similar rulings were handed down in England, where it was held that a person does not have a right to adopt a child, and that in circumstances in which the adoption had not been completed or where there were no de facto family ties, there is no protected meta-right: Thomson & Ors, R o the application of) v. The Minister of State for Children [2005] EWHC 1378 (Admin) (04 July 2005).

It is important to note – and the State addressed this in its pleadings – that regarding the existence of a right to adopt, there may well be a distinction between a normal situation in which the adoption of a child is sought in a regular adoption process in which the prospective adopter has no prior connection with a particular child, and a situation in which adoption is sought when in reality a de facto family exists for all intents and purposes, i.e., when full and complete family ties have already been established in practice between the prospective parents and a particular child. Foreign case law has considered such a possible distinction, negating the existence of such a right in the first case and tending to recognize the right in the second (see the decision of the constitutional court in South Africa in Du Toit and Another v. Minister for Welfare and Population Development and Others, (2002) 13 BHRC 187.

It should be emphasized that we are not dealing here with the special situation of an application for adoption aimed at conferring recognized legal status upon an actual familial parent-child relationship that hs developed: such a situation which may well support a claim to an existing constitutional right to formalize the existing family relationship in the framework of adoption, within the parameters of the wider constitutional right to a family. Rather, our concern is with the question of the existence of a constitutional right to adopt a child in general, in the absence of any prior connection between the person seeking to adopt and a particular child.

29. Even though a right of prospective adopters is not recognized, they may have a legal interest that must be considered before the adoption order is issued. This is not a legal right, but a legitimate expectation that must be taken into acount when exercising administrative and judicial discretion. In the course of the adoption process, and prior to issuing an adoption order, the dominant consideration is the best interests of the adoptee. Alongside this consideration, the court considers the rights of the natural parents. It also considers the interests of the prospective adoptive parents, when they are raising the child in their home:

‘. . . It is also appropriate to consider the interests of those seeking to adopt the minor child. They do not have a right to custody of the child, but they do have an interest that must be considered. Even though this interest does not have the weight of the right of the natural parents, it too is a factor that must be taken into account’ (per President A. Barak in CA 577/83 Attorney General v. Anon. [16] at p. 471).

Neither do those to seek to adopt have direct standing in the preliminary stages of adoption proceedings. This standing is accorded to the biological parents and the Attorney General as representing the public interest. The prospective adopters do not stand in the forefront of the proceedings, but only behind the scenes (LFA 6930/04 Anon. and Anon. Prospective Adoptive Parents of the Minor v. Biological Father [17]; and see Maimon, supra, at pp. 30-34.)

30. In its basic concepts, the institution of adoption rests on the humanitarian duty of the state to pursue the best interests of children whose biological families cannot respond to the basic requirements of raising them, and to integrate these children into life in adoptive families in which they will be able to grow and develop in conditions of physical and psychological wellbeing. This primary aim of the adoption arrangements also provides a response, as a by-product, to the desparation of childless couples to adopt a child, or to the desire of parents of biological children who wish to adopt another child. These prospective parents have a legitimate expectation that a suitable arrangement will exist, the criteria and means of implementation of which are conducted in a proper manner. They do have the right that their application for adoption be treated fairly, in good faith, out of relevant considerations and without discrimination. This right does not amount to a right to adopt; a fortiori it does not amount to a constitutional right to adopt, derived from the right to a family and to parenthood. Prof Shifman explained this in his abovementioned work, at pp. 145-150:

‘This institution [of adoption – A.P.] is clearly almost the absolute opposite of the previous model, which was characterized by the autonomy of the individual in natural reproduction. In the adoption of children, we have a selective distribution, controlled totally by the state, that operates through the welfare authorities . . . what is the justification for the selective distribution of children for adoption, which is controlled totally by the welfare authorities? . . . A number of answers and explanations can be offered for the phenomenon of intervention in adoption. The preliminary explanation is: the scarcity . . . as a result of a scarcity in supply, and of the constant rise in the number of those applying to adopt, the adoption authorities are forced to tighten the criteria of “entitlement” to receive a child, and the waiting periods until the child is handed over stretch out . . . But we must point out that considerations of scarcity, per se, are not the only consideration supporting the need for state intervention. The other, and possibly determinant consideration, is the welfare of the child. In truth, the preliminary orientation of the institution of adoption is the solution of the problem of homeless children, and only indirectly, and as a secondary goal, is the anguish of childless people who wish to adopt a child likely to be relieved. It must be stressed: A person does not have the right to adopt a child. His right is not to suffer adverse discrimination relative to other applicants, and that he be treated fairly, and without superfluous bureaucracy; but the point of departure is the best interests of the child. . .

In any case, we may sum up and say that in the adoption at hand, there are several cumulative factors that create the model of intervention: first, the scarcity of children; second, the desire to safeguard the best interests of the child who has already been born; third, the effective ability to intervene in light of the need for the involvement of other people, other than the couple themselves; fourth, the intervention does not affect the intimate decisions of the couple themselves, nor their freedom over their bodies; and finally, in adoption, society is providing positive assistance to the will of the couple to become parents. These factors do not operate in the natural reproduction of a child, at the stage at which his parents decide whether to bring a child into the world’ (and see also at pp 52-53; emphasis added).

31. Even though prospective adopters have no recognized legal right to adopt, the state must take into consideration and respect their expectation to do so as a natural and legitimate one, and as an important factor in finding a fitting solution to the main purpose of adoption – to promote the best interests of the child in need. And indeed, among the criteria for adoption set by the state institutions (the Child Services in relation to domestic adoption, and the Minister of Labor and Welfare in intercountry adoption) may be found a type of merger between considerations of the “best interests of the child” that are not detached from general social considerations, and the desire to establish a fair administrative arrangement in relation to those who seek to adopt (Shifman, supra, at p. 148).

32. In summary, we cannot accept the argument of the petitioners whereby those who seek to adopt have a constitutional right to do so, and that the state must provide a response to this right for otherwise, it would be violating a constitutional right that is subject to the principles of the limitations clause. During the course of the adoption process and prior to the adoption order, those seeking to adopt have a natural expectation and a recognized interest. A legal right, and a fortiori a constitutional right to adopt, are not recognized. This does not detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full duties and rights that characterizes parent-child relationships is created between the adopted and the adoptee, replacing the biological blood ties of the child with his original family, and a new family unit, bearing constitutional rights, is created.

The argument of the petitioners on the constitutional level must, therefore, be dismissed. Their arguments on the administrative level ought now to be examined, insofar as they relate to the administrative acceptability of the maximum age difference rule according to the criteria of public law.

The administrative level

33. On the administrative level, it was argued that the maximum age difference rule does not meet the criteria of public law, and that it harms the petitioners in two respects: the first – in the unreasonableness of the age difference that was set in the rules and in the creation of a rigid rule, that fixes an age difference between the adopter and the adoptee in relation to the process of intercountry adoption with no allowance made for special circumstances; the second – in that the petitioners’ group suffers discrimination vis-à-vis groups who seek to adopt in a domestic process, in relation to whom no similar rigid rule exists. In analyzing the administrative arguments, we will concentrate on the area of judicial review of administrative rules that by their nature constitute secondary legislation that was submitted to the Knesset for approval, as is the case with the rules in question (Y. Zamir, Administrative Authority vol. 1 (5756-1996), at pp. 75-85; HCJ 4769/90 Zidan v. Minister of Labor [18], at p. 172).

The background to the formulation of the maximum age difference rule

34. The Rules and Professional Guidelines for the Activity of a Recognized Non-Profit Organization, 5758-1998, which are the relevant rules here and which include the maximum age difference rule, were issued by the Minister of Labor and Welfare on the basis of the recommendation of the Advisory Committee by virtue of sec 28F of the Adoption Law. The members of the Committee include an expert in the field of social work, the chief welfare officer for the purpose of the Child Adoption Law and the Central Authority for Intercountry Adoption under the Law, the national inspector for intercountry adoption in the Ministry of Labor and Welfare, head of the advisory department in the Ministry of Justice, and a rabbi. This Committee was established for the purpose of advising the Minister “on matters of intercountry adoption, including recognition of an adoption association, withdrawal or suspension of recognition of an adoption association, the establishment of professional guidelines and rules for the mode of operation of a recognized adoption association and its supervision (sec. 28F(a) of the Law). This is a professional body whose considerations are professional. The said rule concerning the maximum age difference, too, was laid down on the basis of professional considerations relating to the welfare of the child that were weighed by the Advisory Committee and submitted as recommendations to the Minister. Accordingly, the petitioners’ argument whereby the rules were fixed without the requisite factual and professional basis must be dismissed. In the framework of his considerations, the Minister initially decided that the maximum age difference would be 45 years. On 23 December 1997, a proposal was submitted to the Law and Constitution Committee of the Knesset with additional regulations on the matter of intercountry adoption. Following deliberations in the Committee, which related, inter alia, to the question of the age difference, the proposal was amended and the age difference was extended to 48 years. It was also decided that the determining date for calculating the difference would be the date of submission of the request to adopt. After these changes were made, the Committee approved the rules (Protocol no 136, Session of the Law and Constitution Committee of 23 December 1997, R/2 – Response of the respondent to the original petition). The rules, therefore, were approved by the Law and Constitution Committee, as required by s. 36(a) of the Adoption Law.

Reasonableness

35. An examination of the reasonableness of an administrative act, including secondary legislation, requires a suitable balancing of relevant considerations:

‘The reasonableness of a decision is determined by balancing the values competing for supremacy, according to their weight, and deciding between them at the point of friction. Our concern, therefore, is with the doctrine of balancing in our public law. This is invoked where there is governmental authority, the exercise of which grants discretion that must take into account conflicting values and interests (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 37; see also HCJ 953/86 Poraz v. Mayor of Tel Aviv-Jaffa [20]; HCJ 217/80 Segal v. Minister of the Interior [21]; HCJ 935/89 Ganor v. Attorney General [22], at pp. 513-514).

The balancing is effected by attributing relative weight to the various interests. “The act of ‘weighing’ is a normative act. It is designed to allocate to the various factors their place in the legal system, and their social value within the entirety of social values (per President Barak in HCJ 5016/96 Horev v. Minister of Transport [19], at p. 41).

36. Unreasonableness of secondary legislation constitutes independent grounds for an administrative challenge (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172). Judicial policy in reviewing the reasonableness of secondary legislation is guided from a point of departure that seeks to protect the statutory norms laid down by an administrative body, as well as the expectation created by that legislation amongst the public. Accordingly, the court, as a rule, will not intervene in the discretion of the administrative body in relation to the secondary legislation that it formulated, unless the unreasonableness of that legislation goes to the heart of the matter “and it is almost certain that, according to the correct degree of reasonableness, the authority would not have been able to reach a decision of that sort” (Justice Elon in HCJ 558/79 Jamal v. Jewish Agency [23], at p. 429).

‘In such a case, the court is bound to act with restraint and forbearance, so that it should not be found to replace the discretion of the administrative authority with its own discretion. It has therefore been held that only unreasonableness of a high degree – “extremely radical” . . . or “exaggerated” . . . is likely to justify judicial intervention in the validity of secondary legislation. Moreover, the court must exercise special caution before intervening in secondary legislation that has obtained the approval of one of the Knesset committees’ (HCJ 4769/90 Zidan v. Minister of Labor [18]), at p. 172; and see CA 492/73 Speizer v. Council for the Regulation of Gambling in Sport [24], at p. 26).

The reasonableness of secondary legislation is assessed, inter alia, in light of its general purpose, even if in the specific case it may cause injustice (HCJ 702/81 Mintzer v. Central Committee of the Israel Bar Association [25], at p. 13; CA 438/88 Barak v. Registration Committee for the Registry of Psychologists [26], at pp. 671-672). The criteria for judicial review of an act of secondary legislation from the aspect of reasonableness focuses on the parameters of reasonableness within which various options are possible, each of which may meet the criteria of proper administration. It is sufficient that the legislative act fall within these parameters in order for it to meet the criteria of administrative reasonableness.

From the general to the specific

37. The first basic assumption in determining the reasonableness of the maximum age difference rule is that setting specific criteria for the eligibility of prospective adopters is dictated by necessity, in order to establish a system of clear, organized norms in a field that is so sensitive and fateful in a person’s life. The Court related to this when it said:

‘The area of the processes for preparing the lists of adopters or selecting the prospective adoptees, including screening and examining them, ought not to be conducted other than on a clear normative basis; it should be subject to the defined responsibility of a governmental body, whose decisions and modes of operation are subject to review in light of clear criteria. In other words, the authority to deal with these pre-judicial areas should be fixed by law, in order to define, inter alia, who will determine the principles of operation and what are the means for challenging or appealing the various decisions at the said stage, at which there is not yet the possibility of recourse to legal processes according to the above law. It is very possible that it would indeed be reasonable if provisions such as these were to find their place in the Adoption of Children Law, and this may be effected by authorizing the Minister of Justice, in consultation with the Minister of Welfare, to make regulations, inter alia, in all concerning the means for determining prospective adoptees, the means for determining eligibility, appeals and objections and other such provisions. At present the matter is not regulated by law, and this must be corrected’ (HCJ 415/89 Alon v. Child Services [14], at pp. 790-791).

38. A second basic assumption is that criteria are set solely in pursuit of the child’s best interests. In the framework of this principle, it is only natural to regulate, as well, the suitable and reasonable age difference between the adopters and the adoptee. Such determinations are accepted in many states world-wide. Already at the time of the debate on the Adoption Bill in 1959, it was proposed to set a maximum age for adoptive parents, since “the child’s best interests require not a grandfather’s house, but father’s house” (Knesset Proceedings 25, at pp. 934-935). This proposal was not adopted in the Law, but the maximum age limit was set by the Child Services, which is the organ responsible for determining eligibility of prospective adopters (Maimon, supra, at pp. 111-112). As opposed to this, the Law prescribed a minimum age difference between adopter and adoptee, which stands at 18 years. There is an exception: the court has the authority to deviate from this rule where it is in the best interests of the adoptee to do so (ss. 4, 25 of the Adoption Law).

39. The third basic assumption is that the factor of the suitable age difference, including the maximum age difference between the adoptive parent and the adoptee, is a matter for professionals, and belongs in the fields of social, psychological and educational science. The purpose of setting an age difference is focused entirely on the best interests of the adoptee: this is the guiding principle underlying adoption, and the entire system of adoption is built upon it. The question of whether the best interests of the child are indeed affected, inter alia, by the difference in age between himself and his adoptive parents, and what ought to be the maximum and minimum age differences for this purpose, is a professional question, and as such it is clearly a matter for the discretion of the authorized body, which for this purpose has recourse to the opinions of professional bodies from the various relevant fields.

40. As transpires from the response of the respondent, and from the deliberations in the Knesset Constitution Committee, the Advisory Committee held many discussions on the subject of the appropriate age difference for the purpose of intercountry adoption, and the rule that was formulated relies on a professional conception, as evident from the “Summary of the Position on the Matter of Deviation from the Maximum Age Difference” of 20 August 2002, which was drawn up by the Chairman of the Advisory Committee, Prof. Joseph Tamir, and submitted to the Court (hereinafter: “Advisory Committee Position Summary”). In this document, inter alia the rationale behind determination of the maximum age difference rule was explained:

‘The Committee commenced with a discussion of the subject of parenthood and the skills it required. It noted that parenthood is not a one-off event, but a process that requires changing skills according to the age and development of the child . . . . The parent of an adolescent must have the capacity for flexibility, concession, responsiveness to the emotional needs – which are sometimes confusing – of the youth . . . . Such (adoptive) parenthood must incorporate the skills required from biological parenthood, and in addition, special awareness of the complexity of the subject of adoption. Adoptive parenthood is, therefore, a more challenging parenthood, requiring a wider range of skills and greater parental capacity to deal with complex situations, and constant learning of the subject of adoption. Therefore, the Advisory Committee gave its support to the existing age constraint, since the professional knowledge indicates that the capacity for flexibility and learning declines with an increase in age. The Committee envisaged an adolescent of 15 with one parent aged almost 65 and the second parent much older than that. Thus the generation gap between the adopter and the youth is not a gap of one generation but of at least two generations, with all the implications thereof. Experience in the Child Services teaches that the generation gap increases the sense of otherness of the adopted child, who feels that he is not growing up in a normative family, and that his parents are different from other parents.’

Similar thinking emerged during the discussions in the Constitution Committee, in the words of Nechama Tal, the social worker in the Ministry of Welfare:

‘To be a parent is a difficult job. To be an adoptive parent, is ten times more difficult. Today we are in the situation in which people who were adopted both as babies and as children come back . . . First of all, the age of the parents is extremely significant– most of the children who were given to older couples complain a lot about this. In what sense? In the sense that an adopted child, because he has “built-in” problems of identity from the fact of being adopted, at the age of adolescence has much greater difficulty in undergoing the experience of his adoption, of adolescence and of his identity, than a regular child . . . I am talking about my experience, I have been in the Service for twenty years . . . therefore, for parents to go through such a stormy age of adolescence, when they themselves are 65 years old, is a difficult thing . . .’ (Protocol of the session in the Law and Constitution Committee, 23.12.97, pp. 25-26).

41. The foundation of the rule, therefore, is the conception that an suitable age gap between the adoptee and the adopter is an important element in achieving a good and proper parental connection in adoption relationships. Too great an age difference between the adopter and adoptee is liable to make it difficult to create a close, understanding and sensitive relationship between parents and child, and to be detrimental to his welfare. The requirement that the age gap not exceed a certain difference is extremely important for the creation of good communications within the family and to the building of a healthy set of relationships within the family unit in order to achieve the aims of the adoption.

It should be added that setting a maximum age different is stems from the outlook that adoption relationships look to the future, and continue over the years, throughout all the stages of the life and development of the adoptee. Attainment of the purpose of the child’s wellbeing does not focus on one point of time close to the time of adoption, but it spreads over a span of many years, beginning with the first years of the child’s life, and extending to the years of his growing up until he is an adult. Too large an age difference is liable to make it difficult for adoptive parents to cope with the special needs of educating an adopted child. They are liable to entail other difficulties when the child is growing up, involving difficulties of communication and in providing a response to the needs of the maturing child. One should also not underrate the importance of ensuring the prospects of a reasonable lifespan and the good health of the adoptive parent – which decrease with age – in order to ensure, insofar as possible, that the adoptee has a warm family unity and a complete, protected framework for the duration of his childhood and his youth. Primarily, the maximum age difference rule strives to conform to the average accepted age difference in natural parenthood, leaving wider margins in the intercountry adoption process. The approach whereby the model found in nature is the marker that in general reflects the ideal natural situation is a desirable approach, not only from the point of view of physical suitability, but also from the point of view of psychological suitability. Setting the maximum difference at 48 years constitutes a significant extension of the age difference familiar in nature, and it is difficult to say that an additional extension is required in order to meet the criterion of reasonableness.

42. Regarding the age difference that was set in relation to intercountry adoption, it is important to note that in this area in particular, the secondary legislator acted leniently with respect to adoptive parents, when he set a maximum gap at 48 years. In domestic adoption, the age difference is set at 43 years, pursuant to the amended “Procedure Approving Prospective Parents for Adoption” of the Child Services, which is the body responsible for handing over children for the purpose of adoption. From this aspect, the Committee assigned weight also to the expectations of those seeking to adopt, and permitted a larger age gap in relation to intercountry adoption than in domestic adoption.

‘It should be noted that the Committee gave serious consideration to the subject of the desire of the prospective adopters, and views its task, inter alia, as helping people to realize this desire, taking into account the quality of family life. The said rule does not negate the right of the candidates to fulfill themselves as parents, but it limits the age difference in such a way that a candidate who is fifty, for example, will be able to adopt a child of two and thus realize his desire for parenthood. The right to parenthood is not only for a baby. Representatives of the Child Services pointed out to the Committee that in their experience, the adoption of a child (not a baby) can be handled well and lead to satisfaction of the yearning for parenthood on the one hand and great benefit for homeless children on the other’ (Advisory Committee Position Summary, ibid.)

43. Several additional aspects relating to the maximum age difference rule should be mentioned:

(a) The meaning of the rule is that exceeding the maximum age difference does not totally negate the possibility of adoption. The rule works in such a way as to enable adoption, as long as there is compliance with the maximum age difference. Thus, an adoptive parent who is over the age of 48 can adopt a child whose age comports with the maximum difference or less. In these circumstances, the possibility of adopting is preserved, and the adopter is required to compromise in relation to the factor of the age of the child at the time of adoption. An examination of the existing statistics on adoption that arise from the respondent’s response reveals that the adoption of new-born babies is only a very small part of the total adoptions by Israeli parents. Only 14% of child adoptions relate to babies up to 6 months old; 40% of the adoptions are of babies up to the age of one year, and 25% relate to babies till the age of 18 months.

(b) Even though the formulation of the rule on this matter is not sufficiently clear, it would appear that the requirement for a maximum age difference of 48 years between the adopter and the adoptee relates to only one of the couple. The requirement does not apply to both partners. One partner may well be older and exceed the maximum age difference, and this will not prevent the adoption by the couple (respondent’s interpretation of the rule in s. 14(b) of the State’s response to the amended petition).

(c) The maximum age difference relates to the day of submission of the application for adoption, and not to the actual date of adoption. Hence, a prospective adoptee will not suffer, from the aspect of the maximum age difference rule, from the adoption proceedings being drawn out.

(d) It was argued that the maximum age difference rule is tainted with unreasonableness, since it is presented as an inflexible rule that does not allow the competent authority discretion to depart from it in appropriate circumstances. In the course of the hearings on the petition, the State was asked to consider whether the maximum age difference rule could be relaxed by allowing discretion. After further deliberation, the State announced that the introduction of such flexibility was not warranted. Its reasons were as follows: first, there is a concern that allowing exceptions to the maximum age difference rule would lead to a natural positioning of the focus on those seeking to adopt, in departure from the principal purpose of the norm, which is concerned with the best interests of the child. Secondly, deviation from the maximum age differences places a question mark over the effect of the age gap in the years to come, the impact of which is difficult to foresee at the time of the adoption proceedings. Thirdly, the maximum age difference in intercountry adoption is greater than the norm in domestic adoption, and this already reflects a significant relaxation of the appropriate and reasonable gap. Any further relaxation, by way of creating exceptions, upsets the appropriate balance. And fourthly, the existence of clear rules relating to the eligibility of adopters in the framework of the professional activities of the adoption associations is important. The process of intercountry adoption is executed by private bodies with the oversight of the state. The existence of clear, uniform criteria will facilitate the operation of the adoption associations, and it will ensure equal, non-discriminatory treatment and that the wellbeing of the child is seen as the principal aim.

The cumulative weight of the above reasons leads to the conclusion that the maximum age difference rule falls within the bounds of reasonableness. This rule focuses on the best interests of the child as required, and it is compatible with the purpose of the institution of adoption. The limitation on the age difference between the adopter and the adoptee is directed at the welfare of the adopted child at various points in time along the axis of the years of his life in the course of his childhood, his adolescence and his youth. It is designed to help in creating relationships textured with warmth, sensitivity and understanding within the new family unit that is built around the adoption. At the same time, the rule is more lenient in relation to adopters in intercountry adoptions than domestic adoptions in that it allows for a greater age gap. The limiting rule does not negate adoption by older parents, as long as the age of the adoptee at the time of the adoption is not outside of the maximum permitted gap. This is a commendable, balanced, relevant and professional arrangement that answers the purpose of the institution of adoption. There is no cause to intervene since the arrangement is not defective due to unreasonableness.

The claim of discrimination

44. The petitioners claim that the maximum age difference rule is tainted by discrimination that distinguishes them vis-à-vis other population groups, as follows: first, in relation to parents who bring children into the world through natural birth, with respect to whom there is no state intervention even when the birth takes place at a late age, and when the age difference between the parents and the new-born is more than 48 years. Secondly, it was argued, that in relation to couples who wish to have a child by way of a surrogate, pursuant to the Embryo Carrying Agreements Law, there is no provision limiting the age difference, and therefore, in this sense too, there is a discriminatory situation in relation to the age provisions in intercountry adoption. This argument extends also to state assistance for those who resort to fertility treatments in order to give birth. Thirdly, it is argued, that there is discrimination between those seeking to adopt by way of intercountry adoption and those who seek to adopt by way of domestic adoption: in relation to the latter, the internal procedural directive grants discretion to deviate from the rule.

45. One of the main functions of judicial review of the policies of the competent authority is to examine whether that authority acts in an equal manner and without discrimination towards different sectors of the population. The principle of equality is one of the basic principles of the constitutional regime, and it is a foundational value in public law and in judicial review of administrative acts (HCJ 637/89 Constitution for the State of Israel v. Minister of Finance [27], at p. 201; HCJ 98/69 Bergman v. Minister of Finance [28], at p. 698). Unlawful discrimination that is contrary to the value of equality involves different treatment of equals and unequal and unfair treatment of those deserving of equal treatment. Inequality is engendered by creating distinctions between individuals or between matters for irrelevant reasons. At the same time, the existence of a material difference may justify a distinction, provided that the basis for the distinction has a relevant foundation (HCJ 678/88 Kfar Veradim v. Minister of Finance [29], at pp. 507-508; HCJ 6051/95 Recanat v. National Labor Court [30], at p. 312; HCJFH 4191/97 Recanat v. National Labor Court [31]; Y. Zamir and M. Sobel, “Equality Before the Law”, 5 Law and Government (2000), 165; HCJ 59/88 Zaban v. Minister of Finance [32], at p. 706-707). Sometimes, it is precisely the aspiration to apply the value of material equality that justifies differential, differentiating treatment of different sectors, according preference to the weak and needy and detracting from the strong and able (HCJ 6778/97 Association for Civil Rights v. Minister for Internal Security [33], at pp. 365-366; HCJ 366/81 Bureau of Tourist Bus Operators v. Minister of Finance [34], at p. 117). Sometimes, affirmative action is required in order to correct deep gaps and unfairness that has increased over the years (see also HCJ 1703/92 C.A.L. Cargo Air Lines v. Prime Minister [35]; HCJ 20594 Nof v. State of Israel – Ministry of Defense [36]). Equality does not require identity. It requires equal treatment of people whose basic particulars are similar and are relevant for the same purpose, and as expressed by Justice Agranat:

‘The concept of “equality” in this context means, therefore, relevant equality, and this requires, for the purpose under discussion, “equality of treatment” of those who are characterized by the said situation. As opposed to this, it would be a permissible distinction, if the difference in treatment of different people was the outcome of their being, in consideration of the aim of the treatment, in a situation of relevant inequality, just as it would be discrimination if it was the outcome of their being in a situation of inequality which was not relevant to the aim of the treatment’ (FH 10/69 Boronowsky v. Chief Rabbi of Israel [37], at p. 35).

In our case, a clear relevant difference exists between the group seeking to adopt – to which the petitioners belong – and the other groups to which they referred in their pleadings.

46. As for the group that includes biological parents who bring children into the world the natural way: as we mentioned at the beginning of our words, the right to a family and to realization of parenthood in a natural manner is a basic constitutional right that derives from human dignity. This right is by its nature a “liberty” that does not involve the correlative obligation of another, and the state is not entitled to intervene in the autonomy of the individual that it represents, other than in unusual and exceptional circumstances. As a result, the state is not entitled to intervene in an act of natural childbirth on the part of parents, even where the age difference between them and the child exceeds the maximum age difference under discussion here. At the same time, situations of such an age gap are rare and very exceptional, and they do not reflect the natural reality in relation to the majority of the population. Things are different in relation to adoption. The state controls the institution of adoption, which is its exclusive responsibility. The focus of the system is on the best interests of the child as a principal aim, and determination of the maximum age is an important element in promoting these interests. Prospective adopters can expect, at most, consideration on the part of the state. Against the background of this structure, the role and the obligation of the competent authority is to set criteria of eligibility for those seeking to adopt, which will provide the greatest possible benefit to the child, whose interests are the focus of the system.

There is, therefore, no equality between that sector of the population that includes the natural parents, whose decision whether and when to have a child is a matter of their personal autonomy and is beyond the sphere of intervention of the state, and between the group of prospective adopters, who require the assistance of the state in order to realize their goals. The state, as the factor responsible for the wellbeing of the child is permitted, and even has a public obligation, to set the conditions of eligibility for adoptive parenthood. The maximum age difference is a required condition. Setting the maximum age difference at 48 years is actually being very kind to those pursuing intercountry adoptions, in that it is based on a difference that substantially exceeds the accepted and common difference in natural parenthood, which normally fluctuates between 20-35 years. It must also be recalled that in domestic adoptions, the accepted age difference according to the rules is also lower than the rule under discussion here. In light of the above, the argument in this context must be dismissed.

47. As for the group that has recourse to embryo carrying agreements, an amending announcement of the respondent clarified that in the past, the age of the prospective mother for the purpose of a surrogacy agreement was at most 48 years old. On this matter there was a change, and the competent authority decided that for the purpose of approving their candidacy for surrogacy, the Committee for the Approval of Embryo Carrying Agreements would take into account the age of the prospective parents, the starting point being the accepted age of natural parenthood. Age does not constitute a prerequisite, but a consideration when determining suitability, and for this purpose, the natural age of parenthood constitutes a starting point.

On this issue, too, we are not dealing with groups whose particulars are equal, but rather, with groups that are distinguished by substantive differences, which explains the difference in the arrangements concerning the required age differences.

First and foremost, cancellation of the age difference requirement in embryo carrying agreements does not, in these circumstances, make things easier for the applicants; on the contrary, it should be seen as making things more difficult for them vis-à-vis those seeking intercountry adoptions. Whereas beforehand, there was a precondition setting the age difference at 48 years, now it is a matter for the competent committee, and the relevant age is the accepted age of natural parenthood, which is the starting point for the appropriate difference. This condition means that in an embryo carrying agreement, the maximum age is significantly lower than that of intercountry adoption, at least as a starting point. In these circumstances, it could well be argued that there has been an increase in stringency in relation to those wishing to enter an embryo carrying agreement, vis-à-vis prospective intercountry adopters.

Secondly, there is a material difference between the process of surrogacy and that of adoption. Surrogacy is closer to natural parenthood, and its goal is to help couples to bring a child into the world, the child being related genetically to one of them. The closer the process of birth is to natural parenthood, the less justification there is for state intervention in the autonomy of private will, as stated by the Court:

‘. . . The process of adoption is similar to the process of surrogacy: both of them were intended to realize and satisfy the need of parenthood, and in both processes, the authorities are involved in one way or another. However, the process of surrogacy – unlike adoption, is very close to natural parenthood, which expresses the autonomy of the individual . . . the difference between the process of adoption and that of surrogacy negates the analogy from the former to the latter . . .’ (New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], at p. 448, per Justice Cheshin).

This difference is also evident in relation to the funding of fertility treatments, an area that is even closer to natural childbirth, and therefore, the arguments of the petitioners regarding discrimination vis-à-vis those who are helped by fertility treatments must be dismissed. In this context, the words of Prof. Shifman concerning the difference between the process of adoption and new reproductive techniques are apt:

‘. . . It would appear that most of the considerations for intervention in handing children over for adoption do not apply to the new techniques of reproduction. This is not a matter of a scarcity of children, nor of the desire to ensure the optimal welbeing of the child who has already been born. This is a matter of planning to bring a child into the world, which is close to natural childbirth’ (Shifman, supra, at p.151).

Thirdly, another difference between the process of surrogacy and that of child adoption lies in the authorities who are responsible for approving the sought-after process. Whereas the approval of an embryo carrying agreement is issued by a professional public committee that was established by virtue of the Law, approval of intercountry adoptions was placed in the hands of private adoption associations; public policy in this area aspires to establish norms of eligibility that are as clear and detailed as possible, which will dictate the mode of operation of the adoption associations while creating clarity, certainty and stability.

In light of the above, the argument, insofar as it concerns the relationship between intercountry adoption and embryo carrying agreements and state aid in funding fertility treatments, must be dismissed.

48. Finally, it was argued that there is discrimination between those applying for intercountry adoption and those seeking domestic adoption. This argument, too, must be dismissed, even if only for the reason that the maximum age difference under the present procedure in domestic adoption is 43 years for the older one of the couple seeking to adopt (Rule 3.7 of the Procedure for Approval of Prospective Adoptive Parents, as amended on 1 June 2000). It was not made clear in the response of the State whether there is discretion to deviate from the rule, but even so, the internal rule is still more stringent, and does not create a basis for a claim of discrimination. In these circumstances, the argument of discrimination raised by the petitioners is unfounded, and must be dismissed.

Comparative law

49. Both the petitioners and the respondent presented to us numerous examples from states worldwide, and each clung to its examples to strengthen its arguments. One side brought examples of states in which there is no set maximum age difference for the purpose of adoption; the other side brought examples of states which have set a more stringent age difference than that set in Israel.

Indeed, a survey of the situation in various states reveals that there is no universal legal policy on the question of the age difference between adoptive parents and their child. On the one hand, there are those states that set a level for the maximum age difference. In these states, the decision is usually more stringent than that in Israel. Thus, for example, in Denmark, Italy and Ethiopia, the maximum age difference is 40 years. In Germany, the law does not set a maximum age difference, but in the rules set by the administrative authority, a maximum difference of 40 years was prescribed. In Iceland the rule is that the adopter will be between 25-45 years old, and in South Korea, the age of an adopter may not exceed 45 years. In other states, there is a maximum age for adoption, which is usually below 48 years. Thus, in Hungary, Holland and Hong Kong, the maximum age for adoption is 45. On the other hand, there are states in which there is no set maximum age difference or maximum age for the purpose of adoption. This is the situation in the United States and in England, in which age is indeed a factor that is considered in determining eligibility for adoption, but no defined, compulsory age has been set for this purpose. The petitioners did not provide any information concerning the actual practice in these states, and how the discretion given to the adoption authorities is implemented in practice. Without such information, it is difficult to know whether the absence of a rigid rule regarding the age of adoption or the maximum age difference is to the benefit or the detriment of those seeking to adopt in those states. Thus, for example, in England it was stated:

‘Although there is no prescribed maximum age, it should be appreciated that in practice, adoption agencies are unlikely to consider applicants over 40 (and often over 35) at any rate as potential adopters for healthy babies’ (N. Lowe & G. Douglas Bromley’s Family Law (9^th ed., 1998), p. 628).

Similarly, special arrangements exist in some states, such as Australia, in which the age requirement as a condition of adoption was cancelled, but it was decided that the applicants for adoption must comply with the age requirements of the state that is handing over the child for adoption.

Looking at the law overseas does not, therefore, strengthen the arguments of the petitioners. Setting an age difference is accepted practice in many states. In some of them, there is a more stringent age difference, and in relation to states in which there is no binding rule, we do not have information on how the discretion of the adopting authorities is exercised in the application of the age requirements in practice.

A final word

50. The rule regarding the maximum age difference between the adopter and the adoptee in intercountry adoptions does not violate constitutional principles. It complies with the criteria of proper conduct according to public law. It reflects an appropriate criterion, amongst the other conditions of eligibility of people seeking to adopt, which is designed to secure the best interests of the child by ensuring that the age difference between him and his adoptive parents will not exceed the reasonable norm. A balanced age difference between parents and children makes it easier to create harmony in relations between parents and children within the family unit, and it is important for the healthy growth and development of the adopted child. This consideration of the best interests and the wellbeing of the child is the cornerstone on which the institution of both internal and intercountry is built. The maximum age difference rule is fair, reasonable and non-discriminatory, and conforms to the basic purpose of the institution of adoption.

51. In view of all the above, the petition in all its parts should be dismissed. In the circumstances, I would recommend that no order for costs be issued.

President D. Beinisch

Before me is the reasoned opinion of my colleague Justice A. Procaccia. The petition before us centers on rule 4(b)(1) of the Rules and Professional Guidelines for the Activities of a Recognized Non-Profit Organization, enacted by the Minister of Labor and Welfare in 1998. This rule, called the “maximum age difference rule”, states that a person wishing to adopt a child in the framework of intercountry adoption, will not be eligible to adopt if the age difference between himself and the child on the date of submission of the application for adoption exceeds 48 years. As was explained in the opinion of my colleague, the petitioners challenge the said rule on both the constitutional and the administrative levels. On the constitutional level, the petitioners argue that the maximum age difference rule violates realization of the constitutional right to family life and to parenthood, and that the said violation is unlawful in that it does not meet the criteria of the limitations clause. On the administrative level, the petitioners contend that the said rule is unreasonable and discriminatory. The main request of the petitions is that we order that the rule be changed in such a way as to allow departures from it in special cases justifying such departure, even when the age difference between the prospective adopter and the child exceeds 48 years. It will be noted that in the hearing held in this Court on 25 February 2007, the State agreed that the petition be heard as if an order nisi had been issued.

My colleague, Justice Procaccia, discussed the arguments of the petitioners one by one, and dismissed them for the reasons elucidated in her opinion. I agree with many of the normative rulings on which Justice Procaccia’s opinion is based. Nevertheless, I wish to add my say on a number of aspects in which I differ from the path taken by my colleague. On the constitutional level, Justice Procaccia ruled that people seeking to adopt a child do not have a recognized legal right, and in her view, such a right ought not to be recognized on the meta-legal constitutional plane. As I will explain below, in my view, the matter is sensitive and complex, and I would therefore prefer to refrain from a firm ruling in the matter, for such a ruling is not necessary in the circumstances of the case before us. As for the administrative plane – my colleague’s conclusion was that the maximum age difference rule is fair, reasonable and non-discriminatory. My colleague’s words imply that this conclusion stands even if the existing legislation does not permit discretion to deviate from the said rule in exceptional, justified circumstances. For reasons that I shall discuss below, I am of the opinion that s. 36A of the Adoption of Children Law, 5741-1981 (hereinafter: “Adoption Law”) must be interpreted in such a way that the statutory appeals committee that it established is authorized to consider applications for a departure from the maximum age difference rule in intercountry adoptions, in special, exceptional circumstances that justify such a departure. Taking this into account, I am of the view that the petition should be granted in part, in the sense that the possibility of considering a deviation from the maximum age difference rule is not a matter for the private adoption associations as requested by the petitioners, but it can be entertained by the statutory appeals committee under the Adoption Law. I will clarify.

The constitutional plane

1. As stated, the main argument of the petitioners on the constitutional plane is that the right to become a parent by means of adopting a child enjoys a constitutional, meta-legal status in our legal system, and the maximum age difference rule violates this right, contrary to the conditions of the limitations clause.

In relating to these arguments, Justice Procaccia ruled that that prospective adopters have a natural and legitimate expectation that their said desire be taken into account in the framework of the exercise of administrative and judicial discretion, and even a right to expect that adoption arrangements will be implemented by the state lawfully in accordance with the criteria of public law. At the same time, according to my colleague’s approach, none of these give rise to a recognized legal right (“a right by law”) to adopt a child, and in any case, there is no cause to recognize a constitutional right as aforesaid. Justice Procaccia based her view on two main reasons: first, according to my colleague, recognition of a legal right to adopt children will lead to a conceptual confusion between the best interests of the child and the interests of those seeking to adopt, in a way that is liable to distance the main goal of the institution of adoption, which is the commitment to the meta-principal of the wellbeing of the child, from the center of interest. Secondly, according to my colleague, the constitutional right to family life and to parenthood – which stems from the constitutional right of a person to human dignity and privacy – is a right in the category of a “liberty”, the aim of which is to provide protection from unjustified external intervention of the state in the intimate decisions of the individual. Under this approach, the right to family life and to parenthood is of a negative character, and it cannot impose upon the state a duty to take positive action in order to promote the aspirations of the individual to establish a family and to become a parent. Justice Procaccia’s view is that a person does not have a constitutional right to realize his yearning for a child by alternative means to natural childbirth, and the state is under no active duty to make such alternative means available to him. In this context, my colleague commented that “it is not beyond the realm of possibility that changing times, social dynamics and human needs will bring with them, eventually, changes in the constitutional conception of the place of the state in providing the means for realization of a person’s right to a family and to parenthood. On this matter, the considerations need not be identical in relation to the different means, and adoption of a child, who is an independent entity and the subject of rights, is unlike other means that are designed to make it possible to bring a child into the world, such as surrogacy and IVF” (para. 23 above).

2. Regarding my colleague’s position, I will comment that in my view, definition of the internal scope of the constitutional right to family life and to parenthood is a sensitive, complex and multi-faceted question. The case law of this Court has recognized, in the past, a right to family life and to parenthood as a constitutional right that derives from human dignity, and also from realization of the right to personal autonomy and self-fulfillment (see Adalah v. Minister of the Interior [2], per President Barak at para. 32 ff., per Vice President Cheshin at paras. 46-47, my opinion at para. 6, per Justice S. Joubran at para. 8 ff, per Justice Procaccia at paras. 1, 6, per Justice Naor at para. 4, and per Justice Rivlin at para. 8; see also Neta Dobrin v. Prisons Service [5], per Justice Procaccia at para. 12).

At the heart of the constitutional right to family life and to parenthood is the natural and preliminary right of every person to bring children into the world, and by so doing to realize his existential instinct to establish the next generation bearing the genes of the parents. The kernel of the right to family life and parenthood also contains the right of the biological parent to custody of his children and to raise them, as well as the right of the child to grow up within the bosom of his biological parents by virtue of the blood ties between them. This is the “hard nut” of the constitutional right to family life and parenthood, about which there would seem to be no argument (see e.g. Nahmani v Nahmani [7], at pp. 680-681, per Justice T. Strasbourg-Cohen; Anon. & Anon. v. Biological Parents [6], at pp. 184-188, per Justice A. Procaccia; and LFA 5082/05 Attorney General v. Anon. [38], at para. 5).

The question that is more difficult to answer concerns the definition of the internal scope of the constitutional right to family life and to parenthood in contexts other than natural childbirth and biological parenthood. This subject has not yet been dealt with in depth in our case law. Thus, for example, in New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], this Court refrained from ruling on the question of whether the internal scope of the constitutional right to family life and parenthood includes the aspiration to bring a child into the world by means of an embryo carrying agreement, which is based on a division between the genetic code (originating in one or both of the parents party to the agreement) and the physiological aspect (which is realized by means of the surrogate mother who undergoes the pregnancy and the birth). As for realization of the yearning for a child by means of the institution of adoption – to date, the case law has tended to recognize the rights of prospective adopters only in circumstances in which actual family ties existed between the prospective adopter and the prospective adoptee, in a way that affected the examination of the best interests of the adoptee (see what I wrote in Anon. v. Attorney General [10], at pp. 175-176, on the matter of the adoption of an adult by a person who married his biological brother and raised him since he was a baby; see and compare: Yarus-Hakkak v. Attorney General [15], per President A. Barak, concerning a female couple who live together, and each applied to adopt the biological children of her partner; see also the recent decision of the House of Lords, which granted the petition of an Irish man who sought to adopt the biological child of his female partner with whom he lived out of wedlock: Re P and others (adoption: unmarried couple) [2008] 4 HRC 650). As opposed to these cases, in the case before us the argument of the petitioners is that constitutional status should be granted to their aspiration to become parents by means of the institution of adoption, at the preliminary stage of the process of adoption, in the absence of any reality of de facto family life with the concrete child.

3. As stated, Justice Procaccia discussed the reasons against constitutional recognition of the right to become a parent through the institution of adoption. However, as against these weighty considerations discussed by my colleague, one can muster counter-considerations that support according a constitutional status to the said right. Prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means and they wish to realize their yearning for a child by means of the adoption. According to this approach, a relatively broad definition of the internal scope of the constitutional right to family life and to parenthood ought to be recognized, while adapting the scope and intensity of the constitutional protection that will be afforded to the said right in different contexts, where it conflicts with opposing rights and interests. Inter alia, the degree of protection of realization of the right to family life and parenthood will be affected by the positioning of the case in the hub of the constitutional right or at its margins (see and compare: Adalah v. Minister of the Interior [2], per (then) Justice Rivlin, at para. 8).

In accordance with the said approach, the right to become a parent through the institution of adoption is situated on a more exterior circle vis-à-vis natural childbirth (which, as we have said, is included in the “hard kernel” of the right to family life and to parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents (see and compare: New Family v. Committee for the Approval of Embryo Carrying Agreements, Ministry of Health [8], per (then) Justice Cheshin, at p. 448). According to the approach of the petitioners, positioning of the right that they claim on a circle further from the core of the constitutional right is liable to affect the intensity of the protection afforded to those who seek to become parents by means of adoption of a born child who does not bear the genetic code of either of them. At the same time, according to the argument, this alone is not enough to negate the actual constitutional recognition of the right to become a parent by means of the institution of adoption, considering that realization of the yearning for a child is a basic and inseparable part of human dignity, of the realization of a person’s self-hood and his internal “I”.

It will be stressed that the petitioners to not presume to argue that the right of those seeking to adopt is an absolute right or that it should be granted maximal constitutional protection. Like all rights, the right claimed by the petitioners, too, is a “relative” right, and at times it must yield to competing rights and interests. In their pleadings, the petitioners did not dispute that the best interests of the child constitutes an overarching principle in our legal system and in international conventions that deal with child adoption, and that it is the principle of the best interests of the child that is the basis of the laws of adoption, as elucidated in the opinion of my colleague. It is clear, therefore, that even according to the petitioners, the constitutional right to become a parent through the institution of adoption cannot be discussed independent of questions of parental capability and the best interests of minors who have already been born. Moreover, there was no disagreement between the parties to this petition on the need to protect the rights of biological parents, and on their preferred status vis-à-vis people seeking to adopt – certainly at the early stages of adoption proceedings. No one disputes, therefore, that in the triangle of interests of the wellbeing of the child – rights of the biological parents – rights of those seeking to adopt, the status of the last group is relatively weak, and the constitutional protection they will be given will be less in scope and intensity, in view of the elevated status that must be assigned to the best interests of the child and to the blood ties between the child and his biological parents. At the same time, so goes the argument, one cannot ignore the fact that the institution of adoption – both domestic and intercountry – also satisfies the needs of childless people, who wish to realize their desire for a child even if the child will not be a biological descendent (see and compare: Shifman, Family Law in Israel, supra, at p. 148). According to that argument, the need to place the best interests of the child at the center of adoption law and the need to protect the rights of the biological parents do not mean that there is no room for recognizing the existence of a constitutional-legal right of those who seek to become parents through the institution of adoption, even though, as stated, this would be a relatively “weak” right from the point of view of the intensity of the protection it receives.

I would point out that an additional possible justification for an approach that supports constitutional recognition of the right to become a parent by way of adoption may be based on the close dependency of those seeking to adopt on state institutions. The state representative confirmed in her response before us that adoption in its very essence is “public”. Intervention and external arrangement on the part of the state are required for the purpose of handing children over for adoption. An individual seeking to adopt is unable to create the legal status of parenthood on his own – certainly when it is not a case of natural birth –and he requires the external validation of the state and its institutions in order to create the status of adoptive parent vis-à-vis the whole world. In view of this, it may be argued that there ought to be constitutional recognition of the right claimed by the petitioners, in order to balance the great power of the state in the said context. According to this approach, the constitutional right to human dignity – from which the right to family life and parenthood is derived – is not based only on negative content, and in suitable (although limited) cases, the said right is liable to impose positive duties on state authorities in order to protect individual rights and to provide a real possibility of realizing them (for a supportive view, see: Sigal Davidow-Motola, “Feminist Decision? Another Aspect of the Nahmani Case”, 20(1) Iyunei Mishpat 221, 227-228 (1996)). In this context, it will be noted that the State referred in its pleadings to statements in Nahmani v Nahmani [7] from which it transpires that the right to parenthood is a negative liberty which is not capable of imposing positive duties on the legal level (see ibid., at p. 682, 780-781, 790). On this matter, it is doubtful whether these statements apply in our case with the same intensity as in the Nahmani case, since that case dealt with the relationship between two individuals (former spouses), and not with the relations between the individual and the state. In the words of Justice E. Goldberg (ibid., at p. 726): “The question of whether the state bears an obligation to assist the individual in realizing his desire to be a parent does not arise in any way in this case.”

4. Thus, the fundamental issue concerning the question of constitutional recognition to become a parent by means of the institution of adoption is complex and sensitive. It is inextricably linked to the definition of the internal scope of the constitutional right to family life and to parenthood. It gives rise to questions concerning the essence of the institution of adoption and the relationship between the best interest of the child, the rights of biological parents and the desires of those seeking to adopt a child. It raises broad questions concerning the extent of active duties that ought to be imposed on the state by virtue of constitutional rights. The said matter is also likely to have ramifications for the legal-constitutional definition of concepts such as “legal parenthood” and “family unit” in the Israeli legal system (see P. Shifman, “On the New Family: Opening Lines for Discussion” 28(3) Iyunei Mishpat 643, 670 (2005)). It should be noted that in view of all the above-mentioned problems, other states have refrained to date from granting constitutional status to the right to adopt a child. Even the European Court of Human Rights ruled that a right to adoption cannot be derived from the right to privacy and to family life as stated in art. 8 of the European Convention on Human Rights (see Frette v. France (2002) 38 EHRR 438; but see recently the minority opinion of Justice Mukaroni of the European Court of Human Rights, who calls for a change in the interpretation of the said art. 8 of the Convention, such that this article will protect the possibility of submitting an application to adopt a child in the framework of the domestic law of each state: E.B. v. France (Grand Chamber judgment of 22 January 2008, Application no, 43546/02).

5. As we said, in the circumstances of the case before us, the constitutional issue does not require a decision, as the matter of the petition according to the remedy that is sought can be resolved on the administrative plane. In view of the sensitivity of the constitutional issue and its complexity, and in the absence of a need to decide on this issue in the circumstances of the case before us, I prefer to leave it for future consideration.

In conclusion, I would comment that even if we recognize a constitutional right to realization of the aspiration for parenthood by means of the institution of adoption, as requested by the petitioners, in the circumstances of the said case, the violation of this right does not go to the heart of a clear, recognized constitutional right, and the severity of the violation is not great in view of the fact that the maximum age difference rule does not prevent the petitioners from adopting a child, but only prevents them from adopting a new-born child. (Thus, for example, if a couple who are fifty years old look for succour from the institution of adoption, the maximum age difference rule enables them to adopt a two-year-old child.) In all events, in view of the conclusion that will be elucidated below, whereby the existing legislation contains a mechanism for considering exceptional cases in which it is possible to deviate from the said rule, I am of the opinion that even had a violation of a basic right been proven – and I am not ruling on this – it would conform to the limitations clause, including the requirement of proportionality.

Furthermore – and this is the most important thing in my eyes – the difficult question that arises under the approach of the petitioners concerns the contents of the constitutional right that they claim, and the nature of the corresponding duty. In their pleadings in this Court, the petitioners agreed that no-one has a vested right to adopt a child, and that the state does not bear a duty to “provide” a child for those who wish to have recourse to the institution of adoption; this is in view of the necessity of protecting the best interests of children who are prospective adoptees as well as the rights of the biological parents. It will be noted that in their amended petition, the petitioners stated that they do not insist on voiding the secondary legislation on which this petition turns, and that the remedy they are seeking is the moderation of the maximum age difference rule by recognizing the possibility of deviating from the rule in exceptional cases that justify so doing.

Thus, a careful reading of the arguments of the petitioners and the remedy they seek reveals that their main contention on the constitutional plane is that the state has a duty to create a proper legal mechanism for examining the applications of those interested in realizing their right to parenthood by means of the institution of adoption; this, subject to the overriding principle of the best interests of the child, the rights of the biological parents, examination of the parental capabilities of the prospective adopters, and the other interests that are relevant to the matter. Apparently, the state fulfilled the duty as claimed by the petitioners, in view of the fact that the Adoption Law and the secondary legislation enacted by virtue thereof establish regular mechanisms for examining applications for child adoptions, both in domestic adoption and in intercountry adoptions. At the same time, as we have said, the argument of the petitioners in this context is that the maximum age difference rule unlawfully infringes their rights, in that it does not allow for a mechanism for departing from the rule in exceptional cases, on the basis of a substantive examination of the suitability of the applicants to adopt a new-born baby when the age difference exceeds 48 years. On this matter, I am of the opinion that the existing legislation contains a mechanism for considering exceptional cases as requested by the petitioners, and the question confronting the respondents is whether this mechanism can also be implemented in relation to the matter of the maximum age difference. To clarify my position as stated, I will address the arguments that were raised on the level of administrative law.

The administrative level

6. On the administrative level, the petitioners raised three main arguments against the maximum age difference rule: first, it was argued that the said rule is not reasonable in that it has not been proved that the wellbeing of the child suffers when the age difference between the prospective adopters and adoptee exceeds 48 years. Secondly, it was argued that the maximum age difference rule creates unlawful discrimination against those who seek to adopt a child in an intercountry adoption vis-à-vis other groups who seek to realize their right to parenthood, and particularly in relation to those applying for a domestic adoption. Thirdly, it was argued that the said rule is neither fair nor proportional in view of its rigid nature that does not allow for an individual examination of the circumstances in exceptional cases which justify so doing.

My colleague Justice Procaccia discussed the reasons for dismissing the arguments of the petitioners relating to the lack of reasonableness of the said rule, and I agree with all she said in this regard. As related in the opinion of my colleague, the Minister initially prescribed a 45 year maximum age difference in intercountry adoption However, after deliberation in the Knesset Law and Constitution Committee, the proposal was changed: the age difference was fixed at 48 years, and the relevant date for determining the maximum age difference would be the date of submission of the application to adopt, and not the actual date of adoption. It was further decided that it will be sufficient if one of the prospective adopting couple fulfils the maximum age difference requirement of 48 years between himself and the adoptee, even if the other partner exceeds the maximum age difference requirement. On this matter, I am of the opinion that the question of the extent to which the best interests of the child are affected by the age difference between himself and his adoptive parents, and what ought to be the maximum age difference between them, is a professional question, clearly subject to the discretion of the competent authority, assisted by the expert opinions of professionals. In the particular circumstances, the decision to set the maximum age difference at 48 years was made in accordance with professional evaluations of what the child’s best interests require, not only when he is a child but also as he grows and matures over the years, and in light of the accepted social conceptions that are influenced, inter alia, by the maximum age difference in natural birth, which is significantly lower than that anchored in the rule. A glance at comparative law reveals also that fixing the maximum age difference at 48 years does not deviate significantly from what is accepted in other states, as discussed by my colleague discussed in para. 48 of her opinion. Taking all the above into account, it cannot be said that the rule is unreasonable to an extent that requires striking down secondary legislation that has been approved by the Constitution Committee of the Knesset.

It will be noted that fixing the maximum age difference at 48 years may well involve a certain degree of arbitrariness which typifies every norm that fixes a set measure, certainly in relation to a limitation based on age. Our case law has already stated that “. . . this is what happens with times, with measurements, with weights, with distances and other such measurable concepts, that they are somewhat arbitrary at their boundaries. This is well known” (per (then) Justice Cheshin in CrA 3439/04 Bazak (Buzaglo) v. Attorney General [39], at p. 307). A certain alleviation of the problem of arbitrariness may be attained by granting discretion to depart from the maximum age difference rule in special circumstances that justify so doing, and I will discuss this below.

As for the argument of unlawful discrimination – on this too I am in agreement with Justice Procaccia that there is a relevant difference between those seeking to adopt a child in an intercountry adoption and the other groups to which the petitioners referred in their pleadings. The reasons for this position were elucidated by my colleague (para. 45 ff.) and I see no reason to repeat what was said there.

7. From the whole array of arguments raised by the petitioners on the administrative plane, the argument that most disturbed me relates to the question of whether a possibility exists of deviating from the maximum age difference rule in intercountry adoption in special, exceptional circumstances that justify so doing. From the material submitted to us it transpires, apparently, that in domestic adoption, it is possible in exceptional circumstances to deviate from the procedure that requires a maximum age difference of 43 years between prospective adopters and the child to be adopted. In intercountry adoption, however, the position of the State is that there is no justification for allowing a deviation from the maximum age difference rule, which stands at 48 years. It will be mentioned that this alone is not sufficient to create unlawful discrimination between prospective adopters in domestic and in intercountry adoptions. This is because the age difference in the case of domestic adoption is lower than that in intercountry adoptions (43 and not 48 years), and therefore, prima facie, in relation to domestic adoption there is greater justification for allowing discretion to deviate from the rule.

The aspect that disturbed me in the said context does not stem, therefore, from the prohibition on unlawful discrimination, but from the competent authority being bound by fitting administrative norms that are based on fairness, reasonableness and proportionality. As mentioned above, even according to the approach whereby prospective adopters have no legal right recognized by law, there is no dispute that they have a legitimate expectation and interest that consideration will be accorded to their desire to adopt a child, and that limitation of the possibility of realizing this desire will be effected in a fair, reasonable and proportional manner in keeping with the accepted criteria of administrative law. The question that arises is whether the State’s position negating the existence of discretion to deviate from the maximum age difference rule in intercountry adoption fulfills the said criteria. I fear that this question must be answered in the negative. It has already been ruled in our case law that “policy that has no exceptions is like a ball-bearing machine without lubricant. Just as the machine will not work and will burn out quickly, so too will the policy” (HCJ 3648/97 Stamka v. Minister of the Interior [40], at p. 794, per (then) Justice Cheshin). In another case, the Court said that “. . . it is the obligation of every administrative authority to apply his discretion from case to case, and to recognize exceptions to the rules and the set guidelines when circumstances justify so doing” (Adalah v. Minister of the Interior [2], per President Barak, at para. 72).

The requirement of fairness and proportionality in the actions of the administrative authority – including secondary legislation – supports limiting rigid arrangements to circumstances in which the establishment of an all-encompassing arrangement is unavoidable. As a general rule, the exercise of administrative discretion will permit flexibility in cases in which there is justification for deviating from the rule without thereby harming the principle of equality. In the words of Justice Cheshin: “Law is designed for that which is accepted, middling, average, and the need for flexibility is obvious, even if only so as to avoid trampling on the minority and the exception . . . hence, the flexibility that is required, to adapt the rules – which in their essence were created for the middling and the average – to whosoever is not middling or average” (CA 1165/01 Anon. v Attorney General [41], at p. 79).

In the case at hand, the State presented a number of reasons for its approach whereby no departure from the maximum age difference rule should be allowed in intercountry adoption. I examined these reasons, and I was not convinced that they justify the existence of a rigid rule that allows no deviation, even in cases that are special and exceptional. The argument of the State whereby the existence of such discretion will divert the focus of attention to the prospective adopters instead of the best interests of the child is not convincing in my view, for it is clear that the existence of exceptional circumstances will be examined subject to the overriding principle of the best interests of the children waiting to be adopted. Neither is the argument that it is difficult to anticipate the ramifications of the age difference between the adopter and adoptee convincing, for the process of adoption is constructed entirely on future-directed anticipation, which is naturally characterized by uncertainty. The State further argued that since the process of intercountry adoption is executed by private adoption associations which operate under state supervision, the existence of clear rules of eligibility of adopters is of great importance; this is so in view of the concern for undesirable consequences of competition between the private adoption associations, which harm the interests of the children awaiting adoption, as well s concern for the lack of equal treatment of those who seek to adopt them. Prima facie, this last argument is significant. Nevertheless, it appears that the concern expressed by the State should be answered not by setting a rigid rule regarding the maximum age difference, but rather, by a suitable choice of the entity that will exercise discretion to deviate from the rule. I will discuss this below.

8. The obvious conclusion from what has been said so far is that the absence of discretion to conduct an individualized examination of exceptional cases in which departure from the maximum age difference rule is justified – even if only in exceptional circumstances of limited scope – would have engendered genuine questions about the reasonableness and proportionality of the rule. In actual practice, I am of the opinion that the said difficulty does not arise, in that the mechanism fixed in s. 36A of the Adoption Law has the capacity to include a process of review which allows for a departure from the maximum age difference rule in suitable cases. Section 36A of the Adoption Law prescribes as follows:

Appeals Tribunal

(a) A person who considers himself harmed by a decision of the Welfare Officer regarding the determination of his eligibility to become an adopter or by a decision of a recognized adoption association concerning his eligibility to adopt a child in an intercountry adoption, may appeal the decision to an Appeals Tribunal comprising five members, who will be appointed by the Minister of Labour and Welfare in consultation with the Minister of Justice [emphasis added – D.B.].

(b) The members of the appeals tribunal will be a judge of the family court, who will preside, two social workers, a clinical psychologist and an expert psychiatrist, provided that at least two of the members will not be state employees.

Section 36A of the Adoption Law prescribes that the appeals tribunal it establishes will be competent to hear, inter alia, appeals on the decision of a recognized adoption association concerning eligibility to adopt a child in an intercountry adoption. Correct interpretation of s. 36A, in light of the abovementioned principles, leads to the conclusion that a person who seeks to adopt a child in an intercountry adoption and is deemed to be ineligible to do so – possibly, inter alia, because he does not fulfil the maximum age difference requirement – is entitled to appeal this decision to the appeals tribunal in a way that makes it possible to conduct an individualized examination of the circumstances of the case. In this context, I would like to stress two points: first, in the existing legal situation, the authority to depart from the rule is not granted to the private adoption associations, and the reasons for this were articulated by the State in its pleadings. At the same time, in keeping with the said interpretation of s. 36A of the Adoption Law, discretion to deviate from the maximum age difference rule in intercountry adoption will be exercised by the statutory appeals tribunal, which constitutes a public body with mixed administrative and quasi-judicial characteristics. This would seem to provide a response for the main fears raised by the State in its pleadings concerning the exercise of the said discretion by private bodies that compete amongst themselves. Secondly, the existence of a statutory mechanism for examining exceptional cases does not constitute an extensive breach of the bounds of the maximum age difference rule. It may be assumed that the appeals tribunal will formulate criteria for departing from the rule under discussion, and will limit these departures to special and unusual cases that justify the deviation. Moreover, since a maximum age difference of 43 years has been fixed for domestic adoption, whereas the difference was fixed at 48 years for intercountry adoption, it may be assumed that the number of exceptional cases in which justification will be found for departing from the maximum age difference in intercountry adoptions will be smaller than the number of exceptions – small in any case – in which justification is found for departing from the rule in domestic adoptions.

9. Thus, the Adoption Law establishes a mechanism which, according to the interpretation that seems to me to be reasonable and appropriate, allows for departure from the maximum age difference rule in special cases that justify so doing. In this sense, the existing legislation provides a response to the main relief sought by the petitioners, i.e., to allow exceptions to the said rule and to the norm that was set in its framework. In light of this, and subject to the possibility of the appeals tribunal having discretion, according to my approach, the petition should be granted partially only, in the sense that the possibility of considering a departure from the maximum age difference rule in exceptional, unusual cases is not in the hands of the private adoption associations, as requested by the petitioners, but rather, in the hands of the statutory appeals tribunal the operates according to the Adoption Law.

Vice President E. Rivlin

1. The legal question that lies at the heart of the case before us is not simple, and my two colleagues, President D. Beinisch and Justice A. Procaccia, each arrived at a different conclusion. After reading both the opinions, I have reached the conclusion that my position is closer to that of President Beinisch in relation to most of the issues, and I would even go further than she did had her ruling not provided an appropriate response to the question at issue. Rule 4(b)(1) of the Professional Rules and Guidelines for the Operation of a Recognized Non-Profit Organization under the Adoption of Children Law, 5741-1981 (hereinafter: the maximum age difference rule), enacted by the Minister for Welfare in 1998, raises questions on the constitutional and administrative planes. I concur in the position of my colleague, the President, that for the purpose of ruling on the petition, it is not necessary to decide on the constitutional questions that arise, and similar to her opinion, my position too is based on the administrative arguments raised by the petitioners. Nevertheless, I would like to briefly discuss the constitutional question at issue, addressed by my colleagues in their opinions.

The parameters of the constitutional right to parenthood

2. My colleague Justice Procaccia ruled that the right to adopt a child is not a recognized legal right, and a fortiori, it is not a meta-legal constitutional right. She points out that the right to parenthood is in essence a “negative” right and it does not have the capacity to impose on the state a positive obligation to assist individuals in its realization. According to Justice Procaccia, the right to adopt, which is derived from the right to parenthood, involves active assistance on the part of the state in realizing the aspiration to parenthood, and consequently, it should not be recognized as a constitutional right. Another reason for not recognizing a constitutional right to adopt is attributed by Justice Procaccia to the fact that recognition of such a right might detract from the main purpose for which the institution of adoption was created – concern for the best interests of the adopted child. The President, on the other hand, preferred not to rule definitively on the constitutional question confronting us. Nevertheless, she pointed out that the right to parenthood by way of adoption is found “on a more exterior circle vis-à-vis natural childbirth (which . . . is included in the ‘hard kernel’ of the right to family life and parenthood), and even vis-à-vis artificial reproductive techniques and embryo carrying agreements, which involve external involvement of the state but which are based on planning the birth of a child who will bear the genetic code of one or both of his parents.” The President is of the opinion that because of the remove of the right to adoption from the hard core of the right to parenthood, the degree of protection it enjoys is less.

3. I would like to add a few words relating to the positions expressed by my colleagues on the constitutional question. I am not convinced that there is such a significant gap between realization of the right to natural parenthood and realization of the right by way of adoption, to the extent that it can be said definitively that one is situated within the kernel of the right to parenthood and the other on its margins. Indeed, ideal parenthood is by natural childbirth, and the assumption is justified that bearing a child who carries the genetic code of his parents creates a bond and responds to a stronger need than parenthood that is realized by way of adoption (para. 3 of the opinion of my colleague, the President; New Family v. Committee for the Approval of Surrogacy Agreements, Ministry of Health [8], at p. 448). It may also be assumed that many of those who apply to adopt do so as the default option after their desire to bring children into the world naturally has not been realized. Nevertheless, the underlying need is similar in essence in both cases – the desire for a child, for continuity. As noted by my colleague President Beinisch, “[]prima facie, it is plausible to argue that the yearning for a child is a deep, fundamental human need, and that this existential need is equally intense in the case of natural childbirth and where the couple are not able to bring children into the world by natural means.” The sound words appearing in the opinion of my colleague, Justice Procaccia, concerning the status and the great importance of the right to family life, are applicable, in my view, to both natural parenthood and to parenthood that is realized by way of adoption.

Moreover, it often happens that the yearning for a child is strongest in those who are not able to realize it in a simple manner. The cry of the childless for help has been heard since ancient times. In New Family v. Committee for the Approval of Surrogacy Agreements [8], Vice-President Cheshin described one of these cases:

‘Who does not remember the desperate cry of the barren Rachel in calling to her husband Jacob: “Give me children or else I die” (Gen. 30:1). (Neither will we forget Jacob’s harsh, irritated reply: “And Jacob’s anger was kindled against Rachel; and he said: Am I in God’s stead, who hath withheld from thee the fruit of the womb?”) This cry is the cry of the living being’s will to survive, a will which, with the birth of a child, will fulfill the “voice of blood” between parents and their children (as per Deputy President Sh.Z. Cheshin, in CA 50/55 Hershkovitz v. Greenberger [1955] IsrSC 9(2) 791, at p. 799, para. 30).

Rachel’s pain, and that of Hannah, who wandered around the Tabernacle when “she was in bitterness of soul, and prayed unto the Lord, and wept sore,” resound down the generations and express the great void created by the absence of a child. This, in many cases, is the situation of those who seek to adopt. Thus, for example, Rachel at the end of the day adopts a solution that is to a certain degree related to adoption, and she realizes her desire for continuity through the children of her handmaiden Bilhah. After the birth of the son of Bilhah and Jacob, Rachel declares: “God hath judged me, and hath also heard my voice, and hath given me a son,” and her cry is no longer heard.

4. The legal status of the relationship that is created between the adoptee and the adopters after the adoption supports the position that the difference between biological parenthood and parenthood by way of adoption should not be seen as creating a difference of substantial normative significance. My colleague Justice Procaccia addressed this relationship, and noted that non-recognition of a constitutional right to adopt does not “detract from the fact that upon completion of the adoption process with the issuing of an adoption order, a relationship of full rights and obligations typical of the relations between parents and children is created between the adopter and the adoptee, replacing the biological blood ties of the child with the family of origin, and a new family unit is established that constitutes a subject of constitutional rights.” It is hard to believe that pursuant to the difference between biological parenthood and parenthood by way of adoption, a certain level of constitutional protection would be granted to the relations between a child and his parents in the case of a biological family, and inferior protection granted in the case of an adopted child (after the adoption). In light of all this, it appears that the difficulty in defending the right to parenthood in the case of adoption does not stem from a substantive difference between biological parenthood and parenthood by way of adoption, but from two other difficulties – the difference between a right which is of a “negative” nature and a right of a “positive” nature, and primarily, the great importance of the wellbeing of the adopted child.

5. My colleague Justice Procaccia is of the opinion that the right to parenthood that is recognized in Israeli law is in essence a “negative” right, one that was designed to protect the individual from state intervention, and it contains nothing which would impose a positive duty on the authorities to enable the individual to adopt. Personally, even if I were to accept the distinction made by my colleague between “negative” rights and “positive” rights in Israeli law, I am not convinced that this distinction necessarily reflects the situation in our case. Justice Procaccia assumes that adoption necessarily involves a positive act on the part of the state that helps the adopters to come to complete the process. However, it is possible to look at the matter from a somewhat different angle. In an unconstrained world, adoption would be likely take place by means of agreements between prospective adopters and third parties. These agreements would make the adoptions actually happen with no intervention of the authorities. And indeed, prior to enactment of the Adoption of Children (Amendment no. 2) Law, 5756-1996, as described in the opinion of my colleague Justice Procaccia, there was a “wide-spread phenomenon of adoption of children with no oversight, sometimes without the children even being registered in the local register.” Accordingly, limiting the possibilities of adoption by means of statutory regulation can be seen as a violation of the right to parenthood in the “negative” sense. It will be stressed immediately that statutory restriction of the possibilities regarding adoption is legitimate as well as essential, in view of the need to protect the child’s interests; this however, does not change the fact of the violation of the right, but only affects the degree of protection that it is accorded.

Particularly apt here are the words of Vice President M. Cheshin in New Family v. Committee for the Approval of Surrogacy Agreements [8], written as a response to a similar argument that was raised in relation to the constitutionality of limitations that were imposed on people seeking to realize their right to parenthood by way of surrogacy:

‘The State further argues thus: the right to parenthood is indeed a right, but a right to surrogacy cannot be derived from the right to parenthood. The reason is that the right to natural parenthood means only a prohibition on the state to intervene in the life of the individual and in his autonomous will, whereas the right to surrogacy implies . . . a duty imposed on society to help the individual to realize the need throbbing in him for parenthood. We will not accept this argument either. Indeed, the right to parenthood is a right in the category of a liberty – it is a right that has no correlative duty imposed on another – whereas surrogacy necessitates the intervention of third parties. As stated in the Aloni Report . . . “It is accepted, in the United States, that extension of the right [to bear a child – M.C.] to reproductive technologies does not obligate society to cover costs and expenses, just as it does not obligate the doctor or the technician to perform the procedure. The accepted explanation is that the right [to bear a child – M.C.] has a negative character – it has the power to prevent interference in procreation – and not a positive nature – to impose a duty on another body in order to assist in procreation.” However, I do not understand how this distinction bears on our case. We are not dealing with the imposition of any sort of duties on the state (or on any third party), but with a request of the petitioner that she not be prohibited from embarking on the process of surrogacy. A prohibition imposed on her by the state to resort to the process of surrogacy, so claims the petitioner, is what violates her right to parenthood, and the response of the State, which relies on the distinction between a liberty-type right and between a right that has a correlative duty is in any case not an answer’ (ibid., at pp. 448-449).

The Adoption Law, like the Embryo Carrying Agreement (Approval of Agreements and the Status of the Child) Law, 5756-1996, create a comprehensive system for realizing the right of parenthood in a certain manner, and even though most of the arrangements in these Laws fulfill the criteria of the limitations clause, it cannot be said that they involve no violation of the right to parenthood.

6. The major problem attaching to the right to parenthood, in the context of adoption, concerns the great importance of the best interests of the child. On this matter, I agree with my colleague the President that the question of the best interests of the child ought not to be examined at the stage of actual recognition of the constitutional right, but rather, when we turn to the task of balancing and we examine the degree of protection afforded to this right. No one disputes that the best interests of the child is the crux of the legal adoption arrangement. A consequence of this is, as stated, that most of the statutory arrangements will fulfill the constitutional balancing criteria. But it must again be stressed that the upholding of values, interests and competing rights, however strong they may be, should not affect the upholding per se of a distinct constitutional right, but only the degree of protection it is afforded. As I pointed out in another matter:

‘The actual definition of the right to establish a family should not be restricted. Even if it is not possible, due to permitted constraints, to enable the full realization of the right, this does not detract from recognition of the right. My colleague the Vice President notes that the constraints that are imposed on the constitutional right here do not touch upon the “kernel” of the right; rather, they are at its periphery. He therefore would define the disputed right in a more focused manner. My view is different. Even if this is a matter of a “peripheral” aspect of the right – as he assumes – this does not affect the definition of the right. The starting point must assume a generous definition. The restriction – which is likely to take into account the position of the matter on the periphery of the right or at is heart – must be taken into account in the framework of application of the limitations clause. The balance between the rights of the individual and the public interests, or between [these interests] themselves, must be effected in the framework of the limitations clause (Adalah v. Minister of the Interior [2], at para. 8 of my opinion).

As stated, the petition before us is not the appropriate forum in which to decide on the constitutional questions that were raised, and the ruling on the substance of the petition below will focus on the arguments on the administrative plane.

The administrative plane

7. I, like my colleague the President, believe that the main problem with the maximum age difference rule lies in it being a rigid rule that does not allow for discretion to depart from it in appropriate cases. My colleague the President is of the opinion that negation of the possibility of deviating from the maximum age difference rule is incompatible with the accepted criteria of administrative law, and she dismisses the arguments of the State on this point one by one. I concur fully with the President’s position on this matter, and adopt her words completely.

As the President stressed, the lack of flexibility in the arrangements established by the Authority make one wonder about the reasonableness and the proportionality of these arrangements. This is generally the case, and all the more so when the arrangement causes real harm to a person’s basic legal right. In our case, the arrangement established by the State is substantively detrimental to the aspiration for parenthood of those seeking to adopt, and in these circumstances, the competent authority must point to reasons bearing substantial weight in order that the arrangement pass the tests of reasonableness and proportionality.

8. Another matter is the relationship between the individual examination and the comprehensive arrangement. As a rule of thumb, it may be assumed that in cases such as that under discussion here, an individual examination will in most cases lead to a more precise, correct result than a comprehensive arrangement. Comprehensive arrangements, by their nature, are not adapted to all the possible circumstances, but are based on a general assessment, on a presumption concerning the appropriate rule. This is all the more true when we are dealing with the assessment of people, each of whom bears traits and characteristics peculiar to him. In the case of adoption, we find ourselves in a framework of an extremely complex task, the aim of which is to bring together separate people and make them into a family. There is, therefore, more than reasonable basis to assume that a meticulous individual examination, that weighs up all the relevant data, including, of course, the age of the applicant, will lead to a more correct answer in each individual case – more correct not only in relation to the applicants, but also, and primarily, in relation to the best interests of the child, for whom the most suitable arrangement will be found.

Indeed, sometimes the establishment of a sweeping arrangement, of which arbitrariness is an inseparable component, is unavoidable. But when is this so? When there is a clear advantage to such a sweeping arrangement – an advantage that outweighs the price it exacts. Thus, for example, it seems that there is a clear advantage to setting a minimum age for obtaining a driving license, which exceeds the advantage of individual examination. At other times, there are weighty reasons for recognizing the legitimacy of a sweeping arrangement. This is the case, for example, when the argument that it is impossible to conduct efficient individual examinations is justified (Adalah v. Minister of the Interior [2], per President Barak, at para. 89; per Vice President Cheshin, at para. 109). However, the case before us is one in which a meticulous, comprehensive and individual examination of each adopter actually takes place, reflecting and confirming the position that there is a clear advantage to individual examinations on the question of the suitability of the prospective adopter. Thus, in any case, there is an examination, inter alia, of the “eligibility and suitability of the person seeking to be an adoptive parent . . . the family background of the applicant and his present position . . . his social environment . . . [and] other matters to be determined by the Minister of Labor and Welfare, including a psychological assessment of the applicant and his family” (s. 28H of the Adoption Law). Similarly, in every case of an application to adopt, determination of the eligibility of the applicant is made in light of an individual report drawn up by a social worker (s. 28N of the Adoption Law). This examination places the emphasis on the concrete adopter and his suitability to adopt; it comprises many criteria that are all weighed, and in light of the result, the decision is made as to whether the applicant is indeed suitable to be an adoptive parent. In these circumstances, there must be special justification for deviating from the individual examination that already exists, justification which, as elucidated in the opinion of President Beinisch, apparently is not present in our case.

My colleague Justice Procaccia holds that the question of the age difference between the adopter and the adoptee is a question for professionals, subject “the clear discretion of the competent authority”. Indeed, the question of the effect of the age difference on the adoptee is a relevant question, which falls, as one of the considerations, within the discretion of the Authority. We are not denying the importance of the age difference, but we disagree with setting an age difference as a sweeping arrangement from which there can be no deviation in appropriate cases. A study of the expert positions presented by the respondents reveals that they recognize the importance of the age difference to the wellbeing of the child, but they do not address the position of the age difference within the whole set of relevant considerations relating to the child’s best interests. Calculation of all the data sometimes raises complex questions. For example, is it better for the prospective adoptee that he be handed over to a family in which one of the couple is 47 years old and the other is 70 years old, or to a family in which the couple are both aged 49? Would it be justified to hand over a child for adoption to adopters who are immeasurably superior to other candidates in all other criteria (such as socio-economic position, and personality structure) but they are just over the maximum age limit? No satisfactory answer to these difficult questions has been provided by the respondents. Nor has a satisfactory answer been given to the possibility of exceptions in domestic adoption as opposed to their absence in intercountry adoption, or to the fact that the ideal age difference is not the same for domestic and intercountry adoption, and even in intercountry adoption itself, the age difference was changed from 45 to 48. These matters seem to hint that there is no unequivocal justification for setting a comprehensive, sweeping arrangement on the question of the age difference from the point of view of both the best interests of the child and the interests of the applicants. The number of different arrangements in comparative law regarding the desirable age difference, as cited at length in the pleadings of both the petitioners and the respondents, is another indication that there is no one accepted age difference that crosses boundaries and experts. The only professional reference on the part of the respondents to the question of the possibility of exceptions to the rule is found in the summary of the position of the relevant committee that was drawn up by Professor Joseph Tamir, part of which was quoted in the opinion of my colleague Justice Procaccia. The opinion of my colleague the President contains a clear and incisive response to these arguments, and I can only concur with her on the matter.

10. My colleague the President attributed weight to the argument of the respondents whereby in view of the fact that the process of intercountry adoption is implemented primarily by private adoption associations, and due to the concern that the competition between the adoption associations may be detrimental to the child’s interests, the existence of rigid rules for checking the eligibility of prospective adopters is justified. In my view, this argument cannot change significantly the answer to the question of the reasonableness and the proportionality of the maximum age difference rule. As stated, when an adoption association examines an application for adoption, it must check many parameters, some of which were mentioned above. This examination is conducted for each case individually, and weighing up of all the parameters is done with recourse to the report of the social worker. The process as a whole is subject by law to close oversight by the authorities. The concern expressed by the respondents is relevant to the process of adoption in general, but a sweeping, unequivocal rule that does not take into account other parameters for checking the eligibility of the adopter, exists – according to the material before us – only with respect to the question of the age difference. I have not found a good reason for the fact that according to the respondents, the private adoption associations can be relied on to weigh up the information regarding the applicants in an appropriate fashion, but they cannot be relied on to depart from the maximum age difference rule in suitable cases only. Similarly, I am not convinced that the regular oversight, which is designed to ensure that the individual examination be conducted in proper fashion, cannot ensure a similar result on the question of the significance of age for the eligibility of the adopter.

In view of all the above, I struggled hard with the question of whether there is no choice but to declare the nullity of Rule 4(b)(1) of the Rules and Professional Guidelines for the Operation of Recognized Non-profit Organizations by virtue of the Adoption Law. However, as stated, broad validation of the position of my colleague the President may obviate the need to totally nullify the rule. Indeed, empowerment of the appeals tribunal assumes necessarily that the rule itself is not absolute, for otherwise the tribunal would not be authorized to depart from it. One way or the other, whether the rule in its strict interpretation cannot stand or whether it stands because of the interpretation proposed by my colleague the President – the result is the same: it is possible, in appropriate circumstances, to approve adoption at the stage of the final examination even if the age difference exceeds that set in the rule, as proposed by my colleague the President.

Decided by majority opinion, as stated in the judgment of President Beinisch, Vice President E. Rivlin concurring, Justice A. Procaccia dissenting.

No order was issued for costs.

28 Adar 5769

24 March 2009

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/01/930/042/r07/01042930.r07.pdf

Hassan v. National Insurance Institute

Case/docket number:

HCJ 10662/04

Date Decided:

Tuesday, February 28, 2012

Decision Type:

Original

Topics:

Judicial Review

Insurance

Abstract:

This Petition challenges the constitutionality of section 9A(b) of the Income Guarantee Act. The main claim the Petitions raise is that section 9A(b) establishes an absolute presumption whereby those who own or have access to the use of a vehicle shall be seen as having an income at the amount of the benefit, and thus their right to the benefit of income guarantee is revoked. It was argued that this presumption unconstitutionally infringes the right to minimal dignified human existence.

The Supreme Court sitting as a High Court of Justice granted the Petitions and declared the unconstitutionality of section 9A(b) of the Income Guarantee Act.

President Beinisch:

The central purpose of the Income Guarantee Act is to support residents of the country who find themselves in situations where they cannot provide themselves with their basic needs. The point of departure embodied in the Act is that the primary way to accomplish and ensure a dignified human existence is through work. This assumption is reflected in two complementary aspects of the Act. First, income guarantee benefits are granted only to those who cannot support themselves on their own. Second, the purpose of the benefit is to sustain a person in the intermediate time period when they have found themselves without resources, but not to prevent them to once again be integrated into the workforce. The Act aspires to ensure that the benefit is a temporary, rather than permanent, alternative to employment.

These principles lead to the two main tests for establishing one’s right to the benefit: the income test and the employment test. The income test sets guidelines to quantify and evaluate the income of the person requesting the benefit. Its purpose is to examine whether this person has satisfactory income in order to meet basic life needs. The employment test conditions receiving benefits upon making every possible effort to find employment that provides an income that is higher than the benefit amount. The person requesting the benefit must lack satisfactory work or be unable to work, and to the extent the person is able to work, they must be willing to accept any work that is suggested by the Employment Services and which fits their health and fitness. In addition to these two substantive tests the Act also sets residency and age requirements.

Based on the purposes of the Income Guarantee Act regulations were put in place to define the implications of owning or using a vehicle for purposes of the right to the benefit. From the provisions as a whole it appears that a person seeking the benefit who owns or uses a vehicle and their circumstances are not covered by one of the exception established in the Act, is denied income guarantee benefits. In other words, those who own or use a vehicle are viewed as though they have an income at the amount of the benefit, and thus their right to the benefit is revoked. The issue is whether the above arrangement infringes upon a constitutional right, and if so – whether this infringement meets the requirements of the Limitations Clause. This central issue leads to “derivative” issues. A first of those is the question of what model of judicial review should be applied to examining the constitutionality of a statute that is claimed to have violated a socioeconomic right.

The constitutional analysis that has been acceptable in our system since the enactment of the Basic Laws in 1992, is separated into three primary steps. In the first step the question of the infringement is examined, where the Court examines whether the relevant statute infringes upon a right or rights that are enshrined in the Basic Laws. Should the answer be in the affirmative, the constitutional analysis moves onto the next step: examining the constitutionality of the infringement. This analysis is done by applying the requirements set in the Limitations Clause. An infringement that meets the requirements of the Limitations Clause is a permissible infringement. To the extent that it is found that the infringement does not meet the requirements of the Limitations Clause, it is the turn of the third step – the step of determining a remedy. In this step the Court considers the implications of unconstitutionality. This analytical separation has become a foundation of Israeli constitutional law. As opposed to the Respondents’ argument, the mere fact that we are concerned with the right to minimal dignified human existence does not justify a different judicial model of constitutional review.

According to the currently common approach, there is no foundation for clearly and strictly distinguishing between socioeconomic rights and political rights on the basis of the positive or negative duties of the state or on the basis of the issue of resource allocation. The seeming differences between the rights are primarily the product of historical evolution rather than of actual differences between the rights themselves. Indeed, “act” and “fail to act”, side by side, are an integral part of protecting all human rights, whatever they nature. But to the extent that there is a certain distinction between civil or political rights to socioeconomic rights, it still does not justify diverging from the acceptable model of review. Favoring the Respondents’ position may result in applying a different constitutional model in for the purposes of two different infringements of the very same right. Such selective application cannot stand on the artificial distinction between the rights. It has no source in the language of the Basic Rights, nor in the constitutional legal tradition of our system.

The right to minimal dignified human existence is at the core and the heart of human dignity. A minimal dignified human existence is a condition not only for protecting and preserving human dignity, but also for enjoying other human rights. As opposed to the Respondents’ arguments, the right to minimal dignified human existence ought not be seen as deriving from the right to human dignity, but it must be seen as the right that constitutes the real expression of human dignity. Of the range of meanings that can be attached to the term “human dignity” the most profound is that which goes to the intrinsic dignity of a person, to the minimal necessary conditions for human existence and survival. The income guarantee benefit granted under the Act is but one of the mechanisms that guarantee the protection of one’s right to a dignified existence, but it still holds a central place in protecting this right. It should be clarified that the point of departure is that the State has the duty to establish what are minimal conditions of existence and that the entirety of the welfare arrangements granted in Israel must satisfy the “cart” of conditions necessary for a minimal dignified existence. In this “cart” the income guarantee benefit takes central stage, and thus, revoking it leads inherently to an infringement of the right to a dignified human existence.

Section 9A(b) sets a fiction. The fiction is rooted in the presumption, which cannot be rebutted, that the amount of income “produced” by the vehicle is at least equal to the amount of the benefit. Therefore, the ownership or use of the vehicle alone is sufficient to lead to the benefit being revoked. This arrangement infringes upon the right to a dignified human existence because it sets a categorical rule that anyone who owns or uses a vehicle would not be entitled to the income guarantee benefit, and this regardless of the individual issue of whether such a person actually does have an income that could guarantee their right to a minimal dignified human existence. It should be emphasized that the difficulty of the absolute presumption is not a result of the mere need to own or use a vehicle as a component of assessing one’s income, but instead a result of the fact that this component becomes the exclusive element in assessing the income. The difficulty is exacerbated by the fact that the absolute presumption established in section 9A(b) conflicts with the manner in which it is acceptable to examine the right to an income guarantee benefit in Israel – through an individual test whose purpose is to assess the extent of the need for the benefit.

Thus section 9A(b) infringes upon the right to a minimal dignified human existence. Does this infringement pass muster under the tests of the Limitations Clause? Indeed it seems that this section meets the requirement for a worthy purpose. Preventing abuse of the state support and welfare system and the attempt to ensure that state support is provided only to those who are most in need of it are worthy social ends. And yet, it must be found that the infringement embodied in section 9A(b) is disproportionate. Indeed, the provisions of section 9A(b) passes the test of the rational connection, although somewhat barely. Still it does not pass the test of the least restrictive alternative. It is possible to point to several reasonable alternatives that could realize the constitutional purpose at the foundation of provision in section 9A(b) while more limitedly, if at all, infringing the constitutional right to minimal dignified existence. For existence, it would have been possible to set a rebuttable presumption.

The case at hand is an example of the challenges in applying blanket arrangements where the right to a particular form of state assistance is revoked. Blanket arrangements, by their very nature, do not consider the individual circumstances of each and every person. Though there are situations where individual examination would not realize the purposes of the legislation. In such circumstances there is no escape but to establish a blanket arrangement. However, this is not such a case. The Legislature was aware, in the Income Guarantee Act, of the importance in establishing an individualized consideration mechanism. This path is suitable for the significance of the relevant right, and the centrality of the income guarantee benefit in protecting the right. And indeed, the mechanism to assess income as established in the Act ensures that a rigorous individual examination of each person seeking the benefit would be performed. Since this is the legislative mandate, and an individualized assessment is performed in any event in order to examine the other components of a person’s income, there is no justification for moving to a blanket arrangement as to the ownership or use of a vehicle in particular.

All of the above is sufficient for a finding that the infringement of the provision in section 9A(b) upon the right to a minimal dignified existence is not proportional. It should still be clarified in terms of the narrow proportionality test that it is difficult to accept that conserving state resources alone outweighs the harm caused to individuals whose right to a minimal dignified human existence is violated. Although such means make the work of welfare services more efficient – blanket arrangements tend to always be simpler to apply and administer compared to individual examinations – however this goal must not be achieved at any cost. “Efficiency” is not the ultimate goal when we are concerned with violating the most fundamental and significant human rights that the State is entrusted with guaranteeing. This is the case generally, and it is the case specifically when examining the income of a person, which is performed in any event on an individual basis.

Finally: section 9A(b) of the Income Guarantee Act must be declared unconstitutional and struck down. The striking down of the section will come into effect in six months.

Justice Naor:

The difficulty results from the fact that section 9A(b) creates an absolute presumption that completely revokes the benefit from owner or users of a vehicle (aside from the exceptions stipulated in the Act). This absolute presumption may violate the most important of all constitutional rights – the right to a minimal dignified existence. This violation must be resolved. The solutions to be south are those which would assess the real circumstances of those requesting the benefit, without using the fictions embodied by absolute presumption, which do not always reflect the situation as it is.

Justice Vogelman:

The right to minimal dignified human existence is at the core of the constitutional right to dignity. The arrangement established in section 9A(b) violates this right in a manner that is not proportional. And yet: this is not to say that the State’s position that owning or using a vehicle may be a reliable indication as to one’s financial circumstance should be rejected. Rather – that setting an all encompassing arrangement by creating an absolute presumption that does not empower the authority to investigate the facts as they are and that restricts a person requesting the benefit from proving that the ownership or use of the vehicle are not tantamount to an income at the amount of the benefit in the special circumstances of one’s case, disproportionately violates the right of some of those who receive the benefit to a minimal dignified human existence.

Justice Arbel:

The methodology of the constitutional analysis applied to socioeconomic rights should be not different than that which is employed to examine other constitutional rights. There is not place to pull back on exercising judicial review on legislation that implicates the right to minimal existence as distinct from other basic rights.

The right to a minimal dignified human existence is rooted deep in the heart of the constitutional right to dignity. The arrangement whereby anyone who owns or uses a vehicle shall not be eligible for income guarantee benefits, regardless of whether they in fact have an income that would ensure their minimal dignified existence, is arbitrary. This is a categorical threshold requirement, which results in a disproportional violation of the minimal dignified existed of the person from whom the benefit is denied.

Indeed, to the extent that we are concerned with realizing the right in a manner that requires a broad and extensive allocation of resources, the need for restraint on the part of the Court is acknowledged. However in cases where the Court faces a disproportional violation of the socioeconomic rights of a particular group, in a manner that undermines the minimal existence conditions of this group, it must intervene despite the restraint to which it usually holds itself. This is the case here.

It must be emphasized that only the regulation of socioeconomic rights in a basic law would lay the proper normative foundation that could afford fundamental constitutional protections to such rights, would make explicit their supremacy and the commitment to respect them, and the sooner; the better.

Justice Hayut:

The right to a minimal dignified human existence is a social right that is included with the most important rights. As Justice Zmir wrote in HCJ Kuntram, it is imperative that no person is hungry so that they may enjoy, effectively and not only theoretical, their human rights.

Justice Rubinstein:

Miminal existence is the essence of the Income Guarantee Act. It represents a proper social approach whereby the public provides a safety net for every person in Israel lest they fall into poverty and hunger. This approach is deeply rooted in generations of Jewish tradition, and the State of Israel – as a Jewish and democratic state – would not be able to properly realize its values in the absence of establishing such a safety net.

Indeed, section 9A(c) details the exceptions designed to soften the relevant absolute presumption. But still – when viewing the cases in the petitions at hand, where people at the most harsh socioeconomic circumstances and where the use of a vehicle does not at all raise them into a position of a minimal dignified existence – it clearly seem they must be entitled to the safety net and revoking their income guarantee is disproportional to the extent that warrants intervention.

And it should be noted, the Court does not by any means come to say that keeping a vehicle shall not be a factor in assessing entitlement. The Court’s position is to ensure a minimal dignified existence through individual assessments, and we are concerned with a situation where there may be an inherent possibility for such assessment.

Even when we are concerned with social and economical rights, there is no place to diminish the stage of constitutional examination as to the balances of setting the scope of the right itself. As was the position of President Barak in the past, considering the public interest must be done within the framework of the requirements of the Limitations Clause. In our case, the public interest was found to be lacking.

Finally, Jewish law is saturated with duties of charity, and this is also of the values of the State of Israel as a Jewish and democratic state, as noted. This gives further force to the reasoning behind this decision.

Justice Joubran:

The right to a minimal dignified existence is a paramount right and it is the cornerstone to one’s right to dignity, at times even more compared to all other rights. It is known that poverty and distress create a vicious cycle from which it is difficult to come out. This is a reality that elicits a sense of isolation and a distance and suffocates hope for a change. Without minimal conditions one cannot exercise their liberty. Without minimal living conditions they cannot conduct completely autonomous and full life and they cannot become a contributing member of their society and their community. Therefore, this reality, of poverty and distress, is often tied to other gaps that divide society and lead to the development of resentment and hostility between those who have plenty and those who have not the most basic needs.

The violation of the right to minimal dignified existence in this case, which results from the absolute presumption established by the Act, compels one to choose between holding a vehicle or using it – even if these do not necessarily indicate that one has sources of income which one has not reported – and receiving the benefit. This infringement is particularly severe in cases where the vehicle serves its owner or user for basic daily needs that are not detailed in the Act’s exceptions. There are many regions around the country where it is impossible to access the grocery store, medical services or educational institutions without a car. In this context, it should be noted, that although a vehicle is not necessarily a basic good that is included in the right to a minimal dignified existence, this right should be considered as imposing a duty upon the state to provide some form of transportation to its residents. This duty, which is the positive aspect of the right to freedom of movement, places a particularly heavy burden where the state wishes to revoke the ability to use a vehicle from residents who have no other form of transportation. Revoking the ability to use a vehicle in such areas is an extremely severe violation.

The section is unconstitutional because it does not meet the test of the least restrictive means. The burden to show that the legislative purpose is realized to a lesser degree were the alternative mechanism be adopted was not met by the Respondents. Having said this, even were the costs of particular assessments to increase, such increase is not expected to be very significant. This because in any event within the current mechanism the state operates a system of personal investigation in order to ensure the lack of use of a vehicle, whose costs are not insignificant. In any case, the Respondents have not even met their burden to demonstrate that the alternative means would realize the legislative purpose with significantly higher costs. Nor does the section pass the narrow proportionality test. The mechanism of income guarantee is one of the last assistance mechanisms in Israel for any person who cannot support themselves. We should exercise double and triple caution where one is denied this mechanism. The harm caused by a person fraudulently receiving a benefit to which they are not entitled is exceedingly smaller than the harm caused by leaving a person without minimal living conditions.

Voting Justices:

Hassan v. National Insurance Institute.pdf

Primary Author

majority opinion

Naor, Miriam

Author

concurrence

Vogelman, Uzi

Author

concurrence

Arbel, Edna

Author

concurrence

Hayut, Esther

Author

concurrence

Rubinstein, Elyakim

Author

concurrence

Joubran, Salim

Author

concurrence

Full text of the opinion:

The Supreme Court sitting as the High Court of Justice

HCJ 10662/04

HCJ 3282/05

HCJ 7804/05

Before:

The honorable President D. Beinisch

The honorable Justice M. Naor

The honorable Justice E. Arbel

The honorable Justice E. Rubinstein

The honorable Justice S. Joubran

The honorable Justice E. Hayut

The honorable Justice U. Fogelman

Petitioners in HCJ 10662/04:

1. Salah Hassan

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

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

Petitioners in HCJ 3282/05:

1. Meirav Ben-Nun

2. Yael Be’er Salaman

3. Chen Hazan-Gilboa

4. Sigalit Bakar

5. Avigayil Avihu

6. Mechuyavut -- Commitment to Peace and Social Justice

7. Itach – Women Lawyers for Social Justice

Petitioners in HCJ 7804/05:

Idit Edan

Respondents in HCJ 10662/04:

1. National Insurance Institute

2. Ministry of Industry, Trade and Labor

Respondents in HCJ 3282/05:

1. National Insurance Institute

2. Minister of Social Affairs

Respondents in HCJ 7804/05:

1. National Labor Court

2. National Insurance Institute

Petitions to grant an order nisi

Date of hearing:

11 Heshvan 5772

(November 8, 2011)

On behalf of the Petitioners in HCJ 10662/04

Sawsan Zahr, attorney at law

On behalf of the Petitioners in HCJ 3282/05

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

On behalf of the Petitioners in HCJ 7804/05

Eduardo Wasser, attorney at law

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

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

Judgment

President D. Beinisch:

Preface

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

The Petitioners

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

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

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

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

The normative basis

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

The purposes of the Income Support Law

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

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

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

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

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

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

Rate of

the benefit

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

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

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

Income

9 (A). In this Law,

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

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

(emphasis added – D.B.).

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

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

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

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

(emphasis added – D.B.)

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

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

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

(1) (deleted)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Petitioners' arguments

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

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

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

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

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

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

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

The Respondents’ arguments

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

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

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

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

The questions that must be decided

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

The stages of judicial review

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

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

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

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

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

The distinction between civil and political rights and socioeconomic rights

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

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

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

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

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

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

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

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

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

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

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

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

Violation of the right

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

On human dignity and the right to a minimum dignified subsistence

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

Purpose

1.A

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

Preservation of life, body and dignity

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

…

Protection of life, body and dignity

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

…

Application

11.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The argument of duress

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The remedy

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

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

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

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

The President

Justice M. Naor

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

Justice

Justice U. Fogelman

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

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

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

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

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

Justice

Justice E. Arbel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice

Justice E. Hayut

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

Declaration for the future

A person, when he's hungry

or insecure,

he will make compromises,

he will do things

he never dreamt of in his life.

Suddenly he's got a crooked back,

and what happened to his back

that it got so crooked?

Loss of pride.

And his smile is frozen

and both hands filthy,

or so it seems to him,

from coming in contact with moist objects

whose touch he cannot escape.

And he has no choice,

or so it seems to him,

and it's a marvel

how for years he'll forbear,

and merely record the annals of his life

within,

year after year.

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

Justice

Justice E. Rubinstein

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

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

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

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

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

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

On the examination stage

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

On poverty and a minimum dignified subsistence in Jewish law

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

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

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

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

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

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

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

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

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

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

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

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

Respect for fellow human beings in Jewish ethical theory

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

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

Guaranteed minimum income – charity by the public

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

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

On the importance of doing and encouraging work

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

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

Summary

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

Before closing

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

Justice

Justice S. Joubran:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice

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

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

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

The President Justice Justice Justice

Justice Justice Justice

_________________________

Thiscopy is subject to editorial and textual changes10041690_N04.docAB

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Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/04/620/106/n44/04106620.n44.pdf

Hass v. IDF Commander in West Bank

Case/docket number:

HCJ 10356/02

Date Decided:

Thursday, March 4, 2004

Decision Type:

Original

Topics:

Abstract:

Facts: The Machpela Cave is believed to be the burial site of Abraham and Sarah, Isaac and Rebecca, Jacob and Leah. As such, it is holy to Jews and Moslems. Over the years, the site has seen acts of violence by members of one religion against the other, resulting in casualties.

On Sabbaths and festivals, large numbers of Jews, sometimes in the thousands, go from the nearby town of Kiryat Arba to the Machpela Cave on foot, since the use of vehicles is prohibited by Judaism on these days. They go to the Cave by means of the ‘worshippers’ route,’ a narrow passage that is not wide enough for security or rescue vehicles to pass in case of a terrorist attack.

The IDF commander in Judaea and Samaria decided to widen the worshippers’ route, and for this purpose he made an order to requisition private land and to demolish certain buildings along the route. The petitioners challenged the constitutionality of this order.

Held: In view of the constitutional importance of the freedom of religion and the freedom of worship, a certain violation of property rights may be allowed to facilitate the freedom of worship. The buildings scheduled for demolition are uninhabited, and the widening of the route was kept to the absolute minimum, to allow only unidirectional traffic. In these circumstances, the requisition order satisfies the test of constitutionality.

Voting Justices:

Hass v. IDF Commander in West Bank.pdf

Primary Author

majority opinion

Barak, Aharon

majority opinion

Cheshin, Mishael

majority opinion

Full text of the opinion:

HCJ 10356/02

1. Yoav Hass

2. MK Musi Raz

3. ‘Yesh Gevul’ Movement

1. IDF Commander in West Bank

2. State of Israel

HCJ 10497/02

Hebron Municipality and others

1. Major-General Moshe Kaplinsky, IDF Commander in Judaea and Samaria

2. Civilian Administration for Judaea and Samaria

3. Government of Israel

The Supreme Court sitting as the High Court of Justice

[4 March 2004]

Before President A. Barak and Justices M. Cheshin, A. Procaccia

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

Petitions denied.

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Palestine Order in Council, 1922, art. 83.

Protection of Holy Places Law, 5727-1967, s. 1.

Israeli Supreme Court cases cited:

[1] HCJ 4212/02 Gussin v. IDF Commander [2002] IsrSC 56(4) 608.

[2] HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[3] HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[4] HCJ 6860/01 Hamada v. Israel Insurance Pool [2003] IsrSC 57(3) 8.

[5] HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria (unreported).

[6] HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria (unreported).

[7] HCJ 591/88 Taha v. Minister of Defence [1991] IsrSC 45(2) 45.

[8] HCJ 2717/96 Wafa v. Minister of Defence [1996] IsrSC 50(2) 848.

[9] HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [1983] IsrSC 37(2) 197.

[10] HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [1991] IsrSC 45(2) 325.

[11] HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [1988] IsrSC 42(2) 767.

[12] HCJ 834/78 Salama v. Minister of Defence [1979] IsrSC 33(1) 471.

[13] HCJ 302/72 Hilo v. Government of Israel [1973] IsrSC 27(2) 169.

[14] HCJ 619/78 El Talia Weekly v. Minister of Defence [1979] IsrSC 33(3) 505.

[15] HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [1990] IsrSC 44(1) 536.

[16] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[17] HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[18] HCJ 5688/92 Wechselbaum v. Minister of Defence [1993] IsrSC 47(2) 812.

[19] HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

[20] HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [1987] IsrSC 41(1) 528.

[21] HCJ 469/83 Hebron National United Bus Co. Ltd v. Minister of Defence (unreported).

[22] HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip (unreported).

[23] HCJ 448/85 Dahar v. Minister of Interior [1986] IsrSC 40(2) 701.

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

[25] HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [2001] IsrSC 55(4) 267.

[26] HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [1988] IsrSC 42(3) 377.

[27] HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(5) 481; [1998-9] IsrLR 139.

[28] HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [1984] IsrSC 38(2) 449.

[29] HCJ 7128/96 Temple Mount Faithful v. Government of Israel [1997] IsrSC 51(2) 509.

[30] HCJ 2390/96 Karasik v. State of Israel [2001] IsrSC 55(2) 625.

[31] CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [2001] IsrSC 55(4) 629.

[32] LCA 214/88 Tawil v. Deutch [1990] IsrSC 44(3) 752.

[33] HCJ 270/87 Kando v. Minister of Defence [1989] IsrSC 43(1) 738.

[34] HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

For the petitioners in HCJ 10356/02 — Y. Arnon, Y. Niv.

For the petitioners in HCJ 10497/02 — S. Licker.

For the respondents — Y. Gnessin.

JUDGMENT

Justice A. Procaccia

The question

1. The Jewish inhabitants of Kiryat Arba wish to realize their right to pray at the Machpela cave, which is regarded as a holy site by Judaism and Islam. Pedestrian access from Kiryat Arba to the Machpela Cave passes along a route that is approximately 730 metres long (hereafter — ‘the worshippers’ route’). A large number of pedestrians — men, women and children — pass along this route every Sabbath and festival on their way to pray at the Machpela Cave. In the area adjacent to the worshippers’ route, murderous attacks were made in recent years by terror organizations. Because of the security risk that threatens the pedestrians on the route, the IDF Commander in Judaea and Samaria (hereafter — ‘the area commander’) wishes to adopt various measures to improve the security of those passing along the route. For this purpose, he wishes, inter alia, to widen the path in the northern part of the route and to protect it in various ways. He also wishes to widen the path at the southern part by the Machpela Cave in order to allow security and rescue vehicles to pass, something which is currently impossible because of the narrowness of the path. In order to widen the path along the route, it is necessary to requisition areas of land along the route, and to carry out a partial demolition of two buildings and part of an additional building that are situated in the southern part of the route and are uninhabited. In order to give effect to these measures, the area commander issued a requisition and demolition order. The legality of this action by the area commander is subject to judicial review in this proceeding. We will examine the scope of his authority to issue the order, and we will consider in this regard the question of the relationship between the worshippers’ right of movement and worship and the property right of the owners of the land situated in the area of the order.

Background

2. On Friday evening, 15 November 2002, shots were fired by a terrorist cell at the security forces and worshippers who were walking along the worshippers’ route from Sabbath prayers at the Machpela Cave to their homes in Kiryat Arba. In the battle that ensued between the terrorists and the security forces at the site, twelve security personnel from the IDF, the Border Police and the Kiryat Arba Duty Unit were killed. As a result of this event, and against the background of several previous terror incidents that occurred near that place, the area commander decided to adopt measures to increase the level of security on the worshippers’ route in order to protect the safety and lives of those using it on the way to prayers. The main steps were widening the path and carrying out actions required for this purpose. In order to carry out this plan, on 29 November 2003 the area commander issued an ‘Order for the Requisition of Land’ (hereafter — ‘the requisition order’), in which he ordered the requisition of parcels of land lying adjacent to the route, and the destruction of several buildings along the path. Originally, the order was intended to allow the following measures to be carried out: in the northern part of the route (which extends from the ‘Pishpesh’ route to the crossroads of the ‘Zion,’ ‘Erez’ and ‘Goren’ routes) — building a concrete defence wall to protect the worshippers against flat-trajectory shooting from the east and also widening the road for the purpose of paving a walkway for pedestrians that will be protected by a concrete barrier whose purpose is to prevent pedestrians from being trampled by a vehicle travelling on the road. At the junction itself, a change is planned in the level of the routes crossing it, in order to prevent an obstruction of vehicles at the junction, which in itself creates a security risk. The southern part of the route is a very narrow passage that passes mainly by the houses of the eastern casba of Hebron, and it leads to the Machpela Cave. This passage, because of its narrowness, does not allow vehicles to transverse it. Along it there are abandoned buildings that may be used as a refuge for terrorists and may endanger the lives of pedestrians that pass by, sometimes in their thousands, on their way to prayers. Here the original order planned a widening of the passage to a total width of eight metres, in order to allow the passage of military vehicles and rescue vehicles for the purpose of accompanying and protecting the worshippers, and for the purpose of rescue in case of an attack. In order to allow such a widening, it planned the destruction of approximately 13 abandoned buildings that are situated alongside the route. The order was for a limited time.

The petitions

3. Before us are two petitions against the requisition order. In one petition the petitioners are the ‘Yesh Gevul’ Movement and some of its activists, and in the other petition the petitioners are the Hebron Municipality, the Hebron Buildings Renovation Association, and a group of owners of rights in the land included in the requisition order. The petitions attack the legality of the requisition order and allege that it is unreasonable in the extreme and disproportionate in view of the purpose for which it was made, in view of the severe harm to the property of the owners of rights in the land along the route and in view of the planned harm to the buildings which have an unique archaeological value. It is alleged that the order was issued by the area commander for improper reasons, and the security reason that was given for making the order is a smokescreen for a predominantly political motive whose main purpose is to create territorial continuity between Kiryat Arba and the Machpela Cave by means of establishing a promenade that will, in the future, allow the expansion of Jewish settlement in the area. In this regard, it was alleged that there is no real objective connection between the attacks that occurred in the area and the measures planned within the framework of the requisition order, including the demolition of the houses, and since the area governed by the order was previously declared a closed military area and was emptied of its inhabitants, it is not required for security purposes. The petitioners from among the inhabitants of Hebron emphasized in their arguments that the implementation of the order is likely to lead to the destruction of an important part of the historical city of Hebron, which includes buildings from the Mamluk period and other houses intended for conservation, and that the antiquities law that applies in the area does not allow such activities for archaeological reasons. This claim was supported in a professional opinion given by persons involved in the conservation of ancient buildings and in an expert architectural opinion.

It was also argued by the petitioners that the requisition of the land and the demolition of the buildings governed by the order is contrary to international law that requires the area commander to exercise his authority to ensure order and security in the occupied area within the framework of article 43 of the Hague Convention of 1907 (hereafter — the ‘Hague Convention’) and is contrary to article 53 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter — the ‘Geneva Convention’) which prohibits the destruction of the real estate assets of civilians in an occupied area unless this action is essential and required for military operations. The requisition order is also contrary to the international law that governs the conservation of archaeological assets. According to their position, the order also does not satisfy Israeli constitutional law, because it results in an unbalanced result when weighing the right of the worshippers to realize their freedom of religion and worship against the right of the landowners along the route, who are entitled to protection of their property. The owners of the property rights among the petitioners also argue that their right to be heard and to challenge the legality of the order before the area commander was not upheld.

The original position of the State

4. In the original response of the State to the petitions, it was argued that the sole purpose of the requisition order was security-oriented, and it did not serve as a disguise for achieving any other purpose. It was made in direct response to the continuing risk of terrorist acts, which consistently threatened the Jewish inhabitants who used the worshippers’ route, and in view of the responsibility of the IDF commander to ensure their safety. In order to increase security measures along the route, discretion was exercised carefully and various alternative ways were considered for the pedestrian passage of worshippers to the Machpela Cave on Sabbaths and festivals, and the most strenuous efforts were made to minimize, in so far as possible, the harm to the local inhabitants and the owners of rights in the land adjoining it. Eventually it was found that using the route was the most appropriate solution, as compared with the other options, in view of security needs on the one hand, and the need to restrict the extent of the harm to the local inhabitants on the other.

In response to the petitioners’ claim that their right to challenge the order before the area commander was not upheld, it was argued that the proper steps were taken to make the requisition order known to the owners of rights concerned. A reasonable period of time was allowed for submitting objections, but no such objections were submitted during the time allocated for this before the filing of the petitions.

In the normative sphere, it was argued that the authority of the military commander to requisition land in the occupied area is based on article 43 of the Hague Convention, which establishes a duty to maintain security in the occupied area, and on the proviso in article 23(g) of the Convention which provides a qualification to the prohibition against the demolition of enemy property when this is required for combat purposes. Article 52 of the Hague Convention allows land to be requisitioned for the purpose of ensuring order and public security even when there is no combat, and this also serves as a basis for the action that was carried out. The duty to conserve cultural assets that is enshrined in international law does not preclude recognition of urgent security needs that in certain circumstances override the duty to conserve cultural assets as aforesaid. By virtue of these sources, the area commander is authorized, and even obliged, to protect the security of the pedestrians on the worshippers’ route, and the making of the requisition order falls within this authority and responsibility. This order satisfies the constitutional test in view of the security needs required along the route within the framework of the worshippers’ right of worship, and the inevitable harm to the property of the petitioners as a result is proportionate in view of the fact that we are concerned with buildings that were abandoned some time ago, and in view of the existence of a right to financial compensation for this injury. The action of the IDF commander reflects a proper balance between the various values involved in this case, and it is essential to the public interest, it is reasonable and proportionate, and there are no grounds for intervention in order to change it.

The sequence of proceedings

5. On 18 December 2002, an order nisi was made in the petitions, whereas an interim order that prohibited the demolition of buildings in accordance with the requisition order was restricted so that it would not apply to the northern part of the route up to the crossroads. Within this framework, additional time was given to the owners of the rights to object to the requisition order. Of the 13 owners of rights in the houses that were schedules for demolition under the original order objections were filed with regard to six buildings. One building that was found to be inhabited was excluded from the requisition order.

Before a decision was made with regard to the petitions, the area commander was asked by the court to reconsider other possibilities for the plan of action under the original order, in order to minimize the harm that it was expected to cause the inhabitants of the neighbourhood, such as sealing houses instead of demolishing them, stationing soldiers in order to protect the route when pedestrians pass, directing worshippers to an alternative route, and the like.

Approximately six months after the decision of the court in this respect, the State gave notice, first, that other possibilities for the pedestrian route of worshippers to the Machpela Cave that do not use the worshippers’ route were reconsidered. These were found to be unsuitable, either because they involve too great a risk to the pedestrians, or because preparing the route requires greater harm to the property owners, or because they involve a risk of increasing friction between the Jewish worshippers and the Muslims who come to pray in the Cave. The great risk involved in such friction was discussed in the Report of the Commission of Inquiry on the Massacre at the Machpela Cave in Hebron (hereafter — ‘the Shamgar Commission Report’). In the opinion of the area commander, these defects make the other possibilities for the pedestrian route of the worshippers to the Machpela Cave on Sabbaths and festivals unsuitable, and the worshippers’ route remains the most reasonable option from the viewpoint of the conditions of the terrain and the scope of the measures required in order to safeguard the area.

In such conditions, the area commander decided that there was no alternative to increasing the security of the worshippers’ route itself as the pedestrian route for large numbers of pedestrians, and that for this purpose the requisition order was needed. He also decided, after a reconsideration, that the stationing of soldiers at security positions or the sealing of houses was insufficient, and the widening of the route and the unavoidable demolition of a small number of buildings were required. Notwithstanding, after a reconsideration, it was decided to reduce significantly the scope of the harm to the owners of the property in the area, as compared with the original requisition order. While the original order refers to the widening of the route to a total width of eight metres, according to the revised position a widening of the route to a total width of only 4 metres is sufficient. This width provides the minimum required to allow the passage of security vehicles in one direction. Even though, in the opinion of the area commander, such a minimal widening of the route involves a certain security risk in that it does not allow two-directional traffic of vehicles along the route, he is currently prepared to be satisfied with a more limited widening of the route that will allow only unidirectional traffic, in order to minimize the damage to the owners of the lands adjacent to the route. The reduction of the width of the route also involves a significant reduction in the number of structures that are scheduled for demolition. Whereas the original plan spoke of the demolition of 13 buildings, today the plan calls for a partial demolition of two buildings and a part of a third building that are situated at the ends of the route and are abandoned. The demolition will be carried out under professional supervision to protect, in so far as possible, important archaeological foundations and to restrict the extent of the harm to the buildings to a minimum. It is also planned to seal entrances to additional uninhabited buildings along the route, to install nets in inhabited buildings, to pave a part of a path that has not yet been paved in order to safeguard against the laying of mines, and to place lamp posts and guard posts along the route. With regard to the northern part of the route, the State undertook not to extend the route to more than two metres from the two sides of the road (court record of 23 November 2003). In order to make the aforesaid revisions to the original plan, an appropriate amendment of the requisition order was required.

The essence of the order in its limited format as it is brought before us for review is, therefore, the following: in the northern part of the route — widening of the road to an amount of two metres from each side; in the southern part of the route — widening the road to a total width of four metres; a partial demolition of two buildings and a part of an additional building; the requisition of parcels of land alongside the route, as required for the purpose of widening it.

Decision

Right to be heard

6. The owners of the rights in the land claim that their right to challenge the validity of the requisition order before the military commander, before they filed their petition, was not upheld.

No-one disputes the existence of a right to be heard that is available to anyone who may be harmed by an executive act. There is no need to expand upon the importance of this right, which is firmly rooted in Israeli administrative law. However, in the circumstances of this case, the right of the petitioners to be heard was not violated. The order, according to its wording, regulates the details of how it should be published and the ways in which it should be delivered to the owners of the rights who may be harmed by its provisions. The provisions of the order were carried out in this respect. The requisition order was distributed in the area designated for the requisition, and it was affixed to each of the buildings scheduled for demolition. It was delivered to the mayor of Hebron and the legal adviser of the municipality. Copies of the order were deposited at the Hebron liaison office and at the other offices of the competent Israeli and Palestinian authorities in the area. The fact that the order had been made was announced in the media. In addition, a tour of the route in the order was made, with the participation of military personnel and representatives of the owners of the rights in the land, and time was given to those persons who were likely to be harmed to challenge the order before the area commander. Before filing the petitions, no challenges were filed within the time period fixed for this. Within the framework of the hearing of the petitions, additional time was given to the petitioners to file their challenges. At this stage of the proceedings, challenges were filed with regard to some of the buildings scheduled for demolition under the original plan. These challenges were examined by the State. In view of the aforesaid facts, the petitioners’ right to be heard and to file objections was satisfied within the framework of this proceeding.

Legality of the requisition order

7. The requisition order that was made involves the requisition of private land and the demolition of buildings, and it constitutes a legal act that harms the petitioners’ property rights. The legality of this act should be examined within the framework of international law, local law and Israeli law that all apply to the actions of the area commander (HCJ 4212/02 Gussin v. IDF Commander [1], at p. 609; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2], at p. 382 {117-118}).

The question that must be answered is whether the requisition order, in its reduced version, satisfies the criteria required for its legality, or whether it suffers from a defect that justifies judicial intervention to set it aside or amend it. In considering this question, we will examine the source and scope of the area commander’s authority to make the order under discussion; we will consider whether there is a basis for the petitioners’ suspicion that irrelevant motives led to the making of the order; and we will scrutinize the various values and rights that conflict in this case — freedom of worship and the right of movement, the protection of human life, the protection of private property rights — in order to determine whether these were balanced against each other properly within the framework of the order, and whether the order satisfies the rules of constitutional law.

The area commander’s responsibility and scope of authority

8. The executive powers of the area commander derive from several sources: the rules of public international law that concern belligerent occupation; the local law that prevails in the area, which is composed of the law prior to the military occupation and new local legislation that was enacted by the military administration; and the principles of Israeli law (HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 10; HCJ 6860/01 Hamada v. Israel Car Insurance Pool [4], at paras. 6-7). Within the sphere of international law, his actions are subject to the laws of war that determine what is permitted and what is prohibited for the commander of a military force who is responsible for an area under belligerent occupation (Ajuri v. IDF Commander in West Bank [2], at p. 358 {87}; HCJ 3286/00 Association for Civil Rights in Israel v. IDF Commander in Judaea and Samaria [5]; HCJ 2461/01 Canaan v. IDF Commander in Judaea and Samaria [6]; Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 793). Within the framework of Israeli law, he is subject, inter alia, to the rules of public law, including the rules of natural justice and administrative reasonableness (HCJ 591/88 Taha v. Minister of Defence [7], at p. 52).

Israel’s belligerent occupation of the occupied territories is subject to the main norms of customary international law that are enshrined in the Hague Convention. The question to what extent the Geneva Convention applies in this sphere has not yet been finally determined, but the humanitarian principles have been adopted de facto by the State and the area commander, and therefore we will assume that they apply in our case (cf. Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 11).

The Hague Convention authorizes the area commander to act in two main spheres: the first is to ensure the legitimate security interest of the occupier, and the second is the ensure the needs of the local population in the area under belligerent occupation. The local population for this purpose includes both the Arab and Israeli inhabitants. The first need is a military need and the second is a civilian-humanitarian need. The first focuses on concern for the security of the military force that is occupying the area, and the second concerns the responsibility for preserving the welfare of the inhabitants. Within the latter sphere, the area commander is responsible not only for maintaining order and ensuring the security of the inhabitants but also for protecting their rights, especially their constitutional human rights. The concern for human rights lies at the heart of the humanitarian considerations that the area commander must consider. According to art. 43 of the Hague Convention, the force in control of the occupied area has the responsibility to take all the steps that it can to re-establish and guarantee, in so far as possible, public order and security in the area, while respecting the law in force in the area, in so far as possible. In carrying out his duty to maintain order and security, the area commander must therefore ensure the essential security interests on the one hand, and protect the interests of the civilian population in the area on the other (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at p. 794). A proper balance is required between these two focal points of responsibility. Indeed, ‘the laws of war usually create a delicate balance between two magnetic poles: military needs on the one hand, and humanitarian considerations on the other’ (Y. Dinstein, ‘Legislative Authority in the Administered Territories,’ 2 Iyunei Mishpat (1973) 505, at p. 509). In his considerations, the commander must concentrate on the needs of the area; he should not take into account the concerns of the country that holds the area under belligerent occupation, as a result of which he is exercising his authority.

The authority of the area commander to make orders for security needs, including an order concerning the requisition of land, is established both in international law and in Israeli law. These orders are law in Judaea and Samaria (HCJ 2717/96 Wafa v. Minister of Defence [8], at p. 851; HCJ 69/81 Abu Ita v. Commander of Judaea and Samaria [9], at pp. 228-230).

Requisition of land

9. The requisition of land may be an essential step in the realization of the area commander’s powers and responsibility. It may be required both in order to realize military and security concerns, and in order to realize the duty of the commander to protect the interests of the civilian population in the area.

The laws of war in international law prohibit the requisition or demolition of private property in an area under belligerent occupation unless it is essential for combat purposes. According to article 23(g) of the Hague Convention, the occupying power is forbidden:

‘To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war’ (emphasis supplied).

Article 52 of the Hague Convention provides that no requisition of land shall be made in an occupied area, except for military purposes. This article has been interpreted broadly in case law as applying also to the need to requisition land in order to establish military positions and outposts, and also in order to pave roads for the purpose of protecting Israeli inhabitants living in the area (HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [10]; Wafa v. Minister of Defence [8], at p. 856; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [11]).

Article 53 of the Geneva Convention prohibits the destruction of any real estate or movable property that belongs to an individual or to the State by the occupying force, subject to the following exception:

‘except where such destruction is rendered absolutely necessary by military operations.’

In J. Pictet’s commentary on the Geneva Convention (1958, at p. 302), he explains the nature of the aforesaid reservation as follows:

‘The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases “where such destruction is rendered absolutely necessary by military operations.” The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand. Furthermore, it will be for the occupying power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the occupying power to circumvent the prohibition set forth in the convention. The occupying power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done’ (emphases supplied).

In the spirit of the aforesaid commentary, before he decides to requisition or to demolish civilian property in the occupied territory, the military commander is required by international law to exercise very scrupulous consideration. He is entitled to do this where essential military-security needs so demand, and when the requisition balances proportionately between the importance of the military need and the extent of the damage that is likely to be caused to the property owner by the requisition. Within the framework of this balance, he should consider, inter alia, the existence of alternatives that may prevent any harm to individual rights (Timraz v. IDF Commander in Gaza Strip [10], at para. 4; HCJ 834/78 Salama v. Minister of Defence [11]). The requisition of property as aforesaid will also be possible in exceptional cases where it is required in order to provide essential living requirements of the population living in the area; thus, for example, a need was recognized to requisition private land for the purpose of paving roads and access routes to various places in the area. In exceptional cases, a certain harm to private property may be possible for the purpose of providing a proper defence to other constitutional human rights of the population living in the area, where these conflict with the property right of the individual in a specific case. But it is always a condition for the legal validity of such harm that it satisfies the proper balance test which is required in accordance with the criteria determined by constitutional law.

Alongside the rules of international law, the rules of internal Israeli law that apply to the area commander require that the property of the inhabitants of the area may not be harmed unless such harm is intended to achieve a purpose which falls within his powers, and an essential need makes this necessary. This power, both from the viewpoint of international law and from the viewpoint of Israeli public law, should be exercised for a proper purpose, reasonably and proportionately, after a careful and measured balance between the necessity of the purpose that he wishes to achieve and the nature and scope of the harm involved in achieving it.

10. This court exercises judicial review of the legality of the discretion exercised by the area commander as someone who holds a public office by law. In this review, the court does not replace the discretion of the commander with its own discretion, and it does not make itself an expert in security and military matters in the place of the commander (HCJ 302/72 Hilo v. Government of Israel [13]). Even under international law the military commander has broad discretion to decide the scope of the necessity (C.C. Hyde, International Law (second edition, vol. 3, 1947), at p. 1802). The role of judicial review is to stand on guard and ensure compliance with the legal rules that determine the limits of the area commander’s discretion (Ajuri v. IDF Commander in West Bank [2], at para. 30; HCJ 619/78 El Talia Weekly v. Minister of Defence [14], at p. 512). We must be scrupulous when considering the legality of the discretion exercised by the area commander, including whether the considerations underlying his action are relevant, reasonable and proportionate, in view of all of the circumstances of the given case (HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [15], at p. 539).

Levels of scrutiny of the requisition order’s legality

11. The arguments of the petitioners necessitate an examination of the legality of the requisition order in its restricted format on two levels: first, whether the reason underlying the making of the order is a real security concern, or whether the motive for it is intended to achieve another purpose, such as creating territorial continuity between Kiryat Arba and the Machpela Cave for the purpose of strengthening the Jewish settlement in the area of Hebron.

Second, we must examine to what extent, assuming that the requisition order was made for relevant security reasons, the decision of the commander satisfies the constitutional balance test, in permitting harm to the private property of one person in order to allow proportionate security measures to be adopted for the purpose of helping to achieve the right of worship and prayer of another person at a holy place.

Purpose of the order to increase security measures and irrelevant considerations

12. According to the basic principles of administrative law, an administrative authority is obliged to exercise its powers on the basis of relevant considerations only. It must take into account facts and data that are relevant to the case, including relevant values and principles only. It is prohibited from considering an irrelevant consideration (HCJ 5016/96 Horev v. Minister of Transport [16], at p. 34 {183}; I. Zamir, Administrative Authority, 1996, at pp. 741-742). Taking an irrelevant consideration into account may result in the decision being set aside where it can be assumed that, had the irrelevant consideration not been taken into account, the decision of the authority would have been different (HCJ 390/79 Dawikat v. Government of Israel [17], at p. 20). Identifying the relevant considerations for exercising the authority is based on the purpose of the authorizing legislation (HCJ 5688/92 Wechselbaum v. Minister of Defence [18], at p. 824; HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [19], at p. 432).

The area commander denies the existence of a concealed political motive for making the order, and insists that the plan to widen the worshippers’ route, requisition the parcels adjacent to the route and demolish the buildings, all of which is included in the order, is essential for security needs and vital for the protection of the lives of the persons using it.

The action of the military commander in making the requisition order has the presumption of administrative propriety as long as no factual basis has been established to the contrary. In our case, no sufficient factual basis has been established for the claim that the considerations of the area commander in issuing the order in its narrow format were motivated by irrelevant considerations and a concealed purpose that is not really the addition of essential security measures on the worshippers’ route. The right of worshippers to walk from Kiryat Arba to the Machpela Cave on Sabbaths and festivals has not been denied. The commander, as the person responsible for the security of the inhabitants and public order in the area, and as the person responsible for protecting the safety of the inhabitants of the area — both Jews and Arabs — is of the opinion that it is essential to increase security measures along the worshippers’ route in order to protect the pedestrians who use it. This position is explained, inter alia, against the background of the large number of persons who use the route, and the major security risks involved in it in view of its topographic characteristics. This position is not prima facie unfounded and it is supported by bitter experience associated with the terror attacks that have occurred in the area of the route and which have claimed human lives. The position of the commander, prima facie, is reasonable from the viewpoint of logic and clear reasoning. No major effort at persuasion is required to prove the existence of a major security risk created by the passage of thousands of pedestrians in an area infamous for terror attacks, whose alleys are so narrow that a vehicle cannot pass along certain parts of them, and abandoned buildings next to it may serve as hideouts for terrorists. These topographic features justify, prima facie, the adoption of measures to increase the security of the pedestrians in the passage. They do not support the claim that an improper, concealed motive is what led to the making of the order. A separate question is to what extent, assuming that it is indeed a security motive that underlies the order, it satisfies the constitutional test as to the manner in which it balances between the freedom of religion and right of worship of the worshippers on the one hand, and the right of private property of the petitioners on the other.

Constitutional balance: realization of the right of prayer and worship in conditions of relative security against a relative violation of the right of private property

13. The essence of the requisition order is the adoption of security measures along the worshippers’ route in order to protect, albeit in a relative degree, the lives of the pedestrians on Sabbaths and festivals. In order to achieve this purpose, a requisition of land is required alongside the route, as well as a partial demolition of two buildings and a part of an additional building which are uninhabited. Is the military commander authorized to make a requisition order for the purpose of increasing the security of the worshippers who use the route, in order to allow them to realize their right to pray at the holy site under conditions of relative security, where this involves a violation of the right of private property, and does this satisfy the constitutional test?

Responsibility of the military commander for the safety of the inhabitants of the area

14. In addition to the responsibility of the area commander to ensure the security of the military force that he commands, he must ensure the safety, security and welfare of the inhabitants of the area. He owes this duty to all the inhabitants, without any distinction as to their identity — Jews, Arabs or foreigners. The question whether the residency of various parts of the population is legal does not come before us today for a determination. Their very residency in the area leads to the duty of the area commander to protect their lives and their human rights. This is part of the humanitarian sphere for which the military force is responsible in a belligerent occupation (HCJ 72/86 Zaloom v. IDF Commander for Judaea and Samaria [20]; HCJ 469/83 Hebron National United Bus Company Ltd v. Minister of Defence [21]; HCJ 4363/02 Zindah v. IDF Commander in Gaza Strip [22]; Gussin v. IDF Commander [1], at para. 6). The duty of the commander to ensure proper living conditions in the area extends to all spheres of life and goes beyond security matters and immediate existential needs. It applies to the varied living requirements of the inhabitants, including medical needs, sanitation, economic concerns, education, social needs and other needs that people require in modern society. It applies also to measures required to ensure ‘growth, change and development’ (Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [3], at para. 26). Within the framework of his responsibility for the welfare of the inhabitants of the area, the commander must also concern himself with providing proper protection for the constitutional human rights of the inhabitants of the area, within the limits that the conditions and circumstances in the area allow. Such protection applies to all the population groups that live there, Jews and Arabs alike. Included among the protected constitutional rights are the rights to freedom of movement, freedom of religion and worship, and property rights. Sometimes this protection requires a decision between conflicting human rights. Such a decision requires a balance that satisfies the constitutional test, namely the existence of a proper purpose and proportionality in the harm to one right in order to allow the relative realization of the other right. In making the requisition order, the area commander is seeking to increase the security measures for pedestrians on the worshippers’ route on their way to the Machpela Cave. Thereby he is seeking to allow the realization of their constitutional right to freedom of religion and worship in conditions that provide protection to life, albeit relatively. In doing so, a relative violation of the petitioners’ private property rights was necessary. Is the balance that was made a proper and proportionate one?

Freedom of movement and freedom of religion and worship

15. The inhabitants of the area have a constitutional right to freedom of religion and worship. This is the case for the Arab inhabitants and it is also the case for the Jewish inhabitants who live there. The inhabitants of the area also have the right of freedom of movement, by means of which it is possible to realize, inter alia, the right of access to holy places. The right of movement and access to holy places is of great constitutional strength (Horev v. Minister of Transport [16], at p. 49 {202-203}; HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708; HCJ 2481/93 Dayan v. Wilk [24], at para. 17 {341}). In this case, the freedom of movement is closely associated with and incorporated in the right to realize freedom of religion and worship. It is a value that is intended to realize the right of Jewish worshippers to go on foot to the Machpela Cave on Sabbaths and festivals.

The freedom of worship as an expression of freedom of religion is one of the basic human rights. It is the freedom of the individual to believe and to act in accordance with his belief, by observing its precepts and customs (HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [25], at p. 277; HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 3267/97 Rubinstein v. Minister of Defence [27], at p. 528 {200}). This freedom is related to a person’s realization of his own identity. This freedom recognizes the desire of a believer to pray at a holy site. This recognition is a part of the broad constitutional protection given to the right of access of members of the various religions to the places that are holy to them, and the prohibition against injuring their sensibilities with regard to those places (s. 1 of the Protection of Holy Places Law, 5727-1967). The freedom of religion is regarded as a branch of freedom of expression in the sphere of religious belief. It was recognized by the legislator already in art. 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence, which states that freedom of religion and conscience will be guaranteed to every citizen of the State. This freedom has been recognized in case law as a constitutional basic human right (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454; Israel Movement for Progressive Judaism v. Minister of Religious Affairs [26], at p. 381; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [29], at pp. 522-523; Gur Aryeh v. Second Television and Radio Authority [25], at pp. 276-277).

The freedom of religion and worship is granted as a constitutional right to the population living in the territories, both Jews and Arabs. It is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers. Increasing the security measures for the pedestrians along the worshippers’ route is intended to allow Jewish inhabitants to exercise their constitutional right to pray at a holy site.

Prayer at the Machpela Cave: a constitutional right of worship of Jews and Moslems

16. According to Jewish, Christian and Moslem tradition, the Machpela Cave is the site where Abraham and Sarah, Isaac and Rebecca, Jacob and Leah are buried, and according to some non-Jewish traditions, Joseph too is buried there. According to the tradition, the building of the Cave is located on a burial plot that Abraham acquired in order to bury his wife, and there all the other patriarchs and matriarchs, with the exception of Rachel, were buried. Historical and archaeological research has not clearly discovered who built the building of the Machpela Cave, although most researchers attribute it to King Herod and associate it with the Idumeans (for an extensive survey of this subject, see the Shamgar Commission Report, supra, at pp. 95 et seq.).

The Machpela Cave was regarded as a holy site and a place of worship already in the period of the Mishnah, after the destruction of the Temple. Praying by Jews at the Cave is recognized today in decisions of the political echelon. In 1967 the government made several decisions regarding the reinstatement of praying by Jews at the Machpela Cave on Sabbaths, and it made arrangements for coordinating the prayers of Jews and Moslems at the Cave, together with proper security measures for protecting Jewish worshippers (Shamgar Commission Report, at pp. 99 et seq.). Later it was decided that Jews would be entitled to enter the Cave also on Friday evening, for the Sabbath Eve prayers. As of 1972, the areas of prayer in the Cave were determined anew in a decision of the government, and the areas for Jewish prayers were extended. This extension resulted from a growth in the Jewish settlement in the area, and the founding of Kiryat Arba, which increased the number of people wishing to pray at the Cave. On 4 August 1975, the government made a decision regulating the arrangements for entering and leaving the Cave, and the division of prayer times in the various areas, in order to reduce friction between Jewish worshippers and Moslem worshippers.

Over the years, the prayers in the Cave have, from time to time, been accompanied by violent friction between Jews and Arabs, which sometimes resulted in loss of life on both sides. The height of these conflicts occurred in the massacre at the Machpela Cave in 1994, when dozens of Moslem worshippers were murdered. Recognition of the Cave as a holy site for both Jews and Moslems led the government and the army, in coordination with the Moslem representatives, to determine arrangements that would allow those who wished to realize the right of prayer at the Cave to do so, whether Moslems or Jews. In this context, security arrangements were made to split the times and places for prayer between believers of the two religions, with the intention of ensuring that the basic rights of prayer of the two sides would be upheld (Shamgar Commission Report, at pp. 107 et seq.). After the massacre at the Machpela Cave, the Commission of Inquiry recommended that the arrangements for prayers at the Cave for members of the two religions should be maintained, with particular care to separate Jews and Moslems physically for security reasons, and with a reinforcement of security measures that were intended to protect the worshippers of the two religions against attacks of one group against the other.

The main conclusions of the Shamgar Commission concerned the prayer and security arrangements required in the precincts of the Cave itself. This case involves similar issues in the sense that it concerns aspects of the security of the Jewish worshippers on their way to the Cave, as a part of the realization of their right to freedom of worship at a holy site. But the premise is that freedom of religion and worship is not an absolute freedom but only a relative one. A balance must be found between it and other rights and values that are worthy of protection, including the value of private property (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 455; A. Barak, Legal Interpretation, vol. 3, at p. 225). Against this background, the question before us is whether the need to ensure the safety of the worshippers justifies taking measures that include the requisition of land and the demolition of houses that are privately owned.

Property rights

17. The right of private property in the land and buildings that are the subject of the requisition order is a protected constitutional right. It is recognized in international law, including in the Hague Convention and Geneva Convention. It has achieved a constitutional status in Israel in s. 3 of the Basic Law: Human Dignity and Liberty (HCJ 2390/96 Karasik v. State of Israel [30] at pp. 712, 716; CA 5546/97 Kiryat Ata Local Planning and Building Committee v. Holtzman [31], at p. 641). The individual’s property right does not cease to exist even in wartime (Gussin v. IDF Commander [1], at para. 4). The right of property has additional weight when it concerns a person’s home (LCA 214/88 Tawil v. Deutch [32], at p. 754). In this case, we are not dealing with homes that are inhabited, since the buildings that are scheduled for demolition were abandoned years ago. We are dealing with buildings with an archaeological value whose historical value should be protected (HCJ 270/87 Kando v. Minister of Defence [33], at p. 742). The area commander has a duty, under the rules of international law, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, to protect the cultural treasures in an occupied territory, including assets of archaeological value. He must act in this matter in accordance with the basic principles of administrative law.

A person’s right to property is not an absolute right. It is a relative right. It may be violated where other desirable social purposes need to be promoted, and these include the advancement of different constitutional basic rights of others (Ajuri v. IDF Commander in West Bank [2], at p. 365 {97}). What is the scope of the violation that is permitted to the property right as a constitutional right in such a conflict of rights?

Two-stage balance: first stage — freedom of religion and worship versus the value of protecting human life; second stage — the freedom of worship versus the value of protecting private property

18. A confrontation between conflicting constitutional rights is usually a direct and frontal confrontation that requires balancing and weighing in one stage. But sometimes the conflict is more complex, and it may involve not only a conflict between constitutional human rights but also a conflict between them and between another general social value — such as the value of preserving public safety and security, which, in the circumstances of the case, enters into the required balancing process. In such a case, a need may arise for a two-stage balancing between the rights and values in order to decide the question whether the administrative act satisfies the constitutional criteria. The case before us is an example of the latter possibility. It first raises the question as to what is the proper method of balancing the right of the worshippers to realize the freedom of prayer at a holy site against the value of protecting human life which the area commander is responsible to protect. If, within the framework of this balance, it transpires that in the circumstances of a given case there is no possible proper balance between the freedom of worship and the value of protecting life, then the latter value prevails and the right of worship gives way on account of the importance of the value of life. However, if it transpires that it is possible in the circumstances of a certain case to find a balance between the aforesaid constitutional right and the value of protecting human life by adopting increased security measures, then a second question arises as to whether the violation of another constitutional right such as the right of private property, which is necessitated within the framework of those measures, satisfies the rules of constitutional balancing in its conflict with the right of prayer at a holy site.

The first stage of the balancing: the right of worship versus the value of protecting human life

19. Realization of a constitutional right may involve a danger to public safety and security. This risk also includes a risk to the safety and security of someone who wishes to realize the constitutional right. There exists an obvious public interest in maintaining order and security in society. This as an essential condition for protecting life and human existence. The protection of human life is a condition for realizing individual rights and therefore this protection is of greater importance than the constitutional right, where there exists a real probability, in the sense of a ‘near certainty,’ that realizing the right will lead to serious harm to public safety (per President Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 454). The public interest in protecting human life affects the scope of the constitutional right and its relative importance vis-à-vis other values. Where the realization of the constitutional right will lead to a near certainty of serious harm to public safety, the constitutional right will give way to public safety (Dayan v. Wilk [24], at p. 472 {341-342}). This has been held for many years with regard to the right of Jews to pray on the Temple Mount in Jerusalem, when it was found that realization of the right de facto would almost certainly lead to an eruption of large-scale disturbances, which might become uncontrollable, both in Israel and abroad.

But the existence of a risk to public order and security that can be anticipated from the realization of the constitutional right does not justify, in every case, the absolute denial of its realization. We should aim, in so far as possible, to achieve a proper balance between the needs of protecting public safety and the value inherent in the realization of the constitutional right, by creating an infrastructure of measures that will reduce the likelihood of the harm. The need and ability to make such a balance derive, on the one hand, from the strength of the constitutional right of the individual, and, on the other hand, from the range of measures available to the competent authority to satisfy the needs of public order and security, which are required as a precondition for realizing the constitutional right.

The freedom of religion is a constitutional basic right of the individual, with a preferred status even in relation to other constitutional human rights. The freedom of worship constitutes an expression of freedom of religion, and it is an offshoot of freedom of expression. ‘A person expresses himself within the sphere of religious belief by means of religious worship’ (per Justice Zamir in Temple Mount Faithful v. Government of Israel [29], at pp. 522-523). The constitutional protection given to freedom of worship is therefore similar, in principle, to the protection given to freedom of speech, and the constitutional balancing formula that befits the one is also applicable to the other (Temple Mount Faithful v. Jerusalem District Police Commissioner [28], at p. 456). We are concerned with a constitutional right of great strength whose weight is great when it is balanced against conflicting social values.

Where the realization of the right of worship creates a near certainty of the occurrence of serious and grave damage to public safety and there is no solution to such a collision by means of the use of reasonable measures that will make the danger more remote, then the value of public safety will prevail and the constitutional right will yield to it (Barak, Legal Interpretation, vol. 3, pp. 225-226). But where there are reasonable measures that can reduce the danger of the harm, the authorities can and should resort to these, especially where they are confronted with a constitutional right of special weight. Thus, the greater the constitutional right on the scale of rights, the greater is the need to exhaust all available reasonable measures by means of which it is possible to reduce the danger to public safety.

The worshippers who wish to go to the Machpela Cave by foot on Sabbaths and festivals wish to realize a constitutional right of freedom of worship in a holy place. This right is of special importance and weight on the scale of constitutional rights. But the public interest to ensure the security and safety of the worshippers, when passing along the worshippers’ route, against the danger of attacks that directly threatens them conflicts with the realization of the right of worship. It is the responsibility of the area commander to protect the route and those using it against danger to human life. In order to satisfy the security interest as aforesaid, the area commander considered two alternatives: to prohibit the use of the route by worshippers on foot from Kiryat Arba to the Cave on Sabbaths and festivals, or to allow this use and to take various measures that will increase the security of the area. In view of the constitutional importance of the right of prayer in a holy place, the commander saw fit to allow the use of the route and to adopt increased security measures. This balance, prima facie, satisfies the test of reasonableness. Whether the measure of harming private property in order to achieve the aforesaid purpose satisfies the constitutional test is another question.

Second stage of the balancing: the right of religion and worship versus the right of private property

20. There may be situations in which a relative harm to one constitutional right is possible in order to realize another constitutional right, in conditions that will ensure relative protection of human life. This is conditional upon the relative balancing of these constitutional rights against one another, as dictated by the circumstances of the case. This balance sometimes requires a conceptual definition of the constitutional rights in accordance with a scale of importance and strength in order to examine whether one right has preference and superiority to the other, or whether they are of equal importance and standing. Sometimes this conceptual examination will become redundant whether it is found that a balance that was made de facto also satisfies the constitutional criteria required for the purpose of a balance between constitutional rights that are of equal standing and rank to one another.

In the special circumstances of this case, there is no need to adopt a decisive position with regard to the conceptual ranking of the right of worship and the right of property in order to decide the question of how to balance between them in a case of a conflict. In view of the facts of the concrete case, the balance between them satisfies the test of constitutionality (HCJ 153/83 Levy v. Southern District Commissioner of Police [34], at p. 400 {115-116}). Even if we assume, for the purposes of this case, that we are concerned with constitutional rights of equal standing and importance, even so, in the horizontal balance between them, sometimes a certain reduction of one will be possible to allow the relative realization of the other. This reduction satisfies the test of constitutionality if it befits accepted social values, is intended for a proper purpose and is not excessive in its scope, in the spirit of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. These principles today form a link between the Basic Law and all the rules of public law (Horev v. Minister of Transport [16], at pp. 41-43 {193-195}). They reflect a general balancing formula that assumes that where constitutional rights of an equal standing are concerned, complete protection should not be given to one right at the expense of a complete violation of the other right, but we should seek to uphold them jointly by allowing a reciprocal reduction of each of them.

From the general to the specific

21. The area commander has the responsibility for the security of the military force in the area under his command, as well as for maintaining order and ensuring the security and welfare of the inhabitants living there. Of paramount importance in the responsibility for the population of the area is the duty to ensure the safety and security of the inhabitants’ lives. The responsibility of the commander includes not only the duty to ensure that the inhabitants’ lives are secure, but also the responsibility to protect the human rights of all the inhabitants of the area, whether Arabs or Jews. One of the constitutional human rights that deserves protection is the right of freedom of religion and worship. Within the scope of this right, the Jewish inhabitants wish to give expression to their faith by praying at the Machpela Cave, which is a Jewish holy place. The realization of this right on Sabbaths and festivals requires walking from Kiryat Arba to the Machpela Cave. The risk of terror attacks and the topographic conditions require, as a condition for making this journey on foot, the existence of minimum security conditions to protect the worshippers against attacks. These conditions require the adoption of special measures to achieve this. Realization of such measures involves harm to the right of private property of the Arab inhabitants of the area, whose land is situated along the route. The property right of these inhabitants also has a recognized constitutional standing.

In making the requisition order, the area commander sought to make a proportionate balance between the conflicting constitutional rights, in order to allow the realization of the right of prayer at a holy place in conditions of relative security for those persons passing along the route.

All the possibilities for a pedestrian route of the worshippers were considered, and it was found that, with the exception of the worshippers’ route, every other alternative was far more costly in terms of the security risks to the worshippers and the harm and damage anticipated to the inhabitants of the area. When the worshippers’ route was found to be the preferable route, the area commander reduced to a minimum the harm to private property along the route. In the northern part, he reduced the width of the route to two metres from each side. In the southern part of the route he reduced the widening of the route to a total width of four metres. This widening will allow only the unidirectional passage of rescue vehicles, as opposed to the possibility of bidirectional traffic that was previously considered. This reduction diminishes the harm to property, on the one hand, and allows only a minimum of security measures for the worshippers, on the other. All the buildings that are the subject of the requisition order are abandoned and uninhabited. One house that was found to be inhabited was excluded from the requisition order and the route of the passage was changed accordingly. The reduction of the area of widening the southern route currently requires a partial demolition of two buildings and a part of an additional building, which have not been inhabited for many years. The demolition does not involve the eviction of persons from their homes. The aforesaid demolition is supposed to be supervised by professionals in the fields of conservation of buildings and archaeology, in order to protect the cultural-historical values of the area, in so far as possible. The owners of the property have a right to payment for the use thereof and compensation for the requisition and the demolition. The requisition order is limited in time. When the security position changes and calm prevails in the area, the presumption is that the order will not be extended and property that has been requisitioned and can be returned will be returned to its owner.

The balance between the conflicting constitutional rights is not easy or self-evident in the circumstances of this case. It involves aspects of rights of human expression by means of realizing religious belief and worship, which conflict with rights and values concerning a connection to land and property; in addition to all of these, there is a general value of responsibility for protecting human life. The point of equilibrium between all of these factors is hard to find. Nonetheless, in the final analysis it would appear that the requisition order in its narrow format satisfies the test of constitutionality, by finding a relative balance between the constitutional rights. It allows the right of worship to be realized while providing relative protection to the security of the worshippers, which is made possible by harm to the conflicting right of private property in a limited degree, which is accompanied by financial compensation. It does not conflict with accepted social values, it is done for a proper purpose and it is not excessive. If the area commander were to refrain from causing the relative harm to property rights, this would mean failing to adopt essential security measures for the protection of the persons walking along the route. If this were the case, it would make it necessary to deny the right of the worshippers to go to the Cave on Sabbaths and festivals absolutely, because of the lack of adequate security measures to protect their safety. Such a denial would constitute an absolute and improper violation of the freedom of worship to pray at a holy site and a serious violation of the freedom of movement and access required in order to realize freedom of religion. Alternatively, it would lead to allowing the passage of the worshippers along the route without the special security measures that are required in the circumstances of the case, thus increasing the immediate risk to the safety and lives of men, women and children using the route, sometimes in their thousands. These alternatives create considerable difficulty in themselves. Against this background, the upholding of the right of worship in conditions of relative protection for the security of the worshippers, by means of relative harm — which has been reduced to a minimum — to the property rights of the owners of the rights along the route, satisfies, in the special circumstances of this case, the conditions for the constitutional balance in a way that is not unreasonable.

Consequently I find no ground for intervention in the discretion of the area commander in making the requisition order in its narrow format, in accordance with which the order is going to be amended.

Outcome

22. On the basis of the aforesaid, I propose to my colleagues that we deny the petitions and recognize the validity of the requisition order in its narrow form, as set out in the written notice of the State dated 7 August 2003, and in the statements of counsel for the respondents during the hearing in the court on 23 November 2003, with regard to the scope of the widening of the route in its northern part. We have made a note of the respondent’s statement that an amending order will be made to the original requisition order in the spirit of the aforesaid notices of the State.

President A. Barak

I agree.

Justice M. Cheshin

I agree.

Petitions denied.

11 Adar 5764.

4 March 2004.

Full opinion:

Hamifkad Haleumi v. Attorney General

Case/docket number:

HCJ 10203/03

Date Decided:

Wednesday, August 20, 2008

Decision Type:

Original

Topics:

Administrative Law

Judicial review

Freedom of Expression

Abstract:

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

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

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

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

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

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

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

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

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

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

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

Voting Justices:

Naor, Miriam

Primary Author

majority opinion

Levy, Edmond E.

Author

concurrence

Author

dissent

Hayut, Esther

Author

dissent

Hamifkad Haleumi v. Attorney General.pdf

Author

concurrence

Grunis, Asher

Author

concurrence

Joubran, Salim

Author

concurrence

Full text of the opinion:

HCJ 10203/03

"Hamifkad Haleumi" Ltd.

1. Attorney General

2. Broadcasting Authority

3. Second Authority for Television and Radio

4. National Labour Court

The Supreme Court sitting as the High Court of Justice

[20 August 2008]

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

M. Naor, S. Joubran, E. Hayut

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

Petition rejected

Legislation Cited

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

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

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

Basic Law: Human Dignity and Liberty, s.8

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

Basic Law: Freedom of Occupation

Israeli Cases Cited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2006] (not yet reported).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the Petitioner – Motti Arad, Hila Goldberg

For Respondents 1 – 2 Avi Licht

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

JUDGMENT

Justice M. Naor

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

The facts

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

‘Ami Ayalon

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

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

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

Hamifkad Haleumi – Citizens Sign an Agreement.

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

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

The original petition and the granting of order nisi

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

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

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

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

The amended petition and the expansion of the bench

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

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

The normative framework – advertising in broadcasts of the Broadcasting Authority

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

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

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

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

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

‘25A. Advertisements and Announcements on Radio

….

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

…

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

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

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

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

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

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

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

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

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

…..

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

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

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

‘4. Ensuring Reliable Programs

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

The Normative Framework – Advertising in Broadcasts of the Second Authority

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

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

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

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

‘A franchisee shall not broadcast an advertisement –

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

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

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

‘A franchisee shall not broadcast programs that contain -

…

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

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

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

24. Establishing Rules

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

…

Prohibited programs as stated in section 46;

…

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

88. Rules for Advertisements

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

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

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

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

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

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

'47. Providing the Opportunity for Response

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

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

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

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

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

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

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

…..

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

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

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

The parameters of the dispute – two clarifications

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

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

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

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

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

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

The petitioner’s claims

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

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

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

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

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

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

Arguments of the Broadcasting Authority

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

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

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

Arguments of the Second Authority

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

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

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

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

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

Deliberation and Decision

The test of constitutionality is also applicable to administrative guidelines

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

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

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

The stages of the constitutional test

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

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

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

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

Do the Rules violate freedom of speech?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

29. The “balancing formula” which is the basis of the parties' claims is that which is found in the limitation clause of s. 8 of Basic Law: Human Dignity and Liberty:

‘There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or according to a law as stated by virtue of explicit authorization therein.'

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

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

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

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

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

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

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

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

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

‘25A Advertisements and Announcements on Radio

….

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

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

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

‘88 Rules for Advertisements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Limitation clause – third condition: proper purpose

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

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

The fairness doctrine in Israeli law

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

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

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

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

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

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

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

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

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

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

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

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

The Fairness Doctrine and the Justification for Regulation of Broadcasts

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

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

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

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

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

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

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

Regarding the Broadcasting Authority, Barak stated explicitly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This concern also exists in relation to advertisements:

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

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

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

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

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

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

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

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

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

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

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

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

Limitation clause - fourth condition: proportionality

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

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

A.Limitation clause – proportionality: the rational connection test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Epilogue

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

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

Justice E.E. Levy

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

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

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

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

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

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

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

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

President D. Beinisch

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

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

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

Statutory authorization for the broadcast of advertisements for consideration

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

'25A – Radio Advertisements and Announcements

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

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

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

'81. Broadcast Advertisements

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

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

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

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

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

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

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

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

The prohibition on the broadcast of political advertisements

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

‘7. Prohibited Advertising

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

…..

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

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

'5. Advertising on Controversial Subjects

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

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

‘11. Advertising on Controversial Subjects

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

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

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

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

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

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

Political advertising as political expression

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

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

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

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

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

Violation of freedom of political expression

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

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

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

Examination of the constitutionality of the violation – the Limitations clause

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

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

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

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

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

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

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

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

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

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

"By a law” or “according to a law …”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the general to the specific

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

‘25A. Advertisements and Announcements on Radio

….

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

…

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

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

88. Rules for Advertising Broadcasts

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

(1) …

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

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

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

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

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

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

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

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

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

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

Comments prior to closing

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

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

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

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

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

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

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

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

Concluding Note

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

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

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

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

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

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

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

Justice E. Hayut

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

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

….

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

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

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

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

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

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

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

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

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

‘A franchisee shall not broadcast an advertisement –

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

(2)….

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

‘A franchisee shall not broadcast programs that contain -

(1) …

(2) …

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

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

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

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

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

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

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

Justice A. Procaccia

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

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

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

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

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

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

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

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

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

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

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

We will now elaborate on the above.

The constitutional right – its essence and scope

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

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

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

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

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

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

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

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

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

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

Determination of the scope of the constitutional right

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

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

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

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

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

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

The constitutional right to freedom of speech

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

Freedom of political expression

The contents

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

Means of realization

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

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

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

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

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

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

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

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

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

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

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

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

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

I will now elaborate on these lines of reasoning.

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

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

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

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

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

Section 4 of the Broadcasting Authority Law states as follows:

'Ensuring reliable broadcasts

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

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

Providing the opportunity to respond

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

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

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

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

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

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

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

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

The nature of the paid advertisements track

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

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

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

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

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

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

36. In this context it should be remembered that a constitutional right does not require statutory expression. It exists by virtue of the values of the constitutional system and by virtue of the Basic Law; even without being reflected in a regular law, it exists by virtue of the constitutional norm it embodies. Indeed –

'When a person has a right, and certainly when he has a constitutional right, a public authority does not need statutory authorization in order to uphold and respect that right. The opposite is true: it requires statutory authorization to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it must satisfy the tests of the limitation clause as a condition for its validity and operation' (Dovrin v. Prisons Authority [20], at para. 16 of my judgment).

(See also in HCJ 1/49 Bejerno v. Minister of Police [90], at pp. 80, 82). It is the violation of a human right that requires an authorizing law that seeks to legitimate the violation (Zamir, Administrative Law, at p. 50). In the absence of statutory authorization to violate the right, the administrative authority oversteps its competence and its authority.

37. In the present case, the administrative authority requires special statutory authorization to enable it to operate a track for paid advertising, for the legal starting point is that without special authorization it cannot operate such a track. This assumption involves a further assumption – that there is no constitutional right to realize the freedom of political expression in paid advertising. Since a person does not have a primary constitutional right to express his messages, irrespective of their contents, in paid advertisements, special statutory authorization is required to vest competence and power in the authorities to operate such a track. Absent that explicit authorization, as stated, the authority would not be able to perform that activity. It follows that the right to freedom of political expression in the media does not encompass expression in paid advertising, and were it not for the special authorization, the authority would not have been permitted or competent to operate that track. This structure of rights and authority also explains why freedom of political expression for paid advertising is not part of the freedom of political expression that is constitutionally protected.

38. Moreover, even assuming the existence of statutory authority for paid advertisements, the authority is an optional one, which the media authority has the discretion to exercise, to ignore, or even to revoke. Since this track is designed for funding purposes, its use is circumstance-dependent, and it is entirely a function of the financial position of the authority. Had the authority not found itself in financial straits, and had it not been granted statutory authorization to operate a paid advertising track, it may reasonably be assumed that it could not have been compelled to operate that kind of track to allow for paid political expression as part of the basic right to freedom of speech. It may further be assumed that in the absence of statutory authorization for paid advertising, a petition seeking to compel the authority to broadcast a paid political advertisement would have been denied. Furthermore, once there is no longer a financial need, the media authority would be entitled to discontinue the use of the advertising track, or even to bring about the repeal of the statutory authorization for paid advertising. It is doubtful whether such repeal would constitute grounds for a claim of violation of the constitutional right to freedom of speech. This is because realization of the right to expression in the media in various areas, including the political-ideological area, is not dependent upon the advertising broadcasts. As such, the regulation of this track and its designation for matters that are commercial and neutral in nature does not constitute a violation of a constitutional means of realizing freedom of political expression. Realization of the freedom of political expression in a paid advertisements track is not part of the right to freedom of expression in the media, and it is not part of the constitutional right that warrants constitutional protection. Consequently, regulation of the paid advertisements track and its designation for particular kinds of messages that are commercial or neutral in nature, and which do not include matters that are politically or ideologically controversial, do not constitute a constitutional violation of the freedom of political expression.

39. Furthermore, from a comprehensive perspective it can be said that limiting advertisements to commercial broadcasts and announcements of a neutral character promotes, rather than violates, freedom of political expression in the broad sense. Precisely by reason of its cardinal, vital importance to the democratic process, political expression should not be a commercial commodity, and to the extent that it is, by its very nature it distorts free public discourse. It may also distort the duty of balance and fairness that binds the media authorities in relation to broadcasts in general. When the wealthy person purchases a public information platform in the media by way of a paid advertisement, while the person of lesser means is unable to purchase broadcasting time in order to relay his views, the inevitable result is a disruption of the required balance in the presentation of ideas and opinions in the ideological arena. This inequality in power of political expression, which derives from the funding capacity of the wealthy party, is a serious violation of the principle of equality and fairness in the media, and it may severely distort the appropriate point of balance in social-political expression that is guaranteed in the general lineup of programs. It was not by chance that the Broadcasting Authorities imposed prohibitions on paid advertising of political and ideological programs. They were motivated by the desire to promote the idea of substantive freedom of political expression, and by their concern for equality in the means of its realization, and not the opposite. The concern for substantive realization of political-ideological expression and balance in the means of its regulation provides a substantive, value-based reinforcement for restrictions established by the Rules regarding paid advertisements of publicly controversial messages. This point was made by Baroness Hale of Richmond in the matter of Regina (Animal Defenders International) v. Secretary of State for Culture, Media and Sport (2008) 2 WLR 781 UKHL 15, handed down in March of this year in the English House of Lords, and cited in the judgment of my colleague, Justice Naor, in her comments on the harm involved in paid political advertisements, where she writes, inter alia:

'So this case is not just about permissible restrictions on freedom of expression. It is about striking the right balance between the two most important components of a democracy: freedom of expression and voter equality.'

And elsewhere she clarifies:

'… we do not want our Government or its policies to be decided by the highest spenders. Our democracy is based upon more than one person one vote. It is based on the view that each person has equal value. "Within the sphere of democratic politics, we confront each other as moral equals"… . We want everyone to be able to make up their own minds on the important issues of the day. For this we need the free exchange of information and ideas. We have to accept that some people have greater resources than others with which to put their views across. But we want to avoid the grosser distortions which unrestricted access to the broadcast media will bring.'

40. In her article, Prof. Aditi Bagchi points out the dangers to freedom of speech that are likely to issue from private parties who acquire control over the means of expression and public information. The dangers looming from this direction are no less than those which the government itself may place in the way of freedom of speech. Therefore, according to this view, in certain cases the state is justified, and possibly even duty-bound, to intervene and take measures to increase freedom of speech, while limiting the dangers of the distortion of freedom of speech that can be caused by private bodies:

'[W]e should not blindly emphasize the dangers posed by state action at the expense of those posed by certain types of private action Random insults by individual private actors are not likely to affect the political identity of those insulted. But restrictive choices by mass media that influence large numbers of people and claim to respond to the views of the public do pose a substantial threat to those excluded from their forums. This is not to say that these media must affirm all viewpoints, but the rules governing access – rules affirmatively enacted by the government – should ensure that each citizen can consider herself a participant in public discussion.'

And therefore –

'[W]hen private actors wield disproportionate power over public discourse, the state should ensure that all citizens retain the access necessary for their voices or views to count' (Aditi Bagchi, "Deliberative Autonomy and Legitimate State Purpose Under the First Amendment", 68 Albany L. Rev. 815 (2005) 819, 861-962).

41. Restricting the broadcast of paid advertisements to commercial and neutral matters does not jeopardize the balance required for the realization of freedom of political-ideological expression in society. Expanding the broadcasts to include this kind of expression is liable to destroy and fundamentally distort the fairness required of the media, which necessitates providing a platform of expression for the different opinions prevailing in a society, with no dependence on or connection to money and the financial capacity of the opinion holders.

In Summary

42. Our concern here is with determining the contours of the constitutional right to freedom of political expression and with the question of whether these contours include the right to express a political message in paid advertisements facilitated by the public media authorities. This places us at the first of the two stages of constitutional analysis. Delineating the scope of the constitutional right should answer the question of whether the Rules preventing paid advertisements of political matters violate the constitutional right to freedom of political expression in that medium. This question is answered according to purposive interpretation of the right to political expression and the constitutional means of realizing that right. Purposive interpretation is based on an examination of the values underpinning the right, and not on the basis of the literal scope of the right.

43. From the above analysis my conclusion is that the scope of the right to freedom of political expression, however broad, does not, in terms of its purpose, extend to the right to realize that expression by way of a paid advertisement in the public media. Freedom of political expression in Israel is guaranteed in the framework of the duty of balance and fairness in the general lineup of programs operated by the authorities. It does not extend to the entire advertising track, which from its inception was not intended as a platform for expression, but rather, was introduced for a budgetary-financial purpose. The existence of this track is, from the outset, dependent upon the existence of special statutory authorization granted to the authority for the purpose of its operation, which is dependent entirely upon the will and the financial requirements of the authority. Restricting advertisements to matters that do not arouse public controversy promotes, rather than contradicts, the function served by the media authorities in the protection of freedom of political expression, and their mission to preserve the balance and fairness of socio-political messages in the broadcasts, independent of the finances and the economic ability of the opinion holder. As such, regulation of the advertising track in this manner does not violate a constitutional right, and it does not, therefore, give rise to the need for a constitutional examination of the alleged violation. Consequently, there are no grounds for examining the applicability of the limitation clause, with its various conditions, in our case. We therefore stop at the first stage of the constitutional examination, without crossing the threshold of the second stage. The relativity of the right to freedom of political expression in the public media leaves political expression in paid advertisements outside its borders.

General Comment

44. To complete the picture, I wish make a number of observations.

The normative constitutional system in Israel is young, and it is undergoing a process of gradual development towards its complete formation. At this stage of its development it is especially important to attribute adequate weight to the examination of the relativity of the constitutional right in accordance with the two-stage doctrine, and in so doing, to relate to the natural scope of the right, prior to considering its relativity in terms of the second aspect, which concerns the constitutionality of the violation according to the conditions of the limitation clause. The comprehensive approach whereby almost every matter that is connected literally to the constitutional right falls within the parameters of the right itself rapidly leads the constitutional discussion into the second stage, at which the constitutionality of the violation is analyzed in accordance with the limitation clause. This approach is liable to entail both a theoretical and a practical difficulty. On the theoretical level, it obscures the two-stage doctrine required in the constitutional discourse. On the practical level, it may dilute constitutional rights, and weaken their protection against violation. It is only natural that the more that essentially marginal matters, situated on or outside the borders of the constitutional right, are treated as constitutional matters, the weaker becomes the need to provide effective protection against the violation of the constitutional right, and the more blurred becomes the distinction between the important and the unimportant. Such a process is liable to impoverish the constitutional discourse, diluting its intensity and vitality. It seems to me that the constitutional discourse should focus on the core of basic rights and on the core of the protection they require against violation. As the constitutional rights are developed, care must be taken to define their appropriate borders, to prevent them from being interpreted as all-inclusive and from absorbing matters that do not properly belong within their borders, all within the framework of the constitutional purpose.

45. Delineating appropriate borders for the scope of the basic human rights is likely to reinforce the rights rather than weaken them. It can enrich constitutional discourse and focus it on the substantive protection required for the core of human rights. Delineating the limits of constitutional rights by borders defined according to the constitutional purpose enhances their constitutional protection, and is not detrimental to them. In the words of Deputy President Cheshin in Adalah Legal Center v. Minister of the Interior [49] (para. 41):

'Stretching basic rights in every direction – up, down and to the sides – while referring the interests that are capable of affecting their boundaries to the limitation clause, is liable to have a detrimental effect on constitutional debate, and this is liable to lead eventually to a reduction in the constitutional protection of human rights.'

See also in Bank Mizrahi v. Migdal [15], at pp. 470-471{286}, the opinion of Justice Zamir, who warns against rigid determinations as to what constitutes "property" and what constitutes a "violation of property", based on the concern that "the more the scope of property as a constitutional right is widened, the more it is to be feared that the force of the protection of this right will be weakened." Comments in a similar vein were made by Hogg in his article, "Interpreting the Charter Rights: Generosity and Justification", 28 Osgood Hall L.J. (1990) 817, 819. See also Peter W. Hogg, Constitutional Law of Canada, 5th ed. Vol. 2 (2005), at para. 3.83:

'There is a close relationship between the standard of justification required under s. 1 and the scope of the guaranteed rights. If the courts give to the guaranteed rights a broad interpretation that extends beyond their purpose, it is inevitable that the court will relax the standard of justification under s. 1 in order to uphold legislation limiting the extended right. For example, if the guarantee of freedom of expression in s. 2(b) were held to protect perjury, fraud, deception and conspiracy – all forms of expression in an extended sense – it would be foolish to require a legislative body to satisfy a high standard of justification in order to regulate or prohibit such obviously harmful behavior.

… Each right should be so interpreted as not to reach behavior that is outside the purpose of the right – behavior that is not worthy of constitutional protection… .'

It could be argued that in terms of the result, there is no difference between the approaches:

'It may well be that it makes little difference in result whether the courts opt for a stringent standard of justification coupled with a purposive interpretation of rights, or for a relaxed standard of justification coupled with a broad interpretation of rights.'

However, as Hogg explains, tremendous importance attaches to this question in terms of the scope of judicial review.

'[I]t certainly makes a great deal of difference to the scope of judicial review. If the rights are broad, and the standard of justification is low, then many more charter challenges will come before the courts, and will fall to be determined under s. 1. Since the standard of justification under s. 1 would be low, it would be difficult to devise meaningful constraints on the process of judicial review. The result would be that judicial review would become even more pervasive, even more policy-laden, and even more unpredictable than it is now. In my view, therefore, the courts should adhere to the strict standard of justification prescribed by Oakes, and should give a purposive (rather than a generous) interpretation to the guaranteed rights. That approach will help to stem the wasteful floods of litigation, to limit the occasions when courts have to review the policy choices of legislative bodies and to introduce meaningful rules to the process of Charter review.'

For additional opinions in the legal literature that support defining the scope of constitutional rights as a means of fortifying them and of preventing their dilution, see: Yves De Montigny, "The Difficult Relationship between Freedom of Expression and its Reasonable Limits", 55(1) Law & Contemp. Prob. 35 ; V. Blasi, "The Pathlogical Perspective and the First Amendment", 85 Colum. L. Rev. 449, 479 (1985); Sidney R. Peck, "An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms", 25 Osgoode Hall L.J. 1 1987. See also Bradley W. Miller, "Justifications and Rights Limitations" http://ssrn.com/abstract=1084468, who supports interpreting the scope of constitutional rights strictly at the first stage of the constitutional examination, inter alia to prevent a devaluation of the rights and a weakening of the constitutional examination at the second stage, which focuses on reviewing the degree of justification for the violation of the right according to the constitutional balancing formula.

A different approach is taken by President Barak, according to whom the main restrictions on constitutional rights should be imposed at the second stage of the constitutional examination, rather than the first stage, which is concerned with defining the scope of the right. According to his approach –

'The starting point should assume a generous definition. The restriction – which might take into account the situation of the case on the periphery of the right or at its core – should be considered within the framework of applying the limitation clause. The balance between the rights of the individual and the public interest or between rights inter se should be made within the framework of the limitation clause' (per President Barak in Adalah Legal Center v. Minister of the Interior [49], at para. 102).

For a critique of the aforementioned approach of Prof. Hogg, see per President Barak in Bank Mizrahi v. Migdal [15], at pp. 462-3{246-247 }.

46. On the basis of all the above, it cannot be said that the petitioner's constitutional right was violated as a result of the refusal of the authorities, within the framework of the Rules, to broadcast a paid advertisement involving an expression whose content was political-ideological.

Other possible grounds for challenging the Rules

47. Quite another question is whether the manner of regulation of paid advertisements in rules that permit commercial advertisements and bar advertisements of a political-ideological character provides the petitioner with constitutional cause based on the violation of equality between commercial bodies and political bodies, or with cause under administrative law, such as unreasonableness, irrelevant considerations, discrimination, etc. The petitioner did not make any claims to that effect and none were considered in the course of the hearing. As such we need not consider them. I would nevertheless like to relate to the aspect of equality as a possible constitutional claim in the circumstances of this case, which is also connected to the claim of discrimination on the administrative level.

Violation of equality

48. The petitioner focused on the argument that its right to freedom of political expression was violated by the prohibition that the Rules imposed on the publication of such expression in paid advertisements. I attempted to show why the constitutional right was not violated in a manner that justified constitutional adjudication in accordance with the limitation clause.

For the sake of completion I would add that a claim of violation of equality might possibly have been raised on the constitutional level, its thrust being that the Rules in our case discriminate unlawfully between those expressing themselves commercially, who are permitted to advertise in service broadcasts, and those expressing themselves politically, to whom this channel of expression is blocked. Could it be said that under these circumstances there has been a violation of the constitutional right to equality between the purveyors of different messages, who seek to advertise their messages for payment?

49. Equality is an established foundation of the Israeli legal system. It is a value that lies at the foundation of a society's existence, and a guarantee for a person's development and self-realization. It is essential for the establishment of a democratic regime: Adalah Legal Center v. Minister of the Interior [49]; HCJ 4112/99 Adalah Legal Center v. Tel-Aviv Municipality [91], at p. 415; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [92], at p. 332; HCJ 7111/95 Center for Local Government v. Knesset [93], at p. 503.

50. Nevertheless, the value of equality was not included as a basic right in the Basic Law, and the question has therefore arisen in the past as to whether the right to equality can be classified as a constitutional right that derives from the right to human dignity, and in that capacity granted constitutional protection by virtue of Basic Law: Human Dignity and Liberty.

Israeli case law is divided over whether the right to equality can be derived from the right to dignity. According to some, the right to equality is included in Basic Law: Human Dignity and Liberty as an "unnamed right" (Justice Or in HCJ 5394/92 Huppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [94], at pp. 360-363; Justice Mazza in Israel Women's Network v. Minister of Transport [36], at pp. 521-523, and see all the citations in s. 39 of Adalah Legal Center v. Minister of the Interior [49]). There were some who adopted a restrictive approach in applying the basic right to dignity to the right to equality (Justice Zamir in HCJ 4806/94 D.S.A. Environmental Quality Ltd v. Minister of Finance [95], at pp. 205-206 and his comments in Center of Local Government v. Knesset [93], at pp. 510-511). Others sought to restrict constitutional recognition of the right to equality to cases in which the violation of equality amounted to humiliation of another person, in which case, according to this approach, there was an overlap between the right to equality and the core of the right to human dignity (Miller v. Minister of Defense [11], at pp. 146-147 see also HCJ 4513/97 Abu Arar v. Knesset Speaker Dan Tichon [96], at pp. 47-48).

51. Ultimately, the case law adopted an "intermediate approach", according to which "human dignity" is not limited to damage to the core of human dignity, but neither does it encompass every human right that can be derived from human dignity. It includes all those rights that are linked to human dignity (whether at its core or at its periphery) by close, significant ties (as per President Barak in Movement for Quality of Government v. Knesset [14], at para. 33). The right to human dignity thus includes those aspects of equality that guarantee protection of human dignity from violation, and that are closely related to it. Human dignity thus extends to those situations in which a violation of equality is inextricably linked to human dignity and to a violation thereof. In determining the scope of the constitutional right to dignity, consideration must be given to the violation of equality as a factor in delineating the contours of the right. This approach was also adopted in later case-law (see HCJ 2223/04 Levy v. State of Israel [97]; 9722/04 Polgat Jeans Ltd. v. Government of Israel [98]; HCJ 8487/03 IDF Invalids Organization v. Minister of Defence [99]; HCJ 11956/05 Suhad Bishara v. Ministry of Construction and Housing [100]).

52. Do the Rules in the present case, which permit paid advertisements in commercial matters but bar advertisements of a political-ideological character, violate equality as a constitutional right? The obvious answer to this question is in the negative, for in the circumstances of this case, even if there is a violation of equality, it is not a violation that is closely linked to human dignity, and as such we find ourselves outside the constitutional purview of Basic Law: Human Dignity and Liberty.

Our assumption for this purpose is that political expression and its messages are regulated by the general lineup of programs as part of the authorities' obligation to ensure balance and fairness in their operation. This stems both from the Broadcasting Authority Law and the Second Authority Law, and from the basic principles of the system. The paid advertisements track was not originally intended to serve as a platform for expression, and it was introduced to serve a financial-economic purpose of the media authorities. Given our assumption that freedom of political expression is maintained and protected, and that the paid advertising track was not intended for the realization of freedom of speech, it follows that the violation of equality is not closely linked to human dignity, and there is therefore no violation of the constitutional right to dignity, in the context of the right to equality.

53. Even if the issue is not the violation of a constitutional right, one ought nonetheless to examine whether there could be a claim of discrimination on the administrative level, as opposed to the constitutional level, that justifies consideration.

Substantive equality is defined as like treatment of equals, and different treatment of those who are different (HCJ 10076/02 Rozenbaum v. Prison Authority Commissioner [101], per President Barak, at para. 11). In order for there to be a violation of equality, it must be proved that there are groups between which there is identity or equivalence in relevant features, and which, despite their similarity, are treated differently (HCJFH 4191/97 Rekanat v. National Labor Court [102], at p. 330, per President Barak).

54. In the case at hand, as far as paid advertising is concerned, there is a substantive difference between the two relevant groups involved – a difference that explains and justifies the contents of the Rules, which permit commercial advertisements of a neutral nature, and prohibit advertisements of a political or ideological nature. The conception underlying the distinction between the two groups is value-based, deriving from the understanding that political-ideological-social expression in the public-national communications media should not be affected by the financial capacity of the opinion-holder, and that allowing political expression to be bought for money not only fails to promote the marketplace of opinions and ideas in a free society, but actually disrupts it, by letting money talk. Permitting paid political advertising means allowing the power to disseminate information on social, political and ideological matters to be purchased. This conflicts with the basic conception whereby free discourse and expression should be available equally to all people, irrespective of their financial abilities – a conception which furthers the democratic process and does not thwart it.

55. Commercial advertisements and other neutral broadcasts for which payment is made do not influence the marketplace of ideas and opinions in the social sphere, and do not distort the free flow of political-ideological expression in the general lineup of programs of the public media, which is not dependent upon financial resources. Opening the track of paid advertising to political expression may well disrupt the existing balance in the open marketplace of opinions and ideas and distort public discourse in view of the concern that financial magnates could assume control of this broadcasting track in the media. This explains the substantive difference between the two groups that are relevant in our case, and justifies the distinction made by the Rules in relating to each group. This distinction between the two groups is particularly valid in view of the fact that the matter involves public media authorities, which operate as statutory corporations by virtue of laws regulating their public activity. This is especially significant in relation to the Broadcasting Authority, which operates its schedule of programs as a statutory state service (s. 2 of the Law).

Political expression is given an extensive platform in the context of the programs themselves, without special payment. Commercial and neutral expression was allocated a paid advertisements track, which does not affect or distort public discourse through the monetary purchase of the power to disseminate information. It is difficult to argue that this approach, with its particular distinctions, provides grounds for a claim of inequality and unlawful discrimination, in either the constitutional or the administrative realm, that warrants judicial intervention.

Conclusion

56. In view of all the above, my view is that it was not proved that any of the petitioner's constitutional rights was violated, be it a violation of freedom of speech or a constitutional violation of the right to equality. Nor would there appear to be any administrative cause of action based on discrimination, which, had it existed, may have warranted judicial intervention in the actions of the authorities on the administrative level.

Therefore, and based on the aforementioned reasons, I concur with the conclusion proposed in the judgment of Justice Naor, whereby the petition should be denied on all counts.

Justice A. Grunis

I agree that the Rules should not be declared invalid [-as stated in the opinion of my colleague Justice M. Naor. In doing so, there is no need to to take a stand on the relation between freedom of political expression and human dignity.

I have studied the opinion of my colleague Justice Procaccia. I accept her fundamental approach regarding the determination of the boundaries of a constitutional right. I concur with her statements (in para. 6(6) of her opinion) that “[a]n overly-broad conception of the scope of a constitutional right, exceeding that of the purpose it serves, may lead to a dilution of the constitutional rights and to their devaluation” (see also para. 2 of my opinion in Adalah Legal Center v. Minister of the Interior [49]). Nevertheless, there is no dispute that there was a violation of freedom of speech in the case before us. I will therefore refrain from expressing a position regarding the approach of Justice Procaccia as far as freedom of speech is concerned. Nor do I think it necessary to adopt a position regarding the relationship between the actual existence of the right and the means of expressing it in the circumstances of this case.

Justice S. Joubran

I concur with the opinion of my colleague Justice M. Naor, and with the additional comments of my colleague Justice E.E. Levy

1. First, I will point out that in view of our conclusion, I accept as a starting point – purely for purposes of this hearing – the assumption that the Rules under discussion contain a violation of freedom of expression as a protected basic right. This assumption was accepted by the litigants in this hearing; as such I will not relate to the analysis of my colleague, Justice Procaccia, and prefer to leave that subject for future consideration.

2. As explained in the opinion of my colleague Justice M. Naor, to enable political expressions on controversial matters to be broadcast in the framework of paid advertisements will, in practice, spell the demise of the fairness doctrine in Israel. Concededly, this doctrine applies only to the “regular” framework of broadcasts, and if political advertising is not possible in the framework of broadcast advertisements, the doctrine will not apply to them. On the other hand, opening the advertising track to broadcasts of political expression will, inevitably, empty the fairness doctrine of any content. It is clear that despite the fact that the air time allotted for advertisements is quite brief in relation to the regular programs, the other features of advertisements - including the possibility of frequent repetition of a particular message, freedom in formulating the contents of the message, and the very fact of this being a dedicated track for the relaying of messages intended to influence - increases the weight attaching to them (in this regard the scholar Marshall McLuhan already pointed out that “the medium is the message”). In the public, media-oriented environment of our times, as pointed out by Justice E. E. Levy, there is a serious concern that granting the access requested in the petition will flood the advertising track with political broadcasts of all types, and in doing so divert the central focus of political discourse from “regular” programs to advertising programs. It is clear that all this would directly affect the application of the fairness doctrine, and in fact lead to its revocation.

3. It is for these reasons that I concur with Justice Naor’s ruling that there is nothing wrong with the fact that the arrangement preventing the broadcast of political expressions in the framework of advertisements is not explicitly anchored in primary legislation. I accept her ruling that this arrangement actually relies upon the general fairness doctrine, and is a direct product of it. In my view, it is sufficient that the fairness doctrine is well anchored in primary legislation to satisfy the requirement of “explicit authorization”.

4. To be precise: the only way of preventing the revocation of the general fairness doctrine, should the petition be granted on its merits, would be to make it directly applicable to advertisements through the creation of a supervisory regime over these broadcasts as well. However, even assuming that creating such supervision is possible, it is unclear why the petitioner and similar entities would benefit from such an arrangement, and why it would ameliorate the violation of freedom of expression. It should be remembered that the possibility of being heard, subject to the laws of the fairness, is already available to the petitioner in the framework of the regular programs, without payment. The petitioner contends that in the current situation, entities with unique political views are not given sufficient exposure in the framework of regular programs. However, as mentioned by Justice Naor, the solution to this problem must be found in the existing framework, through recourse to the fairness doctrine itself, and if necessary, by use of administrative processes, as mentioned by Justice Procaccia.

5. Moreover, opening the advertising track to the broadcast of political expressions would not necessarily solve the problem that the petitioner describes. On the one hand, the creation of a rigid regulatory regime for oversight of the broadcast of “advertising” political material would deprive this track of its uniqueness, because the main difference between this track and the regular programs would be the component of payment for broadcasting content. However, as stated, the component of payment is itself problematic; the drawbacks of this course of action would therefore appear to outnumber its advantages – in view of the fact that the very regime that allegedly harms the petitioner in the framework of regular programs would harm him again in the framework of advertising broadcasts.

On the other hand, the creation of a more lenient supervisory regime would create a situation in which "money talks", given that broadcasting time is limited by its very nature. In that situation, one form of exclusion would be replaced by another, and here too, opinion holders supported by more limited means would be in an inferior position to their more established competitors.

6. I wish to clarify that these comments do not imply that the fairness doctrine is a sacred principle from which there can be no diversion. Like any other socio-legal conception it has its drawbacks, and it may even involve a violation of protected basic rights. However, even were it to be claimed that the drawbacks of this conception exceed its advantages, this would not, in my view, lead to its invalidation on the grounds of contradicting Basic Law: Human Dignity and Liberty. On this matter I share the view of my colleague President D. Beinisch, that due to its complexity and tremendous sensitivity, the subject requires thorough study and consideration, and should be dealt with by legislation, even though I disagree with her conclusion on the matter. Under the circumstances, as stated, I do not find that the current arrangement lacks explicit statutory authorization. At the same time, I do not find that we have the ability or the possibility of deciding whether the fairness doctrine itself is good or bad, or at least, whether to allow it to be emptied of content.

Petition denied, by majority opinion, as per the judgment of Justice M. Naor.

18 Av 5768.

20 August 2008.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/03/030/102/c22/03102030.c22.pdf

Gur Aryeh v. Second Television and Radio Authority

Case/docket number:

HCJ 1514/01

Date Decided:

Monday, June 18, 2001

Decision Type:

Original

Topics:

Communications

Gur Aryeh v. Second Television and Radio Authority.pdf

Freedom of Religion

Abstract:

Facts: Petitioners are the subject of a film made by or for the respondents. The film was designated for broadcast on television on Shabbat. When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom. The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was filmed on a weekday, but was not willing to broadcast the film on a weekday. The petition was filed against this decision.

Held: In the majority opinion, written by President Barak, it was determined that broadcast of the film on Shabbat constituted a violation of the petitioners’ religious feelings but not their freedom of religion. In the balance between the violation of the petitioners’ religious feelings and the freedom of expression of the respondents the freedom of expression prevails. The petition was therefore denied.

In a dissenting opinion Justice Dorner was of the view that the petitioners’ freedom of religion was violated, and that in balancing the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and right to property of the respondents on the other – in this specific instance, the freedom of religion of the petitioners should prevail.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Levin, Shlomo

majority opinion

Dorner, Dalia

Author

dissent

Full text of the opinion:

Translator’s note: The Hebrew word Shabbat has been translated as Shabbat which can refer to either Saturday or the Jewish Sabbath.

HCJ 1514/01

1. Yaakov Gur Aryeh

2. Bat Shir Gur Aryeh

1. Second Television and Radio Authority

2. TTV, Ltd.

3. Eyal Zayid

4. Avital Levi

The Supreme Court Sitting as the High Court of Justice

[June 18th, 2001]

Before President A. Barak, Vice President S. Levin, Justice D. Dorner

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

Basic laws cited:

Basic Law: Human Dignity and Liberty

Basic Law: Freedom of Occupation, s. 4.

Legislation cited:

Second Television and Radio Authority Law 5750-1990, ss. 48, 48(a).

Israeli Supreme Court cases cited:

[1] HCJ 164/97 Kontrem Ltd. v. Ministry of Finance IsrSC 52(1) 289

[2] HCJ 399/85 Kahane v. Broadcast Authority Management Board (1987) IsrSC 41(3) 255

[3] HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board, IsrSC 50(5) 661.

[4] HCJ 6218/93 Cohen v. Bar Association IsrSC 49(2) 529.

[5] HCJ 953/89 Indor v. Head of Jerusalem Municipality IsrSC 45(4) 693.

[6] HCJ 3888/97 Novik v. Second Authority IsrSC 51(5) 199.

[7] HCJ 287/69 Meiron v. Minister of Labor IsrSC 24(1) 337.

[8] HCJ 5016/96 Horev v. Minister of Transportation IsrSC 51(4) 1.

[9] HCJ 351/72 Keinan v. Film and Play Review Board IsrSC 26(2) 811.

[10] HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board IsrSC 43(2) 22.

[11] CrimAp 697/88 Sutzkin v. State of Israel IsrSC 52(3) 289.

[12] HCJ 7128/96 Temple Mount Faithful v. Government of Israel IsrSC 51(2) 509.

[13] HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board IsrSC 35(3) 421.

[14] HCJ 448/85 Dahar v. Minister of Interior IsrSC 40(2) 701.

[15] CrimA 126/62 Disenchek v. Attorney General IsrSC 17 169.

[16] CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum. IsrSC 46(2)464.

[17] HCJ 2481/93 Dayan v. Commander of Jerusalem District IsrSC 48(2) 456.

[18] HCJ 148/79 Sa’ar v. Minister of Interior and Police IsrSC 34(2) 169.

[19] HCJ 291/74 Bilet v. Goren IsrSC 29(1) 98.

[20] HCJ 115/50 Yosefof v. Attorney General, IsrSC 5 481.

[21] HCJ 866/78 Morad v. Government of Israel, IsrSC 34(2) 657.

[22] HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC 42(3) 377.

[23] HCJ 3267/97 Rubinstein v. Minister of Defense IsrSC 5295) 481.

[24] HCJ 4298/93 Jabarin v. Minister of Education, IsrSC 48(5) 199.

[25] HCJ 3872/93 Mitral Ltd. vs. Prime Minister IsrSC 47(5) 485.

[26] CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [1999] IsrSC 53(3) 600.

[27] HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, IsrSC 16 2101.

[28] HCJ 292/83 Ne’emanei Har Habayit, Association v. Commander of Jerusalem District, IsrSC 38(2) 449.

[29] HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police IsrSC 48(4) 793.

[30] CrimA 7528/95 Hillel v. State of Israel IsrSC 50(3) 89.

[31] HCJ 4541/94 Miller v. Minister of Defense IsrSC 49(4)94.

[32] HCJFH 4466/94 Nuseiba v. Minister of Finance, IsrSC 49(4) 68.

[33] CrFH 2316/95 Ganimat v. State of Israel IsrSC 49(4) 589.

[34] HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance IsrSC 51(4) 367.

[35] HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare IsrSC 52(2) 433.

American cases cited:

[36] United States v. Lee, 455 U.S. 252 (1982).

[37] Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707 (1981).

[38] Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989).

German cases cited:

[39] BVerfGE 35, 36 [1973].

[40] BVerfGE 93, 1 [1995].

Israeli books cited:

[41] A. Barak, Interpretation in Law, Vol. 2, (1993).

[42] A. Rubinstein, Constitutional Law in Israel (5th ed., volume A, 1996.

[43] H.H. Cohen, The Law (1992).

Israeli articles cited:

[44] D. Statman, ‘Violation of’ Multi-Cultural ‘Religious Feelings’ in a Democratic and Jewish State’ Memorial Book for Ariel Rosen Zvi, may his memory be a blessing’ (eds. M. Mautner, A. Sagi, R. Shamir) (1998).

[45] Berinson ‘Freedom of Religion and Conscience in Israel’ Iyunei Mishpat 3, 405 at 406;

[46] Gavison, ‘Religion and State – Separation and Privatization’ Misphat U’Memshal 2 55 at 78 (1984).

[47] H. H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ Landau Book 813 (volume B, 1985).

[48] A. Kasher, ‘Violation of Feelings for the Overall Good’ Mishpat U’Memshal B 289 (1984).

[49] I. Zamir and M. Sobel, ‘Equality before the Law’, Mishpat U’Memshal 5 (2000) 165.

[50] Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ Mishpat U’Mimshal A (1993) 253.

Jewish law sources cited:

[51] Mishnah, Avot 1, P.

[52] Avot of Rabbi Natan 22, A

[53] Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52.

[54] Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13.

[55] Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270.

[56] Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120.

[57] Shavuot 39, A.

[58] Mishnah, Psahim A, B.

For petitioners – Naftali Wersberger

For respondent no. 1 – Doron Avni; Tamar Hacker.

For respondents no. 2-4 – Efrat Avnet; Amir Ivztan

JUDGMENT

President A. Barak

The television network seeks to broadcast a film documenting the life and worldview of the petitioners, who are observant Jews. They fill an active role in the film, which includes interviews with them. The film was filmed on the weekdays. The television network would like to show the film on Shabbat. The petitioners object to this. They claim violation of religious feelings and religious freedom. Whose side is the law on – that is the question before us.

The Facts

1. The Second Television and Radio Authority (hereinafter: ‘the respondent’) is a statutory corporation. It was set up by power of the Second Television and Radio Authority Law 5750-1990. Most of the broadcasts are by franchisees. The Second Authority Council is authorized to ‘take time slots from a broadcast unit of the franchisee, for the purpose of showing broadcasts on behalf of the authority, on topics that in its opinion ‘are of special interest to the public’’ (section 48(a) of the law). Against this background for four years now the program ‘Documentary Word’ has been broadcast on Shabbat. This is the only half hour broadcast time slot that the respondent has. The respondent decided (in 1999) to invite proposals for the production of documentary films on the topic of ‘places, phenomenon, and people in Israel on the issue of the tension between Judaism and Israeliness.’ Consequent to this it was decided between the respondent and respondent no. 2, a private company, that the latter would make a film about the residents of the settlement ‘Mitzpeh Kramim’. The film was directed by the respondent no. 3. The investigative research and interviews were conducted, inter alia, by respondent no. 4, who was the acting producer.

2. The petitioners are residents of the settlement ‘Mitzpeh Kramim’. As stated above, they are observant Jews. They were identified by respondents 2-4 as suited to take part in the film. They agreed to this. The film was made and sent to the respondent. Since it was considered suitable, it was supposed to be broadcast in the framework of the show ‘Documentary Hour’, which is broadcast, as stated, on Shabbat. The petitioners approached the respondent, and asked that the film not be broadcast on Shabbat. According to their claim, broadcast of the film on Shabbat violates their religious feelings and their religious freedom. The respondent denied the request. It is willing to add captions on the screen which would state that the film was filmed on a weekday. It is not willing to broadcast the film on a weekday as it does not have a time slot for this. The petition before us was filed to counter this decision.

3. At first the petitioners argued before us that an agreement was made with them that the film would not be broadcast on Shabbat. During the course of the arguments the petitioners repeated this claim, while arguing that there was a misunderstanding. The source for this was, according to their claim, in the fact that some of the respondents were religious and from this the petitioners concluded that the film would not be broadcast on Shabbat. After reviewing the material before us, we are making the determination that there was no agreement between the petitioners (or some of them) and the respondents according to which the film would not be broadcast on Shabbat. The opposite: it was said to the petitioners that the film would be broadcast on the show ‘Documentary Word’. From this the petitioners could conclude that the film would be broadcast on Shabbat. Moreover, it is routine that observant Jews are filmed on weekdays and the film is aired on Shabbat. Indeed, the petitioners should have known that the film would be aired on Shabbat, and the respondents assumed and were entitled to assume, that the petitioners agreed to this. It was the duty of the petitioners to look into this matter before they participated in the film (compare HCJ 164/97 Kontrem Ltd. v. Ministry of Finance [1]). Against this background the question was raised whether the petitioners have the right – which is not anchored in an agreement – that the film not be broadcast on Shabbat as, according to their claim, it violates their religious feelings and freedom of religion. In truth, the petitioners themselves are not being made to desecrate Shabbat. However, broadcast on Shabbat turns the petitioners, according to their claim, into accomplices of the desecration of Shabbat. When the petition was filed we sought to resolve the matter by amicable means. A conference was held before the President. The petitioners’ Rabbi was invited to the meeting. We sought to examine various ways to settle the dispute by agreement between the parties. The respondents offered to broadcast the film with a caption that the filming took place on a weekday; it was also proposed that the caption would further state that the petitioners objected to broadcast of the film on Shabbat. It was proposed to them that they make do with the filing of the petition without insisting on a judicial determination. All proposals were rejected. There is no recourse therefore but to hand down a judicial determination.

The normative framework

4. The respondent is a statutory corporation. Its discretion is subject to principles of public law in Israel. It must weigh the relevant values and principles, and it must properly balance them. On the one hand, there is the right of the respondent to freedom of expression. That is the freedom of expression of the respondent – which serves as a spokesperson and a stage simultaneously (see HCJ 399/85 Kahane v. Broadcast Authority Management Board [2] at 268); it is the freedom of (artistic) expression of the other respondents (see HCJ 4804/94 Station Film Company Ltd. v. Film and Play Review Board [3] at 680); it is the right of the public to know (see HCJ 6218/93 Cohen v. Bar Association [4] at 541).

5. On the other hand, there are the feelings of the petitioners. I accept that the very knowledge that the film in which the petitioners are participants will be broadcast on Shabbat – thereby turning the petitioners, in their own eyes, to parties to the desecration of Shabbat – can violate the religious feelings of the petitioners. Preventing this violation is in the public interest. Indeed a society whose values are Jewish and democratic protects the feelings of the public in general and religious feelings in particular (see HCJ 953/89 Indor v. Head of Jerusalem Municipality [5] at 690; HCJ 3888/97 Novik v. Second Authority [6] at 202; HCJ 287/69 Meiron v. Minister of Labor [7] at 364; hereinafter – ‘the Meiron Case’; HCJ 5016/96 Horev v. Minister of Transportation [8] at 58; hereinafter – ‘the Horev Case’; Statman, Violation of Religious Feelings, Multi-Culturalism in a Democratic and Jewish State (eds. M. Mautner, A. Sagi, R. Shamir) at 133 (1998)). Indeed the coarse violation of religious feelings gnaws at the value of tolerance, which is one of the values which binds and unifies society in Israel. The duty not to violate the religious feelings of the other ‘stems directly from the duty of mutual tolerance between free citizens of different beliefs, without which a diverse democratic society such as ours is not possible.’ (Justice Landau in HCJ 351/72 Keinan v. Film and Play Review Board [9] at 814; see also HCJ 806/88 Universal City Studio Inc. v. Film and Play Review Board [10] at 30; hereinafter – ‘the Universal City Case’; CrimAp 697/88 Sutzkin v. State of Israel [11] at 307; hereinafter: ‘the Sutzkin Case’.

6. What is the proper balance between the need to protect the freedom of expression of the respondents on the one hand and the need to protect the religious feelings of the petitioners on the other? This question was discussed at length in the case law of the Supreme Court. It was determined that the (vertical) ‘balancing formula’ is this: freedom of expression prevails, unless the violation of religious feelings is nearly certain and their violation is real and severe (see HCJ 7128/96 Temple Mount Faithful v. Government of Israel [12]; Universal City Case, p. 31; the Sutzkin Case, p. 308). Indeed in order to restrict freedom of expression a ‘plain’ violation of religious feelings is not sufficient. A real and severe violation is necessary. It is necessary that the violation go beyond the tolerable threshold of Israeli society (see HCJ 243/81 Yaki Yoshe Company Ltd. v. Film and Play Review Board [13] at 425). This is a violation that shakes up the ‘doorposts of mutual tolerance’ (the Horev Case, p. 47)).

7. What is the result of the proper balancing in the petition before us? In opposition to the violation of the freedom of expression of the respondents is there a near certainty of a real and severe violation of the religious feelings of the petitioners? There is no debate that the violation of the religious feelings of the petitioners is nearly certain. It has been proven to us that such violation is certain (compare the Universal City Case, at p. 40). But is the condition as to the intensity of the violation met? The answer to this question is negative. ‘The level of tolerability’ of Israeli society, in a Jewish and democratic state, includes situations in which the image of a believing Jew is broadcast on Shabbat (whether they are a political person and whether they are not a political person; whether it is an active interview or whether it is a chance filming). This has been the situation in Israel for many years. No one disputes this. The violation of the religious feelings of the petitioners does not shake the doorposts of mutual tolerance in the State. ‘In a democratic society a certain degree of violation of religious feelings is to be recognized. Only in this way will it be possible for cooperative living of those with different religious views to take place.’ (Universal City Case, p. 39). Certainly this is so if the broadcast of the film is accompanied by a caption that the film was filmed on a weekday. A different conclusion would lead to the beginning of the end of broadcasts on Shabbat. These broadcasts began as a result of a petition to this court (see the Meiron Case). Consequent to this it is accepted in Israeli society that television broadcasts take place on Shabbat, in which, among others, observant Jews are seen, and in which interviews and conversations with them take place. Thus on Shabbat, the operation of the Knesset and the government are broadcast, and in the framework of these, observant members of Knesset and ministers who are interviewed on weekdays are viewed; so too, on Shabbat entertainment, political, and cultural programs, in which observant Jews take an active part, are viewed. If all of these are prohibited from being viewed, chances are great that all television will be shut down on Shabbat followed by the radio. All this is not consistent with the ‘level of tolerability’ of the violation of religious feelings in Israel, as it has been accepted here for many years. Indeed, the possibility of a certain violation of religious feelings is the price that every person, be his religion what it may be, is required to pay for life in democratic society, in which secular and religious and members of different religions live side by side one next to the other. This is in many instances the price one must pay and there is no escape from it. But, there are cases where a person who has a particular difficulty making peace with the violation of religious feelings can avoid that violation. The case before us is such a case. A religious person who is willing to be interviewed for television, but is not willing for the interview to be shown on Shabbat, can condition the interview on the term that the interview is to be broadcast only on a weekday. But the petitioners did not do so, not explicitly nor by implication. In this sense, as they themselves note in their notice to the court, they have only themselves to blame. The result is therefore that the claim as to unlawful violation of religious feelings is to be dismissed.

8. The petitioners did not base their arguments before us only on violation of religious feelings. They went on to argue that broadcast of the film on Shabbat violates their freedom of religion. They argue that in the (horizontal) balance between the violation of freedom of expression and the violation of religious freedom, the violation that is caused to the petitioners in broadcasting the film on Shabbat is more severe than the violation that will be caused to the respondents if the film is broadcast on a weekday. What is the legal fate of such an argument? Indeed, a distinction is to be made between the violation of religious feelings and the violation of freedom of religion. Violation of the former (religious feelings) is a violation of the public interest. The balancing required between the violation of this interest and the violation of freedom of expression is a vertical balancing (see A. Barak, Interpretation in Law, Vol. 2 [41] at p.688.). The freedom has the upper hand, unless there is a probability (a likely possibility, near certainty, and the like) of severe violation (in various degrees of severity) to the public interest (see, for example, HCJ 448/85 Dahar v. Minister of Interior [14] at 708 (public safety versus freedom of movement); CrimA 126/62 Disenchek v. Attorney General [15] (judicial purity versus freedom of expression); CA 294/91 Chevra Kadisha GHSHA ‘Kehillat Yerushalayim’ v. Kestenbaum [16] at 519 (public interest in language versus human dignity). The second violation is to personal liberty. It is a matter here of the necessary balance between violation of the two liberties (or more) (see HCJ 2481/93 Dayan v. Commander of Jerusalem District [17] (freedom of expression versus privacy and property); HCJ 148/79 Sa’ar v. Minister of Interior and Police [18] (freedom of expression versus freedom of movement). The balance is horizontal. Within it limitations of time, place and shape are established which will enable every liberty to fully fulfill its principles. Is a vertical balancing necessitated in the petition before us? In order to answer this question the scope of the competing rights needs to be examined. Only if in light of this examination there is a clash between them, will there be a need for a horizontal balancing. What is the situation in the matter before us?

9. All accept that freedom of religion is a basic right in Israeli law (see A. Rubinstein, Constitutional Law in Israel 175 [42]. More than once it has been ruled that freedom of religion is a ‘core rule in our legal system’ (Justice Kister in HCJ 291/74 Bilet v. Goren [19] at 102), that it is ‘one of the personal liberties guaranteed to him in every enlightened democratic regime’ (Justice Landau in HCJ 115/50 Yosefof v. Attorney General, [20] at 488) and that it is to be seen as a ‘basic principle of our legal regime’ (Acting President Justice Landau in HCJ 866/78 Morad v. Government of Israel, [21] at 663).10. What is the scope of freedom of religion? This freedom encompasses the liberty of the individual to believe and his liberty to act according to his faith, while realizing its rules and customs (‘freedom of worship’) (See HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381; HCJ 3267/97 Rubinstein v. Minister of Defense [23] 528; Berinson ‘Freedom of Religion and Conscience in Israel’ [45] at 406; Gavison, ‘Religion and State – Separation and Privatization’ [46] at 78 (1984); H. Cohn, ‘On Freedom of Religion and Religious Wellbeing – Reviews in Legal History’ [47]. Therefore freedom of religion includes the right of a person not to be compelled to act against their religion (see the Horev Case, at p. 140). Freedom of religion also includes the right of a person to express himself with attire suited to the directives of his faith (see HCJ 4298/93 Jabarin v. Minister of Education, [24] at 203). It is superfluous to mention that this is not a closed list. Freedom of religion is tied to the individual and the realization of his identity. It is part of his ‘I’. Just as the ‘I’ constitutes a complex phenomenon whose boundaries are not to be clearly demarcated, so too the boundaries of freedom of religion are not to be demarcated.

11. Does broadcast of the film on Shabbat violate the freedom of religion – as opposed to the religious feelings, of the petitioners? The answer is negative. Broadcast on Shabbat does not violate their liberty to believe and their liberty to act according to their belief. It does not prevent them from realizing the rules and customs of their faith. Examination of the arguments of the petitioners shows that their argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners. An argument such as this has been dismissed in the past more than once by this Court. Thus, for example, the claim was dismissed that the existence of broadcasts on Shabbat constitutes a violation of the freedom of religion of the individual who does not watch television on Shabbat (the Meiron Case, at p. 363). Justice Berinson noted in that case that despite the broadcasts on Shabbat, nobody was forcing the individual to watch television on Shabbat. Only a violation that does not enable the individual to fulfill the directives of his religion and faith, or to conduct his lifestyle as a religious person, will be considered a violation of freedom of religion. In another case, the claim was dismissed that the import of non-kosher meat and the consumption of non-kosher meat by Jews, constitutes a violation of the freedom of religion of believing Jews (see HCJ 3872/93 Mitral Ltd. vs. Prime Minister [25] at 500). It was determined that the distinction is to be made between direct violation of the individual’s lifestyle (which constitutes a violation of his freedom of religion) and a violation of the feelings of an individual, consequent to the actions of another, which is not a violation of freedom of religion. In that spirit I noted in another case that ‘I am not of the opinion that driving on Shabbat on Bar-Ilan street violates the constitutional right of every one of the residents of the neighborhood to freedom of religion. The residents of the neighborhood are free to fulfill the directives of the religion. The movement of the cars on Shabbat does not deny them this right, and does not violate it.’ (The Horev Case, p. 58). Indeed, where a person is harmed by the actions of another which are in opposition to religion the claim is not of violation of freedom of religion but rather to its feelings and consciousness. (See Kasher, ‘Violation of Feelings for the Overall Good’ [48]).

12. I am aware that in the petition before us the harm to the petitioners is not merely because of the actions of others, but also because of the use on Shabbat of interviews that were conducted with the petitioners on a weekday. This difference does not change the determination that at the basis of the claim of the petitioners there is the violation of their religious feelings and not their religious freedom. Just as it cannot be imagined that the freedom of religion of an observant Jew is violated if a book that he wrote on a weekday is read on Shabbat while violating Shabbat, so too it cannot be imagined that the freedom of religion of an observant Jew is violated if an interview he gave on a weekday is broadcast on Shabbat. Indeed, unchecked expansion of freedom of religion will result in a cheapening of the freedom of religion and depleting it of content.

13. My conclusion, therefore, is that the broadcast of the film on Shabbat does not constitute a violation of the freedom of religion of the petitioners. In light of this conclusion, there is no need to examine what the proper (horizontal) balance is between the violation of freedom of religion (were it to have occurred) and the violation of freedom of expression. This examination raises a number of questions which are not simple, and which I have no need to discuss. I also do not have the need to discuss an additional claim against the petitioners. According to the claim, the respondents spent a prolonged period of time producing the film on the basis of a contract between the respondent and the production company, investing significant manpower and monetary resources. They acted in good faith, and had no basis to think that the petitioners, who cooperated with them throughout the time period, would wake up when the work was done and raise an objection to the broadcast of the film on the date that was determined in advance. In this situation there is room for the claim that the petition is lacking due to its delay, or that the petitioners are prevented from submitting the petition at this stage, or that it would not be just to grant the petitioners the requested remedy against the respondents. However, as stated above, these claims can be left without a determination.

The result is that the petition is denied. We have noted before us the declaration of the respondents that a caption will be added to the broadcast stating that the filming took place on a weekday.

Vice President Levin

I agree.

Justice D. Dorner

Unfortunately I cannot agree with the judgment of my colleague, President Aharon Barak. Indeed, I agree with the opinion of my colleague that the violation of the petitioners’ feelings on its own does not justify, under the circumstances, granting the petition. However, were my opinion to be heard, we would grant the petition and rule that broadcast on Shabbat of a television film which documents the course of the lives of the petitioners, observant Jews – including interviews conducted with them (hereinafter: ‘the film’) – does not merely harm their feelings, but rather also unlawfully infringes on their right to freedom of religion.

The following are my reasons.

The facts

1. Production of the film which is approximately 24 minutes long, was ordered from respondents 2-4 (hereinafter collectively: ‘the producers’) by respondent no. 1 (hereinafter: ‘the Second Authority’). This, with the intention of broadcasting it on Shabbat, in the broadcast time slot of half an hour, which is the only broadcast time slot that was available to the Second Authority for the purpose of broadcasting topics of special interest to the public. The producers knew this. However, the intention to broadcast the film on Shabbat, in the framework of the television show ‘Documentary Word’ dealing with the tension between Judaism and being Israeli, was not brought to the petitioners’ attention. This, on the basis of a presumption based on the experience of the Second Authority with broadcasting interviews with observant Jews on Shabbat, including on the show ‘Documentary Word’ itself, according to which it fulfilled its obligation by accompanying the broadcast with the caption ‘filmed on a weekday’.

At the same time, it never occurred to the petitioners, who are young, and lack experience and contact with the media, that the film was designated for broadcast on Shabbat. The subject was raised by the petitioners by chance on the day the filming was completed, and the producers promised to handle the matter. However, it was later made clear to the petitioners by the producers, that the film would be broadcast on Shabbat. Written requests by the petitioners to the Second Authority were to no avail. The Second Authority apologized to the petitioners for the harm to their feelings, but explained that it could not broadcast the film on a weekday. In their difficulty the petitioners turned to their Rabbi, Rabbi Shlomo Aviner, in order to find a solution in Jewish religious law that would not turn them into desecrators of Shabbat. Rabbi Aviner made a categorical and resolved determination based on Jewish religious law that broadcast of the film on Shabbat would entail a mass desecration of Shabbat with the participation of the petitioners, that showing the film with the caption ‘filmed on a weekday’ may be perceived as propaganda and may even amount to moral corruption, and that in his view there is no solution in Jewish religious law that would allow the broadcast of the film on Shabbat. Rabbi Aviner repeated this position of his during the course of the discussion which took place in the framework of the petition before us for the purpose of reaching a consensual arrangement.

The questions

Against this background three questions arise. First, does the broadcast of the film, whose ‘actors’ are observant Jews, on Shabbat, violate their right to freedom of religion, meaning their right to fulfill the directives of their religion, as opposed to merely constituting harm to their feelings, as a result of the breach of the directive of their religion by other Jews. Second, what is the proper balance between the rights of the petitioners to freedom of religion and the rights of the respondents to freedom of expression and property? Third, how does the agreement between the petitioners and the producers as to the participation of the former group in the film, which was obtained without relating to the question of broadcast of the film on Shabbat, impact the parties’ rights.

I will discuss these questions in order.

The right of the petitioners

2. The element which distinguishes freedom of religion from harm to religious feelings is that the violating action is prohibited to the believers or incumbent upon them according to the directive of their religion. The content of the religion’s directive is determined by the religious guides of the Jewish religious law. H. Cohn explained this:

‘’Freedom of religion’ means the freedom to do not what the religion permits, but only what the religion obligates. . . In other words: the right to freedom of religion is the right to fulfill all the directives that a person’s religion imposes upon him, as long as he does not break the law. . . the question what is the ‘directive’ that the law obligates one to do is a religious question, not a legal one: every single religion and its own directives, and every religion determines what is the degree of obligation in the fulfilment of one directive or another’ [Haim H. Cohn, The Law, [43] 525, emphases in the original].

We find a similar approach in comparative law. The following was written in a decision of the United States Supreme Court, handed down by Chief Justice Warren Berger:

‘It is not within ‘the judicial function and judicial competence,’ ... to determine whether [the Amish] or the Government has the proper interpretation of the Amish faith; ‘[c]ourts are not arbiters of scriptural interpretation.’

[United States v. Lee, 455 U.S. 252, 257 (1982) [36] citing Thomas v. Review Bd. Of Indiana Employment Security Div., 450 U.S. 707, 716 (1981)[37]]

In another decision of that court Justice Thurgood Marshall wrote:

‘It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.’ [Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 699 (1989)[38]].

In Judaism which is not monolithic but decentralized, a believing person or believing public chooses their rabbi, and this rabbi is one who determines for him the obligations of his religion. As it says in our sources ‘find yourself a rabbi and remove the doubt’ (Mishnah, Avot 1, P, [51]; Avot of Rabbi Natan 22, A [52]). On this matter Justice Izhak Englard has written:

‘There is no place for this court to make an assumption as to the content of a religious law which is different than the one which was determined by the Rishon Le’Tzion and by the Local Rabbi of Rishon Le’Tzion… It is a great principle in Jewish religious law that the public is obliged to follow the religious determination made by the local rabbi. . .’

[CA 6024/97 Shavit v. Chevra Kadisha GHSHA Rishon LeZion [26]].

In the case before us Rabbi Aviner made the religious law determination that in their appearance in the film being broadcast on Shabbat the petitioners themselves will break the directive of the religion, even if the broadcast is done by others.

Indeed, there are also other approaches more lenient than the approach of Rabbi Aviner. See for example, a Jewish religious law ruling that permitted an observant film producer to sell his films to the Broadcast Authority knowing that they would be broadcast on Shabbat (Rabbi David Stav, ‘Filmed on a Weekday, Broadcast on Shabbat’ Nekudah 211 (1988) 52, [53] at 52-53). But the position of Rabbi Aviner is not esoteric, and has much support. See for example, Rabbi Shlomo Zalman Oyerbach ‘Repeat Radio Broadcast on Shabbat’, Tehumin, Religious Law Compilation on the Topics of Torah, Society, and State 17 (1997) 13 [54]; Rabbi Dr. Nahum Eliezer Rabinovich, Electricity in Jewish Religious Law (Part B – Shabbat and Holiday, 1981) 270 [55]; Rabbi Dr. Nahum Eliezer Rabinovich, ‘Asking in the Matter’ Hadarom Torah Collection 15 (1962) 120[56].

3. However, we need to draw a boundary between violation of freedom of religion and harm to religious feelings. Thus, constitutional protection will not be given to an extreme approach which regards every harm to religious feelings due to the breach of religious directives by Jews as a violation of the freedom of religion of the believer, in the sense of ‘all of Israel are responsible for one another’ (Shavuot 39, A [57]).Conversely, the criteria is not necessarily the identity of the one performing the prohibited act, but rather whether the prohibited act is obligatory for the observant person or whether they are being kept from fulfilling a religious obligation. The obligation need not necessarily be physical. Thus, for example, running a factory on Shabbat due to an emergency order, when the religion of the owner prohibits them from having their property involved in the desecration of Shabbat, may violate their right to freedom of religion. Similarly, it was determined in Germany in 1973 that placing a cross on the judge’s podium in court violates the freedom of religion of the Jewish attorney who appears before the court, and therefore is prohibited. See BVerfGE 35, 36 [39]. In a later case, from 1995, it was determined that hanging a cross in classrooms in a school violates the freedom of religion of the students who are not Christian and is therefore prohibited, and the law that instructed to do so was void. See BVerfGE 93,1 [40].

In our matter, broadcasting the film on Shabbat harms the petitioners not because of the action of others, nor in the name of a metaphorical mutual guaranty which binds all the people of Israel together. The petitioners are directly harmed, as they themselves are appearing on television on the day of Shabbat. They thereby become themselves partners to the desecration of Shabbat, and transgress, at the time of the broadcast, against their will, the directive of their religion.

My colleague writes, that ‘their [the petitioners’] argument in fact is that the actions of others (the respondents) in opposition to the directives of the religion constitute a violation of the freedom of religion of the petitioners.’ (In paragraph 11 of his judgment). In my opinion, this is not so. The petitioners have no claims against the broadcast of television on Shabbat. They have no complaint against the broadcast of the program ‘Documentary Word’ on Shabbat. Their petition and request is only in opposition to the broadcast on Shabbat of the specific film that was made about them and with their participation.

Such a broadcast contains a violation of the freedom of religion, which is the provision of the possibility of the individual to fulfill the directive of their religion without government intervention. Freedom of religion is ‘of the basic liberties which are recognized according to our legal system and constitute a part of it’ (President Meir Shamgar in HCJ 650/88 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC [22] at 381) and it was guaranteed to all citizens of the state in the Declaration of Independence, whose ‘principles every authority in the State must place before itself’ (Justice J. Sussman in HCJ 262/62 Peretz v. Local Council Kfar Shmaryahu, [27] at p. 2116). Freedom of religion is counted among the liberties on which our democratic regime is based. See the words of Justice Barak in HCJ 292/83 Temple Mount Faithful v. Head of Jerusalem Municipality [12] at p. 454.

However, as with every right, freedom of religion too is not absolute, and it must be balanced against other rights and protected interests.

Balance between the parties’ rights

4. In the case before us, against the right of the petitioners to freedom of religion stand the rights of the respondents to freedom of expression and property, which are also basic rights. On this matter case law has distinguished between values which override one another, in which case the balancing between them is ‘vertical’, and values of equal weight, which concede to one another, in order to enable their collective existence, in which case the balancing is ‘horizontal’. Vice President Barak explained this:

‘In the ‘vertical’ balancing, one value – in colliding with another value – has the upper hand. However, this superiority is realized only if the requirements of the balancing formula are met as to the likelihood of the violation of the preferred value and its degree. Thus, for example, the public interest in public peace and public order overrides freedom of expression, as long as there is a ‘near certainty’ that actual damage will be caused to the public interest if the freedom of expression is not limited. . . In the ‘horizontal’ balancing the two conflicting values are of equal weight. The balancing formula examines the degree of mutual concession of each of the rights. Thus, for example, the right to movement and the right of assembly are of equal weight. The balancing formula will establish conditions of place, time, and scope in order to enable the collective existence of the two rights.’ [HCJ 2481/93 Dayan v. Commander of Jerusalem District [28] at p. 474-475].

See also HCJ 6656/93 Am K’Lavi v. Commander of Jerusalem Police [29] at pp. 796-797; CrimA 7528/95 Hillel v. State of Israel [30] at p. 96; HCJ 5016/96 Horev v. Minister of Transportation [8] (hereinafter: ‘HCJ Horev’) at pp. 37-38.In the legal literature complications in the distinction between the two types of balancing have been pointed out. It has been noted that it is proper to strive for collective existence of values, even if these are not equal in weight. But, if it is not possible for the two values to co-exist, preferring one value over another is unavoidable, even if the two are of equal weight. See Izhak Zamir and Moshe Sobel, ‘Equality before the Law’ [49] at pp. 214-215.

5. In my opinion the basis of the distinction between the types of balancing is not in the result of the balancing in the sense of mutual concessions as opposed to preference of one value over another, but in its purpose, from which the criteria for balancing are derived. The vertical balancing – which is implemented in the collision between a human right and a public interest – is intended to minimize, as much as possible, the violation of the right even where the public interest overrides it. While the horizontal balancing – which is implemented in the collision amongst human rights, is intended to minimize, as much as possible, the violation of both of the rights. See and compare Aharon Barak, ‘Protected Human Rights: The Scope and the Limitations’ [50] at pp. 263-264.

A human right, by its nature, carries a social price. This price is expressed in the criteria for respect of human rights that were established in section 8 of the Basic Law: Human Dignity and liberty and in section 4 of the Basic Law: Freedom of Occupation (hereinafter: ‘the limitations clause’). The limitations clause was also applied to violations by administrative authorities (and not only by the Knesset) of basic human rights (including rights that are not established in a basic law). See, for example, HCJ 4541/94 Miller v. Minister of Defense [31] at p. 138; HCJFH 4466/94 Nuseiba v. Minister of Finance, [32] at pp. 86-87; HCJ Horev , Ibid at p.41-42.

However, the purpose of the limitation clause, the principle of proportionality being among its foundations, is to protect human rights by minimizing the infringement on them when they collide with a public interest. Thus, within the principle of proportionality, the authority is required to undertake from among the alternative means which may advance the realization of the public interest (the purpose) the means which causes the smallest harm to the right. Today, balancing formulas such as the ‘near certainty’ test and the ‘reasonable possibility’ test, which were formulated in case law even before the principle of proportionality was absorbed in our legal system, are also integrated into the principle of proportionality, and this for the purpose of establishing the legality of the decisions of the administrative authorities which violate human rights. These formulas take into account the idiosyncratic weight of the right and the public interest for the sake of which the violation of the right is sought.

The test of the lesser violation and the balancing formulas, therefore, reflect the public price that a democratic society is willing to pay in order to protect human rights. I explained this in another case which relates to the balance between a person’s right to freedom from detention and protection of public safety:

‘Where the realization of an interest has no price, there is no significance to anchoring it in a right, and all the more so in a constitutional basic right. The value in the rights of the public and victims’ is generally collective and in opposition to it are the rights of the single accused. Without recognizing the rights of the accused, there is no existence to the rights of the potential victims, who may find themselves, in other circumstances, as the accused. Protection of basic human rights is not just a matter of the individual but of society as a whole, and it determines society’s image.

Indeed, it is possible that preventative detention of a person who has not yet committed a crime, cancellation of the presumption of innocence and replacement of the more stringent burden of proof which is customary in criminal law with the degree customary in civil trials would reduce the amount of crime and contribute significantly to the protection of public safety. But in our democratic regime, in which the liberty of the individual is recognized as a basic right, society concedes some of the possible protection of public safety.’

[CrFH 2316/95 Ganimat v. State of Israel [33] at p. 645.]

6. The criteria in the limitations clause, and in particular the principle of proportionality, are not appropriate for the balancing of two human rights. The purpose of the horizontal balancing is to reduce the violation of both of the rights, and this, as said, through mutual concessions which enable the realization of both simultaneously, even if not to their full extent. But if the possibility of the co-existence of the two competing rights does not exist, the prevailing right will be the one which if infringed upon will result in more severe damage to the individual. The severity will be determined, first, by the substance of said right. In this matter heavy-weight rights, which grow directly from the core of human dignity and the protection of human image, are to be distinguished from lighter-weight rights, which are more distanced from this core. However, one is not to merely relate to the title of the basic right, but also to the interests which stand at its foundation in the concrete instance and the specific values which are protected in the relevant context. See and compare HCJ 1715/97 Office of Investment Managers in Israel v. Minister of Finance [34] at pp. 422-423; HCJ 450/97 Tnufah Manpower Services and Maintenances Ltd. v. Minister of Labor and Welfare [35] at p. 452. Second, the degree of violation of the right and its scope are to be considered, and we should examine whether the realization of the competing right violates the center of the said right or its margin.

In our matter, I am of the opinion that the competing human rights – the freedom of religion of the petitioners, on the one hand, and the freedom of expression and the right to property (which is of a lesser weight) of the respondents, on the other hand – are of equal weight. However, mutual concession between them is not possible. In the existing circumstances, the right to freedom of religion has no room to retreat and its violation is substantive. And, as stated above, the petitioners have been forced – according to them and according to their rabbi – into the desecration of the Shabbat.

On the other hand, the circumstances of the case enable the respondents to concede a small portion of their rights, by broadcasting the film on a weekday instead of on Shabbat. Such a concession violates only the margin of the rights.

7. The respondents claim that ‘the Authority has no other date to broadcast a program of this type’, and that banning the film from being broadcast on Shabbat means banning it from being broadcast at all, which is equivalent to censorship and severe violation of the freedom of expression and the right to property.

This argument is not reasonable. Indeed, the Second Authority has a broadcast time slot on Shabbat. However, transferring the program from Shabbat to another day is not impossible. The legislator entrusted the Second Authority with the discretion to take time slots from a broadcast unit of a franchisee for the purpose of presenting programs on its behalf, as long as notice of this is given in a reasonable amount of time in advance. See section 48 of the Second Television and Radio Authority Law 5750-1990.

8. One would think that it would be possible to resolve the difficulty not only by a compulsory ‘taking’. Even the Second Authority itself wrote the following in its response:

‘Given that the only time slot of the Second Authority is on Shabbat, the realization of the suggested solution required approaching one or the other of the franchisees with a request that they agree to allot, at short notice, a date for broadcast of the program in the framework of their broadcasts. Taking into consideration the fact that broadcast schedules of franchisees are finalized several months before the date of broadcast, and the fact that documentaries such as this type of program do not draw a large viewership and therefore it is difficult to schedule commercials in them, the broadcast time that could be requested from the franchisees for this purpose is during the late night hours (around 1:00 at night).’

In the framework of the relationship between the franchisees which broadcast in the middle of the week, amongst themselves and between them and the Second Authority there have in the past been deviations from the broadcast schedule and the time slots, as a result of various circumstances. The broadcast schedule is not ‘holy’ and unchangeable, but rather, when necessary, it can be flexible according to needs and circumstances. Moreover, the broadcast of the film was postponed with the consent of both parties for a number of months, such that the argument as to the short notice is no longer valid.

Broadcast of the program on a weekday is not impossible, even if it entails a fair amount of effort, and possibly even the provision of financial indemnification to one of the franchisees due to considerations of viewership percentages (taking into account the addition of religious viewers who do not watch television on Shabbat). This being the case, transferring the program from Shabbat means only minimal violation of freedom of expression and the property right of the respondents.

It turns out therefore, that the requested balance which will enable ‘joint living’ and ‘co-existence’ of the rights necessitates granting the petitioners request. The petitioners have nowhere ‘to retreat back’ to. Their Rabbi appeared before the court and could not find a solution in Jewish religious law. Broadcast of the film on Shabbat means a forced infringement by the petitioners on the directive of their religion and the violation of their freedom of religion. The respondents on the other hand have room to maneuver. Refraining from broadcasting the film on Shabbat, while enabling its broadcast on another day, means, as said, a minimal degree of violation of freedom of expression and property of the respondents alongside protection of the freedom of religion of the petitioners.

The claim of delay

9. The respondents claim, that the petition was delayed, as for them it is routine to broadcast programs with the participation of religious people on Shabbat, with the accompanying caption ‘filmed on a weekday’, and that they had no basis for assuming that the petitioners would only raise objections to broadcasting the film on Shabbat after its making was completed.

The good faith of the respondents does not detract from the good faith of the petitioners, who are not accustomed to viewing television on Shabbat, and did not know about the said practice. In fact the petitioners claim that the possibility never crossed their mind that a program about them would be broadcast on Shabbat, and they were even misled into believing that this is the case. In this situation, there is no room for the claim of delay, as when the petitioners found out about the broadcast planned for Shabbat they approached the Second Authority and tried to prevent it.

However, the primary issue to me is that the Second Authority, which ordered a film about and with the participation of observant people, with the intention of broadcasting it on Shabbat – and according to its claim, even with the knowledge that there was no possibility of broadcasting it on a weekday – is not entitled to rely on the customary practice of placing the caption ‘filmed on a weekday’. As, under the circumstances, it was obligated to present the petitioners with its intention to broadcast the film on Shabbat. Even if in practical life, in the face of such a practice, which is based, apparently, on more lenient approaches in Jewish religious law, the Second Authority is accustomed to refraining from obtaining prior consent in similar cases, in doing so, it thereby runs the risk that it will be forced to give up the broadcast on Shabbat if an objection arises.

As a rule, it is appropriate to impose on the Second Authority, or those who represent it who initiate the broadcast and are experienced in contracting with film subjects for the purpose of preparing programming about them, the duty of proper disclosure, when it is possible that the party who is the film’s subject will be harmed.

Ramifications for the future

10. My colleague, the President, is concerned that consequent to a decision which prevents the broadcast on Shabbat ‘chances are great that all television will be shut down on Shabbat followed by the radio.’ I do not share these concerns.

There are certainly many people who will agree to participate in programs broadcast on Shabbat, including secular people, non-Jews, and even, as the respondents claim, religious Jews who agree to broadcasting with the accompanying caption ‘filmed on a weekday’.

Moreover: the right to freedom of religion does not prevail in every case, but rather only when the injured parties are at the center of the program under discussion. When this is the situation, the technical action of the broadcasters is the also the substantive action of the subjects of the broadcast. This being so, the intensity of the belonging of the subjects of the broadcast to the program, as well as the harm to them, prevails over the right of the broadcasters to freedom of expression and their property. It cannot be inferred that this ruling extends neither to a case of subjects who were filmed by chance in a crowd, nor to public figures or authors who appear frequently on television on Shabbat. It is possible and necessary to draw analogies only to similar cases. The words that were said in our sources in the context of the fear of an unlikely event in the case of checking for Chametz, are appropriate here:’ One is not to be concerned that perhaps a rat has dragged it from home to home or from place to place, as if so, then from courtyard to courtyard and town to town and it is endless.’ [Mishnah, Psahim, 1, B [58]]

Therefore, if my opinion were to be heard, we would make the order nisi absolute.

It was decided as per the opinion of President Barak against the dissenting opinion of Justice Dorner.

18 June 2001

27 Sivan 5761

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/01/140/015/A06/01015140.a06.pdf

Greenberg v. Katzrin Local Council

Case/docket number:

HCJ 2838/95

Date Decided:

Sunday, May 11, 1997

Decision Type:

Original

Topics:

Greenberg v. Katzrin Local Council.pdf

Separation of Powers

Abstract:

Facts: The Katzrin Local Council and the Golan Heights Regional Council allocated monies, from the fiscal year 1992 and onwards, to the Golan Heights Communities Association. The purpose of the Association was, inter alia, to endeavor towards the establishment of additional communities in the Golan Heights. In furtherance of this purpose, the Association conducted protest and lobbying activities intended to ensure continued Israeli sovereignty over the Golan Heights. Petitioners, residents of Katzrin and the Golan Heights, contested the constitutionality of these allocations, asserting that the local and regional councils could not proceed against the foreign and defense policies of the national government.

Held: The Court held that the local and regional councils could not take action regarding issues in the national sphere, which had no connection to local interests. The Court held, however, that the issue of continued Israeli sovereignty over the Golan Heights, aside from its national significance, was also of unique local significance. As such, it was constitutional for the councils to allocate monies to further this goal.

Petition denied.

Voting Justices:

Levin, Dov

Primary Author

majority opinion

Goldberg, Eliezer

Author

concurrence

Dorner, Dalia

Author

dissent

Full text of the opinion:

HCJ 2838/95

Chaim Greenberg and 7 others

1. The Katzrin Local Council and 3 others

2. Golan Heights Regional Council

3. Head of the Katzrin Local Council

4. Head of the Golan Heights Regional Council

5. Minister of the Interior

6. Golan Heights Communities Association

The Supreme Court Sitting as the High Court of Justice

[May 11, 1997]

Before Deputy President S. Levin, Justices E.Goldberg, D. Dorner

Petition to the Supreme Court sitting as the High Court of Justice

Petition denied.

Legislation Cited:

Local Councils Ordinance

Local Councils Ordinance-1941

Municipalities Ordinance

The Golan Heights Law-1981

Municipalities Ordinance [New Version]

Local Councils Ordinance [New Version]

Foundations of the Budget Law-1985

Israeli Supreme Court Cases Cited:

HCJ 122/54 Axel v. Mayor of Netanya., IsrSC 8 1524.
HCJ 489/94 The Municipality of Kiryat Ata v. Mr. Yitzhak Rabin—Prime Minister and Minister of the Interior, (unreported case)
HCJ 5445/93 Municipality of Ramle v. Minister of the Interior, IsrSC 50(1) 397.
HCJ 594/89 Arava Regional Council v. National Planning and Building Council, IsrSC 44(1) 558.
HCJ 609/82 Pantomp Overseas (1981) Ltd. v. Investment Center, IsrSC 38(1) 757.
P.L.A. 265/89 265/89 Ravi v. Elections Clerk for the Local Committee, Jaljoulia, IsrSC 43(4) 437.
HCJ 337/81 Metrani v. Minister of Transportation, IsrSC 37 (3) 337.
HCJ 3716/94, Raz v. Mayor of Jerusalem, (unreported case).
HCJ 757/84 The Association of Daily Newspapers in Israel v. The Minister of Education and Culture, IsrSC 41(4) 337.
HCJ 72/55 Mendelson v. Municipality of Tel-Aviv-Jaffa, IsrSC 10 734.
Cr. App. 217/68 Izramax Ltd. v. State of Israel, IsrSC 22(2) 343.
HCJ 87/60 Kriboshi v. Ramat Gan Municipality, IsrSC 14 1015.
HCJ 155/60 Elazar v. Mayor of Bat Yam, IsrSC 14 1511.
HCJ 161/52 The Refinery Company of the Land of Israel v. The Rishon LeTzion Municipality, IsrSC 7 13.
P.L.A. 5817/95 Rozenberg v. The Ministry of Building and Housing, IsrSC 50(1) 221.
HCJ 287/71 Daabul v. Ramat Gan Municipality, IsrSC 26(2) 821.

Israeli District Court Cases Cited:

DC (Jerusalem) 3471/87 The State of Israel v. Kaplan, 1988 IsrDC (2) 265.

United States Cases Cited:

United States v. Pink, 315 U.S. 203 (1942).

English Cases Cited:

R. v. The Greater London Council, 19 Dec. 1984 (Q.B.) (unreported case)

Scottish Cases Cited:

Commission for Local Authority Accounts v. Grampian RC, [1994] Scot. L.T.R. 1120.

Israeli Books Cited

N. Ben Elia, Towards Differential Decentralization in Local Government (1995).
Local Government in Israel (D. Eleazar & C. Kalchheim eds., 1987).
2 A. Barak Law and Interpretation: Statutory Interpretation (1993).
E. Winograd, Laws of Local Government (1988).
1 I. Zamir The Administrative Authority (1996).

Foreign Books Cited:

G.W. Jones & J. Stewart, The Case for Local Government (2nd ed., 1985).
D.M. Hill, Democratic Theory and Local Government (1974).
S. Humes & E. Martin, The Structure of Local Government: A Comparative Survey of 81 Countries (1969).
D.P. Currie, The Constitution of the Federal Republic of Germany (1994).
L.H. Tribe, American Constitutional Law (2nd ed., 1988).

Foreign Articles Cited:

L.J. Sharpe, The Growth and Decentralization of the Modern Democratic State, 16 European Journal of Political Research 365 (1988)
G. Jones, Conclusion: Implications for Policy and Institutions, in Between Center and Locality: The Politics of Public Policy (S. Ranson et al eds., 1985).
C. Kalchheim, The Limited Effectiveness of Central Government Control over Local Government, 7 Planning and Administration 76 (1980).

Miscellaneous:

National Commission for Matters of Local Government (1981).

For respondents nos. 1-4—Avner Menosvitch, Asher Kula

For respondent No. 5—Osnat Mandel

For respondent No.6—Jonathan Bach

JUDGMENT

Deputy President S. Levin

1. On September 22, 1995, this Court decided, by a majority opinion, to reject this petition. The petitioners are residents of the Katzrin Local Council [hereinafter Katzrin] and the Golan Regional Council [hereinafter Golan] situated in the Golan Heights. Respondents 1 through 4 are Katzrin and Golan and their heads. Respondent number 5 is the Minister of the Interior; respondent number 6 is an association whose members are the representatives of thirty-two communities from all ends of the political spectrum. According to its articles, the association has the following two goals:

1.To act legally to maintain Israeli sovereignty over the entire area of the Golan Heights, in accordance with the Golan Heights Law;

2.To seek to influence the agencies of the Israeli Government, the Jewish Agency of the Land of Israel, the World Zionist Federation and the various movements, to establish and develop additional communities in the Golan Heights and to strengthen and expand existing communities.

Within the framework of its activities, respondent number 6 conducted a public campaign, entitled “A Giant Exhibition of the Golan,” nationwide.

At the petitioners’ request an order nisi was issued, subsequently restricted in scope during the course of deliberations, regarding their objections to the financial allocations made by Katzrin and Golan to the association between 1992 and 1994. During this time Katzrin allocated a total sum of 1,870,000 NIS and Golan allocated the sum of 6,500,000 NIS to the association. The allocation of funds made during these years received the approval of the Ministry of the Interior. Although, at the time of the filing of this petition, the 1995 national budget had not yet been approved, it was nonetheless clear at the time that the Ministry did not intend to authorize funding for that year, in light of the Attorney-General’s legal opinion, outlined below.

On September 22, 1995, this Court decided to dismiss the petition by a majority opinion, with Justice Dorner dissenting. According to Justice Dorner, the petition should have been granted and the order nisi made final, beginning from the fiscal year of 1996. The Court did not make any order for costs.

2. The petitioners claim that Katzrin and Golan acted beyond the scope of their authority by allocating the funds in question to the association. Thus, they argue, the constitutive statutes of Katzrin and Golan empower them to act for the promotion of the economic, social, and cultural welfare of their residents—and nothing more. Accordingly, the petitioners submit that Katzrin and Golan lack the authority to deal with political matters of national significance, such as the question of a potential withdrawal from the Golan Heights, which is the subject of heated public debate, even among the residents of the Golan Heights themselves. The sole issue raised by the petitioners before the Court was the question of authority per se, rather than the question of how this authority was used. The latter question was raised only during oral pleadings. As such, we will address only the former issue at this juncture.

On May 16, 1995, when the petition was still pending, the Attorney-General submitted an opinion, regarding the issue now at bar, to the Minister of the Interior. His report opined that Katzrin was not authorized to allocate funds to the association. In his view, under the current statutory arrangement, the authority to deal with foreign policy and security matters is the exclusive province of the government and the legislature. By contrast, the local authorities are restricted to acting at the municipal, not the national, level. In the Attorney-General’s own words, "the local authority has neither the obligation nor the authority to assist the residents of another local authority, or to support institutions not within its boundaries, which do not directly serve it or its residents." The association’s struggle to promote and preserve Israeli sovereignty over the Golan Heights, said the Attorney-General, is of national, as opposed to local, significance. While it is true that the residents of Katzrin will be directly affected by any decision taken regarding the Golan Heights, “the municipal council is nonetheless not the body that was elected or empowered to deal in foreign and defense matters on behalf of these residents."

In response, Katzrin, Golan, their chairpersons and the association all argue that the allocation of funds to the association was in fact legal. They argue that the aim of developing the Golan, like any other action aimed at maintaining Israeli sovereignty over the Golan, is a legitimate goal, which the council heads were elected to promote. While they agree that the issue of Israeli sovereignty over the Golan is an issue of national significance, they nonetheless point to the unique local aspects of the issue, upon which the fate of the residents of the Golan depends. Furthermore, they claim that this is a matter of self-preservation, which will determine the fate of the Golan residents. As such, Katzrin and Golan are entitled to exercise their inherent authority in order to ensure their continued existence.

3. The statutory framework relevant to the petition is the following: section 146 of the Local Councils Order (A)-1950 and section 63 of the Local Councils Order (Regional Councils)-1958 [hereinafter Regional Councils Order]. The relevant part of section 146 of the Local Councils Order provides as follows:

The council is empowered, having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts, including the following powers:

1.To maintain order, good government and security;

2.To ensure the development of its precincts, to promote the economic, social and cultural well-being of all or any of its residents;

3.To serve as trustee or guardian for any public matter;

4.To establish and maintain public structures and to complete public works.

Section 63 of the Regional Councils Order is essentially similar to section 146 and the opening clause of the former is identical to the opening clause of the latter. For the purpose of both of these sections, primary emphasis must be placed upon the authority "to act in any matter concerning the public within the council precincts" (emphasis added).

Both chapter 12 of the Local Councils Order, as well as chapter 12 of the Regional Councils Order, set out provisions for the budget’s preparation, which requires authorization from the Local or Regional Council, respectively, as well as from the Minister of the Interior.

In light of the above, it is incumbent upon us to determine whether the allocation of monies to the association was indeed within the scope of these powers, and, for our purposes, whether it falls within the meaning of the words emphasized above. In fact, as Ms. Mandel accurately asserted, on behalf of respondent 5 and the Attorney-General, the wording of sections 146 and 63 is flexible enough to accommodate both the position of the petitioners and the position of respondents 1 through 4 and the association.

The state does not claim, from a semantic perspective, that it is impossible to bring the position of the petitioner within the scope of the statute's language. Instead, it submits that the test for defining the scope of the powers in question is functional rather than literal. Thus, it claims, the council is authorized to deal only with local matters, not with national political issues, typically dealt with by the national government. This gives rise to the question of which law applies to hybrid issues which involve both national and local aspects. With regard to these, Ms. Mandel proposes that the legal test should look to “the issue at the crux of the matter," as opposed to looking towards the “the issue’s implications for the local residents." The issue at the crux of our discussion relates to the matter of sovereignty over the Golan Heights, which is a national matter. As such, this precludes the councils from interfering, even when a decision on the issue may be fateful for the residents of Katzrin and the Golan.

4. I believe that the test proposed by the state is of no assistance in the case at bar. First, applying this test would mean that restrictive clauses should be read into the language of sections 146 and 63, such as clauses that read “provided that the matter is not one of national significance." I see no justification for doing so in this case. Second, the test itself seems to put the cart before the horse. In other words, it simply presumes that dealing with matters of national significance cannot be regarded as “a matter concerning the public in the council precincts." By the same token, the opposite approach could be taken, by which: “a matter concerning the public in the council precincts” is within the council’s power even if “it has implications on the national level." Third, the concrete question, which we must address, is whether the councils are empowered to allocate funds to the association. The issue is restricted to the question of allocating funds for financing various activities and does not extend to the political decision regarding the fate of Katzrin and Golan, which are without any doubt within the exclusive jurisdiction of the national government. The proposed test does not assist us in ruling as to whether the two jurisdictions, local and national, can be concurrent.

5. The litigants also acknowledge that the words “to act in any matter concerning the public in the council precincts” do not authorize the council to act in any matter whatsoever. Instead, such actions must serve a local interest. Local or regional councils are not empowered to declare war or conduct diplomatic relations with a foreign state, or to deal with matters of exclusive interest to other local authorities. While this principle is clearly obvious, its concrete application to various practical circumstances nonetheless often seems to raise difficulties. This is particularly true since there is almost no activity in the public sphere that does not involve both local and national interests:

Central and local interests are intertwined and impinge on each other in most of the services of local government…Any attempt to divide services into local or national services would impose artificial categories into which services had to be fitted, leading to a weakening of local government by passing over to the centre services in which there was a significant local interest.

J. Stewart & G.W. Jones, The Case for Local Government 80 (2d ed., 1985) [26].

What are the criteria for delineating the relations between the central government and the local authorities in the State of Israel, and how should these criteria be applied to the concrete issue at hand. Both the petitioners and the state presented a hierarchical model, under which the local authority derives its power from the central authorities. They both assumed that there is a clear dividing line between the local sphere, within which the local authority functions, and the national sphere, which is the exclusive province of the central government. The councils and the association, on the other hand, presented a more dynamic model of relations, according to which the local authority can also act in matters having national implications, provided that they also directly and specifically affect their residents and, a fortiori, when the matter relates to the very survival of the public within the council’s jurisdiction. It is therefore possible to speak of two poles regarding the desired model of relations between the local and central governments. At one extreme lies the hierarchical, centralizing model, and, at the other extreme, the autonomous, decentralizing model. An intermediate model, would see the two governments as being mutually interdependent.

The last few decades have witnessed a worldwide trend, characterized by a shift from the centralizing model to the decentralizing model. This trend is most prominent in the so-called developed world, even in those countries with a tradition of centralization, such as France. See N. Ben Elia, Towards Decentralization in Local Government 7 (1995) [21]. This phenomenon is rooted in ideological, logistic and fiscal considerations as well as in the urbanization processes that accelerated after the Second World War. See L.J. Sharpe, The Growth and Decentralization of the Modern Democratic State, 16 European Journal of Political Research 365 (1988) [31]. The author presents significant data indicating a decrease in the central government’s relative portion of total governmental expenditure.

6. A number of reasons can be cited in support of strengthening local government at the central government’s expense. See D.M. Hill Democratic Theory and Local Government 222-24 (1985) [27]; G. Jones, Conclusion: Implications for Policy and Institutions, in Between Center and Locality: The Politics of Public Policy 311-12 (S. Ranson et al eds., 1985) [32]; Sharpe supra. [31], at p. 373; Jones & Stewart supra. [26] at 5-7, 116; S. Humes & E. Martin, The Structure of Local Government: A Comparative Study of 81 Countries 32-33 (1969) [28]; Ben Elia supra. [21], at 22, 29-30.

First, there is the democratic argument, according to which broadening the powers of the local authorities allows citizens to take an active role in the management of their own affairs, which gives them a sense of partnership in the determination of their fate. As local government is more accessible than the central government, each citizen's influence increases correspondingly.

Second, strengthening local government increases the division of powers between the various governing centers. This, goes the argument, prevents the concentration of power in the hands of the central government and constitutes a safeguard against arbitrary behavior on its part.

Third, conferring power upon local government emphasizes the uniqueness of each particular constituency. This allows for flexible government, which is sensitive to the particular needs of each individual community. From this point of view, it is preferable that each constituency address its own concerns, as opposed to a situation in which these are the product of rigid national planning, uniformly imposed across the country.

Fourth, broadening the powers of the local authorities is said to increase efficiency by alleviating some of the burden on the central government and encouraging local initiative.

7. A process of decentralization has also occurred in Israel, though not necessarily as a result of an intentional policy decision. Instead, it seems to have been the product of practical and historical circumstances. During the British Mandate, local government was given much importance, this being the only sphere in which the inhabitants of the Land of Israel could exert any influence over their own lives. On one hand, the British Mandatory Government encouraged this trend, as stregthening local government enabled it to minimize the services it was forced to provide to residents. On the other hand, the Mandatory Government subjected local government to strict scrutiny by way of the Local Councils Ordinance-1921, later replaced by the Local Councils Ordinance-1941 and the Municipalities Ordinance-1934. These statutes were all based on the English principle of ultra vires, according to which local authorities, as creatures of statute, do not enjoy any powers beyond those explicitly conferred upon them by statute. According to this doctrine, they are unable to act beyond the confines of their statutory powers.

When the State of Israel gained its independence, a centralizing model came to characterize the relationship between local and central government. This was primarily the result of immediate circumstances that necessitated concentrating government in the hands of a single body, capable of setting the national agenda. Such an approach was also the fruit of a political culture suspicious of local autonomy. Under this patriarchal approach, local government was perceived as simply the sub-contractor of its central counterpart. In the aftermath of the Six Day War, however, and particularly after the Yom Kippur War, national authority was weakened as public attention and interest began to increasingly focus on local and regional issues. Yet another factor contributing to this process of decentralization was the population expansion in urban centers and the rise of capable and ambitious local leadership. Indeed, during that period, local leadership evolved from being the passive agent of the central government into its strategic partner. Consequently, the tendency today is to view the relationship between the central and local government as complex and multi-dimensional. See Local Government in Israel 10, 22-23 (D. Eleazar & C. Kalchheim eds., 1987) [22]; Ben Elia supra.[21], at 8-10.

In 1976, the Israeli government decided to establish a National Commission for Matters of Local Government (known as the Zanbar Commission), whose report was submitted in 1981. In its report, the Commission emphasized that the State of Israel had evolved from its various communities, and should not dominate them through an overly centralized national government. Similarly, it pointed out that Jewish political culture had traditionally adopted the principle of division of power between various levels, thereby providing a basis for the “right to local government." Thus, the Commission determined that the desirable model for the relationship between local and central government was not the hierarchical model or the center-periphery model, but rather a model based on a tapestry of interwoven relations, in which the state as well as local authorities coordinate, each deriving its authority from the people. While it is the central government that determines the structure of this tapestry, the local authorities nonetheless remain responsible for carrying out their duties within that framework. In addition, the Commission concluded that the system of governance is composed of both the national and the local government; the goal of the local authorities is to represent their residents and to ensure their physical, cultural and spiritual welfare, in conformity with the objectives of the State of Israel; the local authorities’ status is equal to that of the government in spheres of activity common to both; when supplying public services, the authorities must consider both national interests and the given locality’s specific needs, as well as the wishes of its residents. The proposal that suggested abolishing the ultra vires doctrine was rejected. It was, however, suggested that the local authorities be granted a broader mandate, specifying only general categories of authority within which the local authorities would be empowered to perform any action. National Commission for Matters of Local Government [34], at 13-15, 20. See also Local Government in Israel supra [22] at 23-24, 12, 24, 35-36; C. Kalchheim, The Limited Effectiveness of Central Government Control over Local Government, 7 Planning and Administration 76 (1980) [33].

Today, the local authority functions as a quasi-political community, assuming a wide variety of functions, reaching beyond the functions traditionally associated with municipalities and local government. The control exercised by the central government in Israel is weaker than is commonly assumed.

8. Adopting the decentralizing model to define the powers of a local authority still does not provide an answer to the specific issues at bar. Indeed, under this model also, it is conceivable that a particular matter of national importance may not fall under the local government’s powers, despite the specific implications it may have for residents of a given locality. In effect, Israeli case law has yet to provide an unequivocal answer to the question of which law governs those activities of the local authority which are of both local and national significance.

The cases of HCJ 122/54 Axel v. Mayor of Netanya [1], at 1524 and DC (Jerusalem) 3471/87 The State of Israel v. Kaplan [17], involved local bylaws that infringed on the freedom of occupation (by prohibiting the sale of pork) and on the freedom of conscience (by failing to allow places of entertainment to remain open on the Jewish Sabbath). In these instances, the Court held that the local authorities were not competent to legislate on these matters, in light of their national character. Such issues of national significance could only be regulated via legislation based on a comprehensive overview of the public’s general needs. Even so, it should be noted that those cases did not deal with matters of any special, distinct significance to the local residents of the localities concerned. On the other hand, where the issues involved were of national concern, but the local factor was the dominant one, the Court deemed the local authorities competent to regulate the matter. To this effect, see HCJ 489/94 Kiryat Ata v. Yitzhak Rabin—Prime Minister and Minister of the Interior [2]; HCJ 5445/93 Municipality of Ramle v. Minister of the Interior [3] (changing the territorial jurisdiction of the authorities) and HCJ 594/89 Arava Regional Council v. National Planning and Building Council [4] (regarding the establishment of the relay station “Voice of America”).

The only case cited by the association involving an issue similar to the one at bar was in the Scottish case Commission for Local Authority Accounts v. Grampian RC, [1994] Scot. L.T.R. 1120 [20]. The question there was whether a local authority had jurisdiction to fund a campaign in favor of the establishment of a Scottish parliament. The text of the relevant statutory provision in that instance was the following:

A local authority may ... incur expenditure which in their opinion is in the interest of their area or any part of it or all or some of its inhabitants.

The court there held that:

It is enough to open up the subject for consideration by the local authority that the expenditure may be in some way, although not directly or exclusively, in the interests of the area or its inhabitants.

Id,. at 1125. It was decided that the issue of whether or not to establish a Scottish parliament falls within the scope of the local inhabitants’ particular area of interest since:

The way in which the government is carried on generally, and the extent to which that will affect the functions of government to be performed locally within the local authority, may indeed be a matter of legitimate concern to the inhabitants of that area .... The desirability or otherwise of such an assembly or parliament is a matter of political controversy. But that fact itself does not mean that it cannot be in the interests of the area or of its inhabitants… to contribute to the discussion.

Id., at 1126. To my mind, however, the conclusion reached by the Scottish court in that instance is not the appropriate one for our purposes, even though the general approach adopted there may guide us. The issue of whether to establish a separate Scottish parliament was not of special interest to the residents of the particular locality, as distinct from the interest of the residents of other localities across Scotland.

9. In light of the local councils’ extensive powers under either the decentralized or the intermediate model, it seems to me that the appropriate criteria for assessing whether a local or regional council is authorized to fund an activity with national ramifications, is to ask whether the activity in question is of specific interest to the local residents, beyond the matter’s national ramifications. Clearly, the central government’s scrutiny over the activities of its local counterpart should ensure that national interests are not sacrificed to narrow, local interests. Likewise, central supervision should also guarantee minimum uniform standards in order to prevent social inequality and also ensure that the local authorities function properly. This having been said, when the local authority is functioning properly and complies with the minimum demands set by its national counterpart, it is best for the central government to curb its interference in local matters. This, of course, is subject to the existence of a local interest in the issue involved, which extends beyond the general national interest. I should also emphasize that my comments relate exclusively to the issue of jurisdiction and not to the substantive manner in which it is exercised. Had that latter issue arisen, it would have been incumbent upon us to examine the intensity of the separate local interest required in a particular case. As noted, however, the issue of the manner in which the local authorities’ exercise their discretion was not raised.

In my opinion, in the case at bar, the local councils in question have successfully shown the existence of a separate local interest, aside from the corresponding national interest, which justifies bringing the matter within their jurisdiction. It will be recalled that one of the two objectives for which the association in question was established was to preserve Israeli sovereignty over the Golan Heights, in accordance with the Golan Heights Law-1981. The local authorities funded the association’s activities in order to promote the struggle against a withdrawal from the Golan Heights, which would entail withdrawing from the particular areas over which the local councils here have jurisdiction. Such a withdrawal would effectively put an end to the councils’ existence. Simple logic would dictate that these councils be entitled to do their utmost, within the bounds of the law, to preserve their existence. Clearly, no local interest could be more urgent than self-preservation. In other words, while the issue of continued Israeli sovereignty over the Golan Heights involves national policy, in the central government’s province, it nonetheless has inherent and obvious local implications. Clearly, any decision taken with respect to the Golan, whatever it may be, is liable to fundamentally change the lives of the residents of the councils. Let it be noted that this Court is not required to address whether the councils’ decisions are substantively correct. This is for the council’s residents to address, through their elected representatives.

This is all the more true given the association’s additional purpose of promoting new communities in the Golan Heights, as well as expanding and strengthening existing communities. This purpose obviously falls within the jurisdiction of the local authorities. Thus, had we held the allocation of funds to be ultra vires, we would have also been required to address the legality of allocating funds to a corporation with various and diverse goals. In light of the above-said, however, this issue does not arise.

The fact that the subject at bar is controversial does not affect our ruling. The Court is only occupied with the issue of the local authority’s jurisdiction—not how many residents support or oppose the allocation of funds. As the councils who took the decision were democratically elected on the basis of a public platform, there is no need to address the question of whether or not there is consensus among the residents of the Golan Heights regarding the desirability of supporting the association. Having held that the matter of allocating funds is within the councils’ jurisdiction, by reason of it raising issues of special local interest, above and beyond the national interest, provides sufficient grounds for upholding the allocation of funds to the association. The fact that the issue also happens to be at the center of a political storm is not relevant.

For these reasons I am satisfied that the petition should be dismissed.

Justice D. Dorner

1. A local authority, like any other administrative body, is bound by administrative law and has no power, save those specifically conferred it by statute.

The issue that arises in this petition is whether the local or regional councils are authorized to take actions that do not conform to foreign or defense policies of the central government that jeopardize the interests of the locality's residents. More specifically, our present question is whether the local and regional authorities of the Golan Heights are authorized to fund protest activities and propaganda that seek to guarantee continued Israeli sovereignty over the Golan Heights.

2. My colleague, the Deputy President, is of the view that the council is authorized to act in such a manner, by virtue of section 146 of the Local Councils Order (A)-1950 and section 63 of the Local Councils Order (Regional Councils)-1958. These sections authorized the Councils, “having regard for the Minister’s instructions, and to the extent that no statutory provisions are infringed, to act in any matter concerning the public within the council precincts."

3. The Orders were issued under section 2 of the Local Councils Ordinance [New Version], which provides:

The council’s functions, authorities and duties shall be determined in its constituting order.

Section 146 of the Local Councils Order provides as follows:

1.To maintain order, good government and security;

2.To ensure the development of its precincts, to promote the economic, social and cultural well-being of all or any of its residents;

3.To serve as trustee or guardian for any public matter;

4.To establish and maintain public structures and to complete public works.

5.To establish, maintain and manage institutions that, in the council's opinion, will serve the public interest.

6.To regulate, restrict or prohibit the establishment and the conduct of affairs of any authority, factory or public institution;

7.To regulate, restrict or prohibit the establishment of businesses, trades and industries.

8.To establish procedure¼ in order to ensure public health, order and security;

9.To regulate, restrict or prohibit the farming, maintenance or sale of pork;

10.To regulate¼ peddling..;

11.To regulate irrigation, sheep herding and the prevention of erosion

12.…

13.To adopt all measures necessary for the preparation of the economy for emergencies...."

The wording of section 63 of the Local Councils Order (Regional Councils) is identical to the wording of this section.

4. To my mind, the provision upon which my colleague bases the council’s authority cannot be so construed. My colleague’s interpretation is inconsistent with the provision’s purpose, as reflected by the legislation as a whole, including the empowering statute and the local council’s status in our system of government.

5. The local authorities’ various activities are listed in the Municipalities Ordinance [New Version] and the Local Councils Ordinance [New Version]. Both of these ordinances establish relatively limited autonomy for the local authorities, subjecting them, for the most part, to the authority of the central government.

Indeed, the Minister of the Interior wields extensive influence over the local authorities. The Minister is empowered to constitute municipalities and councils. See sections 3, 5 and 6 of the Municipalities Ordinance, section 1 of the Local Councils Ordinance. He is empowered to disband an elected municipal council and order new elections or to appoint a standing committee in the municipal council’s stead. See section 143 of the Municipalities Ordinance and section 38 of the Local Councils Ordinance. The Minister is further authorized to alter the municipal or local boundaries, see sections 8 and 9 of the Municipalities Ordinance and sections 4-7 of the Local Councils Ordinance, and even annul them altogether. See section 11 of the Municipalities Ordinance, section 42 of the Local Councils Ordinance. Moreover, by-laws adopted by the municipality or the council require the Minister’s approval. See section 258 of the Municipalities Ordinance, section 22 of the Local Councils Ordinance. Similarly, the Ministry of the Interior’s regional appointee has the authority to order the council or the municipality to perform any legal duty incumbent upon it, or to appoint someone to fulfill that duty. See section 41 of the Municipalities Ordinance, section 36 of the Local Councils Ordinance. The local authority’s budget, a significant portion of which is funded by the state, requires the approval of the Minister of the Interior, who is entitled to add or detract from it. See sections 206, 207 of the Municipalities Ordinance, section 27 and 29 of the Local Councils Ordinance. For its part, the Foundations of the Budget Law, 5755-1995, renders credit requests by the local authority contingent on the Minister of the Interior’s approval. Id., at § 45. Furthermore, the council’s power to impose taxes or surcharges is restricted, Id., at § 31, and a prohibition is imposed on the signing of any wage agreements with employees of a local authority, inconsistent with the standards applied to state employees, Id., at § 29.

6. The powers set out in the Orders all relate to municipal matters. This local authority is restricted in the exercise of its powers and the Minister of the Interior is authorized to intervene in their exercise. The opening clause of the Orders stipulates that authority is granted the council “having regard for the Minister’s instructions." Section 223 of the Municipalities Ordinance concludes, in relation to municipal powers, that “provided there is no other order issued by the Minister in these matters."

The whole legislative scheme illustrates that the Orders’ purpose is to empower the local authority to provide municipal services to the public within its jurisdiction. Hence, “a matter concerning the public in the precincts of the council” is a municipal matter that the local authority is empowered to deal with.

7. The municipality, which ranks highest among local authorities, is invested with broader powers than those of the councils. This having been said, the Municipalities Ordinance contains no residual provision similar to the provision in the Orders, upon which my colleague’s interpretation is based. Section 233 of the Municipalities Ordinance stipulates as follows:

The municipality shall, within its precincts, act with respect to the matters specified with regard to the Municipality’s duties in Article B, and any other function that the municipality is held to perform as per this Ordinance, or under any other law, and it is empowered, within the municipal precincts or in the area of the town which encompasses the municipality, to act on the matters dealing with the authorities of the municipality, as set out in Article C. This applies absent any other provisions issued by the Minister in these matters, and subject to the provisions of the Ordinance and of any other Law."

Sections 235-249 A of the Municipalities Ordinance regulate both the powers and the duties of the municipalities, all of which concern municipal matters relating to the municipality’s precincts.

Both the Municipalities Ordinance and the Local Councils Ordinance, including the orders promulgated therefrom, deal with the same material, in pari material, and should therefore be given the same interpretation, wherever possible. To this effect, see Justice Elon’s opinion in HCJ 609/82 Pantomp Overseas 1981 v. Investment Center [5], at 766:

The interpretation of two statutes dealing in pari materia, with the same subject and same goal, ought to be as uniform as possible.

Two statutes dealing with the same subject are essentially complementary elements of the same legislative structure. The arrangements in both statutes, directed towards achieving the same goal must be interpreted identically. Thus, in PLA 265/89 Ravi v. Elections Clerk for the Local Committee, Jaljoulia [6], it was argued that voting slips for the head of a local council should be invalidated where the name of the candidate was added in handwriting. The Court rejected that claim. The Court interpreted a provision of the Local Authorities Law (Election and Tenure of Head and Deputy Heads)-1975, in light of an arrangement found in the Local Authorities Law (Elections)-1965. In this vein, Justice S. Levin wrote:

This interpretation is justified due to the need to preserve harmony between the statutes and to prevent an undesirable situation whereby two slips are placed in the same envelope—one for the election of the council, and the other for the election of its head—with one of the votes considered valid and the other invalid, even though both of them bear handwriting not belonging to the voter.

Id. at 440. See also, 2 A. Barak Law and Interpretation: Statutory Interpretation 327-335, 341-343 (1993)

8. In the case at bar, the interpretation of the Orders should conform to that of the Municipalities Ordinance, and not the other way around. There are three reasons for this: First, the normative status of the Municipalities Ordinance is superior to that of the Orders. Second, the Municipalities Ordinance precedes the Orders in time. Generally speaking, when dealing with legislation dealing with the same material, the earlier law is interpreted in a manner consistent with the later law. See Barak supra. [23], at 195. Third—and this is the central point—the Municipalities Ordinance offers no textual basis supporting an interpretation in which the necessary powers would be conferred upon the municipality. The Orders can easily be similarly construed.

9. Orders enacted by way of secondary legislation should be interpreted in accordance with the legislative purpose of the primary legislation upon which they are based. Furthermore, the interpretation limits itself to the confines of the empowering statute. In the words of Deputy President Shamgar, in HCJ 337/81 Metrani v. Minister of Transportation [7], at 358:

Not only must a regulation not contradict the provisions of any statute, but it must also not deviate, substantively or procedurally, from the legislatively determined boundaries.

For our purposes, the purpose of the Local Councils Ordinance, as reflected by the entirety of its provisions, as well as by the Municipalities Ordinance, is to impose executive duties on the local authority, with respect to the municipal areas within its jurisdiction.

10. In effect, the legislation regarding the local authorities is grounded in ordinances that date from the Mandatory period, intended to ensure absolute state hegemony over the local authorities. Granted, today, it is appropriate to interpret statutes in light of the political and social changes that have occurred since the establishment of the State of Israel. This having been said, there is nothing in Israel's democratic regime to support the interpretation suggested by my colleague. Quite the contrary is true.

11. Allocating responsibility to the local authority is based on the understanding that it is preferable that local affairs be conducted in accordance with the conditions and needs of the particular locality. Clearly, the appropriate solution in a particular place is not necessarily appropriate in a different locality. Thus, the local authority has a relative advantage over the central government in dealing with local problems. Furthermore, from a democratic standpoint, it is similarly appropriate that local matters be conducted in accordance with local resident’s desires and aspirations, by their elected representatives. See E. Winograd, Laws of Local Government 1-2 (1988) [24].

This, however, does not give the local authorities concurrent jurisdiction with state authorities in matters of national significance, merely because they happen to also specifically affect a particular place. Even in countries whose constitution confers extremely broad autonomy in the conduct of local affairs, there is no model that grants these authorities any powers in areas under the jurisdiction of the central government, such as foreign affairs, defense, and the determination of borders.

In Germany, for instance, the status of the local authorities is constitutionally guaranteed. However, under section 28(2) of the German Constitution, the authority to alter the judicial boundaries of a locality belongs to the central government, which also has the authority to disperse the authority altogether. See D.P. Currie The Constitution of the Federal Republic of Germany [29].

In England, the Local Government Act (1972) granted the local authorities a large degree of autonomy in the conduct of their municipal affairs. Nonetheless, the court disallowed the decision of the Greater London Council to fund a propaganda campaign against the Government's plan to dissolve the Council, which would have resulted in the firing of 22,000 employees. See R. v. The Greater London Council, 19 Dec. 1984 (Q.B.) (unreported case) [19].

In the United States, the Federal Government’s exclusive power to deal with foreign affairs and defense is constitutionally enshrined. See United States Constitution, art. 1, § 8; art. 2, § 2. Under these provisions, acts of the states that fail to conform with the foreign policies of the federal government were struck down. See, e.g., United States v. Pink, 315 U.S. 203 (1942) [18]. See also L.H. Tribe, American Constitutional Law 230 (2d ed. 1988) [30].

In Israel too, we must conclude that a local authority is not authorized to take action influencing the determination of the state's borders or other issues of national importance. Indeed, President Shamgar related to this matter in HCJ 3716/94 Raz v. Mayor of Jerusalem [8], concerning a petition challenging the support of the Jerusalem Municipality to those demonstrating against the visit of the Chairman of the Palestinian Authority to the city:

It is generally accepted that, with the exception of humanitarian assistance, provided by the municipality to the strikers legally demonstrating in the public domain (water, light, toilets, etc.), a local authority is not empowered to make donations from public resources for the purpose of supporting activities that are the subject of political controversy.

Similarly, a statutory corporation is not authorized to exploit its status to interfere with matters within the jurisdiction of other authorities. See, e.g., HCJ 757/84 The Association of Daily Newspapers in Israel v. The Minister of Education and Culture [9], at 385-87.

From all of the above, it becomes clear that the councils are not empowered to use their budgetary resources to support an association that acts to prevent Israeli withdrawal from the Golan.

12. On this issue, my colleague, the Deputy President, is of the opinion that a broad approach ought to be adopted, allowing the local authority to exercise its powers in matters that have significant local implications, even if the same issue is basically a national issue. My colleague’s approach is a novel one for us. Our case law, for example, has consistently ruled that local authorities are not permitted to exercise their powers for the regulation of religious issues, which are fundamentally national issues. See e.g., HCJ 122/54 supra. [1], at 1532; HCJ 72/55 Mendelson v. Municipality of Tel-Aviv/Jaffa [10], at 752; Crim. App. 217/68 Izramax v. State of Israel [11]; HCJ 87/60 Kriboshi v. Ramat Gan Municipality [12]; HCJ 155/60 Elazar v. Mayor of Bat Yam [13]; DC (Jerusalem) 3471/87 supra. [17]; see also HCJ 161/52 Refinery Company of the Land of Israel, v. The Rishon LeTzion Municipality [14], at 125.

Regardless of the law relating to the legitimate considerations that local authorities may employ in matters within their jurisdiction, the Court cannot grant a local authority, or any other authority, power not bestowed on it by statute. Having established that the local authorities cannot deal with foreign and defense matters, including those concerning state borders, the petition must be granted.

13. This too is an appropriate result.

It is not commensurate with good government that local authorities utilize state funds to fund protest activities against the policies of the central government, even when the issue relates to the municipality and its inhabitants. Such financing also leads to the untenable situation in which the entire population of Israel finds itself inadvertently funding protest activities of a given locality, that run counter to the policies of the elected central government. While the ability to protest government policy is critical in a democratic state, it is nonetheless not within the jurisdiction of the local authorities.

14. It is for these reasons that I am of the opinion that the petition should be allowed. Even so, I believe that the order should only be made effective from the beginning of 1996. This is in view of the association’s previous reliance on the funding that was approved by the Ministry of the Interior.

Justice E. Goldberg

1. The first question to be addressed is whether a local authority, invoking “purely” municipal and public interest considerations, is authorized to finance protest and propaganda activities intended to safeguard its physical existence, given the existential threat posed by a central government decision on the matter.

2. To the extent that the issue relates to a local authority that is a municipality, section 249(29) of the Municipalities Ordinance [New Version] requires us to answer the above question in the affirmative. This section, titled “General Authority," empowers a municipality, inter alia:

To perform generally any action required to safeguard the municipal precincts.

The term “safeguard the municipal precincts” is vague. "It is unclear and it is not easy to fathom its precise content." See Winograd, supra. [24], at 190, n. 34. Even so, there is nothing to prevent an interpretation according to which the municipality is authorized to engage in activities intended for its physical preservation. Such an interpretation is consistent with “the attachment that a person develops to his place of residence.” PLA 5817/95 Rozenberg v. The Ministry of Building and Housing [15], at 229.

3. With respect to local councils, section 2 of the Local Councils Ordinance [New Version] specifies that “[t]he constituting order shall regulate the composition of the local council, its tenure, authorities, duties and area of jurisdiction," and section 146 of the Local Councils Ordinance (A)-1950 stipulates:

3.To serve as a trustee or guardian for any public matter

Here too, I have no difficulty in construing these sections so that the existence or dissolution of a local council is a “matter concerning the public in the council precincts.”—on such matters, the local council serves as “a trustee or guardian” for its residents.

4. This interpretation of section 249(29) of the Municipalities Ordinance; of section 146 of the Local Councils Ordinance (A) and section 63 of the Local Councils Ordinance (Regional Councils), is conducive to consistency with respect to the scope of authority regarding the issues at bar. For “it is difficult to see a logical reason for distinguishing .... As if the residents within the regional council precincts are in greater need of guardianship of the local government than the residents of the municipalities.” HCJ 287/71 Daabul v. Ramat Gan [16], at 824.

5. The second issue is whether the local authority’s power should be circumscribed with respect to actions intended to dissuade the central government from adopting a policy that jeopardizes its continued existence, when its struggle for survival is also a matter of national significance.

Decision-making power in state matters is not granted to the local authority, which is authorized to function exclusively at the local level, see 1 I. Zamir, The Administrative Authority 373 (1996) [25]. This was also the guiding consideration in HCJ 122/54 Axel v. Mayor of Netanya [1]). Similarly, it was said in a different context that: “the various ideological controversies among sectors of the population, in matters such as religion, nationalism, and economic concerns, are to be conducted in the forum of the Knesset or in other central government institutions, and neither the municipality nor the local council are responsible for their regulation.” HCJ 155/60, supra. [13].

This argument, however, is not applicable to the case at bar. In its quest to encourage public awareness of its position by way of advertising, the local authority is not impinging upon the authority of the Knesset or that of the central government. It is undisputed that the exclusive authority for ultimately deciding the matter rests with the central government.

6. It could also have been argued that local authority funds cannot be used for adopting a position on a political issue. It is improper to devote the limited resources of the local authority to taking a stand on a political issue, at the expense of providing municipal services to residents.

This claim, however, should not be acceptable. Clearly, when the local authority allocates part of its resources to taking a stand on a “purely” political issue, without any local connection, there are no grounds for assuming that it represents the interests of the local population. By contrast, when the local authority devotes part of its resources to taking a stand on an issue related to local survival, then it is proper to presume that it is in fact representing its residents’ interest in continuing to live in the place that they call home.

7. It could also be argued that the general population should not fund the local authority’s acts of protest. In the framework of public decision-making, each and every citizen, including the local authority’s residents, should have an equal opportunity to attempt to sway public opinion. It can therefore by argued that it is not justifiable to put public resources at the disposal of a particular group.

This claim too, however, fails to consider the existential nature of the local authority’s struggle. The enlistment of public support is not an objective in and of itself but rather, part of the struggle for the locality’s very survival.

8. I am therefore of the opinion that the appropriate legal policy is that which makes the connection between the dangers to the local authority’s continued existence and its authority to confront these dangers.

9. It seems to me that if the issue had related to the struggle of an agricultural community against a peace agreement, under which most of its agricultural territories would not remain in its possession, all would agree that the financial expense required for the community to engage in the struggle would be a legitimate expense, even though the issue of the determination of state borders is a national one. The only difference between that case and the case at bar is an additional element: the public controversy regarding the future of the Golan Heights in a future peace agreement. But this distinction should not change the legal result. The struggle in which the Katzrin Local Authority and the Golan Heights Regional Council are involved is for the continued existence of the communities in the Golan Heights. The fact that a public debate surrounds the future of the Golan Heights does not, for that matter, affect the councils’ struggle for survival. The struggle for the continued existence of these communities must be considered separately from the said public debate, which is irrelevant for the purposes of our judicial decision.

I was therefore of the opinion that the petition should be dismissed.

Petition Denied.

Rendered today, May 11, 1997.

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/95/380/028/B01/95028380.b01.pdf

Goren v. Home Center (Do It Yourself) Ltd.

Case/docket number:

HCJ 1758/11

Date Decided:

Thursday, May 17, 2012

Decision Type:

Original

Topics:

Employment

Equality Before the Law

Labor

Discrimination

Abstract:

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Can a showing of a wage gap between a female employee and a male employee for equal work or work of equal value at the same workplace can “automatically” substantiate a cause of action under the Equal Pay for Female and Male Employees Act 1996 (hereinafter: the Equal Pay Act) as well as under the Equal Opportunities in Employment Act 1988 (hereinafter: the Equal Opportunities Act)? The implication of this questions for our matter is in regard to the option granted by the Equal Opportunities Act to award compensation without actual showing of damages, that does not exist in the Equal Pay Act.

Background: The First Petitioner (hereinafter: the Petitioner) won a suit she had filed with the Regional Labor Court against the First Respondents (“Home Center”, and hereinafter: the Respondent) under the Equal Pay Act after it was found that the compensation she received for her employment with the Respondents was 35 per cent lower than the compensation for a man who worked for the Respondent at the same job (hereinafter: Mor) and once the Respondent failed to show any justification for this gap. It was noted, among others, that the fact that the Petitioner’s pay was set following a negotiation between her and the branch manager, where she asked for pay (NIS 3,500 per month) that was lower than pay for which Mor asked (NIS 5,000 per month) cannot justify the significant pay gap between the two. The Regional Labor Court went on to hold that once it was found that the Respondent violated the provisions of the Equal Pay Act, then the Petitioner’s suit was to be granted under the Equal Opportunities Act as well. In this context, the court noted that since it was demonstrated that the Petitioner’s pay was established according to her own demands rather than by the initiative of the Respondent, she must not be awarded the maximum rate of compensation as stipulated by the Equal Opportunities Act. Therefore the Regional Court set the amount of compensation for the Petitioner at NIS 6,944 – which is identical to the sum awarded her under the Equal Pay Act. An appeal and a counter appeal that were submitted to the National Labor Court examined the issue of whether proving a claim under the Equal Pay Act automatically establishes a cause of action under the Equal Opportunities Act as well. The majority opinion of the National Labor Court decided the above issue in the negative while examining the circumstances under which the burden of proof shall shift to the employer under section 9 of the Equal Opportunities Act. In this context the majority decided that in order for the burden to be shifted to the employer’s shoulders, the employee must first present evidence demonstrating discrimination or unequal treatment by the employer. The majority judges further held that the employee must present to the Court evidence and documents that demonstrate to the necessary standard that that this is a discriminating employer. The mere proof of the claim under the Equal Pay Act does not, in the perspective of the majority judges, meet such necessary standard. Hence this Petition.

The High Court of Justice (in a decision written by President (Ret.) D. Beinisch and joined by Justices I. Amit and N. Hendel) granted the Petition for the following reasons:

The Equal Pay Act was designed to address one of the most common expressions of discrimination between men and women in the workforce, and thus establishes a burden of proof that favors to great extent the female employee when proving her claim – in a suit under the Equal Pay Act it is sufficient to point to gaps in pay between a man and a woman who perform the same work (or a generally equal job or a job of equal value), that the employer fails to show a relevant justification under the consideration detailed in section 6(a) of the Equal Pay Act in order to prevail in the claim (an outcome based test). But on the other hand, the Act limits the extent of compensation that may be awarded to a female employee who suffered discrimination.

The considerations detailed in section 6(a) of the Equal Pay Act do not constitute an exhaustive list. However, demonstrating other considerations that are not listed in section 6(a) of the Equal Pay Act requires that these considerations, too, are of the same type listed in the section and point to the fact that the gaps in pay are a necessary result of the “nature of character of the relevant work.” In this context, the High Court of Justice (as opposed to the position expressed in the dissenting opinion of Judge Virt-Livne) ruled that the employer’s freedom of contract must not be recognized as a single consideration which my justify wage discrimination between men and women.

The Equal Opportunities Act was designed to address different types of discrimination toward various groups and requires demonstrating a causal connection between the prohibited consideration taken into account by the employer and the decision the employer made in regard to the employee. Still, the Act permits awarding compensation to the employee without requiring a showing of harm, as well as establishes a criminal sanction against the discriminating employer.

On its face, it seems that in light of the difference in the manner in which the causes of action in the Equal Pay Act and the Equal Opportunities Act are defined, it is insufficient to only prove the claim under the Equal Pay Act in order to necessarily and “automatically” substantiate a claim under the Equal Opportunities Act. Each of these Acts was designed to target different types of discrimination in the workforce, establishes different tests to proving the discrimination, and mandates different sanctions to be placed upon the discriminating employer. Under these circumstances creating a complete overlap between the causes of action established in the two acts is inconsistent with the purposes that each act was designed to achieve and the problems with which each of the acts is meant to deal.

On the other hand, the Equal Opportunities Act acknowledges the difficulty faced by an employee required to prove the motives of the employer, and it stipulates in section 9(a) that should the employee prove that he or she meets the requirements of possesses the skills that the employer set for the purpose of the issue subject to the discrimination claim, the burden would shift to the employer in order that the employer could undermine the discrimination claim and prove that the decision regarding the employer was not based on a prohibited consideration. It is therefore asked what the minimal evidentiary burden necessary is in order to shift the burden of proof under the Equal Opportunities Act toward the shoulders of the employer, and whether proving the claim under the Equal Pay Act meets such evidentiary burden.

In the HCJ’s view, the burden placed upon the employee is a relativity light burden. It is sufficient that the employee who claims discrimination due to belonging to one of the identity groups detailed in section 2 of the Act show that he meets the requirements and possesses the skills set by the employer for a particular purpose, or that he was able to demonstrate prima facia evidence that the employer discriminated against him in order to shift the burden onto the employer. It is possible that under particular circumstances a significant gap in pay between a female employee and a male employee would be sufficient to shift the burden of proof in a claim under the Equal Opportunities Act onto the employer’s shoulders. The issue of passing the test of whether there are prima facia evidence for discrimination will be settled according the circumstances of the case, and strict standards should not be set in this context. Therefore, there is not place for the requirement raised in by the majority of the National Labor Court that the female employee be required to present evidence and documents to sufficiently show that this is a discriminating employer.

Where the employee has successfully met this evidentiary burden, the burden shifts onto the employer to prove that the discrimination is a necessary result of the nature and characteristic of the job, as mandated by section 2(c) of the Equal Opportunities Act, or that it is based on some good reason that is not rooted in one of the prohibited considerations detailed in section 2(a) of the Equal Opportunities Act. In this context it is important to make clear that the Equal Opportunities Act explicitly lists the considerations that an employer is prohibited from considering when making decisions related to an employment relationship. Where the employer succeeds in showing that a seemingly discriminatory outcome is not based on one of the prohibited considerations but on another consideration or other considerations, the employer has met the burden to show that the employee was not discriminated against “because” of the prohibited considerations.

As for the case of the Petitioner in the matter before us, proving a claim under the Equal Opportunities Act meets the evidentiary burden necessary to shift the burden of proof in a claim under the Equal Opportunities Act onto the shoulders of the employer. Once a female employee has shown that a male employee at the same job (or a generally equal job or a job of equal value) for the same employer and in the same workplace receives a higher pay then her, and once the employer was unable to demonstrate a relevant justification for this gap which is a necessary outcome of the nature of the job or of its characteristic (according to section 6 of the Equal Pay Act), then seemingly the assumption that the root of the gap is the sex of the female employee is a necessary conclusion.

Under these circumstances the burden is shifted onto the employer to demonstrate there is no causal connection between the pay gap and the sex of the female employee, and thus the gap is not “because” of the employee’s sex. Should the employer meet this burden and prove that the sex of the female employee was not one of the considerations that led to the decision as to her pay, then the female employee has not claim under the Equal Opportunities Act. On the other hand, should the employer fail to meet the above burden, the necessary conclusion would be that the female employee has a claim under the Equal Opportunity Act and under the Equal Pay Act.

The Only argument that the Respondent here has is that the Petitioner’s pay was lower than Mor’s pay because the pay she asked for to begin with was lower.

In the HCJ’s view, an employer who demonstrates that it’s employees’ pays is determined through a negotiation, and this when the employer adopts an identical policy for men and women as to the pay of candidates for work, it may meet the burden in a suit filed against it under the Equal Opportunities Act. This, when it is able to demonstrate its pay policy without it being influenced by the sex of the candidates or other considerations prohibited by section 2(a) of the Act. Still, the greater the pay gap between male and female employees, the heavier the burden on the employer to show that the sex of the employee did not serve as a consideration in establishing her pay and that her pay was set lower only because she initially asked for lower pay in the negotiation. In other words, gaps in the relative negotiation power between employees may be used as a reasonable explanation for a certain gap in their pay, but to the extent that the gap is more significant it will become more difficult for the employer to demonstrate that the gap is wholly rooted in the differences in the employees’ negotiation powers and that it is not rooted – even in part – in one of the prohibited considerations listed in section 2(a) of the Equal Opportunities Act.

Under the circumstances of the case, in light of the significant gap between the Petitioner’s pay and Mor’s pay, the mere fact that the two initially asked for different pay does not have the evidentiary force required in order to permit the employer to meet the burden shifted to it under the Equal Opportunities Act. Therefore, demonstrating this fact, and in the absence of any additional evidence from the employer, does not alleviate the concern that the sex of the female employee served as a consideration in setting her pay. In this context it should be noted that the fact that it was shown that the employer does not have a policy of discriminating against women may be taken into account in determining the extent of compensation awarded under the Equal Opportunities Act, as indeed was held by the Regional Labor Court. However, it is irrelevant to the issue of proving the claim itself, once it was found that the relevant comparator group in our case is the other employees in the branch where the Petitioner worked, rather than the entire employee body of the Respondent.

Therefore, the Petition against the decision by the National Labor Court is granted. The High Court of Justice ordered granting the Petitioner’s claim under the Equal Opportunities Act due to her discrimination because of her sex and due to the Respondent’s failure to meet the burden of proof. In light of the delay in submitting the Petition, the HCJ does not find it fit to award the Petitioner compensation under the Equal Opportunities Act. To the extent that the Petitioner followed the decision by the National Labor Court and returned the compensation awarded to her in the Regional Court under the Equal Opportunities Act, the Respondent is not obligated to compensate her now under the Equal Opportunities Act. However, to the extent that the Petitioner still must return the compensation awarded her under the Equal Opportunities Act, this obligation is reversed. In light of the delay in submitting the Petition, there is also no place to award costs in favor of the Petitioners.

Voting Justices:

Goren v. Home Center (Do It Yourself) Ltd..pdf

Primary Author

majority opinion

Hendel, Neal

Author

concurrence

Amit, Isaac

Author

concurrence

Full text of the opinion:

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 1758/11

Before: Hon. President D. Beinisch (Ret.)

Hon. Justice N. Hendel

Hon. Justice I. Amit

Petitioners: 1. Orit Goren,

2. The Women’s Lobby of Israel

Respondents: 1. Home Center (Do It Yourself) Ltd.,

2. The National Labor Court in Jerusalem

Argued: 28 Elul 5771 (27 September 2011)

Decided: 25 Iyyar 5772 (17 May 2012)

On behalf of Petitioner 1: Adv. Orna Lin; Adv. Odeliah Ettinger; Adv. Barak Calev

On behalf of Petitioner 2: Adv. Yaniv Wiseman

On behalf of the Respondent 1: Adv. Dror Gal; Adv. Carmit Levi Zamir; Adv. Sima Golin

On behalf of Representatives for Equal Opportunity in the Workplace:

Adv. Tziona Kenig-Yair; Adv. Janet Shalom

Judgment

President Dorit Beinisch (Ret.)

Petitioner 1 (Orit Goren; henceforth, “Petitioner”) won a lawsuit against Respondent 1 (Home Center Ltd.; henceforth, “Respondent”) under the 1996 Equal Pay Act, upon the determination that the salary she received from the Respondent was lower than that of a male employee who performed the same task, and given that the Respondent could not justify the discrepancy. The issue decided by the National Labor Court, among others, in this case was whether proof of discrimination under the Equal Pay Act automatically gives rise to a cause of action under the 1988 Equal Job Opportunities Act. The main issue arising from this question is the fact that under the Equal Job Opportunities Act, unlike the Equal Opportunities Act, it is possible to award damages without proving actual damage. A majority opinion in the National Labor Court determined that a successful claim under the Equal Pay Act does not automatically give rise to claim under the Equal Job Opportunities Act; hence, this petition.

Facts

1. Petitioner worked as a consultant in the tool department of the Respondent’s store at the Ayalon Mall in Ramat Gan from August 25, 1997 until December 27, 1997, where she was paid NIS 17/hr. Along with the Petitioner in the tool department worked Steven Mor, a male, who earned a salary of NIS 5000/month (which amounts to approximately NIS 26/hr.). The two were hired after filling out a questionnaire and an interview by the department head. When asked before their hiring how much they wanted to be paid, the Petitioner requested NIS 3500/month while Mor requested NIS 6000/month. When the Petitioner discovered that Mor received a higher salary than her, she wrote a letter, dated November 16, 1997, to the department head asking for a raise to the effect of either NIS 5000/month or NIS 26/hr. Her letter went unanswered. On December 14, 1997, the Petitioner wrote another letter to her department head pointing out that to the best of her knowledge other employees in her department earn more money than she does. She requested information regarding the salaries of the other employees in her department and provided notice of her resignation effective December 27, 1997. 2. After her resignation, Petitioner filed a lawsuit against the Respondent in the Labor Court for the District of Tel Aviv, claiming the difference in salary between her and the other employees on the basis of both the Equal Pay Act and the Equal Job Opportunities Act. On April 1, 2004, a panel consisting of Judge M. Nachtomi and Public Representatives T. Braffman and Y. Eldar found in her favor. The panel determined that both the Petitioner and Steven Mor worked as consultants in the tool department in the Respondent’s Ramat Gan branch, and that the Respondent did not sufficiently establish either a distinction between the job done by the Petitioner and the job done by Mor; or that Mor had any superior abilities to those of the Petitioner; or that the reason Mor received a higher salary was because he was in line for a managerial position. However, the court determined that the Respondent sufficiently proved that, generally speaking, its male employees do not receive a higher salary than its female employees.

Given the circumstances of the case, the court also had to decide what reference group to use in determining whether the Petitioner was discriminated against.. Should the court compare her salary to all those working in the Respondent’s tool departments across the country or should it compare it to the salaries of those working in the Ramat Gan branch? Regarding this question the court looked to Section 2 of the Equal Pay Act which says that any discrepancy in wage should be calculated against employees employed “by the same employer” and “at the same place of employment.” In light of the fact that the Respondent’s policy in this case is to leave all salary decisions to the discretion of the manager of each branch, the labor court determined that the Petitioner’s loss due to discrimination should be calculated against the salaries of her coworkers at the Ramat Gan branch. Since the Respondent did not provide information regarding the wages of the other workers in the tool department of the Ramat Gan branch, and the court determined that the services provided by the Petitioner were equal to those Mor was hired to do, the court concluded that the Petitioner had sufficiently proven that the disparity in salary between herself and Mor constituted discrimination. The court noted that the fact that the salary offered to the Petitioner was a result of negotiation between her and the department head during which she requested a lower salary than that which Mor requested does not justify the disparity in their salaries. Therefore, the district labor court determined that the Petitioner successfully established a claim under the Equal Pay Act and awarded her NIS 6,944, which is the difference in salary earned between the Petitioner and Mor.

Additionally, the district labor court determined that once it has been found that the Respondent violated the Equal Pay Act, the Petitioner has a legitimate claim under the Equal Job Opportunities Act. The court held that since the Petitioner’s salary was set as a result of her salary request and not at the behest of the Respondent, the Petitioner could not be awarded the full amount under the Equal Job Opportunities Act. Therefore, the court set the amount of compensation owed to the Petitioner under the Equal Job Opportunities Act at NIS 6,944, equal to the compensation awarded to her under the Equal Pay Act.

3. The Respondent appealed the decision to the National Labor Court, and the Petitioner filed a counter-appeal. The Respondent claimed that the Petitioner should not be entitled to compensation under either law, while the Petitioner claimed that she should be entitled to higher damages than those awarded to her under the Equal Job Opportunities Act. In a November 20, 2007 decision, the National Labor Court decided to affirm the lower court’s ruling awarding the Petitioner compensation under the Equal Pay Act, but, in a split decision, held for the Respondent with regards to the Equal Job Opportunities Act and reversed the lower court’s decision to award damages under the Equal Job Opportunities Act.

The Decision of the National Labor Court

4. Judge V. Wirth-Livnah delivered the decision of the National Labor Court. In the decision, Judge Wirth-Livnah interpreted the relevant provisions of both the Equal Job Opportunities Act and the Equal Pay Act and compared the claims available under both statutes. Regarding the Equal Pay Act, Judge Wirth-Livnah agreed with the ruling of the district court according to which the Petitioner’s loss should be calculated against the salaries of those working in the tool department at the branch at which she worked in Ramat Gan, because every branch of the Respondent acts independently, as the manager of each branch determines each employee's salary. Judge Wirth-Livnah added that in this case the information provided by the Petitioner regarding the disparity in salary between her and Mor and the fact that they performed the same task sufficiently fulfilled the Petitioner’s burden of proof in establishing her case. With regards to the exceptions to the Equal Pay Act listed in Section 6 of the statute, Judge Wirth-Livnah determined that it is the responsibility of the Respondent to prove that the case falls into one of the exceptions, and in this case, the Respondent did not meet its burden. Judge Wirth-Livnah pointed out that there may be exceptions to the right to equal pay not listed in the Act, and noted that the right to equal pay is not absolute. Therefore, the right to equal pay must be balanced with the right of employers to privately contract and negotiate a salary with its employees. Thus, Judge Wirth-Livnah determined that if an employer can prove that any discrepancy (so long as it is not extreme) between the salaries of its male and female employees who perform the same task is due solely to the individual salary negotiation the employer has conducted with each individual employee, the right to contract will outweigh the right to equal pay. The employer, however, is required to ensure that the differences in his employees’ salary are reasonable. Additionally, Judge Wirth-Livnah pointed out that if the court were to take away an employer’s right to contract, there could be a negative effect on women, as it could cause employers to avoid hiring women altogether as a means of avoiding the problem of wage gaps.

In this case, Judge Wirth-Livnah determined that because the difference between the Petitioner’s salary and that of Mor stood at 35% and because the Respondent failed to provide information regarding the salaries of other employees working at the branch, this is not a situation in which the right to contract trumps the right to equal pay under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that the Petitioner sufficiently established a claim under the Equal Pay Act, and upheld the lower court’s decision in this regard.

While the other members of the panel joined Judge Wirth-Livnah in her decision, it is important to note that Judge S. Tzur (and employer’s Rep. D. Blumberg who joined his opinion) and President S. Adler (with whom employer’s Rep. Y. Shilon joined) did not agree with Judge Wirth-Livnah regarding the circumstances in which the right to contract trumps the right to equal pay. President Adler held that an employer acting in good faith cannot take advantage of the weakness or unfamiliarity of female employees of the appropriate wage rates for the job she is seeking when requesting a lower salary than what a male applicant is requesting. Finally, President Adler noted that the difference in bargaining power between the genders cannot serve as a valid justification for a difference in salary.

5. The main disagreement between the judges in the National Labor Court, however, surrounds the question of the relationship between a claim based on the Equal Pay Act and a claim based on the Equal Job Opportunities Act. Judge Wirth-Livnah, together with Judge Tzur and Employee's Rep. D. Blumberg, held that an award under the Equal Pay Act does not automatically trigger a claim for damages under the Equal Job Opportunities Act. In her opinion, Judge Wirth-Livnah focused on the difference between the two statutes. Under the Equal Pay Act, the plaintiff can be awarded damages for the difference in salary up to the 24 months prior to filing a complaint, whereas under the Equal Job Opportunities Act, a plaintiff can be awarded damages as the court sees fit without the need to establish any monetary loss. Judge Wirth-Livnah noted that compensation under the Equal Job Opportunities Act are aimed at educating employers and deterring discrimination. Therefore, judges have wide latitude in determining what the compensation should be. Furthermore, Judge Wirth-Livnah added that the two Acts are different with regards to the evidence a plaintiff must provide in order to establish a prima facie case of discrimination thus shifting the burden of proof over to the defendant. Under the Equal Pay Act, all that is required of a plaintiff filing suit is to provide the court with information regarding a difference in salary between her and a male employee who performs the same task and in the same workplace; whereas a plaintiff filing suit under the Equal Job Opportunities Act must present actual evidence of discrimination, despite the fact that the Equal Job Opportunities Act does not require the plaintiff to prove that the discrimination was intentional. Judge Wirth-Livnah adds that there are various pieces of legislation intended to protect equality in the workplace, among them the Equal Pay Act, the Equal Job Opportunities Act, the 1954 Women in the Workplace Act and the 1998 Law to Prevent Sexual Harassment. The fact that there are different statutes to this effect calls upon us to look upon them as complimentary of one another as opposed to redundant in which fulfillment of the elements of one claim will automatically fulfill the elements of another. Judge Wirth-Livnah noted that under Section 2 of the Equal Job Opportunities Act, the plaintiff-employee must prove actual discrimination. The importance of this requirement is that any lawsuit filed on the basis of the Equal Job Opportunities Act requires the plaintiff to first and foremost establish that there was gender discrimination, because only proof of discrimination can result in punitive damages.

Judge Wirth-Livnah added that the differences in the evidentiary requirements between the Equal Pay Act and the Equal Job Opportunities Act necessary to establish a cause of action is whether the facts of the case are branded as “discriminatory” and entail punitive damages, which is the case in a Equal Job Opportunities Act lawsuit, but not in a claim filed under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that successfully establishing a claim under the Equal Pay Act does not necessarily mean the plaintiff will be successful in a claim under the Equal Job Opportunities Act. Hence, in this case, Judge Wirth-Livnah found that the fact that the lower court concluded that the Respondent’s business did not have a discriminatory policy in place meant that it was not deserving of the punitive measures consistent with a claim under the Equal Job Opportunities Act and that the compensation awarded to the plaintiff under the Equal Pay Act sufficed.

6. President Adler, with whom Employees Rep. Y. Shilon joins, disagreed with Judge Wirth-Livnah and held that a successful claim under the Equal Pay Act gives rise to a claim under the Equal Job Opportunities Act. President Adler ruled that an unequal salary demonstrates discrimination in the workplace which violates Section 2 of the Equal Job Opportunities Act. President Adler pointed out that under both statutes the plaintiff must provide evidence of a difference in salary and unequal treatment between herself and a male employee, thereby shifting the burden of proof to the employer-defendant to prove that he acted legally. Accordingly, an employer who successfully shows that the difference in salary is justified under Section 6(a) of the Equal Pay Act has sufficiently proven that the difference in wage is not a result of the plaintiff’s gender as required by the Equal Job Opportunities Act. Therefore, President Adler held that so long as the employer cannot show that the difference in salary is justified under Section 6(a) of the Equal Pay Act, the only conclusion is that the difference in treatment is a result of the employee’s gender. Furthermore, President Adler added that neither Acts requires the plaintiff to prove that the discrimination was intentional and that every case is to be decided objectively. Additionally, the situations in which a plaintiff can file a claim under the Equal Job Opportunities Act are no less than those available under the Equal Pay Act, and the defenses available to an employer under the Equal Job Opportunities Act are no more than those available under the Equal Pay Act. Thus, concludes President Adler, the two statutes complement one another when they are interpreted in a consistent manner.

With regards to this case, according to President Adler’s approach, the fact that the lower court agreed that the Respondent did not discriminate as a matter of policy is not a good defense against the claims stemming from the two statutes. Paying an employee less than what others, performing the same task, are earning, even if it is against company policy, is a violation of both these laws. Finally, according to President Adler, the question of whether a company policy results in discrimination is a factor in determining the amount of damages to award under the Equal Job Opportunities Act.

The Parties’ Claims

7. The main claims of the Petitioner and of petitioner no.2, The Women's Lobby of Israel (henceforth, “the Petitioners”) touch upon the nature of the relationship between the cause of action under the Equal Pay Act and the cause of action under the Equal Job Opportunities Act given the circumstances of this case and the evidentiary threshold necessary to prove a claim under the Equal Job Opportunities Act. According to the Petitioners, the fact that the Petitioner’s salary was 35% less than that of Mr. Mor is reflective of the deep rooted problem of wage discrimination in the Israeli economy and is sufficient to meet the burden of proof necessary to establish a successful claim not only under the Equal Pay Act, but also under the Equal Job Opportunities Act. The Petitioners further argue that the court cannot deny the Petitioner's compensation under Section 10 of the Equal Job Opportunities Act solely because she could not prove widespread discrimination. According to the Petitioners, the majority ruling in the National Labor Court requiring that a claim of discrimination under the Equal Job Opportunities Act to be "because of" the employee’s gender, is, for all intents and purposes, the same as requiring proof that the employer "intended" to discriminate. Such a burden is, according to the Petitioners, unrealistic. The Petitioners point to the decision of the district labor court (upon which the National Labor Court relied) that there was no company-wide policy resulting in discrimination and argue that the decision of the National Labor Court essentially requires proof of widespread discrimination in the workplace as a condition for relief under the Equal Job Opportunities Act. Additionally, the Petitioners argue that when a court determines that there is a discriminatory effect that cannot be explained by relevant considerations, such as the case at hand, it must not be required to rule on whether the source of the result is a deliberate policy of discrimination. The Petitioners also argue that the National Labor Court’s interpretation of the Equal Job Opportunities Act does not fit with its plain language. The statute itself contains no language suggesting that courts should deviate from the established test for determining discrimination, namely, determining whether there is disparate treatment between two entities that are otherwise equal. The Petitioners further allege that the interpretation of the National Labor Court goes against the purpose of the Equal Job Opportunities Act, which is to serve as a deterrent to discrimination. They argue that in Section 10 of the Equal Job Opportunities Act the legislature permitted punitive damages to be awarded without any proof of damages as a deterrent measure. However, they claim, the National Labor Court’s decision to refrain from imposing such a penalty by setting a high burden of proof for the plaintiff effectively makes such a claim worthless and creates an incentive for the employer to act with indifference towards the Equal Job Opportunities Act. The Petitioners add that parties may not waive the provisions of either the Equal Pay Act or the Equal Job Opportunities Act; therefore, an employee's agreement to take a lower wage should not be looked at as consent to unequal treatment on the part of the employer.

Finally, the Petitioners argue that under the circumstances, this Court should not reject the petition because it was filed three years after the decision in the National Labor Court. The Petitioners claim that the public interest in eliminating discrimination against women and blocking their path up the corporate ladder and the need to permit the use of the Equal Job Opportunities Act to advance this objective outweigh the interest of the Respondent’s reliance on the decision of the National Labor Court. The Petitioners conclude that the Petitioner never gave up her right to compensation and the reason for her delay in filing is due to her lack of financial resources.

8. The Respondent argues that the petition should be dismissed outright due to the long period of time it has taken the Petitioner to file, and thus, the Court cannot accept her factual or legal arguments because of the prolonged time lapse. The Respondent also claims that this case does not justify review by this Court, sitting as the High Court of Justice, based on the rules set forth by Court precedence. The Respondent argues that the claims of the Petitioners regarding the proper interpretation of the relationship between the Equal Pay Act and the Equal Job Opportunities Act with regards to the plaintiff’s burden of proof does not justify this Court’s intervention in a decision of the National Labor Court. Furthermore, the Respondent argues that the effect of reducing the burden of proof required under the Equal Job Opportunities Act to that of the Equal Pay Act, as the Petitioners request, is contrary to the legislative intent. The Respondent points to the fact that the 1996 amendment to the Equal Pay Act expanding the grounds on which a plaintiff may file a claim entered into force eight years after the Equal Job Opportunities Act was enacted. Therefore, had the legislature intended for the burden of proof required by the Equal Pay Act to be sufficient for a successful claim under the Equal Job Opportunities Act, it would have explicitly said so in the amendment, but it did not. The Respondent adds that the two laws complement one another in that while the focus of the Equal Pay Act is the difference in salary between a male and female employee, the Equal Job Opportunities Act focuses on the cause of the difference in salary.

Additionally, the Respondent argues that the Petitioners' argument suggesting that the majority opinion in the National Labor Court decision requires a plaintiff to prove intent to have a successful claim under the Equal Job Opportunities Act should be rejected. The Respondent argues that the Petitioners confuse between the lack of a requirement to prove intent and the requirement to show a causal connection to prove the existence of discrimination. The Respondent adds that the difference in salary between the Petitioner and Mor was a result of, among other things, the salary requests they made to the department head during the course of negotiating their salary. The Respondent adds that granting a specific salary request is not one of the things forbidden to an employer under the Equal Job Opportunities Act, as opposed to the Equal Pay Act which grants am employee the right to equal pay to other employees performing the same task or a job of the same value, even if the difference in pay does not stem from the gender of the employee.

Another point raised by the Respondent concerns the fact that the discrimination prohibited by the Equal Job Opportunities Act is discrimination based on the employee’s membership in a specific protected class (for example, religion, gender, race, etc.). Thus, claims the Respondent, in order for an employee to prove discrimination on the basis of his/her membership in a protected class, (s)he must establish that the employer in question has a policy which results in discrimination against that particular class. In this case, the Respondent claims that it has sufficiently proven that it does not discriminate against its female employees, and even in the same tool department in which the Petitioner and Mor both worked, there were male employees who earned less than Mor. Under these circumstances, the Respondent argues that the earnings difference between the Petitioner and Mor is not enough for a successful claim under the Equal Job Opportunities Act, even though she was granted damages for her claim by the National Labor Court under the Equal Pay Act.

9. In addition to the claims of the parties in this case, we also received an amicus brief filed by the Equal Opportunities Commission of the Ministry of Industry, Trade and Labor. In light of the commission’s interest in this case and its role in the statute involved, we decided to allow its intervention into the proceedings. The commission claims that significant wage gaps between men and women are common in both the public and private sectors. It argues that both the Equal Pay Act and the Equal Job Opportunities Act should be interpreted in light of the existing realities in which significant wage gaps are a commonplace in society. It further argues that the difficulty in proving the existence of discrimination has led us to the point where the Equal Pay Act test is simply a showing of a wage gap between employees and does not require any showing of intent, and that under the Equal Job Opportunities Act, in certain circumstances, the burden of proof is shifted to the employer. The commission claims that the majority opinion in the National Labor Court has serious implications as to the implementation of the Equal Job Opportunities Act, which go against the prevailing theory as to the ability of the plaintiff to prove discrimination under the Equal Job Opportunities Act.

Given the circumstances, the commission argues, the Court should adopt a middle ground between the majority opinion in the National Labor Court and the dissent. It argues that when an employee successfully establishes a difference in salary between her and another employee, despite the implementation of an equal employment policy, the burden of proof would then shift to the employer to prove that there was no discrimination on the basis of gender. If the employer cannot withstand this burden, it would be assumed that it is a case of gender discrimination.

Analysis

10. Before discussing the main question presented by this case regarding the relationship between the Equal Pay Act and the Equal Job Opportunities Act, we will first address the issue raised by the Respondent with regards to the dismissal of the petition. The two issues presented by the Respondent’s claim are (1) whether the amount of time that has elapsed between the date of the decision of the National Labor Court and the filing of this petition has any bearing on whether this Court may hear this case; and (2) whether this Court, in its capacity as the High Court of Justice, can review a decision by the National Labor Court.

Regarding the delay in filing, it seems hard to dispute the fact that filing a petition more than three years after the judgment of the National Labor Court poses a significant hurdle to the Petitioners. Such a delay can be grounds for immediate dismissal when filed with the High Court of Justice. When determining whether such a delay is grounds for dismissal we analyze the delay in three ways: (1) subjectively; (2) objectively; and (3) the effect upon the rule of law if such a claim is allowed to proceed. See HCJ 170/87 Assulin v. Mayor of the City of Kiryat Gat [1988] IsrSC 42(1) 678, 694-95. The subjective test looks to the behavior of the petitioner to determine whether, during the elapsed time, the evidence shows that the petitioner gave up his right to contest the ruling. The objective test asks whether the delay has any impact on the rights or interests of any administrative bodies or third parties. The final test requires the Court to determine whether the delay negatively impacts the rule of law. This is done by balancing the aforementioned considerations consistent with the relative weight of each circumstance. The balance is especially cognizant of the private or public interests impacted by the objective test and the impact on the rule of law. See AA 7142/01 Haifa Local Committee for Planning and Building v. Organization for Protecting the Environment, [2002] IsrSc 56(3) 673, 679.

In this case, it seems that the Petitioner’s delay in filing is evidence of her willingness to forgo her rights in the case, and that the Respondent may have legitimately relied on the decision of the National Labor Court, which is up for review now by this Court. However, due to the importance of the question arising from this petition, which concerns the relationship between various pieces of legislation and the prohibition against gender discrimination in the workplace, we conclude that we should review this petition despite the delay in filing. See HCJ 244/00 Organization for Democratic Discourse v. Minister of National Infrastructure IsrSc [2002] 56(6) 25, 80 - 81. The importance of our decision concerning the parties in this case may have a considerable impact on the rights and obligations of all employers and employees. Additionally, we should add that the Petitioner through her learned attorney, Adv. Orna Lin, has left to this court’s discretion whether it should adjudicate the case of the Petitioner or merely address the underlying legal question.

Furthermore, it is well known that this Court, when sitting as the High Court of Justice, will only intervene in a decision of the National Labor Court when the decision contains a clear legal error, whose correction justice demands. See HCJ 525/84 Hatib v. National Labor Court [1986] IsrSc 40(1) 673, 693; HCJ 3512/04 Shezifi v. National Labor Court [2004] IsrSc 59(4) 70, 74. In light of the importance and implications present in the questions arising from this case, we decided to adjudicate this case.

11. The main question before us is whether proving the elements of a claim under the Equal Pay Act will give rise to a claim under the Equal Job Opportunities Act. In other words, whether proving a difference in salary between a male and female employee performing the same, or substantially the same, task or one equal in value in the same workplace can serve as a basis for a claim under both statutes. In order to answer the question we will look to the language and purpose of the two statutes and determine the relationship between them.

First, the relevant language of Section 2 of the Equal Pay Act which stands at the center of this claim:

The Right to Equal Pay: 2. A male and female employee who perform the same task, or substantially the same task or one which is worth the same, at the same place of employment have the right to equal pay…

Once it has been proven that the employees work at the same workplace (this element has been discussed in the decision of the National Labor Court, but is not relevant to the question before us), the burden of proof shifts to the defendant to prove that the difference in salary is justified under Section 6 of the Equal Pay Act, which states:

Difference in Salary: 6(a) The provisions of Section 2 meant to prevent discrimination in pay, does not prohibit wage differences based on the character or nature of the work under consideration, including productivity, quality of work, seniority at work, training or education, or geographic location of the work, which do not constitute gender discrimination.

(b) In an action under this Act, the Labor Court has determined that when, in the dispute in question, the employees perform the same or essentially the same task or a task of equal value, the burden of proof shifts to the employer to prove that the difference in salary is justified under subsection (a)

The Equal Job Opportunities Act prohibits gender discrimination in the workplace. The basic point of the law is in Section 2(a) of the Equal Job Opportunities Act which states:

The Prohibition of Discrimination: 2(a) An employer may not discriminate between employees or between job seekers on the basis of their gender, sexual orientation, marital status, pregnancy, infertility treatment, in vitro fertilization treatments, parenthood, age, race, religion, nationality, country of origin, worldview, their political party, reserve duty, their potential to be called to reserve duty or duration of reserve service… regarding any of the following work decisions:

(1) hiring;

(2) work conditions;

(3) promotions;

(4) professional development;

(5) dismissal or severance pay; and

(6) retirement benefits.

Subsection 2(a) is qualified by subsection 2(c) of the Equal Job Opportunities Act which states, “There is no discrimination under this Act, when it is required by the nature or character of the task or the position.” Regarding the burden of proof in claims filed under the Equal Job Opportunities Act, Section 9 states:

Burden of Proof: 9(a) In an action filed by a prospective employee or an employee filing a claim under Section 2, the employer must prove that he acted in accordance with Section 2 when:

[(1)]Regarding hiring, promotion, working conditions, professional development, severance pay - if the employer established conditions or qualifications, and the employee proves that he or she fulfills the said requirements;

[(2)]Regarding dismissal - if the employee proves that his conduct did not amount to grounds for dismissal.

12. In this case, the Petitioner has proven, as the National Labor Court determined, that her salary was 35% lower than that of Mor – a male employee who performed the same task as the Petitioner. Given the circumstances and the fact that the Respondent did not justify the disparity under Section 6 of the Equal Pay Act, the Petitioner successfully proved her claim under the Equal Pay Act. The question in this case is now whether the disparity automatically gives rise to the conclusion that the Petitioner was discriminated against unlawfully by the Respondent (regarding her salary) because of her gender under Section 2(a) of the Equal Job Opportunities Act. To decide this, we must look to the purpose of each law to determine the relationship between them.

13. Both the Equal Pay Act and the Equal Job Opportunities Act were enacted for the purpose of advancing equality in the workplace by prohibiting an employer from discriminating on the basis of irrelevant or illegitimate considerations. The principle of equality and the prohibition against discrimination is an essential principle in our legal system and is a prerequisite for any democracy based on fairness and justice. As Justice M. Landau noted with regards to the principle of equality, “This notion, which is unwritten, is the essence of our entire constitutional system of law.” HCJ 98/69 Bergman v. Minister of Finance and State Comptroller [1969] IsrSc 23(1) 693, 698. This Court has upheld this principle on more than one occasion, and has even determined that this principle enjoys constitutional protection. See HCJ 6427/02 The Movement for Quality Government in Israel v. The Israeli Knesset [2006] IsrSc 61(1) 619, 688 - 89 (2006). Regarding the essence of this principle and the prohibition of discrimination in our system of law, then-Deputy President A. Barak stated:

[P]eople are different from one another. ‘...No person is completely identical to another’…Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination — which is the opposite of equality — exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society.... Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness.

HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz [1994] IsrSc 48(5) 749, 760 - 61.

The principle of equality and the prohibition of discrimination have been applied in different ways in the labor market, and have been explicitly mentioned in labor legislation. This is because of the presumption that labor relations is one of the main areas of society in which members of certain groups in society are prone to unjust discrimination affecting their economic and social status on the basis of unjustified stereotypes or prejudices. Preventing discrimination in the labor market will therefore prevent unjust prejudice based on assumptions which are irrelevant to the position in question. Furthermore, it stands to reason that in the long run, a ban on discrimination in the labor market, as has been implemented, will undermine stereotypes and prejudices that largely form the basis for illegal discrimination in society. As then-Justice E. Matza appropriately states,

[D]iscrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks.

See HCJ 453/94 The Women’s Lobby v. The Minister of Transportation [1994] IsrSc 48(5) 501, 524 (henceforth, “In Re The Women’s Lobby”). In order to achieve these objectives and prevent illegal discrimination, the two statutes at issue here restrain an employer’s general right to contract and limit his discretion in managing his business.

14. The Equal Pay Act was enacted to decisively combat one of society’s greatest expressions of illegal discrimination, namely, compensating men and women differently for the same, or substantially the same, task or for a job of equal value. The statute was first enacted in 1964 and then reenacted in 1996. Section 1 of the Equal Pay Act explains the law’s purpose,

Purpose: 1. The goal of this law is to advance the principle of equality and prevent gender discrimination with regards to wage or any other aspect of the workplace.

The right to equal pay arises when the employees perform the same, or substantially the same, task or one of equal value. The law establishes a legal presumption of gender discrimination when there is a difference in salary between a male employee and a female employee. It is important to note that despite the amount of time that has passed since the law was enacted, gender discrimination with regards to wages is, unfortunately, still in practice. A 2010 Knesset survey, released by that National Center for Statistics on September 7, 2011 stated that women earn on average 66% of what men earn a month and 84% of what men earn per hour. See http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=201115219.

Furthermore, it is important to note that lower wages is only one method of discrimination against women in the labor market. Others include not hiring women, sexual harassment, the inadequate representation of women in senior positions and the mistreatment of pregnant women and mothers. Throughout the years, the Knesset has attempted to deal with these various expressions of gender discrimination whether through the two laws at issue in this case or by other pieces of legislation (see, e.g., The 1951 Equal Rights for Women Act, the 1954 Women in the Workplace Act, and the 1998 Law Against Sexual Harassment in the Workplace). This Court has also acted to protect the rights of women and to prevent discrimination against them (see, e.g., HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSc 42(2) 221; In Re The Women’s Lobby; HCJ 2671/98 The Women’s Lobby in Israel v. The Minister of Labor and Welfare [1988] IsrSc 52(3) 630). Regarding the laws in place to advance equality between men and women we quote the words of then-Justice M. Cheshin in HCJ 2671/98 at 657 - 58:

We reviewed statutes and established rules based on our interpretation of the law. The common denominator of these rules was and is the pressing social need to recognize the equal status of women and to strengthen this notion of equality. These laws are progressive and the rules are no different. When seen from afar, these laws and rules may seem strange and indirect, but I assume that a day will come when these laws will seem like child’s play, laws which are praised by the great ones of today. Here we have a woman's right to "equal pay for the same job" as per Section 2 of the Equal Pay Act, does this law not state the obvious? Does it matter whether 500 boxes are packed by a man or a woman? Was this legislation not obvious and self evident even before its enactment? Had this law not been passed would we have not established it as a rule stemming from the (constitutional) principle of equality? The same can be said about the Equal Job Opportunities Act. There is no law which states that which we already know, namely that it is wrong to discriminate against women for no reason other than her gender. This can be said for these two laws and any other law enacted with the same purpose. These statutes have been enacted solely to explain illegal discrimination which has taken root in society, and the instructions therein are only to spell out to the masses what norms should prevail. The legislator explicitly warns us of the need to eliminate illegal acts that have taken hold and place women in the place they should have been in to begin with. The legislator has not declared new norms that are not self evident, rather, it has taken its time to spell out what exactly our legal and societal norms should be. After having done that, the legislator correctly sanctions anyone who violates the law. These laws are like rays of light, and the light in this case is equality, or, more specifically, gender equality in all matters. If we go from one ray of light to another, the doctrine of equality will reveal itself in all its glory.

Unfortunately, even today, the second decade of the 21st century, we still need legislation to protect women from gender discrimination. I would have hoped that today we would be in the era in which these laws would be, as Justice Cheshin described, “child’s play;” however, this era is still far, perhaps even very far, away from us.

15. The Equal Job Opportunities Act is broader than the Equal Pay Act and was enacted to deal not only with gender discrimination, but with other forms of discrimination as well (such as age, sexual orientation, race and religion). Likewise, the purpose of the Equal Job Opportunities Act is to prevent discrimination not only in pay, but in other aspects of the workplace as well (like hiring, work conditions and promotions). These two statutes have different definitions for what constitutes illegal discrimination. The Equal Pay Act looks to the end result by requiring only a showing of difference in pay between a male employee and a female employee in order to have a successful claim. Under Sections 2 and 6 of the Equal Pay Act, the labor court adjudicating such a claim must see if there is a difference in salary between the female plaintiff and a male employee to whom she is comparing her salary and who performs the same, or substantially the same, task or a one of equal value. Once this is successfully established, the burden of proof shifts over to the employer to prove that the difference in salary is justified under Section 6(a) of the Equal Pay Act. As President Adler pointed out in his decision, the list provided in Section 6(a) is not exhaustive. However, any considerations not listed in Section 6(a) of the Equal Pay Act must be of the same kind as those listed and must be ones that demonstrate a difference in the “nature or the character” of the job in question. If the employer cannot meet his burden of proof, the court must conclude that the plaintiff has a valid claim under the Equal Pay Act.

I must note that I cannot accept the opinion of Judge Wirth-Livnah - who on this point was a lone opinion – arguing that the employer’s freedom to contract is a consideration which may, under certain circumstances, justify a difference in salary between a male employee and a female employee, even when it is not in the framework of one of the considerations listed in Section 6(a). Through the considerations outlined in Section 6(a), the legislature determined what the balance should be between the freedom to contract and the protection of equality by listing relevant considerations which can justify a difference in salary between a male and female employee performing the same task. Due to the importance of the principle of equality in our legal system and the need to prevent unjust gender discrimination, I believe that the freedom to contract cannot, on its own, be a legitimate consideration justifying a difference in wage between a male and female employee. Recognizing the freedom to contract by itself as a legitimate defense to a claim of gender discrimination may lead to its utilization as a fig leaf to cover up real discrimination, completely undermining the purpose of the Equal Pay Act. Allowing this as a defense ignores the fact that there are actual gaps between the genders in the labor market with regards to salary demands and salary negotiation. See Sharon Rabin-Margaliot, The Market Explanation to Wage Differences: In Light of the Home Center (Do It Yourself) Ltd. v. Orit Goren, 50 HaPraklit 501, 512 – 20 (5770) (henceforth, “Market Explanations”).

In order to deal with the difficulty women have in the labor market, the legislature decided to limit the employer’s freedom to contract in order to advance the principle of equality. In the absence of any other considerations affecting the worker in question (as outlined in Section 6 of the Equal Pay Act), the employer may not differently compensate a male and female employee who are performing the same task. Therefore, the legislature made a value judgment to limit the contractual freedom of an employer in order to reduce gender discrimination in the labor market. To further this goal, taking into account the imbalance of power inherent between employees (especially females) and employers, the legislature lightened the burden imposed on the employee-plaintiff by shifting the burden of proof onto the employer under Section 6 of the Equal Pay Act. Accepting the idea that the freedom to contract may justify a wage gap is contrary to the fundamental purpose of the Equal Pay Act, which is reducing the impact of gender discrimination on market forces in determining the salaries of women.

Additionally, I reject the argument of Judge Wirth-Livnah according to which allowing the right to equal pay to supersede the freedom to contract will cause employers to avoid hiring women. By instituting such a policy, an employer will violate the Equal Job Opportunities Act, which prohibits an employer from considering gender in making personnel decisions. Such an employer would be liable to both civil and criminal penalties. Therefore, the method by which we can prevent gender discrimination in the labor market is by enforcing the laws in place to that effect and not by avoiding these laws by taking into account market conditions.

16. Unlike the Equal Pay Act, a claim under the Equal Job Opportunities Act requires the plaintiff to establish causation. Illegal discrimination under the Equal Job Opportunities Act is discrimination committed “because of” the plaintiff’s identity as a member of a protected class. In order to prove a claim of discrimination under the Equal Job Opportunities Act, a plaintiff must prove that the employer acted discriminatorily when making one of the employment decisions listed in Section 2(a) of the Equal Job Opportunities Act. We must point out that the Equal Job Opportunities Act does not require the plaintiff to prove the defendant acted intentionally to be successful in her claim.

Regarding a policy requiring different retirement ages for men and women, Justice G. Bach stated:

I am prepared to assume that Petitioner's employer did not intend to discriminate against [the petitioner] and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

HCJ 104/87 Nevo v. National Labor Court, IsrSc [1990] 44(4) 749, 759.

Therefore, an employer taking into account one of the considerations listed in Section 2(a) of the Equal Job Opportunities Act when making an employment decision can trigger liability. Even without any intent to discriminate, taking into account an employee’s gender, age, religion or any of the other protected classes listed in Section 2(a) of the Equal Job Opportunities Act is prohibited, unless the nature or character position in question reasonably requires such discernment as provided by Section 2(a) of the law. Furthermore, in light of the difficulty in proving that the employer took into account the employee’s membership in a protected class in making a personnel decision, Section 9 of the Equal Job Opportunities Act allows the employee to merely prove that he or she meets the qualifications of the position in question in order to shift the burden of proof onto the employer to rebut the claim of discrimination and prove that his decision was not based on any illegal consideration. See HCJ Rehearing 4191/97 Recanat v. National Labor Court [2000] IsrSc 54(5) 330, 351 – 52; Sharon Rabin-Margaliot, The Elusive Case of Employment Discrimination – How to Prove its Existence, 44 HaPraklit 529, 539 – 43 (5758 - 5760).

In short, in a claim filed under the Equal Pay Act, one needs to establish that there is a difference in salary between herself and a male employee performing the same (or substantially the same) task (or a task of equal value), and if the employer cannot prove that the difference in salary is justified, the plaintiff will be successful. However, to file a claim under the Equal Job Opportunities Act, the plaintiff must prove that the employer took into consideration the plaintiff’s membership in a protected class when making the employment decision in question. In other words, the Equal Pay Act creates a legal presumption of discrimination if the plaintiff can prove that there is a difference in salary between her and a male employee and the employer cannot legally justify the difference. Such a legal presumption does not exist under the Equal Job Opportunities Act, and therefore, the burden upon a plaintiff in such a claim is much heavier. However, the Equal Job Opportunities Act does not require proof that the employer intended to discriminate, only proof that there is causation between the employer’s consideration of the plaintiff’s membership in a protected class under Section 2(a) and the employment decision in question.

17. Another important distinction between the Equal Pay Act and the Equal Job Opportunities Act is the remedy prescribed by the legislature for the violation of the laws. Under the Equal Pay Act, punitive damages may not be awarded, and Section 8(a) of the law limits the time in which an affected employee can file a claim for back pay to 24 months. By contrast, under Section 2 of the Equal Job Opportunities Act, a labor court may, pursuant to Section 10(a)(1) of the law, award damages as it sees fit given the circumstances, even in the absence of any proof of loss. These damages serve as a deterrence and are not available under the Equal Pay Act. Under Section 10(a)(2) of the Equal Job Opportunities Act, a labor court may even, under certain circumstances, issue an injunction or a direct order if it determines that a monetary award is not sufficient. Additionally, under Section 15(a) of the Equal Job Opportunities Act, a person in violation of the statute may be fined up to double the fine established by Section 61(a)(3) of the 1977 Penal Code.

18. The purpose of the Equal Pay Act is to deal with one of the more common expressions of gender discrimination in the workplace; therefore, the plaintiff has a considerably lighter burden of proof. However, the law limits the damages that can be awarded in such a case. The purpose of the Equal Job Opportunities Act is to deal with different types of discrimination that affects different classes of people and requires proof of causation between the illegal consideration taken into account and the employment decision in question. Additionally, the Equal Job Opportunities Act permits an award of damages even without any proof of economic damages on the part of the plaintiff and allows for punitive measures to be taken against the discriminating employer.

19. In this case, the Petitioner’s claim under the Equal Pay Act is not in question considering the salary difference between her and Mr. Mor who performed the same task as the Petitioner. The issue we must decide is whether this claim is enough for the Petitioner to also have a claim under the Equal Job Opportunities Act. The majority opinion in the National Labor Court decided this question in the negative, when determining that it is not one of the circumstances in which a plaintiff can shift the burden of proof over to the employer in accordance with Section 9 of the Equal Job Opportunities Act. The National Labor Court determined that in order to shift the burden, the plaintiff must bring evidence that the employer discriminated against or treated his employees unequally. Furthermore, Judge Wirth-Livnah determined that the employee must provide evidence adequately demonstrating discrimination on the part of the employer. The mere fact that the plaintiff has a successful claim under the Equal Pay Act does not fulfill this requirement.

By contrast, the dissenting opinion of President Adler held that a successful claim under the Equal Pay Act suffices to create a prima facie case of discrimination under the Equal Job Opportunities Act. Because the employer could not successfully rebut the claim of the employee under Section 6(a) of the Equal Pay Act, it stands to reason that the cause for the pay difference is the employee’s gender. We will now determine whether this is so.

20. In light of the differences between the two laws, a successful claim under the Equal Pay Act will not automatically trigger a claim under the Equal Job Opportunities Act. Each statute is meant to safeguard against different forms of discrimination in the workplace; each have different ways of testing whether discrimination has occurred; and each provide for different penalties for their respective offenders. It seems, therefore, that allowing for the laws to overlap would be inconsistent with the respective purposes of the statutes and the problems they are designed to address. The Equal Pay Act deals with one common example of gender discrimination in the workplace and the cause of action created by the law fits this type of discrimination. This cause of action is not the same as that of the Equal Job Opportunities Act, which sets a higher bar for establishing a successful claim against an employer and relates to various types of employment decisions. However, the Equal Job Opportunities Act recognizes, so to speak, the difficulty an affected employee may have in demonstrating the considerations taken into account by the employer, and allows, under certain circumstances, for the burden of proof to be shifted over to the employer to prove that he did not act out of wrongful discrimination. The question is, what is the evidentiary minimum necessary to shift the burden of proof over to the employer under the Equal Job Opportunities Act, and whether a successful claim under the Equal Pay Act fulfills this requirement.

21. Section 9 of the Equal Job Opportunities Act deals with the circumstances by which a plaintiff may shift the burden of proof over to the defendant. Under Section 9(a), the burden may be shifted if the plaintiff can prove that he fulfills the conditions and requirements set by the employer to be considered for the employment decision in question. The burden placed upon the plaintiff is relatively light. A close reading of Sections 2 and 9 of the Equal Job Opportunities Act leads to the conclusion that a plaintiff claiming discrimination on the basis of his membership in one of the protected classes listed in Section 2 must prove that he fulfills the conditions and requirements set forth by the employer for the employment decision in question in order to shift the burden onto the employer to prove that his decision was not influenced by any wrongful considerations.

22. The circumstances established by Section 9 of the Equal Job Opportunities Act are only one example of where the burden of proof may be shifted, and I accept the argument made by the Equal Opportunities Commission that there may be other circumstances in which the burden of proof may be shifted as well. Because the question of whether or not the employer discriminated against the plaintiff is not necessarily related to whether or not the employee was fit for the position in question, Section 9 of the Equal Job Opportunities Act is not a complete list of methods by which a plaintiff can shift the burden of proof. Therefore, in light of the difficulty in proving the considerations of the employer in making his decision, it stands to reason that the burden should be shifted in a case where the employee can prove that the employer had discriminated against him in the past. Furthermore, because of the power imbalance inherent in an employer/employee relationship, the burden upon the plaintiff should not be particularly high. Hence, the establishment of a prima facie case of discrimination will depend on the independent circumstances of each case.

Therefore, I do not believe that the opinion of the National Labor Court requiring the plaintiff to prove discrimination on the part of the employer, as is the opinion of the National Labor Court, is correct. As will be explained below, it is sufficient for the plaintiff to prove that there is a significant wage gap between her and a fellow male employee in order to shift the burden of proof to the employer under the Equal Job Opportunities Act.

Additionally, the plaintiff can also shift the burden by demonstrating a policy of discrimination on the part of the employer based on the criteria outlined by Section 2 of the Equal Job Opportunities Act. The evidence provided may have the same effect if it can prove that the result of any decision or policy undertaken by the employer has a discriminatory effect, even if it is not based on one of the prohibited considerations. The evidence the plaintiff must provide in order to meet the requirements of this evidentiary test must relate to the relationship between the employer and the plaintiff employee in comparison to the employer’s relationship with the other employees who are not members of the same protected class as the plaintiff. The evidence should also compare the employer’s behavior towards employees who are members of the plaintiff’s protected class to his treatment of employees who are not members of the class in question. Once the plaintiff has successfully demonstrated disparate treatment, the burden of proof will shift onto the employer to prove either that the disparity in treatment stems from the nature of the position under Section 2(c) of the Equal Job Opportunities Act, or that it stems from a reason unrelated to any of the illegal considerations listed in Section 2(a) of the Equal Job Opportunities Act. It is important to note that the Equal Job Opportunities Act explicitly lists the considerations which an employee may not take into account when making certain employment decisions. If he can prove that the discriminatory result was not based on any wrongful considerations, he will successfully establish that he did not discriminate “because of” any wrongful considerations. As President Barak stated regarding age discrimination in the Recanat Further Hearing:

As a general rule, the burden of proof is imposed upon the employee-plaintiff claiming discrimination. This burden is met when the plaintiff proves that the employer mandates retirement when employees reach a certain age (this is direct discrimination). The burden may also be met by establishing that a regular practice of the employer results in age discrimination (this is indirect discrimination). In the first case, it is enough to prove that company policy dictates different retirement ages for different workers. Proving the existence of such a rule, irrespective of the position of the employee, will prove the existence of discrimination “because of” age. In the second case, the official policy is indiscriminate and does not mandate different retirement ages for different employees. However, the requirements of the job set by the employer effectively results in different retirement ages for different employees. By establishing this practice, the employee meets his burden of proof demonstrating the existence of discrimination “because of” age. Needless to say, such a case is only indirect, but enough proof to show that the employer discriminates “because of” age (Section 2(a)). At this point, a court must determine whether the difference in retirement ages is a result of the nature of the position in question (Section 2(c)). The burden of proof will shift to the defendant (usually the employer, see Section 9(a) of the Equal Job Opportunities Act) to prove this is the case. Note that with regards to the substantive law, whether discrimination exists is linked to the nature of the job in question. In terms of the procedural law, a distinction is made regarding the burden of proof.

FH 4191/97 Recanat, IsrSc 54(5) at 351 - 52.

23. Regarding the issue at hand, I have come to the conclusion that a successful claim under the Equal Pay Act suffices to fulfill the evidentiary threshold necessary to shift the burden of proof over to the employer in a claim filed under the Equal Job Opportunities Act. Once the plaintiff has proven that a male coworker receives a higher salary while performing the same, or substantially the same, task or one of equal value in the same workplace, and the employer cannot justify the difference in salary based on the nature of the task performed (under Section 6 of the Equal Pay Act), the plaintiff will have established a prima facie case of gender discrimination. Note that there is no dispute with regards to the understanding that Section 2(a) of the Equal Job Opportunities Act forbids an employer from taking into account the gender of an employee when determining her salary. When an employee successfully establishes a claim under the Equal Pay Act, the implication is that she was discriminated against by her employer on the basis of her gender, which is demonstrated by the wage gap between her and a male employee, which could not be adequately justified by the employer under Section 6(a) of the Equal Pay Act. These circumstances will shift the burden of proof onto the employer to prove that the wage gap is a result of the nature of the position in question under Section 2(c) of the Equal Job Opportunities Act or that the reason for the difference in salary is unrelated to any of the considerations prohibited by the Equal Job Opportunities Act. In other words, the employer must prove that there is no causal relationship between the wage gap and the gender of the employee, and thus, the difference in salary is not “because of” the plaintiff’s gender. If the employer can successfully prove that the plaintiff’s gender was not taken into account when determining her salary, the plaintiff will not have a successful claim under the Equal Job Opportunities Act. By contrast, if the employer cannot meet his burden of proof, the court will have no choice but to determine that the employee-plaintiff has a valid claim under both the Equal Pay Act and the Equal Job Opportunities Act.

24. In the case before us, it is undisputed that the Petitioner has a successful claim under the Equal Pay Act. Given the circumstances, the burden of proof now shifts over to the Respondent to prove that there is no causal connection between the gender of the Petitioner and the 35% difference in salary between her and Mor, meaning that her gender was not taken into consideration when determining her salary. The factual background outlined by the district labor court indicates that the Respondent successfully proved that there is no general company policy regarding pay which results in discrimination against women; however, it did not provide the salaries of the other workers working in the tool department of the Ramat Gan branch, which is where the Petitioner worked. This information is important in light of the fact that at the time, individual salaries were not determined by the Respondent’s corporate administration, but rather by the managers of each individual branch. Therefore, the only claim of the Respondent is that the reason for the Petitioner’s lower salary is because of the fact that she asked for a lower wage when negotiating her salary (the Petitioner asked for NIS 3,500/month, while Mor requested NIS 6,000/month; the Petitioner was given a salary of NIS 17/hr – which equals NIS 3,264/month – and Mor received a salary of NIS 5,000/month).

An employer proving that the salaries of his workers is a result of negotiations between the parties and that he treats both male and female employees the same with regards to their salary will meet his burden of proof under the Equal Job Opportunities Act, so long as he can demonstrate a company policy regarding wages that is uninfluenced by gender or any of the other classes protected by Section 2(a). When wages are negotiated by the parties, we cannot necessarily say that the employee’s gender was taken into consideration or that the employee was discriminated against “because of” her gender, though whether the inherent inferiority of the employee was taken into consideration by the employer is a factor, among others, that must be taken into account by the court. Moreover, it is important to note that in this case there may be a difference between a claim filed under the Equal Pay Act which merely tests whether there is a difference in salary between male and female employees, and whose purpose is to deal with, among other things, the weaker bargaining power of women in the job market and a claim filed under the Equal Job Opportunities Act, which tests the legality of the considerations taken into account by the employer when making employment decisions (including salary decisions). Compare The 1954 Women in the Workplace Act, and The Equal Job Opportunities Act; HCJ 554/05 Ashkenazi v. Police Superintendent [2005] IsrSc 60(2) 299, 306. To quote the words of S. Rabin – Margalit:

The Equal Job Opportunities Act is based on causation. A successful plaintiff will need to prove that the employer took a wrongful consideration – the fact she is a woman – into account when determining her salary. The causation element must be proven, in other words, she must prove that the reason her salary is lower is because she is a woman. As has been mentioned, the Equal Pay Act is not based on causation. Therefore, there may be instances in which liability exists under the Equal Pay Act, but not the Equal Job Opportunities Act. In those instances in which a difference in salary between male and female employees is established, but it cannot be proven that the employees’ gender was the cause, or one of the causes, influencing the difference in pay, there will be liability pursuant to the Equal Pay Act, but not necessarily under the Equal Job Opportunities Act. This would explain why the Equal Pay Act was enacted in 1996, despite the fact that the Equal Job Opportunities Act, which also prohibits discrimination with regards to wages, had already been in effect for almost a decade (1988).

Rabin-Margaliot, “Market Explanations” at 504 - 05.

Furthermore, the more significant the difference in pay between a male and a female employee, the more significant the burden of proof upon the employer to show that the employee’s gender was not a consideration in determining what to pay her, and that the only reason for her lower salary is because she asked for a lower one during salary negotiations. In other words, employee differences in bargaining power may explain differences in salary; however, the more significant the difference, the more difficult it will be for the employer to prove that the difference is wholly based on the employees’ bargaining power and not even partially based on a consideration prohibited by Section 2(a) of the Equal Job Opportunities Act. Additionally, because the Petitioner did not provide evidence to its effect in the district labor court, I should note that I am not answering the question of whether the practice of salary negotiation is one that (indirectly) discriminates against women.

25. In this case, due to the significant difference in salary between the Petitioner and Mor, the claim that the Petitioner asked for a much lower salary is not good enough of a claim on the part of the Respondent to meet his burden establishing that the Petitioner’s gender was not taken into account when deciding how much to pay her. When there is a 35% difference in salary between a male and female employee performing the same task and the Respondent cannot provide a relevant consideration justifying the pay difference, the claim that there was a difference in their respective salary requests is not strong enough to absolve the employer under the Equal Job Opportunities Act. Proving this claim without any other evidence on the part of the employer is not enough to rebut the presumption that the Petitioner’s gender was taken into account when deciding her salary.

Additionally, as the district labor court held, the fact that the Respondent does not have a policy which results in discrimination is a consideration that can be taken into account when determining the amount of damages to be awarded under the Equal Job Opportunities Act. However, this has no bearing on the proof of the claim itself, once we have determined that the plaintiff’s salary is to be measured against the employees working at her branch and not the general pool of employees working for the Respondent.

26. Therefore, we rule in favor of the Petitioner, and overturn the decision of the National Labor Court. The Petitioner has a valid claim under the Equal Job Opportunities Act in light of the gender discrimination and the Respondent’s failure to meet his burden of proof. Additionally, any obligation the Petitioner may have to return the compensation she received from the Respondent under the Equal Pay Act is void. However, I would not award any damages to the Petitioner under the Equal Job Opportunities Act, due to her delay in filing her petition and her attorney's request that the determination of damages that the Petitioner may be entitled to be left to the discretion of this Court. Also, I see no reason to take a position regarding the damages she was awarded by the district labor court. This means that the Petitioner’s reliance on the decision of the National Labor Court means that the Respondent need not compensate her under the Equal Job Opportunities Act. Thus, any obligation the Respondent may have towards the Petitioner under the Equal Job Opportunities Act is void.

Finally, because of the delay in filing her petition, we will not award any costs or attorney’s fees to the Petitioner.

The President (Ret.)

Justice I. Amit

I concur and would like to add the following:

1. The decision of the National Labor Court is not appealable and can only be reviewed by this Court as a petition to the High Court of Justice, similar to a petition regarding the decision of a Rabbinical Court. Since this case involves a petition and not an appeal, the Respondent cannot claim that the plaintiff’s delay in filing makes the decision of the National Labor Court absolute barring the High Court of Justice from hearing the case. However, because filing a petition is the only remedy available, someone requesting that the decision of the National Labor Court be reviewed should do so soon after the decision is handed down. The extensive case law behind the issue of dismissal for claims not immediately filed, some of which were quoted by President Beinisch in paragraph 10 of her opinion, deal with administrative decisions, while this case involves a judicial decision. (As a side point, the distinction between different types of decisions is covered in Section 15(d) of the Basic Law: The Judiciary. Section 15(d)(2) authorizes the High Court of Justice to issue orders to authorities and public officials, Section 15(d)(3) authorizes the Court to issue orders to other courts, tribunals and other bodies and individuals who act out of judicial or quasi-judicial authority. Section 15(d)(4) authorizes the Court to issue orders to religious courts.) As a general rule, I believe that this Court should show restraint when so much time has passed from the time of the original decision in another court. This Court should exercise its power of review only in rare situations such as where it is discovered, after the fact, that the decision of the National Labor Court has broad ramifications unforeseen at the time of the decision, or where there is a strong public interest justifying a hearing despite the time lapse. See HCJ 3514/07 Mivatchim Mossad LiBituach Sociali Shel Ovdim Ltd. v. Feurst [May 13, 2012] at Para. 28 (unpublished). I should add that this case should not be viewed as precedentially groundbreaking.

2. Regarding the main issue of this case, I agree with my colleague that a successful claim under the Equal Pay Act will not necessarily be successful under the Equal Job Opportunities Act. This can also be inferred from the language of Section 6(a) of the Equal Pay Act:

Section 2 does not prohibit a difference in salary or other compensation stemming from the nature of the work involved, including quality of work, seniority, training or education, or geographical location of the workplace, so long as there is no discrimination on the basis of gender (emphasis added – I. A.).

It is not enough for the employer to provide a relevant justification for the difference in salary; we must examine the justification provided to ensure that the justification is not a cover for gender discrimination. Similarly, if the employer cannot justify the difference in pay, it does not necessarily mean that the difference is due to gender discrimination. The issue of discrimination is to be examined within the framework of the Equal Job Opportunities Act and not the Equal Pay Act.

In short – the plain language of the laws themselves, the difference in how the claims are defined by the respective laws, the different purposes of the laws, the need for establishing causation under the Equal Job Opportunities Act, the different remedies provided, and the need for the Equal Pay Act to be enacted after the Equal Job Opportunities Act was already in effect, despite the fact that not compensating two employees equally can lead to claim of illegal discrimination in “work conditions” – all point to the conclusion reached by my colleague.

3. As mentioned in Section 6(a), an employer can justify a pay difference based on the nature of the task being performed; however, pre-employment salary negotiations are not included in this exception. See Rabin-Margaliot, “Market Explanations” at 503.<<this is the format for imbedded citations in English>> Women ask for lower salaries for different reasons, some of which perpetuate the reality in the workplace and stereotyping for which the Equal Pay Act was put in place in order to fix. Expanding the list of justifications listed in Section 6(a) by recognizing the negotiating patterns of the employer and his freedom to contract as additional justifications for pay differences between men and women is not evident in the plain language of the law and can lead to an incorrect interpretation of the law. In other words, in Section 6(a) the legislature formulates a balance in the form of a limited list of justifications involving the nature of the job in question. Expanding this list may cause a law meant to protect equally to widen the gap between men and women or lend legal legitimacy to discriminatory practices. Cf. Guy Mundlek, Are Anti-Discrimination Laws Doing Their Job? in Is The Law Important? A Series of Books in Memory of Haim Y. Zadok, 223, 228 (2010)).

4. This case illustrates the lack of overlap between the two laws and why a successful claim under the Equal Pay Act does not necessarily mean there is an automatic claim under the Equal Job Opportunities Act. While the different wage demands of the Petitioner and Steven Mor do not constitute a justification under Section 6(a) of the Equal Pay Act, it does not fall into the realm of wrongful discrimination under Section 2(a) of the Equal Job Opportunities Act, because the pay difference does not stem from the gender of the two workers, but from the different wage demands. I should also note that the Equal Job Opportunities Act requirement to prove causation makes it harder on the plaintiff, which is the advantage of the Equal Pay Act in this case.

Justice Amit

Justice N. Hendel

I agree with the impressive ruling and overall reasoning of my colleague, President D. Beinisch. I would like to strengthen the conclusion that the disparity in bargaining power among employees cannot justify the difference in pay, especially where the disparity is so significant. The radical feminist approach provides further support for our conclusion. This approach determines the status of women in the workplace based on their relative strength in a gender biased society. This approach does not focus solely on women who have made it to the top of the social ladder; it emphasizes the difficulty of all women, especially those far down from the top of the social or economic pyramid –.. According to this approach, the number of female CEOs and Knesset members may blind us, although not deliberately, from the more subtle forms of gender discrimination. As my colleague the President noted, due to the 35% difference in pay, the fact that the Petitioner was willing to work for a lower salary does not prove that she did not experience inequality. However, this fact reflects the relative bargaining positions of the Petitioner and the employer, and mainly the Petitioner’s bargaining position vis a vis other male employees. According to the radical feminist approach, the reason she requested a relatively low salary is a result of the social debasement of women with regards to their professional aspirations and stature in the labor market. Catherine MacKinnon, “Reflections on Sex Equality under Law,” 100 Yale L.J. 1281, 1298 (1991); see also Heidi Hartmann, Capitalism, Patriarchy, and Job Segregation by Sex, 1 Signs 137, 167 – 68 (1976)). As Prof. Catharine MacKinnon, one of the prominent advocates identified with the radical feminist movement, states:

In money economies, income means survival; its treasure and resources also contribute to freedom, human flourishing, enjoyment of life's possibilities. From a social standpoint, income also provides an index of relative social worth…

Without pay equity, sex equality means little in capitalist societies in an increasingly capitalist world. Catherine MacKinnon, Sex Equality 178 (2007).

In other words, income in market economies is equal to survival, freedom, personal prosperity and the ability to enjoy the range of possibilities that life offers. Without equal pay, gender equality loses its meaning in an increasing capitalistic world. For many of us, income is a measure of social status. Even those who disagree with this assertion will agree that job security and level of income are connected to and certainly affect human dignity.

Additionally, relative bargaining power not only highlights the differences between men and women, but also that of other protected classes in society.

In this case, it was proven that an employee, performing the same task as the Petitioner for the same employer, received a higher salary with no relevant justification. It seems that my colleague, the President, has adopted a balanced solution based on existing legislation. The Petitioner must prove that she was discriminated against “because of” her gender. Shifting the burden of proof onto the Respondent to establish that he did not take into account any wrongful considerations – in this case, gender – when deciding how much to compensate her, provides the employer with an “equal opportunity” to disprove the allegation. It is within the ability of the employer, in terms of his position and power, to show that he did not take into account any wrongful considerations when determining wages. In this case, the Respondent did not produce evidence proving its justification that it is the store’s policy to determine salaries based on the salary expectations of the employees. The Respondent, therefore, did not meet his burden of proof. In this sense, the law creates an overlap between the evidentiary standard and the substantive law under the Equal Job Opportunities Act. The burden shifting requirement pursuant to Section 9(a) of the Equal Job Opportunities Act fits well within the imbalance of power between the employee-claimant and the employer who must prove the absence of discrimination.

Justice Neal Hendel

Decided as per the opinion of President D. Beinisch (Ret.)

25 Iyyar 5772 (17 May 2012)

Full opinion:

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/11/580/017/n05/11017580.n05.pdf

Golan v. Prisons Service

Case/docket number:

PPA 4463/94

Date Decided:

Sunday, August 25, 1996

Decision Type:

Appellate

Topics:

Golan v. Prisons Service.pdf

Freedom of Expression

Criminal Law

Prisons Ordinance

Abstract:

Facts: The appellant asked the respondent for permission to publish articles about prison life in a local newspaper. The respondent refused. The appellant filed a petition in the District Court against this refusal, but his petition was rejected. Leave was given to appeal the District Court’s decision to the Supreme Court.

Held: (Majority opinion — Justices E. Mazza, D. Dorner) The respondent has a duty to uphold human rights, and it must make reasonable efforts and devote reasonable resources to do this.

(Minority opinion — Justice M. Cheshin) The respondent’s argument that it is not its task to censor newspaper articles is reasonable, and in view of the character of the appellant and his behaviour in the past, the respondent cannot reasonably be expected to rely on the appellant’s undertaking to restrict himself to writing only about himself. The likelihood that allowing the appellant his desire will lead to infractions of prison discipline is not remote. In view of the very difficult task faced by the prison authorities, they should be allowed a broad discretion in deciding questions of prison order and discipline.

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

Voting Justices:

Mazza, Eliahu

Primary Author

majority opinion

Cheshin, Mishael

Author

dissent

Dorner, Dalia

Author

concurrence

Full text of the opinion:

PPA 4463/94

Avi Hanania Golan

Prisons Service

The Supreme Court

[25 August 1996]

Before Justices E. Mazza, M. Cheshin, D. Dorner

Appeal with leave on the judgment of the Tel-Aviv–Jaffa District Court (Justice A. Even-Ari) on 15 July 1994 in MP 142/94.

Held: (Majority opinion — Justices E. Mazza, D. Dorner) The respondent has a duty to uphold human rights, and it must make reasonable efforts and devote reasonable resources to do this.

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

Basic Laws cited:

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 2, 4, 8.

Statutes cited:

Knesset Elections Law (Amendment no. 17), 5746-1986.

Prisons Ordinance [New Version], 5732-1971, ss. 1, 42, 43, 47, 56, 56(41), 62A, 71-72F, 131A, 132.

Regulations cited:

Prisons Regulations, 5738-1978, rr. 18, 19, 20, 24A, 24B, 25-34, 33, 49, chap. 5.

Israeli Supreme Court cases cited:

[1] HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[2] CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[3] HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[4] PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[5] HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[6] HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[7] CA 5942/92 A v. B [1994] IsrSC 48(3) 837.

[8] CrimApp 7223/95 — unreported.

[9] HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[10] HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[11] CA 105/92 Re'em Contracting Engineers Ltd v. Upper Nazareth Municipality [1993] IsrSC 47(5) 189.

[12] HCJ 243/62 Israel Filming Studios Ltd v. Geri [1962] IsrSC 16 2407l IsrSJ 4 208.

[13] CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Company Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30.

[14] HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.

[15] HCJ 6218/93 Cohen v. Israel Bar Association [1995] IsrSC 49(2) 529.

[16] HCJ 215/59 Geller v. Minister of Interior [1959] IsrSC 13 1703.

[17] HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

[18] HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[19] HCJ 96/80 Almalabi v. Prisons Service [1980] IsrSC 34(3) 25.

[20] HCJ 157/75 — unreported.

[21] HCJ 454/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[22] CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[23] HCJ 881/78 Mutzlach v. Damon Prison Commander [1979] IsrSC 33(1) 139.

[24] CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[25] HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[26] HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.

[27] HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[28] HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [1996] IsrSC 50(2) 822.

[29] HCJ 453/94 Israel Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[30] HCJ 7111/95 Local Government Centre v. The Knesset [1996] IsrSC 50(3) 485.

[31] HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [1994] IsrSC 48(2) 1.

[32] HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [1995] IsrSC 49(5) 751.

[33] HCJ 399/95 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

Magistrates Court cases cited:

[34] CrimC (TA) 7036/92 — unreported.

American cases cited:

[35] Procunier v. Martinez 416 U.S. 396 (1974).

[36] Coffin v. Reichard 143 F. 2d 443 (1944).

[37] Brown v. Peyton 437 F. 2d 1228 (1971).

[38] Pell v. Procunier 417 U.S. 817 (1974).

[39] Jones v. North Carolina Prisoners’ Union 433 U.S. 119 (1977).

[40] Bell v. Wolfish 441 U.S. 520 (1979).

[41] Turner v. Safley 482 U.S. 78 (1987).

[42] Thornburgh v. Abbot 109 S. Ct. 1874 (1989).

[43] Milwaukee Pub. Co. v. Burleson 255 U.S. 407 (1921).

[44] Nolan v. Fitzpatrick 451 F. 2d 545(1971).

Jewish law sources cited:

[45] II Kings 4, 8-10.

For the appellant — D. Yakir.

For the respondent — Y. Shefer, Senior Assistant to the State Attorney.

JUDGMENT

Justice E. Mazza

This is an appeal with leave on the judgment of the Tel-Aviv-Jaffa District Court (Justice A. Even-Ari), in which a prisoner’s petition filed by the appellant (a prisoner at Ashmoret Prison) against the refusal of the respondent (the Prisons Service) to allow him to publish a personal column or articles written by him in the local newspaper Mid-Netanya was denied.

Basic background

2. The appellant is a prisoner currently serving terms of imprisonment to which he was sentenced after he was convicted in two trials: in the first trial the appellant was convicted of the offences of fraud, forgery, impersonation and escape from lawful custody. For these offences, he was sentenced (at the end of 1988) to six years imprisonment and was also given a suspended sentence. This was the fourth substantial term of imprisonment to which the appellant was sentenced; he has a string of past convictions for many offences of the same kind. After the appellant began to serve this term of imprisonment, the appellant escaped from lawful custody, and while he was outside the prison, he proceeded to commit additional offences of fraud. When he was caught, he was brought to trial once again and was convicted of escaping from lawful custody and of the other offences that he committed during the period of the escape. For his conviction on these offences, he was sentenced to an additional term of imprisonment and the suspended sentences were activated. The total term of imprisonment that the appellant was sentenced to serve, under the two sentences, amounts to ten and a half years, starting on 18 November 1988. The appellant served his first year of imprisonment at Ashkelon Prison. Afterwards, he was transferred to Ashmoret Prison, and since then he has been imprisoned there. Because of activity in which he was involved in the past, the appellant was classified as a prisoner in need of maximum protection. Therefore he has been imprisoned, throughout his imprisonment, with a few prisoners of this type, in conditions of isolation from all the ordinary prisoners.

3. In 1989, while he was a prisoner at Ashkelon Prison, the appellant sent several articles that he wrote to a local newspaper Mikol Makom, which is published in Ashdod. In these he described prison life. The articles were published, and the owner of the local paper (the management of the newspaper Yediot Aharonot) even made a payment to the appellant as the author. In January 1994, the appellant asked the respondent to allow him to publish in the local newspaper Mid-Netanya a personal column, or a series of articles, about life at Ashmoret Prison. His request was refused. The appellant filed a petition against the refusal in the District Court, under section 62A of the Prisons Ordinance [New Version], 5732-1971. But the District Court saw no reason to intervene in the respondent’s decision, and it denied the petition. Now we have before us an appeal, which was filed after leave was duly given.

Disputes as to questions of fact

4. Two of the appellant’s contentions, in his petition before the District Court, raised a factual dispute. The District Court held that the appellant did not prove either of the two contentions, but the court did not ascribe much importance to this finding; in any event, it is clear that it was not because of the appellant’s failure to prove either of the said contentions that the court decided to deny his petition. I think it advisable to remove these disputes from my path at the outset, since in my opinion too they are unimportant for the purpose of the decision.

5. The first dispute concerned the question whether, for the publication of his articles in the local newspaper Mikol Makom (while he was still a prisoner at Ashkelon Prison), the appellant obtained permission from the respondent. The appellant argued that Mr Johnny Tester, who was spokesman of the Prisons Service at the relevant time, gave him permission to send articles for publication in this local newspaper. However, shortly afterwards, without any reason being given for this, the permission was revoked, and then he was compelled to stop sending additional articles. The respondent, which denies this contention, based its position on the fact that in the appellant’s personal file at the Prisons Service no documentation was found on the subject of granting the alleged permission. The Court gave the appellant time to file an affidavit in support of his aforesaid contention, but notwithstanding the time that was given him for this purpose, the appellant did not file any affidavit. The District Court concluded from this omission that the appellant had not proved his contention.

I wonder whether, in the circumstances of the case, the decision with regard to this contention should have been based on the appellant’s failure to file an affidavit in support thereof. Did not the appellant name the person at the Prisons Service who, according to him, gave him (and later revoked) the permission; I do not understand what prevented the respondent from ascertaining what this person had to say on the matter. But for the purpose of the proceedings, I will assume that the trial court was correct in its conclusion that the appellant did not prove his contention. What does this imply? In circumstances different from those in our case, I would indeed have inclined to attach some importance to this conclusion. Admittedly, as a rule it is correct to presume that a prisoner, who takes the law into his own hands and acts without permission from the Prisons Service, in a matter which, under the law applying to prisoners, requires permission to be granted, is likely to be found unworthy of receiving the permission, even if according to the ordinary criteria he ought to have been given the permission he seeks. But this is not the case with regard to the appellant’s request. The respondent’s refusal to give the appellant the permission he recently requested was not based on the reason that several years ago (in 1989) the appellant took the law into his own hands, in that he sent articles for publication in the local newspaper Mikol Makom without obtaining permission. The respondent did not even claim that the publication of those articles escaped its attention. In any event, from correspondence between the appellant and the editor of local newspaper Mikol Makom, which was filed in the District Court, it appears that when the appellant was told, by a representative of the respondent, that he was not entitled to send additional articles for publication in the local newspaper, the appellant immediately desisted.

6. The second factual dispute between the parties concerns the question whether the local newspaper Mid-Netanya has any interest in publishing articles written by the appellant. The appellant’s contention was that recently, before he submitted his request to the respondent, he enquired and found that the local newspaper would be prepared to publish his articles. But the respondent claimed that it had not received any request from any newspaper that was supposedly prepared to publish articles written by the appellant. To prove his contention, the appellant summoned, as a witness on his behalf, the representative of the editor of the local newspaper. This journalist testified that she did not know the appellant. Notwithstanding, she confirmed that about three months earlier the appellant wrote to her with an offer of publishing articles about prison life. When she asked the editor of the newspaper as to her position, the editor advised her to interview the appellant, for the purpose of finding out about him before making a decision whether to publish his articles. According to her, she asked the director of the prison to allow her to interview the appellant. First she was told that ‘the matter was difficult’ and afterwards that the appellant had filed a petition and that, therefore, she should wait. Finally she was summoned to the court to testify, before she succeeded in holding the desired interview. On the main issue, she said that the editor of the newspaper treats the appellant like any new reporter offering material for publication.

Prima facie this testimony implies that the appellant did not sufficiently prove his contention that the editor of the local newspaper Mid-Netanya was indeed prepared to publish his articles. However, an affidavit filed by the respondent, given by its spokesman, obscured the issue. The affidavit stated that this journalist (the witness for the appellant) had already met the appellant in the prison, without stating in the affidavit when she visited, and whether this was before or after her appearance in the court. The affidavit also alleged against the witness that she received permission to visit the appellant and that she used the visit to interview him, without obtaining permission for this as required by the procedure regulating the conditions of meetings between journalists and prisoners. But whichever is the case, the question in dispute is unimportant. The decision as to the right of the appellant to send his writings for publication in a newspaper does not depend at all on whether the newspaper is interested or prepared to publish the material; moreover, it has certainly been proved that the local newspaper under discussion was prepared in principle to examine and decide whether the appellant’s articles merited publication.

The main disputes and the decision in the District Court

7. In his petition to the District Court, the appellant mainly based his position on the right of freedom of speech. The appellant argued that this basic right is shared also by someone who is a prisoner, and even he (while he is a prisoner) is entitled to realize it. In addition, the appellant relied also on his right of freedom of occupation. In this respect, he argued that his imprisonment in protective custody denies him the opportunity, which is available to other prisoners, of working and taking part in rehabilitation programmes. According to him, the possibility of writing and publishing his articles will improve his condition from various perspectives. In this way, he can give expression to his feelings and escape from the anguish of the remoteness and the isolation. Moreover, with the income that will be paid to him in return for his articles he will also be able to improve somewhat his standard of living in the prison.

8. The respondent, in its response to the petition, did not expressly deny the appellant’s contention that the right of freedom of speech is shared, in principle, also by prisoners. Notwithstanding, it based its case on its stated policy that as a rule contact should not be allowed between prisoners and journalists. In its view, it is possible to deviate from this rule only in rare cases where there is a manifest public interest in permitting such contact, or when the contact occurs within the framework of press tours initiated by the Prisons Service. On the question whether the appellant has the right of freedom of occupation, the respondent chose to address the matter on a specific level only. The appellant, it argued, cannot be allowed to engage in journalism. Such an occupation, which involves an external employer, can be allowed only within the framework of the rehabilitation plans designed for prisoners. The appellant, as a prisoner requiring protection, does not meet the criteria that determine the degree of suitability for rehabilitation; it necessarily follows that it is impossible to allow him to engage in work, apart from work carried out in full within the prison.

The respondent further argued that the appellant is a persistent offender and therefore cannot be trusted to give a faithful account in his articles of what happens inside the prison. In this context, it was stated that on the two occasions when he succeeded in making contact with journalists, the appellant abused these contacts. First, in 1987, after he escaped from a previous term of imprisonment, the appellant was interviewed by the newspaper Yediot Aharonot. In this interview, which was published in the newspaper under the headline ‘Gangsters run the prison’, the appellant gave false descriptions about what allegedly happened in the prison. On another occasion, the appellant telephoned various journalists from the prison and gave them unfounded reports about the preferential treatment of the Prisons Service authorities to the prisoner Ahmed Yassin; the appellant did this even though he did not know this prisoner at all and never met him. As a result of the report, many journalists contacted the spokesman of the Prisons Service and the governor of the relevant prison and asked them to comment on the information in their possession. As the Prisons Service discovered afterwards, it was the appellant who made contact with the journalists and gave them the false report. In view of this experience, the respondent argued, there are grounds for concern that the appellant — wittingly or even unwittingly — will cause harm by his articles to the Prisons Service, the safety of other prisoners and also his own safety, and the reputation of prison warders and other staff. Moreover, giving the appellant a higher profile, because of his publications in the media, will give him a special status vis-à-vis the prison warders and other prison staff. These, fearing that they will be harmed by him, will be deterred from carrying out their duties and exercising their authority towards him. The authority of those in charge will be diminished, discipline will become lax and the running of the prison will be disrupted. Furthermore, the appellant, who is classified as a prisoner in need of protection, is guarded carefully. By becoming prominent among the prisoners, as a result of his access to publications in the media, he may increase the degree of personal risk to which he is exposed.

The appellant tried to calm the respondent’s fears. He therefore gave notice that he undertook not to write about anyone other than himself, but to speak in his articles only about his personal life in the prison. He also declared that he was aware and agreed that all his articles would be scrutinized by the respondent before they were sent to the editor of the newspaper, and that the respondent would be entitled to disqualify any article whose content, in his opinion, might disrupt the running of the prison, the safety of the prison warders or the prisoners or the reputation of any of them. The respondent’s reply to this was that the task of examining articles was outside the scope of his duties, and that doing this was, from his viewpoint, totally impossible.

9. In deciding the petition on its merits, the learned judge considered two conflicting interests: the right of the appellant, as a prisoner, to freedom of speech, against the need to maintain order and security in the prison. The trial judge did not address the broader issue, namely whether the stated policy of the respondent in refusing prisoners contact with the media and speaking to the media, is a policy that reflects a proper balance between the two aforesaid interests. For the judge it was sufficient to determine that in the case of the appellant there was nothing wrong in the respondent’s decision. It would appear that the judge thought (although he did not say this expressly) that it was not reasonable to require the respondent to check the appellant’s articles in order to ascertain that their content did not arouse any fear of harm to the running of the prison, discipline, security and additional values. This led, so it seems, to the finding that ‘giving [the appellant] the right of free access to the media would allow him to acquire considerable power’ (emphasis supplied). Later, referring to the judgment of the Magistrates’ Court in the most recent of the appellant’s trials, in which the appellant’s uncontrollable criminal inclination was described, the judge also found that ‘giving a person like the [appellant] the opportunity of acquiring such power will have serious ramifications on the running of the prison’. In the circumstances of the case — the judge concluded — the decision not to allow the appellant to have contact with the newspapers is a reasonable decision.

The arguments in the appeal

10. Learned counsel for the appellant argued before us that the respondent’s refusal to permit the appellant to publish his writings in a local newspaper that is prepared to publish the work is a violation of the appellant’s freedom of speech and his freedom of occupation, and it violates his human dignity. These basic liberties, which are enshrined in the Basic Law: Human Dignity and Liberty, belong to the appellant even when he is a prisoner. Restricting them is permitted only to the extent that is required by the penalty of imprisonment, or according to the accepted rules for imposing such restrictions. The freedom of speech of a prisoner, like the freedom of speech of a free citizen, can be restricted only when there is an almost certain danger of real harm to public welfare or security. In its all-embracing fear that the appellant — wittingly or unwittingly — will publish remarks that will harm the running of the prison and the welfare of the prison warders and the prisoners, the respondent does not show an almost certain danger of such harm, and it does not even comply with less strict tests, such as a real fear or a reasonable possibility of such harm. The respondent’s desire to prevent the publication of criticism of the Prisons Service, or prison conditions, does not justify imposing a prior prohibition of any speech on these subjects. Even the concern for harm to the reputation of a prison warder, or a prisoner, does not justify imposing such a prohibition. This is particularly so in our case, in view of the appellant’s consent to restrict his writings solely to his impressions and experiences of prison life; his undertaking not to refer in his articles, personally, to any of the prison staff or prisoners; and his consent, ab initio, that the respondent may, at its sole discretion, not send to their destination any articles that breach any of these conditions. Counsel for the appellant also argued that, in the circumstances of the case, the appellant should be allowed to exercise also his right of freedom of occupation. Admittedly, as a rule, it is true that the imprisonment of a person prevents him from exercising his right to this freedom in the ordinary sense. However, the appellant merely asks to be allowed to send his writings for publication, whereas the work of writing will be carried out inside the prison. Therefore it is argued that the fact that the appellant is a prisoner requiring protection, or unsuited for rehabilitation programmes that are the only framework in which prisoners are able to work outside the prison, should not have any influence on the considerations leading to the decision on his request.

11. Counsel for the respondent argued that a prison sentence not only denies a person his freedom of movement and thereby restricts his ability to realize his right to personal liberty, but it also prevents him from being able to exercise other basic liberties that he has. Somewhat differently from its position before the trial court, the respondent conceded before us that the fact of imprisonment, in itself, does not deprive the prisoner of those basic liberties that he has, when the imprisonment does not necessitate his being deprived of them. Notwithstanding, it argued that the ability of a prisoner to realize these and other liberties should be restricted to the degree required in order to enable the respondent to carry out the duties imposed on it vis-à-vis the public: to protect the safety and security of all prisoners, to maintain order, discipline and security in the prisons; and to ensure the welfare and security of the staff and prison warders serving in the prisons. The appellant’s desire to publish articles in a newspaper is indeed based on his right to freedom of speech, but recognizing the appellant’s right to do this involves a danger of harm to the running of the prisons, the safety and security of other prisoners and the safety and security of staff and prison warders. Although the respondent recognizes the right of the appellant to express in writing his impressions from his stay in the prison, it regards it as its duty to prevent him from publishing these. Granting the appellant’s request will give him, vis-à-vis both prisoners and warders, a status of a ‘journalist’, and the great power embodied in such a special status may disrupt the discipline that must be maintained in the prison. There is also a fear that the appellant will write and publish things that may incite the prison population, cause disputes between prisoners, or endanger the safety or the reputation of prison warders and other prison staff.

Counsel for the respondent further argues that the appellant may exercise his right to correspond with addressees outside the prison only within the framework of the arrangements set out in the special law for the correspondence of prisoners — in other words, within the framework of the stipulated quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., one every two months), the appellant may send letters also to various newspapers. The appellant is also entitled, like every prisoner, to put his claims in writing (against prison conditions) in applying to various official bodies: the courts, members of the Knesset and the State Comptroller. The respondent does concede that it is no longer the practice to enforce the permitted quota of prisoners’ letters, and that in practice they are permitted to write more than the quota (something which under regulation 19 of the Prisons Regulations, 5738-1978, constitutes one of the benefits that the director of the prison is authorized to allow some or all prisoners). But with regard to the appellant, who wishes to publish articles about prison life, the respondent intends to exercise its authority to the full. Under regulation 33 of the Prisons Regulations, the respondent is authorized to open and examine every item of mail sent by a prisoner and to prevent it being sent to its destination if it is found to contain information that is likely to harm prison security or discipline, or that makes it possible to identify a person, whether a prisoner or a warder, in circumstances in which such information may harm that person or the running of the prison. The respondent says that it is its intention to examine the appellant’s mail and it intends not to allow the sending of letters (or articles to newspapers) that include harmful information. Counsel for the respondent did clarify in his arguments that the respondent’s fears were aroused by the intention of the appellant to send articles to the newspapers about prison life; in other words, had the appellant asked for permission to send articles that he wrote to the newspaper on other subjects, it is most likely that the respondent would have seen no reason to deny him this.

The respondent further argues that even the appellant’s reliance on freedom of occupation cannot give him a right to receive the desired permit. The violation of freedom of occupation is necessitated by his very imprisonment and the conditions of his imprisonment. As a prisoner, the appellant can ask to be employed, but only within the framework of the accepted procedures for the employment of prisoners of his category. Publishing a regular column or articles in a newspaper, in return for payment, constitutes, de facto, working for payment outside the prison. The appellant is not entitled to claim for himself such a freedom of occupation; what is more, the appellant does not meet the suitability requirements for rehabilitation programmes, and it is only within the framework of these that prisoners may be allowed to work outside the prison.

A prisoner’s human rights

12. It is established law in Israel that basic human rights ‘survive’ even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law. As Justice Elon said in one case:

‘It is a major rule of ours that each one of a person’s human rights, as a human being, is retained by him even when he is under arrest or imprisoned, and the fact of imprisonment alone cannot deprive him of any right unless this is necessitated by, and derives from, the loss of his freedom of movement, or when there is an express provision of law to this effect…’ (HCJ 337/84 Hukma v. Minister of Interior [1], at p. 832).

See also the decision in CrimApp 3734/94 State of Israel v. Azazmi [2], at p. 81, also given by Vice-President Elon.

The basic assumption is that the human rights ‘package’ of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is ‘inherent’ to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law. Take the basic human right not to suffer physical harm without one’s consent, which was discussed by Justice Barak in HCJ 355/79 Katlan v. Prisons Service [3], at p. 298:

‘The right to physical integrity and human dignity is also a right of a person under arrest and a prisoner. Prison walls do not separate the prisoner from human dignity. Prison life naturally requires a violation of many liberties enjoyed by the free man… but prison life does not require someone under arrest to be denied his right to physical integrity and protection against a violation of his human dignity. A person under arrest is denied freedom; he is not deprived of his humanity. Performing an enema on a person under arrest without his consent and not for medical reasons violates his physical integrity, tramples his privacy and violates his dignity as a human being… therefore, in order that the prison authorities may perform an enema without the consent of the arrested person, and thereby justify the criminal offence and civil tort of assault, they must point to a provision of statute that allows them to do this.’

But the existence of a power is insufficient. As with any administrative decision, the decision of the authority in charge of prisoners must be reasonable and based on relevant considerations and logical reasons. In other words, even when an express provision of statute gives the authority to violate a human right of a prisoner, the authority may not make use of its power before it examines the matter and is persuaded that, in the circumstances of the particular case, there are real reasons that justify depriving a prisoner of his right or restricting it. Take a person’s human right to choose the type of medical treatment that the person thinks appropriate. This is a natural right that derives from the basic human right of a person to protect his physical and mental integrity and well-being. A person is not denied this right as a result of imprisonment; a violation of this right by the authority in charge of the prisons is possible and permissible only on the basis of an express provision of law and the existence of reasons that justify the violation. As Justice Elon said in PPA 4/82 State of Israel v. Tamir [4], at p. 206:

‘This basic right of a person to his physical and mental integrity and well-being and to choose the medical treatment that he thinks appropriate for preserving them is retained by a person even when he is under arrest or in prison, and the mere fact of imprisonment does not deprive him of any right unless this is necessitated by the actual loss of his freedom of movement, or when there is an express provision of law to this effect. Consequently, when the prison authorities wish to deny the person under arrest or the prisoner of this right, they have the burden of proving and justifying that denying this right is for good reasons and is based on law’ (emphasis supplied).

It is not superfluous to emphasize that suspending a prisoner’s ability to exercise any of his other liberties (except for his right to freedom of movement) is always relative, not absolute. This rule applies not only to those liberties that the prisoner can exercise without necessarily having freedom of movement, but also to those liberties that he can exercise only with this freedom. What is the significance of a prisoner also retaining a right of the latter kind? The significance is that the prisoner has an opportunity to argue that, within the framework of the restrictions required by the imprisonment, he should be allowed to exercise, if only in part, this right too. As an example, let us again consider the right of a person to choose the type of medical treatment he thinks appropriate. Even a prisoner has this right, and by virtue thereof he may prefer to receive medical advice and treatment other than those offered to him by the Prisons Service. But the imprisonment suspends his ability to realize this right, since he does not have freedom of movement. It follows that in practice, and as a rule, the prisoner will indeed be compelled to be satisfied with the medical treatment given to prisoners in the prison. However, suspending his ability to exercise the right of choice that he has is not absolute, but relative; in appropriate circumstances, his request, that he be allowed to exercise his right, is likely to be treated sympathetically. This is the case, for example, when the treatment requested by him is of a type that can be given to the prisoner even inside the prison, and there are no objective reasons that justify refusing him this (see State of Israel v. Tamir [4], at p. 213).

13. In determining the extent of the protection given to the human rights of a prisoner, we must take into account, in addition to the considerations concerning general or special interests, also considerations concerning the imprisonment and the duties imposed on the Prisons Service: the needs of guarding all the prisoners; maintaining order and discipline in the prisons; protecting the rights and safety of other prisoners; the education and rehabilitation needs of prisoners; protecting the safety and the rights of staff and prison warders in charge of running the prisons, and protecting the safety of the prisoners imprisoned in them. The extent of protection of a prisoner’s human rights derives from the necessary balance between the right and other interests, of the individual or the public, which in the circumstances of the case must be taken into account. The premise is that the right deserves protection and should be respected. Denying the right, restricting it or violating it are permitted only on the basis of objective reasons that have a basis in law. ‘The greater the right that is violated, the greater the reasons required to justify this violation’ (per Justice Elon in State of Israel v. Tamir [4], at p. 212). With regard to several basic human needs, which prisoners require, the tendency is not to permit any violation, and these needs include ‘not only the actual right of the prisoner to food, drink and sleep, but also minimal civilized human arrangements as to the manner of providing these needs’ (per Justice Elon in HCJ 114/86 Weil v. State of Israel [5], at p. 492); see also what was said in State of Israel v. Azazmi [2], at p. 82). Everyone agrees that ‘a person in Israel, who has been imprisoned (or arrested lawfully), has the right to be imprisoned in conditions that allow civilized human life’ (per Vice-President H. Cohn in HCJ 221/80 Darwish v. Prisons Service [6], at p. 538); only ‘very serious reasons’ (in the words of Justice Y. Kahan, ibid., at p. 542), such as the need to prevent a real danger to human life, may justify any deviation from the right to prison conditions that are considered essential. This is what happened in Darwish v. Prisons Service [6]: the decision of the Prisons Service that security prisoners should not be given beds but only improved mattresses was explained on account of the fear that they would dismantle the beds and use parts of them to harm warders and other prisoners. When it was ascertained that the fear was a real one and was based on past experience, the majority opinion saw no cause to intervene in the correctness of the decision. Notwithstanding, they ordered an investigation to be made for the purpose of ‘improving, in so far as possible, the quality of the sleeping arrangements of those prisoners whom the Prisons Service was compelled to deprive of their beds’ (per Justice Elon, ibid., at p. 546).

It follows that in determining the extent of the protection given to the human rights of the prisoner, the nature of the violated right is important, and ‘classifying the right according to the aforesaid criterion depends, to a considerable extent, on the attitude of society as to the character and fundamental nature of that right’ (per Justice Elon in Weil v. State of Israel [5], at p. 492). The premise is that a prisoner is entitled to the protection of all of his human rights; a violation of a prisoner’s human right, by the authority in charge of the prison, is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority. However, the more important and central the right being violated, the greater the weight it will be given within the framework of the balance between it and the conflicting interests of the authority. This approach has always guided our decisions. Today, after human rights in Israel have been enshrined in Basic Laws that have a super-legislative constitutional status, we have a greater duty to ensure, even more than in the past, that the human rights of prisoners are respected. Recognition of the constitutional status of human rights requires their practical application in their living conditions. Recognition of their role in ensuring this must guide all the organs of government. The courts have, in this context, a central role. As President Shamgar said in CA 5942/92 A v. B [7], at p. 842:

‘The constitutional message does not focus on the declaration of the existence of a basic right, but on the essence, degree and content of the realization of the right de facto.

Human dignity will not be guaranteed by speaking of it but by giving a real and tangible expression to its protection. In this, an important role is played by the courts that in their decisions must ensure de facto protection of human dignity, of equality, which is one of the elements of human dignity, and the protection of those persons who are unable to protect their dignity without the help of the courts.’

We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation (see CrimApp 7223/95 [8], per Justice Or). Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights. The remarks of Justice Barak in HCJ 540/84 Yosef v. Governor of Central Prison in Judaea and Samaria [9] are apt in this regard:

‘Indeed, imprisonment by its very nature necessitates a loss of freedom, but it cannot by its very nature justify a violation of human dignity. It is possible to have imprisonment that maintains the human dignity of the prisoner. The prison walls should not separate the prisoner from humanity… a prison may not become a concentration camp, and a prisoner’s cell may not become a cage. Notwithstanding all the difficulties involved, a civilized society must preserve a minimum human standard for prison conditions. It would be inhuman of us not to ensure a human standard for prisoners in our society. The objectives of criminal sentences cannot be achieved by violating the dignity and humanity of the prisoner.’

Freedom of speech of a prisoner

14. Freedom of speech is numbered among the basic liberties in Israel. Recognition of the status of freedom of speech as a basic right was established in Israel long before the enactment of the Basic Law: Human Dignity and Liberty. In HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [10], Justice Agranat gave freedom of speech the honorary title of a ‘supreme right’ (ibid., at p. 878 {97}). Since this important ruling was given, the ‘freedom of speech is an integral part of our legal ethos’ (per Justice Barak in CA 105/92 Re’em Contracting Engineers Ltd v. Upper Nazareth Municipality [11], at p. 201). The source from which this recognition sprang was case-law: it is one of the ‘basic rights that are “unwritten”, but which derive directly from the character of our State as a democratic State that aspires to freedom’ (per Justice Landau in HCJ 243/62 Israel Filming Studios Ltd v. Geri [12], at p. 2415 {216}). Later, however, Justice Shamgar emphasized that the character of freedom of speech ‘as one of the constitutional basic rights gives it a supreme status in law’ (CA 723/74 HaAretz Newspaper Publishing Ltd v. Israel Electric Co. Ltd [13], at p. 295 {243}). The Basic Law: Human Dignity and Liberty enshrined the case-law recognition of the constitutional status of freedom of speech. An express opinion to this effect was stated by Vice-President Barak in HCJ 2481/93 Dayan v. Wilk, Jerusalem District Commissioner [14] (see his remarks at p. 468 {336}); the same, I think, can be seen in the opinion of President Shamgar in HCJ 6218/93 Cohen v. Israel Bar Association [15]. This, with respect, is also my opinion. Admittedly, the Basic Law: Human Dignity and Liberty does not mention freedom of speech, nor does it define it expressly as a basic right. But this is immaterial: even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?

15. The constitutional basic right of freedom of speech is not taken away from someone when he is imprisoned; a prisoner has it even in his prison cell. As Justice Marshall rightly said (in Procunier v. Martinez (1974) [35], at p. 422): ‘A prisoner does not shed such basic First Amendment rights at the prison gate’. Notwithstanding, it is clear that imprisonment very significantly restricts the ability of the prisoner to exercise his freedom of speech, and the freedom of speech given to him is, in practice, much more restricted than the freedom of speech of a free citizen. Some of the restrictions on a prisoner’s freedom of speech are ‘inherent’ to the imprisonment. Exercising the right of freedom of speech is largely dependent on freedom of movement. Imprisonment distances the prisoner from the society in which he lived. Thus, he is deprived of the possibility of hearing and being heard by those persons or circles with whom he wishes to be in contact in order to exercise his freedom of speech. As a result of the imprisonment, he is also deprived of additional avenues of expression which he could have chosen and developed had he not been imprisoned. The prisoner has no protection against this restriction of his ability to realize in full his freedom of speech. The imprisonment to which he has been sentenced is intended to achieve sentencing objectives: to protect society from him, to deter him from further criminal acts, to reform him and rehabilitate him, and to deter also potential criminals. His removal from society, which results also in a reduction in the prisoner’s ability to realize his right of freedom of speech, is one of the main purposes of the imprisonment; moreover, this distancing is often essential also for achieving its rehabilitative objectives.

But the prisoner’s ability to exercise his freedom of speech is subject also to restrictions whose purpose is to further other unique interests, which are concerned with the proper management of the prisons: achieving the purposes of the imprisonment, maintaining security, order and discipline in the prison, protecting the safety of the prisoners and protecting the safety of prison staff and warders, etc.. These interests are also a part of imprisonment and derive from it, and protecting these also requires imposing restrictions on prisoners’ freedom of speech. These restrictions, which are the product of a deliberate decision of the authority in charge of managing the prisons, make further inroads on the prisoner’s (eroded) freedom of speech; these, to a larger extent than that required by his imprisonment and his loss of freedom of movement, change the normal balance to his detriment. Consider: the ‘normal’ protection of freedom of speech derives, of course, from the balance between the basic right of the individual to exercise this freedom and interests that are essential to society, such as national security and public safety, and other general and important values that the State is required to protect (see A. Barak, ‘Freedom of Speech and its Restrictions’, 40 Hapraklit (1991-92) 5, 13 et seq.); it should also be recalled that, in view of the importance and centrality of freedom of speech, the tendency is usually only to restrict it on the basis of a probability on the level of ‘near certainty’ that exercising the right may cause real harm to an essential interest of the State and the public. A violation of freedom of speech, which properly upholds this balance, is considered and accepted as permissible. This rule, which applies to all citizens, applies obviously also to prisoners. But the freedom of speech of prisoners suffers in two more ways; this is because in determining the extent of the protection of the prisoner’s right to freedom of speech we take into account — in addition to the normal protected interests — not only those restrictions that are a direct consequence of the actual imprisonment and the loss of freedom of movement, but also restrictions intended to further special interests involved in the proper management of the prisons. The additional restrictions imposed on prisoners’ freedom of speech are intended to assist the authorities in charge of the prisons in achieving these goals. The key question, in any decision in this matter, is, what are the proper limits of these restrictions? The question is merely a question of the proper balance between conflicting legitimate interests. How is this balance to be made? It is obvious that applying the norm in this field, as in any other field, is a matter for a decision based on judicial discretion. But what are the criteria for exercising discretion? And when will we say that a restriction on the freedom of speech of a prisoner is ‘reasonable’ in that it satisfies the balancing test?

A comparative perspective

16. The case-law of the United States Supreme Court has formulated, in this matter, several guidelines. Let us consider, in brief, the main points. Some of these may be of assistance to us.

The premise in American law — just like the accepted approach in Israel — is that prisoners, too, enjoy all constitutional rights; if the violation imposed on the constitutional right of a prisoner is unlawful, the prisoner is entitled, like any ‘normal’ citizen, to protection of his right. This was stated in one case as follows:

‘A prisoner retains all the rights of an ordinary citizen except those expressly, or by necessary implication, taken from him by law. While the law does take his liberty and imposes a duty of servitude and observance of discipline for his regulation and that of other prisoners, it does not deny his right to personal security against unlawful invasion’ (Coffin v. Reichard (1944) [36], at p. 445).

This conceptual approach has guided the courts also with regard to the issue of prisoners’ freedom of speech. But in the field of implementation, various approaches have appeared, some stricter and other more lenient. The strict approach has recognized a wide variety of interests that may establish a justification for imposing restrictions on this freedom. A concise summary of such interests, which apparently represents the stricter approach, can be found in the judgment of the Court of Appeals in Brown v. Peyton (1971) [37]. In that case, Justice Winter said, at p. 1231:

‘… in the case of prisoners incarcerated under lawful process, there are state interests to justify repression or restriction of First Amendment rights beyond the interests which might justify restrictions upon unincarcerated citizens. Prison officials have to confine dangerous men in unpleasant circumstances. They must protect the public at large, prison employees, and also other prisoners, who are almost totally dependent on the prison for their well being. Prison authorities have a legitimate interest in the rehabilitation of prisoners, and may legitimately restrict freedoms in order to further this interest, where a coherent, consistently-applied program of rehabilitation exists. Furthermore, many restrictions on First Amendment rights are undoubtedly justifiable as part of the punitive regimen of a prison: confinement itself, for example, prevents unlimited communication with the outside world but is permissible in order to punish and deter crime; additional restrictions may be imposed as part of the system of punishing misbehavior within prison. Finally, the state has an interest in reducing the burden and expense of administration. It may, for example, place reasonable restrictions on the number of publications received by each inmate in order to limit the burden of examining incoming materials. But the fact that interests of these sorts frequently arise does not excuse the necessity of a showing that they exist in particular cases.’

In several later cases, the United States Supreme Court examined the question whether regulations or administrative rules, which impose restrictions on prisoners’ freedom of speech, pass the test of constitutionality; in a few of these judgments, several criteria for deciding cases were established. In Procunier v. Martinez [35], which considered the constitutionality of censoring correspondence between prisoners and parties outside the prison, two conditions were laid down for permitting the violation: first, that the violation is necessary for furthering an important and substantial interest of the State, which is unrelated to the restriction of the freedom of speech; and second, that the extent of the violation of freedom of speech does not exceed the degree required to further the purpose for which it was imposed. In the words of Justice Powell, at pp. 413-414:

‘Applying the teachings of our prior decisions to the instant context, we hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or the practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Thus a restriction on inmate correspondence that furthers an important or substantial interest of penal administration will nevertheless be invalid if its sweep is unnecessarily broad. This does not mean, of course, that prison administrators may be required to show with certainty that adverse consequences would flow from the failure to censor a particular letter. Some latitude in anticipating the probable consequences of allowing certain speech in a prison environment is essential to the proper discharge of an administrator's duty. But any regulation or practice that restricts inmate correspondence must be generally necessary to protect one or more of the legitimate governmental interests identified above.’

The case of Pell v. Procunier (1974) [38], which was considered soon after Procunier v. Martinez [35], examined the constitutionality of the prohibition imposed on prisoners against being interviewed by the media. In this case, the court recognized the existence of additional grounds for permitting the violation of prisoners’ freedom of speech. The rule set out stated that —

‘A prison inmate retains those First Amendment rights that are not inconsistent with his status as prisoner or with the legitimate penological objectives of the corrections system, and here the restrictions on inmates’ free speech rights must be balanced against the State’s legitimate interest in confining prisoners to deter crime, to protect society by quarantining criminal offenders for a period during which rehabilitative procedures can be applied, and to maintain the internal security of penal institutions’ (ibid., at pp. 817-818).

What can be seen from a comparison of the two tests, in brief, is the following: according to each of the approaches a proper balance is required between the freedom of speech and the conflicting protected interest. The difference between them lies in the definition of the nature of the protected interests: are considerations of security, order and discipline or the rehabilitation of the prisoners the only ones that constitute ‘an important or substantial governmental interest’, which are capable of justifying imposing restrictions on the freedom of speech of a prisoner, or are interests arising from all the penological and criminal rehabilitation needs or involved in the needs of the proper management of the prisons (‘legitimate penological objectives of the corrections system’) capable of justifying imposing such restrictions? This issue was considered once again in Jones v. North Carolina Prisoners’ Union (1977) [39], which concerned the constitutionality of the prohibition imposed on meetings of the ‘Prisoners’ Union’, prisoners joining this union and correspondence between them and it; and in Bell v. Wolfish (1979) [40], which concerned the restriction of the right of prisoners to receive hard-cover books if these were not sent to them directly by the publisher or the book club.

The decision as to the proper test was given in Turner v. Safley (1987) [41], in which it was held (per Justice O’Connor) that the test of the constitutionality of the violation of a prisoner’s freedom of speech is whether it is ‘reasonably related to legitimate penological interests’ (see ibid., at p. 89). Relying on a synthesis of the previous case-law, this judgment delineated four main criteria, by means of which the constitutionality of the violation of a prisoner’s human right should be examined (see ibid., at pp. 89-92). For the sake of brevity, I will satisfy myself by quoting the brief synopsis of the remarks from the book of J. W. Palmer, Constitutional Rights of Prisoners (Cincinnati, 4th ed., 1991), at p. 37:

‘… (a) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral government interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational; (b) whether there are alternative means of exercising the asserted constitutional rights that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials’ expertise; (c) whether and the extent to which accommodation of the asserted right will have impact on prison staff, on inmates’ liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and (d) whether the regulation represents an ‘exaggerated response’ to prison concerns, the existence of a ready alternative that fully accommodates the prisoner’s rights at de minimis costs to valid penological interests being evidence of unreasonableness.’

The ‘rational connection’ test between the restriction imposed on the freedom of speech and legitimate goals in the field of the treatment of offenders and the proper administration of the prisons, which was delineated in Turner v. Safley [41], was adopted by the court in additional judgments (see, mainly, Justice Blackmun’s opinion in Thornburgh v. Abbot (1989) [42], in which it was held that a practice authorizing the prison authorities not to deliver to prisoners publications that were received for them, if they thought that the publications endangered the security of the prison, prima facie stood up to the constitutionality test.

The prisoner’s freedom of speech and the problems faced by the authorities

17. The penalty of imprisonment, which exists in Israel, and the method in which imprisonment is carried out de facto, are different from the ‘corrections system’ practised in the United States. But among the problems that concern the authorities in charge of the treatment of prisoners and the management of the prisons, in Israel and in the United States, there are also quite a few similar issues. There is no difficulty in determining that maintaining order and discipline in the prisons constitutes a legitimate interest of every State. This is certainly also the case in Israel. In so far as something is indeed required to prevent a danger to order and discipline in the prisons, this is sufficient to serve as a ground for restricting the freedom of speech of (some or all) prisoners. Also the need to rehabilitate prisoners — where the success of a rehabilitation programme depends on this — may prima facie justify imposing a similar restriction. With regard to all of these, we can find support, inter alia, in the ruling given in Procunier v. Martinez [35]. But I am prepared to accept that not only maintaining order and discipline in the prisons, but also other considerations deriving from the needs of ‘proper management’, in its wider sense, may sometimes justify imposing certain restrictions. Assuming this premise, and adapting the other elements accordingly, we can avail ourselves also of the criteria established in Turner v. Safley [41]. In this spirit, we can summarize that in order to justify a violation of a prisoner’s freedom of speech (and any other basic right), it is insufficient to show the existence of a conflicting interest that justifies a violation, nor even the existence of a regulation that permits a violation of the right, but it must also be shown that between the provision that allows the violation and the conflicting interest — on account of which it is proposed to violate the right — there is a logical connection and objective proximity. Remoteness or vagueness of the connection are a sign that the violation is unjustified. We must also consider specific questions of balance and proportion: does the extent of the violation of the right exceed the degree necessary for achieving the legitimate purpose that requires the violation? Does the provision that causes the violation leave the prisoner with alternative ways of enjoying his right, or what remains of it? Can the Prisons Service, by adopting reasonable steps within the framework of its limited resources, avoid or reduce the violation? The answer to each of these questions is likely to influence the decision on the question whether the statutory arrangement that allows the violation reflects a correct and proper balance.

Notwithstanding, it is important to emphasize that these rules are only guidelines. They are based on certain assumptions with regard to all the ethical questions that underlie them. They do not determine the weight that should be given to each of the conflicting interests. They do not determine the balancing point at which we should draw the line distinguishing between a permissible violation and a prohibited violation of a prisoner’s human right. The definition of the balancing point is not a matter for a technical decision, but for a judicial decision. This determination is the result of a value decision, based on considerations of social policy. Within the framework of its decision, the court is called upon to determine the relative weight of each of the conflicting interests and to mark the proper balancing point between them. The weight of the conflicting interests is not constant, and even the balance between them is liable to change. What was once correct and accepted is not necessarily correct now as well; and not everything that is acceptable to us and accords with our outlook is likely to be accepted and correct in a decade or two. We can illustrate this with an example from the past. Consider the right of prisoners to participate in elections for the Knesset. A petition to enable prisoners to exercise this important basic right was brought before the court at the end of the 1950s, but was denied on the ground that ‘it is inconceivable that this should be possible from a practical viewpoint, in view of the number of persons in the prisons, and the police forces that will be required for an operation of this kind…’ (HCJ 215/59 Geller v. Minister of Interior [16], at p. 1704). But another petition on the same issue, which was filed approximately twenty years later, resulted in a reversal. Admittedly, even on this occasion the court could not see a practical possibility of granting the relief sought by the petitioners; but this time it decided and clarified that the legislator and the authorities in charge of implementation should prepare themselves at an early date, from a statutory and administrative viewpoint, in order to enable prisoners and arrestees to exercise their right to vote (Hukma v. Minister of Interior [1]). And so, as a result of this judgment, the Knesset Elections Law (Amendment No.17), 5746-1986, was enacted, and this provides an arrangement that enables prisoners and persons under arrest to exercise their right to vote. This is a clear example of a change in ethical approach, which changed the relative weight of the conflicting interests and delineated a new balancing point between them (see the remarks of Justice Elon in Weil v. State of Israel [5], at pp. 492-493).

18. When balancing a basic right of a prisoner against a conflicting interest of the Prisons Service, the proper relative weight should be given to both side of the equation. The greater and the more important the right, the greater and more important must be the opposing interest that is required to overcome it. But the conflict is not always or necessarily symmetrical. Sometimes it will transpire that upholding the right of the prisoner is also beneficial to the public interest. Once again, consider the ability of prisoners to exercise their right to vote. No-one disputes that that this ability realizes an important part of freedom of speech. But the exercise of this right by the prisoner also furthers the goal of rehabilitation, from which not only the prisoner is likely to benefit, but also society. As Justice Elon said in State of Israel v. Tamir [4], at p. 212:

‘Not violating the rights of the prisoner, which he had before he was deprived of his freedom of movement, is in the interests of the prisoner, in order to preserve, in so far as possible, the connection between him and free society, from which he came and from which he is temporarily separated, by the prison walls; it is also in the interests of society, in order to further, in so far as possible, the rehabilitation of the prisoner and thereby to facilitate his return and reintegration into society, of which, even while he is in prison, he is a part.’

It need not be said that the rehabilitation of prisoners is also one of the legitimate interests entrusted to the Prisons Service. It follows that protecting the ability of the prisoner to exercise his right is not always or necessarily in direct conflict with these interests. But let us not ignore the main point: the main significance in recognizing the ability of the prisoner to exercise his right of choice lies in preserving the basic value of human dignity.

19. Let us return to basic principles. Protecting the freedom of speech, as part of human dignity, is the main guarantee for safeguarding the individual’s intellectual freedom. Within the framework of freedom of speech, man realizes his desires and aspirations that are part of his nature and that reflect his intellectual freedom: to be educated and acquire knowledge, to be involved in communal life, to hear the opinions of others and express his own views. Imprisonment denies the individual his freedom of movement, thereby imposing a serious restriction, not merely on his basic right to personal liberty, but on the practical ability to realize his intellectual freedom as he sees fit. Admittedly, imprisonment has no access to the inner sanctum of intellectual freedom — the ability of the prisoner to think, believe, and preserve his humanity. However, as we have already said (in paragraph 15 above), the ability of the prisoner to exercise his right to freedom of speech is far more restricted and limited than the ability of the free citizen. The (restricted) freedom of speech enjoyed by the prisoner should therefore be given the widest protection possible.

This approach is clearly reflected in case-law. Consider HCJ 144/74 Livneh v. Prisons Service [17]. In that case, the court set aside the decision of the prison governor not to allow (the petitioner in that case) to bring into the prison the writings of Marx, Engels, Lenin and Mao Tse-Tung. The governor based his decision on the fear that bringing these books into the prison would incite political arguments between the prisoners. In setting aside this ground, Justice H. Cohn said:

‘We commend the prison governor for being continually mindful of keeping the peace inside the prison. But it has never been said that in order to “keep the peace” he may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (ibid., at p. 689).

Further on, at p. 690, he added:

‘The prison governor has not been given authority to prohibit bringing books into the prison in order that he may choose, according to his taste, what a certain prisoner ought to read and what he ought not to read.’

It is still clear and obvious that the Prisons service has the power to prevent bringing books into the prison. What then is the criterion for deciding when he may exercise this power? This issue was answered by the court in HCJ 543/76 Frankel v. Prisons Service [18]. This petition challenged a decision of the prison governor not to allow two books to be brought in. The court saw no reason to interfere with the decision with regard to one of the books, which was found to contain inciting material. This was not the case with regard to the second book. The decision to forbid this book also was set aside. Vice-President Justice Landau, explained the distinction, and to establish the test he availed himself of the decision of the court in Livneh v. Prisons Service [17], which set aside a decision of the prison governor not to allow the writings of Marx, Engels, Lenin and Mao Tse-Tung to be brought into the prison. The following are the remarks of Justice Landau in Frankel v. Prisons Service [18], at p. 209:

‘Indeed, these writings urge revolution, but reading them does not amount to a near-certain danger to the peace that this court determined as the criterion in the leading decision of Justice Agranat in HCJ 73/53, Kol HaAm v. Minister of Interior. This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend’ (emphasis supplied).

In Frankel v. Prisons Service [18], as stated, the court saw no grounds for intervention in the decision of the prison governor not to allow a book with inflammatory material to be brought into the prison. ‘In the tense conditions that prevail in the prison’ — the judgment says, at page 209 — ‘a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions’. Once the book was found to contain inflammatory material, the court thought that the prison governor had broad discretion to act within the framework of his authority. It should be said that also in other cases where the court decided not to intervene in decisions that harmed the education or entertainment needs of prisoners, the decision was based on the recognition of the existence of security considerations. Thus, for example, in HCJ 96/80 Almalabi v. Prisons Service [19], no fault was found with a decision of the Prisons Service to prohibit prisoners convicted of security offences from having transistor radios. The reasoning underlying this decision was that a transistor radio in the possession of a prisoner convicted of a security offence could be used for transmitting broadcasts and messages that could lead to a breach of order and security inside the prison. The court saw no reason to intervene in the correctness of this consideration.

It follows that the prison authorities have the means that can impose restrictions on some possible expressions of intellectual freedom, but they are allowed to do this, usually and mainly, when there is a near certainty of real harm to public safety, or real harm to keeping the peace, order and discipline inside the prison. It is admittedly possible that, in the process of weighing up the matter, weight will also be given to other interests, which do not derive from security considerations or the need to maintain order and discipline, but which are concerned with the need for proper administration of the prisons in the broad sense (such as administrational efficiency, economy of resources, etc.). But taking into account the importance and centrality of freedom of speech, the relative weight of these additional interests is not great. In general, these alone will be insufficient to deny the right, and they may be considered only in determining the degree to which the prisoner will be allowed to exercise his right.

It need not be said that even when an authority has a solid reason for restricting the freedom of speech of a prisoner — i.e., when there is a real likelihood that the speech will harm public safety or endanger order and discipline in the prison — the authorities must still comply with the proportionality test, and may not violate the right of the prisoner more than is necessary to forestall the risk. The authority must remember that a violation of the freedom of speech of a prisoner is always a further violation, and it is particularly enjoined to resist the temptation of exercising its power unnecessarily or to an unnecessary degree. When it considers making use of this power, the person in authority in the Prisons Service would do well to be mindful of the remarks of Justice H. Cohn in Livneh v. Prisons Service [17], at p. 690:

‘… many evils, which are necessarily involved in prison life, are added to the loss of liberty. But let us not add to the necessary evils, which cannot be prevented, restrictions and violations that are unnecessary and unjustified. The powers given to prison governors to maintain order and discipline must be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without real justification.’

Freedom of speech in writing and publication

20. Writing is one of the more basic forms of speech. As Justice Holmes said:

‘… the use of mail is almost as much a part of free speech as the right to use our tongues… ’ (Milwaukee Pub. Co. v. Burleson (1921) [43], at p. 437).

Naturally, prisoners also have the right to express themselves in writing. The most common form is in the correspondence that the prisoner is entitled to have with his relations and friends. Our case-law has not yet considered the question of the right of a prisoner to express himself in the written media. But I see no reason to distinguish between this form of expression and other modes of expression available to the prisoner. The accepted criteria for restricting the freedom of speech of a prisoner are also appropriate for this form of expression. Note than I am not addressing the question whether prisoners should be allowed free and uncensored access to the media. Nor am I addressing the question whether the media should be allowed free and uncensored access to prisoners. I am considering only one possible channel of all the possible channels of communication between prisoners and the media: the right of the prisoner to send from the prison to a newspaper editor (or another branch of the media) a letter or an article intended for publication, when the prisoner does this in the same way and within the framework of the same restrictions subject to which he is allowed to send other letters.

We should point out that in the United States there is no doubt as to the right of the prisoner to write to the newspapers and even to write critically of the prison authorities and prison conditions. Moreover, the accepted approach there is that criticism of a prisoner about his prison conditions not only upholds the right of the prisoner to express himself publicly (through the media) about a matter that concerns him, but also the right of the public to know about what happens in State prisons, since what happens in the prisons is not open for inspection, and because of the natural tendency of the authorities that administer the prisons to hide from the public even their good intentions to improve the conditions that prevail there. A statement of this approach can be found in the remarks of the Court of Appeals in Nolan v. Fitzpatrick (1971) [44], at pp. 547-548:

‘We need not adopt the broad principle that a prisoner retains all First Amendment rights to conclude, as we do, that he retains the right to send letters to the press concerning prison matters. In so concluding, we rely primarily on the fact that the condition of our prisons is an important matter of public policy as to which prisoners are, with their wardens, peculiarly interested and peculiarly knowledgeable. The argument that the prisoner has the right to communicate his grievances to the press and, through the press, to the public is thus buttressed by the invisibility of prisons to the press and the public: the prisoners’ right to speak is enhanced by the right of the public to hear. This does not depend upon a determination that wardens are unsympathetic to the need to improve prison conditions. But even a warden who pushes aggressively for reforms or larger appropriations within his department and before appropriate officials and legislative committees may understandably not feel it prudent to push for more public laundering of institutional linen.’

The court was aware of the argument that publishing the letters of prisoners in newspapers, when the letters contained particularly harsh criticism of prison conditions, was liable to stir up passions among the prison population and create a near-certain danger of a violent outburst and a breach of prison security. In its response to this argument, the court went so far as to say that the way to deal with such an extreme danger was to prohibit bringing into the prison the issue of the newspaper that contains the dangerous publication, and not by refusing ab initio to send it for publication. As the court said, at p. 549:

‘The most that can reasonably be said is that, depending upon conditions in the prison when the letter or news story based on it returns to the prison, some particularly inflammatory letters may create a “clear and present danger” of violence or breach of security. In that extreme case, prison officials can cope with the situation by refusing to admit the dangerous issue of the newspaper to the prison rather than by refusing to mail the letter at the first instance.’

The authority may not censor a letter of a prisoner because its contents are uncomplimentary to the prison authorities, or even contain factually inaccurate information. This, it will be remembered, was discussed by the court in Procunier v. Martinez [35], at p. 413:

‘Prison officials may not censor prisoner correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements.’

Also in Pell v. Procunier [38] the court considered the broad right of a prisoner to send letters to the media. In Pell v. Procunier [38], the court found no defect of unconstitutionality in the regulation prohibiting prisoners from conducting face-to-face media interviews, but the prohibition was recognized as reasonable in view of the opportunity available to prisoners to write to the media, a method that was less burdensome than allowing newspaper journalists into the prison (see ibid., at p. 424).

Furthermore, counsel for the appellant argued that, according to the practice in force in Canada, prisoners are allowed to publish their writings in the press. As proof of this contention, he presented to us a series of eight items, written by a prisoner, which were published over a period of approximately two months in The Globe and Mail, which is published in Toronto. The contents of the articles (entitled ‘Life in Prison’) are a harsh criticism of the rehabilitation policy of the authority in charge of administering the prisons and of the effect of this policy on the lives of prisoners.

From the general to the specific

21. The appellant wishes to exercise his right of freedom of speech by publishing his writings in a local newspaper distributed in Netanya. The respondent, the Prisons Service, opposes the application. Do the considerations, upon which the respondent relies in its opposition, reveal a justification for preventing the appellant from publishing his articles in the newspaper? I believe that the answer to this question is no. Let us first say that the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences. In these circumstances, we are not required to decide that the appellant’s freedom of speech gives him a right to write in the press about the running of the prison and the life of prisoners as he sees fit. We are also not required to consider the question whether the interest embodied in the public’s right to know about prison conditions and what happens inside the prisons justifies restricting the authority and power of the respondent not to send a letter or article of a prisoner for publication merely for the reason that it contains criticism of prison conditions or of the Prisons Service. These questions deal with related issues from the field of freedom of speech: does the public’s right to know about what is happening in the prisons justify reducing the restrictions placed on the freedom of speech of prisoners? Does upholding the public’s right imply that the media should be given freer access to prisons and the possibility of communicating with the prisoners? These questions, which are significant in themselves, do not arise in this case and can therefore be left undecided. In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.

22. What, then, is the nature of the respondent’s opposition? Why does it interest him whether the appellant is allowed to send articles to the local newspaper, in the same way that he may send letters to whomsoever he wishes, and to describe in his articles (in the way that he can and is entitled to do in his letters) his life and experiences in the prison?

The respondent’s position is complex. On the one hand, it does not question the right of the appellant to write letters to the newspaper; and if the newspaper decides to do so, it can publish the appellant’s letters in the form of articles; however, the respondent says that the appellant is entitled to do this only within the framework of the quota of letters to which he is entitled under section 47 of the Prisons Ordinance [New Version] (i.e., sending one letter every two months). On the other hand, the respondent admits that as a rule it no longer enforces the quota of letters that prisoners may send. But it intends to enforce this with regard to the appellant. Its reason for this distinction is that in his writings the appellant intends to describe his life in the prison. Were it not for this, the respondent candidly says, it would see no reason to treat the appellant more strictly with regard to the quota of letters. According to the respondent, if the appellant wishes to write about general matters, it can and is prepared to treat him more liberally. In other words, the main reason for refusing the appellant’s request to be allowed to send his writings to the newspaper is not the writing itself, but the content of the writing. The respondent’s position is based on the fear that publication of articles on prison life will undermine the running of the prisons, cause a breach of discipline and endanger the safety and security of the staff and warders. The respondent sees reason for concern that the publication of articles about the appellant’s life in the prison will result in him being regarded by prison warders and prisoners as having the status of a journalist. Thus he would acquire power not enjoyed by other prisoners. This phenomenon would undermine discipline. It also believes that there is a fear that the appellant’s articles would stir up the prisoners and cause strife between them and the prison staff or amongst themselves. The appellant’s argument that the respondent can allay all these concerns by virtue of its authority to censor and disqualify written material that the prisoners send from the prison is dismissed by the respondent with the response that the task of examining the articles falls outside its duties and that doing this is, from its point of view, wholly impossible.

23. I cannot accept the respondent’s position. Had it based its position solely on the provisions of section 47 of the Prisons Ordinance [New Version], which determines the quota of letters that a prisoner is allowed, we would be required to interpret this provision in order to examine whether the prisoner’s right to correspond with the media is also limited to the same miniscule quota stipulated in the section (sending one letter every two months). However, the respondent admitted that the letter quota of prisoners is no longer strictly enforced. Already in HCJ 157/75 [20] it was stated that the respondent no longer acts de facto in accordance with the provisions of section 47, but ‘allows prisoners to write one letter every two weeks’. If the respondent does not even enforce this quota, it can only be commended for this. But the respondent cannot be allowed to make the argument that it does not enforce the letter quota for most prisoners, but it intends to enforce it vis-à-vis the appellant, and this not necessarily because of the appellant’s desire and request to send articles that he writes to a newspaper editor, but merely because he intends to devote his articles to describing his life in the prison. There is nothing improper in the subject of the letters; and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner. However, the respondent does not trust the appellant to keep his promise to act as he undertakes and declares he will act. I have no difficulty in understanding this. The respondent is neither expected nor required to rely upon the appellant’s word. It has clear authority — and no-one in this case disputes the validity of its authority — to examine and censor the appellant’s articles, and if it discovers that the contents of a particular article pose a danger, on the level of near certainty, to order or discipline, it can withhold the article and prevent it from being sent. The respondent says that this task falls outside its duties and that in practice it cannot perform it. I do not believe that the respondent may make the argument that examining the articles falls outside the scope of its duties, since the authority given to it under regulation 33 of the Prisons Regulations — ‘to open and examine any letter and any other document of a prisoner’ — shows that its duties include also the examination of such articles. Therefore I cannot agree with the learned judge that granting the application of the appellant will give him ‘free access to the media’, thereby ‘enabling him to acquire considerable power’. Subjecting the letters to the prior censorship of the respondent rules out the possibility that the appellant will have free access to any branch of the media. Under such conditions, there is no real basis for concern that the appellant will be able to ‘acquire power’.

24. I could, perhaps, have understood the respondent’s position had it been satisfied with the argument that a limit should be placed on the length or number of the articles that the appellant should be allowed to send to the newspaper. It is not for nothing that the respondent says that there it sees no practical possibility of examining the articles. This is simply because, in view of the many and burdensome tasks that the Prisons Service is required to carry out, the means available to it for censoring the letters of prisoners are not unlimited. It is also conceivable that sending an article intended for publication in a newspaper may justify, from the respondent’s viewpoint, more detailed consideration that that devoted to the ordinary letter. The need to examine long articles, or to do so on a frequent basis, is likely to be difficult for those concerned, and if the burden becomes too heavy, their ability to carry out their other duties properly will be affected. This difficulty raises a common problem: often the authorities face the difficult of finding the resources required by it in order to comply with its duty to uphold basic human rights. But even when the argument is expressly made, it is not usually given much weight. Not long ago I had the opportunity of addressing this question (in HCJ 4541/94 Miller v. Minister of Defence [21], at p. 113 {197}):

‘I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel, at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

“The rhetoric of human rights must be founded on a reality that sets these rights on the top level of the scale of national priorities. The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden” (Barak, in his book supra, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 528).

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3rd ed., 1992, at p. 873.’

These remarks are also relevant in this case. The respondent — like every organ of government — has a duty to uphold basic human rights. It must take this duty into account when allocating and distributing its financial resources. Indeed, to tell the truth, I do not expect that in carrying out its duty, in the case of the appellant, the respondent will encounter any practical difficulties. The writings of the appellant that were originally published in the local newspaper Mikol Makom have been submitted to us. It transpires that all of the appellant’s writings were brief, written in simple language, and dealt with everyday matters of prison life. If the writings of the appellant from now on are similar in format to his earlier articles, the respondent will not need great resources or efforts in order to carry out all the examinations required. Even the quantity of the anticipated articles need be no cause for concern. In any event, the respondent has the power to limit the quantity; had it proposed, in these proceedings, that the appellant should be limited to writing one article a week, I would have seen no reason to disagree with the reasonableness of its proposal.

Freedom of occupation

25. I have reached the conclusion that the appeal should be allowed, on the basis of the appellant’s contention that the respondent’s decision unlawfully violates his freedom of speech. This makes it unnecessary to consider in detail the additional contention of the appellant that the respondent’s decision also violates its right of freedom of occupation. However, although it is not needed for reaching a decision, I feel I should say that even in this respect the respondent’s position did not satisfy me. As a rule, within the limitations necessitated by imprisonment, even a prisoner enjoys the basic right of freedom of occupation, and the restrictions imposed on his right must comply with the conditions of the limitations clause in section 4 of the Basic Law: Freedom of Occupation (see: A. Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 600). The respondent’s response, it will be recalled, was that the appellant — as a prisoner requiring protection and for that reason prevented from participating in a rehabilitation program and working outside the prison — cannot be allowed to engage in writing for a newspaper, since such an occupation involves an ‘external employer’. I fear that this answer misses the point. The appellant did not ask to be allowed to take part in regular work outside the prison, nor did he ask to be allowed to leave the prison for the sake of his work, like prisoners who are engaged in work within the framework of the rehabilitation programmes. His request was to be allowed to act as a ‘freelance writer’ and to send the articles that he will write inside the prison precincts to the editor of the newspaper. Activity of this kind is similar to a hobby that a prisoner is allowed to enjoy in his free time or in his cell. It is not part of the system of the ordinary activities of prisoners, which the respondent is required to administer, and the rules governing the occupations of the prisoners do not apply to it.

26. If my opinion is accepted, the appeal will be allowed, the judgment of the District Court will be set aside, and the appellant will be granted the relief sought.

Justice M. Cheshin

I have read with interest the profound and comprehensive opinion of my colleague, Justice Mazza. My colleague has discussed the subject in all its aspects, and has explored every horizon. My colleague has written a kind of Magna Carta of the Israeli prisoner, and this bill of rights includes both basic principles and also rules and doctrines implied by the basic principles. I agree with every word of my colleague, in so far as they serve as a foundation. Notwithstanding, I have difficulty agreeing with the conclusions that my colleague wishes to deduce from the basic principles, which are principles we all accept. Since I do not disagree with colleague as to the infrastructure, I shall not elaborate on the basic principles but I shall concentrate my remarks on applying those basic principles to this case.

The question

2. The question requiring a decision in this case is very simple: does a prisoner have the right to be a newspaper correspondent, and to write for a newspaper a regular weekly column about everyday life in the prison where he is imprisoned? Does the prisoner have the right to be a journalist, and to send regular and frequent articles about the prison where he is imprisoned to a newspaper — or newspapers? The appellant claims that a prisoner has this right, whereas the respondents reject the appellant’s argument that he has the right. Let us emphasize and clarify from the outset: the question is not whether a prisoner has — or does not have — the right to engage in the profession of journalism while he is in prison. The respondents expressly stated before us that they do not dispute the right in principle of a journalist, who is a prisoner, to send articles to a large-circulation newspaper. This would be the case, for example, were we speaking of articles about cooking or gardening, or articles about art, the Bible or literature. But the appellant is not interested in any of these. He has set his heart on writing particularly about prison life — and only about prison life — and the respondents strongly oppose this. The appellant claims he has a constitutional right. The respondents, for their part, deny he has a right, and they argue that writing for a newspaper, as the appellant requests, might undermine proper prison order and discipline. We must decide between these opposing interests.

On the constitutional rights of a prisoner

3. When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison. See and compare, for instance, Katlan v. Prisons Service [3]; Darwish v. Prisons Service [6]; Yosef v. Governor of Central Prison in Judaea and Samaria [9]; Weil v. State of Israel [5]. Where an official unjustifiably violates the dignity of a prisoner — his dignity as a human being — the Court must speak out succinctly and clearly. This is human dignity, in the simple and ordinary sense of the concept.

Moreover, a prisoner is entitled to ‘conditions that allow civilized human life’ (per Vice-President H. Cohn in Darwish v. Prisons Service [6], at p. 539): food to eat, water to drink, clothes to wear, a bed to sleep in, fresh air to breathe, and sky to look at. By way of poetic analogy, let us recall the ‘small attic’ prepared and made for the prophet Elishah by that ‘great woman’, which contained ‘a bed and a table and a chair and a lamp’ (II Kings 4, 8-10 [45]). But other rights enjoyed by a free man must naturally be restricted inside the prison. When someone enters a prison, he loses his freedom; this needs no explanation. But a person does not only lose his freedom thereby, but also other rights, rights that naturally accompany freedom — that accompany it and are secondary to it. Thus, for example, there is the rigid and inflexible daily schedule of a prisoner, whether with regard to hours of sleep, whether with regard to hours of work and rest, whether with regard to eating times and whether with regard to everything that he is allowed to do inside the prison. This is also the case with the inability of a prisoner to continue to engage in his ordinary profession. The same is true of a prisoner’s contacts with the world outside the prison, such as telephone calls or correspondence, and this is so, for example, with regard to family visits to the prison.

4. All these rights — these and others besides — are reduced automatically when a person enters a prison. The need to ensure the regular running of a prison, including security and order, neither allows nor facilitates recognition of the rights of a prisoner as though he were a free man. A main and basic consideration in the proper and regular administration of a prison is the supreme need to maintain security inside it, to protect the safety of the persons in its precincts — both prisoners and warders — and ensuring strict order and discipline. Below we shall call all of these ‘order and discipline’. The way to accomplish all these objectives naturally implies a clear hierarchy of authority — and persons in authority — and strict obedience to orders given during the daily routine. On a smaller scale, prisons may be compared to an army or police force, but the strictness of order and discipline must be more rigid in the prisons, if only because of the segment of the population in them: a population of persons who have broken the law — some of whom are hardened and tough criminals — a population in which many are embittered and believe that society has done them an injustice and discriminated against them, aggressive and violent persons, persons with low anger thresholds and devoid of any motivation whatsoever to help others or to be helped by others. When we consider this prison population, it will become clear to us that the work of prison warders and administrators is work of the utmost difficulty. We will also realize —and this is directly relevant to this case — that order and discipline are the material of which a prison is built. Without order and discipline, in the broad sense of these concepts — which can only mean strict order and discipline — a prison cannot be run and the whole system will suffer the consequences.

Indeed, a reading of the Prisons Ordinance [New Version] and the Prisons Regulations (below we will refer to these as the Ordinance and the Regulations, respectively), shows us — as we already knew — that order and discipline are the essence of prison administration. The Ordinance and Regulations abound with provisions concerning order and disciple, and we shall mention, by way of example, only a few provisions. The first provision is that of section 56 of the Ordinance, which deals in its 41 subsections with ‘prison offences’. In closing, section 56(41) says the following:

‘Prison Offences

56. A prisoner who does one of the following has committed a prison offence:

(1) …

(41) Any act, behaviour, disorder or neglect that harm good order or discipline, even if they are not set out in the previous paragraphs.’

The second provision we shall mention is that of section 132 of the Ordinance, concerning the authority of the responsible Minister to enact regulations:

‘Minister’s Regulations

132. ...

(1) ...

(17) Any other matter, with regard to which this Ordinance states that it is possible to enact regulations, and any other matter that must be regulated for the sake of the effective implementation of this Ordinance, the welfare and efficiency of prison warders, the proper administration of prisons and their discipline and the safe custody of prisoners inside the prison precincts and when they are working outside the prison precincts.’

This is also the case with regard to other provisions in the Ordinance and the Regulations, such as the provision of Regulation 18, which says:

‘Purpose of order

18. Order and discipline shall be maintained in the prison strictly, while paying attention to maintaining security and a proper routine.’

This is followed by the provision of regulation 20:

‘Use of reasonable force

20. A prison warder may use all reasonable means, including the use of force, to maintain good order, for the protection of a warder or prisoner and to prevent the escape of a prisoner.’

5. Before we examine the actual case before us, let us begin by saying that the contacts of a prisoner with the world outside the prison are subject to an express and detailed arrangement in the Ordinance and the Regulations. The broad rule in the Ordinance and the Regulations is that a prisoner does not have an inherent right to be in contact with persons outside the prison, except in so far as the Ordinance and the Regulations give him this right. Thus, for example, section 42 of the Ordinance provides:

‘Prohibition of transfer

42. A person shall not transfer a prohibited object to a prisoner, nor shall he transfer a prohibited object to another person from a prisoner or on his behalf.’

The definition of a ‘prohibited object’ (in section 1 of the Ordinance) is:

‘An object that this Ordinance or the Regulations do not allow to be brought into a prison, to be removed from a prison or to be in the possession of a prisoner.’

In other words: prima facie, a prisoner does not have a right to correspond with persons outside the prison, unless he has an express right to do so. A prisoner is unlike a free person in this respect: a free person may maintain contact with others, unless he is forbidden to do so, whereas a prisoner may not have contact with others who are outside the prison, unless he is permitted to do so. Such is the loss of liberty and such are the implications of this loss. Section 43 of the Ordinance further provides:

‘Prohibition against placing

43. A person shall not place a prohibited object so that it comes into the possession of a prisoner, or the possession of another person on behalf of a prisoner, or by transfer from prisoner to prisoner.’

As to the actual question in our case, section 47 of the Ordinance provides and instructs us:

‘Convicted prisoner

47. (a) A convicted prisoner may be allowed to write a first letter when he is admitted to the prison.

(b) At the end of the first three months of his imprisonment, and thereafter — every two months, he may be allowed visits from friends within the sight and hearing of a prison warder, and he may be allowed to write and receive a letter.’

A convicted prisoner is therefore entitled to send a letter every two months. In practice, the prison authorities are lenient with prisoners, and they allow them to send letters once every two weeks. But the principle remains: the rule is a prohibition against contact with the outside world, and the exception is a relaxation of the prohibition in so far as the Ordinance and the internal procedures allow, at the discretion of the prison authorities. This is true of correspondence and it is true of visits to the prison. See, for example, chapter 5 of the Regulations on the subject of ‘Visits and letters’, which includes regulations 25 to 34.

6. In order to clarify our remarks and so that they may not be misconstrued, let us add the following: a person, every person, carries his constitutional rights in his knapsack, and wherever he goes, his rights go also. Even when he enters the prison as a prisoner a person is not stripped of his constitutional rights, and his rights remain in his knapsack. Notwithstanding, the constitutional rights of a person inside a prison are not like his constitutional rights outside the prison. The force of the constitutional rights inside the prison is not like their force outside the prison, for the reason that inside the prison they must contend with interests that are weightier and stronger than the corresponding interests outside the prison. The constitutional rights may be compared to a beam of light travelling freely through space, which is the constitutional right in its pure form. While it is travelling freely through space in this way, the beam of light encounters a screen that lies as an obstacle in its path. As it passes through the screen, the intensity of the beam of light becomes weaker, and its intensity after the screen is not as it was before the screen. If the beam of light is freedom of speech, the question is to what extent is it weakened when it tries to penetrate the prison walls. Prison walls are the screen, and the screen is: provisions of statute and regulations, the scope of discretion given to the prison authorities, and in addition to all these — the special status of a prison as a prison. All of these were discussed by Vice-President Justice Landau in Frankel v. Prisons Service [18] (see below, in paragraph 9), from which we can learn and understand.

The status that the appellant wishes to acquire for himself

7. The respondents strongly object to the appellant’s request that he be allowed to be a journalist who writes regularly (a weekly column) about prison life, and they base their denial of his request on reasons of order and discipline. The respondents’ fear is that the appellant’s writing may undermine the proper order and discipline in the prison — order and discipline that are the sine qua non of the proper running of the prison — and this is why they refused the request. The atmosphere in the prison is naturally tense and crowded. This everyone knows, and the respondents fear that by means of his occupation as a journalist continually reporting to the world about what is done in the prison, the appellant is likely to acquire for himself a special status inside the prison — a status whose very existence will undermine all proper order and discipline. Indeed, in this context of a breach of order and discipline the special status that the appellant is likely to acquire arises in several different relationships. Let us examine this matter closely.

8. First, it arises in the relationship between the appellant and prison warders and staff. All of these will know and understand that, by having a regular channel of communication from the prison to the world outside the prison, the appellant gains excessive power, and this excessive power in itself will give the appellant an elevated status in his relationship with the prison warders and staff. What warder will agree to his being vilified in a newspaper? What warder will not wish to be mentioned favourably in a newspaper? Will it not be merely natural and human for the prison warders to seek to gain access to the appellant and to try to flatter him, each in his own way? And if this is the case, will we be surprised if we find that, within a short time, the appellant — merely because he is a journalist with a weekly column in a newspaper — enjoys privileges that others do not have?

Second, it arises in the relationship between the prison warders inter se. Not only will the prison warders try to give the appellant better treatment, even if only so that he is kindly disposed to them, but through the appellant they may try to settle scores with one another. Thus, for example, one warder may whisper a secret in the appellant’s ear with regard to another warder — a secret that may be true or may be false — if only so that the appellant may publish it in the newspaper. Is this not likely to lead to unnecessary tension among the prison warders?

Third, by virtue of his new privileged status in the prison, various pieces of information will naturally be revealed to the appellant — information that would not have been revealed to him had it not been for the status that he has acquired. It need not be said that this information will give the appellant power whose significance cannot be overstated, in this case not by publishing the information but by refraining from publishing it, in return for receiving various benefits. After all, we know that there are some who make their living from information that they disclose to the public, and there are others who make their living from information that they do not disclose to the public.

Fourth, the appellant will acquire a special status among the prisoners — those who are his friends and those who are not — and one does not need much imagination to understand why this will occur. What we said about the prison warders — in their relationship with the appellant and their relationship with one another — applies to the prisoners a hundredfold.

It would appear that all these scenarios that may occur in the prison are not remote probabilities. They are likely to happen and not imaginary. And if they materialize — even in part — all proper order and discipline in the prison will be undermined, as has happened in the past. Thus, in Pell v. Procunier [38] a regulation (no. 415.071) was made that forbade journalists interviewing specific prisoners. The regulation says:

‘… press and other media interviews with specific individual inmates will not be permitted’ (ibid., at p. 819).

Prisoners and journalists attacked this regulation, claiming that it was unconstitutional. In the course of the hearing, it transpired that, before the regulation was enacted, journalists were allowed to interview prisoners as they wished, and this led to a phenomenon whereby certain prisoners became ‘public figures’, and thereby gained considerable influence over their fellow prisoners. This status, which those prisoners acquired, led to serious infractions of prison discipline, and eventually these infractions of discipline deteriorated until there was an attempted escape from the prison, in which three warders and two prisoners were killed. In order to prevent a repetition of the phenomenon, the competent authorities decided to enact the regulation. Let us cite the remarks of the court itself (ibid., at pp. 831-832):

‘Prior to the promulgation of § 415.071, every journalist had virtually free access to interview any individual inmate whom he might wish…

In practice, it was found that the policy in effect prior to the promulgation of § 415.071 had resulted in press attention being concentrated on a relatively small number of inmates who, as a result, became virtual “public figures” within the prison society and gained a disproportionate degree of notoriety and influence among their fellow inmates. Because of this notoriety and influence, these inmates often became the source of severe disciplinary problems. For example, extensive press attention to an inmate who espoused a practice of noncooperation with prison regulations encouraged other inmates to follow suit, thus eroding the institution’s ability to deal effectively with the inmates generally. Finally, in the words of the District Court, on August 21, 1971, “during an escape attempt at San Quentin three staff members and two inmates were killed. This was viewed by the officials as the climax of mounting disciplinary problems caused, in part, by its liberal posture with regard to press interviews, and on August 23, sec.415.071 was adopted to mitigate the problem.” 364 F. Supp., at 198.’

If it happened there, why can it not happened here too? Who can say that the prison authorities are merely imagining this? Indeed, the possibility is not remote, for if the appellant’s plan succeeds, everyone — warders and prisoners alike — will seek him out, and the prison will hang on his every word. Even if all of this does not happen, some of it will probably come to pass.

On balancing rights and interests

9. There are two interests struggling for supremacy: on one side, the prisoner’s interest in sending articles to a newspaper about everyday life in the prison, and on the other, the interest of the prison authorities in maintaining order and discipline, which may, in their opinion, be undermined if the appellant has his way. In this context, we should cite the remarks of Vice-President Justice Landau in Frankel v. Prisons Service [18]. Vice-President Landau cites the rule in Kol HaAm v. Minister of Interior [10] — per Justice Agranat — and the test of ‘near certain danger to public safety’ laid down. He goes on to make the following remarks about the type of prison population, the tension that prevails inside the prison, and the discretion that should be given to the prison authorities:

‘This test can also guide the governors of the prisons with regard to the inflammatory character of literary material. But what was said there about keeping the peace in general should be translated here into a test of keeping the peace, order and discipline inside the prisons, with the special problems with which the prisons administrators must contend. They are not dealing with persons who are free but with persons imprisoned in conditions that create great tension, which make it necessary to adopt effective measures to ensure order and discipline. Alongside this grave responsibility placed on the prison governor, the court must leave him proper discretion when exercising his powers under the law. As for bringing inflammatory written material into the prison, in the tense conditions that prevail in the prison, a spark is sometimes sufficient to ignite passions to the point of a violent outburst, and words written in “black and white”, more than the spoken words of cellmates, have their own power of persuasion that can lead to the enflaming of passions. Notwithstanding, the prison governor can take into account the composition of the prison population in the prison run by him, and what the governor of one prison, where dangerous criminals are imprisoned, may prohibit, the governor of another prison, where prisoners are held in more liberal conditions, may permit’ (ibid., at p. 209).

See also Almalabi v. Prisons Service [19], at p. 27.

To these remarks let us say that we agree wholeheartedly. Let us apply the remarks which Vice-President Landau made with regard to bringing ‘inflammatory written material’ inside the prison to the special status that the appellant will acquire for himself if he is allowed, as he asks, to be a journalist with a weekly column who writes about prison life Can we say that a decision of someone who has the heavy burden of running a prison falls outside the zone of reasonableness? The answer, in our opinion, is a definite no.

The following are the remarks of Justice Elon in Hukma v. Minister of Interior [1], at p. 833:

‘… when a person who has been arrested or a prisoner have a right, the person with the right is entitled to enjoy his right and to demand the possibility of exercising the right, as long as exercising the right does not conflict with the duty of the prison authorities to deprive him of his freedom of movement and what derives from this duty, i.e., maintaining security rules and order in the prison. For this right is no stronger that any other basic right, which is not absolute but relative, and it is upheld and protected by finding the proper balance between the various legitimate interests of the two individuals or of the individual and the public, interests which are all enshrined and protected in the law…’

See also: Weil v. State of Israel [5], at pp. 490-491; State of Israel v. Azazmi [2], at pp. 81 et seq..

10. The work of the Prisons Service involves many difficulties, and in the words of Vice-President Justice Landau in Frankel v. Prisons Service [18], they must contend with special problems that present themselves to them. In this context, it is appropriate to cite the remarks of the United States Supreme Court about the ‘Herculean obstacles’ facing the staff of the Prisons Service. In Procunier v. Martinez [35], Justice Powell described the work of prison warders in the following manner (at pp. 404-405):

‘Traditionally, federal courts have adopted a broad hands-off attitude towards problems of prison administration. In part this policy is the product of various limitations on the scope of federal review of conditions in state penal institutions. More fundamentally, this attitude springs from complementary perceptions about the nature of the problems and the efficacy of judicial intervention. Prison administrators are responsible for maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for rehabilitating, to the extent that human nature and inadequate resources allow, the inmates placed in their custody. The Herculean obstacles to effective discharge of these duties are too apparent to warrant explication. Suffice it to say that the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Most require expertise, comprehensive planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of the government. For all these reasons, courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. Judicial recognition of that fact reflects no more than a healthy sense of realism. Moreover, where state penal institutions are involved, federal courts have a further reason for deference to the appropriate prison authorities.’

Of course, this difficult work of the staff of the prison authorities does not justify ignoring the constitutional rights of prisoners. But in finding the proper balance between conflicting considerations, we should remember how difficult the task is and how heavy is the burden that the staff of the Prisons Service endure every day and every hour.

11. My colleague, Justice Mazza, mentions the ‘near certainty’ formula — the formula accepted by us since Kol HaAm v. Minister of Interior [10] — and he seeks to apply it to also to this case (see, for example, his remarks in paragraphs 15 and 19 of his opinion). We do not intend to argue with this premise. It is entirely acceptable to us and we accept it into our heart like a cherished child. But at the same time let us realize and understand that the status of an individual — and the status of the authorities vis-à-vis the individual — outside the prison is not the same as the status of an individual, and the status of the authorities vis-à-vis the individual inside a prison. Taking matters to the extreme, we can say that an everyday demonstration — in a town or village — is not like a demonstration of prisoners inside a prison. Is there anyone who would conceive it possible to allow a demonstration of prisoners in a prison? The analogy to our case is self-evident. Vice-President Justice Landau already discussed it in Frankel v. Prisons Service [18] (see paragraph 9, supra) when he pointed out the charged atmosphere that normally prevails in a prison — and we too will say: the question is not a question of finding the right formula for the discretion of the authorities. The heart of the matter is in realizing and understanding that what happens inside a prison is not the same as what happens outside it, and vice versa.

12. Of course, the harm done to a prisoner may not be disproportionate; there must be a correlation between the anticipated evil and the attempt to prevent it. In the words of Justice Elon in State of Israel v. Tamir [4], at p. 212:

‘… When the prison authorities wish to violate one of the rights of a prisoner, for reasons of balancing one of the prisoner’s rights against the duty of the authorities to deprive him of freedom of movement and to protect the needs of security and the prison, they shall decide upon such a violation unless they have a reasonable explanation and justification for it, for reasons of public security and prison order, which they are liable to maintain, and the extent and degree of the violation shall not be greater than what is absolutely essential on account of these reasons.

…

The greater the right that is violated, the greater the reasons required to justify this violation.’

Moreover, we have been commanded this also in the Basic Law: Human Dignity and Liberty, in section 8 (and also in section 4 of the Basic Law: Freedom of Occupation): we are required to examine whether the violation of someone’s right befits the values of the State of Israel, is intended for a proper purpose, and does so to an extent that is not excessive. See also: CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [22], per President Shamgar, at pp. 342-349, and per Vice-President Barak, at pp. 434-441. However, it seems to us that the respondents’ decision not to allow the appellant to publish a weekly column satisfies all these minimum requirements, both in principle and in view of the character of the appellant.

The appellant wishes to write about his ‘personal life’; the appellant consents to censorship of his articles

13. The appellant argues that the respondents’ fears are unfounded and the weekly column he wishes to publish in the newspaper presents no danger. How is this so? First of all, he claims that he wishes to write a column about his life in the prison, and he promises ‘to write only about his personal life’ (paragraph 9 of the application for leave to appeal). As the record of the trial court says:

‘I agree that my articles may be censored. I undertake that in my correspondence with the press, I will speak only of my personal life.’

In other words, the appellant does not intend to write about anyone else, but only about himself. If that is so, and if that remains the case, why are the respondents concerned?

This argument is no argument, especially when it is made by the appellant himself.

14. First of all, the appellant himself presented his right to write a weekly column to a newspaper as a constitutional right vested in him by law. Even my colleague, Justice Mazza, raised the appellant’s case to the highest level, and from this highest level we will learn the nature of the rights of a prisoner. But if we are dealing with a right of this kind, of what significance is it whether the appellant undertakes or does not undertake to write about one subject and not to write about another subject? If the appellant has a vested supreme right, as he claims, his undertaking is totally irrelevant. Indeed, just as the appellant claims to have a supreme right, so too the respondents claim to have a supreme duty which was imposed on them by statute. If the appellant has a supreme right, it will not be the respondents who determine its scope, but at the same time neither will the appellant determine its scope by means of a supposed ‘undertaking’, made by him, that he will write about this and not write about that. The undertaking of the appellant to restrict his writing to a specific subject cannot therefore be of any significance.

Second, I find the appellant’s argument that he intends to write about ‘his personal life’ problematic, if only for the reason that we do not know what his ‘personal life’ is. Does he intend to search the depths of his soul and write of his ‘thoughts’ — in the style of Marcel Proust — or does his ‘personal life’ also include the prison staff and the prisoners around him — the warders and prisoners who after years and years in prison have become part of his ‘personal life’? Indeed, the concept ‘personal life’ is a very broad term and we cannot know what it contains and what it does not contain.

15. The appellant goes on to ask the respondents: what cause do you have for concern because of a newspaper column that I will publish? After all, I agree that you may examine all the articles that I want to send to the newspaper beforehand. What is more, I agree that you will be entitled to disqualify any articles or parts of articles that may, in your opinion, harm the security, order and discipline in the prisons. If so, what concerns can the respondents have? This rebutting argument was accepted by my colleague, Justice Mazza. As he says (in paragraph 21 of his opinion):

‘… the appellant admits that the respondent has the authority to hold back and not to send any article to its destination, if its publication (in the respondent’s opinion) may harm the running of the prison, the security of the prison warders or prisoners, or even the reputation of any of them. Moreover, in order to satisfy the respondent in this regard, the appellant undertook not to say anything in his articles about any member of the prison staff, warders and prisoners, but to focus solely on a description of his life and experiences.’

And further on:

‘In order to decide the appeal, we may assume that the respondent has full authority not to send an article to a newspaper, if it believes that its publication may harm public security, the running and discipline of the prison and even the reputation of prison staff, a warder or a prisoner. The appellant has agreed to these assumptions, thereby defining the question that requires our decision in his appeal.’

Moreover (in paragraph 23:

‘… and if the appellant does indeed abide by his declaration that he will devote his articles merely to his own life and experiences and will not write about specific prison officials or prisoners, it is difficult to see how publication of his remarks can arouse a fear of undermining the running and discipline of the prison, the reputation of the staff or any prisoner.’

We see that the appellant has undertaken to write only about his ‘personal life’, and he agrees that if he does not abide by his undertaking, then the respondents are entitled not to send a particular article or a part of a particular article to its destination, the newspaper.

Reading this, I wonder: does the appellant really intend to make an agreement with the respondents, an agreement in which he undertakes to do certain things — and only those things — while at the same time he ‘concedes’ the authority of the respondents to censor the articles that he will write if he does not abide by what he undertook not to write? For my part, this set of reciprocal obligations that the appellant and the respondents are each supposed to undertake is totally unacceptable. We are concerned with liberties, rights and duties under the law, and this ‘agreement’ that the appellant alleges — an agreement between a prisoner and the authorities — should not be allowed.

Whatever the case, I accept the respondents’ reply that it is not their task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book-publishing house. It is indeed true that the respondents were given a power (under regulation 33 of the Regulations): ‘to open and examine any letter and any other document of a prisoner’, but this power was not originally intended for reviewing a regular column in a newspaper about prison. The power is concerned with letters that the prisoner writes to his family and friends, and the inspection is intended to erase a line or a word, here or there, when a prisoner tries to abuse his right to correspond with persons outside of prison, such as, for example, in order to smuggle drugs or weapons into the prison. But this power of review was not intended for a permanent review of the kind that the appellant wants to impose on the Prisons Service. Everyone will agree that inspecting a newspaper article is not the same as inspecting an ordinary letter that a prisoner writes to his wife. We should also mention that in HCJ 157/75 [20], the court approved a decision of the prison administrators to restrict the length of letters sent by prisoners to two pages only.

16. Moreover, the appellant promised to write only about his ‘private life’, but as we have seen above, this concept of ‘private life’ is fertile ground for disputes that will without doubt sprout in the future. The appellant’s ‘undertaking’ to write only about his ‘private life’ is of no help to him, and in any event, the ‘inspection’ of his writings cannot be of any avail on the scale required.

Indeed, if the appellant is given what he wants, it will not be long before the courts will be compelled to consider — on frequent occasions — the question why and for what reason a certain article was banned, or why a certain passage was deleted from a particular article. That time is not only not remote; it has already arrived. For we see that, alongside the appellant’s arguments in the appeal that he intends to write only about his ‘personal life’ in the prison, we find that he adds the following:

‘23. The respondent’s main consideration, which can be seen throughout the affidavit, is its desire to prevent the publication of criticism that the appellant wishes to utter, namely censorship because of the content of the speech, which is improper.

24. Even the consideration of possible harm to the reputation of members of staff is improper. The reputation of prison staff is no better than the reputation of other persons that may be harmed. They too have the opportunity of suing for any insult to them if it is necessary, but this does not constitute a reason that justifies prohibiting the speech ab initio.’

What is the meaning of this argument of the appellant and how are these remarks consistent with his intention to write only about his ‘private life’? It follows that the ‘private life’ of the appellant includes, apparently, everything surrounding it, including prison warders and prisoners, and if they find themselves injured by the articles that are published in the personal column, they are welcome to go and ask for relief in the court.

The truth is revealed. The appellant intends to serve, in theory and in practice, as an ‘internal auditor’ of the prison — a kind of revisor-general — and within the framework of his weekly column, he will not refrain from writing about anything that, in his opinion, is part of his ‘personal life’. If, then, we do not know what the appellant intends to write, we will not be surprised to find that the personnel of the Prisons Service fear that the appellant’s column in the newspaper may lead to a breach of security, order and discipline. Incidentally, we should mention that under the law in force in England, prisoners are forbidden to mention explicitly the names of prison warders and prisoners. As stated in 37 Halsbury, The Laws of England, London 4th ed., by Lord Hailsham, 752-753, paragraph 1145 (subtitled ‘prisons’):

‘General correspondence may not contain any of the following matters:

(1) ...

…

(12) material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it (a) is for publication in return for payment (unless the inmate is unconvicted)… (d) refers to individual inmates or members of staff in such a way that they might be identified;

…’

If all this were not sufficient, let us also mention that, in his oral pleadings before us, Advocate Yakir also argued on behalf of the appellant that it is not the Prisons Service’s job to ‘censor falsehoods’, and it would be ‘improper’ if ‘false information’ were deleted from articles that the appellant intends to send to his newspaper. The public ought to decide — the public, rather than the Prisons Service (see also the remarks of my colleague, Justice Mazza, in paragraph 20 of his decision). After all this, does the appellant continue to argue seriously that he is prepared to accept prior inspection of his articles? I think not.

17. Moreover, the appellant’s deeds — shortly before the proceedings and during the proceedings — cast considerable doubt on his declarations and his good faith. In order not to elaborate on a description — the matter is lengthy and wearisome — let us cite some of the remarks of the trial court in this respect. The following were the remarks of Justice Even-Ari in his decision refusing the appellant’s application:

‘… An inspection of the interview that was published in Yediot Aharonot on 20 November 1989 shows that prima facie the petitioner has indeed added insult to injury — not only has he escaped from lawful custody and returned to his life of crime, but he also besmirches the Prisons Service in an interview entitled “The gangsters run the prison”.

… Later in the proceedings, it became clear that the petitioner telephoned various journalists and distributed various information about what supposedly was happening in the prison, and the spokesman of the Prisons Service was required to respond to the various enquiries of journalists, all of which while the petition was sub judice.

… It transpires that the petitioner is interested in a prisoner called “Ahmed Yassin”. He does not know him at all and has never met him, but he asks for the intervention of the media in his case and even in the petition that is sub judice before this court (see exhibit B).

Prima facie it would seem that the petitioner is still trying to make headlines — and he is spreading stories about a security prisoner whose case is very sensitive. Prima facie this is a sensitive case where unauthorized involvement may result in serious consequences. This constitutes irrefutable evidence of the irresponsible approach of the petitioner and prima facie strengthens the position that the petitioner should not be allowed the right of free access to the various branches of the media…

… The newspaper interview that was published in Yediot Aharonot shows the petitioner’s method in approaching the press. The respondent’s decision to prevent the petitioner having access to this media channel is prima facie reasonable and logical. This consideration is a normative one, intended to prevent unrest inside the prison.

… It is clear to us that giving the petitioner the right of free access to the media will allow him to acquire great power, and allowing a person like the petitioner (for a description of the petitioner’s character, see CrimC (TA) 7036/92 [34]) to acquire such power will have serious implications for the running of the prison. Therefore I think that denying the right to contact the press, in the circumstances brought before us, is reasonable.’ (parentheses supplied).

See a more detailed consideration of the matter in paragraph 7 of the opinion of my colleague, Justice Mazza. With regard to what was said by the Magistrate Court about the appellant, Justice Even-Ari was referring to the remarks of Justice E. Beckenstein concerning the appellant, that: ‘I have no doubt that we are dealing with an accused who, even if he is currently serving a prison sentence for offences of the same kind, uses every minute of prison leave given to him in order to commit more offences, for it is in his blood.’ Why then should the respondents put faith in the appellant?

18. In view of all this, taking into account the offences for which the appellant is serving his sentence in the prison, it is hardly surprising that the respondents are not prepared to accept the appellant’s statements at face value. We should remember that the appellant is currently serving a prison sentence of ten and a half years for offences involving fraud, forgery, impersonation and escaping from lawful custody. The appellant has a terrible criminal record. He has many convictions for offences of the same kind, and he has previously served three prison sentences. Some of the offences for which he is serving his current sentence were committed when he escaped from lawful custody. What more can one expect of the respondents?

19. In this context we should add that the appellant — like any prisoner — is entitled to write to the court, Government ministers, members of the Knesset and the State Comptroller (the Public Complaints Commissioner). He may write whatever he pleases, and no-one will restrain him. Moreover, the prisons have an internal review system and this too is open to the appellant, just as it is for any other prisoner. See, for example, sections 71-72F and section 131A of the Ordinance and regulations 24A and 24B of the Regulations. Similarly, the appellant is permitted to write to the newspapers (‘letters to the editor’) — within the framework of the quota of letters that he is entitled to send — naturally with certain restrictions that are required because he is a prisoner in prison. In other words, the respondents are not intending to cut the appellant off from the world, to hold him incommunicado. They merely object to the weekly column that he wants to write, and they have explained in detail their concerns.

On Israeli and American case-law

20. My colleague reviews at length and in detail case-law made in Israel and the United States, and he wishes to learn from them in our case. As for me, I have not found in this case-law any authority that supports my colleague’s approach. With regard to Israeli case-law, I have not found even one case that resembles this one. All the judgments concern a violation of human dignity — ‘dignity’ in its plain sense — or cases where the court was required to consider whether the discretion of the prison authorities was reasonable or unreasonable in the circumstances of each particular case. Wherever it was found that the respondents’ discretion was unreasonable, the Court granted the petition. With regard to human dignity, let us mention Katlan v. Prisons Service [3] (performing an enema on a person under arrest); Darwish v. Prisons Service [6] (denying beds to prisoners, for fear that they would use them to do harm; the petition was denied by a majority); Yosef v. Governor of Central Prison in Judaea and Samaria [9] (harsh prison conditions violating human dignity); Weil v. State of Israel [5] (the right of a prisoner to intimacy with his spouse); State of Israel v. Azazmi [2] (harsh prison conditions violating human dignity). One is led to ask: can the rights in these cases be compared to the ‘right’ of a prisoner to write a weekly column in a newspaper?

As to cases in which the court found that the discretion of the prison authorities was unreasonable: for example, in Livneh v. Prisons Service [17], the governor of the prison refused to allow the petitioner to bring various books into the prison, on the ground that these were likely to lead to incitement. With regard to the framework for the discretion of the prison governor, the court held that:

‘… no-one disputes that under regulation 44 of the Prisons Regulations, 5727-1977 [today regulation 49 of the Regulations], a prisoner is not entitled to bring books into the prison, unless the prison governor allows them to be brought into the prison. It follows that the governor is given discretion to allow or to forbid bringing a certain book into the prison; this Court will not interfere with his discretion, as long as he exercised it in good faith and in a reasonable manner’ (square parentheses supplied).

On the merits, the court thought that the prison governor did not act reasonably, and it therefore held the governor liable to grant the petitioner’s request.

In Frankel v. Prisons Service [18], supra, the petitioner was not allowed to bring two books into the prison. At the end of the hearing, the petition was granted with respect to one book and denied with respect to another. Again, the court only considered the reasonableness of the prison governor’s discretion. The same is true of all the other cases, in some of which the petitioners were found to be justified and in some of which no justification was found for intervention in the discretion of the respondents, all of which according to the usual and proper criterion of the reasonableness of the discretion; see, for example, HCJ 157/75 [20] (the Prisons Service is entitled to restrict the length of outgoing letters); HCJ 881/78 Mutzlach v. Damon Prison Commander [23] (not providing compulsory education for prisoners); Almalabi v. Prisons Service [19] (the prohibition against a prisoner having possession of a transistor radio); State of Israel v. Tamir [4] (supplying drugs to a prisoner on a prescription of a doctor who is not working for the Prisons Service).

With regard to the case-law that my colleague cited from the United States, I think that it contains nothing that changes the general picture. The basic considerations are known to all, and I do not find that the Prisons Service has departed from the general guidelines laid down by the courts in the United States (even if those guidelines were to bind them). This is especially so when the courts in the United States are not unanimous. Moreover, where prisons are the issue, I think that we should caution ourselves against drawing analogies from other legal systems, as long as we do not know that the sociological and psychological background there and here are identical, or at least very similar. In the final analysis, the legal norm reflects — at least in part — a given social position, and we should be careful not to draw analogies in matters that are not universally the same.

The Basic Law: Human Dignity and Liberty and freedom of speech; the Basic Law: Freedom of Occupation

21. My colleague, Justice Mazza, holds that the Basic Law: Human Dignity and Liberty ‘enshrined the case-law recognition of the constitutional status of freedom of speech’ (paragraph 14 of his opinion). How is this so? The Basic Law does not mention freedom of speech by name or by implication. ‘This is immaterial’, says my colleague:

‘Even without an express provision, freedom of speech is included in human dignity, according to the meaning thereof in sections 2 and 4 of the Basic Law. For what is human dignity without the basic liberty of an individual to hear the speech of others and to utter his own speech; to develop his personality, to formulate his outlook on life and realize himself?’ (ibid).

I will not enter into an argument with my colleague over this possible interpretation of the Basic Law: Human Dignity and Liberty, but at the same time I will not deny that there are other possible interpretations. The question does not allow of a simple solution, and the answer does not present itself to us as if of its own accord. The subject incorporates not only the meaning of the concept of ‘human dignity’ in its linguistic, moral, political, historical and philosophical senses, but also — or should we say, mainly — the meaning of the concept in the special context of the Basic Law: Human Dignity and Liberty. This special context — which is bound up with the relationship between the organs of the State — can also directly affect the sphere of influence of ‘human dignity’. In our case, we have not considered the whole picture, or even part of it, and I will caution myself against hasty decisions and obiter dicta on issues so important and far-reaching as the question of the interpretation of the concept of ‘human dignity’.

22. Finally, the appellant claims he has a right of freedom of occupation — a right which he argues is given to him by the Basic Law: Freedom of Occupation. This argument was cast into the air of the court as if it were self-evident, and without counsel for the appellant trying to establish it on firm ground. Moreover, the right to freedom of occupation — like a person’s right to freedom of speech, and in fact any other right — is a right that must contend with other interests that oppose it and seek to reduce it. The interests that are capable of overriding freedom of speech in this case are the very same interests that can lead to a restriction of the right of freedom of occupation as well. In any event, our case lies in the valley between the freedom of speech and freedom of occupation, but its centre of gravity lies in the freedom of speech. We have dealt with this at length and we will say no more.

23. Were my opinion to be accepted, we would deny the appeal.

Justice D. Dorner

1. I agree with the opinion of my colleague, Justice Mazza.

My colleague examined the wider issues. He showed that prisoners are also entitled to freedom of speech, and that a violation of this right — as with the other basic rights to which prisoners are entitled — ‘is lawful only if it complies with the authority test and the test of the proper balance between it and the legitimate interests entrusted to the authority’ (see paragraph 13 of his opinion). My colleague discussed the principles involved in making the balance, and he reached the conclusion that in our case the violation of the appellant’s freedom of speech is unlawful.

My colleague, Justice Cheshin, agrees with the principles outlined by Justice Mazza, but his conclusion is that the concern of the respondent — the Prisons Service — that publication of the appellant’s articles is likely to harm prison discipline overrides the appellant’s basic right to freedom of speech, and that in order to dispel this fear the respondent need not trouble to read the articles, as the appellant suggested, in order to disqualify only those articles whose publication is expected to result in real harm to prison order and discipline.

2. In my opinion, the test of rhetoric about basic human rights, including basic rights retained by prisoners, lies in the willingness of society to pay a price in order to uphold them. I discussed this in one case:

‘A basic right, by its very nature, requires society to pay a price. Where no price is paid for the exercising of an interest, there is no significance in enshrining it as a right, and certainly not as a constitutional basic right…

… in our democratic regime, which recognizes individual liberty as a basic right, society waives, to a certain extent, the possible protection of public safety’ (CrimFH 2316/95 Ganimat v. State of Israel [24], at p. 645).

In our case, if a certain amount of trouble that may be caused to the prison authorities is sufficient to deprive a prisoner of his right to freedom of speech, there is no meaning to the declaration that a prisoner retains this basic right.

3. Admittedly, no-one disputes that in a conflict between the freedom of speech and prison order and discipline, the right of the prisoner to freedom of speech yields. However, the status of freedom of speech as a basic right means that a violation thereof is permitted when it befits the values of the State of Israel, is for a proper purpose and is to an extent that is not excessive. Compare section 8 of the Basic Law: Human Dignity and Liberty (hereafter also — the Basic Law); the remarks of Vice-President Barak in HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [25], at p. 760 {488}, and what I wrote in Miller v. Minister of Defence [21], at p. 138 {231}.

4. In our case, no one disputes that the respondent has the authority to restrict the freedom of speech of prisoners, and that maintaining discipline in the prison is a proper purpose for exercising his authority. Notwithstanding, a violation of a prisoner’s freedom of speech will not be permitted unless it is to an extent that is not excessive for maintaining discipline in the prison.

5. This rule of proportionality is complex, and includes several elements. See, for instance, HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [26], at pp. 435-436; HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [27], in the opinion of Vice-President Barak. In our case, the following requirements are particularly relevant:

First, a violation of freedom of speech will be permitted, as a rule, only when there exists a probability on the level of near certainty that allowing the speech will lead to a real and serious violation of order and discipline in the prison. This test is implied by the preferred status of the freedom of speech, since in conflicts between competing rights it has the status of a ‘supreme right’ (per President Agranat in Kol HaAm v. Minister of Interior [10], at p. 878 {97}).

This test applies also to the freedom of speech of prisoners. See the remarks of Vice-President Landau in Frankel v. Prisons Service [18], at p. 209. This is also the position of my colleague, Justice Mazza (see paragraphs 15 and 19 of his opinion), and even my colleague, Justice Cheshin, agrees with this (see paragraph 11 of his opinion).

The near certainty test is not mere words. It reflects the price that society is prepared to pay in order to realize the freedom of speech of the prisoner, for the practical significance is that the possibility of a violation which is not on the level of near certainty or an anticipated violation which is small rather than real and serious will not give rise to a sufficient ground for a violation of the prisoner’s freedom of speech.

The court addressed this issue in Livneh v. Prisons Service [17], at p. 689. In that case a prisoner was not permitted to bring certain books into the prison, on the ground that reading them might prompt political arguments between the prisoners, which would lead to unrest, thereby disrupting prison discipline. The prisoner’s petition was granted. Justice H. Cohn wrote as follows:

‘… But it has never been said that in order to “keep the peace” he [the prison governor] may prevent arguments between the prisoners, and this includes political arguments; as long as discipline and order are maintained in the prison, the prisoners may argue among themselves on any subject that they choose; and if discipline and order are breached, those who commit the breach will have to answer for their breach, but they should not have to answer for the subject of their argument’ (square parentheses supplied).

Second, denying the freedom of speech is contingent on it being impossible with a reasonable effort to allay or reduce the fear of a disruption to prison discipline, by means that do not involve a violation of freedom of speech or that violate it only minimally. See what I wrote in HCJ 4712/96 Meretz – Israel Democratic Party v. Jerusalem District Commissioner of Police [28]. In this matter, a mere financial outlay or burden entailed in these efforts cannot, if they are reasonable, justify a violation of a basic right. See the remarks of Justice Mazza in Miller v. Minister of Defence [21], at pp. 113-114 {197-198}.

Third, the burden of proof, both with regard to the likelihood of a violation of prison discipline and its seriousness and with regard to the impossibility of removing or reducing this fear with a reasonable effort rests with the authority. See what I wrote in Miller v. Minister of Defence [21], at pp. 135-136 {209}.

6. It should be emphasized that criticism of detention conditions, even if the authority considers them to be incorrect, is not in itself a ground for violating freedom of speech. Care must be taken that maintaining discipline in the prison does not become a cloak for silencing a prisoner so that the public do not become aware of prison conditions, which prisoners certainly do not need to learn from the newspaper. It is well known that the Prisons Service does not refrain from contact with the press through the spokesman of the Service or senior employees of the Service. The prisons also conduct planned press visits as part of the public relations of the Service, which wants to present itself at its best. In these circumstances, preventing a prisoner from expressing any criticism he may have is unfair, and may even harm the public, which is entitled to be exposed to the entire ‘marketplace of ideas’. The remarks of Justice Shamgar in CA 723/74 [13], at p. 298, are relevant in this context:

‘The existence of basic rights is not disputed when matters run smoothly and the various authorities merit compliments only. The true test of freedom of speech occurs when confronted with forceful and unpleasant criticism.’

7. My colleague, Justice Mazza, also relied on the Basic Law: Human Dignity and Liberty. In his view, even without an express provision the freedom of speech is included in the right of human dignity, within the meaning thereof in sections 2 and 4 of the Basic Law. See section 14 of his opinion.

I agree that a violation of a prisoner’s freedom of speech because he is a prisoner violates human dignity within the meaning thereof in the Basic Law. It is another question whether freedom of speech in general is protected by the Basic Law. This question is a part of the broader question whether human rights that are not expressly mentioned in the Basic Law can or should be incorporated into the Basic Law by interpreting the word ‘dignity’, thereby opening the door to judicial review of statutes that violate these rights. This question is not at all simple. See I. Zamir, Administrative Power, Nevo, 1996, at pp. 112-113.

In case-law various approaches have been expressed in this regard in obiter dicta. See, for instance, the remarks of Justice Mazza in HCJ 453/94 Israel Women’s Network v. Government of Israel [29], at p. 522 {448} on the one hand, and the remarks of Justice Zamir, ibid., at pp. 535-536 {467-468} on the other; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}.

The question of freedom of speech has also been considered in case-law. Justice Zamir’s reservation in Israel Women’s Network v. Government of Israel [29] also referred to freedom of speech. By contrast, an opinion has been expressed that ‘today it is possible to deduce freedom of speech from the protection conferred on human dignity and liberty in the Basic Law: Human Dignity and Liberty’ (per Justice Barak in CA 105/92 [11], at p. 201; see also Y. Karp ‘Some Questions on Human Dignity according to the Basic Law: Human Dignity and Liberty’, 25 Mishpatim (1985), 129, 144).

8. Freedom of speech is a central basic human right and I do not believe that in Israel it can be regarded as being part of the right to dignity. Indeed, the Israeli legislator did not intend to incorporate the freedom of speech in the right of dignity. Quite the reverse.

Knesset Member Rubinstein, who sought to promote the enshrining of basic rights in Basic Laws by enacting Basic Laws with regard to those rights for which it was possible to obtain national consensus, proposed several Basic Laws, each of which referred to different rights. Inter alia, alongside the draft Basic Law: Human Dignity and Liberty, he submitted a draft Basic Law: Freedom of Speech (Divrei HaKnesset (Knesset Proceedings) 121, 1991, at p. 3748). At the Knesset debate on this draft, Justice Minister Dan Meridor said:

‘If there is one central principle of democracy that is no less important, and possibly more important, than election mechanisms and other mechanisms, it is the freedom of speech. A state which has regular elections, and which has many other characteristics that are similar to a democracy, but which does not have freedom of speech, is not a democracy. A state which does not have freedom of the press is not a democracy. Consequently, this is one of the most significant basic rights that characterize a free society’ (ibid., at pp. 3732-3733).

In the year 5754 (1993-1994), the Constitution, Law and Justice Committee of the Knesset submitted the draft Basic Law: Freedom of Speech and Assembly to the Knesset three times. The first two drafts were not approved on first reading, whereas the third draft was approved on first reading but was not submitted for a second reading.

Apparently, the national consensus required for enshrining freedom of speech in a Basic Law had not yet been reached, and the draft Basic Law: Freedom of Speech has not been enacted until today. In such circumstances, it seems doubtful to me whether it is possible, or at any rate appropriate, to confer super-legislative status on freedom of speech generally, by incorporating it in the right of dignity. In this matter I wrote, with respect to the principle of general equality, the following:

‘Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions’ (Miller v. Minister of Defence [21], at p. 132 {223}).

See also, Y. Karp ‘The Basic Law: Human Dignity and Liberty — A Biography of Power Struggles’, 1 Mishpat Umimshal (1992), 323, 338.

Nonetheless, there are cases where a violation of an individual’s freedom of speech constitutes a violation of his right of dignity, within the meaning of the Basic Law: Human Dignity and Liberty. When denying freedom of speech humiliates the individual and violates his dignity as a human being, there is no reasonable way of interpreting the right of dignity prescribed in the Basic Law so that this humiliation is not deemed to violate it. See and compare the remarks of Justice Zamir in HCJ 7111/95 Local Government Centre v. The Knesset [30], at pp. 496-497; and what I wrote in Miller v. Minister of Defence [21], at pp. 131-133 {223-225}, where I referred to the distinction between the principle of general equality and the prohibition of discrimination against groups.

However, not every violation of freedom of speech involves humiliation. For instance, it has been held that freedom of speech also includes freedom of commercial expression. See HCJ 606/93 Advancement Promotions and Publishing (1981) Ltd v. Broadcasting Authority [31]; HCJ 5118/95 Meir Simon Advertising, Marketing and Public Relations Ltd v. Second Television and Radio Authority [32]. Notwithstanding, a violation of freedom of commercial expression, for example by banning an advertisement, does not usually involve humiliation, and is therefore not a violation of the right of dignity within the meaning thereof in the Basic Law. The disqualification of a newspaper item, as distinct from a literary work or an opinion, also does not usually violate human dignity. In this matter, there are grounds for examining what is the main reason underlying the principle of freedom of speech in the context of the specific speech under consideration. It is well-known that, alongside the importance of freedom of speech for human self-realization — a violation of which is a violation of human dignity — it is also required for uncovering the truth, upholding the democratic process and safeguarding social stability. See HCJ 399/85 Kahana v. Broadcasting Authority Governing Board [33], at pp. 270-277, and the sources cited there. With all the respect due to the social reasons that underlie freedom of speech, these are not necessarily derived from human dignity. An act that violates freedom of speech shall be deemed to violate the right of human dignity, within the meaning of the Basic Law: Human Dignity and Liberty, only if it clearly violates the ‘personal’ basis for freedom of speech, as distinct from the social reasons underlying it.

The ‘silencing’ of a prisoner by his warders because he is a prisoner violates his dignity. Prisoners, in the words of Justice Haim Cohn, ‘are considered by the public as devoid of dignity, as though their criminal acts show that they chose to exchange their dignity for disgrace’ (H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, Hapraklit - Jubilee Volume, Israel Bar Association, 1994, 9, 33). What underlies the denial of freedom of speech to a prisoner is the assumption that because he is a criminal he is devoid of dignity — an inferior person. Such a denial therefore violates the basic right enshrined in the Basic Law: Human Dignity and Liberty.

10. From the general, let us return to the specific: in our case, the authority has not complied with even one of the requirements I listed above (in paragraph 5) concerning proportionality. As stated, the main concern raised by the respondent is that the status of the appellant as a ‘journalist’ will give him the power to praise or criticize the prison warders, and as a result he will obtain preferential treatment to which he is not entitled, he will sow discord among members of the staff and cause unrest among the prisoners, thereby compromising prison discipline. This concern may, apparently, be allayed or significantly reduced by preventing the mentioning of names of prison warders in the articles. As stated, the appellant has gone further and is prepared to submit his articles to the respondent’s censorship. The respondent’s refusal to devote the time required for this censorship is inconsistent with his duty to make a proper effort in order to prevent a violation of a basic human right. Unlike my colleague, Justice Cheshin, I do not think that —

‘… it is not their [the prison authorities’] task to occupy themselves on a permanent basis in examining the appellant’s articles: they were not trained to do this, they have no facilities for this purpose, and they are not employed for this purpose by the Prisons Service. They were trained to be prison warders and not to be reviewers of manuscripts in a book publishing house’ (paragraph 15 of his opinion —square parentheses supplied).

In my opinion, it is a clear duty of government authorities in the State of Israel to do what is necessary to safeguard basic human rights. This is certainly the case with regard to the duty of prison warders to ensure that the basic rights of the prisoners under their authority are upheld, while minimizing violations of prison order and discipline. This role is no less important than any other role imposed on the Prisons Service, and it must ensure that the warders are trained to carry it out, just as it ensures that they are trained to carry out their other tasks. In our case, there is even an explicit provision — regulation 33 of the Regulations — which requires the respondent to carry out its role in balancing between the safeguarding of prisoners’ freedom of speech and the need to maintain prison order and discipline.

Moreover, the fact that in 1989 the appellant published articles about his life in prison without the respondent showing that this publication resulted in a disruption of prison order and discipline, indicates that the respondent’s fear, which is based on speculation only, does not have a sufficient basis. Most certainly we cannot conclude from past experience that there is a near certainty that publishing the appellant’s articles will significantly and seriously disrupt prison discipline.

I therefore agree with the opinion of my colleague, Justice Mazza, that the appeal should be allowed.

Appeal allowed by majority opinion, Justice M. Cheshin dissenting.

10 Elul 5756.

25 August 1996.

Full opinion:

Ganis v. Ministry of Building and Housing

Case/docket number:

HCJ 9098/01

Date Decided:

Monday, November 22, 2004

Decision Type:

Original

Topics:

Abstract:

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or extend an apartment in Jerusalem during the interim period, and therefore it was unconstitutional for the Knesset to suspend the grants retroactively.

Held: The Supreme Court was unanimous in the opinion that the Knesset had acted improperly when it retroactively suspended the grants, since it had not considered the possibility that some persons may have relied on the grants and taken commitments upon themselves as a result. However, the justices differed as to the proper approach that should be adopted to remedy the situation.

The majority opinion was that it was possible to construe the statute narrowly in such a way that the retroactive suspension would only apply to potentially entitled persons who had not relied on the statute during the interim period, but it would not apply to those entitled persons who did rely on the statute during the interim period. Consequently, the right of the latter group of persons to receive the grant was held to remain valid.

The minority opinion was that it was not possible to construe the statute narrowly as aforesaid, and therefore the retroactive suspension ought to be declared void for unconstitutionality.

Petition granted, in the manner held by the majority (Justice Cheshin, President A. Barak, and Justices A. Procaccia and D. Beinisch), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

Voting Justices:

Cheshin, Mishael

Primary Author

majority opinion

Barak, Aharon

Author

concurrence

majority opinion