Petition granted.

30 Sivan 5766.

26 June 2006.

 

 

EA 92/03

 

1. Shaul Mofaz
2. National Liberal Movement—Likud List for the Sixteenth Knesset

 

v.

 

3. Chairman of the Central Elections Committee for the Sixteenth Knesset
4. Central Elections Committee for the Sixteenth Knesset

 

The Supreme Court

[May 15, 2003]

Before President A. Barak, Vice-President S. Levin, Justices E. Mazza, T. Strasberg-Cohen, D. Dorner, Y. Turkel, D. Beinisch, I. Englard, E. Rivlin, A. Procaccia and E. Levi

 

Elections Appeal against the decision made by the Central Elections Committee on January 2, 2003.

 

Facts: Petitioner 1, who served as Chief of Staff of the Israeli Defense Forces, was included on the list of candidates submitted by petitioner 2 for elections to the Knesset. The Chairman of the Central Elections Committee determined that petitioner was ineligible to present his candidacy. Israeli law provided for a cooling off period—a certain amount of time had to pass from a candidate’s discharge from the army or civil service and the time he presented his candidacy. The Chairman determined that petitioner had not met the requirements of the applicable cooling-off period. Petitioners appealed this decision. They asserted that the legislation of the cooling-off period was unconstitutional and that, in any event, he had waited the relevant cooling-off period before presenting his candidacy.

 

Held: The Supreme Court held that petitioner was ineligible to present his candidacy for the Knesset. The Court held that the legislation of the cooling-off period was constitutional, both with regard to its effect of the equality of the Knesset elections, and also with regard to the manner in which the law was passed by the Knesset. Additionally, the Court rejected petitioner’s alternate method of calculating the relevant cooling-off period.

 

Basic Laws cited:

Basic Law: The Knesset, §§ 4, 6, 7, 7(8), 7(9), 7(10), 46

Basic Law: The Knesset (Amendment No. 13)

Basic Law: Human Dignity and Liberty

 

Legislation cited:

Knesset Elections Law (New Version)-1969, §§ 56(1A), 57(j), 64(a)

Permanent Service in the Israeli Defense Forces (Pensions) (New Version) Law-1985

Service in the Defense Forces—Cooling-Off Period (Legislative Amendments) Law-2001

 

Israeli Supreme Court cases cited:

[1]HCJ 3081/95 Romeo v. Scientific Council of the Israel Medical Organization IsrSC 50(2) 177

[2]CA 1842/97 Ramat Gan Municipality v. Menachamei Ramat Gan David Towers IsrSC 54(5) 15

[3]HCJ 10455/02 Amir v. Bar Association (unreported decision)

[4]HCJ 6652/96 Association for Civil Right in Israel v. Minister of Interior IsrSC 52(3) 117

[5]HCJ 7111/95 Local Government Center v. The Knesset IsrSC 50(3) 4

[6]HCJ 7157/95 Arad v. Chairman of the Knesset  IsrSC 50(1) 573

[7]EA 2/84 Neiman v. Chairman of the Central Elections Committee of the Eleventh Knesset IsrSC 39(2) 225

[8]FH 10/69 Bornowski v. Chief Rabbis of Israel IsrSC 25(1) 7

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

[10]HCJ 3434/96 Hofnung v. Chairman of the Knesset IsrSC 50(3) 57

 

Israeli books cited:

[11]2 A. Barak, Interpretation in Law—Interpretation of Legislation44 (1994)

[12]3 A. Barak, Interpretation in Law—Constitutional Interpretation 44 (1995)

 

Appeal dismissed.

 

For appellant 1—A. Klegsbeld, A. Shraga and G. Blai

For appellant 2— A. Haberman

For the respondents— R. Haimowitz

For the party requesting to intervene as respondent— A. Lorch and B. Fail

For the Attorney-General— A. Helman

 

 

 

JUDGMENT

Justice E. Mazza

 

Petitioner 1, Mr. Shaul Mofaz [hereinafter the petitioner] was formerly the Chief of Staff and was discharged from the Israel Defence Forces with the rank of major general.  He was included in the list of candidates submitted by petitioner 2 [hereinafter the Likud list] for the elections for the sixteenth Knesset.  On December 25, 2002, the Chairman of the Central Elections Committee, Justice M. Cheshin, determined that the petitioner was ineligible to submit his candidacy for the Knesset election.  This was due to the fact that at least six months— the “cooling-off” period established for an officer of his rank in section 56 (1A) of the Knesset Elections Law (New Version)-1969 [hereinafter Elections Law]—would not pass between the time at which he had ceased to serve in the military (August 11, 2002), and the time at which the elections were to be held (January 28, 2003). On January 2, 2003, the Central Elections Committee adopted the position of the Chairman of the Committee concerning the petitioner’s ineligibility.  The appeal before us was directed against this decision.  In anticipation of the appeal, the Attorney-General submitted a statement supporting the decision of the Central Elections Committee.  Attorney Amnon Lorch, a member of the Central Elections Committee, who petitioned the Chairman of the Committee regarding the petitioner’s eligibility to submit his candidacy, requested that he be added as an additional respondent.  On January 7, 2003, we heard the petitioner’s arguments, as well as the arguments of the representative of the Attorney-General and Attorney Lorch. On January 9, 2003, we were unanimous in dismissing the appeal. Our judgment stated that our reasoning would be given separately. These reasons are set out here.

 

 

Facts

 

2.   On July 9, 1998, appellant was appointed Chief of Staff of the Israeli Defense Forces.  Upon his appointment, he was promoted from the rank of general to major-general.  On July 9, 2002, Major-General Moshe Yaalon replaced appellant as Chief of Staff. Appellant took retirement leave, pursuant to the Dep’t of Human Resources Standing Orders in the Matter of “Retirement Leave and Conditions of Service—Pension Leaves for Soldiers in Permanent Service.”  Soon after taking leave, appellant accepted employment at a research institute in the United States.  He approached the head of human resources of the Dep’t of Human Resources General Staff, Colonel Miriam Zersky, on August 11, 2002 and requested an immediate discharge from the military. The head of Human Resources saw no reason to deny the request for an immediate discharge from the army.  However, she explained that, in light of the provisions of the Permanent Service in the Israeli Defense Forces (Pensions) (New Version) Law-1985, [hereinafter the Pensions Law], granting a discharge prior to the middle of the month could cause financial loss to the appellant. As such, she suggested that appellant’s discharge be considered effective retroactive from the end of July 2002.  After finding that this suggestion did not deviate from the standard practice, appellant agreed.  Appellant was discharged from the IDF on August 11, 2002. However, in the documentation regarding the discharge process, the date of discharge was recorded as July 31, 2002. 

 

On November 5, 2002, the Prime Minister announced that, pursuant to his authority, he was dissolving the fifteenth Knesset and advancing the date of the elections. Elections for the sixteenth Knesset were set to take place on January 28, 2003.  The appellant was selected to be a candidate for the list of the Likud party, which was submitted to the Central Elections Committee.  Objections were submitted to the Chairman of the Central Elections Committee as to the eligibility of the appellant to be a candidate for the elections.  A similar petition was also submitted by Amnon Lorch, a member of the Central Elections Committee on behalf of the Labor Party.  The petition requested that the Chairman of the committee determine the appellant ineligible to be a candidate. After holding a hearing, the Chairman of the Central Elections Committee determined that the appellant was ineligible to be a candidate in the elections.  After the Central Elections Committee approved the Chairman’s determination, the appellant’s name was removed from the Likud list.

 

The Normative Framework

3. Section 7 of the Basic Law: The Knesset provides that certain persons may not be candidates for the Knesset elections. For convenience, I will here cite section 7 in full, while emphasizing the provisions at the center of our discussion here:

 

7. Who Shall Not Be A Candidate

 

7. The following shall not be candidates for the Knesset:

1. The President of the State;
2. The two Chief Rabbis;
3. A judge;
4. A judge of a religious court;
5. The State Comptroller;
6. The Chief of the General Staff of the Israeli Defense Forces;
7. Rabbis and ministers of other religions, so long as they receive a salary for holding office;
8. Senior state employees and senior army officers of such grades or ranks and in such functions as shall be determined by Law;
9. Police officers and jailors of such grades or ranks and in such functions as shall be determined by Law;
10. Employees of corporations established by law, of such grades or ranks and in such functions as shall be determined by Law;

 

Unless such persons have ceased to hold the stated office or function, prior to the date for the submission of Knesset candidate lists, or, if the law prescribes an earlier date, prior to the date mentioned.

 

The latter part of section 7 determines that those holding the offices or functions listed in the section are not longer precluded from presenting their candidacy if they cease to hold the offices or functions “prior to the date for the submission of Knesset candidate lists.”  However “if the law prescribes an earlier date,” the period of preclusion will expire only if the person holding that office or function ceases to do so “prior to the date mentioned.” Thus, with regard to the time at which the preclusion period expires, the latter part of the section distinguishes between those holding offices or functions, with regard to whom the law does not prescribe a cooling-off period and those holding offices or functions, with regard to whom the law does provide a cooling-off period.  The preclusion regarding the former expires if they cease to hold that office or function before the date provided by section 57(i) of the Election Law, for the submission of the Knesset elections lists. Preclusion regarding the latter, however, expires only if they cease to hold that office or function before the date of the commencement of the cooling-off period, as provided by law. 

     

We are here dealing with a former Chief of Staff who was released from permanent service holding the rank of major-general. There is no specific provision which prescribes a special cooling-off period for a former Chief of Staff, who desires to present his candidacy for the Knesset. However, the standard cooling-off period set for officers of his rank do apply to him.  Section 56 (1A) of the Elections Law provides cooling off periods for state employees, soldiers, police officers and jailors. I will here cite the language of section 56 (1A), while highlighting the sections at the center of our discussion:

 

56 (1A) Provisions Regarding State Employees, Soldiers, Police Officers and Jailors

                           

The following shall not be candidates for the Knesset:

 

1. State employees of one of the four  top ranks;
2. State employees in  a grade lower than 3, under the top rank of each ranking, if a range of ranks comprising the said rank 3 has been fixed for their posts;
3. Military  officers of any rank whatsoever in the permanent service of the Israeli Defense Forces;
4. A police officer in the Israeli Police and a jailor in the Prison Service,

 

unless they have ceased to be State employees, military officers, police officers or jailors, as said, before the determining day.

 

For the purposes of this sub-section, “the determining day” shall be—

 

1. With regard to the head of General Security Service, the head of the Mossad—The Institute for Intelligence and Special Tasks, military officers of the rank of general  or above, police officers of the rank of commissioner or above, and the Commissioner of the Prison Service—six months before election day;
2. With regard to state employees, military officers, police officers or jailors, not listed in paragraph (1)—100 days before election day; regarding early elections, where such are announced less than 100 days prior to the time they are to be held—10 days from the day of the determination of the said time.

 

Thus, the law applies a cooling-off period to any person who has been a military officer in the permanent service.  With regard to the length of the cooling-off period, the law distinguishes between military officers of the rank of “general or above” and military officers of lower ranks. The former must leave their position six months before elections to be eligible for candidacy. With regard to the latter, the law is satisfied with a cooling-off period of 100 days or, in early elections, under the conditions provided, with an even shorter cooling-off period.  Under section 56 (1A), appellant, as one who served in the permanent service and was a “military officer of the rank of general or above,” is eligible for candidacy only if he ceases to be a military officer at least six months before elections.  It should also be emphasized that the latter part of the section, which allows for the shortening of the cooling-off period where it has been announced that early elections will be held, applies only to military officers of a rank lower than general.  Thus, it does not apply to appellant.

 

4.   It should be noted that the language of section 56 (1A) is the product of an amendment made to the Elections Law in 2001. Until this amendment, the section provided for a uniform 100-day cooling-off period for all those listed, including military officers of all ranks.  This was changed with the legislation of the Service in the Defence Forces—Cooling-Off Period (Legislative Amendments) Law-2001 [hereinafter Cooling-Off Period Law]. Section 1 of this act replaced the definition of the “determining day” in the latter part section 56 (1A).  The amended version provides that military officers of the rank of general or above, as well as police officers of the rank of commissioner or above and the Commissioner of the Prison Services, are subject to a six-month cooling-off period. It should also be noted that the latter part of section 7 of the Basic Law: The Knesset—from the section which begins with the words “unless they have ceased to hold the stated office or function”—was also added to the Basic Law in an amendment made in 2001.  See Basic Law: The Knesset (Amendment No. 33). The two legislative amendments were made within a week’s time of each other in July of 2001. The Cooling-Off Period Law was passed in Knesset on July 16, 2001, while amendment 33 of the Basic Law was passed by the Knesset on July 23, 2001.

 

Does the Appellant Have Standing to Appeal?

5.   In his response to the appeal, the Attorney-General argued that the appellant does not have standing to appeal the decision of the Central Elections Committee. This claim rests upon section 64(a) of the Elections Law.  The provisions of the section provide that where the Central Election Committee has refused to approve a candidate list, or one of the candidates included in that list, the list may appeal the refusal to the Supreme Court.  From the language of this provision, it does in fact seem that an individual candidate, whose candidacy has not been approved by the Central Elections Committee, does not have standing to appeal the decision.

 

As we have come to the conclusion that, substantively, the appeal itself should be dismissed, we can leave the question of standing undecided.  The following considerations support this approach: an appeal on behalf of the Likud—which utilized its right to appeal under section 64(a), and whose claims are identical to those of the appellant—is also before us.  It should also be noted that the Attorney-General agreed that, even if the appellant did not have standing to appeal, he had the right to petition the decision of the Elections Committee to the High Court of Justice. It also agreed that if this Court finds cause to intervene in the decision of the Elections Committee, it would be allowed to decide in the matter of the appellant’s appeal as if it were a petition in which an order nisi had been issued. Under these circumstances, I shall turn to the petition itself without resolving the question of standing.

 

The Bounds of the Conflict and the Decision of the Chairman of the Central Elections Committee

 

6.   The appellant’s position, before the Chairman of the Central Elections Committee as well as in this appeal, was that there is no legal cause to disqualify him from eligibility to be a candidate in the Knesset elections.  First, appellant claims that section 1 of the Cooling-Off Period Law, under which section 56 (1A) of the Elections Law was amended, does not meet the constitutional requirements of the Basic Law: The Knesset.  Therefore, it should be declared null and void.  According to this claim, military officers of the rank of “general or above” should only be subject to the 100-day cooling-off period, as provided by section 56 (1A) prior to its amendment. 

 

Second, even if we assume that the appellant is subject to the six month cooling-off period, as provided by the amended section 56 (1A), appellant asserts that the cooling-off period should not be calculated from August 11, 2002—the date that appellant was discharged from service.  It should rather be calculated from July 9, 2002, the date that appellant ceased to serve as Chief of Staff or, alternatively, from July 31, 2002, which the military records note as the date of the appellant’s discharge. 

 

As a supplement to this alternative claim that the cooling-off period should be calculated from July 31, 2002, appellant additionally asserts that the cooling-off period should be calculated according to the Hebrew calendar and not according to the Gregorian calendar.  This latter argument does not affect either of the other two dates in question. If calculation of the cooling-off period should begin on July 9 2002, use of either calendar would lead to the conclusion that the appellant is eligible to present his candidacy for the elections.  If the calculation begins on August 11 2002, use of either of the calendars would lead to the conclusion that the appellant is not eligible to be a candidate.  However, appellant’s alternative claim that the cooling-off period should be calculated from July 31, 2002, would only help him if the cooling-off period is calculated according to the Hebrew calendar.  Calculating the period according to the Gregorian calendar would not have helped the appellant, since only five months and twenty eight days pass between the two dates—from July 31, 2002 to January 28, 2003. However, according to the Hebrew calendar six months and three days pass between the two Hebrew dates parallel to the Gregorian dates above—beginning from the 22^nd of Av, 5762 and ending with the 25^th of Shvat, 5763.

 

7.   The Chairman of the Central Elections Committee believed that he did not have the authority to address appellant’s claim that the amendment of section 56 (1A) of the Elections Law was inconsistent with the constitutional provisions of the Basic Law: The Chairman, however, did note as an aside that he saw such claims as groundless. The Chairman based his decision on the interpretation of the current language of the provisions of section 7 of the Basic Law: The Knesset and section 56 (1A) of the Elections Law.  He examined which of the three alternative dates should constitute the “start day” that would touch off appellant’s cooling-off period. He explained why the appellant’s claims should be rejected.  In clear and strong language, he decided that the cooling-off period should being on August 11, 2002 since it is the day upon which the appellant ceased to be a military officer of the rank of “general or above.” As such, the Chairman found it unnecessary to address appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar. 

 

8.   In my opinion, all of the considerations upon which the Chairman of the Central Elections Committee based his decision are correct. However, before addressing the substance of these considerations and appellant’s objections to them, I will first explain my reasons for rejecting appellant’s constitutional claim, which was not addressed by the Chairman.  Significantly, in the proceedings before the Chairman, the appellant largely directed his energies towards the interpretive question—what is the “determining day” for the beginning of the calculation of the cooling-off period. However, in his arguments before us, he focused on the claim that the amended provision of section 56 (1A) should be declared null and void.

 

The Constitutional Matter— Validity of the Cooling-Off Period Law

 

  9.   The appellant attempted to convince us that section 1 of the Cooling-Off Period Law and the 2001 amendment to section 56 (1A) of the Elections Law do not meet the requirement of the Basic Law: The Knesset.  He based this position on four arguments.  Two of them were directed against the validity of the Cooling-Off Period Law, while the two others were directed against section 56 (1A) of the Elections Law, and the question of whether it meets the constitutional standards of the Basic Law.  I will first address the first two arguments.

 

10.   Appellant asserts that the Cooling-Off Period Law is null and void. In making this assertion, appellant points to a deficiency in the legislation of the law as well as to a lack of authority to legislate such an act. The first argument goes as follows: in extending the cooling-off period which applied to military officers of the rank of “general or above,” the legislature  violated the principle of equality, which is one of the foundations upon which elections for the Knesset are based, and which is enshrined in section 4 of the Basic Law.  Since this constitutes a “change” according to section 4 of the Basic Law, and in light of the conditions of sections 4 and 46, in order to pass the Cooling-Off Period Law, an absolute majority of Knesset members was needed in each of the three readings in which the Law was brought before the assembly.  This condition was not met.  During the second and third readings a majority of Knesset members did in fact vote in favor of the law, however, during the first reading on February 20 2001 (see Minutes of the Knesset 2001, 2791-2800), the bill was only passed by a regular majority.  Appellant asserts that this flaw in the legislative process means that the law is null and void.

 

The second argument goes as follows: the Cooling-Off Period Law is in conflict with the fundamental right to be elected, which every citizen is entitled to under section 6 of the Basic Law.  The language of section 56 (1A) of the Elections Law, prior to enactment of the Cooling-Off Period Law, limited the right of those holding the offices and functions listed in the section to present their candidacy.  With regard to some of these—including military officers in the permanent service—the right to present candidacy was conditioned upon a 100-day cooling-off period.  With the amendment of the provisions of section 56 (1A), made by the Cooling-Off Period Law, the cooling-off period applicable to military officers of the rank of general or above was extended to six months.  According to appellant, since legislation of the Cooling-Off Period Law preceded legislation of Amendment no. 33 of the Basic Law, the extension of the cooling-off period had no legal foundation in the Basic Law. Absent explicit authorization in the Basic Law itself, the legislature was not allowed to extend the cooling-off period applicable to the appellant. Amendment no. 33 to the Basic Law, which was legislated after the legislation of the Cooling-Off Period Law, does not have the power to retroactively remedy this flaw. Appellant asserted that this means that the law is null and void. 

 

11.   It is appropriate to begin by stating that, even if section 1 of the Cooling-Off Period Law is found to be flawed as the appellant suggests, the necessary conclusion would not be that it is null and void but rather that, at the time at which the law was passed in the Knesset, it was invalid. See 2 A. Barak, Interpretation in Law—Interpretation of Legislation 44 (1994). Appellant’s claim that the section is null and void rests upon the doctrine of absolute nullification, which provides that deviation from authority leads to “automatic” nullification of the legislation or administrative decision.  However, for over a decade, the doctrine of relative nullification has become more and more established in our caselaw, while earlier approaches—such as the approach of absolute nullification—are gradually fading. The doctrine of relative nullification has generally been applied in the context of the review of administrative decisions.  See, e.g., HCJ 3081/95 Romeo v. Scientific Council of the Israel Medical Organization [1]; CA 1842/97 Ramat Gan Municipality v. Menachamei Ramat Gan David Towers [2]; HCJ 10455/02 Amir v. Bar Association (unreported decision) [3].  However, it seems that the model of relative nullification is also appropriate—even perhaps preferable—for our review of legislation. See 3 A. Barak, Interpretation in Law—Constitutional Interpretation 724 (1994). See also HCJ 6652/96 Association for Civil Right in Israel v. Minister of Interior [4]. There is considerable significance to the application of the doctrine of relative nullification here. 

 

  12. In examining the appellant’s first two arguments, I will presume that the process through which the Cooling-Off Period Law was passed was in fact flawed in the two ways asserted—first, that in its first reading, the law was passed by a regular majority despite the fact that an absolute majority was required in all three readings and, second, that at the time it was passed, the Basic Law did not include any provision which authorized legislation of the Cooling-Off Period Law.  It should be noted that consideration of the second flaw does not raise any complex issues, whereas addressing the question of the first flaw would require dealing with the problematic matter of HCJ 7111/95 Local Government Center v. The Knesset [5]. The issue in Local Government was whether section 4 of the Basic Law, which provides that the elections be “equal,” should be interpreted as requiring equality between individual candidates or only between candidate lists. Of course, extension of the cooling-off period violated, at most, any requirement of equality between candidates, and not any requirement of equality between candidate lists. As such, if section 4 of the Basic Law only requires equality between the candidate lists, then the “absolute majority” requirements of sections 4 and 46 would not apply to the Cooling-Off Period Law. 

 

However, as stated, I choose to presume that the appellant is correct with regard to both flaws. In light of this presumption, I will excuse myself from discussing what kind of equality is required by the Basic Law.  I have chosen this path for practical reasons: Amendment no. 33 of the Basic Law: The Knesset was only intended to remedy the second flaw—the absence of a provision in the Basic Law which would authorize the Knesset to set a cooling-off period. However, the enactment of Amendment no. 33 of the Basic Law, which in itself was passed by an absolute majority of members of the Knesset, would retroactively remedy the first flaw—the question of equality—as well.

 

13. Appellant asserted that Amendment no. 33 of the Basic Law: The Knesset does not have the power to retroactively remedy the flaw in the legislation of the Cooling-Off Period Law. The Attorney-General responded that amendment of the Basic Law remedied the flaw in the legislation of the Cooling-Off Period Law. Without generally ruling that an amendment of a Basic Law has the power to retroactively remedy the fact that a statute conflicted with a Basic Law prior to the amendment of the latter, it seems to me that in the special circumstances here, Amendment no. 33 of the Basic Law: The Knesset does have the power to remedy the flaws in the legislation of the Cooling-Off Period Law.

 

As noted, Amendment no. 33 of the Basic Law was passed a week of the Cooling-Off Period Law. Awareness of the need for the amendment to the Basic Law, as a condition for the validity of the Cooling-Off Period Law, already arose in the hearings of the Constitution, Law & Justice Committee of the Knesset on March 27, 2001, at which time the Committee approved the Cooling-Off Period Law for its second and thirds readings.  This awareness led the Constitution, Law & Justice Committee to publicize the bill for the amendment of the Basic Law.  See the proposed Basic Law: The Knesset (Amendment 45) (Limitations on Knesset Candidacy for Persons Holding Office), Bill 3014-2001, from June 18, 2001.  In the notes to the bill, it was explicitly noted that the addition of the latter part of section 7 of the Basic Law, as  amended, was intended to be “authorize legislation regarding cooling-off periods in a regular law.” 

 

Examination of the legislative history of Amendment no. 33 does not leave any doubt as to the object of the proposed amendment, which was brought before the Knesset together with the proposed Cooling-Off Period Law with the intention of discussing both bills and approving them simultaneously.  I will briefly recount the development of the situation:  On July 3, 2001, the Knesset assembly held a joint hearing with regard to the proposed amendment of the Basic Law and the proposed Cooling-Off Period Law. In the discussion, the Chairman of the Constitution, Law & Justice Committee, MK Ophir Paz-Pines, explained that the amendment of the Basic Law was intended to constitutionally validate the Cooling-Off Period Law (Minutes of the Knesset 2001, 5980-5986).  The two bills were once again placed on the table of the Knesset assembly on July 16, 2001.  Once again MK Paz-Pines explained the need to amend the Basic Law in order that the Cooling-Off Period Law be constitutionally valid (Minutes of the Knesset 2001, 6519-6521).  In that same meeting, close to the time at which the Cooling-Off Period Law passed its second and third readings, the Knesset approved, be a majority of its members, Amendment no. 33 of the Basic Law, in its first reading.  However, voting with regard to the second and third readings was postponed for a week.  It is significant to add that when Amendment no. 33 of the Basic Law was brought to a vote of its second and third readings, on July 23, 2001, MK Paz-Pines yet again mentioned that the amendment constituted an integral part of the legislative process of the Cooling-Off Period Law (Minutes of the Knesset 2001, 684-6865).

 

14. Amendment no. 33 of the Basic Law: The Knesset, which was passed by a majority of the members of Knesset in all of its three readings, added the following to the end of section 7 of the Basic Law:

 

Unless they have ceased to hold the stated office or function, prior to the date for the submission of Knesset candidate lists, or, if the law prescribes an earlier date, prior to the date mentioned.

 

This amendment authorized the Knesset to establish, in a regular law, cooling-off periods for those holding the offices and functions listed in section 7.  Examination of the commentaries to the bills and the legislative histories of both Amendment no. 33 and the Cooling-Off Period Law make it clear that this was the purpose, or at least one of the purposes, of Amendment no. 33.  There was indeed a defect in the manner in which the legislative process was managed. Amendment no. 33 should have been enacted prior to, or at the same time as, the Cooling-Off Period Law. The Knesset, however, passed the Cooling-Off Period Law one week before enacting Amendment no. 33. Under these circumstances, I cannot accept appellant’s claim that Amendment no. 33 could not remedy the flaws in the legislative process of the Cooling-Off Period Law.  I am not of the opinion that the flaws in enacting the Cooling-Off Period Law could only have been remedied by bringing the law to a new vote before the Knesset, subsequent to the passing of Amendment no. 33.  As I have already stated, the flaws in the legislation of the Cooling-Off Period Law, did not absolutely nullify its enactment. All that may be concluded from these flaws is that at the time at which the Knesset passed the law, it was not valid.  As stated, I do not wish to state, as a general rule, that a Basic Law has the power to retroactively remedy a constitutional flaw in the enactment of legislation. Nevertheless, in the special circumstances here, I find it appropriate to hold that Amendment no. 33 of the Basic Law did in fact remedy the flaws in the legislation of the Cooling-Off Period Law.

 

It seems to me that this decision is the proper interpretation of the law. The doctrine of relative nullification allows the Court to reach a proportional and balanced decision with regard to the validity of section 1 of the Cooling-Off Period Law, and I see no reason to doubt its application to the matter at hand.  Although at the time it was passed the section was in conflict with section 6 of the Basic Law: The Knesset—and perhaps also with section 4 of the Basic Law—after the amendment of the Basic Law, the flaw in the legislation of the Cooling-Off Period Law was remedied. We need not hold that the amendment remedied the flaw retroactively, that is to say, from the day the Cooling-Off Period Law was passed.  It is sufficient to hold that the flaw was remedied from the time of the enactment Amendment no. 33 of the Basic Law.

 

Position of the Cooling-Off Period Law in the Constitutional Scheme of the Basic Law: The Knesset

 

 15. As noted, the Cooling-Off Period Law amended section 56 (1A) of the Elections Law.  Appellant asserted that even if the Cooling-Off Period Law is presumed to be valid, it does not meet the constitutional standards of the Basic Law: the Knesset. For the following reasons, appellant claims that the amendment is not valid. First, it discriminates against military officers of the rank of “general or above,” in comparison to the other office holders listed in section 7 of the Basic Law, such as the President, the Chief Rabbis, and judges, who are not subject to any cooling-off period. Furthermore, it also discriminates them in comparison to persons in positions similar to theirs, such as military officers of the rank of brigadier general and below, who are only subject to a 100 day cooling-off period. Second, the law denies them the right to the shortening of the cooling-off period upon the announcement of early elections, which all military officers in permanent service were entitled to prior to the amendment of section 56 (1A). After the amendment, however, this right is only granted to military officers who are subject to a 100 day cooing period. As such, senior officers such as the appellant lost the right to choose whether to retire from their service immediately and present their candidacy for early elections, which they were entitled to do under section 56 (1A) prior to its amendment.  Appellant asserts that depriving them of their right to choose is not only a limitation of the right to be elected, but also an absolute denial of that right. As such, appellant requests was that we apply the “choice doctrine,” which the Court discussed in HCJ 7157/95 Arad v. Chairman of the Knesset [6].

 

16.  These two arguments should be rejected. No one contests the fact that “the right to be elected is a fundamental political right, in which the ideas of equality, freedom of expression and freedom of assembly are manifest, and that this right is one of the significant symbols of a democratic society.” EA 2/84 Neiman v. Chairman of the Central Elections Committee of the Eleventh Knesset, [7] at 264 (Shamgar, P.).  It is, of course, important that every citizen who wishes to run for election be given the opportunity to realize this right.  However, against this consideration stands the need to guarantee the independence of the civil service. The provisions of the Basic Law: The Knesset and the Elections Law, which place certain limitations on the right to run for election, are intended to guarantee that independence. My colleague, President Barak, has addressed this issue in Arad,  [6] at 587. 

:

The realization of these rights, to vote and be voted for, lies at the foundation of the political structure of the State of Israel. However, the Basic Law: The Knesset sees the opposing consideration as primary, in order to ensure the apolitical nature of the civil service.  Indeed, active involvement in the political struggle as a candidate for the Knesset is perceived by the Basic Law as a violation of the apolitical nature of the civil service, so much so that in the eyes of the Basic Law, a choice was necessary between continuing in the civil service or submitting one’s candidacy for the Knesset. According to this choice, the “purity of the civil service” is a superior consideration. It seems that at the base of this preference stands the recognition that the key to the realization of the right to be elected is in the hands of the civil servant. He usually has the power to resign from his position in the civil service, thus paving the way for the realization of the right to be elected.

 

We see that it is essential to preserve the independence of the civil service. This requires the restriction of the right of those holding office in the civil service to run for election. Section 56 (1A) of the Elections Law distinguishes between those holding some positions in the civil service, who may not present their candidacy only so long as they are in office, and those holding other positions, to whom the limitations on their right to run continues for a period of time after they have left office. Among the latter, who are subject to a cooling-off period, the legislature was especially strict regarding those who have held the highest positions in the defence forces: the head of the General Security Service, the head of the Mossad, military officers in permanent service of the rank of general and above, police officers of the rank of commissioner and above, and the Commissioner of the Prison Service. Only this group of senior officers is subject to a six month cooling-off period. Only they are not entitled to the shortening of the cooling-off period in the event of early elections. Does this stringency with regard to these senior positions constitute a violation of equality?  I am of the opinion that the answer to this question is in the negative. 

 

The legal standard is that relevant differences between parties may justify distinguishing between them.  Such distinctions are not in conflict with the requirement of essential equality between those parties.  As is known, this is the difference between unacceptable discrimination and permissible distinctions. See FH 10/69 Bornowski v. Chief Rabbis of Israel, [8] 35. This is true so long as the nature and degree of the distinction is indeed necessary and justified, under the circumstances, for the achievement of the purpose for which the distinction is being made.  See HCJ 4541/94 Miller v. Minister of Defense, [9] at 100.  The application of this rule to the case at hand leads to the conclusion that the strict cooling-off regulation does not violate the principle of equality.

 

17.  However, even if I presume that the regulation does violate the principle of equality, I am still of the opinion that there is no basis to claim that the violation exceeds the limits of the Basic Law: The Knesset. In this situation, we have resort to the three-part test of section 8 of the Basic Law: Human Dignity and Liberty, which looks to ensure that the law in question accords with the values of the State of Israel, that it has a proper purpose, and that it is proportional. Of course, the Basic Law: The Knesset does not include a limitations clause analogous to section 8 of the Basic Law: Human Dignity and Liberty. The question has been raised whether, in reviewing legislation which allegedly conflicts with the principle of equality in the Basic Law: The Knesset, the Court may apply the tests of the limitations clause of section 8 of the Basic Law: Human Dignity and Liberty. See HCJ 3434/96 Hofnung v. Chairman of the Knesset, [10] at 69-70 (Zamir, J.).  I myself see no reason to refrain from doing so. The three-part test of the limitations clause is now seen as the proper judicial tool for testing the constitutionality of a law. As it has become one of the foundational principles of our constitutional system, the Court may implement it even in the absence of an explicit limitations clause in the relevant Basic Law. 

 

The establishment of strict cooling-off regulations for the highest level of officers and commanders in the armed forces is in harmony with the democratic values of the state, and it does not conflict with its Jewish values. The purpose of the regulations is also proper. In as much as the preservation of the independence of the civil service, including the armed forces, is important, preservation of the independence of the senior command in the armed forces and security services is especially and particularly important.  When a person runs for election, where only a few months prior he wore an army uniform and held the rank of major-general or general, this raises the suspicion that recent decisions which he made in the military were influenced by his political views, which became public upon submission of his candidacy for political office. Moreover, when a person who recently held authority in one of the state’s armed forces presents his candidacy for the Knesset, this can raise suspicions of improper conduct. Subjecting senior officers and commanders to a cooling-off period, which is longer than that period imposed upon officers of a lower rank, was intended to assuage these suspicions. As such, the purpose of the law is a proper one. Moreover, in my opinion, there is no basis for the claim that the period prescribed does not meet the requirement of proportionality. The six month cooling-off period is the time that the legislature believed to be necessary for the achievement of this purpose.

 

It is indeed true that an officer of the rank of the appellant does not have a “right to choose,” such as that granted to military officers of the rank of brigadier general or lower, or to those of a parallel rank in the other security services by the latter part of section 56 (1A). This latter category of officers may choose to retire from their service upon the announcement of early elections and be eligible to present their candidacy. However, the preservation of the independence of the armed forces demands and justifies stringency with regard to persons of senior rank, who are well-known to the public at large. This is in contrast to persons of junior rank, most of whom are unknown to the general public. Depriving these higher ranks of their right to choose, as well as imposing upon them an obligation to meet a longer cooling-off period, is a part of the restrictions demanded of their high rank and the senior positions which they filled during their service.

 

This ruling applies to the appellant.  With this in mind, and not only due to the differences between the circumstances of the two cases, the “choice doctrine,” which the Court discussed in Arad [6] is of no aid to the appellant.

 

The Interpretive Perspective

 

  18.   The main question before the Chairman of the Central Elections Committee was when the appellant’s cooling-off period began, as defined by section 56 (1A) of the Elections Law. Those who requested the disqualification of the appellant argued that this period should be calculated from August 11, 2001, since on that day the appellant was discharged from his service in the army, and he ceased to be a military officer in the permanent service of the rank of “general or above.” The appellant argued that the calculation should begin on July 9, 2002, or, alternatively, on July 31, 2002.  The first of these two is the date upon which the appellant ceased to hold the position of Chief of Staff. The second is the date which, in the army’s official records, is noted as the date of appellant’s discharge from service. As stated, the Chairman of the Central Elections Committee rejected appellant’s arguments and determined that appellant’s cooling-off period should be calculated from August 11, 2002. In light of this conclusion, he saw no reason to make a decision with regard to appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar.

 

In the appeal before us, the appellant repeated his claims regarding the calculation of the cooling-off period.  During oral arguments, the Attorney-General supported the evaluation and reasoning of the Chairman of the Elections Committee. As I have noted, I find the reasons given by the Chairman of the Elections Committee for his decision to be acceptable.

 

19.  Appellant’s central argument was that the cooling-off period should be calculated from the day he ceased to hold the position of Chief of Staff.  He argued that the provisions of section 56 (1A) of the Elections Law should not be interpreted literally.  Rather, they should be interpreted according to their purpose, in other words, according to the rationale for the establishment of the cooling-off period.  He asserted that the impetus for subjecting a military officer of the rank of general or above to a six month cooling-off period does not stem from his high military rank per se, but rather from the senior position which he held during his service. He argues that this interpretation emerges from section 7 of the Basic Law: The Knesset, under which the restrictions placed upon those listed in the section expire if “they have ceased to hold the stated office or function, prior to the date.”  Thus, the restrictions exist so long as the person holds his office or function. If he is subject to a cooling-off period, it would be proper to calculate the cooling-off period from the day he ceased to hold his office or function. Therefore, when the appellant ceased to hold the position of Chief of Staff, took retirement leave, and no longer filled any military position, the restrictions upon his candidacy ended and his cooling-off period began.

 

I cannot entertain this claim.  Section 7 of the Basic Law lists those officers who “shall not be candidates for the Knesset.” Among those who are restricted from presenting candidacy are, as provided by sub-section 7(8), “senior state employees and senior army officers of such grades or ranks and in such functions as shall be determined by Law.”  Similar provisions are included in the Basic Law with regard to police officers and jailors, in sub-section 7(9), and with regard to employees of corporations established by law, in sub-section 7(1).  With regard to each of these, the Basic Law authorized the legislature to deprive those involved of their right to be elected, whether due to their rank or due to their function.  The legislature was also granted the authority to determine who would be subject to a cooling-off period. The legislature conditioned the preclusion of most of those listed in sections 7(8) and 7(9) of the Basic Law upon the officers’ rank, not upon the position they filled.  Thus, for example, the Elections Law does not state that the limitations on the right to be elected apply to the Chief of Staff of the Israeli Defense Forces or to the Inspector General of the Israeli Police. The limitations apply to military and police officers of the two highest ranks—“general or above” and “commissioner or above.”  In this context, we note that another proposed bill, which served as the basis for the legislation of the Cooling-Off Period Law and the amendment of section 56 (1A), it was suggested that senior officers should be subject to a one year cooling-off period, which was to begin when active duty ended.  The notes accompanying the bill clarified that “this year will include retirement leave, during which those officers do not actively serve, although they are still officially a part of the body in which they served.” See Proposed Knesset and Prime Minister Elections (Amendment) (Cooling-Off Period for Senior Officers) Law-2002, Bill 2969, 2001, 404.  This bill, however, was not passed.  The Cooling-Off Period Law chose a different balance. On the one hand, it limited the cooling-off period to six months while, on the other hand, it provided that the cooling-off period would be calculated from the date the officer is discharged from permanent service.

 

Thus, it is clear from latter part of section 56 (1A) of the Elections Law that the restrictions on officers’ candidacy continue to apply “unless they have ceased to be … military officers [in permanent service] before the determining day.” This is the date upon which the calculation of the cooling-off period begins.  In this, the legislature showed its intention, that it is not enough that a military officer cease to hold the position he held in the army in order to mark the beginning of the cooling-off period. Rather, the “determining day” is the day upon which the officer is discharged from permanent service. The law is clear; its language and intentions are clear, and they should be applied accordingly.

 

Moreover, I am of the opinion that the legislature’s directive, according to which the cooling-off period for officers should be calculated from the date of their discharge from the army, and not from the date upon which they cease to hold their last active position, is in harmony with the rationale of the cooling-off period.  An officer on leave is still an officer in the permanent service in all respects—not only from a formal perspective, but also in light of the essential duties and prohibitions imposed upon him and from the perspective of the public. Of course, on the authority of military orders, he may be permitted to carry out certain acts during his leave as part of his preparation for civilian life. This, however, does not affect his status as an officer in the permanent service.

 

20.  Appellant’s alternative claim was that if we wish to interpret the provisions of section 56 (1A) of the Elections Law literally, the date which should be considered the “determining day” for the beginning of the cooling-off period is July 31, 2002—which the army’s official records note as the date of appellant’s discharge. 

 

This claim should also be rejected. All agree that appellant was actually discharged from service on August 8, 2002.  The fact that the head of Human Resources—for reasons concerning the provisions of the Pension Law and with the intention of preventing the appellant from incurring financial losses—recorded in the army’s records that appellant was discharged on a different date does not change the situation.  The date which begins the cooling-off period, as was correctly determined by the Chairman of the Central Elections Committee, is August 11, 2002.  Only on that date did the appellant cease to be a military officer of the rank of major-general in the permanent service.  This conclusion makes it unnecessary to address the appellant’s claim that the cooling-off period should be calculated according to the Hebrew calendar. 

 

21.  For these reasons, at the time of the decision, I supported the dismissal of this appeal.

 

President A. Barak

 

I agree.

 

Vice President S. Levin

       

I agree.  I am of the opinion that, as a matter of interpretation, Amendment no. 33 of the Basic Law: The Knesset remedies the presumed flaws in the enactment of the Cooling-Off Period Law. This makes resort to the doctrine of relative nullification unnecessary.

 

Justice D. Dorner

 

I agree with the judgment and reasoning of my colleague, Justice Eliyahu Mazza.

 

Justice Y. Turkel

 

I agree.

 

Justice D. Beinisch

 

I agree.

 

Justice I. Englard

 

I agree.

 

Justice E. Rivlin

 

I agree.

 

Justice A. Procaccia

 

I agree with the judgment and reasoning of my colleague, Justice Eliyahu Mazza.

.

Justice E. Levi

 

I agree.

 

Justice A. Grunis

 

I agree.

 

Justice T. Strasberg-Cohen

 

As my colleague, Justice Mazza, I fully accept the reasoning of the Chairman of the Elections Committee, which brought him to the conclusion that the appellant is ineligible to present his candidacy. This is sufficient to dismiss the appeal of the appellant.  I shall add that the flaws in the enactment of section 1 of the Cooling-Off Period Law—if they are indeed flaws—were remedied by Amendment no. 33 of the Basic Law: The Knesset. In any case, under the circumstances, the law should not be absolutely nullified.

 

Appeal dismissed, as per the opinion of Justice E. Mazza.

15 May 2003

 

 

 

 

 

 

 

 

 

 

 

 

Petition granted by majority decision (Justices E. Mazza, D. Dorner, T. Strasberg-Cohen), Justices Y. Kedmi, Ts. E. Tal dissenting.

15 Heshvan 5756.

8 November 1995.

 

HCJ 727/00

 

1.  Committee of Heads of Local Arab Councils in Israel

2.  Balal Ibrahim

3.  Agudat Ha’arba’aim

4.  Il Beit, the Arab Association for the Protection of Human Rights

5.  Adalah Legal Center for Arab Minority Rights in Israel

v.

1.  Ministry of Construction and Housing

2.  Prime Minister of Israel, Ehud Barak

 

The Supreme Court Sitting as the High Court of Justice

[December 12th, 2001]

Before President A. Barak, Justices J. Türkel and D. Beinisch

 

Petition to the Supreme Court sitting as the High Court of Justice for an order nisi and an interlocutory order.

 

Facts: Petition seeking the establishment of egalitarian socio-economic criteria for the implementation of the Neighborhood Restoration Project, and a similar inclusion of Arab settlements, which are ranked under the first and second cluster by the Central Office of Statistics, to the inclusion within the project of Jewish settlements which fall under that same ranking.

 

Held: In the majority opinion, written by Justice Beinisch, the petition was granted in part as to the requested criteria.  The court determined that the petition was made partially extraneous given the drafting of new criteria in 1999, and that the criteria were to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria was to be given explicit expression within the criteria.  The petition was denied in relation to the immediate inclusion of all the settlements detailed therein.

 

Israeli cases cited:

[1]      HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport, IsrSC 54(3) 233.

[2]      HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affairs IsrSC 54(2) 164.

[3]      HCJ 59/88 Tzaban v. Minister of Treasury IsrSC 42(4) 705.

[4]      HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister IsrSC 52(4) 193-205.

[5]      HCJ 1438/98 Conservative Movement v. The Minister of Religious Affairs (unreported).

[6]      HCJ 3792/95 National Youth Theater v. Minister of Science and Arts IsrSC 51(4) 259.

[7]      HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance IsrSC 46(1) 191.

[8]      HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing IsrSC 54(2) 503.

 

For petitioners – Maruan Dalel

For respondent – Malchiel Blass

 

JUDGMENT

 

Justice D. Beinisch

1.    An order nisi was issued by the Court ordering the respondents to explain why egalitarian socio-economic criteria are not to be established for the implementation of the Neighborhood Restoration Project (hereinafter: ‘the project’).  So too, the order directs the respondents to explain why they are not including all the Arab settlements which were ranked in the first and second cluster according to the rankings of the Central Office of Statistics (hereinafter: ‘the COS’) within the project in the same way that all the Jewish settlements which belong to these clusters are included in the project.

Background to the Petition

The background to the petition is the desire of the petitioners – public entities from within the Arab population – to implement educational and welfare programs in the Arab sector, a demand that has already been raised in a prior petition: HCJ 2814/97 Chief Supervision Committee for Matters of Arab Education in Israel v. Ministry of Education, Culture and Sport (hereinafter: ‘HCJ EWS’) [1].  In that petition the question of the implementation of the Division for Educational and Welfare Services (EWS division) programs in Arab educational institutions in Israel was under consideration, and it was determined that funds were to be granted gradually for implementation of the division’s programs in a manner relative to the proportion of the Arab population in the overall population in Israel.  It was clarified in that petition that some of the division’s funds are distributed via a Neighborhood Restoration Project to those settlements and neighborhoods that have been included in the project.  The claim relating to the budget for neighborhood restoration was dismissed for being too general, and because the EWS budget which relates to the Neighborhood Restoration Project constitutes only one component in the many components which result from the inclusion of a settlement within the Neighborhood Restoration Project.  As we noted in that case [1]:

‘Including a settlement or a neighborhood within this project is a necessary condition for the existence of the neighborhood restoration program that the EWS division implements.  However, this inclusion is in the hands of the Ministry of Construction and Housing, which operates according to principles determined by the government.  This matter, therefore, warrants a separate inquiry, which will focus on the consideration of the criteria according to which the government enacts the Neighborhood Restoration Project.  Given that the petition before us focuses on the question of discrimination in regard to welfare in educational funds, while the subject of broadening the Neighborhood Restoration Project relates to the extension of a wide net that is not laid out before us in this petition – we have not seen fit to deliberate on it in the framework of the petition before us.’ (p. 239 of the judgment).

Consequently, the petition before us, which deals in its entirety with the Neighborhood Restoration Project in all is various components, both physical and social-educational, was submitted.

The neighborhood restoration project

2.    We have learned of the quality, essence, and scope of the Neighborhood Restoration Project from the affidavit given in support of the State’s response which was signed by the head of the division for social neighborhood restoration and the coordinator of government offices for the project since September, 1982, Ms. Hagit Hovev.  In her affidavit Ms. Hovev surveyed the development of the Neighborhood Restoration Project since its establishment was announced in 1977, when it was established as a national-social project of the State in collaboration with Diaspora Jews via the Jewish Agency.  As is apparent from her affidavit, the project was intended to deal in a comprehensive and multi-faceted manner with social disparity in the State and to deal in particular with points of social hardship and areas of physical wear in city centers and development towns.  The project is the responsibility of the Ministry of Construction and Housing, and includes two primary realms: the physical realm and the social realm.  The physical realm of the project includes many components, among them:  expanding residential apartments, renovation of residential buildings and courtyards, completion of the development of public infrastructure, renovation of apartments for the elderly, and encouragement of the purchase of apartments under public lease.  The social realm includes inter alia: programs for the very young, reinforcement of formal studies, programs for youth and at-risk youth and higher education programs.

At first, the project was jointly administered by the government and the Jewish Agency, whereby the Agency served as the mediating entity between the project’s administration and the Jewish communities abroad, and also participated in its financing.  However, since 1990, following the immigration from the CIS, the Agency’s role in the project diminished, and it was passed on to government hands, both in terms of administration and budget.  Implementation of the project is fairly flexible: the project may include both entire settlements, and specific neighborhoods suffering hardship within established cities.  So too, a settlement or neighborhood might be included in only one realm of the project, for example: the physical realm without being included in the other realm of the project.  It is important to note that the project is limited in time, and after its implementation is completed in a particular settlement, the settlement is removed from the project.

The arguments of the parties

3.    The parties are claiming three different remedies, which all surround one central claim, which is a claim of discrimination.  The petitioners present much numerical data which proves, according to them, the difficult situation of the Arab settlements and the discriminatory attitude toward them, in the limited scope of the application of the Neighborhood Restoration Project to them.  Inter alia, they claim that despite the fact that all of the Jewish neighborhoods that are in the first three clusters of the COS ranking are included in the project, only 5 out of 48 of the Arab settlements found in these clusters are included in the project.  Consequently, the petitioners request in their petition that egalitarian criteria be established for implementing the Neighborhood Restoration Project, and they also request that an egalitarian policy be administered between the Arab settlements and the Jewish settlements by including within the framework of the project all the Arab settlements found in clusters 1 and 2 in the  COS ranking.

After the order nisi was granted, the State’s response was received on April 13, 2000.  In its response the State did not disagree with the need for egalitarian treatment of the Arab population, but claimed that the question at the center of the discussion in our matter was the question of ‘the application of the concept of equality’.  According to the State’s claim, the application is particularly complex in the case before us, where it is a matter of a project that has been implemented for over twenty years and when the ramification of the requested remedy is a budget increase of tens of millions of shekels per year, or a detraction from funds given to other settlements which are not party to the petition.  Beyond this generalized claim, the State raised many additional arguments in the framework of the two affidavits that were attached to the petition – the aforementioned affidavit from the Ministry of Construction and Housing and an affidavit on behalf of the Prime Minister’s office.  First, the State admits that at first the project included a relatively small number of Arab settlements as it was a joint project of the State, the Jewish Agency and Jewish communities in the world.  According to its claim, with the lessening of the role of the Jewish agency in the project there has been a marked increase in the number of Arab settlements and neighborhoods included in the project.  According to the claim, as a result of the respondents' policy as to the appropriate criteria for application of the project, and in consideration of the need to complete implementation of the project in the settlements and neighborhoods in which its implementation had already begun, recent years witnessed a gradual change whereby Arab settlements were added to the project and Jewish settlements in which implementation of the project was completed, were taken out.

As to the matter of the criteria for inclusion of additional settlements in the framework of the project, the State argues that in 1999, new criteria were implemented which guide the inter-office team in its recommendations for inclusion of new neighborhoods or settlements within the project.  These criteria were already added to the State’s response in the framework of the discussion in said HCJ EWS, and they were attached again in attachment HH/1 to the affidavit of Ms. Hagit Hovev which is attached to the State’s response, and in attachment P/4 to the petition.  The four criteria that appear on the list are:  multi-dimensional hardship of a large percentage of the neighborhood’s inhabitants (45%).  A lack or low level of physical and social infrastructures (25%), socio-economic strength of the settlement’s population (20%), the presence of new immigrants or particularly weak populations in the neighborhood (10%).  According to the State’s claim, the petitioners arguments according to which it is appropriate to rely exclusively on the COS data to determine the list of settlements included in the project is to be dismissed, as this data does not give a full picture as to the ranking of the settlements included in the project.  Based on the criteria that were established, the COS data makes up only 60 percent of the points to be weighed which are examined for purposes of implementing the project, while the remaining 40 percent are based on data from the various government offices.  Beyond these criteria the State noted, that beginning in 1986 the Ministry of Construction and Housing decided to give preference in the framework of the project to urban areas of hardship, which are characterized by saturated construction, as in these areas the investment can contribute to improvement in the lives of more residents.  The State further claimed that the new criteria are future-looking only, meaning: they will apply only to settlements that will be included in the project from now on.  According to its claim, a change in criteria which will lead to removing settlements in which the work is in progress will cause damage to these settlements and may cause the funds that were already invested to go to waste.  Beyond this, the State noted that due to the ongoing nature of the project and the limited funds at its disposal, it was decided in 2000 not to include new settlements in the project and to concentrate efforts on the 10 neighborhoods which have been included in the project for many years with the goal of completing the work in them.

Another central claim raised by the State, deals with the existence of alternate programs for investing funds in the Arab sector, programs which are better suited, according to the State’s claim, to the needs of the sector, and their purpose, inter alia, is to add funds to the Arab sector in order to close gaps that were created over the years.  According to the State’s claim, the Neighborhood Restoration Project was intended primarily to assist in renewing an area that has deteriorated or to complete physical or social infrastructures that are lacking, while many of the Arab settlements require establishing infrastructure from scratch.  The central program that according to the State will be able to properly address the needs, including the needs for which the Neighbourhood Restoration Project was intended, is a four year plan to develop the Arab sector which was approved by a government decision dated October 22, 2000, and which will include the total sum of 4 billion NIS (including an addition of 2 billion NIS beyond existing development budgets).  According to the State’s claim, the program is meant to include activity of all government offices, inter alia, construction of infrastructures and public buildings, and funds in the areas of education – building classrooms, pedagogical programs and a five year plan for the Bedouin settlements in the north that was begun in 1998 and which will include a total sum of 615 million NIS.  Beyond these broad programs, the State noted in its response two additional programs, smaller in scope, which are operated by the Ministry of Construction and Housing, and their budgets are also directed at the Arab sector – the ‘reinforcement’ program and the program to complete development in old neighborhoods.

The petitioners, for their part, claimed in response that criteria that relate only to new settlements are not sufficient, and that non-inclusion of Arab settlements immediately in the project causes them cumulative damage, the result of which will be a deepening of the social gaps.  So too, the petitioners noted that the criterion relating to ‘saturated construction’ was not mentioned in the framework of the official criteria and that it is a criterion which distinguishes between groups based on an irrelevant basis and leads to a discriminatory result. In regard to the alternate programs the petitioners argue that it is a matter of a claim that is not relevant, since the existence of one assistance program does not offset the right of the Arab sector to benefit from another program.

Consequent to hearing the parties’ arguments and reading their written arguments the case was taken under consideration.  Later, on May 17, 2001, we decided to ask the respondents additional questions relating to the distinction between the physical and the social realms of the project, to the criterion of ‘saturated building’, to an update as to the results of the efforts to concentrate the effort in the year 2000 and to the extent of implementation of the multi-year program to the Arab sector.

In its response of June 21, 2001 the respondent noted that the criteria are indeed general and do not distinguish between the social and the physical realms of the project.  They also noted that the anchor for the criterion as to ‘saturated construction’ which is not mentioned in the general criteria listed above, is found in the guidelines for external renovation of structure that is included in the project, and which is based on the decision of the entities in charge of the project.  As to concentration of the effort in implementation of the project in the year 2000, the respondents noted that the concentration of effort was a success and the project has ended in 10 neighborhoods in the realm of physical restoration, and in 4 neighborhoods in the realm of social restoration.  The State added in its notice that at this stage no additional settlements or neighborhoods will be included in the project, as it is the intention of the Ministry of Construction and Housing to conduct a comprehensive assessment of the project in the upcoming months.  As to this the Stated noted that:

‘At this stage, the inclusion of additional neighborhoods or settlements to the Neighborhood Restoration Project is not on the agenda as it is the intention of the Minister of Construction and Housing and the Director of its office to conduct a comprehensive assessment in the upcoming months of the cumulative contribution of the Neighborhood Restoration Project from its inception, both in the physical and social realm.  In the framework of this assessment it is the intention of the office to assess the suitability of the underlying premises which are at the basis of the project, the geographic units which will be included in it and a formula for its application to the many changes that have taken place in Israel in the social and urban reality, since the project’s inception.  This stance of the Ministry of Construction and Housing relates to all settlements in Israel that are not included in the project, including Arab settlements which need programs in the social realm.’

As to the application of the multi-year plan to the Arab sector, the State noted that staff work has begun in the budget department of the treasury the purpose of which is to produce necessary regulations for the implementation of the project which were to be presented for approval by the Finance Committee by the end of June 2001.  So too, the State’s counsel noted in his response in a general manner what the areas of overlap are between the multi-year plan and the Neighborhood Restoration Project, and which areas in the project supplement the projects in various aspects.  As of the date of this judgment the State has not given notification as to whether these funds were approved and to what extent.

Current allocation of budgets

4.    As said, the respondents admit in their response, that there was historical discrimination in the allocation of funds in the framework of the Neighborhood Restoration Project, however, according to their claim this discrimination has greatly decreased with the gradual inclusion of Arab settlements and neighborhoods within the project.  In order to prove this claim, the respondents presented before us the data which relates to the year 2000.  As appears from this data, of the settlements and neighborhoods included in the project, close to 20% are Arab settlements, as is the proportion of the Arab population in Israel.  However, this data does not reflect the full picture, and this is also the State’s position in its affidavits.  Comparison of the budgets as they have been presented by the respondents shows that the proportion of funds that were allocated to the minority sector in the framework of the project stands at 10% only.  The State noted that this budget data does not reflect the true sum that was allocated to the minority sector as additional funds were added in additional restoration programs.  According to the claim, in order to get a full picture of the funds directed to the sector the calculation must include two additional programs: the ‘reinforcement’ program and the program of supplementation of development in the older neighborhoods.  The ‘reinforcement’ program is similar in its characteristics to the physical realms of the Neighborhood Restoration Project, and was also intended to deal with physical multi-dimensional hardship, including: external renovation of structures and development of courtyards, renovation of apartments for the elderly and assistance in expansion of apartments.  This program was implemented in a very small number of neighborhoods in the year 2000, and overall in its framework, 7.5 million NIS were allocated, of which 3.8 were allocated to the minority sector.  The program for supplementation of the development of older neighborhoods dealt with the development of the physical infrastructure in minority settlements.  This program is operated within various five-year plans which are designated for the minority sector – a five-year plan for Bedouins in the Negev (which is in preparation phases – although limited funds have already been allocated in its framework), and the multi-year plan for the Arab sector.  In the framework of these programs, the amount of 38.9 million NIS was included in the year 2000 budget of the programs division of the Ministry of Housing, for development of physical infrastructures in minority settlements, as opposed to the sum of 19.75 million NIS which are dedicated to this purpose in Jewish settlements.  According to the State’s claim, if the amounts allocated in the framework of those two programs are included in the overall calculation, it appears that the proportion of funds dedicated to advancing older neighborhoods in the minority sector in Israel reaches up to 24% (about 60 million NIS out of 260 million) – a proportion greater than the portion of the sector in the population.

In order to more accurately assess the claim of the respondents, we must distinguish between the physical side and the social side of the project.  On the physical side, if we also include in the framework of the calculation the two programs parallel to the Neighborhood Restoration Project (both of which relate only to the physical side) then it would appear that the determination is correct that the funds directed at the Arab sector in the year 2000 forms a proportion of 29% of the overall allocation directed at physical restoration in Israel (about 50 million NIS out of 174 million NIS).  This proportion is greater than the portion of the sector in the population, and therefore, on its face, there does not appear to be discrimination, but rather a goal of remedying the disadvantage.

Conversely as to the social realm the funds directed to the Arab sector in the framework of the Neighborhood Restoration Project, makes up only 13% of the total budget (12 million NIS out of 90 million) a proportion lesser than the proportion of the sector in the population.  The situation that is created indeed creates a feeling of discrimination which is particularly oppressive given that many of the Arab settlements are at the bottom of the socio-economic ranking.  We also discussed the painful situation of discrimination in funds intended for education in the Arab sector and the need to address this seriously in said HCJ EWS, which dealt, as said, with the implementation of EWS programs in the Arab sector, it was stated there:

‘In the framework of the petition there was no disputing that education in the Arab sector has been disadvantaged over many years and there was no dispute that this needs to be corrected.  From the responses submitted to us on behalf of the State we have been convinced that significant steps have been taken for the allocation of budgetary resources to the Arab sector in order to achieve the goal of equality of resources in said area in accordance with the relative proportion of the Arab population in Israel.’ (p. 240 of the judgment)

The question before us is what is the conclusion to be drawn in the framework of the petition before us as to this matter, both in relation to the petition to establish egalitarian criteria and in relation to the petition for inclusion of Arab settlements within the project.

The principle of equality in allocation of state funds

5.    It appears that it is not necessary to go back and expand on the fact that the value of equality is a basic value in our legal system, and that it stands at the basis of our democratic regime.  In light of its status the value of equality obligates the authority in the implementation of the totality of its powers.  We have noted more than once that the value of equality obligates the authority in allocation of state funds.  Such allocation must be done on an egalitarian basis and according to clear criteria.  As Justice Zamir has said in HCJ 1113/99 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of Religious Affair [2] at 170:

‘The principle of equality binds every public entity in the State.  First, it binds the State itself.  The principle of equality applies to all the areas in which the State operates.  It applies first and foremost to the allocation of the State’s funds.  The resources of the State, whether in land or money, as well as other resources, belong to all citizens, and all citizens are entitled to benefit from them in accordance with the principle of equality, without discrimination on the basis of religion, race, gender or other illegitimate consideration.’

And, at p. 172 as well:

‘Discrimination on the basis of religion or nationality in allocation of state funds, which is even prohibited if it is done indirectly, certainly is a fortiori prohibited when it is done directly.’(See, for example, HCJ 59/88 Tzaban v. Minister of Treasury [3] at 706; HCJ 1703/92 C.A.L. Cargo Airlines v. Prime Minister [4] at 205.)

These words are true seven-fold when it is a matter of allocation of state funds for the actualization of basic rights such as the right to education, housing, or health.

It is clear that when an authority is directed to act with equality, we are dealing with substantive equality, and not merely formal equality.  At times, in order to achieve substantive equality we must act differently toward different individuals.  Violation of the principle of equality which creates the grounds for our intervention is different treatment of individuals amongst whom there is no difference relevant to the matter at hand (see for example HCJ 1438/98 Conservative Movement v. Minister of Religious Affairs [5] paragraph 20).  In the words of Justice Zamir, discriminatory treatment is different treatment of those who belong to the same ‘equality group’ (see HCJ 3792/95 National Youth Theater v. Minister of Science and Arts [6] 281-283).  From this starting point we are to examine the question of application of the Neighborhood Restoration Project to the Arab sector.

The question of criteria

6.    The first part of the petition deals with the subject of criteria.  As said, according to the petitioners claim, social-economic egalitarian criteria are to be established for application of the project.  As is seen from the State’s response, in 1999, an inter-office commission examined the criteria for the project that were established in the 1980’s, and following this examination new and egalitarian criteria were established which the State has given notice are already in place and will serve from now on as a basis for inclusion of settlements in the framework of the project.  We have already mentioned that the criteria include both multi-dimensional social hardship and multi-dimensional physical hardship.  According to the State’s claim, the new criteria which were established are 60% based on the rankings of the COS, and 40% on additional data from various government offices.  From the State’s response it is further seen that there exists in fact an additional criterion which does not appear explicitly in the list of criteria that were presented to the court, although it influences the inclusion of neighborhoods within the framework of the physical realm of the project – and that is the criterion of granting preference to an urban neighborhood characterized by saturated construction.  In response to additional questions by the Court, it was stated by the State that this criterion is anchored in a procedure for external renovation of structures and the development of courtyards from the year 1998 (which replaced previous procedures from 1986 and 1993), which establishes that renovation of residential buildings is conditioned upon it being a structure that includes at least four residential units.  So too, it was emphasized that there are dozens of criteria and internal guidelines in each of the relevant offices which relate to specific programs operated in the framework of the project.  As is seen from the State’s response, the criteria detailed in P/4, which are, as stated, new, relate only to the inclusion of new settlements in the project, and do not apply to neighborhoods already included in the project, according to arrangements and policy that was determined years ago.

As said, criteria for distribution of budgets from the public pie must be egalitarian in nature, but beyond this, the criteria must also fulfill the other rules which apply to administrative decisions, which means that: they must be based on relevant considerations, a factual basis which reflects the relationship between the purpose for which the financial allocation was intended and the relevant facts, and they must meet tests of reasonableness. (See for example HCJ 1438/98 [5] above).  So too the criteria must be sufficiently concrete to enable their application according to objective measures to the extent possible.  (See HCJ 3792/95 [6] above, at pp. 273-274).

7.    The Neighborhood Restoration Project is in fact characterized by two levels of criteria: the first level, deals with the criteria which serve to determine which neighborhoods or settlements will be included in the project.  The second level, deals with specific and more detailed criteria which relate to the operation of certain programs which are included in the Neighborhood Restoration Project.  These criteria are of course only relevant to neighborhoods or settlements which have overcome the hurdles of the first level's criteria and are included in the project.  In this petition we are dealing with the first level of criteria, meaning: criteria which relate to the inclusion of a neighborhood or settlement within the project.  On its face it appears that the list of criteria brought to us, meets the necessary conditions for allocation of state funds.  It is a matter of criteria which are based on objective sources of information that the government has – COS data and data from various government offices, the criteria are suited to the purpose of the project and they explicitly note the relative weight of each criterion.  Therefore, ostensibly, these criteria are self-evidently egalitarian and reasonable.  However, it is worth noting, that for some reason the inter-office commission chose to draft the criteria in technical and opaque language which appears to be intelligible only to those with specialized knowledge.  It seems that it is appropriate that criteria which apply to the public be drafted in a more detailed, explicit, and clear manner.  Thus, for example, it would be appropriate to detail the content of the phrase ‘multi-dimensional hardship’ and that all the relevant quantitative variables be detailed, whether directly, or by way of reference, such that those dealing with the matter – Jewish and Arab settlements as one – will know what the standards are for allocating the project’s funds and its applicability to them.

The generalized drafting of the criteria on its own, even if it requires clarification, does not point to a flaw which justifies our intervention to nullify them; moreover, in their response to the State’s response the petitioners are not making arguments against the criteria as they were presented.  Therefore, were these criteria the only criteria for inclusion of settlements and neighborhoods in the project, it might be possible to say that the State properly addressed the first part of the petition, making what was requested superfluous.  However, it turns out that it is not so.  From the State’s response it appears that there is an additional criterion which is not included in the list of criteria of the first level – the one that determines the settlements included in the project – and it constitutes a hidden criterion which is able to influence the determination relative to the inclusion of neighborhoods in the project.  It is the criterion of saturated construction, which is anchored – according to the State’s claim – in an internal guideline which relates to the renovation of houses and courtyards – a specific guideline which relates to a specific program which belongs to the physical realm of the project.  Ostensibly, it is therefore a matter of a criterion which by its nature belongs to the second level of criteria – a criterion which relates to a specific program – which filtered through to the first level of criteria, as it was used to determine the neighborhoods which would be included in the project to at the beginning.  Using this criterion which is not counted among the criteria on the list is not proper, both due to its lack of inclusion and because of the lack of clarity as to the weight it is given as to the substance of the determination as to inclusion in the project.

8.    The petitions argue that applying a criterion which conditions implementation of the project on the existence of saturated construction, excludes their settlements from the project overall, as Arab settlements are not urban settlements that were built with saturated construction.  Lacking data as to the quality and scope of influence of this criterion among the other criteria, we cannot determine that this criterion may be an obstacle to inclusion of the Arab settlements in the framework of the project, even though it certainly may impact the scope of the inclusion of Arab settlements, many of which are not saturated construction settlements.  On the other hand, it is not to be said in a sweeping manner that saturated construction removes the Arab sector from the project in light of the existence of distressed neighborhoods in many urban cities in which there is a dense Arab population.  Despite this, the claim is correct that under the circumstances there was a flaw in the application of the criteria of saturated construction as a pre-condition to the implementation of the project.

It should be said first, that when the implementation of the project is dependent, among other things, on the physical condition of neighborhoods and structures, there is nothing wrong in principle with the fact that among other considerations which relate to the physical aspect, consideration which relate to the density of the population and the density of the construction will also be considered.  Giving preference to restorative treatment in areas of distress of high residential density which is characteristic of urban settlements constitutes a relevant and legitimate consideration.  There is also nothing wrong with the rationale that the State raised for giving preference to urban neighborhoods due to the advantage which stems from the effectiveness of the investment in crowded neighborhoods.  However, as has been said more than once in our case law, when we are dealing with equal distribution of resources it is not sufficient that the considerations for allocation are relevant considerations, but there is also significance to the weight of each of the relevant considerations.  In determining standards for budgetary allocation the totality of considerations which relate to the goal for which the financial support was intended, is to be taken into consideration.  Thus for example, the fact that the said criterion is not related at all to the social realm of the project necessitates the conclusion that in the face of the double purpose of the project – physical and social – the criterion which relates to the physical aspect of the project is not to be given determinative weight as to implementation within the social aspect.

Accordingly it can be determined that the saturated construction criterion is not to be used as a threshold criteria until this criterion is included in the list of criteria which determine the conditions for implementing the project and its relative weight, among the other criteria, its scope and concrete reference to the degree of the density of the construction, is clearly defined.  In determining the relative weight of this criterion it is to be taken into account that considerations which relate to the physical aspect of the project are not exhaustive or exclusive and the project also has the purpose of support and encouragement in the social-educational realm in distressed regions.

Therefore, as long as there is not explicit reference in the criteria for the implementation of the project to the criterion of saturated construction, and as long as its relative weight is not determined, this criterion is not to be included as a pre-condition to the implementation of the program.  Subject to the defining of the criterion which relates to saturated construction, as explained above, the establishment of the new criteria is able to address what has been sought under the first part of the petition.

Inclusion of the settlements in the first and second cluster in the project

9.    The State’s notice as to the implementation of criteria for the inclusion of new settlements in the framework of the project does not satisfy the petitioners even if they are not claiming that the criteria that were implemented are flawed.  It is the petitioners’ claim that even if from now on the inclusion of settlements in the project is done on an egalitarian basis, since it is a matter of an ongoing project, the passage of time deepens the schism between the needy settlements in the Arab sector and the settlements that are included in the project already.  They also claim in response to the supplement to the State’s answer, that despite the State’s notice that there is an intention not to include new settlements in the project, the Arab settlements which ranked in the socio-economic scale of the COS as belonging to the first and second clusters should be included in the framework of the Neighborhood Restoration Project.

This petition–to include all the settlements in the first and second cluster of the COS in the Neighborhood Restoration Project – is to be denied in the face of the formulation of the new criteria.  With the establishment of the criteria, the test for including settlements within the framework of the project is in the suitability of the settlement to said criteria, and a determination based exclusively on COS data is not longer sufficient.  However, by the nature of things, in light of the heavy weight of the COS data in the framework of the criteria, and in light of the great hardship which exists in the Arab sector, which no one disputes, it is reasonable to assume that the result of establishing the new criteria will be the inclusion of the settlements under discussion in the petition, or at least most of them, in the project.  Indeed this is the significance of applying egalitarian criteria; including settlements in which the hardship is greater before settlements whose economic-social situation is better.

However, in the face of the existence of the new criteria, the parties dispute remains; it deals with the question:  whether in the present situation as long as the Neighborhood Restoration Project exists as to settlements which were recognized in the framework of the project in the past, it is proper to add the requested Arab settlements immediately, without waiting for their gradual inclusion according to the criteria which were established.  The State argues as to this, that the request to add additional settlements to the project now, is to be denied.  In its reasoning it points to the fact that the budget for neighborhood restoration is limited in scope and since it is an ongoing project, the addition of new settlements may harm those that have already been included in the framework of the program.

10.  We accept that a change in a discriminatory policy and implementation of a new and egalitarian policy, on its own, does not justify harming those who were included in the original program.  (see as to the this: HCJ 637/89 ‘A Constitution for the State of Israel’ v. Ministry of Finance [7] at p. 207; HCJ 4906/98 ‘Am Hofshi’Association for the Freedom of Religion, Conscience, Education and Culture v. Ministry of Construction and Housing [8] at p. 523).   The neighborhoods and settlements that were included in the past in the Neighborhood Restoration Project are distressed neighborhoods and there is no dispute that it is not appropriate to stop programs in these neighborhoods and settlements.  The petitioners note that they are not asking for this.  It is to be taken into consideration that it is a matter of ongoing programs whose implementation has already begun and it is proper to enable their completion.  Moreover, the settlements benefitting from these programs have a reliance interest that is also to be recognized for the purpose of granting additional allocation for completion of the project.  Therefore, inclusion of the Arab settlements without consideration of the limited scope of the project in its present formulation, and without consideration of the reliance interest of those benefitting from it, is not a proper solution.

As for the need to remedy the disadvantage caused to the Arab sector in this matter, the State argues that the proper way to address the situation that was created is in implementation of the government decision of October 22, 2000, to implement the multi-year program in the framework of which funds will be allocated in broad scope to development of settlements in the Arab sector and programs whose purpose overlaps with the programs included in the Neighborhood Restoration Project will also be implemented.  These designated programs are meant to be in a scope that is significantly broader than the Neighborhood Restoration Project and encompass both realms of physical infrastructure and social realms.  This response of the State does not properly address what is requested in the petition.  The multi-year plan is indeed meant to address the disadvantage that has been created over the years and to bridge the gaps of the past, but at this time, at the phase in which the multi-year plan is in today, it cannot serve as a substitute for programs operated via the Neighborhood Restoration Project.  This is for two reasons: the first, due to the absence of concrete-budgetary expression for said plans, and the second which is derived from it, that absent budgetary expression, it cannot be established whether the designated program was necessarily designated for development of a program parallel to the one included in the Neighborhood Restoration Project.  If defined programs will be established which will also have budgetary expression and which will have the ability to address the needs which today are addressed in the framework of the Neighborhood Restoration Project, it will be possible to determine that any program equal in weight will replace a similar program given within the framework of the project.  However, as long as there is no such concrete expression, the program does not create an exemption of the requirement to apply the said project to the Arab sector.

As we have described, in the situation that was created the core of the problem is in implementing the programs in the social realm and in particular in education programs.  In the petition in HCJ EWS [1] we discussed the need to establish conditions for implementation of the special programs of the Division for Education and Welfare Services in the Ministry of Education – the EWS Division – in an egalitarian manner on the Arab sector.  It was made clear that a certain part of the activity of the division which deals with advancing weak populations in Israel is conditioned on the inclusion of the settlement or neighborhood in the framework of the Neighborhood Restoration Project, and that the part of the Arab settlements in this project was very limited.  With the addition of Arab settlements to the project, over the course of the years, there has been improvement in this matter, however, the proportion of the funds granted in the framework of the Neighborhood Restoration Project in the social realm is still lower than the appropriate relative proportion in accordance with the size of the population and in accordance with its needs, which differs from the allocation of funds in the physical realm which is included in neighborhood restoration.  This is not an appropriate situation.  The State has the duty to grant education to the overall population according to egalitarian criteria, while giving equal opportunity.  When it chose to establish programs for the advancement of education in distressed strata, via the Neighborhood Restoration Project, it must maintain these programs in an egalitarian manner, and even detached from the realm of physical restoration.  As we noted, the Neighborhood Restoration Project enables separation between the physical realm and the social realm.

As said, from the State’s notice we have learned that the future of the project is being re-examined and that this re-examination will take several months.  It is to be assumed that the re-examination is nearing an end; before we point to the appropriate remedy, we will note that the petition is based on the presumption that the Neighborhood Restoration Project continues to exist and this is also the starting point of our discussion.  Accordingly, we accept the State’s claim that consequent to the ongoing character of the project which still necessitates its operation in neighborhoods included within it, and in consideration of the limited budget designated to the project today, it will not be possible include immediately all the distressed Arab neighborhoods.  However, the budgetary portion of the project which relates to social restoration is to be implemented for the appropriate settlements according to the established criteria, within a short time period.  This implementation will be done to a degree that suits the needs and hardship of the Arab sector, and in any event, in a degree that will not be less than its relative proportion in the population.

11.  In conclusion, the necessary conclusion of the above is this:

(A)  As to the first remedy, which deals with establishing egalitarian criteria, the petition was made partially extraneous in the face of the drafting of the requested criteria in 1999.  However, as said above, the criteria are to be redrafted and the criterion relating to ‘saturated construction’ and its relative weight among the rest of the criteria is to be given explicit expression within them.

 (B) The petition to include within the project all the Arab settlements which are included in the first and second clusters according to the socio-economic ranking of the COS is denied.  However, we determine that if it is not decided to end the Neighborhood Restoration Project, the objective of including new settlements in the project, on the assumption that settlements whose hardship is the greatest will be included in accordance with the criteria as they will be amended, is to be continued.  In all that relates to programs which relate to the social-educational realm of the project, they are to be given preference and to be applied to Arab settlements in a proportion which matches their needs and their hardship.  In any event, beginning with the next budget year, care is to be taken that the proportion of the budget that is designated for the Arab sector in the framework of the social-educational realm of the project is not to be less than the relative proportion of the sector in the population.

(C)  The multi-year plan for development in the Arab sector whose importance the government of Israel has recognized, and proclaimed its intention to actualize in a gradual manner, will not detract from the Neighborhood Restoration Project, unless it establishes programs of equal value which can replace the programs operated today in this realm.

The petition is therefore granted in part as to the requested criteria as said in paragraph 11(a), and is denied as to the immediate inclusion of all the settlements detailed in the petition subject to what has been detailed in paragraphs 11(b) and (c).  Under the circumstances there is no order as to expenses.

 

 

President A. Barak

I agree.

 

Justice J. Kedmi

I agree.

 

It was decided as per the opinion of Justice Beinisch.

 

12 December 2001

27 Kislev 5762

 

 

 

HCJ 366/03

Commitment to Peace and Social Justice Society and others

v

1.       Minister of Finance

2.       National Insurance Institute

HCJ 888/03

Bilhah Rubinova and others

v

1.       Minister of Finance

2.       National Insurance Institute

 

 

The Supreme Court sitting as the High Court of Justice

[12 December 2005]

Before President A. Barak, Vice-President M. Cheshin
and Justices D. Beinisch, E. Rivlin, A. Procaccia, E.E. Levy, A. Grunis

 

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

 

Facts: The government decided to reduce the amount of income supplement benefit paid to individuals and families, and to cancel several subsidies given to persons receiving income supplement benefit. The reduction in the amount of income supplement benefit and the cancellation of the subsidies were incorporated into the Income Supplement Law by means of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002.

The petitioners attacked the reduction in the benefit and the cancellation of the subsidies, on the ground that they violated the human right to live with dignity included in the right to dignity in the Basic Law: Human Dignity and Liberty. The petitioners claimed that the reduced amount of the benefit did not allow its recipients to live with dignity, since it fell below the minimum required to allow the recipient to pay for his subsistence requirements.

 

Held: (Majority opinion — President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis) The petitioners did not prove a proper factual basis for their claim that the reduction in the income supplement benefit violated their human right to live with dignity. Therefore the petitions should be denied.

(Minority opinion — Justice Levy) The petitioners succeeded in discharging the initial burden of proof showing that their right to live with dignity had been violated. Therefore the burden passed to the state to show that the violation was constitutional. The respondents failed in this regard, because it was clear (even from the respondents’ own submissions) that they had not taken into account the human right of the recipients of income supplement benefit to live with dignity when making the changes to the Income Supplement Law. Consequently, the reduction in the amount of the benefit and the cancellation of the subsidies should be declared void.

 

Petition denied, by majority opinion (President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis), Justice Levy dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 11.

Broadcasting Authority (Fees, Exemptions, Fines and Linkage) Regulations, 5734-1974, s. 5(a)(8).

Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002, s. 10.

Income Supplement Law, 5741-1980, ss 2, 2(a), 2(a)(1), 2(a)(2), 2(a)(3), 2(a)(7), 2(a)(8), 2(d), 2(e), 3A, 5, 5(e)(3), 24, 30A, schedules 1, 2, 4.

Minimum Wage Law, 5747-1987.

National Insurance Law [Consolidated Version], 5755-1995, s. 378.

State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002, ss. 17(2)(a)(1), 17(2)(c), 17(3)(a), 17(11), 17(13).

State Economy Arrangements (Reduction in Municipal Property Tax) Regulations, 5753-1993, r. 2(7).

Supervision of the Prices of Commodities and Services (Fares for Travel on Bus Lines) Order, 5763-2003, s. 9.

 

Israeli Supreme Court cases cited:

[1]  HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[2]  HCJ 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221.

[3]  HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[4]  CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[5]  HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [1996] IsrSC 50(2) 769.

[6]  HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

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

[8]  CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[9]  HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[10]  HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [2000] IsrSC 54(2) 164.

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

[12]  HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

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

[14]  HCJ 161/94 Itri v. State of Israel (unreported).

[15]  CA 3295/94 Parminger v. Mor [1996] IsrSC 50(5) 111.

[16]  LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[17]  CA 3553/00 Aloni v. Zend Tal Feed Mills Ltd [2003] IsrSC 57(3) 577.

[18]  LCA 5368/01 Yehuda v. Teshuva [2004] IsrSC 58(1) 214.

[19]  CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[20]  HCJ 3512/04 Shezifi v. National Labour Court (unreported).

[21]  HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2005] IsrSC 59(3) 322.

[22]  LCA 3297/90 Revivo v. Bank HaPoalim (unreported).

[23]  HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673.

[24]  HCJ 1384/04 Betzedek Society v. Minister of Interior (unreported).

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

[26]  CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[27]  HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[28]  HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

[29]  HCJ 3106/04 Association for Civil Rights in Israel v. Knesset (unreported).

[30]  HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[31]  CA 1165/01 A v. Attorney-General [2003] IsrSC 57(1) 69.

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

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

[34]  LCA 7504/95 Yassin v. Parties Registrar [1996] IsrSC 50(2) 45.

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

[36]  HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[37]  HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[38]  HCJ 6698/95 Kadan v. Israel Land Administration [2000] IsrSC 54(1) 258.

[39]  HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 529.

[40]  CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

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

 

For the petitioners in HCJ 366/03 — A. Feldman, A. Benish.

For the petitioners in HCJ 888/03 — S. Abraham  Weiss, D. Yakir.

For the respondents — O. Mandel, I. Altschuler.

 

 

JUDGMENT

 

 

President A. Barak

Is a reduction in the amount of income supplement benefits, which was made in the legislation of the Knesset, lawful? This is the main question brought before us in these petitions.

The petitioners

1.    The first petitioner in HCJ 888/03 is Mrs Bilhah Rubinova, an Israeli citizen and resident born in 1967, a mother of two minor children, who lives in Beer-Sheba. She is separated from her husband and does not work. According to her affidavit of January 2003, her monthly income amounts to an income supplement benefit in a sum of NIS 2,744, and in addition a child allowance in a sum of NIS 290. She also receives assistance from the Ministry of Housing in the form of a rent subsidy in a sum of 200 dollars a month. According to the same affidavit, her monthly expenses for her subsistence and the subsistence of her children amount to approximately NIS 3,500, which is more than her income. The second petitioner in HCJ 888/03 is Mr Yosef Pedalon, an Israeli citizen and resident born in 1950. According to his affidavit of January 2003, since his business failed and he separated from his wife, he has not succeeded in finding alternative work, inter alia because of his age. He does not have an apartment and lives with friends. At the Enforcement Office he has many debts to his name, and he is liable to pay maintenance to his minor son. His only income is an income supplement benefit in a sum of NIS 1,587. The third and fourth petitioners in HCJ 888/03 are societies that seek to advance human rights and eliminate poverty. The petitioners in HCJ 366/03 are a society and eight academics and activists who are concerned with social and welfare issues. They all argue that the amendment made to the Income Supplement Law, 5741-1980 (hereafter — the Income Supplement Law) is void. Let us now turn to consider this law.

The legislation under scrutiny

2.    The State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law) was passed by the Knesset on 17 December 2002. It provided that it would come into effect on 1 January 2003. Among the arrangements in the law are a series of amendments to the Income Supplement Law, which restricted the scope of the benefits granted by it and changed additional characteristics in the structure of the benefits granted by virtue of the Income Supplement Law. The two petitions before us challenge the constitutionality of some of the amendments:

a.     The amendment to s. 5 of the Income Supplement Law, which is provided in s. 17(3)(a) of the Arrangements Law.

b.     The addition of s. 30A to the Income Supplement Law, which is provided in s. 17(11) of the Arrangements Law.

c.     The addition of column B in the second schedule and the addition of the fourth schedule of the Income Supplement Law, which were introduced by s. 17(13) of the Arrangements Law.

3.    These amendments only concern persons entitled to income supplement who are under the age of 55. The entitlement of persons over the age of 55 was not changed by the Arrangements Law. The following is the significance of the amendments (for persons under the age of 55):

a.     The increased benefit for new recipients was cancelled. Before the amendment the law stipulated several groups, who received an income supplement benefit at a higher rate than the ordinary benefit. As a result of the amendment, the increase was cancelled, and all the new recipients of income supplement will from now receive the ordinary amount only. Before the amendment, persons over the age of 46, single-parent families and new immigrants who had exhausted their entitlement to the absorption basket were entitled to an increased benefit.

b.     The increased benefit for existing recipients was reduced. Whoever received an increased benefit prior to the amendment will continue to receive a benefit that is higher than the ordinary benefit, but less than the increased benefit that they received previously. Their entitlement to the (reduced) increased benefit will cease if they stop receiving income supplement for a period that exceeds six months.

c.     The amount of the ordinary benefit for all recipients (with the exception of a recipient who is an individual) was reduced. The amount of the ordinary benefit was reduced proportionately, so that the lower the amount of the original benefit, the smaller the reduction made to it.

4.    The petitioners submitted for our inspection a document that was prepared by the Research and Planning Administration at the National Insurance Institute before the Arrangements Law was passed, and this analyzes the effects of the amendments (‘The 2003 Arrangements Law: the Main Government Decisions concerning the National Insurance Institute and their Ramifications on Recipients of Benefits and the Activity of the Institute’ (October 2002) (petitioners’ exhibit no. 8 in HCJ 366/03, petitioners’ exhibit no. 2 in HCJ 888/03; hereafter — the National Insurance document)). The conclusions of the document are consistent with the figures that appear in the responses of the state with regard to the amendments made in practice. In table no. 1, which is attached to the document, all the reductions made to the income supplement benefits within the framework of the aforesaid amendments are summarized. The following are the figures:

Family composition

The benefit before the amendment

The benefit after the amendment

The difference

As a percentage of the average salary

In NIS

As a percentage of the average salary

In NIS

As a percentage

In NIS

Ordinary amount

Single person

20%

1,393

20%

1,393

0

0

Couple

30%

2,089

27.5%

1,915

8.3%-

174-

Couple with child

36%

2,507

30%

2,089

16.7%-

418-

Couple with two children

42%

2,925

33.5%

2,333

20.2%-

592-

Increased amount (for existing recipients)

Single person

25%

1,741

22.5%

1,567

10%-

174-

Single parent with child

42.5% less a benefit point

2,789

33.5%

2,333

16.4%-

456-

Single parent with two children

52.5% less a benefit point

3,485

39%

2,716

22.1%-

769-

Couple

37.5%

2,612

30%

2,089

20%-

523-

Couple with child

43.5%

3,029

33.5%

2,333

23%-

696-

Couple with two children

49.5%

3,447

39%

2,716

21.2%-

731-

These figures do not take into account a temporary provision that reduced the income supplement benefits by an additional 4% in the years 2002-2006 (s. 10 of the Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002; see HCJ 5578/02 Manor v. Minister of Finance [1]). These show that the Arrangements Law led to a significant reduction in most types of benefits paid as income supplement to entitled persons who are under the age of 55. According to the National Insurance document, the average reduction in these benefits amounts to approximately NIS 670, which is a reduction of an average of 31% in the amount of the benefits paid to those groups. Approximately 100,000 families of the approximately 150,000 families entitled to income supplements are affected by the amendments.

5.    In addition to these amendments, s. 2(a) of the Income Supplement Law was amended (in s. 17(2)(a)(1) of the Amendments Law), so that the minimum entitlement age for income supplement was raised from 20 to 25 years. At the same time, exceptions were made for persons under the age of 25 years (the addition of s. 2(d) and as provided in the first schedule to the Income Supplement Law; these amendments were made in ss. 17(2)(c) and 17(13) of the Arrangements Law). In addition, the Minister of Welfare, the Minister of Justice and the Minister of Finance were authorized (subject to various conditions) to provide, in an order, additional categories of entitled persons who have reached the age of 20 (the addition of s. 2(e) of the Income Supplement Law, which was introduced by s. 17(2)(c) of the Arrangements Law). The petitioners in HCJ 366/03 ask us to suspend the validity of these provisions, which deny entitlement to income supplement for persons who have not yet reached the age of 25, until the exceptions are provided in an order as aforesaid.

6.    In a combined measure, the Government of Israel decided (in decision no. 2331 of 30 July 2002) to cancel certain concessions and exemptions, which were given to recipients of income supplement within the framework of the various actions of the government. The cancellation of the benefits that are set out in the following subordinate legislation was applied only to new recipients of income supplement:

a.     Regulation 5(a)(8) of the Broadcasting Authority (Fees, Exemptions, Fines and Linkage) Regulations, 5734-1974, which grants an exemption from the television licence fee to recipients of income supplement (para. 7 of decision 2331);

b.     Regulation 2(7) of the State Economy Arrangements (Reduction in Municipal Property Tax) Regulations, 5753-1993, which authorizes local authorities to grant a concession of up to 70% of the liability for municipal property tax (arnona) to recipients of income supplement (para. 9 of decision 2331);

c.     Section 9 of the Supervision of the Prices of Commodities and Services (Fares for Travel on Bus Lines) Order, 5763-2003, which entitled recipients of income supplement to a reduction when travelling on public transport (para. 10 of decision 2331).

According to the government’s decision, the ministers concerned amendment the aforesaid provisions, and the aforesaid benefits are no longer given to recipients of income supplement merely because of their status as such. The petitioners in HCJ 888/03 ask us to order the cancellation of paras. 7, 9 and 10 of the government decision no. 2331, and to reinstate the entitlement of recipients of income supplement to the benefits that have been taken away from them.

The proceeding

7.    The two petitions before us were filed in January 2003, shortly before the commencement of the amendments under scrutiny. First, the petitioners were required (on 21 May 2003) to complete their petition and to attach to it an opinion on the injury to dignity arising from the aforesaid amendments. On 5 January 2004, an order nisi was made (by Justices D. Dorner, E. Hayut and S. Joubran), which ordered the respondents to show cause ‘why they should not determine a standard for human subsistence with dignity as required by the Basic Law: Human Dignity and Liberty.’ After an affidavit in reply was filed, the hearing of the petitions was reinstated (before President A. Barak, Vice-President E. Mazza and Justice M. Cheshin), and with the consent of the parties an amended order nisi was issued (on 16 March 2004), which related only to the validity of the various pieces of legislation, as described above. When an additional affidavit in reply was filed by the respondents, it was decided (on 14 September 2004) to expand the panel that would hear the petitions. The expanded panel heard oral argument once again (on 30 November 2004). Now the time has come to make a decision.

The arguments of the parties

8.    The petitioners’ main argument is that the amendment reduces the amount of the income supplement benefits to below the very lowest level of subsistence, such that the right to persons receiving the benefits to a dignified existence is violated. This violation, which was made (mainly) in statute, does not befit the values of the State of Israel, and it violates human dignity to an extent that is excessive. The respondents were required to respond to this claim in an affidavit. In their reply they asked us to dismiss it. The respondents are of the opinion that the right to dignity enshrined in the Basic Law: Human Dignity and Liberty — and the accompanying duty of the state to protect human dignity — concerns protection against a lack of subsistence only. According to them, the state’s duty is limited to preventing a situation in which a person will live in degrading physical conditions. This duty, according to the respondents, was not violated by the legislation under discussion in these petitions. They emphasize that income supplement is a part of a complete system of assistance and support measures that the state gives the weaker strata of society. In order to determine whether it satisfies its duty to ensure a minimum of human subsistence, all of the services provided should be examined. A reduction of any amount in a particular benefit does not, in itself, violate dignity. The respondents argue that the reduction in the benefits was essential in order to achieve a real cut in the state budget, and that it is a part of other steps that are intended to encourage those who are able to do so to join the work force. The respondents insist that even after the reduction, the buying power of the benefits — which are linked to the average wage in the economy — remains what it was when the Income Supplement Law was enacted, and even today the amount of the benefits is close to the amount of the minimum wage, which (in the respondents’ estimation) is the relevant alternative income for most recipients of income supplement. The respondents also point out that the amount of income supplement in Israel today is also reasonable in relation to the corresponding benefits paid in other developed countries. From all of these they deduce that the amount of the income supplement benefits after the Arrangements Law does not violate human dignity.

9.    The petitioners ask us to reject the respondents’ reply. They reject the ‘minimum human subsistence’ approach of the respondents as a basis for defining the right to human dignity. According to them, the right to human subsistence with dignity — which is agreed by everyone, and it is only the content of which that is in dispute — ‘is not restricted to the right to physical subsistence needs… but includes also spiritual and social needs and it should also take into account needs that are accepted in society’ (para. 5 of the petitioners’ reply of 12 July 2004). It is therefore insufficient for the state to guarantee an ability to subsist materially; instead it should guarantee that the individual also has a tolerable standard of living, which is reasonably proportionate to the general standard of living at a given time. The petitioners presented a series of works of economic and statistical research that seek to show that the amounts of the benefits paid today do not allow an ordinary household in Israel to exist with dignity. They argue that the reduced income supplement benefits, together with reductions that were recently made in the amounts of child allowances and rent subsidies place their recipients far below the ‘poverty line,’ and they allow only a meagre and depressing material subsistence. Thereby, according to the petitioners, human dignity is violated. This violation conflicts with the values of the State of Israel as a welfare state. It is disproportionate, since the state has not been able to show a rational connection between the reform to the benefits system and the purpose of encouraging people to go to work; no less harmful measures were examined, such as improving the employment tests or grading the benefits according to chances of finding work; and in particular, there is no reasonable correlation between the benefit produced by the amendments and the harm deriving from a significant reduction, in one thrust, of the main component of the national welfare system, during a difficult economic period which is accompanied by many additional ‘cutbacks’ affecting the weaker strata of society. Finally the petitioners complain also of the hurried and superficial legislative process in which the amendments were enacted as a part of the Arrangements Law.

Income supplement

10. The Income Supplement Law provides a complex mechanism of granting benefits to Israel residents without means who have no earnings or whose earnings are very low, and who are not entitled to a benefit by virtue of another social insurance framework. A mechanism of this kind exists in many western countries, in a format that is similar in some degree or other to the one practised in Israel. Under the Income Supplement Law, income supplement benefits are paid on the basis of whether a person belongs to one of the groups listed in the law as having an entitlement (s. 2), which depends on a periodic examination of the economic and employment ability of the person claiming the benefit. It is calculated as a percentage of the average wage in the economy (s. 5, second schedule), and it is permanently linked to the state of the economy. The number of persons entitled to income supplement, since the law was enacted, has continuously risen, since the 1990s, by a rate that is higher than the increase in the population (for detailed surveys of the arrangement in Israel, see A. Doron and J. Gal, ‘The Income Supplement System in Israel from a Comparative International Perspective,’ 58 Social Security 5 (2000); B. Morgenstein, N. Shammai, T. Haroon, ‘The Income Supplement Law in Israel: Background and Future Legislation,’ Menachem Goldberg Book (2001) 404).

11. The Income Supplement Law is intended to provide individuals and families that have limited means with the (material) economic basis required to subsist in the State of Israel (see the explanatory notes to the draft Income Supplement Law, 5740-1979 (Hatzaot Hok (Draft Laws) 1417, at p. 2). According to the petitioners’ approach, this purpose de facto is concerned with ensuring that the level of subsistence of the residents of the State of Israel who have limited means does not result in a violation of their human dignity. According to the petitioners, the significant reduction in the amount of the benefits for income supplement violates human dignity in a prohibited manner, and therefore it is void, in accordance with the provisions of the Basic Law: Human Dignity and Liberty. The respondents, by contrast, are of the opinion that the income supplement benefits are not the only means of ensuring that human dignity is maintained, and the reduction in them does not amount to a prohibited violation of the constitutional right. The claim that we must scrutinize in these petitions is therefore a constitutional claim. The accepted method of scrutiny for claims of this kind is comprised of three stages (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 428); HCJ 1661/05 Gaza Coast Local Council v. Knesset [3], at para. 56): in the first stage, we examine the question whether the law (in our case: the amendment to the Income Supplement Law) violates the right to human dignity. If it is held that a violation exists, the second stage examines whether this violation satisfies the conditions of the constitutional limitations clause. In a situation where the scrutiny shows that the violation does not satisfy the provisions of the limitations clause, we turn to the third stage, which concerns the constitutional relief. The first question that we must ask, therefore, is whether the amendment to the Income Supplement Law violated a right enshrined in the Basic Law. Let us now turn to consider this.

The right to a dignified existence

12. It is now more than a decade that human dignity has enjoyed the status of a constitutional super-legislative right in our legal system. The Basic Law: Human Dignity and Liberty, provides as follows:

Purpose

1A. The purpose of this Basic Law is to protect human dignity and liberty, in order to enshrine in a Basic Law the values of the State of Israel as a Jewish and democratic state.

Safeguarding life, body and dignity

2.  There shall be no violation of the life, body and dignity of a human being , in as much as he is a human being.

 

…

Protection of life, body and dignity

4.  Every human being is entitled to protection for his life, his body and his dignity.

 

…

Application

11. Every organ of government is liable to respect the rights under this Basic Law.

Sections 2 and 4 of the Basic Law: Human Dignity and Liberty provide a constitutional-legal norm, like every other (constitutional) legal norm. The role of the court is to interpret it according to its purpose, so that ‘every organ of government’ will be able to uphold it. Indeed, the Basic Law does not merely declare ‘policy’ or ‘ideals’ (cf. art. 20(1) of the Basic Law of Germany). The Basic Law does not merely delineate a ‘plan of operation’ or a ‘purpose’ for the organs of government (cf. art. 27(2) of the constitution of South-Africa; art. 39 of the constitution of India). It does not merely provide an ‘umbrella concept’ with interpretive application (see Y. Karp, ‘Several Questions on Human Dignity under the Basic Law: Human Dignity and Liberty,’ 25 Hebrew Univ. L. Rev. (Mishpatim) 129 (1995), at p. 136). Sections 2 and 4 of the Basic Law provide a right — a right that guarantees human dignity. This right corresponds with the duty of the organs of government to respect it (s. 11). I discussed this in the past:

‘The centrality of the value of human dignity does not merely reflect rhetoric of the importance of this value. It is translated into legal language with the positivist approach that human dignity gives rise to rights and duties, determines authorities and powers and affects the interpretation of every piece of legislation. Human dignity in Israel is not a metaphor. It is a normative reality, from which operative conclusions are implied’ (CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [4], at p. 524).

The duty of the state is two-fold: first, it has a duty not to violate human dignity. This is the negative aspect (the status negativus) of the right. It is enshrined in s. 2 of the Basic Law: Human Dignity and Liberty. Second, it has the duty to protect human dignity. This is the positive aspect (the status positivus) of the right. It is enshrined in s. 4 of the Basic Law: Human Dignity and Liberty. The two aspects, the negative (passive) aspect and the positive (active) aspect are different parts of the whole, which is the constitutional right to dignity. They both derive from the interpretation of the right to dignity, as enshrined in the Basic Law. Neither aspect takes precedence over the other (see R. Gavison, ‘On the Relationship between Civil-Political Rights and Socio-Economic Rights,’ Economic, Social and Cultural Rights in Israel 25 (2005), at pp. 40-48). The prohibition against violating dignity and the duty to protect dignity both impose significant duties on the state and the individuals living in it.

13. In the petition before us, the petitions request that we order the voidance of a law, which (in their opinion) unlawfully violates the ‘positive’ aspect of the right to dignity, in the context of the demand to live with dignity. What is the content of this ‘positive’ aspect’? The answer to this question lies in the constitutional interpretation of the provisions of the Basic Law. In order to characterize the right, the judge is required to consider the circumstances of time and place, the basic values of society and its way of life, the social and political consensus and the normative reality. All of these are tools that the judge has at his disposal for interpreting the legal concept of human dignity (A. Barak, Purposive Interpretation in the Law (1993), at pp. 453-445). The judge-interpreter makes continual use of these, when he is required to interpret rules and principles set out in the various legal texts. He uses them also when he wishes to determine the scope of the right to live with dignity. Thus, a state with the economic strength of a developed nation cannot be compared to a state with a weak economy. A state under a continual threat to its existence cannot be compared to a state that lives peacefully without any security concerns. A society that has chosen to enshrine human dignity as a constitutional right cannot be compared to a state that has not done so (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [5], at p. 787); also a state that has comprehensive social security legislation cannot be compared to a state that has a rudimentary and partial welfare framework. On the other hand, a state where the corpus of social rights has been enshrined expressly and consensually in the constitution cannot be compared to a state where the question is still subject to a dispute that has not yet been resolved by its constitutive organs (A. Barak, ‘Preface,’ Economic, Social and Cultural Rights in Israel, 9 (2005)). By relating to these (and other) distinctions, the judge will realize the relevant modern meaning of the right to live with dignity. Thus he will discover ‘values and essentials, while rejecting what is temporary and fleeting’ (HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [6], at p. 780). Thus he will give effect and substance to the choice of the constitutive authority to enshrine the right to dignity in the constitution.

14. What is the meaning of the right to dignity in the context before us? Underlying our outlook on the right to dignity is the approach that:

‘Human dignity is a complex principle. In realizing it, we must avoid the attempt to adopt the moral outlooks of one person or the philosophical outlooks of another… What underlies this concept is the recognition that man is a free entity, who develops his body and spirit in accordance with his will, within the social framework with which he is associated and upon which he is dependent. “Human dignity” extends to a broad range of human characteristics’ (HCJ 5688/92 Wechselbaum v. Minister of Defence [7], at p. 827; see also Gaza Coast Local Council v. Knesset [3], at para. 82).

This approach has led to the development of the outlook that human dignity, which may not be violated (s. 2 of the Basic Law) and which is entitled to protection (s. 4 of the Basic Law), does not merely concern the prohibition against violating a person’s reputation (CA 214/89 Avneri v. Shapira [8]) or preventing the possibility of his being tortured (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel [9]). The right to human dignity, in the substantive sense, constitutes a collection of rights that need to be protected in order that dignity may exist. These are those rights without which there is no significance to a person being a free entity, since his power to develop his body and spirit in accordance with his will, within the society in which he lives, has been taken away. These rights are likely to be included within the framework of ‘civil’ (or ‘political’) rights, and even within the framework of ‘social’ (or ‘economic’) rights. Thus, for example, among the civil rights it is possible to hold that the right to equality is derived from the right to dignity, since discrimination denies the dignity of a human being as a human being, and leads to humiliation and rejection (see HCJ 1113/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Religious Affairs [10], at pp. 186-187; HCJ 5394/92 Hoppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [11], at p. 362). At the same time, the variety of aspects of human endeavour to which human dignity extends also includes the ‘social’ aspect, which concerns the standard of living to which the human being is entitled. Indeed, the human right to dignity is also the right to have living conditions that allow an existence in which he will realize his liberty as a human being.

15. Notwithstanding, one should not ‘read’ into the right to dignity more than it can support. Not all rights can be derived from an interpretation of the Basic Law: Human Dignity and Liberty. I discussed this in one case:

‘Constitutional interpretation of the right to dignity must determine its constitutional dimensions. It should not be restricted merely to torture and humiliation, since thereby we would fail to achieve the purpose underlying it; it should not be extended in such a way that every human right is included in it, since this would make all the other human rights provided in the Basic Laws redundant. The proper interpretation of the right to dignity should find its path between the two extremes’ (HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518).

This leads to the approach that when deriving rights that are not mentioned expressly in the Basic Laws dealing with human rights but are included in the concept of human dignity, it is not always possible to incorporate the whole scope that the ‘derived’ rights would have had if they had been included separately as ‘named rights’ (in the term used by H. Sumer in ‘Unmentioned Rights — On the Scope of the Constitutional Revolution,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 257 (1997)). Deducing the rights implied by human dignity is therefore done from the viewpoint of human dignity, and to the extent that it corresponds to this conception. This approach determines the scope of the implied rights. This is the case both with regard to the implied civil rights (see, for example, the position of Justice D. Dorner with regard to finding a partial basis for the right to equality in human dignity: HCJ 4541/94 Miller v. Minister of Defence [13], at pp. 132-133 {___-___}), and with regard to the implied social rights. Indeed, social rights are not mentioned expressly in the Basic Laws (with the exception of property). Various legislative proposals exist in this regard, but these have not yet matured (see, for example, the draft Basic Law: Social Rights, Hatzaot Hok (Draft Laws) 5754, at p. 337). In such a situation it cannot be said that the existing Basic Laws give full and complete protection to social rights. The Basic Laws protect the right to dignity, which includes the physical existence aspect that is required in order to realize the right to dignity. From this viewpoint, the human right to dignity is also the right to conduct one’s ordinary life as a human being, without being overcome by economic distress and being reduced to an intolerable poverty. This is the outlook according to which the right to live with dignity is the right that a person should be guaranteed a minimum of material means, which will allow him to subsist in the society where he lives. This outlook has found its expression more than once in the case law of this court, in a variety of contexts. Thus, with regard to a petitioner who applied to be allowed to trade his kidney for the purposes of a transplant, we said in the past:

‘The dignity of the petitioner as a human being requires concern for a minimal subsistence as a human being’ (HCJ 161/94 Itri v. State of Israel [14]).

The same is true in a host of cases, which concerned the scope of the rights of debtors in enforcement proceedings. Justice T. Strasberg-Cohen held:

‘Human dignity is a basic constitutional value in our society. No one will dispute that the dignity of a person must be protected even if he has failed in business and fallen into debt, and he should not be left without a roof over his head’ (CA 3295/94 Parminger v. Mor [15], at p. 121).

I expanded on this in another case:

‘Human dignity includes… protection of a minimum level of human subsistence… a person who lives in the streets and has no accommodation is a person whose dignity as a human being has been violated; a person who is hungry for food is a person whose dignity as a human being has been violated; a person who has no access to elementary medical treatment is a person whose dignity as a human being has been violated; a person whose is compelled to live in degrading physical conditions is a person whose dignity as a human being has been violated’ (LCA 4905/98 Gamzu v. Yeshayahu [16], at pp. 375-376; see also CA 3553/00 Aloni v. Zend Tal Feed Mills Ltd [17], at p. 599; LCA 5368/01 Yehuda v. Teshuva [18], at p. 221; CA 9136/02 Mister Mani Israel Ltd v. Rize [19], at pp. 942-943, 953, per Justices E. Rivlin and D. Dorner).

In a petition that was heard before an extended panel of justices, in which the court was asked to recognize a constitutional right to environmental protection, I repeated the remarks, which were agreed by six of the justices on the panel:

‘I accept that the right to human dignity and liberty includes the right to a minimum of human subsistence’ (Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518).

Again, within the framework of a petition that dealt with a reduction of pension benefits:

‘In the case before us the petitioner claims a constitutional right to social security whose content is limited to guaranteeing basic living conditions only as a part of the constitutional protection of human dignity. The recognition of the constitutional right to social security on this scale raises no problem. It is identical to the constitutional right to a minimal subsistence with dignity that has been recognized in the case law of this court’ (Manor v. Minister of Finance [1], at para. 10).

In a case that concerned the interpretation of the Minimum Wage Law, 5747-1987, the matter was discussed by Justice E. Arbel:

‘The Basic Law: Human Dignity and Liberty, is intended to guarantee basic human subsistence for each individual in society… The Basic Law includes the right to dignity, and this includes the right to basic human subsistence, so that the employee should not be dependent on welfare. Denying a person the minimum means of subsistence, which includes a minimum income, violates his dignity, as the prophet Isaiah says: “Is it not to extend food to the hungry and to bring the downtrodden poor into the house, and when you see a naked person, to cover him and not to ignore your own flesh?” (Isaiah 58, 7)’ (HCJ 3512/04 Shezifi v. National Labour Court [20]).

16. It can be assumed, therefore, for this case — without making a firm determination on the subject — that the duty of the state under the Basic Law: Human Dignity and Liberty gives rise to the duty to maintain a system that will ensure a ‘protective net’ for persons in society with limited means, so that their physical position does not reduce them to a lack of subsistence. Within the framework, it must ensure that a person has enough food and drink in order to live; a place to live in which he can realize his privacy and his family life and be protected from the elements; tolerable sanitation and medical services, which will ensure him access to the facilities of modern medicine. Against this background, does the actual reduction in the income supplement benefits indicate a violation of human dignity?

The amendment to the Income Supplement Law — reduction of the benefits

17. The petitioners’ claim is that the amounts of the benefits paid as income supplement as a result of the amendment to the law are too low to allow their recipients to live with dignity. The petitioners ask us to determine that a payment of a certain amount by the state to groups of persons with limited means does not discharge its duty to guarantee their human dignity. To this end, they present a series of works that estimate — each in its own way and with its varying results — the subsistence needs of a person whose dignity is maintained, and they show that the income supplement benefits are significantly lower than these calculations.

18. The respondents dispute this method of analysis. They argue that the state has a general commitment to ensure the right of a person to live with dignity. Its compliance with this commitment cannot be assessed by examining the amount of the benefits paid as income supplement, when it is not possible to examine its compliance with this commitment by examining the amount of the benefits paid as pension benefits (see Manor v. Minister of Finance [1]). According to the respondents, the duty of the state is discharged by means of a variety of national and local measures in statute and in subordinate legislation, by direct grants, exemptions and subsidies, comprehensive arrangements and individual programmes. Among these the respondents mention, in addition to income supplement, the assistance of the Ministry of Housing in financing private accommodation, public accommodation services through the state housing companies, child allowances, national health insurance, free education, assistance given by the welfare units of the local authority, reductions in municipal property tax, subsidies for infant day care centres, legal aid, assistance from persons serving in National Service, government support of welfare enterprises, individual aid to families in distress and new immigrants.

19. Are all of these services sufficient in order to discharge the duty of the state to protect human dignity? We are unable to provide an answer to this question within the framework of the petitions before us. Within the first stage of the constitutional scrutiny (see para. 11 supra) the petitioners have the burden of proving that, notwithstanding all of the services, there live in Israel persons whose dignity is violated because their living conditions are insufficient. The petitioners have not discharged this burden. A reduction – and even a significant reduction — in the amount of the income supplement benefits does not in itself indicate a violation of dignity. Indeed, there is no doubt that the reduction in the benefits will make the lives of those entitled to income supplement, which are already difficult, even harder. The state assumes that this extra burden will encourage persons to enter the work force, reduce the periods of time during which persons receive income supplement, and in the long term ensure better welfare for the whole public and an increase in the living standard of the poorer individuals among it. At the same time, it undertakes that the other support systems will provide the conditions necessary for guaranteeing dignity. We are also unable to examine these assumptions on a theoretical and abstract basis. The scrutiny is always concrete and dependent upon results.

20. Indeed, the duty of the state not to harm and to protect human dignity does come with a fixed and uniform ‘price tag,’ which the court can discover. It is not characterized by a specific kind of benefits that the court is required to order the state to create. The right to dignity, and even the right to live with dignity, is not a right to a monthly benefit in a certain amount. It is the right that, when all the support and aid systems are provided, human dignity is preserved in the end result. Admittedly, there is no doubt that the Income Supplement Law has a significant role in achieving this result, namely in realizing the duty of the state to ensure that the persons living in it, who have no means, live in dignity. This is a law that ab initio is concerned with a ‘minimum,’ and as such it is capable of furthering the goal of protecting the dignity of the weak. But the Income Supplement Law, and the system of benefits provided in it, is not a guarantee that ensures human dignity. It is not an essential condition; apparently, it is not even a sufficient condition. It is a possible measure — one of many alternatives — that fits into a broad array of aid and support measures, provided by the state and others. It is possible, for example, to imagine a situation in which there would be no Income Supplement Law or a similar law in Israel at all, and yet human dignity would be preserved. Indeed, the duty of the state to ensure the human right to live with dignity may be discharged in many ways. Income supplement is only one of these ways, and it cannot even be said that it is designed to realize the whole scope of the right to dignity.

21. Even from the Income Supplement Law itself it can be seen that the arrangement provided in it can be insufficient and that it requires additions and changes outside the main structure of the benefits. For this reason, s. 24 of the law provides a general authorization for the Minister of Welfare to determine ‘rules, tests and conditions’ for the participation of the state in additional expenses ‘for rent, medical insurance and other special needs.’ This power, like any other administrative power, must be exercised with a view to the basic rights of the individual. It cannot be denied that those ‘special needs’ may exist when the benefits granted in a specific case, together with the other support services that the state provides, are insufficient for guaranteeing that a person will live with dignity (cf. s. 378 of the National Insurance Law [Consolidated Version], 5755-1995; HCJ 494/03 Physicians for Human Rights v. Minister of Finance [21]). This arrangement is capable of showing that the legislature created a basis for taking into account cases that ‘fall between the cracks.’ It is capable of showing that the income supplement benefits are not everything, and that human dignity is not necessarily guaranteed by means of them alone.

22. It transpires that human dignity in the State of Israel depends on all of a person’s living conditions, as they are reflected by the state of society and the basic values that guide it. Human dignity is violated if that person wishes to live as a human being in the society to which he belongs, but he find that his means are too limited and his strength too run down to allow this. Such a person is entitled to expect the state to act in order to protect his dignity. If, notwithstanding all of the support mechanisms that it operates, the state is found to violate this duty — whether in legislation (that does not satisfy the conditions of the limitations clause) or in another sovereign act (that does not satisfy the rules of administrative law) — that person is even entitled to an order of the court that will order the state to comply with its duty and to provide him with the means that are required for him to live with dignity. Such an order may apply to an individual case or to a class of similar cases, all of which in accordance with the case and the circumstances. In order that the court should be able to make the order, it must be presented with a complete factual basis, from which the violation of dignity can be deduced. Thus the court will require details, based on appropriate documentation, of the sources of income and the current and fixed expenditure of that person (cf., for example, the information that an appellant is required to present in order to be exempted from depositing a guarantee: LCA 3297/90 Revivo v. Bank HaPoalim [22]). It should examine the functioning of all the national and other support systems that assist that person and the steps he takes in approaching them in order to exhaust his rights. It will be necessary to clarify whether the person works, and what are the employment alternatives available to him. If the claimant argues on behalf of a group, he will be required to establish the common characteristics of that group, which show the violation of the dignity of all of its members. In view of this factual basis, which will convince the court — in accordance with the correct interpretation of the right to dignity enshrined in the Basic Law: Human Dignity and Liberty — that the situation of a person has indeed reached a prohibited violation of dignity, it will be necessary to order the government authorities to act to remove the violation.

23. In the petitions before us, there is no basis for making such an order. We have not been asked within the framework of the petitions to order the state to discharge its duty to protect the dignity of a specific person, whether by means of increasing the benefit or in any other manner; even the order nisi that was made in the petitions, according to the language of the petitions themselves, did not address this aspect. All that the petitioners asked was that we should determine that the reduction in the income supplement benefits was capable of violating dignity. We are unable to make such a determination. As aforesaid, the violation of the right to live with dignity — namely the breach of the duty to protect dignity — is examined in accordance with its consequences; and in these petitions no factual basis has been established from which it can be seen that, as a result of the reduction in the income supplement benefits, the dignity of certain persons has been violated. The concrete factual basis presented to us in this case is limited to the affidavits of the first and second petitioners in HCJ 888/03, which were made at the beginning of 2003. More than two years have passed since the affidavits were submitted, and despite this no updated affidavit has been filed with regard to their position. At the hearing which we held on the petitions (on 30 November 2004) we asked to be informed as to the current position of those petitioners; their counsel was unable to provide a satisfactory answer to our questions. Even the affidavits themselves were not supported by any documentation or evidence. This is especially the case with regard to the affidavit of the second petitioner, which lacks many details concerning the expenses that the petitioner incurs and the pecuniary resources available to him. The affidavit of the first petitioner is more complete, but in the absence of current and well-founded information we cannot rely on it either for the purpose of determining whether her right to dignity has been violated. The first stage of the constitutional scrutiny therefore ends with the conclusion that a violation of the right to dignity has not been proved. In this situation, we do not need to continue to carry out the other stages of the constitutional scrutiny. The petitions against the amendment should be denied.

The amendment of the Income Supplement Law — the change to the entitlement age

24. In addition to the reduction in the amount of the benefits, the amendment to the Income Supplement Law also raised the initial age for entitlement to receive benefits under the law from 20 to 25 years (s. 2(a) of the Income Supplement Law). At the same time, twenty-three statutory exceptions were provided (in the first schedule), and these entitle persons who have not yet reached the age of 25 to an income supplement benefit. The law also provides for the power of the Minister of Welfare, the Minister of Justice and the Minister of Finance to determine rules for the purpose of recognizing the entitlement of persons who have not yet reached the age of 20 (s. 2(e)), provided that this entitlement shall not be less than 50% nor more than 80% of the ordinary amount of the benefit (s. 5(e)(3)). The petitioners in HCJ 366/03 requested, when they filed their petition, that we order the commencement of the amendment changing the entitlement age to be postponed until the aforesaid rules are made by the ministers. In response to the petition, the respondents said that as long as those rules are not made, the entitlement of anyone who has reached the age of 20 years to income supplement stands at 80% of the amount of the ordinary benefit. Since then, even though many statements and replies were filed in the proceeding, we have heard no further argument in this matter. Consequently, we assume that the response of the state satisfied the petition in this regard, and we are not considering the argument on its merits.

Cancellation of the accompanying benefits in accordance with the government’s decision

25. Already before the amendment to the Income Supplement Law the Israeli government made a decision that led to the cancellation of three economic benefits that were given to recipients of income supplement. These were an exemption from the television licence fee, a reduction in fares on public transport and a reduction in the amount of municipal property tax. The first two benefits (which are smaller in their economic value) were cancelled in their entirety. With regard to the reduction in municipal property tax, which is likely to have a more significant value, this was cancelled only as a benefit given to recipients of income supplements as such. The reduction in municipal property tax will continue to be given based on individual income tests, which in any event will usually include those persons entitled to income supplement. The reason for this step is based, according to the respondents, on budgetary considerations (with regard to cancellation of the television licence fee and transport fares benefits) and the desire to neutralize the ‘poverty trap,’ by denying an inducement to continue entitlement to income supplement instead of applying for work (with regard to cancelling the municipal property tax benefit). The argument of the petitioners in HCJ 888/03 is that the government decided upon the cancellation of the benefits without properly considering the extent of the harm that this would cause — together with the reductions in the aid mechanisms and the transfer payments — to persons entitled to income supplement. This harm is too extreme and is therefore unreasonable, and the government was not entitled to make this decision.

26. From the outset, the petitioners directed their arguments against the provisions of government’s decision no. 2331, in which it decided upon the cancellation of the benefits. Meanwhile the decision went from theory into practice, by means of the regulations enacted by the relevant ministers. In these circumstances, it is questionable whether granting the relief requested in the petition (cancelling the paragraphs in the government’s decision) would reinstate the benefits, when they have been cancelled in the interim in subordinate legislation. But even if it would, my opinion is that the petition in this regard should be denied. When examining the cancellation of the accompanying benefits, we should distinguish between two types of benefit that were cancelled. One is the reduction in the amount of municipal property tax. The other is the benefits with regard to the television licence fee and bus fares. With regard to the reduction in municipal property tax, the respondents made it clear that this was not cancelled absolutely, but only as a benefit that was given ‘automatically’ to persons entitled to income supplement benefits. The reduction in municipal property tax will continue to be given to persons who satisfy the individual income tests of the local authorities. This approach is reasonable. It does not discriminate against the entitled persons on the basis of their economic ability or the group affiliation. It does not necessarily deny the benefit to any entitled person. All that it does is to replace one entitlement test (the test of entitlement to income supplement) with another entitlement test (the individual income test). The two tests are intended for the same purpose — giving reductions in the payment of municipal property tax to persons with a low income (see HCJ 6741/99 Yekutieli v. Minister of Interior [23], at pp. 688, 707; HCJ 1384/04 Betzedek Society v. Minister of Interior [24]). Both of these fall within the same administrative ‘zone of reasonableness’ in which the court is not required to intervene (HCJ 935/89 Ganor v. Attorney-General [25], at p. 514).

27. With regard to the cancellation of the exemption from the television licence fee and the reduction in bus fares, no alternative source was offered for these. These payments will now fall entirely on the shoulders of the persons entitled to income supplement. This is to be regretted. Admittedly, access to television services or public transport is not essential for human subsistence. Yet we are speaking of two kinds of service that are basic to the social life of human beings in our times. They are capable of allowing a person to take an active and involved role in our environment. By means of these he can be exposed to the cultural, social and political reality that surrounds him. They allow a significant realization of basic rights (freedom of expression, the right to information, freedom of movement). From these viewpoints, the access to accessible and cheap media and public transport is essential for conceiving the individual as a part of the public. Indeed, ‘human rights are the rights of man as a social creature. Human dignity is the dignity of man as a part of society and not as someone who lives on a remote island’ (CrimApp 537/95 Ganimat v. State of Israel [26], at p. 413).

28. This is especially correct with regard to travel possibilities. The ability of a person to go from one place to another at an affordable price can be essential for a livelihood, for having a proper family life, for conducting a full social life. Accessible public transport is an interest of the public as a whole (see HCJ 4769/95 Menahem v. Minister of Transport [27]); it is a necessity for those members of society who have limited means. Therefore the significance of the cancellation of the reduction is one of two possibilities: a certain additional part of the income of the person entitled to income supplement will be directed henceforth to paying for transport (and television), instead of being used for immediate subsistence needs; alternatively, the person entitled to income supplement will be required to give up using public transport (and having access to television). These are serious consequences. They should be reconsidered. There is a basis for taking into account with regard to these matters an examination of the individual situation of a person claiming a violation of dignity (see para. 22 supra). But is there any legal defect in the cancellation of the exemption from the television licence fee and the reduction in bus fares in themselves? My answer to this question is no. The importance of the bus fares and the medium of television does not give rise, in itself, to a duty on the part of the state to reduce the costs of these services for persons in society with limited means. The duty of the state is to ensure that people can live with dignity. As I explained, this duty can be realized in different ways. The state does not have a legal duty to act specifically by way of subsidies for one commodity or another. We therefore return to the point where we concluded the discussion of the constitutionality of the reduction in the income supplement benefits: the scrutiny should be result-orientated. There is no obligation ab initio to prefer one measure over another in realizing the duty. Consequently, the petition against the provisions of the government decision (and the subordinate legislation made on the basis thereof) should also be denied.

The legislation process

29. The petitioners in the two petitions also attacked, in addition to the content of the amendment to the Income Supplement Law, the manner in which the amendment was made. Their arguments are directed against the rushed legislative process of the Arrangements Law, in which, according to them, the basic principles of social security in Israel were changed. The petitioners emphasize the difference between the legislative process of the Arrangements Law and that of the Income Supplement Law itself, which took many years, was studied by several professional committees and was considered in the course of dozens of significant sessions of the Welfare Committee of the Knesset. I think that everything there is to say on the regrettable legislative process of the various ‘Arrangements Laws’ has already been said in several judgments that this court has given in the last year: see HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [28]; HCJ 3106/04 Association for Civil Rights in Israel v. Knesset [29]. Those judgments admittedly did not address the Arrangements Law that is under discussion in these petitions, but what was said there is correct in our case also. Therefore, notwithstanding the serious defects that befell it, we do not find that the legislative process of the amendment to the Income Supplement Law, in itself, undermines the validity of the amendment.

Application to be joined as a petitioner

30. We have before us an application of Mr Ehud Livneh to be joined as a petitioner in the petitions. The applicant is an Israeli citizen and resident, born in 1945 (now aged 60), who lives alone. According to the affidavit that he attached to his application, because of his age and disability (as a result of military service) he is unable to find work, and his only income is from an income supplement allowance in a sum of NIS 1,670 per month. In view of this background, he is applying to join in the arguments of the petitioners against the amendment to the Income Supplement Law. The application should be denied. As the state says in its response to the application, the reduction of benefits made in these amendments does not apply to entitled persons over the age of 55, so that in any case the amendments to the law do not affect the applicant directly. The arguments that he raises in his application attack the constitutionality of the amendment to the Income Supplement Law in general language. As such, they do not add to the large quantity of material brought before us by the existing petitioners. His potential contribution as an additional petitioner in the petitions, especially at the advanced stage of the proceedings when his application was filed, does not therefore justify his being joined as a petitioner.

Summary

31. The result is therefore that the petitions — on the basis of the reliefs that were requested in them — should be denied. This is because we have not been persuaded that the amendment to the Income Supplement Law, in itself (even with the cancellation of the accompanying benefits), is capable of violating human dignity. In this judgment we do not say anything with regard to the existence in Israel of persons who are subject to extreme poverty to the point of a violation of their dignity. We know that the economic position of many families in Israel is very difficult, and that the impoverished sector of society is very considerable; this knowledge is shared by everyone who lives in Israel and has a pair of eyes. We do not know whether the position of any person has reached a violation of dignity, according to the legal-constitutional meaning of this concept. In order to reach such a judicial conclusion, accompanied by an order to the state to correct what is wrong, we need a proper factual basis. Such a basis has not been brought before us in these petitions. The claim that was made in them is a general one. The response given to it is also a general one.

32. This ruling does not prevent the filing of petitions concerning the human right to live with dignity. This is a constitutional right, which must be upheld in all the avenues of public law. The courts are competent to enforce it. If there is a specific and well-founded petition, it will be their duty to do so. By denying the petitions, the respondents are also not being allowed to rest on their laurels. The serious claim of the petitioners that in our country there live persons whose dignity is violated, merely because they do not have the means to live at a tolerable standard of living, has not been properly clarified in these petitions, and in any case it has not been rebutted. The respondents should examine this claim in depth. In so far as it is found to have merit, they should act quickly to eliminate the phenomenon, in some lawful manner.

The petitions are denied. There is no order for costs.

 

 

Justice E. Rivlin

I agree with the opinion of my colleague, President Aharon Barak.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, President A. Barak.

 

 

Justice D. Beinisch

I agree with the result reached by President Barak, but I see a need to add several remarks concerning the petitions before us.

1.    In his opinion, my colleague the President discussed how within the framework of the constitutional right to human dignity ‘social’ rights may be included. I agree with his position that it cannot be said that the Basic Laws provide full and complete protection to the aforesaid rights that are not mentioned expressly in the Basic Laws. Accordingly, like him I am also of the opinion that the constitutional right of a person to live with dignity does not extend to all the spiritual and social needs of a human being, and it concerns the physical subsistence perspective required in order to realize the right to dignity. According to this approach, the constitutional right to live with dignity is the right that a person will be guaranteed a minimum of material means that will allow him to subsist in the society in which he lives.

The main question before us in these petitions is whether the reduction in the amount of income supplement benefits that was made within the framework of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law) led to a significant violation of the petitioners’ constitutional right to human subsistence with dignity in the aforesaid meaning.

2.    Like the president, I too am of the opinion that the petitioners have the burden of showing that as a result of the reduction in the amount of the income supplement benefits their constitutional right to dignity has been violated in the sense that the minimal material living conditions are insufficient. As President Barak said in his opinion, the mere reduction in the amount of the income supplement benefits, in itself, cannot prove a violation of the aforesaid constitutional right. Notwithstanding, I doubt whether it is right to demand that the petitioners prove that their constitutional right to dignity has been violated specifically ‘when all the support and aid systems are provided,’ as the state claims (para. 20 of the President’s opinion).

Indeed, I accept the basic position of the state that income supplement is a part of a comprehensive system of aid and support measures that the state provides for the weak strata of society. Income supplement is not the only or the best means of ensuring a dignified subsistence, if the state is capable of offering other alternative forms of support that provide what is lacking. According to the state, in order to determine whether it is discharging its duty to ensure a minimum of human subsistence, we must examine all the national and local measures in statute and subordinate legislation, whether in the form of direct grants, exemptions or subsidies, both in general arrangements and individual programmes. In this the state is correct, since income supplement is merely a part of the total economic system that is intended to ensure the minimum subsistence conditions required by a human being; but the full information for the purpose of a comprehensive examination of the aforesaid minimum subsistence conditions is in the possession of the state and not in the possession of the petitioners. In view of this, I am of the opinion that the petitioners had the initial burden of proving with appropriate documentation their sources of income as compared with the essential regular and permanent expenses that they incur, and the actions adopted in order to exhaust their rights in the national and other support systems that they are able to realize. But, unlike the President, I am of the opinion that were the petitioners to discharge this burden, the state would be required, already in the first stage of the constitutional scrutiny, to prove its claim that notwithstanding the prima facie violation of the constitutional right as a result of a reduction in income supplement, all the national and other measures that exist are sufficient for ensuring a minimum human subsistence with dignity, and this burden should not be placed on the shoulders of the petitioners.

3.    With regard to the petitions before us, these were filed in January 2003, more than two years ago. We do not have current figures concerning the position of the petitioners, and ab initio we also did not have a proper basis of fact with regard to their claim as to the violation of their right to live with dignity within the constitutional meaning, even though there is no doubt that the petitioners are persons with daily difficulties in eking out an existence. In the absence of such figures, I agree with the conclusion of President Barak that it is not possible to decide the claims of the petitioners with regard to the violation of their constitutional right under discussion. Therefore, I believe that the question whether the state presented us with a proper basis for establishing its claim that there exists an overall aid system that is capable of preventing a substantial violation of the constitutional right to live with dignity does not arise. For these reasons, I agree with the conclusion of the President that the petitions should be denied. Notwithstanding, like the President, I too think it right to emphasize that the aforesaid conclusion is based on a lack of a sufficient preliminary and prima facie basis of fact in the petitions brought before us. Therefore, this judgment does not prevent the filing of petitions in the future with regard to the right to live with dignity.

 

 

Justice A. Grunis

I agree with the opinion of my colleagues that the petitions should be denied.

 

 

Justice E.E. Levy

I agree with the conclusion of my colleague the President in so far as it concerns the constitutionality of para. 9 of government decision no. 2331 (this is the clause that determines the cancellation of the benefit concerning the reduction in the amounts of municipal property tax given to recipients of income supplement before the decision). I also accept the conclusion of my colleague with regard to ss. 17(2)(a)(1) and 17(2)(b) of the State Economy Arrangements (Legislative Amendments for Achieving the Budget Goals and the Economic Policy for the 2003 Fiscal Year) Law, 5763-2002 (hereafter — the Arrangements Law), which concerns a change of the entitlement age for receiving income supplement benefit. This is because of the position of the respondents that until the rules for entitlement to a benefit amount in this age group are determined, its amount shall be 80 per cent of the amount of the ordinary benefit, and because there was no additional argument on this point from the petitioners. By contrast, I cannot agree with the conclusion of my colleague with regard to ss. 17(3)(a), 17(11) and 17(13) of the Arrangements Law, which are the sections that contain the reduction in the income supplement benefits, nor can I agree with his conclusion concerning the constitutionality of paras. 7 and 10 of government decision no. 2331, which are the paragraphs that determine the cancellation of the benefits concerning an exemption from the television licence fee and a reduction in the fares on public transport that were given to recipients of income supplement before the decision. Were my opinion to be accepted, we would declare the aforesaid sections of the law and paragraphs of the decision to be void, on the grounds that they disproportionately violate the human right to live with dignity, which is enshrined in the Basic Law: Human Dignity and Liberty.

The human right to live with dignity

As though it were possible to draw a line and say: below this is poverty.

Here is the bread that with cheap cosmetic colours

Became black

And the olives on a small plate

On the tablecloth.

In the air, pigeons fly in an aerial salute

To the sounds of the kerosene seller’s bell on the red cart,

And there too was the sound of rubber boots falling on the swampy ground.

I was a child, in a house they called a hut,

In a neighbourhood they said was a transit camp.

The only line I saw was the horizon, below which all seemed

Poverty.

R. Someck, ‘The Poverty Line’ (1996), Rice Paradise Anthology, 1976-1996).

1.    The human right to live with dignity is an integral part of the right to human dignity. It is difficult to exaggerate the importance of this basic right. ‘A life characterized by a constant struggle for basic living conditions is completely contradictory with the idea of human dignity’ (R. Gavison, ‘On the Relationship between Civil-Political Rights and Socio-Economic Rights,’ Economic, Social and Cultural Rights in Israel (Y. Rabin, Y. Shani, eds. 2004) 25, at p. 39). It is a sine qua non for the ability to realize other basic rights, since, in the eloquent words of Justice Zamir, ‘human rights should not serve only those with a full stomach; every person must have a full stomach so that he can enjoy human rights in practice and not merely in theory’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [30], at p. 340 {___}). Real freedom — which also includes freedom from want — is not possible otherwise (see M. Atlan, ‘An Example of a Model for the Right to Decent Living Conditions,’ Economic, Social and Cultural Rights in Israel 395, at p. 399; see also J. Raz, ‘Autonomy, Toleration and the Harm Principle,’ Issues in Contemporary Legal Philosophy (R. Gavison, ed., 1987) 313, at p. 316).

‘An individual is entitled to live with dignity as a basic right, not by virtue of a feeling of empathy or a moral outlook of doing charity. A society that leaves its poor to their distress demonstrates that it does not respect persons as human beings’ (Atlan, ‘An Example of a Model for the Right to Decent Living Conditions,’ supra). As a basic right, the right to live with dignity enjoys constitutional protection. It may only be violated by law. The law must befit the values of the State of Israel as a Jewish and democratic state. It must serve proper purposes with proportionate measures. These principles have been accepted by us for some time, and they contain no innovation or difficulty (see Itri v. State of Israel [14]; Gamzu v. Yeshayahu [16], at p. 375; Man, Nature and Law Israel Environmental Protection Society v. Prime Minister of Israel [12], at p. 518; Manor v. Minister of Finance [1], at para. 7; Betzedek Society v. Minister of Interior [24], at para. 15).

The human right to live with dignity is not enshrined merely in our internal law. It is also recognized in international law, where it is defined as a right to ‘a proper standard of living.’ Article 11(1) of the International Covenant on Economic, Social and Cultural Rights, to which Israel became a party on 3 October 1991, provides that:

‘The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.’

2.    The petitioners and the respondents are divided on the question of how a violation of the right to dignity should be defined with regard to human living conditions. The respondents ask us to adopt a level that they call the ‘lack of subsistence model,’ according to which only the ‘absence of a roof, hunger and a lack of clothing will be considered a violation that degrades human dignity.’ By contrast, the petitioners argue for a wider model, which includes ‘also spiritual and social needs’ and which is related to ‘the accepted needs in society.’

I have devoted much time to examining this question, as well as my colleague’s approach to it. As stated in his opinion, my colleague’s approach is that the human right to live with dignity means ensuring the human right ‘to conduct one’s ordinary life as a human being, without being overcome by economic distress and being reduced to an intolerable poverty’ (para. 15 of his opinion). It would appear that the advantages of this approach — and especially the fact that it prima facie allows the cloak of vagueness that enshrouds the term ‘human right to live with dignity’ to be dispelled by delineating its content — are clear. It is also possible to hold the opinion that the failure of the various attempts to enshrine what is usually referred to as ‘social rights’ expressly in the Basic Laws requires a restrictive and particularly careful interpretation of this right, an interpretation that reflects the judicial restraint ordinarily required in matters concerning economic priorities and distributing national resources.

As for myself, without needing to delineate the exact boundaries of the right, I am of the opinion that the purposes of the protection of the right lead to the conclusion that this right includes the right to proper living conditions, and that its purpose is not merely to protect the human being from an intolerable lack of subsistence, as the respondents claim. The right to basic living conditions and the provision of essential needs, including a roof, clothing and food are, of course, included in the protection given to the human right to live with dignity, but it should not be said that it is limited to these.

3.    Can it indeed be definitively said that living conditions, which only permit a purposeless subsistence that does not contain any potential for human achievement, do not violate the constitutional human right to dignity? How can we determine that living conditions, which do not allow even a minimal degree of correlation with the accepted standard of living in society, or which prevent a person having an opportunity, no matter how small, of developing himself, of defining his goals and ambitions and of acting in order to achieve them, do not violate the constitutional right to dignity? Is a person, whose living conditions do not allow him a minimal degree of civic participation and prevent him from being integrated into the society around him and from affecting what happens in it, the person to whom we refer when we speak of his dignity? To tell the truth, I find it hard, very hard, to reach a definitive conclusion that a person who is protected only from ‘intolerable want’ has not been injured with regard to his constitutional right to dignity. Human life must contain hope and value. They must hold out a promise for the foreseeable future. A monotonous and purposeless existence cannot be regarded in my opinion as ‘living with dignity.’

I do not mean to say that the human right to live with dignity is an all-embracing right. It is self-evident that ‘human dignity does not mean everything that is good and beautiful in life’ (A. Barak, Constitutional Interpretation (1994), at p. 419). Human life is naturally based on a compromise and balance between inclinations and desires on the one hand, and constraints and restrictions on the other; certainly not every caprice, wish or need that is unrealized violates the constitutional human right to dignity. It should therefore be said that the living conditions of a person should allow him a reasonable ability to function socially in the society in which he lives. Underlying this approach is the outlook that a person is not an island. A person is a part of a society (HCJ 6126/94 Szenes v. Broadcasting Authority [32], at p. 833 {___}). Human rights are therefore the rights of a person in an organized society; they concern the individual and his relationship with his fellow-man (HCJ 5016/96 Horev v. Minister of Transport [33], at p. 41 {___}). It follows that human dignity is the dignity of the individual as a part of society and not as someone living on a desert island (Ganimat v. State of Israel [26], at p. 413; LCA 7504/95 Yassin v. Parties Registrar [34], at p. 64; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [35], at p. 365 {___}).

4.    My colleague the President discussed extensively the scope and economic significance of the amendments that were made to the Income Supplement Law, 5741-1980 (hereafter — the Income Supplement Law) by the Arrangements Law, whose legality is under consideration. As he says in his opinion, the average reduction in the benefits amounts to NIS 670. It represents a reduction of approximately an average of one third of the amount of the benefit that was in force before the law was passed. In the highest category, the reduction amounts to NIS 769 (for a single parent with two children). This is the case without taking into account the Economic Emergency Programme (Legislative Amendments for Achieving Budgetary Goals and the Economic Policy for the 2002 and 2003 Fiscal Years) Law, 5762-2002, which deducted an additional four per cent from the income supplement benefits. We are therefore speaking of a drastic reduction, which is of critical economic significance for most of those persons who receive income supplement. My outlook is that the picture that emerges from the series of amendments made to the Income Supplement Law by the Arrangements Law, and certainly together with the provisions of the Economic Emergency Programme Law, raises difficult and problematic questions both with regard to the ability of individuals and families to support themselves with dignity, and with regard to the image of society in Israel.

However, and this too should be made clear, these general questions are not the questions that we must decide. We are not required, nor is it a part of our function, to determine a position with regard to the logic or wisdom of the economic policy that the government wishes to advance. It alone has the prerogative to decide questions in the sphere of national priorities, the distribution of resources in society and the ideal welfare policy. This was discussed by my colleague the President, when he said:

‘The court should examine the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective, justified. The question is whether the law is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, and all of these may satisfy the requirements of the limitations clause’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 438).

The only question before us is, therefore, whether government decision no. 2331 (hereafter — the government decision) and the amendments made to the Income Supplement Law by the Arrangements Law violate the human right to live with dignity, and — assuming that the answer to this question is yes — whether this violation is constitutional, or in other words, whether it satisfies the requirements of the limitations clause in the Basic Law: Human Dignity and Liberty. I will now turn to consider these questions.

Violation of the human right to live with dignity and proof thereof

5.    As stated in my colleague’s opinion, the duties of the state under the Basic Law include a negative side, which is expressed in its duty to refrain from violating the human right to live with dignity, and a positive side, which is reflected in its duty to afford protection to it. The Income Supplement Law, 5741-1980, is an expression of this positive duty. It has the very important function of guaranteeing the active aspects of the human right to live with dignity. It serves as a central component in Israeli social legislation. Its clear purpose is to ensure that individuals and families, whose circumstances in life have reduced them to an inability to support themselves, have a safety net of economic security, which will guarantee them a minimum subsistence and allow them to provide for their essential needs. This purpose can be seen clearly from a reading of the explanatory notes to the draft law:

‘The purpose of the proposed law is to guarantee every person and family in Israel, who are unable to provide for themselves an income required for subsistence, the resources required to provide for their essential needs. A benefit under this law will be sole income of persons who are totally unable to work and support themselves, and it will supplement an income that is less than the amount needed for subsistence… The purpose of the proposed law is to bring about a more complete integration, on the basis of a uniform policy, of the programmes that exist in this field, and to establish the right to be guaranteed a subsistence and the principles governing this right in a law that will clearly express the national responsibility to guarantee subsistence for everyone in order to prevent economic distress among the weaker sectors of the population’ (Hatzaot Hok (Draft Laws) 5740-1979, at p. 1417 — emphases supplied).

The respondents certainly agree with the approach that recognizes the central role played by the Income Supplement Law in guaranteeing the human right to live with dignity, since they expressed it before this court recently. I am referring to the remarks made by the state in Manor v. Minister of Finance [1], which considered the question of the constitutionality of the reduction in the amount of pension benefits under the Economic Emergency Programme Law, which can be seen from the judgment in that case:

‘The respondent claims in its reply that the reduction in the pension benefits does not violate constitutional rights of a person entitled to the benefit, and in any case its violation satisfies the conditions of the limitations clause. According to the respondent, guaranteeing a minimal level of subsistence is achieved by means of an income supplement benefit which is given in accordance with economic criteria. By contrast, a pension benefit is a universal benefit, which is given to everyone who reaches the retirement age, irrespective of economic criteria. On the basis of this distinction, the respondent claims that the reduction in the pension benefit does not violate the constitutional right to dignity’ (para. 4 of the judgment [1]).

6.    I am in complete agreement with my colleague that ‘the right to dignity, and even the right to live with dignity, is not a right to a monthly benefit in a certain amount,’ that ‘the Income Supplement Law… is not a guarantee that ensures human dignity’ and also that ‘it is possible… to imagine a situation in which there would be no Income Supplement Law or a similar law in Israel at all, and yet human dignity would be preserved’ (s. 20 of my colleague’s opinion). Admittedly, the benefit mechanism is not the only possible guarantee for realizing the human right to live with dignity. The Income Supplement Law is not the only legal solution that can give protection to it. Notwithstanding, when we examine the constitutionality of the amendments that are the subject of the petitions before us, we must give great weight to the fact that the Income Supplement Law — and not another theoretical arrangement — is the main tool that the legislature chose to realize its obligation to guarantee for everyone the human right to live with dignity. As we have explained, the express purpose of the Income Supplement Law is to supplement income ‘that is less than the amount needed for subsistence.’ It is the only mechanism that provides money benefits that serve as a sole income for people who for various reasons are incapable of supporting themselves with their own efforts.

7.    The significance of this is not that the Knesset is not sovereign and therefore cannot change the Income Supplement Law or any of the provisions set out therein; it is not that the Income Supplement Law will always be immune to changes; not every reduction in income supplement benefit will be regarded as violating the human right to live with dignity. It is also possible to adopt the position, as stated in my colleague’s opinion, that it is possible to cancel the Income Supplement Law and replace it with another normative arrangement. The only requirement is that the human right to live with dignity must survive the changes that the Knesset wishes to make to the arrangement that guarantees this. As long as the Income Supplement Law is the main tool that has been chosen to act as a guarantee of the human right to live with dignity, then the reduction in the benefits paid by virtue of the Income Supplement Law should be examined in view of this purpose. For this reason, in so far as the reduction in the benefit paid to the persons entitled is consistent with the purpose of the law, and in so far as the amount of the benefit after the reduction — on its own or together with means that are external to the law — continues to allow the recipients to live with dignity, the reduction in the benefit is legitimate and permissible. Within this framework we must address, inter alia, the circumstances in which the reduction is made, its purpose and scope, the sectors of the population that are harmed by it, together with their special needs, and alternative arrangements that were formulated in order to supplement the shortfall that has been created, if at all, in the income required for subsistence following the reduction.

Against this background, can it really be said that the petitioners have not succeeded in establishing a basis for their claim that the reduction in the income supplement benefits has violated the human right to live with dignity? As he says in his opinion, my colleague’s conclusion is that it has not been proved that human dignity, in its legal-constitutional sense, has been violated by the reduction in the income supplement benefits. I do not agree with this conclusion. I am of the opinion that all of the material that was presented to us allows us to determine that the constitutional human right to live with dignity has been violated as a result of the reduction, or at least that the petitioners have succeeded in raising a real doubt as to whether the recipients of the benefits are able to support themselves with dignity.

Of prime importance in this matter — the question of the violation — are the petitioners’ affidavits, which were filed within the framework of HCJ 888/03. Admittedly, these should have been updated and supported by additional documentation and evidence, but this does not undermine their value. The affidavits include details of the expenses incurred by the petitioners and the extent to which the benefit helps them to pay for these expenses. It can be seen from these affidavits that the vast majority of their expenses are used for subsistence requirements, which are included within the framework of the protection of the right to live with dignity in its limited subsistence sense, and mainly for accommodation, food, clothing and medications. The amount of the benefit to which the petitioners are entitled — even taking into account additional support networks, such as assistance with rent payments — is far from being sufficient to cover these subsistence expenses.

Let us take, for example, the affidavit of the first petitioner, Mrs Bilhah Rubinova, a mother of two small children. The income supplement benefit, together with child allowance, is her only income. Details of her outgoings in the affidavit shows that the (reduced) benefit to which she is entitled is far short of covering very sparse subsistence needs. Her main monthly outgoings include, according to the details, payment of rent (NIS 675, after a contribution of $200 by the Ministry of Housing), municipal property tax (NIS 66), water (NIS 110), electricity (NIS 140) and gas (NIS 85), baby food and diapers for her baby daughter (NIS 296), kindergarten and day care expenses for her son (NIS 370) and food, clothing and medications for her and her children (NIS 1,600). These expenses amount to approximately NIS 3,400. Before the amendment, the petitioner was able, with difficulty, to meet these outgoings. Now, after the reduction, the income supplement benefit to which the petitioner is entitled amounts to NIS 2,660 (NIS 2,744 less NIS 84 health insurance), with an additional child allowance of NIS 290. What, then, will the petitioner be compelled to give up? Will it be baby food for her daughter? Will it be clothing for herself and her children? Will it be electricity and water? Is there anyone who can determine that the human right of the petitioner to live with dignity is not violated in these circumstances?

8.    An even more wretched picture can be seen from other figures that are before us. These figures show that, even before the present reduction in the income supplement benefits, the ability of recipients of income supplement benefit to support themselves with dignity was questionable and partial. This can be seen from research that was conducted by the National Insurance Institute in the years 1999-2000, which was recently published (Y. King, G. Maor-Shavit, ‘Quality of Life of Recipients of Income Supplement Benefit,’ 2005).

This research reveals a particularly serious picture of reality with regard to the population of recipients of income supplement. It shows that twenty per cent of the families that receive income supplement reported that during the previous five years there were times when they had nowhere to live. Twenty per cent of these families reported that they were left on the street or they stayed in a public bomb shelter or in the basement of a building in which relatives lived (p. 5). Moreover, the amount of space per person in apartments where recipients of income supplement lived was lower in comparison to the amount of space per person in apartments of people not receiving income supplement, and a significant number of the families live in apartments that are in disrepair (p. 6). It was also reported that in twenty-one per cent of the families that receive income supplement each person does not have his own bed, and forty-three per cent of the families do not heat their apartments in the winter even when it is cold (p. 10). Moreover, it was found that 40 per cent of the recipients of income supplement reported that they did not buy medications that they needed because they did not have the means. Sixty-four per cent reported that they did not have dentistry treatment when they needed it. Almost all of them stated the reason to be the inability to pay for the treatment (pp. 17-18). Finally, twenty-eight per cent of the families reported that they did not eat meat or meat substitutes even once a week. Seven per cent of the families reported that they never or usually do not have enough food and twenty-four per cent of them reported that sometimes they suffer from a shortage of food. In total, approximately a third of the families that receive income supplement suffer from a shortage of food all or most of the time (p. 17).

The figures before us, which were complied as aforesaid by the National Insurance Institute — which is, after all, a respondent in this case — can show, even according to the restrictive model proposed by the state, a substantial violation of the human right to live with dignity in a large sector of society. A large question mark arises in view of this situation, in which the party responsible for compiling these troubling figures is the same that appears before us and claims that the human right of recipients of the income supplement benefit to live with dignity has not been violated as a result of the reduction in their benefit.

9.    In addition to the aforesaid there is other material, such as the opinion of the chairwoman of the Israel Social Workers Association, Mrs Etti Peretz, which was submitted for our inspection within the framework of the petition in HCJ 366/03. This opinion pointed to a substantial and irreversible harm that the reduction in benefits would cause children in families that were supported by the income supplement benefit, including the physical injuries that they would suffer as a result of poor nutrition that did not include all the necessary nutrients required for proper physical development. It also emphasized the serious harm that would be dealt to population groups defined as ‘risk groups,’ which mainly include chronically ill persons and disabled persons who are not entitled to a disability allowance. These groups, it was explained, would be compelled to stop taking essential medications as a result of the reduction in the amount of the benefit.

10. These statistics are not merely figures on a page. They indicate a day-to-day reality. They describe the persistent life experience of many people. We are dealing with ‘creatures of flesh and blood, of people in pain, of living and breathing human beings’ (CA 1165/01 A v. Attorney-General [31], at p. 80). These are figures to which the court is entitled to refer when it places a piece of legislation under constitutional scrutiny (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 439 et seq., and see the references cited there). They are used in determining the effect of an executive act on basic rights as well as in assessing the alternatives to the chosen executive act. This was discussed by Prof. Barak, who said:

‘[In order to determine the constitutionality of a statute] the court must be presented with the various legislative alternatives, their advantages and disadvantages. Sometimes the difficulty can be solved with the aid of the principle of judicial knowledge. According to this principle, there is no need to prove information that every educated person is supposed to know, since the court also is supposed to know it. Some social facts fall within this framework. Notwithstanding, most social facts do not fall within judicial knowledge. Many social facts are sometimes based on economic, social, psychological and sociological research. How is it possible to discharge the burden of proof with regard to such social facts? The answer is that it is possible to present to the court the various research… It is desirable to present the court with a comprehensive factual picture with regard to the factual basis on which the legislation and its ramifications are founded. The burden in this regard lies with the party claiming that the statute is constitutional. Only by means of this social information can the court discharge its “burden” and make a responsible decision on the question whether the law satisfies the requirements of the limitations clause’ (Barak, Constitutional Interpretation, 479).

I am of the opinion that the figures — the ‘social facts’ — that are before us have succeeded in establishing the petitioners’ claim that the human right to live with dignity has been violated. They discharge the initial burden of proof with regard to the violation of the right. They point to a prima facie conclusion that, even when taking into account the other support networks that the state provides (a fact whose existence received excessive emphasis in the affidavits of the respondents), the right to human dignity of too many citizens and residents of the State of Israel is not protected. In these circumstances, the respondents should have proved how, according to them, the right to human dignity is not violated notwithstanding the major reduction in income supplement benefits. This proof is required, according to the approach of Justice Beinisch, with which I agree, ‘already in the first stage of the constitutional scrutiny’ (para. 2 of her opinion supra).

11.  The affidavits of the state in reply — with regard to the denial of the claim of a violation — did not satisfy me in this matter. Apart from general declarations about the existence of a ‘safety net,’ which despite the aforesaid amendments ‘maintains its function as a safety net,’ there is nothing in them that succeeds, or even purports to prove, concretely, how the human right to live with dignity is maintained. This is particularly clear in view of the fact that these dramatic changes that were made to the Income Supplement Law were not accompanied by any other statutory amendment with the purpose of reducing their adverse effect. In such circumstances, there is an even greater need to explain and to clarify how the dignity of a person as a human being continues to be protected notwithstanding the major and drastic reduction of approximately a third of the benefit that is his only income. This question was left without any real answer.

12. As my colleague the President says, the approach of the respondents is that the reduction in the income supplement benefit, in itself, does not indicate a violation of the human right to live with dignity. At most, it was claimed, we are speaking of a reduction in the scope of the last safety net that the state provides for those persons who need it. The scope of the safety net, according to the respondents, provided it does not lose its function as such, is a matter that is subject to their absolute discretion. This approach of the respondents seems to me problematic. It denies any ability to exercise judicial scrutiny of alleged violations of the human right to live with dignity. Suppose the Income Supplement Law was repealed in its entirety by the Knesset (without this step being accompanied by a parallel step of formulating an alternative normative arrangement). Would it still be possible to argue, in such circumstances, that we are dealing merely with a ‘change’ in the aspects of the ‘last safety net’ that the state provides, a change that does not indicate, in itself, a violation of the constitutional right to dignity? The approach of the state allows it to answer yes to this question. This indicates its problematic nature. Admittedly, it is possible to adopt the opinion that the human right to live with dignity is characterized, as the state claims, with ‘inherent vagueness’ (even though not everyone agrees with this approach; see, for example, G. Mondlack, ‘Socio-Economic Rights in the New Constitutional Dialogue: From Social Rights to the Social Dimension of Human Rights,’ 7 Labour Law Annual (1999) 65, at p. 96). But one cannot use the vagueness of the right to negate it and empty it of content. This outcome is possible where it is held that a drastic and indiscriminate reduction in the benefits that serve as the sole income of individuals and families does not prove — even prima facie — a violation of the constitutional human right to live with dignity, notwithstanding the existence of figures that blatantly contradict this assumption.

13. I reach a similar conclusion with regard to the government’s decision. As stated at the beginning of my opinion, I accept the conclusion of my colleague the President with regard to the constitutionality of the cancellation of the benefit concerning the reduction in the amounts of municipal property tax (para. 9 of the government decision). This is because of the fact that in practice this cancellation represents merely a transition from one entitlement test to another entitlement test, which is designed to achieve the same purpose. By contrast, the exemption given to recipients of income supplement from the television licence fee and the reduction in bus fares were cancelled in their entirety. They will not be given on the basis of an individual income test, or on the basis of any other test. Recipients of income supplement will, from now on, pay the full price.

Freedom of movement, the right to information and the freedom of expression are constitutional basic rights in Israel. These rights stand on their own and they have a constitutional status in their own right. Alongside their status as independent rights, it can be said that certain aspects of them — or to be more precise, the effective ability to exercise them — are essential factors in guaranteeing a person’s ability to function socially, which serves him in realizing his right to dignity. It is difficult to exaggerate the importance of the abilities to move from place to place, to be exposed to what is happening in society and to participate in the social activity taking place in it. My colleague the President expressed this well in his opinion, and I see no need to add to his remarks. Against this background, so I believe, we should understand the purpose underlying the granting of an exemption from paying the television licence fee and the granting of a reduction in bus fares to persons who receive income supplement. The choice to subsidize these services does not reflect a mere whim. Its purpose is to allow a person who receives income supplement to take a part in social life. This purpose, as has been explained, is directly related to the human right to live with dignity.

As I stated above, the reduction that was made to the income supplement benefits is inconsistent with the human right of recipients of income supplement to live with dignity. It follows that we cannot regard the use of an additional part of the already meagre amount in the possession of the recipient of the benefit for these purposes — an act that would in many cases mean giving up essential and basic items — as a real possibility. Therefore, the alternative of the recipients of the benefit — and the only practical possibility available to them — is to stop using these services. This, in my opinion, also involves a violation of the human dignity of the recipients of the benefit. The lack of any real ability to enjoy freedom of movement in its most basic sense and being cut off from the world of information, content and public debate in which the other members of Israeli society take part deal a mortal blow to the ability of a person to function reasonably in society. It leads to feelings of alienation, estrangement and isolation. Thereby the dignity of a person as a human being living within a social framework is violated.

14. It should be emphasized that I do not intend to establish a rule and principle that the duty of the state to ensure that every person lives with dignity automatically implies a duty to grant exemptions and reductions in the purchase of basic services. It is clear that the cancellation of arrangements of this kind will not be regarded, in all cases, as violating the constitutional right to dignity. But, the more closely these services are associated with the human right to live with dignity — especially when they are also associated with additional basic rights, and this, in my opinion, is the case before us — the more the decision to cancel them or to change them must take into account their aforesaid purpose. The duty of the respondents in this regard is to show that, in the final analysis, the human right to dignity is protected. In this matter too, I am of the opinion that the respondents have not discharged the constitutional burden of proof that rests with them.

My premise is that the reduced income of recipients of income supplement does not allow human beings to live with dignity. In such circumstances, any additional economic burden, which makes it still harder to realize this right and also places in doubt the ability to realize other basic rights, naturally intensifies this violation. Consequently, the burden of proof in this matter also must pass to the respondents. The respondents must explain why the cancellation of these benefits does not violate the constitutional human right to dignity. Moreover, the respondents must explain that the cumulative effect of the actions that they have adopted with regard to recipients of income supplement does not amount, when taken together, to a prohibited violation of their dignity. The respondents have done neither of these. Similar to the general arguments that they made to the effect that the reduction in the income supplement benefits did not violate the right to live with dignity, with regard to the government decision that is subject to our scrutiny they have also not tried to show, concretely, that the cancellation of the aforesaid benefits thereby does not violate the constitutional right to dignity. The ramifications of the cancellation of these arrangements on the recipients of income supplement was not assessed at all, and no weight was given at all to their most important role in guaranteeing the basic rights of the recipients of the benefit. In summary, unlike my colleague I am of the opinion that the petitioners have shown a prima facie basis to their claim that the human right to live with dignity has been violated, and that this claim has not been rebutted by the respondents. It follows that the path is open to continue the constitutional scrutiny.

Proper purpose

15. A violation of a constitutional right is permitted in so far as it is intended to serve a proper purpose. A purpose is a proper one if it serves an important social purpose that is sensitive to human rights (see Szenes v. Broadcasting Authority [32], at p. 838 {___}) or if the need to realize it is of social or national importance (see Horev v. Minister of Transport [33], at p. 52 {___}). From the respondents’ affidavits in reply, we see that the reduction in the amount of the income supplement benefit was made within the framework of a comprehensive economic programme that sought, in its own way, to contend with the difficult position in which the Israeli economy found itself. This was done, inter alia, by means of a reduction in the amounts of the income supplement benefit, in order to encourage its recipients to enter the work force. In addition, it emphasized the need to neutralize the ‘poverty trap,’ which was allegedly created as a result of the amount of the benefit and other benefits to which persons who received the benefit before the amendment were entitled and which, according to the respondents, were the sole factor that prevented the petitioners and recipients of the income supplement benefit from extricating themselves from their problematic situation.

No one will dispute that a reduction in the amount of poverty and the aim of bring unemployed individuals into the work force are proper legislative purposes. This is, of course, also the case with regard to complying with budgetary goals and keeping within budgetary limits. There is therefore no difficulty in determining that the reduction in the benefits was intended to advance a proper purpose.

Proportionality

16. The requirement of proportionality focuses on an examination of the measures chosen by the legislature in order to achieve a legislative purpose that has been found to be a proper one:

‘The principle of proportionality focuses… on the correlation between the purpose and the measures for achieving it… it examines whether the measures adopted by the government in order to realize the proper purpose are commensurate with the purpose that they seek to realize… The principle of proportionality is intended to protect the individual from the government. It is intended to prevent an excessive violation of the liberty of the individual. It determines that the executive measure must be determined carefully in order to befit the realization of the purpose. Thereby it gives expression to the principle of the rule of law and the legality of government’ (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [36], at p. 11).

According to our accepted approach, the requirement of proportionality is satisfied if the executive measure used to achieve the purpose satisfies three subtests. According to the first subtest, there must be a rational connection between the purpose and the executive measure that is chosen to achieve it. This test provides that ‘the measure should be designed into order to achieve the purpose’ and that ‘it should lead, in a rational manner, to the realization of the purpose’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 436). According to the second subtest, the executive measure should harm the individual as little as possible. This test ‘is comparable to a ladder, which the legislature climbs in order to achieve the legislative purpose. The legislator must stop at the rung on which the legislative purpose is achieved and on which the violation of the human right is the least’ (Israel Investment Managers Association v. Minister of Finance [37], at p. 385). According to the third subtest, the measure chosen by the government is proportional in so far as its violation of the right is commensurate with the benefit arising from it. ‘The measure chosen — even if it is (rationally) appropriate for achieving the purpose, and even if there is no more moderate measure than it — must achieve a proper correlation between the purpose that will arise from it and the scope of the violation of the constitutional human right’ (ibid.).

Does the violation of the human right to live with dignity, which is caused as a result of the reduction in the income supplement benefits, satisfy the proportionality tests? We are unable to answer this question, or, to be more precise, the figures that the respondents have submitted to us do not allow us to answer it in full.

Regarding someone who cannot be placed in any employment

17. In so far as the reduction in the income supplement benefits relates to groups that include individuals who cannot be placed in any employment, my opinion is that it does not satisfy the test of proportionality. As is well known, the Income Supplement Law lists various groups of individuals who are entitled to a benefit. The circumstances causing the need for the benefit among these persons are varied. Thus, for example, among the groups entitled to receive an income supplement benefit are persons who lack the capacity to work and support themselves sufficiently or who cannot be placed in any employment because of their age or state of health (s. 2(a)(1) of the Income Supplement Law); persons who are registered at the employment office as unemployed, and to whom the Employment Service office has not offered suitable work (this applies to persons who are not entitled or who have exhausted their entitlement to unemployment pay under the National Insurance Law — s. 2(a)(2) of the Income Supplement Law); persons whose wages are low (s. 2(a)(3) of the Income Supplement Law); persons whose time is mostly devoted to caring for their spouse or sick children, who need continual supervision (s. 2(a)(7) of the Income Supplement Law); persons who are not employed because they are serving a prison sentence in community service to which they were sentenced (s. 2(a)(8) of the Income Supplement Law) and others. Those among the population who are entitled to income supplement are also varied. They include new immigrants, single-parent families, the homeless, the disabled and others.

These facts have a clear significance for the question whether there is a rational connection between the reduction in the income supplement benefits and the stated purpose. As we have said, the persons entitled to receive income supplement benefit include persons who are unable to enter the work force at all. Even if we assume that there is an expectation that reducing the benefit to those persons who are unemployed but are capable of working (even though these persons are usually required to take on any ‘suitable work’ as a condition for receiving the benefit, to which I will refer again below), it can be assumed that a reduction, which seeks to achieve the stated purpose of encouraging people to go to work, will not find a logical basis for ‘encouraging’ persons who have no such capacity to go to work. Taking account of the circumstances causing the need for a benefit and the various needs of its recipients is therefore essential in determining the existence of a rational connection between the legislative purpose and the measure chosen to realize it. The indiscriminate character of the amendment, in view of its stated purposes, does not make it possible to determine that such a connection does indeed exist.

Determining the existence of a rational connection between the legislative purpose and the measure chosen to achieve it is a precondition to examining the other subtests included in the general test of proportionality. This is because, once it is determined that a measure cannot lead rationally to the realization of its purpose, because it is unsuitable for achieving the legislative goal, then there is no benefit in examining the question whether it is possible to achieve the purpose by means of other measures, or whether the benefits brought about by the measure are commensurate with the violation caused by it to the protected basic right (see Barak, Constitutional Interpretation, at p. 536), and in any case the proportionality tests are cumulative tests. In view of the fact that the reduction in the income supplement benefit of those persons who cannot be placed in any work cannot be regarded as having a rational connection with the purpose of encouraging people to go to work, the conclusion is that it does not satisfy the proportionality test.

Regarding other unemployed persons

18. Unlike the clear disproportionality of the reduction in the income supplement benefit with regard to persons who cannot be placed in any employment, the question whether the proportionality test is satisfied with regard to recipients of the benefit who are unemployed for other reasons raises other difficult questions. These question arise in view of the fact that no proper factual basis has been shown by the respondents with regard to the proportionality of the violation of the human right to live with dignity. It is well known that once it has been found that a piece of legislation violates a protected basic right, the burden of proof that the violation is proportionate, and therefore constitutional, rests with the party claiming that the law is constitutional:

‘The assumption is that a violation of a human right is not constitutional, unless whoever claims otherwise succeeds in showing that the conditions of the limitations clause are satisfied. The burden of proof should be imposed on the party making this claim. It should be noted that this burden is not imposed on him with regard to the interpretation of the offending provision of statute… the imposition of the burden is relevant only with regard to proving those elements of the limitations clause that are based on facts… For this purpose, he must bring to the attention of the court the “social” facts that are capable of supporting his conclusion and discharging the burden’ (Barak, Constitutional Interpretation, at p. 477).

Discharging the burden of proof with regard to the proportionality of the violation of a protected right involves a factual clarification. This is required in order to examine the rational connection between the purpose and the measure chosen to achieve it. It is essential in order to examine the possibilities available to the legislature for resorting to less harmful alternatives. It is needed in order to assess the correlation between the damage caused as a result of the violation of the right and the benefit arising from it. I am of the opinion that we have no effective ability to assess the proportionality of the violation of the human right to live with dignity of the recipients of income supplement benefit in the circumstances of the case before us, since we are faced with a significant lack of facts and figures. In such circumstances, the question of the proportionality of the human right to live with dignity remains open. We are unable to conduct the constitutional investigation. The necessary tools are not available.

19. Let me clarify my remarks: let us first take the duty of the respondents to choose the measure that achieves the legislative purpose (the rational connection test). As stated in their response, the purpose of the reduction in the income supplement benefits is to reduce the number of the persons entitled to receive income supplement that are ‘voluntarily’ unemployed, namely persons who are capable of undertaking work, and for whom work is available, but who prefer to continue to receive an income supplement benefit instead. The measure chosen, prima facie, has a rational connection with the legislative purpose, but this does not go beyond mere speculation and conjecture. In so far as the respondents wish to persuade the court that income supplement benefits are given, unlawfully, even to persons who are ‘voluntarily’ unemployed, as they claim, and therefore the reduction in the benefit paid to them will lead, rationally, to their integration in the work force, they ought to have taken the trouble to support these claims with factual figures that support them. General and theoretical declarations are insufficient. Concrete figures should be presented. These were not presented to us at all. I find myself compelled to ask whether such figures were compiled, and whether they exist.

Indeed, rationality requires facts. We need facts to say whether something is appropriate. It is reasonable to expect that legislation that is based on a purpose of reducing the scope of the abuse of the income supplement system would be supported by facts and figures. The estimated scope of the phenomenon and the number of individuals whose benefit was denied against this background remain unknown to us. It is questionable whether they are known to the respondents. No figure was given with regard to the estimated size of the group that unlawfully abuses the income supplement system, apart from the presentation of general figures that describe the increase in the number of persons receiving the benefit. But the problem is that it is possible to explain this increase by means of many other factors, including the economic recession, the large waves of immigration, the increase in the number of single-parent families, etc. (this, for example, is how the matter is explained in the opinion of A. Doron and J. Gal of the Hebrew University School of Social Work, which the petitioners in HCJ 366/03 attached to their petition). In these circumstances, we are unable to confirm or deny the existence of a rational connection between the purpose and the measure chosen to achieve it.

20. This is the case with regard to the existence of a rational connection, and it is also the case with regard to the choice of the least harmful measure. As I have said above, an income supplement benefit is given in accordance with an economic means test, and it is conditional — with regard to persons entitled to the benefit who are registered at the Employment Service office as unemployed (s. 2(a)(2) of the Income Supplement Law) — on an employment test. According to this test, a person will be entitled to a benefit only if the Employment Service office has not offered him suitable work, which is ‘any work that is suited to his state of health and his physical condition, or training, study or a career change in accordance with a request from the Employment Service or from someone authorized for this purpose at the Employment Service’ (s. 2(a)(2) of the Income Supplement Law). It is also provided that someone who is offered suitable work and refuses to accept it will lose his entitlement to a benefit for the calendar month in which the refusal occurred and for the following month (s. 3A of the Income Supplement Law). These conditions are intended to ensure that income supplement benefits will be paid to those who need them, and not to those who are capable of being integrated into the work force.

Is a reduction of the benefit the only solution to reducing the need for income supplement by persons who are capable of taking on work? Are there no less harmful measures that are still true to the legislative purpose? It is, prima facie, possible to adopt the approach that in so far as the respondents are of the opinion that the existing conditions are insufficient and that they still allow various recipients of the benefit to continue to enjoy it without any real justification, then by virtue of the duty to choose the least harmful measure they should have tried out other preventative measures. Thus, for example, it is possible to adopt the approach, almost intuitively, that measures such as increased enforcement of the provisions of the Income Supplement Law, making the conditions of the employment test provided therein more strict, etc., are measures whose harm to the persons that receive income supplement is much smaller, and they still achieve the legislative purpose. We have not heard from the respondents any argument in this respect. No explanation was given with regard to any attempt — if indeed there was one — to achieve the legislative purpose with less harmful measures. No factual basis was presented to us in this matter. This does not mean that the reduction in the benefits is necessarily disproportionate merely for the reason that no other alternatives were tried. It is possible that these alternatives are unsatisfactory. It is possible that choosing them involves difficulties. But in the absence of data in this matter, we are unable to draw any conclusion with regard to the proportionality of the violation in this respect also.

21. If this is the case with regard to the rational connection test and the least harmful measure test, it is certainly the case with regard to the test of proportionality in the narrow sense. An examination of the question whether the harm caused by the reduction in the income supplement benefits to the human right to live with difficulty is commensurate with the benefit obtained from it is not a simple matter at all. Implementing this subtest involves great difficulty in the circumstances of the case before us, because estimating the economic benefit that the respondents expect to derive is not a matter that the court can easily determine. In this matter too, sufficient information has not been submitted to us, and I refer particularly to the fact that the extent of the harm to the human right of the recipients of income supplement benefit to live with dignity — a fact of supreme importance for the purpose of examining the proportionality of the correlation between the harm caused to the right as a result of the reduction and the benefit derived from it — was not assessed by the respondents at all. Therefore, any attempt to make a claim with regard to the correlation that exists between the harm to the right and the benefit arising from this harm will be unsuccessful.

It should be emphasized that I do not mean to say that the duty of the legislature to base its decisions on a proper factual basis is identical in scope and content to the duty of the administrative authority to do this (Israel Poultry Farmers Association v. Government of Israel [28], at p. 27). However, in the circumstances of the case, it is a sine qua non for proving the proportionality of the violation.

22. As I have said, the conclusion that I have reached with regard to the impossibility of making the requisite constitutional clarification derives also from the fact that the purpose of the Income Supplement Law in guaranteeing the human right to live with dignity was not taken into account at all by the respondents when they decided to reduce the income supplement benefits by the amounts they decided to deduct.

As explained above, the circumstances in which people require an income supplement benefit are very varied. The members of the public that receive income supplement benefits are also varied. These are factors of supreme importance in determining the amount of the benefit and the amounts of the reduction. But in the case before us the amount of the reduction in the benefit is uniform and applies to everyone. It does not distinguish between persons who receive the benefit on the basis of the circumstances in which they receive the benefit, nor does it show any sensitivity to special needs that may be relevant to the recipient of the benefit.

This indiscriminate reduction, the average amount of which is approximately a third of the benefit in force previously, in a manner that does not take into account the circumstances that lead to a person requiring it, and where everyone is treated equally, is, in my opinion, a reduction that is ‘suspect’ (cf. HCJ 6698/95 Kadan v. Israel Land Administration [38], at p. 276). A reduction in the manner and circumstances described (even if one ignores the inherent difficulty involved in the legislative process of the Arrangements Law) is suspect in my opinion because its characteristics — and particularly its amount and the uniform application of this amount to groups for whom the circumstances in which they find themselves in need of the benefit are different and distinct — are strongly indicative of arbitrariness. They give rise to a concern that proper weight was not given to the constitutional status of the human right to live with dignity in determining the amount of the reduction. Similarly the special purpose of the income supplement benefit in realizing this basic right was not sufficiently taken into account.

23. If any clear additional proof is required that the purposes of the Income Supplement Law in realizing the human right to live with dignity were not taken into account, it can be found in the reply of the respondents themselves. The following was the explanation given by the respondents in para. 41 of their reply dated 15.5.2003 (under the heading ‘The rationales underlying the amendments under discussion in the petition’):

‘… The amendment to the law was not made arbitrarily, but was based on several guidelines:

a.            First… the income supplement benefit should not exceed the minimum wage; logic dictates that the income of a family that is supported by someone who works full time and is paid the minimum wage (approx. NIS 3,300) should not be less than the income of a similar family in which none of the heads of the family earns money from work…

b.            Second, the benefit in its smallest amount that is paid to an individual should not be reduced… since it is the smallest benefit, it was decided not to reduce it.

c.            The smaller the amount of the benefit before the reduction, the smaller, as a rule, will be the relative reduction to that benefit.

d.            The structure of the benefit will be amended so that the greater the income of a family from work, the greater its available income.

e.            There will be no change to the amount and structure of the benefits paid to persons over the age of 55, and persons who are entitled to a dependents’ pension, in relation to the position that prevailed before the amendment, and therefore no reduction will be made to these benefits.

f.            With regard to persons under the age of 55, the amount of the benefit shall be uniform, and no distinction shall continue to be made between an ordinary and increased rate; notwithstanding, someone who was entitled to an increased rate before the amendment shall continue to receive a higher rate than the aforesaid uniform rate (although it will be reduced in relation to the amount of the benefit that he received before the amendment), as long as he has not left the income supplement system for a period of half a year or more…

g.            The amendment will lead to the desired budgetary saving.’

Thus we see that the respondents themselves say that the role of the Income Supplement Law in realizing the human right to live with dignity was not a consideration in determining the amount of the reduction in the income supplement benefits. The principles that were adopted by the respondents in determining the new amounts of the benefits do not include the principle that a recipient of the benefit should be able to continue to support himself with human dignity. Consequently, we have, as aforesaid, not heard from the respondents — apart from general statements that the ‘security net’ provided by the state still retains this function — any explanation, example or clarification as to how the human right to live with dignity will be concretely protected notwithstanding the major reduction in the income supplement benefits. This can only be because the respondents do not know whether the amount of the present benefit allows human beings to live with dignity. And how could we think otherwise? This consideration was never considered by them — as stated expressly in their reply — in their decision to reduce the income supplement benefits. It was not argued before us — even half-heartedly — that an attempt was made to assess the ability of the recipients of the benefit after the reduction in the benefit to support themselves, or that consideration was given to the cost of subsistence needs such as food, housing, clothing and medications, and the relationship between this cost and the new amount of the benefit. No attempt was made to explain the amount of the reduction that was chosen against the background of the right to live with human dignity. And what the respondents do not know, we too are certainly unable to determine.

The same is true with regard to the government decision. Since we have been presented with no factual basis from which any conclusion can be reached with regard to the proportionality of the violation of the right to dignity of the recipients of income supplement as a result of the aforesaid paragraphs in the government decision, and since in any case the cumulative weight of the legislative amendments and the government decision that are the focus of this petition were not examined carefully, we are unable to carry out the constitutional scrutiny. In such circumstances, I cannot determine positively that the legislative amendments and the government decision are not proportionate. But neither can I determine the opposite. Once the burden of proof was passed to the respondents, the significance of this is that these arrangements should be declared unconstitutional.

The constitutional relief

24. We have therefore found that as long as the respondents have been unable to show otherwise, the amendments made to the Income Supplement Law and paras. 7 and 10 of the government decision disproportionately violate the human right to live with dignity. What, therefore, is the constitutional relief to which the petitioners are entitled? This question is a difficult one. This court does not have tools that can serve it in ‘translating’ the human right to live with dignity into numerical values. Moreover, the manner of determining the amount of the income supplement benefit and delineating other social arrangements involve value decisions as well as expert decisions: ‘A judge should be wary of employing… complex considerations of economic or social policy, which frequently are also in dispute, which require expertise and information, and which may require making assumptions and hypotheses, which themselves require additional assumptions’ (A. Barak, Judicial Discretion (1987), at p. 255).

However, what is correct with regard to the court is not correct with regard to the respondents. The court is not capable of determining a numerical value of any other measurement tool that can guarantee a proper protection of the human right to live with dignity. The respondents are capable of this. This is their duty. They must fulfil it. I do not wish to express any position as to the manner in which the respondents should discharge this duty of theirs. They have before them a wide spectrum of legitimate possibilities. They rightly point out that ‘there are many varied ways in which the state can provide a final safety net for those who need it. These ways, the manner of calculating them and their nature are within the jurisdiction of the government and the Knesset, inter alia because they have the complete information concerning the state’s resources and abilities, in addition, of course, to its various needs’ (para. 12 of the supplementary reply of the respondents of 26 November 2003).

25. I am aware of the difficulties that the respondents have discussed, at great length, concerning the determination of a minimum level of human subsistence with dignity, below which it will be deemed unconstitutional. However, a methodological difficulty in discovering the level of human subsistence with dignity should not be confused with a normative statement that such a level does not exist. In so far as there is no dispute — and there is no dispute — that there exist certain subsistence requirements below which the human right to live with dignity is violated, then the respondents have the (positive) duty to afford protection to these and the (negative) duty to refrain from violating them. This duty, with its negative aspect as well as its positive aspect, cannot be realized if we do not know its content.

26. It follows from the aforesaid that the respondents have the duty to make changes that they wish to make to arrangements that are designed to ensure the right to human dignity in such a way that real protection will continue to be afforded to this right, and with a view to its normative status. Indeed, the human right to live with dignity is a constitutional basic right. The duty to respect it does not end with ceremonial proclamations. The need to afford it protection is not limited to theoretical statements. Were we to hold otherwise, then we would empty the human right to live with dignity of any real content, and the ability to carry out judicial review of executive acts and legislation that (allegedly) violate the human right to live with dignity would be frustrated.

Conclusion — on ‘constitutional revolutions’ and the ‘poverty trap’

26. More than a decade ago, in his opinion in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], my colleague the President coined the expression ‘constitutional revolution,’ an expression which was intended to indicate the fundamental normative change that occurred in Israeli law when the Basic Laws concerning human rights were enacted:

‘The constitutional revolution occurred in the Knesset in March 1992. The Knesset gave the State of Israel a declaration of constitutional human rights. This constitutional revolution is the result of many years of development and a multi-faceted constitutional process. Underlying it is the recognition that according to our constitutional structure the Knesset has the constitutional authority to give Israel a constitution… in enacting the Basic Laws concerning human rights, the Knesset expressed its position with regard to the legal-constitutional status of two Basic Laws that concern human rights. Today the Supreme Court is expressing its legal position that confirms this supreme constitutional status’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 353).

By virtue of the ‘constitutional revolution,’ it was held that the Basic Laws defined new reciprocal relationships between the individual and other individuals, and between the individual and society as a whole. A new balance was created between the individual and the government (Ganimat v. State of Israel [26], at p. 412). From now on, ‘the legislative power given to the legislature is subject to a duty to respect human rights’ (Barak, Constitutional Interpretation, at p. 477).

Much water has flowed in the river of constitutional law since the landmark judgment was given in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], and the normative change in the status of human rights has, as we know, brought good news to many. It has benefited creditors and investment portfolio managers. It has benefited women who want to join a flying course and women who wish to be appointed as directors in state corporations. I am of the opinion that in this vein it is right to determine also that the same change also benefits the petitioners, in as much as their concerns are derived from the very heart of the need for constitutional recognition of the right to dignity.

27. Before I conclude my remarks, I think it right to say something about the main argument of the respondents, according to which the reduction of the income supplement benefits is required in view of the fact that it has led to ‘poverty traps.’ Large parts of the state’s affidavits in reply were devoted to a description of the sharp increase in the number of recipients of income supplement benefits, and to explanations about these ‘poverty traps’ that were created, allegedly, as a result, as a main reason that required a decision that reduced the benefits. This is how the respondents explained it in their reply: ‘The meaning of the term poverty trap… is that an analysis of the advantages of the structure of the benefit and its accompanying allowances, in comparison with the alternative of joining the work force, leads a rational person, who is interested in maximizing his available income, to prefer to remain within the benefit system and to refrain from choosing to join the work force or at least to join the work force to such an extent that he will be prevented from continuing to receive the benefit and the accompanying allowances’ (para. 33 of the respondents’ affidavit of 15 May 2003).

Against the background of these remarks, I think it right to say something that is certainly known even to the respondents. ‘Poverty traps’ are not created only as a result of benefits that are used to supplement income. This approach is erroneous and misleading. ‘Poverty traps’ are created also — and perhaps even mainly — as a result of the combined operation of many other factors: ‘poverty traps’ are created where some people do not have equal access to education and higher education; ‘poverty traps’ are created where some people do not have equal access to basic infrastructures; ‘poverty traps’ are created where protective employment legislation is not enforced, where the freedom of association of workers is not protected and where improper and illegal employment norms become common practice; ‘poverty traps’ are created where discrimination between persons on the basis of irrelevant considerations is practised, and this exacerbates feelings of alienation and unfair treatment. The respondents did not claim before us — and they certainly did not prove — that they tried other methods in the areas mentioned to prevent ‘poverty traps,’ before they decided to harm the sole income of some of the weakest social groups in Israel.

We are dealing with a difficult and complex social reality. We should not deny the circumstances that have led to its creation. It is not unrealistic to assume that it is far from being a result solely of the income supplement benefit and the accompanying allowances. The respondents have the national responsibility for acting to change it. Their constitutional duty requires this of them. When doing this, they would do well to pay attention to all the circumstances that create the reality of the lives of persons who are trying to extricate themselves, without success, from the poverty trap, and also to the vision of the founders of the state, who had the courage to imagine a place where there is complete equality of social and political rights.

28. For these reasons, if my opinion is accepted, we would declare ss. 17(3)(a), 17(11) and 17(13) of the Arrangements Law and paras. 7 and 10 of government decision void. The respondents, of course, are entitled to enact and decide these once again, provided that they do so in a manner that takes into account the entitlement of the recipients of income supplement to live with dignity, and the normative status of this right. This is required by the practical recognition of the human right to live with dignity. This is implied by the express purpose of the Income Supplement Law and the purpose underlying the arrangements that were cancelled by the government decision. This is what the respondents should have done ab initio.

 

 

 

Vice-President M. Cheshin

Prior to the commencement of the two Basic Laws of 5752-1992 — the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation — the court did not have jurisdiction to order the legal voidance of a provision in a statute of the Knesset. The word of the legislator was law, and the court was commanded to stand by and remain silent even if it thought that word of the legislature blatantly contradicted first principles of law and justice: HCJ 142/89 Laor Movement v. Knesset Speaker [39]. By contrast, when it was found that the content of a regulation conflicted with the dictates of statute, the court had the jurisdiction to order the voidance of that regulation. This was the rule with regard to any subordinate legislation, including orders and regulations with legislative force, and even regulations enacted by the government with the approval of one of the committees of the Knesset. Indeed, the higher its status in the hierarchy, the greater the strength of the subordinate legislation, and in line with the doctrine of ut res magis valeat quam pereat (that something should have effect rather than be void) the court did not rush to declare any subordinate legislation void. But no one had any doubt that the court was competent to consider whether subordinate legislation was valid or not. When the aforesaid two Basic Laws came into effect, the law and case law changed. This is what those two Basic Laws told us, and we followed in their wake. And so, since 5752-1992, when the court has found that a provision of statute enacted by the Knesset conflicts with any of the substantive provisions in those two Basic Laws, it has the power to declare that provision void. Thus the two Basic Laws have been interpreted in accordance with the interpretive tradition and the case law that has been accepted by us from the beginning, and this interpretation has remained unaltered until this time.

2.    The power that the court acquired in these two new Basic Laws — the power to declare a provision in a statute of the Knesset void — once again raised questions that were once critical questions but in the course of time began to diminish even if they did not entirely die away and disappear. I am referring to the claim that the voidance of subordinate legislation by the court — or should we say, a declaration of a court that a piece of subordinate legislation is invalid and void ab initio — involves an overlap of powers, allegedly, between the judicial authority and the subordinate legislative authority, or to put it more bluntly, that the voidance of subordinate legislation by the court amounts to an invasion by the court into territory not within its jurisdiction: CA 311/57 Attorney-General v. M. Diezengoff & Co. (Navigation) Ltd [40]. For if the executive authority has the power to enact subordinate legislation, then the power to cancel that subordinate legislation also belongs to the executive authority. Should it therefore not be said that in ordering the voidance of subordinate legislation, the court is taking over the power of the executive authority, that it is invading the sphere of the executive authority? The answer to this question was also given a long time ago. It is that the executive authority enacts subordinate legislation even though the legislature’s power of legislation was given to it alone. Thus, just as the executive is competent to enact subordinate legislation and this does not detract even from the legislature that has been deprived, seemingly, of its power and has delegated legislative power to the executive authority, so too the cancellation of subordinate legislation by the court should not be regarded as an invasion by the judicial authority into the sphere of the executive authority. The realities of life dictate a certain mode of operation — authorizing the executive authority to enact subordinate legislation; the same realities of life give the court — at the behest of the legislature — power to cancel that subordinate legislation. Now, when the court has acquired power to cancel one or more provisions of primary legislation, questions that were laid to rest in the ground for a long time have arisen and these questions come back to disturb our repose from time to time.

3.    So the question is what legal criteria should we adopt when we examine whether a provision of a certain statute is in conflict with one of the provisions of those Basic Laws of 5752-1992? Should we use the same legal technique that we use in the process of voiding subordinate legislation also with regard to the voidance of statute? And if we say that we should use the same technique in both cases, is the basic approach for the scrutiny identical in both cases? Our answer to this question is that the technique — in principle — is the same technique, but the basic approach when applying the technique to the issue under discussion is a different approach, in quantity if not in quality.

4.    Concerning the technique, in our case we are witness to the decisive weight given to the content of the Basic Laws when scrutinizing the constitutionality of subordinate legislation and when carrying out judicial review of administrative acts. We see that since the limitations clause in the two Basic Laws under discussion was enacted, the courts have applied its principles also to the scrutiny of subordinate legislation and administrative acts, and this is particularly the case with the principle of proportionality — a principle which in certain senses is akin to reasonableness. Indeed, the scrutiny of legislation of the Knesset is carried out, and rightly so, in an orderly and strict manner as required by the provisions of the Basic Laws, but in essence we see no fundamental difference between one scrutiny and another.

5.    This is the case with regard to legal technique — and for the scrutiny of subordinate legislation, on the one hand, and of the legislation of the Knesset, on the other, is a similar and almost identical technique — but it is not the case with the basic approach. For if with regard to subordinate legislation the question of the overlap of powers between the judicial authority and the executive authority arose — and was put to rest — this is not the case in the relationship between the judicial authority and the legislative authority, the Knesset, with regard to primary legislation. Here the doctrine of the decentralization of power and the separation of powers weighs us down with its full force, and it is a doctrine that we must take very great care to uphold. We must tread very carefully before we order the voidance of a provision of a statute of the Knesset, even in a case where we are speaking of the basic rights of the individual. This great caution has adopted the form of a doctrine, and this doctrine cautions us expressly and specifically against intervention in the legislative acts of the Knesset, lest the court oversteps itself and trespasses into the sphere of the legislative authority: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349 et seq.; HCJ 5503/94 Segal v. Knesset Speaker [41], at pp. 547 et seq.. In our case, it can be said that the violation of the right of the individual must be a major violation, a fundamental and profound violation, a violation that has negative strength in quantity, weight and degree, in order that it should prevail over an express provision of statute.

In the final analysis — or, to be precise, in the initial analysis — the voidance of a statute of the Knesset, in whole or in part, is not like the revocation of a fishing licence or a licence to manage a food shop, nor even like the voidance of regulations that were enacted by a competent authority or by a minister or by the government itself. The way in which we make our decision will depend also on the nature of the right, the place of the right in the whole collection of human rights, etc.. With regard to human dignity — and this is the issue here — we should remember that we wish to derive from it a right that the legislator did not mention expressly in the Basic Law. The basic principle on which democracy in Israel is based — the principle of the decentralization of power and the separation of powers — gives the legislative authority, which is the state’s house of elected representatives, a considerable margin within which it is free to manoeuvre, and this margin is very wide indeed. The violation of the right of the individual must be so serious that the holder of the legal scalpel will allow himself to penetrate through the surface of the legislation and cut out the offending part. In this context we should recall that there is also a difference between rights of a negative nature — the rights of the individual that the government should not intervene in his affairs, which are the classical rights — and the rights of the individual that the government should be compelled to do something, that the government should give grants, etc..

6.    When I take cognizance of all this, I agree with the opinion of my colleague the President — with a heavy heart, like him — and at the same time, by corollary, I have difficulty in agreeing with the opinion of my colleague Justice Levy. We all feel for the petitioners before us — Mrs Rubinova, Mr Pedalon and others like them — and these are not mere words. In this case, as in other cases, the judge is confronted by a person in distress who asks for help and brings his supplication before the court. Only a heart of stone would not feel, and in the judge’s breast there beats a heart of flesh and blood. We would like to be of assistance to them, to the petitioners, for their life is a life of distress, and we know that only with difficulty, with very great difficulty, are they able to conduct their lives in an orderly fashion. But what is stronger for us are the dictates of the legal system in which we live, and it is our duty to suppress our feelings — and sometimes, also our anger — and not to overstep the boundaries that have been placed around us. For if we overstep these, we will undermine the system of government and administration, and any good that we do will be outweighed by the harm that we cause. It is we who are now under scrutiny, and the question is whether we will succeed in resisting our good intentions and conquer our feelings. I fear that voiding an act of the legislature on the basis of the facts that have been brought before us would amount to a serious and blatant intervention in powers that are not ours. The scalpel in our hands is the scalpel of law, and the law places restrictions and restraints on us that we cannot overcome.

 

 

Petition denied, by majority opinion (President Barak, Vice-President Cheshin and Justices Beinisch, Rivlin, Procaccia and Grunis), Justice Levy dissenting.

11 Kislev 5766.

12 December 2005.

 

 

HCJ 3117/02

Center for the Defence of the Individual, founded by Dr. Lotah Saltzberger

v.

The Minister of Defence

 

The Supreme Court sitting as the High Court of Justice

[April 14, 2002]

Before President Barak., Justices T. Or  and D. Beinisch.

 

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

 

Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners argued that respondent was not using the special rescue unit of the IDF Homefront Command to search for all persons that may be buried alive under ruins in the Jenin refugee camp.

 

Held: The Supreme Court held that both law and morality mandated that the rescue unit enter the Jenin refugee camp. As this unit had entered the camp, as per respondents reply, the goal of the petition had been fulfilled.

 

For the petitioners—Yossi Wolfson

For the respondent—Malchiel Blass, Yuval Rotman

 

JUDGMENT

This petition before us asks why respondent does not, using the special rescue unit of the IDF Homefront Command, search for and rescue all persons buried alive under the ruins of the Jenin refugee camp. The petition was served on Saturday night. The Justice on duty decided that the petition would be heard today, April 14, 2002, in the morning. At the beginning of the hearing, with respondent not having had time to prepare a written response, he informed us that the rescue unit of the Homefront Command had already entered the Jenin refugee camp, together with other forces, to the extent that security restrictions have allowed. The unit will attempt to locate people.

As such, it appears to us that this petition has achieved its objectives.  The entry of the rescue unit is necessitated by both law and morality. The responsibility lies, of course, on the shoulders of the Military Commander on site. He will collect information regarding the possible location of people—information relayed by soldiers and locals, as well as making use of the experience of the unit itself. All this is subject to the judgment of the Military Commander and to the security needs in the field.

In light of the declaration of the State, the petition is rejected.

April 14, 2002

 

 

HCJ 3278/02                                                                                             

 

1.  HaMoked: The Center for the Defence of the Individual founded by Dr. Lotte Salzberger

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

3.  The Association for Civil Rights in Israel

4.  B’tselem – The Israeli Information Center of Human Rights in the Occupied Territories

5.  Kanon – The Palestinian Organization for the Protection of Human and Environmental Rights

6.  Addameer – Prison Support and Human Rights Association

7.  Alhak – The Law in Service of Human Rights

v.

Commander of the IDF Forces in the West Bank

 

 

 

The Supreme Court Sitting as the High Court of Justice

[April 25, 2002; July 28, 2002, October 15, 2002]

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

 

For the petitioners—Dan Yakir; Leah Tzemel; Tarek Ibrahim; Yossi Wolfson; Hisham Shabaita

For the respondents—Shai Nitzan

 

 

JUDGMENT

President A. Barak

 

Facts

 

1.   Beginning in September of 2000, there was an increase in Palestinian terrorist activity against the Jewish community in Judea and Samaria, the Gaza Strip, and within Israel itself.  Hundreds were killed and wounded.  In reaction, the army initiated military activities.  Hundreds of Palestinians were killed and wounded.  Terrorist activity intensified in the beginning of 2002.  In March of that year there was an increase of Palestinian terrorist activity.  Approximately one hundred and twenty Israeli civilians were killed and hundreds were wounded.  In response to the terrorist activity, the government decided, on 29.03.2002, to carry out a large-scale military operation.  The goal of the operation, Operation Defensive Wall, was to destroy the Palestinian terrorist infrastructure.  During the operation, the Israel Defense Forces [hereinafter the IDF] entered many areas in Judea and Samaria which were under the control of the Palestinian Authority.

                                     

2.   Within the framework of Operation Defensive wall, the army carried out a wide-ranging operation of detention. The IDF entered Palestinian cities and villages and detained many suspects.  At the height of the activity about 6000 people were detained.  Initially, the detentions were carried out in accordance with the standard criminal detention laws of the area, specifically Security Regulations Order 387 (Judea and Samaria)-1970.  Since 5.04.2002, the detentions have been carried out under the authority of a special order—Detention in Time of Warfare (Temporary Order) (Judea and Samaria) (Number 1500)-2002 [hereinafter Order 1500].  During the first stage of these detentions, the detainees were brought to temporary facilities, which were set up at brigade headquarters. Here the detainees were initially screened, a process whose duration extended between a few hours and two days.  At this point, a substantial number of the detainees were released. During the second stage, those who remained were transferred to a  central detention facility in the area, located at Ofer Camp, for further investigation. Several days after the initiation of Operation Defensive Wall, after the detention facilities at Ofer Camp were prepared, the temporary screening facilities were shut down and the initial screening stage also took place at Ofer Camp.  The petition before us is directed against the detention conditions at both the initial temporary facilities and at Ofer Camp.  In the third stage, some of the detainees were transferred to Kziot Camp.  An additional petition directed against the detention conditions at Kziot, HCJ 5591/02, is pending before this Court, and will be dealt with separately.  A petition regarding the lawfulness of Order 1500 is also pending before this Court. See HCJ 3239/02.  The current petition deals only with the temporary detention conditions at the brigade headquarters during the first stage, and the detentions conditions during the second phase at Ofer Camp.

 

Petitioners’ Arguments

 

3.   The petitioners complain about the detention conditions at both the temporary facilities and at Ofer camp.  Regarding the temporary facilities, the petitioners claim that the detainees were forced to sit on the ground with their heads bent and their hands down, and that their hands were handcuffed in a rough manner, which caused fierce pains and bruise marks.  Furthermore, petitioners claim that the detainees' eyes were covered, that, if they moved or raised their heads, they were exposed to the physical and verbal abuse of the supervising soldiers, that they remained in this difficult position for hours, and that, during this time, they were exposed to the rigors of the weather and were unable to sleep.  Petitioners further assert that detainees were deprived of sustenance, that, though they were permitted to go to the bathroom, permission was not often granted, and that there was no documentation of the possessions that were taken from the detainees, including ID cards, cellular phones and cash. 

 

4.   The petitioners also complain about the inhumane conditions at Ofer Camp.  They claim that the facilities are exceedingly overcrowded.  The detainees were transferred into tents or “shelters," which do not shield the detainees against the rigors of the weather.  The detainees were not supplied with sufficient mattresses, nor were the mattresses that were supplied of reasonable quality.  Furthermore, petitioners assert that the detainees did not receive enough blankets, and that the food that they were provided with was insufficient and of poor quality.  Meals were served in small bowls, without plates or other eating utensils.  They were not provided with clothing.  There were not enough bathroom stalls, nor were they supplied with sufficient toilet paper.  The showers did not have hot water, nor was there sufficient soap.  Furthermore, they assert that, other than painkillers, they received no medical treatment.

 

5.   The petitioners ask that we order the respondent to provide minimal humane detention conditions – which will be reasonable and appropriate – both during the first stage of detention at the temporary facilities and also during the second stage of detention in Ofer Camp.  These conditions must be both suitable and respectable.  The petitioners also ask that we order the respondent to allow representatives of human rights organizations to visit Ofer Camp and observe the conditions of detention provided there.

 

Statement of the State Attorney

 

6.   In the response brief submitted on 24.4.2002, the respondent notes that, at the beginning of Operation Defensive wall, due to the large number of persons being detained, it was impossible to immediately provide all of the detainees with completely suitable detention conditions.  Therefore, for a relatively short period of time, not all of the detainees were provided with completely acceptable detention conditions.  Nevertheless, the army equipped itself very quickly.  Most of the temporary facilities were shut down.  The conditions in Ofer Camp were improved such that all of the detainees are now provided with reasonable detention conditions which meet the standards recognized by both Israeli and international law. 

 

7.   Regarding the conditions in the temporary facilities, respondent notes that the detainees remained there only a short period of time – usually for only a few hours, and no longer than forty-eight.  There, the detainees went through preliminarily interrogation and tentative screening.  Respondent notes that the temporary facilities were not equipped for long-term detentions and the conditions there provided were absolutely minimal.  Nevertheless, respondent noted that to the best of his knowledge, the detainees had been supplied with drinking water, sustenance and medical treatment by doctors on location.  The detainees had access to the bathrooms. Regarding the handcuffs, it was emphasized that the manner of handcuffing the petitioners complain of is prohibited, and that soldiers have no permission to employ such methods.  Respondent asserts that each complaint will be dealt with individually.  Regarding the failure to document the possessions seized from the detainees, it was noted that at the beginning of the period there had apparently been deficiencies in the matter, due to the lack of awareness of those running the facilities.  The situation was quickly remedied, with an order being issued to precisely document of all possessions seized from detainees.  To the best of the respondent’s knowledge, this order has been implemented.  With respect to the complaint that the detainees should be held in a shelter shielded from the weather, the respondent points out that the temporary facilities were intended to hold detainees for very short periods of time.  Some of the detainees were provided with shelter, whether in tents or in permanent buildings.  With regard to the claim that the detainees were subject to the verbal and physical abuse of the soldiers, respondent asserts that such activity is prohibited.  He adds that the detainees can complain about such matters to the commanders in the respective facilities.

 

8.   As to Ofer Camp: respondent asserts that some of the detainees were moved there after an initial screening at the temporary facilities.  When the temporary facilities were shut down, all of the detainees were moved to the Ofer Camp.  Between 29.03.2002 and 22.04.2002, over the course of about three weeks, about 3,000 detainees were brought to the facility.  After being screened and interrogated, about 1,420 of those detained were released, a figure that is correct as of 22.04.2002.  About 240 detainees had been moved to other detention facilities as of that date, such that by 24.04.2002 approximately 1,340 detainees were being held in Ofer Camp.  Ordinarily, Ofer Camp has the capacity to hold about 450 detainees.  The facility is divided into five “detention divisions."  Five tents, designed to hold 100 detainees each, are located in four of these divisions.   Three tents are located in the fifth division, each designed to hold fifty persons. 

 

9.   The number of detainees transferred to Ofer Camp upon its opening greatly exceeded its standard or expanded capacity. In its standard capacity, Ofer is designed to hold 400 persons. In its expanded capacity, it is designed to 700 detainees, such that thirty, instead of twenty, detainees reside in each tent.  A severe situation of overcrowding developed.  In order to resolve this problem, four permanent shelters were quickly erected, using beams which had been found in the facility.  These were to provide temporary shelter for detainees.  These shelters were equipped with wooden beds and chemical bathrooms.  Later, showers were also installed in the shelters.  The shelters were prepared within a number of days.  Thus, the most severe overcrowding problem, which had caused some detainees to remain without shelter for a short period of time, was temporarily resolved.

 

10. Along with the above-mentioned activity, three days after the initiation of Operation Defensive wall, a decision was made to set up seven additional detention divisions in Ofer Camp.  These areas were opened on 24.04.2002.  They are designed to hold about 500 detainees.  The detainees who had been residing in the shelters were moved to these divisions. Two more divisions are scheduled to be opened within the next few days.  Detainees who are currently being held in the other detention divisions will be moved to the new divisions, thus relieving the overcrowding in the other facilities.  The respondent is of the opinion that the facility, after being so expanded, provides reasonable detention conditions.

 

11. The respondent extensively covered the issue of the detention conditions at Ofer Camp.  According to the respondent, as stated, since the completion of the construction activities on 24.04.2002, the issue of overcrowding no longer presents a problem.  There are three bathrooms and three showers located in each of the detention divisions, and the water in the showers may be heated. The detainees are supplied with toilet paper, soap, toothbrushes and shaving brushes.  The detainees sleep on wooden beds with mattresses, which are the same as those used by the IDF.  Initially, the number of blankets available was insufficient.   This problem was solved within a number of days, and each detainee is now supplied with at least three or four blankets.  Regarding the issue of clothing, each detainee was originally supplied with one change of clothes.  However, due to the large number of detainees, many of them soon found themselves lacking extra sets of clothing.  This problem was resolved on 23.04.2002, when a sufficient quantity of clothing arrived at the facility.  As of the time the response was submitted on 24.02.2002, each of the detainees had received at least one, if not two, changes of clothes.  Each of the detainees is provided with a coat.  Regarding the issue of sustenance, during the first few days of the facility’s operation, the food lacked in quantity and variety.  Within a matter of days, a sufficient amount of food was brought into Ofer Camp, and there is no longer a deficiency in the food supply.  The food supplied is now sufficient and varied.  A doctor is always available on location.  As part of his reception into the facility, each detainee undergoes a medical examination. Medical inspections are regularly carried out.  When it becomes necessary, detainees are moved to a hospital.  After arriving at the facility, each detainee receives a postcard and is allowed to communicate the details of his detention, including his location, to his family.  These postcards are transferred to the Palestinian Authority.  Ofer Camp has two tents in which detainees may meet with their attorneys.  Since 14.04.2002, the Red Cross has been allowed to enter the facility, and their representatives have been visiting the site without restriction.  They converse with each of the detainees in the facility.  They meet with the commanding officials and relate their comments about the detention conditions.

 

12. The respondent concluded by objecting to allowing the petitioners’ attorneys to visit Ofer camp.  He claimed that there are no legal grounds for such a request.  As noted, representatives of the Red Cross visit the facility freely, and this ensures that an outside, international body supervises the facility.

 

The First Hearing – April 25, 2002

 

13.             Upon receiving the respondent’s response brief, we held the first hearing in this matter.  The petitioners emphasized that the army should have prepared itself for the large number of persons who were to be detained, and that this oversight was a consequence of the army’s disrespect towards the fundamental rights of the detainees.  The petitioners complained about the sleeping difficulties caused by the wooden beds and thin mattresses.  Three blankets are insufficient.  The food is occasionally served cold. The detainees do not receive hot drinks.  Petitioners reiterated their request that the petitioners' attorneys be allowed to visit Ofer Camp.  The respondent stated that, regardless and independent of this petition, the army has learned the necessary lessons from its initial experiences. The facility is no longer overcrowded and its occupancy is decreasing daily.  The sleeping conditions match the IDF standards.  Each of the detainees receives four or five blankets, and upon request is provided with additional blankets.  The food provided is sufficient and is in accordance with IDF nourishment charts.

 

14. During the oral arguments we asked whether the respondent would allow the petitioners’ attorneys to visit Ofer Camp.  The respondent pointed out that the attorneys do not have visitation rights.  Nevertheless, petitioner agreed to allow a joint visit, with both himself and the petitioners, to the facility.  At the end of the hearing, we decided to postpone this proceeding to a later date.  We noted before us that five representatives of the petitioners would be permitted to visit Ofer Camp, along with the respondent’s attorney.  We ordered that within five days after the visit, the petitioners’ counsel should submit a statement.  The respondent would then be granted five additional days to submit his response.  We decided that the petition would be decided based on the contents of those statements.

 

15. Implementing the decision to allow the visit raised a number of difficulties.  During their visit, petitioners’ counsel requested that they be allowed to converse directly with the detainees.  The respondent asserted that the visit was being allowed ex gratia, and that he had initially indicated that the visitors would not be allowed to converse with the detainees.  He added that one of the petitioners’ representatives, who had requested to meet with the detainees, was charged with disruption of legal proceedings for relaying messages illegally.  The petitioners’ attorneys could learn of the detainees’ complaints from their individual lawyers, who are in constant contact with them.  In light of this response, the petitioners’ attorney refused to proceed with the visit.  They requested that we order the respondent to allow the petitioners’ attorneys to meet with representatives of the detainees during their visit.  We decided to advise the parties, on 8.05.2002, that military personnel in the facility escort the visitors during their visit and decide, in exercise of their discretion, whether to allow the visitors to meet with representatives of the detainees.

 

16. Petitioners’ attorneys visited Ofer Camp on 22.05.2002.  Representatives of the State Attorney, the Judge Advocate-General and the commanders of the camp also attended.  The visit included entrance into a standard detention division where the detainees reside and the detention division where the kitchen is located.  Petitioners’ attorneys were permitted to speak with a number of the detainees’ representatives.  The respondent informed us that, despite the agreement between the parties, the petitioners’ representatives spread out among the tents and began talking to various detainees, disregarding the pleas made by the respondent’s representatives. 

 

17. After the visit we received supplementary statements from both parties.  The petitioners noted that the physical conditions of the camp had been improved since the petition had been submitted.  Nevertheless, the visit – which did not allow detailed or thorough observation of detention conditions – revealed a long list of issues which have yet to be resolved.  According to the petitioners, the following principle problems surfaced: detainees do not receive sufficient medical treatment for their illnesses; the tents are overcrowded; twenty two detainees are held in each tent; other than the sleeping areas, there is no room for the detainees to move around; it is difficult to sleep on the thin five centimeter mattresses of the wooden beds; the heat in the tents is unbearable; the three showers and three bathrooms in each division are insufficient; the maintenance of the stalls is deficient;  the quantity of clothing provided is insufficient;  the detainees are not provided with games or reading materials, save the Koran.  The petitioners' attorney listed other problems in a separate letter to the respondent.

 

18. In his supplementary statement, the respondent complained about the behavior of petitioners’ counsel during their visit in the Camp.  His response also addressed the claims made by the petitioners.  Regarding medical treatment, he noted that there is an infirmary in Ofer Camp, which employs a large staff of five doctors, medics and pharmacists.  The stock of medications is sufficient.  A doctor or medic inspects every detainee as is necessary.  When the medical treatment offered by the facility does not suffice, the detainee is moved to a hospital.  With regard to the crowding in the tents, at the time of the visit 900 detainees were residing at the facility.  At most, each tent held twenty-two detainees.  The area of each tent is sixty square meters.  The wooden beds are lined up along both sides of the tents.  In the center of the tents, there is an empty space 1.4 meters wide for passage.  The number of bathrooms and showers – three per 100 detainees – is absolutely reasonable, considering the fact that access to these six stalls is unlimited throughout the day.  With respect to the claim regarding the absence of books and games, the respondent informed us that the Red Cross provides the detainees with both.

 

The Second Hearing – July 28, 2002

 

19. Upon receiving statements from both parties we held a second hearing.  The petitioners' attorneys limited their claims to the physical conditions in which the detainees were being held.  They repeated the claims that they had presented in their supplementary statement, while complaining of the overcrowding and heat in the tents, the absence of dining tables which causes the detainees to eat on the floor, the sleeping difficulties, the insufficient quantity of clothing provided and the small number of bathrooms and showers.

 

20. The respondent admitted that, in fact, when the detentions first began, the detainees were not provided with minimal dentition conditions.  Nevertheless, within a matter of days these were improved, such that Ofer Camp now operates reasonably and satisfactorily.  Five hundred and eighty detainees currently reside in the eight detention divisions.  Regarding the congestion in the tents, he pointed out that each currently holds only fourteen detainees.  There is a space of 45 centimeters between each of the beds.  Sustenance is provided according to the IDF nourishment chart.  Detainees who desire are permitted to have their own food brought in by visiting families.  Every detainee is supplied with three sets of clothing.  Some of the detainees prefer not to wear the military garments provided.  They are permitted to wear their own clothing, which is brought to them by their families.  The respondent added that the Red Cross regularly visits the facility, and that each detainee is free to speak with them.  Every detainee is entitled to meet with his attorney who may lodge, in his name, concrete and specific complaints regarding his condition. 

 

The Third Hearing – October 15, 2002

 

21. During the third and final hearing in this matter, the parties repeated their basic positions.  The petitioners' attorney noted the difficult situation that the detainees faced in the first stages of detention.  He claims that even now the detainees’ rights are being violated.  The overcrowding persists; the beds are unsuitable for sleeping; the bathrooms are inappropriate; a number of the faucets are malfunctioning and the facility is not equipped for the winter.  In his response brief the respondent noted that, in the first stages of detention, “there was a big mess."  In time, the conditions have been improved and they now meet legal requirements.  With regard to crowding, it was indicated that the facility is designed to hold 1,100 persons, and it was now holds only 900 detainees.  As such, overcrowding is no longer an issue.  The beds meet IDF standards. The missing faucets were taken by the detainees themselves, and in any case had already been repaired.  The facility is equipped for the winter, and the drainage problem has been solved.

 

The Normative Framework

 

22. The detention conditions in the area are primarily laid down by the Imprisonment Facility Operation (West Bank) Order 29-1967 [hereinafter, the Imprisonment Order].  This order provides directives regarding the conditions of imprisonment in the area.  Most of its provisions, save the following three, have no bearing on the matter at hand.  First, the order specifies that “prisoners shall be provided with appropriate nourishment that will guarantee the preservation of their health," Imprisonment Order, § 4, that “prisoners shall be provided with necessary medical treatment," Imprisonment Order § 5(a), and that “prisoners shall receive a receipt when their family identification and personal ID cards are taken," Imprisonment Order § 7.

 

23. These specific provisions are subject to the general principles of customary international law.  They are also subject to the directives regarding detention conditions set out in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter, the Fourth Geneva Convention].  As is well-known, Israel considers itself bound by the humanitarian directives of this Convention.  The respondent reiterated this commitment while in his response to the petition before us.  The directives of the Geneva Convention regarding detention conditions are clearly of a humanitarian nature; therefore they should be adhered to.  The question of whether or not the Basic Law: Human Dignity and Liberty applies to detention conditions in the area need not be answered here.  The general principles of administrative law, which apply to Israeli soldiers in the area, are sufficient for this matter. See  HCJ 393/82 Jamait Askan v. IDF Commander in Judea and Samaria, IsrSC 37(4) 785.  According to these principles, the army must act, inter alia, reasonably and proportionately, while striking a proper balance between the liberty of the individual and the needs of the public. One may learn about the proper standards of reasonableness and proportionality from the Standard Minimum Rules for Treatment of Prisoners.  These standards were adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders in 1955, and were ratified by the United Nations in 1957 and in 1977. See HCJ 221/80 Darvish v. The Prison Service, IsrSC 35(1) 536, 539-40, [hereinafter Darvish]; HCJ 540-546/86 Yosef v. Administrator of the Central Prison in Judea and Samaria, IsrSC 40(1) 567, 573, [hereinafter Yosef]; HCJ 253/88 Sajadia v. The Minister of Defense, IsrSC 42(3) 801, 832, [hereinafter Sajadia]. These standards apply to all imprisoned persons, including detainees.  Needless to say, these general standards must always be adjusted to the specific circumstances, with regard to time and place, while ensuring adherence to at least the bare minimum.  Justice Bach has noted:

 

One should not infer from this that all of the directives of the convention regarding the detention conditions of administrative detainees must be followed blindly.  Each and every directive should be examined with regard to its significance, its indispensability, and its adjustment to the special circumstances of the detention facility which is the subject of our proceeding.

 

Sajadia, at 832. Furthermore, we do not deal here with the imprisonment conditions of prisoners held in prisons.  We are dealing with the detention conditions of those being held in detention facilities in the area.  These detainees were detained during warfare in the area.  According to the security forces, the circumstances of the detentions are such that there is fear that the detainees endanger or are liable to endanger the security of the area, the security of IDF forces, or national security. See Order 1500 (the definition of “detainee.") 

 

24. The basic point of departure for our discussion is the balancing point between the liberty of the individual and the security of the public.  On the one hand are the rights of the individual who enjoys the presumption of innocence and desires to live as he wishes.  On the other hand lies society’s need to defend itself against those who rise up against it. Detention laws in general, and, more specifically, detention conditions, reflect this balance.  Here we find the position that detainees should be treated humanely and in recognition of their human dignity.  This is expressed in article 10 of the 1966 International Covenant on Civil and Political Rights.  Israel is a member of this covenant.  Article 10 of this covenant is generally recognized as reflecting customary international law. See N. S. Rodley, The Treatment of Prisoners Under International Law 27 (2nd ed. 1999).  The article states:

 

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

 

See also the first principle of the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, G.A. Res. 43/173, U.N. GAOR, 43d Sess., Supp. No. 49, U.N. Doc. A/43/49 (1988).  Israel acts according to this principle with regard to all prisoners and detainees. See CApp 7440/97 State of Israel v. Golan, IsrSC 52(1) 1; HCJL.A. 6561/97 The State of Israel v. Mendelson, IsrSC 52(5) 849; HCJL.A. 823/96 Wanunu v. The Prison Service, IsrSC 51(2) 873).  Vice President H. Cohen expressed this principle in Darvish:

 

Any person in Israel, who has been sentenced to imprisonment, or lawfully detained, is entitled to be held under humane and civilized conditions.  It is not significant that this right has yet to be explicitly stated in legislation: this is one of the fundamental human rights, and in a law-abiding democratic state it is so self-evident that it needs not be written or legislated.

 

Darvish, at 538. Indeed, the nature of detention necessitates the denial of liberty. Even so, this does not justify the violation of human dignity.  It is possible to detain persons in a manner which preserves their human dignity, even as national security and public safety are protected. Compare Yosef, at 573. Prisoners should not be crammed like animals into inadequate spaces. Even those suspected of terrorist activity of the worst kind are entitled to conditions of detention which satisfy minimal standards of humane treatment and ensure basic human necessities.  How could we consider ourselves civilized if we did not   guarantee civilized standards to those in our custody?  Such is the duty of the commander of the area under international law, and such is his duty under our administrative law.  Such is the duty of the Israeli government, in accord with its fundamental character: Jewish, democratic and humane. Compare Yosef, at 573.

 

25. In addition to these principles, we must consider the principles and regulations set forth in the Fourth Geneva Convention. Article 27 of the Fourth Geneva Convention sets out the point of departure for the convention:

 

Protected persons are entitled, in all circumstances, to respect for their persons, their honor, their family rights, their religious convictions and practices, and their manners and customs.  They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof against and against insults and public curiosity....

 

However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.

 

Alongside this general directive, the Fourth Geneva Convention includes a number of directives which refer to specific conditions of detention.  We shall examine those directives which are relevant to the petition before us, and which reflect the proper balance between the right of detainees and the security needs of the area.  These directives apply to persons in “internment," meaning administrative detention. Apparently, these directives do not apply directly to detentions for the purpose of interrogation, though, indirectly, they do bear heavily on such situations.  Thus, there is no reason not to refer to these directives in regard to the detention conditions before us.  Some of the detainees being held at Ofer Camp, who are in the last stages of their detention, remain there on the authority of an administrative detention order.  The aforementioned directives directly apply to those detainees.  The Geneva Convention specifies that detention conditions must preserve the health and personal hygiene of the detainees, while protecting them from weather conditions.  The detention facility should be properly lit and heated, especially in the late afternoon and until curfew; the sleeping areas should be sufficiently spacious and ventilated; and, in providing bedding, the weather conditions, as well as the age, gender and health conditions of the detainees, should be taken into account.  Detainees should be provided with clean and hygienically maintained bathrooms.  The detainees should receive a sufficient supply of soap and water for laundry and daily bathing; they should be provided with the necessary equipment to this end.  Detainees shall have access to showers, as well as sufficient time for bathing. See Fourth Geneva Convention, art. 85.  Detainees shall receive daily nourishment which is satisfactory in its quantity, quality and variety, such that it preserves their health and prevents the development of illnesses which originate in malnutrition; detainees shall be allowed to prepare their own food; they shall be provided with a sufficient supply of drinking water. Fourth Geneva Convention, art. 89.  Detainees shall be provided with sufficient changes of clothing, appropriate for the weather conditions. Fourth Geneva Convention, art. 90. An infirmary supervised by doctors shall be located in each detention area; detainees shall have unlimited access to medical authorities. Fourth Geneva Convention, art. 91.  Detainees shall undergo medical inspections at least once a month. Fourth Geneva Convention, art. 92.  The authorities will encourage learning and educational activities.  They will also encourage the detainees to engage in sports and games.  Sufficient space will be allotted for sporting activities. Fourth Geneva Convention, art. 94.  Any items taken from the detainee at the time of his detention shall be returned to him upon his release. Family identification and personal ID cards shall not be seized without providing the detainee with a receipt.  Detainees shall never remain without identification. Fourth Geneva Convention, art. 97.  The disciplinary order in the detention facility must conform to the principles of humanity.  The body and spirit of the detainees shall not be harmed. Fourth Geneva Convention, art. 100. The minimal standards of treating prisoners, which apply to all forms of detention, do not add significant provisions on the matters relevant to this petition.  It is sufficient to note the following requirements: detainees require minimal space for sleeping, lighting and heating. Fourth Geneva Convention, reg. 10. Each detainee shall have his own bed. Fourth Geneva Convention, art. reg. 19. At least one hour of physical activity shall be allowed. Fourth Geneva Convention, art. 21. A doctor from the detention facility shall inspect the conditions of sanitation.

 

From the General to the Specific

 

26. In order to implement these specific principles and rules in this case, we must distinguish between the two stages of detention the detainees went through.  First, we shall deal with the detention in the temporary facilities.  This occurred during the first days of detention.  The detainees were held at brigade headquarters, which was not adequately prepared for so many detainees.  These special circumstances should be taken into account when examining whether the respondent maintained the necessary detention conditions.  In referring to the issue of overcrowding in Sajadia, President Shamgar correctly stated: 

 

The existence of extreme crowding at the beginning of the wave of detentions may be explained by the security need for the simultaneous imprisonment of many people.

 

Sajadia, at 823. Nevertheless, even in such a situation, everything must be done to preserve the minimal standards of detention conditions.  These standards were not observed during the initial stages of detentions at the temporary facilities, and this conduct violated the detention order, the international laws which apply to the area and the fundamental principles of Israeli administrative law.  It will suffice to note several blatant breaches of these standards: detainees’ hands were handcuffed in a rough manner, which resulted in fierce pains and bruise marks; some of the detainees were kept outside for hours, as many as forty-eight, not sheltered from weather conditions and without sufficient access to bathrooms; their possessions were taken from them without being documented.  These conditions of detention can not be justified, nor can other deviations from minimal standards be excused by the need to accommodate so many detainees in such a short period of time. The necessity was known in advance.  It was expected.  Operation Defensive wall was planned in advance.  One of its goals was to arrest as many suspected terrorists as possible.  As such, the need for minimal detention conditions was a natural result of the goals of the operation.  There was no surprise in the matter.  There was the possibility of preparing appropriate divisions with suitable detention conditions.  What was done a number of days after the beginning of the operation should have been done several days before it began.  Indeed, security needs – which must always be taken into account – did not justify the inadequacies in the conditions of detention in the temporary facilities.

 

27. During the second phase, the detainees relocated to Ofer Camp.  During the first days in which the detainees were received in Ofer Camp, some of the minimal requirements regarding detention conditions were not fulfilled.  As we have seen, at the beginning of Operation Defensive Wall, Ofer Camp’s capacity was 450 detainees, with the option of expanding to 700.  In fact, a much larger number of detainees were brought to the facility.  The overcrowding was unbearable.  A substantial number of detainees remained unsheltered, exposed to the rigors of weather conditions.  Not all of the detainees received a sufficient supply of blankets.  These circumstances did not satisfy minimal standards of detention conditions, and had no security justification.

 

28. Shortly after, Ofer Camp's entered a period of routine operation, during which minimal requirements were satisfied.  This was the situation when the respondent first submitted his statement on 24.04.2002, and at the time of the first hearing.  Since then, additional improvements have been made.  The current conditions essentially satisfy the minimal required conditions, and in some cases, the conditions in Ofer Camp even exceed such minimal requirements.  Such a state of affairs is appropriate:  "minimal conditions" guarantee, as their name suggests, only the necessary minimum.  Israel, as a Jewish and democratic state, should aim to more than the minimum, and the respondent acted admirably in ensuring that, regarding certain matters, the conditions exceed minimum requirements.  Even so, two matters still demand improvement.  First, the army should reconsider the issue of supplying tables at which the detainees may eat.  The explanation offered for the absence of such tables – that the detainees will dismantle the tables, and use them in such a way as will disturb security – is unconvincing.  The detainees have not used the wooden beds in this manner, and there is no reason to believe they will do so with tables.  Additionally, concrete tables may be deeply embedded in the ground, thus preventing the detainees from dismantling them.  For those accustomed to eat at tables, the need for such tables is part of their human dignity.  Detainees are not animals and they should not be forced to eat on the ground. See Yoseph, at 575.  It is of course possible that there is not enough space for tables, whether in or around the tents.  This may require the expansion of the detention camp.  The weight and position of this argument has not been explored before us, and we ask that the matter be reconsidered.  Second, the respondent must ensure that books, newspapers and games be provided to the detainees.  Minimal standards demand this, and the matter should not be left to the Red Cross.  It is the respondent’s duty, and fulfilling it does not interfere with security.   Naturally, if the Red Cross has already supplied the detainees with these items, the respondent is no longer obligated to do so.

 

Detention Conditions and Judicial Review

 

29. This Court has always exercised wide-ranging judicial review concerning conditions of imprisonment and detention.  The Court has done so regarding Israeli prisoners and detainees.  It has done so regarding prisoners and detainees from the area.  In all of these cases, the Court thoroughly investigated the arguments, even considering the smallest details of the conditions of detention.  Thus, for example, Darvish dealt entirely with a security prisoner’s right to have a bed in his cell.  When necessary, visits were arranged to the prison, see Yosef, or the detention facility, see Sajadia.  Even so, our judicial review is not a substitute for constant review by the proper authorities in the army itself.  In Sajadia, President Shamgar emphasized this with regard to Kziot Camp, which, like Ofer Camp, holds many detainees from the area:

 

Considering the structure and function of the Court, it cannot perform continual inspection and supervision; however, constant inspection and proper supervision does allows for addressing and examining issues that may arise in a facility which holds such a large number of detainees.  By determining procedures of supervision, it becomes easier to strike the proper balance between providing just and humane conditions, and the need to maintain internal order and discipline and preserve safety and security

 

Sajadia, at 825. A similar problem now lies before us.  During oral arguments, various suggestions were made.  It seems that we are compelled to repeat the recommendation made in Sajadia by President Shamgar, to which all the justices there – both Vice- President M. Elon as well as Justice G. Bach – agreed:

 

As such, we find it appropriate to direct the respondents' attention towards the need to determine efficient manners of inspection and supervision. Our suggestion is that the respondent consider nominating a permanent advisory committee, which will carry out constant inspection and will report and advise the respondent on the matter of the detention conditions in the Kziot detention facility.  The head of the committee can be a senior military judge from the military tribunal units, and the committee may consist of experts from the fields of medicine, psychology, and jailing management.

 

Sajadia, at 825-26. Unfortunately, according to the information we have received, it seems this suggestion has not been put into action.  We ask that this recommendation be brought to the attention of the military's Chief of Staff.  We are confident that he will act to ensure its implementation.

 

30. Even more so: constant supervision and inspection are not substitutes for detainee petitions and judicial review.  These other options are available to detainees in Israel. See Prisons Ordinance [New Version]-1971, § 62A(a). Amending security legislation in order to allow such similar review should be considered.  Of course, such an arrangement would not replace judicial supervision by the High Court of Justice.  It would, however, provide alternative relief, which would justify limiting the judicial review of this Court to those cases where the situation has not been resolved through these other methods.

 

Petition Denied.

 

Justice D. Beinisch

I agree.

 

Justice I. Englard

I agree.

 

Petition Denied.

December 18, 2002

 

HCJ 11225/03

MK Dr Azmi Bishara

v.

1.       Attorney-General

2.       Knesset

3.       Nazareth Magistrates Court

 

 

The Supreme Court sitting as the High Court of Justice

[1 February 2006]

Before President A. Barak and Justices E. Rivlin, E. Hayut

 

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

 

Facts: In 2000 and 2001, while the petitioner was a member of the Fifteenth Knesset, he made two speeches. These speeches expressed support and approval for the Hezbollah organization, which in Israel has been declared a terrorist organization, and the petitioner was indicted for offences of supporting a terrorist organization.

In 2002, prior to the elections for the Sixteenth Knesset, applications were made to the Central Elections Committee to disqualify the candidacy of the petitioner in those elections, because of what he said in the two speeches. The Central Elections Committee disqualified the petitioner from standing for election, but this decision was set aside by the Supreme Court in Central Elections Committee for the Sixteenth Knesset v. Tibi, on the grounds that it was not convinced that the petitioner had expressed support for ‘an armed struggle of a terrorist organization against the State of Israel,’ as distinct merely from expressing support for a terrorist organization.

Meanwhile, the petitioner raised a preliminary argument in the criminal trial against him that he had substantive immunity against prosecution for the two speeches, since he made them while he was a member of the Knesset. The Nazareth Magistrates Court, which was hearing the trial, held that it would decide the question of substantive immunity after hearing the evidence in the trial. The petitioner then applied to the Supreme Court to set aside the decision of the Nazareth Magistrates Court. 

 

Held: (Majority opinion — President Barak and Justice Rivlin) Under the Immunity Law, expressions of support for ‘an armed struggle of a terrorist organization against the State of Israel’ are not protected by parliamentary immunity. This exclusion of immunity should be interpreted strictly. It does not include all expressions of support for a terrorist organization, only those that contain support for an armed struggle of a terrorist organization against the State of Israel. As the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi, the petitioner’s speeches did not contain clear support for an armed struggle of a terrorist organization against the State of Israel, although they did contain support for a terrorist organization. Consequently the statutory exclusion of immunity does not apply. The petitioner’s speeches should be considered under the case law rules for excluding immunity, according to the ‘margin of natural risk’ test. Although the petitioner’s statements and the circumstances in which they were made were close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset, the ‘margin of natural risk’ test is satisfied in this case.

(Minority opinion —Justice Hayut) The petitioner’s two speeches are not protected by substantive immunity, since they expressed support for an armed struggle of a terrorist organization against the State of Israel. In Central Elections Committee for the Sixteenth Knesset v. Tibi the petitioner was not disqualified from standing for election to the Knesset, but the premise for considering the scope of substantive immunity is completely different from the criteria that the court adopts when considering whether to disqualify a candidate from standing for office. The question of substantive immunity naturally arises with regard to a specific case, whereas for the purpose of disqualification in elections it is necessary to show that we are speaking of dominant characteristics that are central to the activities or the statements of the prospective member of Knesset in general. Moreover, for the purpose of preventing participation in the elections, ‘convincing, clear and unambiguous evidence’ must be presented as to the purposes and acts of the candidate. By contrast, the premise for determining the scope of substantive immunity is that the facts of the indictment will be proved.

 

Petition granted by majority opinion (President Barak, Justice Rivlin), Justice Hayut dissenting.

 

Legislation cited:

Basic Law: the Knesset, ss. 7A, 7A(2), 7A(a)(1), 7A(a)(3), 7A(b), 17.

Immunity, Rights and Duties of Knesset Members Law, 5711-1951, ss. 1, 1(a1), 1(a1)(3), 2, 2A, 3, 4, 13, 13(a).

Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002.

Penal Law (Amendment no. 66), 5762-2002.

Political Parties Law, 5752-1992, ss. 2, 5, 5(2).

Prevention of Terrorism Ordinance, 5708-1948, ss. 4, 4(a), 4(b), 4(g), 8.

 

Israeli Supreme Court cases cited:

[1]      CrimApp 9516/01 Bishara v. State of Israel (unreported).

[2]      EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2003] IsrSC 57(4) 1.

[3]      CrimA 255/68 State of Israel v. Ben-Moshe [1968] IsrSC 22(2) 427.

[4]      HCJ 620/85 Miari v. Knesset Speaker [1985] IsrSC 41(4) 169.

[5]      HCJ 1843/93 Pinhasi v. Knesset [1995] IsrSC 49(1) 661.

[6]      HCJ 5151/95 Cohen v. Attorney-General [1995] IsrSC 49(5) 245.

[7]      HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee (not yet reported).

[8]      HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229; [1992-4] IsrLR 19.

[9]      HCJ 507/81 Abu-Hatzeira MK v. Attorney-General [1981] IsrSC 35(4) 561.

[10]    LCA 7504/95 Yassin v. Parties Registrar [1996] IsrSC 50(2) 45.

[11]    LCA 2316/96 Isaacson v. Parties Registrar [1996] IsrSC 50(2) 529.

[12]    LCA 3527/96 Axelbrod v. Property Tax Director, Hadera Region [1998] IsrSC 52(5) 385.

[13]    EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[14]    HCJ 6271/96 Be’eri v. Attorney-General [1996] IsrSC 50(4) 425.

[15]    HCJ 588/94 Schlanger v. Attorney-General [1994] IsrSC 48(3) 40.

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

[17]    HCJ 4723/96 Atiya v. Attorney-General [1997] IsrSC 51(3) 714.

[18]    CrimFH 8613/96 Jabarin v. State of Israel [2000] IsrSC 54(5) 193.

[19]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[20]    EA 2600/99 Erlich v. Chairman of Central Elections Committee [1999] IsrSC 53(3) 38.

[21]    HCJ 399/85 Kahane v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[22]    CA 214/89 Avneri v. Shapira [1989] IsrSC 43(3) 840.

[23]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[24]    EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset [1989] IsrSC 43(4) 221.

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

[26]    HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311.

[27]    HCJ 1398/04 Ben-Horin v. Registrar of Amutot (not yet reported).

 

Israeli Magistrates Court cases cited:

[28]    CrimC (Naz) 1087/02 State of Israel v. Bishara (decision of 12 November 2003) (unreported).

 

American cases cited:

[29]    United States v. Carolene Products Co., 304 U.S. 144 (1938).

[30]    Jones v. Opelika, 316 U.S. 584 (1942).

 

For the petitioner — H. Jabareen, M. Dalal.

For the respondents — O. Koren, E. Gideoni.

 

 

JUDGMENT

 

 

Justice E. Hayut

The petitioner is the leader of the National Democratic Assembly party and has served as a member of the Knesset for that party since the fourteenth Knesset. While he was a member of the fifteenth Knesset, the petitioner made speeches on two different occasions outside the Knesset, one in the town of Um al-Fahem and the other in Syria. Because of what he said during these speeches, the attorney-general decided to indict him of an offence of supporting a terrorist organization, under the Prevention of Terrorism Ordinance, 5708-1948. The main question that the petition raises is whether the remarks for which the petitioner was indicted were made in the course of his duties as a member of the Knesset and whether he therefore has substantive immunity?

The facts

1.    On 9 September 2001 the first respondent submitted to the Speaker of the Knesset an application to lift the petitioner’s immunity in order to indict him in a criminal trial. The application related to the indictments which the first respondent decided to file against the petitioner. One is the indictment that is relevant to the petition before us, in which the petitioner is alleged to have committed an offence of supporting a terrorist organization on two occasions for remarks that he made during speeches that he gave outside the Knesset. The second concerns offences of aiding an unlawful departure from Israel, which were attributed to the petitioner because of his involvement in organizing trips of Israeli citizens to Syria. The second indictment has meanwhile been cancelled by the Nazareth Magistrates Court and the parties do not address it in this petition. Consequently we too will focus our deliberations on the first indictment. This indictment relates to two incidents. One is a conference that the National Democratic Assembly held on 5 June 2000 at the Al-Anis Hall in Um Al-Fahem to mark the thirty-third anniversary of the Six Day War. In the invitation to the conference, which took place approximately two weeks after the Israel Defence Forces withdrew from South Lebanon, it says that it is taking place ‘in an atmosphere of the victory of the Lebanese resistance and the liberation of South Lebanon…’. In the main speech that was given by the petitioner at the conference (hereafter — ‘the Um Al-Fahem speech’), he said, inter alia, the following:

‘The Hezbollah have won, and for the first time since 1967 we have tasted victory. Hezbollah’s right to be proud of its achievement and to humiliate Israel… Lebanon, the weakest of the Arab states, has presented a tiny model which, if we look in depth, can lead us to draw the necessary conclusions for success and victory — a clear purpose and a fierce desire to win, and preparing the essential means needed for achieving this purpose… the Hezbollah recognized the mood in the Israeli street and exploited it to the full. It made sure that its guerilla warfare was fully reported in the media, and each of its achievements had a significant effect on the morale of the people in Israel who gradually lost patience in view of the losses that they suffered from the Hezbollah’ (see para. 8 of the indictment).

The second event to which the indictment relates concerns a speech that the petitioner made in Syria approximately one year after the Um Al-Fahem speech, during a memorial service for Syrian president, Hafez Al-Assad (hereafter — ‘the Syrian speech’). At the ceremony, which was attended by Ahmad Jibril, the leader of the Popular Front for the Liberation of Palestine and Hassan Nasrallah, the leader of the Hezbollah, the petitioner said, inter alia:

‘It is no longer possible to continue without widening the margin between the possibility of total war and the fact that surrender is impossible. What characterizes the Sharon government is that after the victory of the Lebanese “resistance” which derived a benefit from this margin that Syria constantly widened, between accepting the Israeli conditions called a lasting complete peace, and the military option. This margin helped the steadfastness and persistence and heroism of the leadership and fighters of the Lebanese “resistance.” But after the victory of the “resistance” and after Geneva and after the failure of “Camp David,” the Israeli government tried to reduce this margin in order to present a choice with the formula: either acceptance of the Israeli conditions, or total war. Thus it will be impossible to continue with the third option, which is the option of the “resistance,” other than by widening this margin once again, so that people can carry out the struggle and the “resistance.” It is not possible to widen this margin other than by means of a united and effective Arab political position in the international arena, and indeed the time has now come for this’ (see para. 12 of the indictment).

Because of these remarks of the petitioner in the Um Al-Fahem speech and the Syrian speech, the indictment attributes to him two offences of supporting a terrorist organization, under s. 4(a) of the Prevention of Terrorism Ordinance, which was in force at that time but has meanwhile been repealed by the Penal Law (Amendment no. 66), 5762-2002, and also under ss. 4(b) and 4(g) of the Prevention of Terrorism Ordinance.

2.    The premise that was adopted by the first respondent with regard to the application for lifting the petitioner’s immunity was that in the circumstances of the case he did not have substantive immunity by virtue of s. 1 of the Immunity, Rights and Duties of Knesset Members Law, 5711-1951 (hereafter — ‘the Immunity Law’), since the Knesset cannot lift substantive immunity. On the basis of this premise and pursuant to the provisions of s. 13 of the Immunity Law, the first respondent sought to lift the petitioner’s procedural immunity. The Knesset Committee held two sessions in this regard, on 25 September 2001 and on 30 October 2001, during which the first respondent presented the grounds for his application, experts on constitutional law and the immunity of Knesset members were heard and the petitioner’s position was heard. Following these sessions, the Committee decided on 5 November 2001 to recommend that the Knesset should lift the petitioner’s immunity. This recommendation was discussed in the plenum of the Knesset on 6 November 2001, and following that session the Knesset decided on 7 November 2001 to adopt the Committee’s recommendation.

3.    The indictment against the petitioner was filed first in the Jerusalem Magistrates Court, but was transferred to the Nazareth Magistrates Court at the request of the petitioner (see CrimApp 9516/01 Bishara v. State of Israel [1]). In his preliminary arguments in the criminal proceeding, the petitioner raised, inter alia, the argument that he was immune from criminal liability for the statements referred to in the indictment, because of s. 1 of the Immunity Law, which gives him substantive immunity as a member of the Knesset when expressing an opinion in the course of carrying out his duties or for the purpose of carrying out his duties. The Magistrates Court was of the opinion that the decision on the question of the substantive immunity raised by the petitioner involved questions of fact that should be heard in the main proceeding, and it therefore decided not to hear the argument in the preliminary stage of the trial but to leave it to a stage after hearing the evidence (see CrimC (Naz) 1087/02 State of Israel v. Bishara (decision of 12 November 2003) [28]). Following this decision, the petitioner filed the petition before us. This petition gives rise to questions that concern the proper forum and the proper time for raising arguments concerning substantive immunity, but we do not need to decide these questions since the respondents gave notice of their consent to hold a hearing of the petition on its merits (see their statement of 1 February 2005).

To complete the factual picture, we should note another important development concerning this case. The indictment that we are discussing relates, as we have said, to two events that took place in the course of the fifteenth Knesset and it was filed on 12 November 2001, shortly after the fifteenth Knesset decided to lift the petitioner’s immunity. While the indictment was pending, the elections for the sixteenth Knesset were held, and prior to those elections the Central Elections Committee for the Sixteenth Knesset (hereafter — ‘the Elections Committee’) and this court were called upon to hear various proceedings that were initiated by certain parties with the aim of preventing the petitioner from standing as a candidate in those elections. One of the main arguments that those applicants raised in this context concerned the remarks that the petitioner made in the Um Al-Fahem speech and in the Syrian speech, as well as the indictment that was filed against him for those remarks after his immunity was lifted. The Elections Committee accepted the arguments and decided by a majority, against the dissenting view of the chairman of the Elections Committee, Justice M. Cheshin, to prevent the petitioner from standing as a candidate for the sixteenth Knesset. The Elections Committee held that the petitioner fell within the scope of the ground in s. 7A(a)(1) of the Basic Law: the Knesset, with regard to denying the existence of the State of Israel as a Jewish and democratic state, as well as the ground in s. 7A(a)(3) of that Basic Law, which concerns support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel. This decision was brought to this court for approval pursuant to s. 7A(b) of the Basic Law, and the court held, by a majority, that the decision of the Elections Committee to prevent the petitioner standing as a candidate for the sixteenth Knesset should not be approved. The court held, inter alia, that it was not convinced, to the degree of certainty required in cases of election disqualification, that the petitioner’s statements amounted to support for an armed struggle of a terrorist organization (see EDA 11280/02 Central Elections Committee for the Sixteenth Knesset v. Tibi [2]). The court also held in that case that the participation of the National Democratic Assembly party in the elections for the Sixteenth Knesset should not be prevented. Following the judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], the National Democratic Assembly party participated in the elections, in which it won three seats, and the petitioner served as a member of the sixteenth Knesset on behalf of that party.

The arguments of the parties

4.    The main argument of the petitioner before us is that the statements attributed to him in the indictment are merely the expression of an opinion on what are clearly political issues, and that they were uttered in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset. They are therefore protected, in his opinion, by substantive immunity, which cannot be lifted. The petitioner further argues that this conclusion is dictated by the purposes of substantive immunity, which are to allow the member of the Knesset to express political positions freely and to represent the public that voted for him without fear. This protection is especially warranted, in the petitioner’s opinion, when we are speaking of members of the Knesset from parties that represent minority groups, like the petitioner’s party. The petitioner further argues that in his speeches he expressed the positions of the National Democratic Assembly that are set out in the party manifesto, and these positions were approved in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] as satisfying the conditions in s. 7A of the Basic Law: the Knesset. The petitioner also complains, in the alternative, of the impropriety of the process of removing the procedural immunity. According to him, there were significant defects in the proceeding that justify its being set aside. First, the full facts were not presented to the members of the Knesset. In particular, the members of the Knesset were not informed of the fact that the police recommended that the investigation file against the petitioner should be closed, in so far as the Um Al-Fahem speech was concerned. In addition, the complete speeches of the petitioner were not brought before the members of the Knesset; they were only presented with fragments, and even these were not exact. Second, the Knesset Committee did not hold a hearing on the actual parts of the speeches that were brought before it, and it ignored the petitioner’s explanations with regard to their significance and the circumstances in which they were made. Third, the members of the Knesset did not consider all the factors that they should have considered before they voted on the proposal to lift the petitioner’s immunity, and in particular the members of the Knesset ignored the possibility that irrelevant considerations lay at the heart of the decisions of the first respondent to file an indictment against the petitioner. Fourth, the vote of the Knesset Committee, in which it decided to recommend to the Knesset that it should lift the petitioner’s immunity, was made after party consultations, and this gives rise to the suspicion that irrelevant considerations lay at the heart of the voting of at least some members of the Knesset.

5.    The respondents’ position is that the statements attributed to the petitioner fall outside the scope of substantive immunity. According to them, the provision which states that substantive immunity will apply to ‘expressing an opinion… in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset’ should be interpreted in view of the basic constitutional principles of the State of Israel. This interpretation leads to the conclusion that statements whose content is support for an armed struggle of a terrorist organization against the State of Israel cannot be considered to be expressing an opinion in the course of carrying out his duties and for the purpose of carrying out his duties as a member of the Knesset, and these statements do not fall within the scope of substantive immunity. This is the case in the absence of a provision of statute that expressly provides this. In the respondents’ opinion, a democratic state does not need to allow activity, which clearly seeks to undermine its ongoing struggle against terrorism in order to protect its citizens, to benefit from substantive immunity, even if it is done under a cloak of legitimate parliamentary activity. The respondents do not dispute the importance of freedom of speech in general and of elected representatives in particular, or the importance of open and free political debate. Notwithstanding, according to them, support of an armed struggle of a terrorist organization against the state falls outside the scope of democratic debate and discussion and outside the scope of the legitimate expression of public representatives.

The respondents also are of the opinion that there were no defects in the process of lifting the immunity. According to them, the Knesset was not competent to examine the indictment on its merits, and this also means that it was not competent to examine the strength of the evidence. Consequently, the material that was presented to the Knesset was sufficient. First, the evidence on which the indictment is based was presented comprehensively to the members of the Knesset. The police recommendation to close the investigation file constitutes an internal opinion and it has no objective value nor does it constitute any evidence when examining the request of the attorney-general to lift the petitioner’s immunity. Second, the question whether substantive immunity applies to the statements that led to the indictment was considered extensively and thoroughly by the Knesset Committee. The text of the speeches that led to the filing of the indictment was submitted to the members of the Committee, and a discussion was held with regard to them. Third, the petitioner’s argument according to which irrelevant considerations lay at the basis of the attorney-general’s decision was presented to the Committee, examined on its merits and rejected by the Committee. Fourth, the petitioner did not properly prove his claim concerning the party consultations before the vote in the Knesset Committee, or his claim that these consultations, even if they took place, affected the position of the Knesset members on the merits of the issue. In view of all this the respondents request that we deny the petition.

Deliberations

Substantive immunity — the normative framework and the purposes underlying it

6.    Section 17 of the Basic Law: the Knesset provides that ‘Members of the Knesset have immunity; details shall be provided in statute.’ Thereby the Israeli legal system adopted an importance principle that is the essence of the democratic system, whereby a member of parliament has immunity from legal proceedings. Immunity is intended to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear that this may result in a criminal conviction or a personal pecuniary liability in a civil proceeding. In CrimA 255/68 State of Israel v. Ben-Moshe [3], at p. 439, President Agranat explained the importance and purposes of the immunity granted to members of the Knesset when he said:

‘Before us we have a privilege of supreme constitutional importance, in that it is intended to guarantee that members of the legislative house of the state have freedom of opinion, expression and debate, so that they can discharge their duties, as such, without feeling fear or trepidation and without being concerned that they may have to answer for this to any person or authority; for the whole nation has a clear essential interest in the realization of this right, so that it does not suffer a major or minor violation by anyone; without it the democratic process cannot exist effectively and it will become valueless.’

Thus we see that the independence of members of the Knesset is essential for the proper functioning of a democracy. In discussing this rationale that underlies subjective immunity, President Shamgar said in HCJ 620/85 Miari v. Knesset Speaker [4], at p. 207:

‘A member of the Knesset, who cannot express himself without concern for the legal consequences of his remarks, cannot discharge his duty to the voter. The representatives of the people… have the task of conducting the political debate. The freedom of political debate requires that no restriction is placed upon the ability and right of free expression of the elected representatives.’

An additional central purpose that can be identified in the historical development of parliamentary immunity concerns the desire to preserve the separation of powers and to protect the proper activity of the legislature so that the executive authority does not intervene in it (see HCJ 1843/93 Pinhasi v. Knesset [5], at pp. 678-679; S. Nevot, The Subjective (Professional) Immunity of Knesset Members (Doctoral Thesis — Hebrew University, 1997), at pp. 147-150).

7.    There are various models of parliamentary immunity around the world. There are legal systems that give a member of parliament substantive immunity while limiting it only to the activity that is done in the parliament building itself (the United States, England, Canada, Australia, Germany and Holland). Other countries (France, Italy and Spain) do not attribute any importance to the place where the activity protected by immunity is carried out and the immunity extends both to activity carried out inside parliament and to activity outside it, provided that there is an objective-functional connection between the activity and the duties of the member of parliament. Some countries give the member of parliament immunity only for a vote or expressing an opinion and a few give immunity also for an act (for a detailed comparative discussion of the various models of substantive immunity, see Nevot, The Subjective (Professional) Immunity of Knesset Members, supra, at pp. 98-142).

The Israeli legislature adopted a broad model of substantive immunity, which is regulated in s. 1 of the Immunity Law, according to which:

‘Immunity in carrying out duties

1. (a) A member of the Knesset shall not have criminal or civil liability, and he shall be immune from any legal action, for a vote or for expressing an opinion orally or in writing, or for an act that he carried out — in the Knesset or outside it — if the vote, expressing the opinion or the act were in the course of carrying out his duties, or for the purpose of carrying out his duties, as a member of the Knesset.

     …’

From this we see that the substantive immunity of members of the Knesset extends also to acts and not merely to a vote or opinion, and it includes the activity of the member of the Knesset whether it is carried out inside the Knesset or outside it, provided that there is an objective-functional connection between this activity and his position as a member of the Knesset. This substantive immunity cannot be lifted (s. 13(a) of the law) and it continues even after the member of the Knesset leaves office (s. 1(c) of the law) (for the significance of substantive immunity and the tests concerning the scope of its application, see Miari v. Knesset Speaker [4], Pinhasi v. Knesset [5]; HCJ 5151/95 Cohen v. Attorney-General [6]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [7]). Alongside the substantive immunity, the Immunity Law further provides a procedural immunity. The procedural immunity, as distinct from the substantive immunity, protects a member of the Knesset from being indicted in criminal proceedings for offences that he did not commit in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset. This immunity is provided in section 4 of the Immunity Law and it applies to offences that were committed while a member of the Knesset holds office and also to offences that were committed before a member of the Knesset held office, unless the Knesset decides to lift the immunity. Lifting procedural immunity is done by means of the process set out in s. 13 of the law and subject to the conditions set out therein. The Immunity Law further provides specific provisions concerning the immunity of members of the Knesset from searches, eavesdropping and arrest (see ss. 2, 2A and 3 of the Immunity Law respectively).

8.    The purposes underlying the substantive immunity that is granted to members of the Knesset, which we listed above, no matter how important and significant they may be, do not reflect absolute values. On the contrary, substantive immunity as a legal institution directly conflicts with other basic principles that lie at the heart of our legal system, such as the principle of the rule of law according to which there is no person or corporation or authority in a democracy that is above the law (see HCJ 6163/92 Eisenberg v. Minister of Building and Housing [8], at p. 274 {82}). Indeed, every person is forbidden to break the law. It is even more forbidden for a public figure, a member of the legislature, who is supposed to serve as an example and a civic standard for upholding and protecting the law. A member of the Knesset who breaks the law undermines public confidence in the organs of government. An additional basic principle that conflicts with the institution of substantive immunity is the principle of equality. This principle implies, inter alia, the outlook that everyone is equal before the law and also the outlook that every act of legislation is intended to realize the principle of equality, and not to conflict with it (see HCJ 507/81 Abu-Hatzeira MK v. Attorney-General [9], at p. 585). Substantive immunity violates the principle of equality. According to it, a member of the Knesset has no criminal liability for prohibited acts for which an ordinary citizen, were he to commit them, would be held accountable.

How is it possible to reconcile the conflicts and the inconsistency between the basic principles of the legal system that are created by substantive immunity? Where should we place the boundaries of substantive immunity in order that we do not overstep the proper balance for realizing its purposes? This was discussed extensively by President Barak in Pinhasi v. Knesset [5], where he said:

‘The purpose of the immunity is to prevent a situation in which a member of the Knesset is prevented from carrying out permitted acts, because of the concern that they might marginally overstep the boundary of what is prohibited. Immunity “covers” this margin. In the balance between refraining from carrying out lawful acts that are a part of the functions of a member of the Knesset and committing unlawful acts that fall within the margin of risk of the lawful acts, the Immunity Law preferred the second alternative. Indeed, in order to preserve the independence and freedom of action of a member of the Knesset, as well as the proper functioning of the Knesset itself, the Knesset member is given substantive immunity. This immunity is given to him with regard to any unlawful act that can be regarded as an improper way of carrying out a lawful act which falls with the scope of his role as a member of the Knesset, provided that this unlawful act is sufficiently close, from a substantive viewpoint, to the role of being a member of the Knesset, so that it can be said that it is a part of it and it constitutes a part of the natural risk to which every member of the Knesset is exposed. This approach with regard to the proper balancing point ensures that substantive immunity acts as a shield against risks that are inherent and natural to the position of being a member of the Knesset, without it becoming a carte blanche for abusing the position’ (ibid. [5], at p. 686).

Thus we see that the ‘margin of natural risk’ test that was formulated by President Barak in Pinhasi v. Knesset [5], which was adopted as the decisive test for interpreting the expression ‘in the course of carrying out his duties or for the purpose of carrying out his duties’ in s. 1 of the Immunity Law (see Movement for Quality Government in Israel v. Knesset Committee [7]), tells us that the premise for substantive immunity is the rule of law (see S. Nevot, ‘The Immunity of a Member of Knesset for “Expressing an Opinion and an Act in Carrying out his Duties” — New Tests in the Case Law of the Supreme Court,’ 4 HaMishpat (1999) 61, at p. 93). Therefore, as a rule a member of the Knesset should carry out his duties within the framework of the law while taking care to uphold it. Notwithstanding, the Immunity Law gives a member of the Knesset a ‘safety net’ in those cases where he overstepped the mark in the course of carrying out his duties or for the purpose of carrying out his duties and entered the prohibited margin, provided that these fall within the scope of the natural risk of his activity as a member of Knesset. This ‘safety net’ is intended to protect the independence and freedom of action of a member of the Knesset so that he is not intimidated when voting, expressing an opinion and doing acts that are an integral part of his duties, because of a fear that he might have to stand trial for these actions. By contrast, substantive immunity is not intended to protect prohibited activity that is planned in advance, which a member of the Knesset commits by abusing his status (see Pinhasi v. Knesset [5], at p. 687). Likewise, as we shall explain below, prohibited activity of members of the Knesset that endangers democracy and seeks to undermine the foundations of the state as a Jewish and democratic state is excluded from the scope of substantive immunity. Such activity, whether it is carried out in the Knesset itself or outside the Knesset, should not be regarded, ab initio, as activity in the course of carrying out the duties of a member of Knesset or for the purpose of carrying out those duties. This approach derives from the recognition that Israeli democracy, as a defensive democracy, is entitled to lay down ‘red lines’ that a member of the Knesset may not cross and for which he will not have substantive immunity, if he crosses them.

Substantive immunity and the reciprocal relationship between it and other legislative arrangements

9.    In order to demarcate these ‘red lines,’ we should examine the institution of substantive immunity in its broad context. We should address the interaction and reciprocal relationship between substantive immunity and the provisions of s. 5 of the Political Parties Law, 5752-1992, and particularly the interaction and reciprocal relationship between substantive immunity and the provisions of s. 7A of the Basic Law: the Knesset. Indeed, holding office and acting as a member of Knesset are merely the ultimate goal of the democratic process in which the members of the Knesset are appointed to office. The beginning of this process is the registration of the party under the Political Parties Law. This registration is a necessary condition for the party competing in the elections to the Knesset (see s. 2 of the Political Parties Law). Already at this preliminary stage the legislator, in s. 5 of the Political Parties Law, establishes ‘red lines,’ which, if crossed, disqualify the party from being lawfully registered. Section 5 provides the following:

‘Restrictions upon registering a political party

5.  A political party shall not be registered if any of its purposes or acts, expressly or by implication, contains one of the following:

 

(1) Denying the existence of the State of Israel as a Jewish and democratic state;

 

     (2) Incitement to racism;

 

(2a) Support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel;

 

(3) A reasonable ground for concluding that the political party will serve as a cloak for unlawful acts.’

A similar barrier is placed before lists of candidates for the Knesset and before a candidate for the elections to the Knesset in s. 7A of the Basic Law: the Knesset, which provides:

‘Preventing the participation of a list of candidates

7A. A list of candidates shall not participate in elections to the Knesset nor shall a person be a candidate in elections to the Knesset if the purposes or acts of the list or the acts of the person, as applicable, expressly or by implication contain one of the following:

 

(1) Denying the existence of the State of Israel as a Jewish and democratic state;

 

     (2) Incitement to racism;

 

(3) Support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel.’

The correlation between the legislative arrangements in s. 5 of the Political Parties Law and those in s. 7A of the Basic Law: the Knesset is obvious: both of them concern the power of a political party and the power of its candidates to participate in elections; both of them violate similar freedoms and both of them are intended to protect similar values. For this reason, each of them delineates similar ‘red lines’ that a person cannot cross if he wishes to be able to serve as a member of the Knesset (see LCA 7504/95 Yassin v. Parties Registrar [10], at p. 68; LCA 2316/96 Isaacson v. Parties Registrar [11], at pp. 539-540).

10. The Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — Amendment no. 29), which was enacted after the events that are the subject of the indictment in our case, also enshrined these ‘red lines’ in the Immunity Law and added to it the provision of s. 1(a1), which provides:

‘Immunity in carrying out duties

1.  …

(a1) To remove doubt, an act, including a statement, which is not incidental, of a member of the Knesset that contains one of the following shall not be regarded, for the purpose of this law, as expressing an opinion or as an act that is carried out in the course of his duties or for the purpose of his duties as a member of the Knesset:

 

(1) Denying the existence of the State of Israel as the state of the Jewish people;

 

(2) Denying the democratic character of the state;

 

(3) Incitement to racism because of colour or belonging to a race or to a national-ethnic origin;

 

(4) Support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.

 

…’

Does the fact that the restrictions in s. 1(a1) were only added to the Immunity law in 2002 mean that before Amendment no. 29 those restrictions did not apply with regard to limiting the scope of substantive immunity? I do not think so. In my opinion, we are dealing with a ‘clarifying amendment’ that merely reflects the legal position prior to the amendment. It should be noted that the determination that we are dealing with a ‘clarifying amendment’ does not mean that the amendment should be applied retrospectively in a literal manner. All that this determination tells us is that we should regard the amendment as important in view of the fact that it clarifies the legal position that prevailed before it, notwithstanding the position that the state presented before us in this regard (for a legislative amendment as a ‘clarifying amendment,’ see LCA 3527/96 Axelbrod v. Property Tax Director, Hadera Region [12], at p. 406; A. Barak, Legal Interpretation (vol. 2, Statutory Interpretation, 1994), at pp. 51-54). The conclusion that we are faced with a ‘clarifying amendment’ is based on several reasons: first, s. 1(a1) begins with the words ‘to remove doubt’ and this beginning constitutes a clear linguistic indication that we are dealing with a legislative amendment that was intended to clarify the legal position that prevailed before it was enacted. Second — and this is the main point — the purpose underlying the substantive immunity and the balances required for determining its scope also support the approach that we are dealing with a ‘clarifying amendment’ and that the ‘red lines’ that are provided in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset continue to accompany the candidate even after he begins to hold office as a member of Knesset. When the candidate reaches this goal, the red lines delineate the borderline of substantive immunity that is granted to him by virtue of his office. As I have already said, the institution of substantive immunity is based on the recognition that the freedom of action and expression given to the political parties and to members of the Knesset are the foundation of a functioning democracy. Nonetheless, we are not speaking of a freedom of action and a freedom of expression that are without limit. The conflict between the institution of substantive immunity and other basic values of democracy, including the rule of law and the principle of equality before the law, requires proper balances to be struck to ensure that substantive immunity does not ‘cross the line’ and undermine these principles to a greater extent that should be allowed. This is the purpose of the ‘margin of natural risk’ test that this court adopted in delineating the significance and interpretation that should be given to the expression ‘in the course of carrying out his duties and for the purpose of carrying out his duties’ in s. 1 of the Immunity Law. The same approach should be adopted, and is perhaps even more appropriate, where elected representatives overstep ‘red lines’ that concern the very existence of the state and they undermine its Jewish and democratic foundations. Indeed, the Israeli democracy is a young democracy and the rights that it grants should not be allowed to be used in order to bring about its self-destruction. The Supreme Court addressed this in Yassin v. Parties Registrar [10], when it said: ‘Democracy does not need to allow its own destruction because of its tolerance’ (ibid. [10], at p. 62), and in EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [13], at p. 310 {161}, where it said: ‘Civil rights are not a platform for national destruction.’ Therefore, there is no basis for showing tolerance towards expressions or acts of an elected representative that involve a denial of the existence of the State of Israel as a Jewish and democratic state or support for an armed struggle of a hostile state or a terrorist organization that are acting to destroy it. These principles are so basic and so essential to the existence of Israeli democracy that they should be regarded as principles that flow through the arteries of our legal system, whether they are expressly enshrined in legislation or not. The same applies to incitement to racism (see s. 5(2) of the Political Parties Law; s. 7A(2) of the Basic Law: the Knesset, and s. 1(a1)(3) of the Immunity Law). This incitement undermines the foundations of democracy and therefore it is desirable that not only should a party or a candidate be prevented from competing in elections, but also that substantive immunity should not be given to a member of the Knesset, in so far as his actions are tainted by such incitement. It should already be pointed out at this stage that the ‘red lines’ that are delineated by amendment no. 29 concerning the restrictions on granting substantive immunity are broader in so far as they concern support for an armed struggle against the State of Israel. Whereas s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset both speak of a restriction that arises because of ‘support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel,’ the restriction in s. 1(a1) of the Immunity Law speaks of ‘support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.’ Thus we see that, for the purpose of substantive immunity, the legislature expressed its opinion in amendment no. 29 that support for acts of terrorism of any kind whatsoever is antidemocratic to such an extent that substantive immunity should not be given for it, not only when we are speaking of an armed struggle of a terrorist organization against the State of Israel, but even when we are speaking of acts of terrorism directed against Jews or Arabs as such.

11. Support for the position that amendment no. 29 is merely a ‘clarifying amendment,’ which reflects continuity in realizing the purposes underlying s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset, can be found in the remarks uttered by President Shamgar in Miari v. Knesset Speaker [4] with regard to s. 1 of the Immunity Law before the amendment, even though in that case no decision was necessary on this issue. He said the following:

‘This argument in essence is therefore that the legislature did not merely intend to prohibit a certain type of activity before the elections, but the aforesaid s. 7A was intended to provide a selection process ab initio that would determine the appearance of the Knesset and its elected representatives after the elections, and this gives rise to the connection between what is stated in s. 7A and how the elected representative carries out his duties’ (ibid. [4], at p. 211; see also Pinhasi v. Knesset [5], at p. 690).

The approach that there is a link between the ‘red lines’ provided in s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and s. 1 of the Immunity Law, which jointly express the goal of realizing the constitutional norms underlying those sections, is mentioned also in the work of Dr S. Nevot, who says:

‘It would appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the other hand, were intended to prevent this phenomenon. Preventing the registration of a political party and preventing its participation in elections is a preliminary stage, which is intended to select the organizations and the persons that will be allowed to take part in the institution of the legislature. After the “selection,” the institution of immunity will protect the freedom of expression of those who are chosen. The premise in this protection is that the elected representatives are only those people whose expressions and activity have been defined as legitimate. The Immunity Law is intended to complete, in this sense, the “selection” process that the legislature began in sections 5 and 7A. It is precisely the main purpose of parliamentary immunity — the one that regards the immunity as a means of protecting the legislature itself rather than the individual member of the Knesset — that requires an examination of all the arrangements that apply to the substance and character of the legislature’ (see Nevot, The Subjective (Professional) Immunity of Knesset Members, supra, at p. 233).

Thus we see that expressing an opinion or doing an act that involves a denial of the existence of the State of Israel as a Jewish and democratic state, support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel, incitement to racism or support for acts of terror against the Arab minority in Israel all are ‘beyond the pale’ in so far as carrying out the duties of a member of Knesset is concerned. With regard to expressing opinions or doing acts of this kind, we are therefore not required to examine the ‘margin of natural risk’ that was determined in Pinhasi v. Knesset [5], because we are concerned with expressions and acts that by their very type and nature cannot be considered as acts of a member of the Knesset ‘in the course of carrying out his duties or for the purpose of carrying out his duties.’

From general principles to the specific case

12. The main dispute between the parties in the case before us concerns the application of substantive immunity to the petitioner’s statements in the Um Al-Fahem speech and in the Syrian speech. According to the petitioner, the criminal proceeding that was begun against him because of these statements should be stopped because they are protected by substantive immunity under s. 1 of the Immunity Law, and therefore he has no criminal liability for them. The respondents, on the other hand, are of the opinion that we are dealing with statements that cannot be regarded as an expression of an opinion by the petitioner in the course of carrying out his duties or for the purpose of carrying out his duties as a member of Knesset.

Since we have determined that support for an armed struggle or for acts of terror against the State of Israel crosses a ‘red line’ that demarcates the limit of tolerance that Israeli democracy is prepared to show to public representatives, we should go on to examine whether the statements that lie at the heart of the indictment that was filed against the petitioner prima facie constitute support of this kind and therefore should not be subject to substantive immunity. For this purpose, we should adopt the premise that the facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674), since the judicial scrutiny that is exercised by the High Court of Justice cannot and should not enter into the question whether the elements of the offence under discussion will be proved. This task is the prerogative of the trial court before which the criminal proceeding is being conducted, and that court usually also makes the decision on the question of substantive immunity. In the present case, as we have explained above, we are considering the question of substantive immunity in consequence of the procedural agreement reached by the parties, even though the criminal proceeding has already begun. Based on the aforementioned premise, it can be said that the Um Al-Fahem speech and the Syrian speech contain a song of praise and approval for the Hezbollah organization. Since we know that this organization has been declared a terrorist organization under s. 8 of the Prevention of Terrorism Ordinance (see Yalkut Pirsumim 5749, at p. 3474), and since we also know that the Prevention of Terrorism Ordinance defines a terrorist organization as ‘an association of persons who use in its operations acts of violence that are likely to cause the death or injury of a person, or threats of such acts of violence,’ it will be difficult not to regard the statements of the petitioner as support for an armed struggle of a terrorist organization. In the arguments that the petitioner made before us, he tried to distinguish between support that he expressed for the Hezbollah organization and support for acts of violence and terrorism that, according to him, he rejects utterly, by saying inter alia that the armed struggle that the Hezbollah organization is conducting is in his opinion a legitimate struggle of guerilla fighters against an occupying army. These distinctions that the petitioner is seeking to outline with regard to his expressions, by regarding them in their overall context, are a matter for the trial court to decide within the framework of the criminal proceeding being conducted before it. From a theoretical viewpoint, I do not rule out entirely the possibility that a thin line can be drawn between support for a terrorist organization and support for an armed struggle of a terrorist organization. But in so far as the question of the petitioner’s substantive immunity is concerned, it seems to me that it is difficult not to regard the remarks of the praise and approval that he heaped on the activity of the Hezbollah organization, while referring to ‘losses that [the Jewish people] suffered from the Hezbollah’ and ‘the steadfastness and persistence and heroism of the leadership and fighters of the Lebanese “resistance”,’ as support for the armed struggle that this terrorist organization is conducting against Israel. These statements cross the ‘red line’ to which I referred and I do not think that there is any basis for giving the petitioner substantive immunity for them.

13. Notwithstanding what we have said, it is important to remember and emphasize that there is a great distance between the finding that a certain statement does not enjoy the protection of substantive immunity and a criminal conviction for that statement. This route passes three important stations at which legal and public discretion should be exercised wisely and responsibly in order to determine whether there is a basis for bringing the elected representative to trial for those statements before he is convicted in a criminal trial for them. The first station is the attorney-general, who has discretion to decide whether certain statements, even though they do not enjoy substantive immunity, justify a criminal indictment (see HCJ 6271/96 Be’eri v. Attorney-General [14]; HCJ 588/94 Schlanger v. Attorney-General [15]; see also HCJ 935/89 Ganor v. Attorney-General [16], at pp. 507-511). It should be noted that the discretion exercised by the attorney-general is not limited merely to the initial decision as to whether or not to file an indictment. There may be cases in which the attorney-general will see fit to stay criminal proceedings that have already been begun, although naturally this will happen only in exceptional and unusual circumstances that justify such a step (see HCJ 4723/96 Atiya v. Attorney-General [17], at pp. 723-725; R. Gavison, Administrative Discretion in Law Enforcement: the Power to Stay and Restart Criminal Proceedings (1991), at p. 366). The second station on the route leading to indicting an elected representative for a statement or act that is not subject to substantive immunity is the deliberations of the Knesset Committee and the decision in the plenum of the Knesset to lift procedural immunity, in which the Knesset Committee examines whether the decision of the attorney-general to file an indictment against a member of the Knesset was made lawfully or whether it was perhaps tainted by improper reasons arising from political pressure (see Movement for Quality Government in Israel v. Knesset Committee [7], at paras. 41-43). The last station on the route that we have outlined is the criminal trial itself, in which the court examines whether the elements of the offence attributed to the elected representative who is the accused have been proved and whether he should be convicted of that offence. In so far as this last station is concerned, and in so far as we are dealing with offences concerning the freedom of expression, care should be taken not to give too broad an interpretation to the scope of these offences, so that they do not excessively violate the political freedoms given to the elected representative and do not undermine his most essential ‘tools’ — speeches, articles and interviews (for difficulties raised by the broad formulation of these offences, see M. Kremnitzer, ‘The Alba case: “Clarifying the Law of Incitement to Racism”,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 105 (1999), at p. 142, and see also CrimFH 8613/96 Jabarin v. State of Israel [18]).

The ramifications of the judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] on the petition before us

14. The last question that should be considered in this petition is the significance of the decision made by this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] with regard to the provisions of s. 7A of the Basic Law: the Knesset, according to which the petitioner should not be prevented from standing as a candidate for the sixteenth Knesset. It will be remembered that in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the indictment that is the subject of this petition was before the court, since the events to which the indictment refer occurred at the time that the petitioner was a member of the fifteenth Knesset and the indictment was filed in November 2001 after the petitioner’s procedural immunity was lifted. The judgment in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], which relates to the lists and candidates for the sixteenth Knesset, was therefore given while the indictment was pending (the judgment was given on 9 January 2003, and the reasons were given separately on 15 May 2003), and it includes a lengthy discussion of the statements of the petitioner that are the subject of the indictment. The reason why the court did not see fit to prevent the petitioner from standing as a candidate in the elections for the sixteenth Knesset under s. 7A of the Basic Law: the Knesset, was that there was no convincing, clear and unambiguous evidence of the kind required in a case such as this. As the court said:

‘Indeed, as we have seen… an essential condition — according to the interpretation of section 7A of the Basic Law: the Knesset in a host of cases — is that the evidence required in order to determine that the acts of Member of Knesset Bishara involve a denial of the existence of the State of Israel as a Jewish state and support for an armed struggle of terrorist organizations against it should be convincing, clear and unambiguous in their weight and strength. Only this strict standard of evidence can resolve the democratic paradox and deny one of the central rights of democracy, the right to vote and to stand for office. In placing this criterion before us, we are of the opinion that we have not been shown evidence of the weight and strength required to satisfy the required test… We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel (ibid. [2], at pp. 42-43).

Does this determination tell us that, for the purpose of granting substantive immunity to the petitioner, the limitation concerning support for an armed struggle of a terrorist organization also is not satisfied by the events that are the subject of the indictment? Section 7A(a)(3) of the Basic Law: the Knesset provides that a person shall not be a candidate in elections to the Knesset if his acts, expressly or by implication, contain ‘support for an armed struggle of a hostile state or of a terrorist organization against the State of Israel.’ We discussed above the correlation and the close connection between the arrangement in s. 7A of the Basic Law: the Knesset and the arrangement in s. 1 of the Immunity Law, from the viewpoint of the values that these arrangements are intended to protect and from the viewpoint of the purpose that these restrictions are intended to achieve. Prima facie, it would therefore appear that once it has been determined for the purpose of s. 7A(a)(3) of the Basic Law: the Knesset that there is no basis for preventing the candidacy of the petitioner in the elections because of the statements at the heart of the indictment, it automatically follows that he also has substantive immunity under s. 1 of the Immunity Law for those statements. That is what the petitioner argued before us, while emphasizing that a different result that relies on these facts can lead to disharmony in the law. The petitioner also argued that there is no justification for restricting his actions as a representative of those members of the public who elected the National Democratic Assembly party to the Knesset, after he already satisfied the very same tests when he overcame the barrier that s. 7A of the Basic Law: the Knesset placed in his path.

15. A similar question with regard to the reciprocal relationship between the provisions of s. 5 of the Political Parties Law and the provisions of s. 7A of the Basic Law: the Knesset, arose in the past in Yassin v. Parties Registrar [10]. In that case, President Barak discussed the great similarity between the two provisions, but also emphasized the difference between them, when he said:

‘The considerations that lie at the heart of preventing the commencement of the starting phase (the registration) are not identical to the considerations that lie at the heart of preventing the completion of the final phase (the elections). The violation of values that democracy seeks to protect is far greater in the first stage than in the second stage… Within the scope of s. 7A of the Basic Law: the Knesset, it has been held that only in extreme and special cases can a list be prevented from participating in the elections; that the disqualification is the last resort; that s. 7A of the Basic Law: the Knesset should be given a strict, narrow and restrictive interpretation. This interpretive approach is desirable. It allows a very narrow scope for preventing the participation of a list in the elections. The additional power to disqualify a list that is found in s. 5 of the Political Parties Law should therefore have a very narrow field of operation. If the power to disqualify a list under s. 7A of the Basic Law: the Knesset is narrow, then the power to disqualify a list under s. 5 of the Political Parties Law is very narrow indeed, and the difference between them is narrower still’ (ibid. [10], at pp. 69-70).

According to this tiered approach towards the tests that should be applied with regard to the disqualification of a political party or a candidate from participating in the democratic process, President Barak was of the opinion that it is indeed possible that it will be decided to allow the registration of a party under the tests set out in s. 5 of the Political Parties Law, but that the same party will not be allowed to compete in the elections under s. 7A of the Basic Law: the Knesset. In his words: ‘It is possible to conceive of a party whose registration will not be disqualified, but whose participation in the elections will not be allowed’ (see Yassin v. Parties Registrar [10], at p. 68, and for a similar approach, which distinguishes between the right of a party to participate in the elections and recognizing its power to realize certain aspects of its manifesto, see HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [19], at p. 800).

Whether or not we accept this tiered approach in so far as it concerns the correlation between s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset (for a dissenting opinion, see Isaacson v. Parties Registrar [11], at pp. 539-540, and see and cf. EA 2600/99 Erlich v. Chairman of Central Elections Committee [20], at p. 47), it would appear at any rate that we should recognize the manifest difference between these provisions and the restrictions that apply to the scope of the substantive immunity provided in s. 1 of the Immunity Law. As I have said, the restrictions concerning substantive immunity originate in the arrangements in s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset, since all of these legislative arrangements have a common purpose and similar basic values that they are seeking to protect. Notwithstanding, there is a significant difference between the arrangement concerning substantive immunity and the two other arrangements. Not allowing the registration of a political party and preventing a party or any of its candidates from participating in elections irreversibly violate the basic rights of the individual. A refusal to register a political party under s. 5 of the Political Parties Law violates the freedom of political association, which expresses the right given to the individual in a democracy to decide and influence his fate in the country in which he lives. Placing a barrier before a party or its candidates that prevents them from competing in elections deals a mortal blow to the right to vote and to stand for office, which is also one of the basic rights in a democracy (see Y. Mersel, The Constitutional Status of Political Parties (2005), at pp. 49-54). These two arrangements therefore violate the freedom of political expression that is realized by the possibility given to the individual in a democracy to form an association in order to further his political views and the possibility of trying to persuade others to vote for him as a representative in parliament in order to act to realize the opinions and ideas in which he believes. The importance of political parties and the importance of the right to vote in this context were discussed by Prof. Y. Galnor when he said that ‘there is no democracy without parties and there is no true democracy when the citizen is not given a possibility of choosing between two or more parties, as well as additional opportunities for political participation’ (Y. Galnor, ‘The Political Parties Law — Its Contribution to the Political System,’ A Legal Framework for the Activity of Political Parties In Israel (The Israeli Association for Parliamentary Problems, the Knesset, 1988), at pp. 29, 30; Mersel, The Constitutional Status of Political Parties, supra, at pp. 45-48). Thus we see that a refusal to register a political party inflicts a multi-faceted violation of a spectrum of the rights that reflect political association. Less serious a violation is caused by preventing a list of a party’s candidates or one of its candidates from participating in elections, but even on this level we are concerned with a mortal blow to the political freedoms of the individual. At the lowest level of this scale, and at a considerable distance from the barriers that were established in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset, we can place the denial of substantive immunity. We are concerned with a candidate who has already been elected to the Knesset and is holding office in it as one of its members. Within the framework of this position, he has the possibility of addressing the Knesset, of tabling questions, putting forward matters for the agenda and draft laws, being a member of the Knesset committees and voting on laws. Thus the Knesset member realizes de facto his political freedoms and those of the persons who voted for him. Moreover, not granting substantive immunity is a decision that by its very nature is limited to the circumstances of a specific case that gives rise to a question of immunity, and it does not result in a sweeping denial of the rights of the Knesset member and the ways in which he may act and express himself that come with his position. An additional material difference between the arrangements in s. 5 of the Political Parties Law and s. 7A of the Basic Law: the Knesset derives from the fact that the violation to the freedom of expression because substantive immunity is not given to a member of the Knesset is a violation after the event for remarks that have already been made. The smaller degree of violation caused by imposing sanctions after the event in matters concerning the freedom of expression was discussed by Justice A. Barak in HCJ 399/85 Kahane v. Broadcasting Authority Management Board [21], where he emphasized that in such matters a criminal indictment after the event is preferable to prevention before it, except in cases where the illegality is ‘clear and manifest.’ As he said:

‘A prohibition ab initio prevents the actual publication and causes harm to the freedom of expression, damage that sometimes cannot be repaired in the future. By contrast, holding a criminal proceeding cannot “stop” the expression, and it allows the holding of a fair trial that will ultimately determine the liability for the publication, and thereby “slow down” the desire to make a new publication’ (ibid. [21], at p. 297; for the same approach in civil cases, see also CA 214/89 Avneri v. Shapira [22], at pp. 864-870).

With regard to the scale that we are discussing, it can be said that the restrictions in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset ab initio prevent the freedom of political expression of the individual, whereas the restrictions that limit the scope of substantive immunity apply entirely after the event, i.e., in the stage after the member of the Knesset has realized his freedom of expression and the question under consideration is whether there is a basis for allowing him to be brought to trial for it. The scale of violations in each of the arrangements that we have described — s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and finally s. 1 of the Immunity Law — justifies a difference in applying the ‘red lines’ that are common to all of these arrangements. This leads to the conclusion that there can indeed be cases in which it will be decided not to prevent a party or a specific candidate from standing for election to the Knesset under s. 7A of the Basic Law: the Knesset, but the same facts may lead to the conclusion that for the purpose of substantive immunity a ‘red line’ has been crossed in such a way that there is a justification for exposing the member of the Knesset to a criminal proceeding for the opinions that he expressed or the acts that he committed.

16. Such is the case before us. In Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the court addressed the strength of the violation of the political freedoms of the individual where a party or a candidate is prevented from competing in the elections to the Knesset. In emphasizing the major effect of this violation and the strict and restrictive approach that should be adopted when erecting a barrier to competing in the election under s. 7A of the Basic Law: the Knesset, the court determined a series of interpretive criteria and tests that reflect this restrictive approach, which are as follows:

‘First, considering the purposes of a list of candidates means considering “dominant characteristics that are placed in a central position among the aspirations or the activities of the list” (EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 187).

“The power granted in s. 7A is not designed for matters that are marginal and whose effect on ideology or policies as a whole is not significant and serious. This means phenomena… that can be described as dominant characteristics that are placed in a central position among the aspirations or activities of the list” (ibid. [23]).

We are therefore concerned with purposes that are a “dominant” goal (in the language of Justice M. Cheshin in the hearing before the Elections Committee for the Sixteenth Knesset, minutes of the meeting of the Elections Committee of 31 December 2002, at p. 612); second, the dominant and central purposes of the list — and to the same extent, the acts of a candidate for the elections within the framework of a list of candidates — are derived both from express declarations that are directly stated and also from reasonable conclusions that are clearly implied (Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 188); third, purposes that are of a theoretical nature are insufficient. It must be shown that the list of candidates “is acting in order to realize its purposes and to convert them from theory into practice” (ibid. [23], at p. 196; see also EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset [24], at p. 284). There must be “activity in the field” that is intended to put the theory of the list’s purposes into practice. This activity needs to be repeated. Sporadic activity is insufficient. The activity needs to adopt a serious and extreme form of expression from the viewpoint of its intensity (see Yassin v. Parties Registrar [10], at p. 66)… Finally, the evidence proving the purposes and the acts that result in a list of candidates or a candidate not being allowed to participate in the elections to the Knesset needs to be “convincing, clear and unambiguous” (Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [23], at p. 196; Neiman v. Chairman of Elections Committee for Eleventh Knesset [13], at p. 250 {101})’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at p. 18).

In view of these general requirements, the court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] turned to examine whether there were grounds for disqualifying the candidacy of the petitioner from participating in the elections to the Sixteenth Knesset. This examination also included, as aforesaid, a consideration of the statements that were the basis for the indictment and that are the focus of the petition before us. Ultimately, as we have already said, the court held in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] that the evidence presented before it left room for doubt as to whether that evidence really was capable of indicating in a convincing, clear and unambiguous manner that the petitioner did indeed support an armed struggle against the State of Israel. The court further held that the doubt in this regard should operate in the petitioner’s favour. For this reason, and for other reasons concerning the other restrictions in s. 7A of the Basic Law: the Knesset, the court came to the conclusion that the petitioner should not be prevented from competing in the elections for the Sixteenth Knesset (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at pp. 40-43).

17. The premise for considering the scope of substantive immunity pursuant to s. 1 of the Immunity Law is completely different from the criteria that the court adopts when it considers whether to disqualify a candidate for the elections under s. 7A of the Basic Law: the Knesset. First, the question concerning giving substantive immunity naturally arises with regard to a specific case and there is no need to show that we are speaking of dominant characteristics that are placed in a central position among the activities or the statements of the member of the Knesset in general. Notwithstanding, it is not superfluous to point out that in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] the court held that the actions and expressions attributed to the petitioner, and especially his statements as a member of the Fifteenth Knesset in the two incidents that are the subject of the indictment, are characterized inter alia by support for an armed struggle against the State of Israel, and it also held that this purpose is placed in the centre of the petitioner’s actions, as a dominant purpose that is put into practice in recurrent activity and with great intensity. Second, for the purpose of preventing participation in the elections under s. 7A of the Basic Law: the Knesset, ‘convincing, clear and unambiguous evidence’ must be presented with regard to the purposes and acts of the candidate or the list. By contrast, the premise for the purpose of determining the scope of substantive immunity is, as aforesaid, that the facts of the indictment will indeed be proved (see Pinhasi v. Knesset [5], at p. 674). On the basis of this premise, the court should examine whether there are grounds for granting the member of the Knesset substantive immunity, or whether perhaps we are dealing prima facie with the crossing of the ‘red lines’ that underlie the legal system, for which substantive immunity should not be given.

18. I admit and do not deny that the conclusion that a member of the Knesset should not be given substantive immunity for a political speech, which is normally the natural work tool at his disposal when carrying out his duties, is not at all a simple one. But in my opinion there is no alternative in view of the fact that we are dealing with the expression of an opinion, on two occasions, that was formulated and considered in advance, and that falls in the centre of the prohibited area — support for an armed struggle of a terror organization — and a very long way beyond the ‘red line’ established by Israeli democracy to protect its very existence. Indeed, terror and democracy can be compared to fire and water; they cannot exist side by side. The fire of terror has no place in a democracy. As President Barak said in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]:

‘Democracy is based on dialogue, not on force; on persuasion, not on violence. Someone who is not prepared to abide by the “rules” of democracy himself cannot be allowed to make the argument that others should follow these rules in dealing with him’ (ibid. [2], at p. 24).

President Barak further said that:

‘Democracy is allowed… to defend itself against anyone fighting it in an armed struggle. It is one thing to aspire to change social arrangements by means of the legitimate tools that democracy makes available to a list of candidates; it is another thing to aspire to change arrangements by means of support for an armed struggle against the state’ (ibid. [2], at pp. 26-27).

19. The other reasons raised by the petitioner in the alternative, which concern the proceeding of lifting his procedural immunity, do not reveal any real ground for our intervention, and a study of the minutes of the deliberations that were held by the Knesset Committee and by the plenum show that, contrary to the arguments raised by the petition, comprehensive, objective and exhaustive deliberations were held, and no defect can be found in these.

Conclusion

20. For all of the reasons set out above, I propose to my colleagues that we deny the petition without any order for costs.

 

 

President A. Barak

I regret that I am unable to agree with the opinion of my colleague Justice E. Hayut. If my opinion is accepted, we will decide that the petitioner has substantive immunity against the indictment that was filed against him in the Nazareth Magistrates Court. My colleague laid down ‘red lines’ beyond which the laws of immunity do not apply. According to her approach, the petitioner’s case crosses these lines, and therefore the question of substantive immunity does not arise at all in his case. My opinion is different. In my opinion, the petitioner does not cross these lines and also succeeds in falling within the scope of substantive immunity. I will discuss each of these two aspects separately.

Amendment 29 of the Immunity Law

1.    I am in agreement with my colleague to a large extent. I accept three of her main findings in her opinion. First, I accept that the Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — ‘Amendment no. 29), which provides, inter alia, that a statement of a member of the Knesset that contains support for an armed struggle of a terror organization should not be regarded as an expression of an opinion that is made by a member of the Knesset in the course of carrying out his duties or for the purpose of carrying out his duties, is a ‘clarifying amendment,’ i.e., that it is declarative. It reflects the legal position that also prevailed before the amendment. This amendment enshrines in the Immunity, Rights and Duties of Knesset Members Law (hereafter — ‘the Immunity Law’) similar restrictions to the restrictions imposed upon the registration of political parties (s. 5 of the Political Parties Law, 5752-1992) and the participation of candidates and lists in elections to the Knesset (s. 7A of the Basic Law: the Knesset). These restrictions determine the ‘red lines,’ in the language of my colleague, which a member of the Knesset should not cross. A member of the Knesset who crosses these lines should not be regarded to have acted in the course of carrying out his duties or for the purpose of carrying out his duties. Second, I accept my colleague’s position, which I also expressed in Pinhasi v. Knesset [5], that for the purpose of analyzing a claim of immunity we start with the premise that the facts of the indictment will be duly proved (see Pinhasi v. Knesset [5], at p. 674). Third, I accept the position of my colleague that there is a difference between the burden of proof required for disqualification of a list from competing in the elections and the burden of proof required in order to hold that a certain expression does not fall within the scope of substantive immunity. This distinction derives from the fact that preventing someone ab initio from competing in the elections involves a much more severe violation of political freedoms than the violation caused to these freedoms as a result of depriving a member of the Knesset of substantive immunity. But accepting these three premises does not lead to my colleague’s conclusion.

2.    The petitioner before us is charged with an offence of support for a terrorist organization (in the form of uttering statements of praise and approval). Amendment no. 29 provides that support for an armed struggle of a terrorist organization is what falls outside the limits of substantive immunity. The two are not entirely identical. Amendment no. 29 does not provide that all support or every utterance of statements of praise and approval for a terrorist organization falls outside the scope of substantive immunity. Therefore, even though I accept that Amendment no. 29 is a clarifying amendment, and even if I assume, as we should assume at this stage, that the indictment against the petitioner will be proved, this is still insufficient for deciding the question whether or not the petitioner has substantive immunity against this indictment. In order to decide this question, we must ascertain whether the petitioner’s statements amount to support for an armed struggle of a terrorist organization. Prima facie, the proper stage for ascertaining this is the stage of the preliminary arguments within the framework of the criminal proceeding before the trial court. Within the framework of this proceeding, the parties may raise arguments and present evidence on the question whether the statements of the petitioner amount to support for an armed struggle of a terrorist argument or not, and the court can give its determination on the question of substantive immunity on the basis of the arguments and evidence so presented. My opinion therefore is that this question should be determined at the stage of the preliminary arguments in the Nazareth Magistrates Court. But since the Nazareth Magistrates Court decided not to determine this question, and since the parties before us agreed that we should consider and decide the question on its merits, we will therefore consider it and decide it on the basis of the arguments and the evidence brought before us.

3.    Is it possible to regard the statements of the petitioner as containing support for an armed struggle of a terrorist organization? If the answer to this question is yes, our deliberations will end with the conclusion that the remarks of the petitioner fall within the scope of the prohibition provided in Amendment no. 29, and therefore the petitioner does not have substantive immunity. If the answer to this question is no, our conclusion will be that Amendment no. 29 does not apply to the case before us, and we shall be required to examine whether the statements of the petitioner are protected by substantive immunity in accordance with the tests that we usually apply in this regard. Do the remarks of the petitioner amount to support for an armed struggle of a terrorist organization? This is not the first time that this question has arisen before us. This question was considered in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. That case considered, inter alia, the decision of the Central Elections Committee for the Sixteenth Knesset to prevent the petitioner and the list led by him from participating in the elections. That decision was based on two grounds. First, the Elections Committee was of the opinion that the petitioner satisfied the ground provided in s. 7A(a)(1) of the Basic Law: the Knesset, which concerns the disqualification of the candidacy of a person in the elections, if his acts involve a denial of the existence of the State of Israel as a Jewish state. Second, and this is the main issue in our case, it decided that the petitioner satisfied the ground provided in s. 7A(a)(3) of the Basic Law, which concerns the disqualification of the candidacy of a person in the elections, if his acts involve support for an armed struggle of a terrorist organization against the State of Israel. The main evidence on which the conclusion of the Elections Committee was based with regard to the second ground was the statements of the petitioner in the Um Al-Fahem speech and the Syrian speech, which are the statements that lie at the heart of the indictment that is the focus of this petition.

4.    These decisions of the Elections Committee were submitted for our approval pursuant to s. 7(a) of the Basic Law. We decided, by a majority, that the decision of the Elections Committee should not be approved. We held that we were not persuaded, to the degree of certainty required in cases of election disqualification, that the statements of the petitioner amounted to support for an armed struggle of a terrorist organization. I discussed in that case the distinction between general support and support for an armed struggle of a terrorist organization:

‘Does Knesset Member Bishara support an armed struggle of a hostile state or of a terrorist organization against the State of Israel? It should be noted that the question before us is not whether Knesset Member Bishara supports a terrorist organization. This question is the focus of the criminal proceeding that is being conducted against him, and we will express no opinion on this matter. The question before us is whether Knesset Member Bishara supports an armed struggle of a terrorist organization. As we have seen, the argument of Knesset Member Bishara is that his liberal-democratic outlook implies opposition to violence and an armed struggle. According to his approach, it is possible to oppose what he calls “occupation” without adopting an armed struggle. Therefore he opposes any harm to civilians’ (Central Elections Committee for the Sixteenth Knesset v. Tibi [2], at p. 42).

It should be noted that the chairman of the Elections Committee for the Sixteenth Knesset, Justice M. Cheshin, correctly distinguished between the two, and held that support for a terrorist organization does not amount to support for an armed struggle of a terrorist organization. His position was that the remarks of the petitioner did not amount to support for an armed struggle of a terrorist organization. The following is how we presented the position of Justice M. Cheshin in Central Elections Committee for the Sixteenth Knesset v. Tibi:

‘Justice M. Cheshin also explained that support for a terrorist organization does not constitute a ground for disqualification, and that it is necessary to prove support for an armed struggle of a terrorist organization against Israel (at p. 602 of the minutes). Support should naturally be a daily phenomenon for a specific terrorist organization (at p. 603 of the minutes). Justice M. Cheshin presented his position according to which, in order to disqualify a person or a list of candidates from participating in the elections, it must be shown that the ground for disqualification is ‘a dominant phenomenon… absolute denial of the state, absolute racism, absolute support for a terror organization as if I were a member of Hamas… or Hezbollah (at p. 661 of the minutes). Finally, Justice M. Cheshin presented his position that, after a study of all of the material, it did not appear that absolute support for an armed struggle… was proven in this matter (ibid.). Justice M. Cheshin pointed out that “I think that Israeli democracy is a strong democracy… we can also tolerate exceptions, even if they are extreme” (at p. 661 of the minutes). Against this background, Justice M. Cheshin reached the conclusion that there was no basis for preventing the participation of Knesset Member Bishara in the elections to the Knesset’ (ibid. [2], at p. 39).

This was also our conclusion in Central Elections Committee for the Sixteenth Knesset v. Tibi:

‘We are of the opinion that we have not been shown evidence of the weight and strength required to satisfy the required test… We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel’ (ibid. [2], at p. 43).

5.    The distinction between general support for a terrorist organization, by way of uttering statements of praise, and support for an armed struggle of a terrorist organization is not merely a semantic distinction. It is implied by the express language of the law. It is also implied by its purpose. This distinction reflects the attempt of the legislature to balance the desire to protect the foundations of the state against the desire to protect basic political freedoms such as the right to vote and to stand for office (in so far as s. 7A of the Basic Law is concerned) and the freedom of parliamentary expression (in so far as Amendment no. 29 is concerned). Admittedly, I accept that there is a difference between the burden of proof required for the purpose of disqualifying a list from participating in the elections and the burden of proof required for determining that a certain expression is not protected by substantive immunity. This difference derives from the fact that preventing someone from standing for office in the elections is a more serious and prospective violation of political freedoms than the violation of those freedoms that is brought about as a result of a determination that a certain expression is not protected by substantive immunity, which is a more limited violation in its scope and is applied retrospectively. Notwithstanding, the extent of this difference should not be exaggerated. The distance between convincing, clear and unambiguous evidence (which is required for the red line of which my colleague speaks) and the evidence required in order to deny substantive immunity (within the framework of a criminal proceeding) is not great at all.

6.    My opinion is that the respondents have not proved before us, within the framework of considering the issue of substantive immunity as a preliminary argument in the criminal trial — just as they did not prove in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] — that the remarks of the petitioner contain support for an armed struggle of a terrorist organization (as distinct from support for a terror organization by way of uttering statements of praise and approval). Admittedly, had the hearing of this question taken place before the trial court, the respondents could have presented additional evidence that supports their position. The petitioner could also have added to the evidence and arguments that were heard by the Central Elections Committee and by this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. But this was not done. The evidence before us is merely certain extracts from the speeches made by the petitioner. This evidence was fully presented before us in Central Elections Committee for the Sixteenth Knesset v. Tibi [2], and nothing has been added to it. There is also nothing new in the arguments of the parties. In the case before us I have not been persuaded that the statements of the petitioner can be regarded as containing support for an armed struggle of a terror organization, to the degree of proof required for determining that they cross those ‘red lines’ beyond which there is no substantive immunity. In Central Elections Committee for the Sixteenth Knesset v. Tibi [2] we held:

‘We have not been persuaded that there is before us convincing, clear and unambiguous evidence that Member of Knesset Bishara supports an armed struggle against the State of Israel. In this matter also, we should not ignore the extensive material that was submitted to us. Notwithstanding, it is insufficient to satisfy the critical “mass” of evidence that is required in this regard. Indeed, we do not deny that we have some doubt in our minds. But this doubt should work — in a democracy that seeks freedom and liberty — in favour of the freedom to vote and stand for office’ (ibid. [2], at p. 43).

In the petition before us — which is being considered within the framework of the criminal proceeding — I have also not been persuaded that the petitioner supports an armed struggle against Israel. The petitioner was not examined on this matter in the trial court. No evidence was brought in this regard beyond what was before this court in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]. In these circumstances — notwithstanding the difference in the level of proof — I am of the opinion that there are grounds for reaching a similar conclusion.

7.    Thus we see that even though I accept my colleague’s position that Amendment no. 29 of the Immunity Law is a declarative amendment, and even if we assume, as we should in a petition of the kind before us, that the indictment against the petitioner will be proved, this will not be sufficient to lead to the conclusion that the remarks of the petitioner amount to support for an armed struggle of a terrorist organization. Therefore, this will be insufficient for reaching the conclusion that Amendment no. 29 applies in our case. Admittedly, this will lead us to the conclusion that the petitioner committed an offence of uttering statements of praise and approval for a terrorist organization. But this offence does not fall within the express limitations that are imposed on substantive immunity in Amendment no. 29. We are dealing in this context with an ‘ordinary’ offence that is subject to the tests developed in the case law of this court concerning the scope of substantive immunity. I will now turn to examine these tests.

Section 1(a) of the Immunity Law

8.    Does the petitioner have substantive immunity with regard to his statements? Were the petitioner’s statements that are before us made ‘in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset’? The expression ‘in the course of carrying out his duties or for the purpose of carrying out his duties as a member of the Knesset’ in s. 1(a) of the Immunity Law should be given the meaning that realizes its purpose. My colleague discussed extensively the normative framework of substantive immunity and the purposes underlying it. I agree with those remarks. As my colleague says, substantive immunity is intended, first and foremost, ‘to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear’ (para. 6 of my colleague’s opinion). This immunity was not given to members of the Knesset for their own benefit. It is not a sovereign privilege that the member of the Knesset enjoys by virtue of his exalted position. Substantive immunity is given to members of the Knesset in order to guarantee essential public interests. First, this immunity is essential in order to guarantee the right of all citizens to full and effective political representation. Substantive immunity protects the right of all citizens to have their opinions and outlooks heard, through their elected representatives, in the various frameworks of public debate in general, and in parliament in particular. This protection is essential mainly for citizens who are members of minority groups in society. In this sense, substantive immunity also furthers civil equality, in that it protects even the right of members of minority groups in society to full and effective political representation, and it protects them by protecting the member of the Knesset, who represents their interests and their opinions, against the power of the majority. Second, substantive immunity is essential in order to guarantee a free marketplace of ideas and opinions. Here too this immunity is especially important when we are speaking of opinions and ideas that are offensive or outrageous, and it is especially required for elected representatives who express opinions that are regarded by most of the public as such. Indeed, ‘freedom of expression is also the freedom to express dangerous, offensive and perverse opinions, from which the public recoils and which the public hates’ (Kahane v. Broadcasting Authority Management Board [21], at p. 279). Third, following from the aforesaid, substantive immunity is essential in order to guarantee the democratic character of the government. Thus we see, as my colleague says, the purposes underlying substantive immunity are of different kinds. They are intended to protect basic political freedoms. They are intended to allow the proper functioning of the legislature. They express a desire to ensure the independence and the freedom of action of members of the Knesset. They are intended to strengthen democracy. On the other hand, we should not ignore the other (general) purposes of the Immunity Law. Like every other law, it is intended to realize the rule of law — including the rule of law among the members of the legislature — and equality before the law. How should these conflicts be resolved? The proper balancing point between these purposes is the balancing point that is reflected in the ‘margin of natural risk’ test that my colleague discussed. A member of the Knesset will have substantive immunity only in those cases in which the unlawful act falls within the scope of the margin of risk that the lawful activity as a member of the Knesset naturally creates (see Pinhasi v. Knesset [5], at pp. 686-687).

9.    My opinion is that the ‘margin of natural risk’ test is satisfied in the circumstances before us. I did not reach this conclusion lightly, and it is not an obvious one. Admittedly, in my opinion we are dealing with a ‘difficult case’ for applying the margin of natural risk test. Admittedly, the statements of the petitioner and the circumstances in which they were made are, in my opinion, close to the line beyond which it would not be possible to say that they fall within the scope of the natural risk involved in carrying out the duties of a member of the Knesset. Notwithstanding, my opinion is that in the circumstances of the case, and in view of the other relevant circumstances of this case, the proper conclusion is that the natural risk test is satisfied by the petitioner before us. This position of mine is based on three reasons. First, the statements attributed to Knesset Member Bishara were made in political speeches that he made. The speeches dealt with broad political subjects. These speeches were long ones and many things were said in them. Inter alia, they included the remarks that are attributed to the petitioner in the indictment. It cannot be said that these remarks were the main part of the speeches. It cannot be said, and the respondents did not even argue this before us, that the main purpose of these speeches was to express support for a terrorist organization. The statements made in this context constitute merely a part of all the remarks made by the petitioner. Second, the offence with which the petitioner is charged is an offence that relates to the freedom of expression. This fact is also important when determining the limits of the ‘margin of natural risk,’ in view of the centrality of speeches in carrying out the duties of a member of the Knesset. Third, in view of the broad language in which offences concerned with the freedom of speech — such as defamation, incitement, rebellion and making statements of praise for a terrorist organization — are usually couched, there is a concern that if members of the Knesset will be exposed to these criminal indictments, this will reduce their ability to express themselves without fear, even in cases where their remarks do not constitute a criminal offence. This result will seriously harm the freedom of parliamentary expression and the basic political freedoms associated therewith.

10. In my opinion in Pinhasi v. Knesset [5], I expressly addressed the question of political speeches and the offences associated with them, such as defamation, incitement and rebellion. I discussed how the purpose of substantive immunity is to guarantee that a member of the Knesset will not be prevented from expressing his opinion on public issues merely because of the concern that he may overstep the boundary in certain cases between what is permitted and what is forbidden. In this regard, I made the following remarks:

‘Membership of the Knesset gives the members of the Knesset immunity for prohibited actions that fall within the scope of “professional risks.” Someone who is in the business of making speeches has a high probability of being caught violating prohibitions concerning defamation or incitement. Substantive immunity was intended to give him immunity within the limits of this risk… the purpose of this substantive immunity is to allow the member of the Knesset to express his opinion freely, without him being prevented from making lawful remarks that his position requires him to make, merely because of the fear that he may make an unfortunate statement, and he may be carried away in making permitted and lawful remarks into prohibited and unlawful ones’ (ibid. [5]).

Indeed, offences that concern the freedom of expression are by their very nature an integral part of the role of a member of the Knesset. Political expression — speeches, articles and interviews — are the main tools of the member of Knesset. It is through political expression that a member of the Knesset is able to express his outlook and the outlook of the people who voted for him on public matters. This is the main role of the member of Knesset. A member of Knesset who speaks on political issues is carrying out his main parliamentary activity. Protecting a member of the Knesset in this activity is the main purpose of substantive immunity. Whoever engages in political expression as a main part of his job is inevitably in great danger of falling foul of the prohibitions concerning the freedom of speech, such as incitement, rebellion and uttering statements of praise for a terror organization. There are two combined reasons for this. First, because of the broad and comprehensive language of these criminal prohibitions (concerning the broad and comprehensive language of the prohibition against incitement, see, for example, CrimA 2831/95 Alba v. State of Israel [25]). The offence with which the petitioner is charged is a very broad one. Section 4 of the Prevention of Terrorism Ordinance, with which the petitioner is charged, provides that:

‘Supporting a terrorist organization

4. A person —

     …

     (b) who publishes, in writing or orally, words of praise or approval for, or a call to help or support, a terrorist organization; or’

 

     …

 

     (g) who commits an act that contains an expression of identification with a terrorist organization or approval for it, by raising a flag, displaying a symbol or slogan or by uttering an anthem or slogan, or any act of similar expression that clearly displays such identification or approval, all of which in a public place or in such a manner that persons who are present in a public place can see or hear such an expression of identification or approval;

 

     shall be charged with an offence…’.

According to Professor Kremnitzer:

‘The difficulty is that the expressions “praise,” “encouragement” and “approval” are very broad… Does a statement that “Had it not been for the ‘Intifadeh,’ the Oslo agreement would not have been made’ not constitute approval for acts of violence? Is a description of discrimination against the Arab minority and the difficulty or impossibility of making a significant change in this area not amount to an encouragement of violence? Does a description of the means of oppression adopted in the occupied territories, together with harsh and frank criticism of them, not amount to such encouragement? Is historical research that indicates that in certain situations it is not possible to direct the attention of the majority to the distress of the minority other than by resorting to violence not encouragement to violence? Does speaking of a connection between the acts of the government and acts of terrorism not encourage terror? We are speaking of statements that lie at the centre of the area protected by freedom of speech’ (‘The Alba Case: “Clarifying the Laws of Incitement to Racism”,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 105 (1999), at p. 142).

Second, members of the Knesset frequently speak on confrontational matters, in a manner that may be seen as provocative and outrageous by some members of society. This is particularly true in Israeli society (see. E. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 29 (1999)). It is true with regard to the offence of incitement. It is also true with regard to the offence of uttering statements of praise and approval for a terrorist organization. It is natural to say that in view of the petitioner’s views, the manifesto of his party, and the outlooks of the people who elected him, the petitioner will find himself expressing opinions on the question of the Arab-Israel dispute, with its various aspects. These positions are likely to be regarded as provocative and outrageous by a large part of society. Here too there is a great danger that his remarks will be interpreted as statements of praise and approval for a terrorist organization. There is also a risk that in certain cases his remarks will overstep the mark and will in fact actually constitute statements of praise and approval for a terrorist organization. But we should not, because of these risks, prevent the petitioner from carrying out his duties and from realizing his public mission. Substantive immunity is intended to give him the defence that is required for this purpose. My opinion, therefore, is that the fact that political statements are a main tool of a member of the Knesset, the controversial context in which the petitioner often speaks in the course of carrying out his duties, and the general and all-inclusive language of the criminal prohibition concerning statements of praise and approval for a terrorist organization all lead to the conclusion that taking a risk by making remarks that amount to statements of praise and approval for a terrorist organization is also a ‘professional risk’ of a member of the Knesset, and that statements of this kind are therefore in the ‘margin of risk’ that parliamentary activity naturally creates. Therefore, statements of this kind will, as a rule, be protected by substantive immunity, provided they were not made by abusing substantive immunity.

11. My conclusion is therefore that the offence of support for a terrorist organization was committed by the petitioner — if it was indeed committed, which we are assuming for the purpose of this petition — as an integral part of the legitimate activity of expressing an opinion on political issues, and as an ancillary or secondary issue thereto. It follows that in my opinion the petitioner has substantive immunity with regard to the statements for which the indictment was filed.

Summary

12. In view of my conclusion that the petitioner has substantive immunity against being indicted for the statements that he made, there is no further need to discuss the arguments concerning the proceedings that led to the lifting of procedural immunity.

13. Finally, I would point out that I have not held in my opinion that the statements of the petitioner are desirable ones. Quite the contrary, the assumption that I have made was that in his statements the petitioner committed a criminal offence of support for a terrorist organization. Indeed, the petitioner’s remarks are problematic, and they are very offensive to the ear. But I have found that they were uttered by the petitioner in the course of carrying out his duties, and for the purpose of carrying out his duties, as a member of the Knesset. We should protect and defend the ability of members of the Knesset to carry out their duties without fear and trepidation. Substantive immunity is intended to provide this protection, which is a public interest of the first degree. This protection is essential for the existence of basic political freedoms. It is essential for the existence of Israeli democracy.

If my opinion is heard, we will grant the petition, hold that the petitioner has substantive immunity that cannot be lifted, and therefore we will make the order nisi absolute, in the sense that the criminal proceedings that are taking place against the petitioner will be cancelled.

 

 

Justice E. Rivlin

1.    I have studied the opinions of my colleagues, President A. Bark and Justice E. Hayut. My colleague the president is of the opinion that the petitioner has substantive immunity for the statements that are the subject of the indictment against him. My colleague Justice Hayut is of the opinion that the petitioner’s case does not fall within the scope of substantive immunity. I agree with the conclusion of my colleague the president. In my opinion too the statements of the petitioner fall within the scope of substantive immunity. But I would like to add the following remarks in this regard.

My colleagues disagree with regard to a fundamental issue: does the case of the petitioner go beyond the ‘red lines’ of substantive immunity, so that there is no longer any need or basis to adopt the balancing tests laid down in case law, including the ‘natural risk test,’ which is the opinion of my colleague Justice E. Hayut, or, despite the difficulty raised by this case, should it too ultimately be decided by the balancing tests that have been laid down in the case law of this court over the years with regard to the question of immunity, which is the opinion of my colleague the president? A decision on this issue, in one direction or the other, requires an examination of the significance of Amendment no. 29 of the Immunity Law (the Immunity, Rights and Duties of Knesset Members Law (Amendment no. 29), 5762-2002 (hereafter — ‘Amendment no. 29)). But this decision derives, so it would seem, also from an ethical outlook on the proper way in which a democracy, and Israeli democracy in particular, should contend with statements of the kind uttered by the petitioner. Both with regard to the statutory question — the effect of Amendment no. 29 — and with regard to the ethical question I find myself in agreement with my colleague the president, for his reasons and for reasons of my own.

2.    The indictment that was filed against the petitioner attributes to him offences arising from statements that he made. It concerns, as my colleagues explained in their opinions, two speeches that the petitioner made, for which he was indicted on two offences of support for a terrorist organization, pursuant to ss. 4(a), 4(b) and 4(g) of the Prevention of Terrorism Ordinance, 5708-1948.  The question whether the petitioner’s statements are protected by substantive immunity follows from the question whether they were made ‘in the course of carrying out his duties, or for the purpose of carrying out his duties, as a member of the Knesset’ (s. 1 of the Immunity, Rights and Duties of Knesset Members Law, 5711-1951). This is not a simple question. The petitioner, a member of the Knesset in Israel, uttered in his speeches remarks that are outrageous to most of the public in Israel. Because of his shocking remarks, an indictment was filed against him, and this attributes to him offences of support for a terror organization, and the remarks are far more serious since they were made by a member of the house of representatives of the State of Israel. But one important matter confronts us from the outset: the petitioner before us was allowed by us to compete for a seat in the Knesset, and he was indeed elected to hold office in it; the statements for which we are being asked to deny him immunity are the very same statements that were before us when we allowed him to compete in the elections. In my opinion, one case is dependent on the other. This is the position at the outset, and we will return to it later.

3.    Every society, and especially a democracy, is required to determine its credo with regard to the question of how to realize the values underlying it, without endangering those selfsame values and its very existence. This determination is a difficult one. It requires a delicate balance, which sometimes involves a considerable amount of uncertainty in its application. Section 5 of the Political Parties Law, 5752-1992, and s. 7A of the Basic Law: the Knesset, as they have been interpreted in the case law of this court, seek to determine such a balance. These sections determine that someone who takes part in the democratic process must commit himself to the rules of democracy. Indeed, democracy — so we have been taught — is entitled to protect itself against those who seek to destroy it. ‘In order to prove its viability, democracy does not need to commit suicide’ (per President A. Barak in Central Elections Committee for the Sixteenth Knesset v. Tibi [2]). These sections also enshrine another fundamental principle, which is unique to the State of Israel, namely that it is the state of the Jewish people. ‘There are many democratic states. Only one of them is Jewish. Indeed, the reason for the existence of the State of Israel is that it is a Jewish state’ (ibid. [2], per President Barak). In addition to these principles there are the prohibitions against incitement and support for an armed struggle against Israel, and all of these combine in order to limit the right to register a political party and the right to take a part in the elections to the Knesset.

But case law with regard to the implementation of these sections — and we are referring mainly to case law concerning s. 7A of the Basic Law: the Knesset — reflects the great complexity of life and the fact that the statutory provision concerning the boundaries of democracy do not resolve all of the complexities. Time and again this court has considered the cases of persons, political parties and list of candidates who challenged these boundaries, stepped on the borderline and sometimes crossed over it. The court, and with good reason, consistently maintained the delicate balance between all of the considerations. In following this path, the court sought to uphold, in so far as possible, the right to vote and to stand for office, which is a ‘constitutional right of the first degree’ (Welner v. Chairman of Israeli Labour Party [19], at p. 800). Because of this approach, the court adopted a restrictive interpretation of s. 7A of the Basic Law: the Knesset, and it held that the section should only be applied in extreme circumstances. To this end, various interpretive criteria were laid down, and these were summarized in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] in the following terms:

‘First, considering the purposes of a list of candidates means considering “dominant characteristics that are placed in a central position among the aspirations or the activities of the list”…

“The power granted in s. 7A is not designed for matters that are marginal and whose effect on ideology or policies as a whole is not significant and serious. This means phenomena… that can be described as dominant characteristics that are placed in a central position among the aspirations or activities of the list”…

We are therefore concerned with purposes that are a “dominant” goal… second, the dominant and central purposes of the list — and to the same extent, the acts of a candidate for the elections within the framework of a list of candidates — are derived both from express declarations that are directly stated and also from reasonable conclusions that are clearly implied… third, purposes that are of a theoretical nature are insufficient. It must be shown that the list of candidates “is acting in order to realize its purposes and to convert them from theory into practice”… There must be “activity in the field” that is intended to put the theory of the list’s purposes into practice. This activity needs to be repeated. Sporadic activity is insufficient. The activity needs to adopt a serious and extreme form of expression from the viewpoint of its intensity… Indeed, democracy does not take action against someone who does not take action against it. This is a defensive democracy, which does not prevent participation in the elections of a list of candidates merely because of the purposes of the list, but it defends itself against acts that are directed against it. Finally, the evidence proving the purposes and the acts that result in a list of candidates or a candidate not being allowed to participate in the elections to the Knesset needs to be “convincing, clear and unambiguous”…’ (references omitted).

4.    The broad approach, which seeks to uphold basic freedoms in so far as possible, does not necessarily conflict with the outlook of defensive democracy. On the contrary, it arises from precisely the same ideological outlook. The free marketplace of ideas in general, and its expression in the house of elected representatives in particular, is essential for preserving democracy. Limiting the possibility of voting and standing for office in the Knesset, and thereby expressing opinions and outlooks, was not intended to suppress — and certainly not to veto — opinions and outlooks. On the contrary, participation in the democratic process often prevents anti-democratic activity; and the freedom of expression, which is the main tool that is given to members of the Knesset when carrying out their duties, is frequently the antithesis of violence, outbreaks of hostility or the feeling of persecution and discrimination. This was discussed by Justice Barak in Kahane v. Broadcasting Authority Management Board [21]:

‘Another aspect of the case for democracy concerns the important contribution of the freedom of expression to social stability, and consequently also to democracy… By virtue of freedom of expression social pressure finds its expression in negotiation, and not in action. The release of social pressure finds expression on the peaceful path of expression rather than on the violent path of action. Society, which often sits idly by and does not foresee hidden troubles, prepares itself for future troubles, when it becomes aware of the dangers that the freedom of expression brings out into the open.’

If a person is prevented from speaking out, this may lead to undermining the barrier that holds him back from resorting to violence. Again, broad freedom must not become a recipe for destruction. Limits must be set, but it is not for no reason that we have over the years set the limits with care and sensitivity, in the belief that usually a problematic statement is better than a problematic action, and defensive democracy often defends itself well if it allows the strident voices in it to be heard, so that they become known and, where necessary, will be required to give an accounting in the marketplace of statements and opinions. Indeed, the remedy for speech is to reply with speech, and the remedy for support of an opinion is to give support to a contrary opinion. This position reflects the basic commitment of the Israeli public to the values of democracy (see also E. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ 30 Hebrew Univ. L. Rev. (Mishpatim) 29 (1999), at p. 38).

5.    Even the petitioner, despite the problematic remarks in his two speeches under discussion, and additional remarks that he has made over the years, clears the barrier of s. 7A of the Basic Law: the Knesset, even if it is by a narrow margin. The Supreme Court, by a majority, allowed him to participate in the elections, even though the statements in this case, for which the indictment that is before us today had already been filed, were before it. This court held then, inter alia, that in view of the interpretive criteria that apply to the implementation of the aforesaid s. 7A, it could not be said that there was a sufficient factual basis for holding that the petitioner in his statements expressed support for an armed struggle of a terrorist organization. Therefore, it was found that the petitioner did not satisfy this ground of disqualification (or any other grounds of disqualification). Now the same statements and what is de facto the same ground of disqualification are before us. But the framework is different; now we are concerned with substantive immunity.

6.    The question of the connection between preventing participation in the elections under s. 7A of the Basic Law: the Knesset (and s. 5 of the Political Parties Law) on the one hand and substantive immunity on the other has engaged the court in the past, but no firm determination was made. In Miari v. Knesset Speaker [4], Justice Ben-Porat held that substantive immunity should not be interpreted as giving ‘a green light to acts that inherently conflict with loyalty to the existence of the state’ (ibid. [4], at pp. 225-229). Justice Shamgar left this question undecided, when he said that:

‘The essence of the argument may be that when s. 7A was enacted, the acts described therein became inconsistent with the actions of a member of Knesset and in any case they cannot be regarded as actions that are done in the course of carrying out his duties or for the purpose of carrying out his duties. What is stated in s. 7A is intended to create a distinction between legitimate parliamentary activity and acts of the kind described in the aforesaid provision of statute, as if it said that it does not permit circumstances in which such purposes or such acts are a part of the parliamentary activities in which a member of the Knesset participates. Prima facie the provisions of s. 7A address the stage before the elections, i.e., the provisions address an earlier constitutional stage. But it can be assumed that it will be argued that the restrictions provided in s. 7A (and they are without doubt restrictions in comparison to full freedom of speech) have, by their very nature and in view of the logical ramifications of the aforesaid provision of state, transcendent consequences in that they directly imply what can be considered, according to our constitutional outlook, as a permitted or a prohibited act in the parliamentary sphere. Moreover, it can also be argued that s. 7A addresses a list of candidates rather than an individual member of Knesset as such; but the answer to this is that from what is required of a list of candidates we can derive by means of an analogy the implications for the individual member of the Knesset’ (ibid. [4], at p. 211).

In Pinhasi v. Knesset [5], President Barak also left undecided the question ‘whether substantive immunity applies to offences that directly concern actions or purposes that prevent a list of candidates from participating in the elections to the Knesset’ (ibid. [5], at p. 690). All of this was before Amendment no. 29. Now the connection is enshrined in statute, in s. 1(a1) of the Immunity Law, which provides the following:

‘Immunity in carrying out duties

1.  …

(a1) To remove doubt, an act, including a statement, which is not incidental, of a member of the Knesset that contains one of the following shall not be regarded, for the purpose of this law, as expressing an opinion or as an act that is carried out in the course of his duties or for the purpose of his duties as a member of the Knesset:

 

(1) Denying the existence of the State of Israel as the state of the Jewish people;

 

(2) Denying the democratic character of the state;

 

(3) Incitement to racism because of colour or belonging to a race or to a national-ethnic origin;

 

(4) Support for an armed struggle of a hostile state or for acts of terrorism against the State of Israel or against Jews or Arabs because they are Jews or Arabs, in Israel or abroad.

 

…’

This strengthened the connection between the grounds for disqualification concerning actually competing in the elections and the grounds for denying substantive immunity. But this is not the end of the matter, since, as we have already seen, in so far as s. 7A of the Basic Law: the Knesset is concerned, the grounds for disqualification do not stand on their own; they are accompanied by all the interpretive criteria that derive from the necessary balance between the relevant considerations. Is the Immunity Law free of all or some of those interpretive criteria? Should we ignore these balancing criteria and the balancing tests laid down in case law with regard to substantive immunity (and especially the margin of natural risk test) when we apply the provisions of s. 1(a1) of the Immunity Law? Moreover, are incidents that occurred before Amendment no. 29 — even if we assume that it is a clarifying amendment — also exempt from the balancing applied by judicial discretion where an indictment of the kind filed against the petitioner is filed against a member of Knesset? I am of the opinion that if we answer yes to all of these questions, an excessive disparity will be created between the criteria that have been laid down with regard to preventing participation in the elections and the criteria required for denying substantive immunity.

7.    My colleague Justice E. Hayut cites the remarks of S. Nevot in her book The Subjective (Professional) Immunity of Knesset Members (Doctoral Thesis — Hebrew University, 1997), and these should be cited once more:

‘It would appear that ss. 5 and 7A, on the one hand, and s. 1 of the Immunity Law, on the other hand, were intended to prevent this phenomenon. Preventing the registration of a political party and preventing its participation in elections is a preliminary stage, which is intended to select the organizations and the persons that will be allowed to take part in the institution of the legislature. After the “selection,” the institution of immunity will protect the freedom of expression of those who are chosen. The premise in this protection is that the elected representatives are only those people whose expressions and activity have been defined as legitimate’ (emphasis supplied).

Thus we see that after the selection process the institution of substantive immunity will protect the freedom of expression of those persons who were elected, on the assumption that if they are elected, this was after their statements were found not to have crossed the line beyond which the statement should have been prevented ab initio rather than dealing with it by means of denouncing it from the podium of the Knesset. This is, of course, pertinent in our case too, since denying the petitioner immunity is being sought for the very same statements that were already examined and that were not found to be sufficient to prevent him from being elected to the Knesset. In the same vein, see the remarks of President A. Barak in Kahane v. Broadcasting Authority Management Board [21]:

‘This approach of mine, which applies freedom of expression also to the “exceptional” statement that is racist, applies especially to freedom of expression of a political party that participates in parliamentary life. The petitioners were permitted to participate in the elections. More than twenty thousand persons voted for them. How is it possible, in a democracy, to allow an organization to participate in the elections but to prevent it from expressing its opinions after the elections?’

My conclusion is therefore that the correlation between the grounds for disqualification and the grounds for denying immunity, and the continuous purpose that this correlation seeks to serve, are the two sides of the coin; on the one hand, if an act or a statement constitute a ground for disqualifying a list or a candidate from standing for office for the Knesset, pursuant to s. 7A, then this has, in the words of President Shamgar in Miari v. Knesset Speaker [4], ‘transcendent consequences,’ i.e., a direct ramification ‘on what can be considered, according to our constitutional outlook, as a permitted or a prohibited act in the parliamentary sphere,’ and therefore the act or expression will not be protected by substantive immunity. But on the other hand, if it is found that there is no sufficient ground for preventing the possibility of being elected to the Knesset, it will be difficult for us to ignore this conclusion when we examine the question of immunity for the same statements and on the same grounds. Allowing someone to compete in the elections implies de facto a predetermination of the margin of parliamentary activity that is not prohibited in our democracy. Activity within this margin while holding office in the Knesset will be considered in most cases as activity of a member of Knesset that is carried out in the course of carrying out his duties and for the purpose of carrying out his duties. It is not easy to eject from the back door someone who was allowed in through the front door. Obviously, if the member of the Knesset departs from the scope of that margin, and severs the connection between the declarations and purposes that were approved and his de facto actions, then the connection between the approval to compete in the elections and the protection provided by immunity is also severed. In such a case, removing the immunity will also not deter the colleagues of that member of the Knesset, and his replacement where necessary, from acting within the framework of that permitted margin. Indeed, when the whole margin lies on the borders of what is permitted, any deviation, even if small, is likely to remove the protection of immunity. But such an additional step was not taken in our case. The statements in the original case are the very same statements that are the basis for the indictment today.

8.    It should be emphasized that I am not of the opinion that there is a real disparity — a ‘considerable’ distance’ in the words of my colleague Justice Hayut — between refusing the right ab initio to participate in the elections and denying substantive immunity. My colleague is of the opinion that even though all of the arrangements — those in s. 5 of the Political Parties Law, s. 7A of the Basic Law: the Knesset and s. 1(a1) of the Immunity Law — were intended to realize a common purpose and to protect common basic values, there is a material difference between the first two and the third. My colleague discusses the great importance of the right to register a political party and to compete in the elections, a right that, when denied, irreversibly violates basic rights of the individual, namely the right to vote and to stand for election and the freedom of expression. By contrast, according to her, denying substantive immunity does not involve such a serious violation. As she says:

‘We are concerned with a candidate who has already been elected to the Knesset and is holding office in it as one of its members. Within the framework of this position, he has the possibility of addressing the Knesset, of tabling questions, putting forward matters for the agenda and draft laws, being a member of the Knesset committees and voting on laws… not granting substantive immunity is a decision that by its very nature is limited to the circumstances of a specific case that gives rise to a question of immunity, and it does not result in a sweeping denial of the rights of the Knesset member and the ways in which he may act and express himself that come with his position… the violation to the freedom of expression because substantive immunity is not given to a member of the Knesset is a violation after the event for remarks that have already been made’ (at para. 15).

My colleague goes on to say:

‘With regard to the scale that we are discussing, it can be said that the restrictions in s. 5 of the Political Parties Law and in s. 7A of the Basic Law: the Knesset ab initio prevent the freedom of political expression of the individual, whereas the restrictions that limit the scope of substantive immunity apply entirely after the event, i.e., in the stage after the member of the Knesset has realized his freedom of expression…’ (ibid.)

My approach is different. I am of the opinion that if we were indeed speaking here merely of a violation after the event that is limited to the circumstances of a specific case, there would be no need for the institution of substantive immunity, which violates, as my colleague Justice Hayut clearly explained, the rule of law and equality before the law. The whole essence and logic of the institution of immunity derives from the assumption that indicting a member of the Knesset in a criminal trial for an act or expression in the course of carrying out his duties may cause much more extensive harm in the future. Substantive immunity is intended to guarantee that a member of the Knesset can carry out his duties without fear and express his opinions and outlooks, which are the opinions and outlooks of the people who voted for him:

‘Immunity is intended to ensure that a member of the Knesset can properly discharge his duties and represent the public that elected him by giving free and full expression to his opinions and outlooks, without concern or fear that this may result in a criminal conviction or a personal pecuniary liability in a civil proceeding’ (the remarks of my colleague Justice Hayut in her opinion, at para. 6).

Similarly:

‘A member of the Knesset who cannot express himself without fear of the legal consequences of his remarks cannot discharge his duty to the voter… the freedom of political debate demands that no restriction is placed on the ability of elected representatives to express themselves freely’ (per President Shamgar in Miari v. Knesset Speaker [4], at p. 207).

We are therefore speaking here of a barrier that prevents free speech; of the fear of the cooling effect, which often causes as much harm as the ab initio freezing effect and which will undermine the ability of members of the Knesset to take part in the political debate. Only this understanding, of the future wide-ranging effects that may result from indicting a member of the Knesset can explain the ‘constitutional importance of the first degree’ that is attributed to substantive immunity, and the outlook that ‘the whole nation has a clear essential interest in the realization of this right, so that it does not suffer a major or minor violation by anyone’ (per President Agranat in State of Israel v. Ben-Moshe [3], at p. 439). Indeed, if a member of the Knesset is concerned that he might be indicted if he expresses the opinions of his party and the people who voted for him, of what value is the possibility of addressing the Knesset, of tabling questions and draft laws and taking part in voting?

9.    My colleagues cite the case law rule that was laid down in Pinhasi v. Knesset [5], according to which ‘for the purpose of analyzing a claim of immunity, we adopt the premise that the facts of the indictment will be duly proved.’ This is indeed the case law rule, but ultimately, as we have said, we should ensure that the disparity between the criteria for examining the right to compete in the elections — a right that can only be denied under strict conditions, including the need for ‘convincing, clear and unambiguous evidence’ — and the criteria for examining the question of immunity is not greater that what is required by the nature of the matter. This is the case today, and it is certainly the case with regard to an incident that occurred prior to Amendment no. 29, which my colleague Justice Hayut agrees does not apply ‘retrospectively in a literal manner,’ even if it is a clarifying amendment. In the absence of appropriate balancing tests, a situation may be created in which the combination of the rule in Pinhasi v. Knesset [5] and Amendment no. 29 will lead to the result that administrative discretion in filing an indictment for certain offences — such as the offence attributed to the petitioner — will also determine the question of immunity, without the matter being subject to any real judicial scrutiny. It is undesirable that this should happen (cf. Benvenisti, ‘Regulating the Freedom of Expression in a Polarized Society,’ supra, at p. 65). Amendment no. 29 was not intended to rule out the possibility of exercising judicial scrutiny, just as the aforesaid s. 7A did not deprive the court of the possibility of exercising judicial scrutiny that takes into account the basic principles of the legal system.

10. Indeed, the legislature had its say when it enacted the provisions included in s. 1(a1) of the Immunity Law within the framework of Amendment no. 29. But even this amendment does not raise an impenetrable barrier against judicial scrutiny, which should be stronger precisely when a question arises with regard to human rights. A similar need has also been recognized in other legal systems. The United States Supreme Court long ago restricted the scope of judicial review over economic legislation, but it emphasized from the outset, albeit cautiously, that there might be a greater tendency to intervene — or, in other words, it would determine a narrower scope for operation for the presumption of constitutionality — when legislation appears on its face to be within the scope of the specific prohibitions stated in the amendments to the constitution, and especially those concerning the prohibition against violating basic human rights (see footnote 4 of Justice Stone’s opinion in United States v. Carolene Products Co. [29]). The court in that case specifically mentioned, from the viewpoint of how ‘exacting’ the judicial scrutiny should be, the cases in which the legislation restricts those political processes that in themselves are supposed to serve as a barrier against undesirable legislation or where the legislation is directed against a particular religion or against identifiable and insular minorities. This footnote spread its wings and took up a position at the front of the stage, where it has served as an anchor for later case law concerning human rights. The protection of the freedom of expression has become greater there when it is invoked by minorities seeking equality, since naturally the majority has greater power to express its opinions. The logic that guided the Supreme Court in the United States is clear. In Israel, the margin of deference that we will show to the actions of the other branches will take into account out basic constitutional principles, which, for example, include property rights, and our outlook with regard to balancing all the considerations that are relevant when exercising judicial scrutiny (see also HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [26]). In any case, we should recognize the special importance of judicial scrutiny in those cases where basic human rights are under discussion. Here it is important for judicial scrutiny to be exercised fully. This can be done if it succeeds in not wasting its legal and social resources, which derive from public confidence, where the margin of deference is greater (see Movement for Quality Government in Israel v. Prime Minister [26]). This is the case in general, and it is particularly so when we are speaking of immunity that concerns the freedom of expression, and in our case this is not any expression, but political expression; and not any political expression, but political expression of a member of Knesset; and not any member of Knesset, but a representative of a minority group. Substantive immunity is intended, first and foremost, to ensure the effective representation in the Knesset of the various sectors of the population, so that their voices are heard and are not precluded from public debate in the State of Israel, in so far as this is possible within the limitations of a democracy; an additional purpose of immunity is to protect the Knesset and its members against interference and harassment on the part of the executive branch (see Pinhasi v. Knesset [5], at pp. 678-679). In view of these purposes, we should maintain the distinction between the decision to file an indictment — a decision that is within the authority of the attorney-general — and the decision concerning substantive immunity. One should not automatically deduce that there is no substantive immunity from the mere filing of the indictment for the offence that is attributed to the petitioner, not even in view of the ruling in Pinhasi v. Knesset [5]. The mere filing of the indictment against the petitioner does not erect a barrier that prevents judicial scrutiny with regard to the limits of the immunity.

11. My colleague the president follows this path, and presents in his opinion a balancing test for the purpose of applying Amendment no. 29. He does this before he comes to the margin of natural risk criterion, which applies, according to him, to cases that do not fall within the scope of that amendment. Thus, the president holds that —

‘The distance between convincing, clear and unambiguous evidence (which is required for the red line of which my colleague speaks) and the evidence required in order to deny substantive immunity (within the framework of a criminal proceeding) is not great at all’ (at para. 5 of his opinion).

This balancing criterion is sufficient, in our case, to lead to the conclusion that even when we take Amendment no. 29 into account, there is no statutory basis for holding that the petitioner does not have substantive immunity.

Indeed, the distinction outlined by the president between uttering statements of praise and approval for a terrorist organization and actual support for an armed struggle against the State of Israel, appeared already in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] and was supported by a majority of the justices. This distinction allowed the petitioner to compete in the elections to the Knesset (for a similar distinction, see HCJ 1398/04 Ben-Horin v. Registrar of Amutot [27]). We do not deny that the distinction is not an easy one, and already in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] there was doubt in this regard. But in so far as there is a doubt, it is better to ‘err’ on the side of freedom of speech, as Justice Stone said in Jones v. Opelika [30]:

‘If this court is to err in evaluating claims that freedom of speech, freedom of the press, and freedom of religion have been invaded, far better that it err in being over protective of these precious rights.’

Ultimately it was found in Central Elections Committee for the Sixteenth Knesset v. Tibi [2] that the evidence could not support the ground of disqualification that refers specifically and expressly to support for an armed struggle. The same conclusion, on the basis of the same evidence, has been reached by my colleague President A. Barak in our case as well, and I agree with this conclusion.

12. The question remains whether, in view of the balancing tests laid down in the case law of this court, the remarks made by the petitioner fall outside the scope of substantive immunity. In this regard, I see very great importance in the fact that we are dealing with offences that revolve entirely around statements. Indeed, the interests that immunity is intended to realize — mainly the right to effective political representation and to participation in public debate, the principle concerning the existence of a free marketplace of ideas and opinions and the purpose of maintaining a democratic process — are realized first and foremost by means of the political statements of a member of the Knesset. Free expression of opinions is the heart and soul of substantive immunity. ‘Someone who is in the business of making speeches has a high probability of being caught violating prohibitions concerning defamation or incitement. Substantive immunity was intended to give him immunity within the limits of this risk’ (per President A. Barak in Pinhasi v. Knesset [5]). The combination between the broad scope of application of the offences concerning the freedom of expression and the nature of the duties of a member of Knesset, to express his opinion in public and sometime differ from the opinion of the majority in harsh terms, places the member of Knesset — and especially one who belongs to minority sectors of the population — in an inherent risk of falling into the scope of the offences. All of this shows that immunity against indictment, where we are concerned with offences of speech, should be very broad.

13. In Pinhasi v. Knesset [5], the president held that the margin of natural risk applies to those actions that ‘… are so related and integral to his duties that there exists a concern that if the member of the Knesset will be required to account for these illegal actions, this will directly affect his ability to discharge his duties according to law and will restrict them’ (ibid. [5], at p. 690). Offences that only concern speech fall, as a rule, within the margin of natural risk. If a member of the Knesset is required to account for them, this may create a dangerous cooling effect.

With regard to activity of a different kind, such, for example, as a false entry in corporate documents, it has been held that it does not fall within the natural risk of the activity of a member of the Knesset, since ‘there is no concern that if criminal liability is imposed on a member of Knesset who signs these accounts in the knowledge that his declaration is false, and with a fraudulent intention, he will refrain from preparing these accounts lawfully’ (ibid. [5], at p. 692). This is not the case with offences involving speech, such as offences of incitement and even uttering statements of praise and approval for a terrorist organization. Thus, for example, a member of Knesset, and not necessarily a member of Knesset who comes from the Arab minority, may express an opinion that a violent act that was directed against the State of Israel led to political consequences for which the perpetrators of the act hoped. Such a statements does not need to be motivated by identifying with the action or support for it, but it may arise from the speaker’s subjective perception of reality. No one disputes that the remarks of the petitioner depart prima facie from the scope of such a statement. But the fear is that if the petitioner is not permitted to say what he said, notwithstanding the seriousness of his statement and notwithstanding the fact that it lies on the borderline of immunity, this will lead to excessive restraint, which will result in an excessive restriction on the limits of debate. I am therefore of the opinion that the petitioner’s remarks lie within the margin of natural risk.

The result is that I agree with the conclusion of my colleague President A. Barak that the petitioner has substantive immunity against being brought to trial for the offences which are the subject of the indictment that was filed against him.

 

 

Petition granted by majority opinion (President Barak and Justice Rivlin), Justice Hayut dissenting.

3 Shevat 5766.

1 February 2006.

 

The Supreme Court sitting as High Court of Justice

 

HCJ 6298/07

HCJ/6318/07

HCJ 6319/07

HCJ 6320/07

HCJ 6866/07

 

Before:            President D. Beinisch

                        Deputy President E. Rivlin

                        Justice A. Grunis

                        Justice M. Naor

                        Justice E. Arbel

                        Justice E. Rubinstein

                        Justice E, Hayut

                        Justice H. Melcer

                        Justice N. Hendel

 

Petitioner in HCJ 6298/07:             Major (ret.) Yehuda Ressler, Adv.

 

Petitioner in HCJ 6318/07:             The Movement for Quality Government in Israel

 

Petitioner in HCJ 6319/07:             Itay Ben Horin, Adv.

 

Petitioners in HCJ 6320/07:           1. Avraham Poraz, Adv.

                                                      2. Ilan Shalgi, Adv.

                                                      3. Hetz – Secular Zionist Party

Petitioners in HCJ 6866/07:           1. Ran Cohen M.K.

                                                      2. Yosef Beilin M.K.

                                                      3. Haim Oron M.K.

                                                      4. Avshalom Vilan M.K.

                                                      5. Yaron Shor – Secretary General, Meretz-Yahad Party

 

v.

 

Respondents in HCJ 6298/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondents in HCJ/6318/07:        1. The Knesset

                                                      2. Minister of Defense

 

Respondent in HCJ 6319/07:         The Knesset

 

Respondents in HCJ 6320/07:        1. The Knesset

                                                      2. Government of Israel

                                                      3. Minister of Defense

                                                      4. Attorney General

 

Respondents in HCJ 6866/07:        1. Attorney General

                                                      2. Minister of Defense

 

                                                      Petitions for an order nisi and an interim order

 

Dates of sessions:                          15 Sivan 5769 (7 June 2009)

                                                      25 Shevat 5771 (30 January 2011)

 

For petitioner in HCJ 6298/07:       Yehuda Ressler, Adv; Yaffa Dolev, Adv.

 

For petitioners in HCJ 6318,07:     Eliad Shraga, Adv; Tzruya Meidad, Adv; Dafna Kiro, Adv; Mika Koner-Carten, Adv.         

 

For petitioner in HCJ 6319/07:       Itay Ben Horin, Adv.

 

For petitioner in HCJ 6320/07:       Gideon Koren, Adv;
Guy Kedem, Adv.

 

For petitioner in HCJ 6866/07:       Uri Keidar, Adv; Eyal Mintz, Adv.

 

For respondent 1 in HCJ

6298/07, in HCJ 6318/07,

HCJ 6319/07 and HCJ 6320/07:    Eyal Yinon, Adv; Gur Bligh, Adv.

 

For respondent 2 in HCJ 6298/07,

and HCJ 6318/07,

and respondents 2-4 in

HCJ 6320/07, and for

respondents 1-2 in HCJ 6866/07:   Osnat Mandel, Adv;

                                                      Hani Ofek, Adv.

 

Israeli laws cited:

Basic Law: Human Dignity and Liberty, ss. 8, 9

Deferment of Military Service for Yeshiva Students for who the Torah is their Calling Law, 5762-2002, 9 (3), 16 (b)

Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005

Basic Law: The Army, s. 4

Civilian Service (Legislative Amendments) Law, 5768-2008

Defense Service Law

 

Israeli Supreme Court cases cited:

[1]       HCJ 3267/97 Rubinstein v. Minister of Defense, [1998] IsrSC 52 (5) 481

[2]       HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset, [2006] IsrSC 61 (1) 619

[3]       HCJ 910/86 Ressler v. Minister of Defense, [1988] IsrSC 42 (2) 441

[4]       HCJ 40/70 Becker v. Minister of Defense, [1970] IsrSC 24 (1) 238

[5]       HCJ 448/81 Ressler v. Minister of Defense, [1981] IsrSC 36 (1) 81

[6]       FH 2/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (1) 708

[7]       HCJ 179/82 Ressler v. Minister of Defense, [1982] IsrSC 36 (4) 421

[8]       HCJ 4769/95 Menachem v. Minister of Transportation, [2002] IsrSC 57 (1) 235

[9]       HCJ 1661/05 Hof Azza Regional Council v. The Knesset, [2005] IsrSC 59 (2) 481

[10]     HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, (1999) (not yet published)

[11]     HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense, (2006) (not yet published)

[12]     HCJ 3648/97 Stemka v. Minister of the Interior, [1999] IsrSC 53 (2) 728

[13]     HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 54 (4) 1

[14]     HCJ 4541/94 Miller v. Minister of Defense, [1995] IsrSC 49 (4) 94

[15]     HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, [1995] IsrSC 49 (4) 221

[16]     HCJ 6055/95 Zemach v. Minister of Defense, [1999] IsrSC 53 (5) 241

[17]     CrimApp 6659/06 Ploni v. State of Israel, (2008) (not yet published)

[18]     HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General, (2008) (not yet published)

[19]     HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion, (2009) (not yet published)

[20]     HCJ 1715/97 Investment Managers Association v. Minister of Finance, [1997] IsrSC 51 (4) 367

[21]     HCJ 5503/94 Segal v. Knesset Speaker, [1997] IsrSC 51 (4) 529

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

[23]     HCJ 114/78 Burkan v. Minister of Finance, [1978] IsrSC 32 (2) 800

[24]     HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [1992] IsrSC 46 (2) 692

[25]     HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister, [1998] IsrSC 52 (4) 193

[26]     HCJ 4124/00 Arnon Yekutieli, (deceased) v. Minister of Religious Affairs, (2010) (not yet published)

[27]     HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education, (2010) (not yet published)

[28]     HCJ 7111/95 Center for Local Government v. Knesset [1996] IsrSC 50(3) 485

[29]    HCJ 257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 45(2) 265.

[30]     HCJ 390/79 Duwekat v Gov’t of Israel [1979] IsrSC 34(1)1

[32]     HCJ 746/07 Regan v. Ministry of Transport (not reported)

[33]     CrimApp 8823/07 Anon v. State of Israel (not reported)

[34]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1982] IsrSC 42(2) 221

[35]    AAA 10673/05 Mikhlelet HaDarom v. State of Israel (not reported)

[36]     HCJ 5373/08 Abu Libda v. Minister of Education (not reported)

[37]     HCJ 5803/06 Guttman v, Minister of Defense (not reported).

[38]     HCJ 466/07 Galon v. State Attorney (not reported)

[39]   EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [2003] IsrSC 57(3) 793

[40]     HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [2006] IsrSC 61(2) 314

[41]     HCJ 5000/95 Bertler v. Military Prosecutor General [1999] IsrSC 49(5) 64

[42]     HCJ 6784/06 Shlitner v. Director of Payment of Pensions [2011] (not reported)

[43]     CrApp 8823/07 Anon v. State of Israel [2010] (not reported).

[44]     HCJ 4908/10 Roni Baron v. Israel Knesset [2012] (not reported.

[45]     HCJ 11956/05 Bishara v. Minister of Construction and Residence [2006] (not reported)

[46]     FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [2007] (not reported)

[47]     11088/05 Heib v. Israel Lands Administration [2010] (not reported).

[48]     HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [2002] IsrSC 57(1) 419

[50]     HCJ 4948/03 Elchanati v. Finance Minister [2008] (not yet reported)

[51]     HCJ 104/87 Nevo v. National Labor Court [1990] IsrSC 44(4) 749

 

Foreign Legislation Cited

[52]     Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

[53]     Bayatyan v. Armenia, [2011] ECHR 23459/03 [ ].

Facts: The subject of military service for hareidi (ultra-Orthodox), full-time yeshiva (rabbinical seminary) students has been at the center of public debate in Israel since the founding of the state, when the first Defense Minister, David Ben Gurion, decided to defer their conscription. The arrangement was significantly expanded over the years, and its underlying reasons also changed. Numerous attempts were made to challenge the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability In the 1986 Ressler case [3], the Court held that the petitioner had standing, and that his petition was justiciable, but denied the petition on the merits, holding that granting deferments to yeshiva students was within the scope of authority of the Minister of Defense. However, the Court also held that the number of students receiving deferments was of relevance, and that “quantity makes a qualitative difference”. Thus, there was a limit that a reasonable Defense Minister could not exceed. In the 1997 Rubinstein case [1], the data showed such a significant increase in the number of deferments. The Court held that the Minister of Defense did not have the authority to continue to grant the deferments, and that the matter had become one that must be decided by the Knesset in primary legislation.

Following that decision, the Knesset enacted the Deferment of Military Service for Yeshiva Students Law, 5762-2002. The law was an enacted as a temporary order that would be in force for five years, at which time the Knesset could extend its force. The constitutionality of that law was challenged in the Movement for Quality Government case [2]. The Court ruled that the Deferment Law violated the right to human dignity, but that it served a proper purpose as required under sec. 8 of Basic Law: Human Dignity and Liberty (the “limitation clause”). The Court, therefore, refrained from declaring the Law unconstitutional, explaining that the existence of a rational connection between a law’s purpose and the measures adopted for its realization is not a theoretical matter, but rather a practical test that is based upon the results of its actual implementation. The Court, therefore, decided to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. The Court further stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation”. On 18 July 2007, the Knesset voted to extend the Deferment Law for an additional five years (until 1 August 2012). This prompted the petitions in this case, challenging the constitutionality of the Deferment Law.

Held: The Court (per President Beinisch, Justices Naor, Rubinstein, Hayut, Melcer and Hendel concurring, Deputy President Rivlin and Justices Grunis and Arbel dissenting) granted the petitions, holding the Deferment Law to be unconstitutional.

In the Movement for Quality Government case, the Court had found that the Deferment Law violated Basic Law: Human Dignity and Liberty, but that it did so for purposes that was held to be proper. After examining the statistics concerning the actual implementation of the Law, the Court found that although the data revealed an increase in the number of hareidi men enlisting for military service or volunteering for alternative civilian service, the trend was insufficient, some ten years after the enactment of the Law, to demonstrate a significant realization of the purposes of the Law. Moreover, in examining the implementation of the Law, the Court found that the Law suffered from inherent flaws that impaired the possibility of realizing its objectives. Because the right to equality constitutes a fundamental right, the level of scrutiny required in examining whether its violation meets the proportionality test demands that there be a real, significant probability that the means adopted by the Law will achieve its purposes. Inasmuch as the means adopted by the Law were not found to have a real potential for realizing its purposes, the Law did not meet the requirements of the proportionality test established under the limitation clause, as is required of a law that violates a fundamental right. The Law, therefore, was unconstitutional.

Justice Arbel (dissenting, joined by Deputy President Rivlin) was of the opinion that the time was not yet ripe for making a final ruling upon the constitutionality of the Law, and that the Court should continue to show restraint, and grant the State additional time to implement the Law and achieve its purposes.

Justice Grunis (dissenting) reiterated the view he had expressed in his dissenting opinion in the Movement for Quality Government case, according to which judicial review is inappropriate for laws in which the majority grants preferential rights to a minority. Justice Grunis further argued that the ability of the Court to exert influence over an issue such as that raised in the petitions is limited. Therefore, it would be better that the Court refrain from intervening.

Although the Court found the Deferment Law to be unconstitutional, inasmuch as it was due to expire six months following the handing down of the decision, the Court decided not to declare it void, but rather to allow it to run its course, while holding that law could not be further extended by the Knesset in its present form.

 

 

Judgment

 

President D. Beinisch:

 

The arrangement for deferring the military service of full-time yeshiva [rabbinical seminary] students has been at the center of public debate in Israel since the founding of the state. Over the years, the nature of the issue has changed, and the question of the induction of yeshiva students has assumed an increasingly important role in public discourse as the number of those opting into the arrangement has assumed significant dimensions. Naturally, this issue has concerned all the branches of government, and this Court has addressed it on a number of occasions. It now comes before us for the eighth time.

1. I will state at the outset that, in my view, the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law 5762-2002 (hereinafter: the Deferment Law, or the Law) – which had previously been found to violate the right to equality that forms part of the right to human dignity – does not meet the proportionality condition of the limitation clause, and it is, therefore, unconstitutional.

This view is based upon the data concerning the implementation of the law as presented by the Respondents. The data – which will be presented below in detail – shows that the Law comprises inherent impediments that significantly influence the possibility for giving it effect and realizing its objectives. Although the data does reveal some movement toward change, we are not convinced that such a trend is sufficient some ten years after the enactment of the Law. The data that was submitted to us shows that in 2010, only 600 members of the hareidi [ultra-Orthodox Jewish – ed.] community were inducted into the designated programs created by the IDF in accordance with the Law, while 1,122 opted for alternative civilian service, and by the end of 2008, 3,269 had taken advantage of the “decision year”. Most of those who completed the decision year, returned to the status of full-time yeshiva student for whom “Torah is their calling” (and received a deferment from military service, or an exemption from military service for various reasons).

Along with this statistical data, one of the most important findings relates to the number of people acquiring the status of full-time yeshiva student each year. The Respondents themselves admit that the number of military deferments has steadily risen since the enactment of the Law. In 2007, for example, 6,571 members of the hareidi community joined the ranks of those for whom “Torah is their calling”. That means that, each year, more hareidi men assume that status than the number who opt for military or civilian service. The total number of deferments, as of the date of the submission of the data, stands at 61,000. The number of those for whom Torah is their calling also rises steadily relative to the total draft pool over the last few years, so that in 2007, it constituted 14% of those eligible for conscription.

As will be explained more fully below, statistical data do not tell the whole story. My position on this important but difficult matter is influenced both by the quality of the military or civilian service offered by virtue of the Law, as well as by the manner in which the Law has been implemented by the Executive over the years. Looking at all of this data, it is my view that while there has been an improvement in the implementation of the Law, the means established by the Law cannot be seen to be realizing its purpose, and it would appear that the law comprises impediments that contribute to the impossibility of achieving its full realization. That being the case, there is no alternative but to find that the Law is unconstitutional.

 

Background

 

2. Before we address the question in depth, and before surveying its history, we should note that the turning point in the case law came about in HCJ 3267/97 Rubinstein v. Minister of Defense [1] (hereinafter: the Rubinstein case). That turning point marked a milestone in the course of proceedings concerning the issue of the conscription of yeshiva students. In that case, this Court held that the Minister of Defense had acted unlawfully in maintaining the arrangement for the deferment of military service for full-time yeshiva students, as it had not been authorized by law, and that the authority to establish a military deferment arrangement, which constituted a “primary arrangement”, was in the hands the Knesset. Following that decision, the Knesset enacted the Deferment Law. The question of the constitutionality of the Law was brought before this Court in HCJ 6427/02 The Movement for Quality Government in Israel v. The Knesset [2] (hereinafter: the Movement for Quality Government case). In that case, which we will discuss at length below, the majority of the Court, concurring with the opinion of President Barak, ruled that the Deferment Law violated the constitutional right to human dignity, in that it was discriminatory, and violated equality in regard to the most fundamental values underlying human dignity. In view of that holding, the Court proceeded to examine whether the Law met the conditions of the limitation clause. The Court concluded that the Law served four objectives that joined together in giving the Law a proper purpose that was consistent with the values of the State of Israel as a Jewish and democratic state. In addition to examining its purpose, the Court also considered whether the Law met the proportionality test. The Court found that the extent of the violation of rights was manifestly disproportionate, as on its face it was apparent that there was no rational relationship between the Law’s objectives and the means established for its realization. As became clear from the data brought before the Court in the course of the proceedings, “the objectives of the Law were but incidentally and insignificantly realized” (ibid. [2], pp. 712-713). The Court, therefore, found that only the Law’s first objective had been realized – viz., the deferment arrangement had been established by statute. The Court noted that the purpose of the Law was “to promote compromise and balance among conflicting objectives,” and that in addition to providing a statutory basis for the arrangement, it was intended to promote equal distribution of the security burden, and the integration of hareidi men into the workforce. Those objectives were not realized. Therefore, the Court held that “given that the various objectives of the Law are tightly intertwined, there is no avoiding the conclusion that the primary, overall objective of the Deferment Law is not being realized” (ibid. [2], at p. 712).

              Despite its conclusion that the Deferment Law did not meet the first proportionality test, the Court refrained from declaring the Law unconstitutional. The Court explained that the existence of a rational connection between a law’s purpose and the measures adopted for its realization (the first subtest in examining proportionality) is not a theoretical matter, but is a practical test that is based upon the results achieved in realizing the law and its actual implementation. In view of the scope of the social change required for the Law’s realization, the Court decided that those implementing the Law should be permitted “to fix what they broke” (ibid. [2], at p. 713). The Court noted that in view of the Government’s failures in implementing the Law, it would be difficult to say whether the Law suffered from a “genetic” defect – i.e., a defect in the Law’s provisions themselves, or whether the problem was administrative. Therefore, and inasmuch as the Deferment Law had been enacted as a Temporary Order for five years (with the possibility of its extension for additional five-year periods), the Court decided that it would be appropriate to wait until the end of the five-year period, at which time the Knesset would be required to reconsider whether the Law actually realized its purposes. Therefore, the Court stated that “along with our decision to reject the petitions, as we are unable to decide the issue of constitutionality, we further hold that if the current trend continues, and there will be no significant change in the situation, there is a real fear that the Deferment Law will become unconstitutional . . . if there will be no significant change in the results of its actual implementation” (ibid. [2], at p. 714).

              It should be noted that, in his carefully reasoned dissenting opinion, Deputy President (Emeritus) M. Cheshin argued that the Law was void ab initio. In his view, even if it were possible to consider applying a special legal arrangement to limited groups of unique character and to separatist elements in hareidi society, there is no acceptable justification for the broad exemption granted by the “Torah is their calling” framework. Justice A. Grunis concurred with the majority, but for other reasons.

4.      The first five years of the life of the Deferment Law have passed, and on 18 July 2007, the Knesset voted to extend its force for an additional five years (until 1 August 2012). It is against this background that the petitions before the Court were submitted. The petitioners raise the question left undecided in the Movement for Quality Government case – the question of whether the Law meets the proportionality test. Specifically, we are asked to decide whether there has been that “significant change” in the results of the Law’s implementation that would show that the defect that the Court discerned in the Law is not inherent to the Law’s provisions, but rather to the manner of their implementation by the relevant authorities.

              The petitions were initially heard before a three-judge panel. On 29 May 2008, an order nisi was issued in regard to the petitions, and it was decided that they would be heard before a nine-judge panel. The hearing before the expanded bench took place on 7 June 2009, and an interim order was granted. The order, given by Justice E. Hayut, stated:

 

‘We have considered the written and oral arguments raised by the parties before us . . . and have concluded that before making a final decision upon the constitutionality of the Deferment Law, and upon its extension for an additional five years, the apparatus intended for its implementation, which have only just begun to take shape and begun to operate (the special service tracks established in the IDF, and the civilian service track), should be permitted to prove their effectiveness or ineffectiveness by their results over an additional, fixed period. After that period, we will reassess the data concerning IDF conscription and civilian service of those granted deferments, as well as the other arguments and considerations necessary for rendering a judgment upon the instant petitions. At the same time, we would emphasize two matters, already at this stage. First, the judgment delivered in the Movement for Quality Government case is the starting point for this decision and for the judgment that will be rendered in the matter of the instant petitions, and there is no cause to revisit the arguments raised by some of the petitioners who seek to appeal findings and conclusions in matters already decided in the said judgment. Second, to date, the pace of addressing the apparatus intended to implement the Law, and the pace of allocating the necessary resources have been very far from what might have been expected under the circumstances. That is particularly so in view of the substantial period of time that has elapsed since the enacting of the Law in 2002’ (para. 9 of the decision of Justice E. Hayut from 8 September 2009).

 

In accordance with that interim order, we directed that we would revisit the petition in 18 months, at which point we would decide “whether the apparatus established by the Law, which have begun to operate, have the potential to bring about significant change” (para. 10 of the decision of Justice E. Hayut). On 30 January 2011, the hearing was held, and we were presented with the most up-to-date data as to the implementation of the Law. The data focused upon the change in the scope of military conscription, and upon the various service tracks for yeshiva students, upon the work of the National Civilian Service Directorate (hereinafter: the Directorate or the Civilian Service Directorate), and upon the number of volunteers serving in that framework, the number of yeshiva students choosing to avail themselves of the “decision year”, and what they did at the end of that year. We were also presented with two reports dealing with the implementation of the Law in practice. One, the report of the “Plesner Panel” led by MK Yohanan Plesner, which was appointed by the Knesset Foreign Affairs and Defense Committee, and was presented as part of the Knesset’s response to the petition. The second, the Report of the Inter-Ministerial Committee, headed by the Director General of the Prime Minister’s Office, which was appointed by the Government, and was presented as part of the Government’s response. These data, which form the basis for the proceedings in regard to the petitions before the Court, will be presented in detail below.

 

The course of events

 

5.           The relevant factual background of the arrangement for deferring the military service of full-time yeshiva students was presented in detail in earlier decisions of this Court, in the Rubinstein case and in the Movement for Quality Government case, and we will, therefore, only briefly address it. The arrangement began on 9 March 1948, when the Chief of the National Staff of the Haganah (the CNS) announced that “a decision has been made that yeshiva students, in accordance with approved lists, are exempt from military service”, and that “this decision is valid for the year 1948, and the problem will be reconsidered at the end of the year” (see: The Report of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (2000) (hereinafter: the Tal Commission), p. 32; and see HCJ 910/86 Ressler v. Minister of Defense [3], at p. 449 (hereinafter: the Ressler case)). With the establishment of the State, the first Defense Minister, David Ben Gurion, directed that the conscription of full-time yeshiva students be deferred. These were the difficult years that followed the Holocaust. In light of the destruction of the European yeshivas, there was a fear that the conscription of yeshiva students might threaten the closure of the yeshivas in Israel. In order to guarantee that “the flame of Torah not be extinguished”, it was decided that the arrangement would be granted annually to 400 yeshiva students who studied in a fixed, defined number of yeshivas. The arrangement significantly expanded over the years. The limit upon the number of yeshivas participating in the arrangement was cancelled, and the quota of students entitled to deferments gradually increased, until it was ultimately eliminated entirely. In addition, the scope of students entitled to a deferment of service was expanded, and the requirements for qualifying for a deferment were eased (see: Nomi Mey-Ami, The Conscription of Yeshiva Students to the IDF and the Law on Deferrals for Yeshiva Students for Whom Torah Is Their Calling (the “Tal Law”), research paper of the Knesset Research and Information Center, 28 February 2007 (in Hebrew). The research paper was appended to the Knesset’s response of 21 May 2008, and marked Res/3). Along with this, the reasons underlying the arrangement also changed. The original fear of the closure of the yeshivas that might result from the conscription of their students was replaced by the desire to allow the yeshiva students to continue their studies. This was accompanied by a growing perception “that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them” (the Rubinstein case [1], at p. 491).

6.           Over the years, there have been numerous attempts to attack the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability (see: HCJ 40/70 Becker v. Minister of Defense [4]; HCJ 448/81 Ressler v. Minister of Defense [5]; FH 2/82 Ressler v. Minister of Defense [6]; HCJ 179/82 Ressler v. Minister of Defense [7]). The stance of the Court changed in the Ressler case [3], in which the Court held that the petitioner had standing, and that his petition was justiciable. Nevertheless, on the merits, the Court held that granting deferments to yeshiva students was not ultra vires, and was not beyond the scope of the reasonable exercise of ministerial authority. That decision was premised upon the factual data presented in those proceedings, according to which, of the total conscription pool, 1,674 yeshiva students received deferments (approximately 5.4% of the total), and a total of 17,017 students were participating in the military deferment arrangement (ibid. [3], at p. 451). The Court held that the number of yeshiva students receiving deferments was of importance, and that “quantity makes a qualitative difference” Accordingly, it was held that there is a limit that a reasonable Defense Minister could not exceed. That line had not been crossed when the deferment question was addressed in the Ressler case (ibid. [3], at p. 505).

7.           In 1997, another petition was submitted in the matter of the deferment of yeshiva students, which presented data showing a significant increase in the number of yeshiva students whose military service had been deferred. The number of students receiving deferments, as of 1996, constituted some 7.4% of the annual conscription pool, with a total of 28,547 yeshiva students receiving deferments, and thereby, effectively being exempted from conscription (the Rubinstein case [1], at p. 493; and see: State Comptroller’s Annual Report (No. 48) (1998, and Accounts for the 1996 Fiscal Year), at p. 1004). Under the circumstances, it was held that the Minister of Defense could no longer decide the issue of deferment of military service, and that the question had become one that must be decided by the Knesset in primary legislation:

 

‘the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time yeshiva students receiving a military service deferment, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem’ (ibid. [1], at p. 530).

 

In order to allow the Minister of Defense and the Knesset to consider the issue and prepare for a change in the existing arrangement, the operative part of the judgment was suspended for one year from the handing down of the decision. Accordingly, and in order to construct an appropriate arrangement in regard to the induction of full-time yeshiva students into the IDF, the Tal Commission was appointed in August 1999, headed by former Supreme Court Justice T. E. Tal. The commission was asked to present its recommendations concerning “the proper statutory approach . . . by which the Minister of Defense will be authorized . . . to exempt men of military age . . . or defer their service . . . on the grounds that the ‘Torah is their calling’.” The commission was also asked to address the issue that “the said exemption or deferment could apply to an unlimited number of yeshiva students, in that, in general, there is no intention to prevent the yeshiva students from continuing their studies, all in accordance with the law” (see: the Tal Commission Report, p. 1).

8.           The Tal Commission presented its recommendations in April 2000. On the basis of those recommendations, the Draft Bill for the Military Service (Deferment of Service for Full-Time Yeshiva Students) Law (Temporary Order), 5760-2000, was published in the Official Gazette. The legislative process continued over the course of two years, and on 24 July 2002, the Knesset enacted the Deferment Law. The Law was enacted as a temporary order, and established that its extension would be reconsidered by the Knesset after five years. The Law provides that if certain conditions are met, among them a minimum number of hours of study and a prohibition upon working during study hours, the Minister of Defense may grant a one-year deferment to yeshiva students (ss. 2 and 3 of the Law). The main innovation of the Law, as opposed to the previous situation, was the introduction of alternative tracks to the deferment arrangement. The first track was that of the “decision year” (s. 5 of the Law). Under this arrangement, a yeshiva student whose military service had been deferred for four years and had reached the age of 22, could receive a further one-year deferment, even if he did not meet the normal conditions for deferment. During that year, the student could work without any limitations. Following the “decision year”, the yeshiva student could choose whether to return to the former track of yeshiva studies – while continuing to receive a deferment from military service – or whether to enlist for military service or civilian service. The possibility of opting for a decision year would be granted only once to each yeshiva student. Another track established by the Law was that of civilian service (s. 6 of the Law). The possibility of choosing this option was also granted only to those whose service had been deferred for four years and had reached the age of 22. Anyone who does not opt to take a decision year or volunteer for civilian service, and who meets the legal criteria, would continue to receive a deferment.

 

The Movement for Quality Government v. The Knesset case

 

9.           As noted, the question of the constitutionality of the Deferment Law was first addressed in the Movement for Quality Government case. All of the earlier petitions against the Law focused upon the argument that the Deferment Law infringed equality by discriminating between those members of society who performed military service and those members of society who were exempt from such service, without there being any relevant difference between the two groups, and without meeting the conditions of the limitation clause. The petitioners also argued that those members of society who served were required to serve in the army for longer periods, the risk to their lives and health increased, and the economic harm they incurred was greater. The factual data presented to the Court showed that in 2003, the number of deferments stood at 38,449; in 2005, the number stood at 41,450, and by 2006, the number of deferments had grown to 45,639 (ibid. [2], at pp. 665-667). Indeed, in its response, the State admitted that the implementation of the Deferment Law was not satisfactory, and that significant parts of the Law had not been implemented. The State also agreed that “there is a need for an immediate change of the existing situation” (ibid. [2], at p. 666, in the letter of the Minister of Justice to the Prime Minister of 18 July 2005, which was appended to the State’s response). The Prime Minister directed that a series of steps be adopted to implement the Law, and in particular, to implement the civilian service track, which had not been implemented at all as of the day of the hearing of the petition (loc. cit.).

10.         After reviewing the factual data and the arguments of the parties, we delivered our decision in which the majority of the Court held that the Deferment Law violated human dignity. The Court, per President Barak, held that the primary right at the core of the dispute was that of equality, and it is infringed by the blanket deferment that discriminates, in the absence of any relevant difference, between those members of society who serve and those whose service is deferred (ibid. [2], at pp. 677-679). It was, of course, held that not every infringement of equality constitutes a violation of human dignity. However, in accordance with the construction given to human dignity under the centrist model adopted in the decision, it was held that an infringement of equality that touches upon the fundamental values underlying human dignity constitutes a violation of dignity, and that the infringement resulting from the Deferment Law constituted such a violation. Discrimination in regard to the freedom of choice given a person in the course of prolonged service, that exacts a clear personal and economic cost, and that often involves risk to life and limb – is discrimination in regard to life itself. Such discrimination, the Court held, is the most severe, and its violation of a person’s dignity as a free, autonomous being, is beyond question (ibid. [2], at pp. 689-690).

              Having found that the Deferment Law violates equality as a component of human dignity, the Court examined whether the Law’s infringement of dignity was lawful under the conditions of the limitation clause. In other words, was the infringement done by, or in accordance with a law befitting the values of the State of Israel; was the law enacted for a proper purpose, and is the violation of rights no greater than required. As noted, in the framework of that examination, the Court found that the Law served four, primary objectives: to provide a statutory basis for the arrangement, to promote equal distribution of the security burden, in the sense that more men from the hareidi community would ultimately serve in the army, or at least perform civilian service, to encourage the hareidi community to participate in the workforce, and to resolve the problems in the existing deferment arrangement for yeshiva students, gradually, carefully and on the basis of broad consent rather than coercion (which would be ineffective) in regard to conscription. These four combined and interrelated objectives endowed the Law with a proper purpose. That being so, the examination focused upon the issue of proportionality. Based on the first subtest of proportionality, which examines whether or not there is a rational connection between a law’s purpose and the measures adopted for its realization, we found that the infringement caused by the Law is not proportionate. That finding was based upon the data that had been presented before the Court, which showed that while the number of deferments grew steadily over the years, and comprised 45,639 men as of the end of 2006, the alternative tracks were barely put into effect (ibid. [2], at p. 711). Less than 3% of those who received deferments opted for the decision year, and only 9% of those who completed the decision year chose to enlist. Nearly all of the others returned to the “Torah is their calling” track, or were exempted from service. They were not integrated into Israeli society or into the workforce. As for the civilian service alternative, a small number of those deferred showed any interest in pursuing it, and even three years after the Law’s enactment, the State has yet to adopt regulations and create frameworks to facilitate such service (loc. cit.). In view of these troubling findings, we stated that if we were to decide the petitions on the basis of the situation presented to us, we would have to declare the Law void due to a lack of proportionality. We further held that in the absence of a rational connection between the means and the objective, the application of the other two subtests becomes entirely theoretical.

11.         Nevertheless, we were of the opinion that, inasmuch as the Deferment Law was enacted as a temporary order, it would be appropriate to wait until the conclusion of the five-year period of its operation, before making a final determination on the constitutionality of the Law. That time period was also needed in order to test the respondents’ argument that the fault lie not with the Law itself, but rather with the arrangements made for its implementation. The Court ruled that the answer to the question could be given only after the law had been implemented for some period of time, at which point it would be possible to examine how the tracks that implemented its objectives had progressed, and the effect of the Law upon the scope of deferments granted to yeshiva students. We, therefore, decided to wait and see if the Law would bring about the desired social change, and held that “if change is not achieved, there is a serious fear that the law will become unconstitutional. There will then be no alternative but to reconsider all of its arrangements, in terms of both their social and legal aspects” (ibid. [2], at p. 722 per Barak, P.).

12.         Six years have passed since handing down the decision in the Movement for Quality Government case. Once again we face the question of the proportionality of the Law as demonstrated by its implementation over the last few years. As we held in our decision of 9 September 2009, this Court’s decision in the Movement for Quality Government case, according to which the Law is, in the words of Justice A. Procaccia, contaminated by a “virus” of unconstitutionality (ibid. [2], at p. 795), will serve as the starting point for our decision on the current petitions. The question is whether the results of realizing the Law demonstrate that its implementation can cure the “virus”, or whether there is no avoiding the conclusion that we are concerned with a law that is not appropriate to its objectives.

 

The petitions before the Court

 

13.         As earlier stated, the Deferment Law was originally enacted for a five-year period. Under s. 16 (b) of the Law, the Knesset may extend the force of Law for additional periods, not to exceed five years each. On 31 July 2007, about half a year before the Law’s expiry, the Knesset held a plenum debate in which it decided that the Foreign Affairs and Defense Committee would submit its recommendation as to the extension of the Law. The Foreign Affairs and Defense Committee heard a variety of experts who examined various aspects of the Law, and at the end of its deliberations, the Committee recommended that the Knesset extend the Law. The Committee’s recommendation was primarily premised upon the introduction of a civilian national service arrangement in 2008, and the expectation of a resultant change in the Law’s implementation. The Knesset received the recommendation on 18 July 2007, and voted by a majority of 56 in favor, with 9 opposed, and 2 abstaining, to extend the force of the Law for an additional five years, until 1 August 2012. The petitions before the Court were submitted in response to that extension.

 

Arguments of the petitioners

 

14.         Five petitions were submitted against the Deferment Law. Some of the petitioners have been involved in this legal battle for years. Many of the arguments are common to a number of petitioners, and for the sake of simplicity, they will be presented together. The arguments are primarily aimed at the Law’s arrangements and at its extension for an additional five years. The primary argument is that, in practice, there has been no observable change in the implementation of the Law. The petitioners ask that the Court determine that the Law is unconstitutional, or alternatively, some of the petitioners ask that the Court establish standards and criteria for assessing its effectiveness.

              The petitioners argue that the decision to extend the Law for an additional five years exacerbates the discrimination and the inequality in bearing the security burden and in risk of life. According to them, the Legislature and the Executive were given ample opportunity to realize the objectives of the Law, and the actual implementation data shows that, in practice, yeshiva students are granted a blanket deferment that, over the years, becomes an exemption from military service. The petitioners argue that the number of those enlisting or opting for civilian service is but a “drop in the ocean” in comparison to the growing number of yeshiva students enjoying deferments or complete exemptions, and their number relative to the annual conscription pool is constantly on the rise. It is further argued that the data show that the primary area of growth is in regard to the number of those opting for civilian service, which shows that the Law does not at all encourage enlistment into military service, and that the data prove that the decision year does not influence the choice of whether to enlist or remain in yeshiva.

              The petitioners further argue that the fact that the Law does not establish any limit upon the number of exemptions from service is sufficient to show that the question of proportionality was not considered. In order to achieve the Law’s objective, they argue, it was possible to adopt other means less harmful to equality, such as establishing quotas, goals, limitations, and criteria that would grant exemptions on a case-by-case basis, and that would take into account the increasing number of applications for exemption from military service. Additionally, it is argued that the blanket exemption granted to yeshiva students demonstrates the absence of an appropriate relationship between the advantages to be gained by the Law and the violation of constitutional rights, given that the Legislature granted absolute freedom of choice to yeshiva students, while imposing long years of demanding obligatory service upon other youngsters.

15.         Some of the petitioners add that the State measures the success of the Law exclusively by economic criteria that examine hareidi integration into the workforce. In their view, this is but a byproduct of the main issue before us, and therefore, those criteria should not be addressed by the Court. In any event, the petitioners argue that the numbers not only show that the number of exemptions significantly increased while the number of enlistees did not adequately increase, but also that the economic objectives of the Law were not achieved.

 

Arguments of the respondents

 

16.         In accordance with the procedural framework established for this case in the Movement for Quality Government case and the interim decision we issued on 8 September 2009, the respondents’ pleadings – the Knesset, and the Minister of Defense and Attorney general – focused upon the progression of events following the extension of the Law, and upon data regarding its actual implementation. That data indicates, so it is argued, that the Deferment Law meets the proportionality test.

17.         Respondent 1, the Knesset (hereinafter: the Knesset), submitted three primary responses (pleadings of 21 May 2008; amended pleadings of 4 January 2009; supplemental pleadings of 19 January 2011). In all three sets of pleadings, the Knesset argued that the Deferment Law should not be declared void. In its first pleadings, of 21 May 2008, it argued that the petitions should be denied because the civilian service apparatus, which is one of the fundamental pillars of the deferment arrangement, had only begun to operate a few months prior to the extension of the Law, and its operation should be assessed over time. The response presented a detailed report of the deliberations of the Foreign Affairs and Defense Committee, which before recommending that the Knesset extend the Law, decided to tighten its supervision over the Law’s implementation. According to the argument then raised, although the data concerning the Law’s implementation shows that not enough had been done to advance it, the Law should not be deemed as suffering from a “genetic flaw”.

              On 19 January 2011, the Knesset submitted an updated response. These supplemental pleadings were accompanied by the Interim Report of the “Plesner Panel” (hereinafter; the Interim Report or the Plesner Report), which had been appointed by the Foreign Affairs and Defense Committee as part of its attempt to tighten its supervision over the implementation of the Deferment Law. The panel was led by MK Yohanan Plesner, and its members were Knesset Members Arieh Eldad, Moshe Gafni, Nissim Zeev, Israel Hasson, Eitan Cabel, and Moshe (Mutz) Matalon. The panel held a large number of meetings, fact-finding missions, and meetings with various elements responsible for implementing the Law. The Interim Report concluded that the implementation of the Law had failed. The Interim Report notes that the data revealed low rates of enlistment and participation in civilian service; an insufficient number of appropriate tracks for military service by yeshiva students; a need to establish goals for realizing the Law, and that consideration should be given to establishing quotas for entering the deferment arrangement. Despite the conclusion that the implementation of the Law had failed, the Plesner Panel was of the opinion that “the Law should not be repealed, but rather policy and legislative changes should be made to enable adapting the Law’s arrangements to the positive developments in hareidi society, and the lessons that had been learned thus far in regard to the conditions for the induction of hareidi men into the IDF” (Interim Report, p. 11). The Knesset’s attorney noted that, following the submission of the Interim Report (which was signed by five of the seven members of the Panel), it was discussed by the Foreign Affairs and Defense Committee (but was not brought for a vote). At the conclusion of the session, the committee chairman, MK Shaul Mofaz, expressed his support for the principles outlined in the Interim Report. Therefore, in light of the Report’s findings, and following the debates in the Foreign Affairs and Defense Committee and in the Knesset plenum, the current position of the Knesset was summarized as follows:

 

‘In view of the positive developments presented in the Interim Report of the Plesner Panel, in view of the complexity of the profound social change that the Law entails, and the care and restraint appropriate to a sensitive, controversial issue in Israeli society, the Law should not be declared void and unconstitutional. However, the Knesset is of the opinion that the government must act to remove the impediments, establish policy, clear goals and courses of action for attaining them, and significantly intensify the efforts to implement the Law. In addition, the Knesset intends to employ the tools at its disposal in order to continue to closely follow the manner in which the Law is implemented . . .’ (supplemental pleadings of the Knesset, dated 19 January 2011, p. 6).

 

18.         Respondents 2-4 (the Government of Israel, the Minister of Defense, and the Attorney General – hereinafter: the Government) also submitted several sets of pleadings to the Court. In its pleadings, the Government described the various tracks for implementing the Deferment Law, and appended up-to-date figures regarding the number opting for each of the tracks. The Government’s primary argument is that the touchstone for evaluating the implementation of the Deferment Law should not be result-based – viz., an evaluation of the number of persons in military or civilian national service at any given time – but rather a process-based approach that examines the gradual change in the implementation of the Law. According to the Government, in view of the complexity of the required social change, what must be examined is the process for its implementation rather than the quantitative results at the present moment. It is argued that the process-based criterion comprises a number of sub-criteria, the examination of which will aid in determining whether “the State has met its duty of due diligence” (amended pleadings, dated 24 January 2011, p. 12). The Government recommended four criteria: (a) long-term commitment by means of establishing an operational structure, together with quantitative interim goals; (b) gradual (and continued) growth of the organizational infrastructure by which the Government intends to institute egalitarian conscription; (c) appropriateness of the allocated means to the potential pace of change, given the constraints deriving from the social complexity and the degree of social ripeness for change; (d) maintaining supervision and control over the gradual change, including the defining of interim goals to serve as reference points for supervision. It is argued that examining the implementation of the components of the process criteria will lead to the conclusion that the Government was diligent in creating a broad operational infrastructure that led to an increase in the number of persons serving in the various tracks. Moreover, the Government referred us to its last decision, from 9 January 2011, that established a “five-year plan” with quantitative goals for the number of persons to be serving by the year 2015. The decision also established that an Inter-Ministerial Committee, headed by the Governor General of the Prime Minister’s Office, which had submitted a report prior to the said decision, would maintain continuous oversight of the implementation of the decision, and present a report by 1 July 2012.

              In addition to these arguments, the Government is of the opinion that it is incorrect to examine the numerical data deriving from the general population of those receiving deferments, but rather the examination should be made in regard to the segment of the young population composed, in general, of young married men who do not yet have children. According to this line of reasoning, the group of older yeshiva students have families, and there is considerable doubt as to whether, at this point in their lives, they would leave their studies in order to enlist for military or national service. Therefore, the social change that the Deferment Law is intended to institute is not relevant to that group. The Government argues that when the change is examined in relation to the younger population group that joins the deferment arrangement each year, the numbers over the last years reveal a significant change. Thus, for example, the Government notes that the number of new enlistees for military and civilian service from the hareidi population shows nearly a six-fold increase over the last four years. Similarly, the Government notes that over the last four months of 2010, some 120 men opted for civilian service each month. The Government maintains that the increase testifies “that this service track, and its underlying legitimacy, are growing, and are expected to grow with the increase in opportunities for service in this track” (supplementary pleadings of respondents 2-4, dated 24 January 2011, p. 7). According to the Government, the increase in the number of those joining the various service tracks testifies to the fact that the existing apparatus is succeeding to bring about an increase in the number of people enlisting, and that the present increase “is an expression of the maximum effort possible at this point in time, in light of the constraints deriving from the pace of social change” (ibid., at p. 9).

 

Review

 

19.         It is unnecessary to emphasize the importance of the question before the Court. Over the years, the issue of the conscription and exemption of yeshiva students has been examined by the Court with cautious restraint, while we carefully observed the social processes attendant to implementing the complex goals intrinsic to the Deferment Law. Like all the public bodies that have addressed the subject of the conscription of yeshiva students, we were constantly aware of the need to achieve greater equality in sharing the burden of military service, and of the importance of integrating hareidi society into the workforce, as well as of the need to achieve all this without coercion, while reinforcing the social contract grounding the attaining of these objectives. As we stated in our decision of 8 September 2009, our holdings in the Movement for Quality Government case constitute the starting point for our decision in this case. That means that having recognized the proper objectives of the Law under review, what remains to be examined is whether the violation of the right to equality is consistent with the proportionality requirement of the limitation clause. The current examination is, therefore, being conducted within the parameters set out in that judgment.

20.         We now are now confronted with the first question that must be decided under the proportionality test: Do the means adopted by the law actually serve to realize its objectives? The judgment in the Movement for Quality Government case was delivered some three years after the Law’s enactment. Several more years have past since then. We have reached the “finish line” (see the interim decision of 8 September 2009, per A. Procaccia, J.). Much experience has accumulated. The primary apparatus for implementing the Law have been put in place. Several conscription cycles have concluded. We can now perform a quantitative examination comparing the number of enlistees in the various service tracks to the number of those opting for the deferment arrangement each year, and the number of those who choose to remain in it until obtaining a full exemption from military service. The numerical data now before us suffice to inform an opinion as to whether the Law’s objectives have been realized, or at least, if some trend can be discerned in the implementation of the Law that changes the balance identified in the Movement for Quality Government case, so that we might decide that the Law passes the proportionality test.

21.         The proportionality test established by the limitation clause requires that the violation of the protected right by the Law be “to an extent no greater than is required”. The proportionality requirement recognizes that it is not sufficient that a law befit the values of the State of Israel, or that it be enacted for a proper purpose. The means adopted by the Legislature to realize that purpose must also be examined. That examination has been construed by the case law as comprising three subtests: the rational connection test – which examines whether the means chosen are appropriate to realizing the purpose; the least harmful means test – which examines whether the means chosen for realizing the purpose of the law is the one that will cause the least harm to the constitutional right, from among the possible means; and lastly, the proportionality test stricto sensu – which requires that there be a reasonable relationship between the infringement of the constitutional right and the advantage gained by that infringement (on the proportionality test, see: HCJ 4769/95 Menachem v. Minister of Transportation [8], at pp. 279-280 (hereinafter: the Menachem case); HCJ 1661/05 Hof Azza Regional Council v. The Knesset [9], at. p. 546 (hereinafter: the Hof Azza case); HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance [10], at para. 46 of my opinion (hereinafter: the Prison Privatization case). We will begin with the first subtest.

 

The first subtest: The rational connection test

 

22.         According to the rational connection test, the means adopted by the Law must be appropriate to the Law’s intended objective, such that they have the potential of realizing it (see, inter alia: HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defense [11], para. 29, per A. Barak, P.; HCJ 3648/97 Stemka v. Minister of the Interior [12], at. p. 776 (hereinafter: the Stemka case); HCJ 5016/96 Horev v. Minister of Transportation [13], at p. 53 (hereinafter: the Horev case); the Hof Azza case [9], at p. 550). The proportionality test examines the question of whether “the means chosen is relevant to the realization of the purpose, in the sense that the probability of attaining that purpose increased with the enactment of the law. Therefore, if implementing the means does not have the potential of realizing the purpose of the law, then the use of that means is disproportionate” (Aharon Barak, Proportionality: Constitutional Rights and their Limitations, p. 374 (2010) (in Hebrew) (hereinafter: Proportionality). In the Movement for Quality Government case, we held that the decision as to the rational connection between the means and the purpose is not merely a theoretical question. Rather, in the circumstances of the case at hand, we sought to employ a practical test. Can it be said, nine years following the enactment of the Deferment Law, that its means are capable of realizing its purposes?

23.         In answering the petitions, the Respondents provided copious data concerning the implementation of the law. The data details the extent of the Law’s implementation in accordance with the three tracks that it established: military service, civilian service, and the decision year. These are accompanied by a fourth track, which, practically speaking, is also established by the Law, that of deferment. The data, which will be presented more fully below, paints a complex picture. On the one hand, the number of those entering military service or choosing civilian service is discernibly on the rise. Military service options were broadened and adapted to accommodate hareidi soldiers. The Civilian Service Administration was also created, albeit with considerable delay. On the other hand, despite the growth in the number of hareidi men serving in the army and performing civilian service, the numbers are not high in absolute terms. The total number of those actually entering military or civilian service in 2010 – which is the largest number since the enactment of the Deferment Law – is significantly lower than the number of those who chose the deferment arrangement that year. In practice, the data demonstrate that more hareidi youths choose deferment of service than opt for military or civilian service. It should be pointed out that in the interim since the submission of the data, the ratio between those who choose the deferment arrangement and those who enter military or civilian service has remained unchanged. This would appear to be the trend according to published reports of the recent meetings of the Foreign Affairs and Defense Committee of the Knesset.

              In order to determine whether, ultimately, the Deferment Law meets the rational connection test, we will review the data submitted to us in regard to the implementation of the Law. As stated, the data summarize the situation up to the beginning of 2011. We will first analyze the data in regard to each of the service tracks, and then consider whether or not the data, taken together, lead to the conclusion that the Law passes the proportionality test.

 

Military service

 

24.         From the Government’s response to the petitions before us, it appears that there are currently two unique service options for the hareidi public. The first track is the hareidi Nahal battalion “Netzach Yehudah”, in which, as a rule, one completes a regular, 36 month tour of duty. This track is not new. It existed before the Deferment Law was enacted, but it was utilized in a relatively limited way. Those who serve in this track are generally young hareidi men who have dropped out of yeshiva. Along with this track, the Air Force initiated two tracks aimed exclusively at the hareidi community (“Shahar Kahol” and “Shahar Ba’ofek”). Those who enlist in these tracks undergo initial training in an military preparatory program. Following their enlistment, and after completing basic training, they undergo additional training in technical fields or in computer sciences. They then enter the Air Force’s technical service, or its technology units. In the years 2009-2010, these Shahar tracks were expanded, and in addition to the air force tracks, there are now additional tracks in the Intelligence Corps, C4I Corps, Navy, Technology Corps, Manpower Corps, and the Homefront Command. It should be noted that the length of service in the various tracks is not uniform. Whereas those serving in the hareidi Nahal unit normally complete a full 36 month tour, the length of service in the other tracks varies from 16 to 24 months, depending on the length of the training program and the soldier’s family status.

25.         In its last response, the Government informed the Court of a significant change of policy in regard to army conscription directives. This change was anounced in Government Decision no. 2698 of January 2011. In its decision, the Government amended the army conscription directives in accordance with a recommendation of the Inter-Ministerial Committee headed my the Director General of the Prime Minister’s Office, which was asked to make “recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget” (the committee was appointed in Government Decision no. 2000 of 15 July 2010). Prior to the change, the conscription directives provided that married hareidi men with children, who were aged 22 and over, who requested to substitute civilian service for their military service obligation would, as a rule, be granted their request, whereas such requests from hareidi men who did not have children would be granted only from the age of 26 and older. The new directives provide that single hareidi men, and those who are married but without children, from the age of 22 and up, can perform civilian service in the civilian security track (“Security National Service”, such as service in the Police, Prison Service, Magen David Adom, and the Fire Department). It was further decided, on a one-time basis, that all those who had been granted deferments and who had three children or more (regardless of age) would be referred to the reserves, and thus would be exempted, in practice, from active duty and from the alternatives provided by the Law.

              The Government also adopted the committee’s conclusions in regard to setting goals for hareidi service. According to the goals established, 2,400 hareidi men would be inducted into service, of them, half (1,200) would be inducted into the army, and half (1,200) into civilian service. The planned increase would be 600 additional inductees in each subsequent year, such that 4,800 hareidi men would be inducted into service in the year 2015, of them, 2,400 would be inducted into the army, and 2,400 into civilian service – a number that would represent some 60% of the relevant age group. The Inter-Ministerial Committee also recommended expanding the choice of military service frameworks available to hareidi men, and the addition of three additional tracks: a hareidi hesder yeshiva track, combining a period of study with active military service; a technological education track (together with the Ministry of Industry and Trade and the Ministry of Education), intended primarily for hareidi youth who drop out of yeshiva, and which would lead to full military service in the technology field; and an abbreviated service track for hareidi men over the age of 26, after which they would be referred to the reserves. According to the Inter-Ministerial Committee, the last recommendation, concerning abbreviated service, already appeared in the Tal Commission Report, and its implementation would not require legislative action (Report of the Inter-Ministerial Committee, p. 14).

26.         As stated, the recommendations of the Inter-Ministerial Committee were adopted by the Government’s decision of 9 January 2011. In addition to those conclusions, it was further decided that hareidi men over the age of 28 would also be referred to the reserves without any special training, in view of the army’s needs and their limited ability to perform significant service. As a result of the Government’s decision, the table of induction directives and service tracks for those who choose to leave the deferment arrangement or not enter it from the outset, is as shown below. It should be noted that implementation of the directives presented in the table, which was appended as an annex to the Government’s decision of 9 January 2011, commenced on 10 march 2011:

 

Age	Type of Service
18-21	Regular military service (36 months), or military service combined with study in a hesder yeshiva
22-25 without children	Referral to security national service		Military service (16 months or 24 months for tracks requiring intensive training)
22-25 with at least one child	Referral to civilian service		Military service (16 months or 24 months for tracks requiring intensive training)
26-27	Referral to civilian service	Military service (16 months or 24 months for tracks requiring intensive training)		Abbreviated military service (3 months)
28-34	Referral to reserves
35+	Exemption from military service

 

 

27.         As for the numerical data, the Government’s pleadings show that, as of May 2008, 39 soldiers served in the “Shahar Kahol” track, and 28 served in the “Shahar Ba’ofek” track. In its response dated 30 December 2008, the Government reported that “several hundred” hareidi soldiers were serving in the hareidi Nahal unit, and some 150 soldiers were serving in the Shahar Kahol and Shahar Ba’ofek tracks (the Government did not specify in its response how many of those were new recruits that year). In its most up-to-date response, from 24 January 2011, it reported that the number of hareidi men serving in the armed forces in 2009 was 1,357, of whom 729 were new recruits inducted that year into the various tracks (the hareidi Nahal unit and the Shahar tracks); 2,048 hareidi men served in the armed forces in 2010, of whom 898 were new recruits to the hareidi Nahal track and the Shahar tracks (p. 21 of the Government’s amended pleadings of 24 January 2011).

28.         The Government argued that the data should be analyzed on the basis of the annual conscription pool, rather than on the basis of the total number of deferments, which stood at 61,877 at the time of the submission of the response. According to the argument, that total number represents the “desert generation”, and comprises men who, it is claimed, cannot realistically be inducted into military or civilian service. Reference to the annual conscription pool rather than the total number of deferments, it is argued, focuses upon the younger generation, while removing from the equation all of those members of the hareidi community who, it may be assumed, will not be called up for military service by reason of age or family status.

29.         Even if we were to accept the Government’s argument that we should focus upon the younger generation in regard to rates of enlistment for military or civilian service, the argument that those rates should be evaluated with reference to the current conscription pool is, nevertheless, very problematic. In view of the fact that the Law makes it possible to waive one’s deferment and enlist into the armed forces or join the civilian service at any stage and at any age, those enlisting or joining the civilian service in any year are not members of that same annual conscription pool, but rather belong to several different annual groups. Thus, aggregating them into a single group, and examining them in reference to the number of deferments in the conscription pool of a single year, as the Government urges, does not yield a result that accurately reflects the actual situation. The Government, itself, did not provide data that would make such an examination possible. That being the case, it would be more accurate to examine the number of those entering military or civilian service against the background of the total number of deferments, which represents the general group from which those entering the various tracks are drawn. This situation is a product of the arrangements established by the Law itself, which creates a situation in which those entering the armed forces or civilian service do not represent a uniform age group, or in other words, are not members of the same annual conscription pool. That is, of course, as opposed to the remainder of the candidates for military service, the vast majority of whom are members of the same age group.

              Moreover, the “desert generation” argument, as skewed as it may sound, is incomprehensible in view of the relevant timeframe. Most of the hareidi members of the current deferment group are young people who entered the deferment arrangement after the Deferment Law was enacted, some ten years ago. At best, the “desert generation” argument might be valid in regard to those who entered the arrangement before the enactment of the Law, and who made their plans in accordance with the prior legal situation. But after the enactment of the Law, one cannot rely on the prior situation. That is particularly so in view of the fact that we are not speaking of a small group. As of the date of the submission of the data, the deferment group comprised 61,877 men. Of them, 22,000 were “free” for civilian service (as established in the Report of the Inter-Ministerial Committee, p. 29). The significance of the “desert generation” argument is a surrender in advance of any hope of enlisting that group for military or civilian service.

30.         As stated, under the Government’s approach, the data regarding the number of those entering military service should be calculated in regard to the last annual conscription group. As of April 2010, a total of 7,700 eighteen year olds registered with the Ministry of Defense as belonging to that annual conscription group and are classified as “deferred”. The Government argues that of that number (7,700), only 5,400 are actually potential candidates for enlistment to the Shahar tracks and civilian service. It is estimated that of the 7,700 who were granted deferments, 1,000 are not hareidi, but rather young religious men in the hesder yeshiva track, and will thus be conscripted for military service, and about 900 others are expected to be exempted for medical and other reasons up to the age of 22 (it should be noted that the Inter-Ministerial Committee put the number of expected exemptions for medical and other reasons at 600). We are thus left with a potential hareidi conscription group of 5,800. Of those, some 400 are expected to enlist in the hareidi Nahal unit (most of whom, as noted, are hareidi youths who dropped out of school and will enlist at the age of 18). It is, therefore, argued that the percentage of those entering military and civilian service should be calculated in reference to that group of 5,400.

31.         As noted, the approach is problematic, and calculating in that manner yields inaccurate results. But even if, for the sake of argument, we were to accept the Government’s claim, and assume the existence of a “virtual” number of 5,400 as representing the hareidi members of some conscription group, the factual situation would remain far from satisfying. Assuming that 400 is, more or less, a given in terms of the number enlisting for full military service in the hareidi Nahal battalion, inasmuch as it relates to hareidi youths who have dropped out, and are no longer studying in yeshiva, then the primary recruitment efforts, even according to the Government’s approach as stated in its response, would be directed toward enlistment of hareidi candidates to the Shahar framework. In fact, the number of hareidi recruits entering the Shahar tracks in 2009 was 382, which represents 7% of the “virtual” conscription group. In 2010, the situation improved somewhat, but the percentage remained very low, with only some 10% (530 hareidi recruits) enlisting in the Shahar tracks that year.

              The figures become more precise – and, unfortunately, more problematic – when the evaluation is made in reference to the total number of deferments. Such an analysis reveals that the number of recruits in 2010 (a total of 898 hareidi recruits to the hareidi Nahal battalion and Shahar frameworks) constituted 1.45% of the total number of deferments. The number of recruits to the Shahar tracks alone constitutes 0.8%, and the total number serving in the armed forces in 2010 (2,048 hareidi soldiers) constitutes only 3.3% of the total number of deferments. These are minute numbers. What they signify is that, despite the rise in the number of those who enlist for military or civilian service, no noteworthy change can be discerned in hareidi society, and no significant change can be seen in its integration into the various service tracks.

32.         Moreover, in view of the new conscription directives that entered into force in March 2011, it is highly questionable whether the current increase in the annual number of recruits (even if, as noted, it is a limited trend in absolute numbers) will continue in the coming years. As we explained above, the primary change in the new conscription directives is that, from the age of 22, a deferred person will be able to choose between military service and civilian security service, even if he is not married or is married but without children. That decision changed a prior governmental decision that decreed that unmarried men or those who were married but did not have children would be referred to civilian service only from the age of 26. The significance of the original decision was that it granted preference to military service over civilian service. That distinction no longer exists. In effect, a person with a deferment now enjoys what amounts to a nearly absolute prerogative to choose the track he prefers – deferment and entering the “Torah is their calling” arrangement, enlistment in the armed forces, or opting for civilian service. The conscription directives do not set out any criteria by which the Minister of Defense is to approve or reject a request to opt for civilian service as opposed to military service, and the Law, too, provides no such criteria. It would appear that, in effect, in its last decision, the Government directed the Minister of Defense to approve every request to enlist in civilian service, without regard for military/medical profile or age of the requester. It should be noted in this regard that s. 13 of the Deferment Law, titled “Execution and Regulations”, states that the Minister of Defense may formulate regulations for the execution of the Law in a number of areas, among them, as stated in ss. (3): “The treatment of requests to perform civilian service under s. 6 (e), and the criteria for their approval”. The Minister of Defense exercised this authority by promulgating regulations for the implementation of the Law (Regulations for the Deferment of Service for Yeshiva Students for Whom Torah Is Their Calling, 5765-2005), but they do not make any reference to civilian service, and treat only of the deferment of service and the decision year. It thus appears that there are currently no criteria for approving a request to perform civilian service by a person holding a deferment, and in practice, it would appear that the Law is implemented in a manner that tends to grant preference to civilian service.

33.         Moreover, the new conscription directives set out an additional track for abbreviated military service of only 3 months for deferred men between the ages of 26 and 27 (older men, 28 and up, are referred directly to the reserves, with no training). The abbreviated service will comprise one month of basic training and two months of further preparation for assignment to reserve units. As explained in the Report of the Inter-Ministerial Committee, and from the explanatory note to the Government’s decision of 9 January 2011, the Government views abbreviated service as “an important alternative for the service of hareidi men” (the explanatory notes to the Government’s decision were appended to the Government’s amended pleadings of 24 January 2011, and marked Res/3(b)), and “a situation in which a large number of hareidi men are called up annually for active reserve duty in uniform, and make a significant contribution to the general public in times of emergency, [is] in the opinion of the committee, a situation that can bring about significant change both in the integration of the hareidi sector into the general public, and in the legitimacy ascribed by the hareidi sector to military service in general” (ibid., p. 9 of the explanatory notes). As a consequence of adding this alternative, a man of 26, who chooses to relinquish his deferment, is presented with three choices: “regular” induction into the army (in which case he will, in any case, complete a reduced tour of duty of 16 or 24 months); civilian service for one year; or three months of abbreviated service. It would hardly be superfluous to add that three months of military service, even if followed by reserve duty, is not equivalent to real military service (even if, in most cases, it may last for only 16 months). Moreover, the abbreviated service track was recommended by the Tal Commission, but was rejected in the course of enacting the Deferment Law. Adding it now, as part of the conscription directives, smacks of circumventing the Knesset’s decision in the matter.

34.         From the Report of the Inter-Ministerial Committee, we learn that the new conscription directives were intended to bring about uniformity in the conscription directives by basing the conscription tracks on a person’s age rather than on his military profile, which is the accepted practice in regard to other conscripts who are not hareidi, and as was the practice in regard to hareidi deferments prior to the Government’s decision of 9 January 2011. The purpose, as presented in the Report of the Inter-Ministerial Committee, was to introduce greater certainty in regard to the service tracks, which currently “are not decided [ . . . ] in accordance with his medical profile, which is a criterion unknown to the hareidi youth” (Report of the Inter-Ministerial Committee, p. 25). The new directives do, indeed, yield greater certainty. However, certainty is not one of the purposes of the Law, and with this increased certainty comes a real fear that the new directives may serve as a significant disincentive to full military service (in the hareidi Nahal battalion), or partial service (in the various Shahar tracks). Their direct result is that a young hareidi man who, at age 18, opts for the “Torah is their vocation” arrangement, and who remains in that arrangement until age 22, is effectively not required to perform military service. If he chooses to leave the deferment arrangement and enlist in the army at the age of 22, he will be inducted for an abbreviated tour of duty of 16 or 24 months. Alternatively, he has the possibility of performing only one year of civilian service instead of military service. If that young man is single, or married without children, his civilian service will be security related, e.g., civilian service in the Police, Fire Department, or Magen David Adom. The choice among the tracks is that of the young man with the deferment, and it does not depend on his military profile or any other criterion. The significance is the transfer of the choice to those holding deferments: if they wish, they can enter the deferment arrangement; if they wish, they can leave it. If they choose to end their deferment, the choice is theirs whether to enlist in the army or opt for civilian service – which by definition, is a one-year abbreviated service that substitutes for full military service. It would seem superfluous to point out that non-hareidi youth are not presented with similar options.

35.         The rationale for the conscription directives can be gleaned from the Report of the Inter-Ministerial Committee. According to the committee, “These actions [changing the conscription directives – D.B.] will not significantly harm the motivation of hareidi men to enlist in the offered tracks, but they will make it possible to accelerate the integration of some of the hareidi men into the workforce, and in this manner, increase equality in sharing the economic burden” (Report of the Inter-Ministerial Committee, p. 6 (emphasis original)). In other words, the primary motivation for the decision to refer young men from the age of 25 to civilian service and to add an abbreviated military service track was economic. The economic consideration, and the desire to enable integration of members of hareidi society into the workforce were also the reasons for appointing the Inter-Ministerial Committee. Thus, the Government’s decision to create the committee (Decision 2000 of 16 July 2010) expressly states that the committee “will make recommendations in regard to the conscription directives, bearing in mind, inter alia, the national need to integrate the hareidi sector into the workforce, and the budgetary burden of family payments upon the defense budget”. It is clear from this decision that the Government views conscription of members of the hareidi community into military service as presenting a budgetary burden, and therefore, as something that should be limited. Indeed, in certain situations, the “budgetary burden” involved in drafting hareidi men into the army can be twice the “budgetary burden” presented by civilian service. Lightening the burden can be achieved by expanding civilian service and limiting conscription for military service – as would appear to have been done in the directive to the Minister of Defense to refer deferred men to civilian service from the age of 22, and by the creation of the abbreviated service track for deferred men aged 26-27.

36.         The same economic rationale grounded the Government’s decision, made in accordance with the Inter-Ministerial Committee’s recommendation, to make a one-time referral of all those who had been granted deferments and had three children or more to the reserves. The Report of the Inter-Ministerial Committee stated that this step was adopted “because it is expected that it will be some time before appropriate service tracks will be established for that population, and there is a desire to prevent unnecessary delay of the ability of this group to integrate into the workforce” (loc. cit.). The report of the Inter-Ministerial Committee, the Government Decision, and the Government’s pleadings give no indication of the number of men who have now been referred to the reserve pool, and in effect, were granted an exemption from military or civilian service. However, it would appear that a significant group of men with deferments benefitted from this one-time decision.

              As noted, the Inter-Ministerial Committee was of the opinion that changes in the conscription directives would not negatively affect the willingness of members of the hareidi community to enlist for military and civilian service. According to the Report:

 

‘The Committee’s recommendations attempt to balance the effect upon the civilian service. On the one hand, the recommendation for the creation of an abbreviated service may reduce the number of those opting for civilian service – inasmuch as the abbreviated service will serve as a substitute for civilian service (for the hareidi population that will agree to wear a uniform and serve in reserves). On the other hand, granting the younger population the possibility of opting for civilian service can be expected to increase the number of those choosing civilian service, and will balance the effect on the overall number of those in civilian service’ (p. 25 of the Report).

 

              Nevertheless, the Inter-Ministerial Committee recommended that the actual results of implementing the arrangements be examined after two years. According to the Committee, “if, after the implementation of all of the Committee’s recommendations, it appears that the IDF and the civilian service are having difficulty in recruiting enough deferred men who are interested in serving, a further change in the conscription directives should be considered, as well as an increase in the incentives for enlisting, while preserving the preference for integration into military service” (Report of the Inter-Ministerial Committee, p. 7 (emphasis added – D.B.)).

37.         This final recommendation appears odd in light of the details of the recommendations and the data presented above. The implementation of the Law does not indicate that a preference for integration into military service is being preserved, and it is highly doubtful that it will be preserved in the future, in light of the new conscription directives. The induction of only 530 hareidi men into the Shahar tracks, nine years after the enactment of the Law, indicates a failure in its implementation. The fact that there is a rising trend in the enlistment numbers is, of course, a positive development, but presenting some measure of improvement is not enough. Nine years after the enacting of the Law, one could expect a more significant number of enlistments. The small number of those enlisting, along with the relative ease by which very significant changes can be made to conscription directives, as was done in the Government’s last decision, demonstrate a basic problem in the Deferment Law itself. The fact that by a government decision, it is possible to direct that a large group of people, that has neither served nor received any training, be assigned to the reserves pool merely because of the family status of its members (being parents of three children), and the fact that a government decision can create a very abbreviated military service track that can only questionably be viewed as service at all, raise problems that are not inconsequential. The preference for military service, which was held to be one of the purposes of the Deferment Law in the Movement for Quality Government case, and that was recognized in the Report of the Inter-Ministerial Committee (p. 7 of the Report, as quoted above), cannot be discerned in the decision to change the conscription directives – quite the opposite. The conscription directives were formulated such that preference would be shown for civilian service in regard to the younger age categories.

38.         The changes in the Government’s approach to implementing the Law over the years point to the inadequacies in the Deferment Law. The Law establishes the possible service tracks, but leaves the door wide open in regard to the Executive’s discretion as to implementation, and to the pace of that implementation. In the framework of that discretion, the Government can make decisions that have far-reaching implications for the implementation of the Law, to the point of nullifying its purposes. In the absence of criteria in the Law in regard to its execution, the Government can make decisions that can have decisive effect upon the pace of the Law’s execution, or at least, that can so drastically limit some of the tracks as to render them meaningless.

39.         There is no doubt that the Government’s efforts to encourage hareidi integration into the workforce, as part of the economic rationale underlying the Government’s last decision, are important and worth pursuing. Indeed, the aim of integrating members of the hareidi community into the workforce is a vital objective that was recognized as one of the legitimate purposes of the Deferment Law. Greater involvement of the hareidi community in the workforce will contribute to decreasing the severe level of poverty in that community, and narrow the growing schism between hareidi society and Israel’s secular society. It is a social undertaking of the greatest national importance, but it cannot be made into the primary or exclusive objective of the Deferment Law. Four underlying objectives of the Law were recognized as constituting “a proper purpose” when taken together (the Movement for Quality Government case [2], p. 704). Each draws upon and influences the others. The purpose is proper only when the Law facilitates a legal arrangement intended to reduce the inequality caused by not drafting hareidi men into the army by drafting them into the army, or at least into civilian service, and by encouraging their integration into the workforce, and achieving this by consensus rather than by coercion. It is the combination of these objectives that provided the Law with its proper purpose from a constitutional perspective, as well as from a social point of view. The implementation of the Law cannot now infringe any of those purposes, as the means would not, then, lead to the realization of the purposes.

              That being the case, the Law cannot be implemented in a manner that infringes one of its purposes – not to mention, one of its fundamental purposes – by reason of budgetary constraints. The fact that inducting hareidi men into the army presents a considerable budgetary burden is a necessary by-product of the arrangements established by the Law, and particularly of the fact that, other than those enlisting in the hareidi Nahal battalion, the other recruits are over the age of 22 – in other words, they are at a stage at which most are married and some are fathers of at least one child. Once the Law made it possible to defer induction by at least four years, the unavoidable result was that the population being inducted for service at the end of that period would be older, and in view of the character of hareidi society, would also have families. The higher budgetary costs are the result of the family payments to which the recruits are entitled in consequence of their family status, and is, therefore, the word of the legislature.

40.         Moreover, in a long line of precedent, this Court has held that protecting fundamental rights costs money, and that the economic argument cannot, in and of itself, justify an ongoing violation of equality (see, e.g: HCJ 4541/94 Miller v. Minister of Defense [14], pp 120-121, 144) (hereinafter: the Miller case). That being so, the economic cost, alone, does not justify the Government’s limiting of the military service track. Parenthetically, we would note that examining the economic cost in terms of family allotments alone yields only a partial view that does not reflect the full picture. Although no one denies that the army must bear a significant burden of family payments for soldiers who are married and have families, if we take into account the fact that during their military service, those soldiers do not benefit from other forms of support that they receive as yeshiva students (among them, stipends for yeshiva students, social security payments, teachers’ salaries and the costs of establishing and running the yeshivas, and municipal tax discounts – see: the Tal Commission Report, p. 54), it would appear that the overall demand upon the State budget is much lower.

              To this we might add the proven economic advantage to the State from drafting hareidi soldiers into the armed forces, in particular, as opposed to other tracks. From the data that the Government provided in regard to the rate of integration into the workforce of those who serve in the armed forces, it appears that some 80% of those completing the Shahar tracks enter the workforce upon their discharge. This is a significant figure that demonstrates the potential of military service to provide professional training that can serve as a springboard into the marketplace. Military service, more than civilian service, and certainly more than the decision year, prepares hareidi men to work in areas of technology that are in high demand. The numbers speak for themselves. The high figure – some 80% of those who served in the Shahar tracks found employment – shows that military service should be encouraged not only as a means for reducing the infringement of equality, but also in order to increase the percentage of people from the hareidi sector participating in the workforce.

 

Civilian national service

 

41.         Getting the civilian national service track up and running was fraught with difficulties. Although the Deferment Law was enacted in 2002, the Civilian Service Administration was established only in 2007, and began to operate only in March 2008. The process of setting up the Civilian Service Authority began in the Committee for Planning Civilian National Service in Israel, headed by General (ret.) David Ivry, who was appointed by the Minister of Defense following the decision of this Court in the Movement for Quality Government case (hereinafter: the Ivry Committee). In an interim report submitted to the Minister of Defense in February 2005, the Ivry Committee emphasized the importance of preserving the preference for obligatory military service and its primacy, and recommended that the civilian service option be extended to all Israeli citizens and residents who are not called up for military service, or who are exempt. On 18 February 2007, the Government adopted the recommendations made in the Ivry Committee’s report (Government Decision no. 1215). It was also decided that a project manager, to be supervised by the Director General of the Prime Minister’s Office, would work to advance the establishment of the Administration, and would submit recommendations to the Government in that regard. In Decision no. 2295 of 19 August 2007, the Government adopted the recommendations of the project manager, and decided upon the creation of an administration for civilian service and national service, “within which framework, young citizens of Israel from every population group that does perform military service by law, will contribute one or two years of their time to civilian activity that is useful to society in general and to weaker populations in particular, that will strengthen the connection and identification of young citizens with the community, society and state, reinforce their professional abilities and their readiness for future employment, and contribute to developing their character and leadership ability”. The decision also enumerated the Administration’s functions, and established guiding principles for civilian-national service, among them that such service was intended for those who had received a deferment or exemption from military service; referral to the service will be on a voluntary basis; the service will comprise all sectors, groups and religions in Israeli society; the service will be an independent body, and will perform functions for the welfare of the public, the community and society. It was further decided that those who perform civilian service would be entitled to the same economic benefits as those granted to persons volunteering for national service, in accordance with the length of service, and subject to the proviso that the economic benefits would not exceed those paid to soldiers serving at the rear. It should be noted that on 16 November 2008, the Knesset enacted the Civilian Service (Amendments) Law, 5769-2008, which was intended to equate the status of those performing civilian service to that of persons performing national service or military service for the purpose of the Severance Pay Law, 5723-1963, and the Absorption of Discharged Soldiers Law, 5754-1994 (relative to length of service).

42.         In practice, as noted, the Administration was established in early 2008. Since beginning its operations, 2,575 members of the hareidi community have performed civilian service. As of May 2008, some 70 members of the hareidi community had performed civilian service. That number grew to 450 by December 2008. In 2009, 1,003 hareidi men joined the civilian service, and 1,122 joined in 2010. The Administration has expanded, and several staff positions have been added. The Administration worked hard to increase the number of “operators” accepting hareidi volunteers to the civilian service, and of late it has even contracted with an external body that will help supervise the activity of those performing civilian service. That supervision is needed, inter alia, in order to address the situation in which, until now, most of those performing civilian service served within the hareidi community. As the head of the Administration informed the Foreign Affairs and Defense Committee, whereas in the beginning, the number of civilian service volunteers serving within the community stood at 90%, as of January 2011, service within the community had dropped to about 57% (according to the head of the Administration, Sar-Shalom Jerbi, speaking to a session of the Foreign Affairs and Defense Committee on 18 January 2011, at p. 29).

43.         These data seem to paint an encouraging picture in regard to the implementation of the civilian service track. However, despite the growth in the number of those volunteering for civilian service, the process of setting up the Civilian Service Administration and its operation raise some problems. As noted, although the Deferment Law directed that the Administration be created in 2002, it was not actually established until March 2008. Initially, the Administration operated under the auspices of the Prime Minister’s Office. In April 2009, responsibility for the Administration was transferred to the Ministry of Science and Technology. There were also problems in regard to staffing the Administration, in the agreements with potential organizations that could absorb the volunteers, and in setting up the apparatus to supervise the volunteers. Even the memorandum for the law that was intended to regulate all of the aspects of national service, which was supposed to be submitted by October 2007, was only submitted in December 2007, and the Administration only delivered the draft of the law to the Ministry of Justice in February 2010, in preparation for presenting it to the Ministerial Legislation Committee.

44.         The State Comptroller’s Report of 2009 (submitted in May 2010) examined the operation of the Administration, and the implementation of the Deferment Law in regard to civilian service (State Comptroller’s Annual Report (No. 60B) (2009, and Accounts for the 2008 Fiscal Year), pp. 913-991(2010)). The State Comptroller’s Report related to the period between March 2008, when the Administration began its operations, and October 2009. The Comptroller’s Report points to a number of deficiencies in the operation of the Civilian Service Administration, and in the implementation of the Deferment Law in regard to the civilian service track. The Comptroller found that some 40% of those performing civilian service were serving in the areas of special education and mentoring. This was so, even though in the legislative proceedings of the Deferment Law, the Knesset removed the field of education from the areas of service (such that under s. 6 of the Deferment Law, civilian service would be performed in the areas of health and welfare, immigrant absorption, environmental protection, internal security, and various rescue services). It was further found that those serving in the field of education would invite their pupils to their homes over the weekend “as a matter of course”, and report 24-36 consecutive hours of service. During the summer, when the pupils were on vacation, group activities were arranged at youth villages, and included overnight stays. Such activities were also reported as consecutive hours by those performing civilian service. The Comptroller’s Report found that, in practice, those involved in mentoring “fulfilled all of their hours of service in the course of a few days, or on weekends alone” (ibid., p. 976). The Report also warned of deficiencies in the work of the operating body – a private body that was granted the supervisory and oversight authority of the Administration. It found that coordinators, who were supposed to supervise the work of the volunteers, were responsible for more volunteers than the operating body had agreed to in the tender, and that time sheets that were suspected of not reflecting actual presence, or that were unsigned, were not addressed in any way. Furthermore, a review conducted by the operating body, found family ties between volunteers and office holders in the bodies in which they were serving. Despite the fear of conflict of interests, the Administration did not discontinue the service of those family members, but rather, merely made them subordinate to others who were not their relatives (ibid., pp. 976-977).

45.         Similar findings were mentioned in the Plesner Panel’s Interim Report. The Interim Report notes problems that were discovered in the functioning of the Civilian National Service Administration during the two years that it was reviewed. The Interim Report points out that representatives of the Administration did not present a plan that included policy and concrete objectives in regard to the desirable number of volunteers in the various service areas; multi-year objectives for the elements of the service program; an analysis of the needs of the governmental bodies in terms of national priorities, and the creation of a set of preparatory programs with an eye toward the future employment of the volunteers upon completion of their civilian service. The Interim Report also noted that the Administration had not established methods for checking on the presence of volunteers at their places of service and the quality of their contribution (ibid., p. 24). In the opinion of the Panel, “the Civilian National Service Administration must become a body that delineates a vision, establishes policy, sets objectives, negotiates the opening of additional national service tracks, and supervises the placement organizations and the operating bodies, alone. It must be a regulatory and policy-making body, and it is recommended that executive functions be transferred to external bodies” (ibid., p. 25). The result of the lack of vision and policy guidelines was that, as of the writing of the Interim Report, the Administration had not succeeded in filling the volunteer positions that had been approved (ibid., pp. 27-28).

              The Interim Report also warned that a large number of volunteers (68%) were serving in frameworks within the hareidi community, mostly in the field of social welfare. The Report further revealed that many of the hareidi volunteers served in education – some in educational fields that were described as social welfare. That was so, even though, as stated, education was not among the areas of service included in the Law. In the Panel’s view, while service within the hareidi community was appropriate “as an initial formula” for hareidi volunteering (ibid., p. 27), a change in that trend should be sought, such that the service would be performed within national frameworks that would contribute to hareidi integration into society.

46.         Thus, along with the growth in the number of volunteers in civilian service, we find problems with regard to supervision over the quality of service, the establishing of goals, and in filling the positions created for those volunteering for service. Proper implementation of the deferment Law does not merely mean increasing the number of volunteers for civilian service. Proper implementation of the Law requires a substantive examination of the nature and quality of the civilian service so that it will achieve its objectives, and most importantly, so that civilian service will constitute an appropriate alternative to military service. The civilian service track was established in the Deferment Law in order to provide members of the hareidi community with a form of service that would be appropriate to their lifestyle, and that would reduce the inequality caused by their not being conscripted for military service. In order to achieve those ends, it is not enough to show an increase in the number of volunteers for civilian service. The civilian service must be brought to a point where it is a true alternative, in terms of quality, nature and length of service, to military service, and in that regard, more than one year of civilian service must be required. Civilian service must be shown to be significant, and to have the potential of advancing the purposes of the Deferment Law. That must be done, inter alia, by intensifying supervision in order to ensure that the service is performed for the objectives established by the Law, and in national frameworks that incorporate professional training.

 

The Decision Year

 

47.         The decision year, which was to be the great hope of the Deferment Law, has proven a great failure. In the Movement for Quality Government case, Justice Cheshin, then the Deputy President of the Court, referred to the decision year as “the jewel in the crown of the Deferment Law”, but noted that the decision year “is but glass disguised as a diamond” ([2], at p. 766). Indeed, that unfortunately has turned out to be the case.

              The decision year was intended to allow a young man whose service had been deferred for four years, and who was at least 22 years old, to defer his conscription for an additional year, even though he was no longer studying in a yeshiva that year. In the course of that year, the candidate for conscription could work without any restrictions. The central purpose underlying the decision year was to permit young men to test life outside of the yeshiva, without losing their “Torah is their calling” status (see: Tal Commission Report, p. 121). The decision year was the primary tool introduced by the Tal Commission, and it was intended to create a transition route from a life of yeshiva study to the labor market. It is important to note that enlistment into the armed forces or civilian service is not contingent upon taking a decision year. In other words, a person whose service was deferred could waive his deferment and enlist in the armed forces or civilian service whether or not he took a decision year. But the decision year was intended to make that transition easier, and that it how it was envisioned by the Tal Commission, which saw it as a central device for promoting equality and a sharing of the burden.

48.         The figures show that no inconsiderable number of deferred yeshiva students chose to take a decision year. As of 31 December 2007, the number stood at 2,935 in total. Of those who completed the year (2,334), 649 returned to the status of “Torah is their calling”. 163 asked to perform civilian service, but the Administration had not yet been established at that time. Of the rest, 253 were inducted into the army; 315 were being processed by the army (but it is not known whether or not they were actually inducted), and 725 received exemptions from military service. An additional 191 were transferred to the “pool” – a unit of assignment for draftees that the army has decided not to call up for service, but who are part of the reserves, and could be called up in case of military need. 20 others were abroad.

              A similar division is presented by the data submitted in the response of 30 December 2008. In that response we find that, as of 27 November 2008, a total of 3,269 deferred men took a decision year (i.e., 334 took a decision year in 2008). 567 had not yet completed the decision year at that time. Of those who had completed the year, 759 returned to the “Torah is their calling” status; 25 were abroad, and 148 were awaiting civilian service. Among the remainder, 905 were exempted for various reasons; 276 were being processed by the army, and 348 had been inducted into the IDF. 241 were transferred to the “pool”.

              Other than the data for the years 2007 and 2008, the State did not submit up-to-date figures for the years 2009 and 2010. Therefore, we do not have data regarding those who chose a decision year over the last two years, and more importantly, about what those who completed the decision year went on to do.

49.         The data presented by the Government shows that although a large number of young men chose to take a decision year, it did not lead to enlistment into the army, to joining the civilian service, or to entering the workforce. In practice, most of those completing the decision year were exempted from military service or returned to “Torah is their calling” status. Only a small number of those taking a decision year were inducted into the army (or transferred to the reserves pool), or performed civilian service. The numbers are not surprising considering the inherent barrier to which the decision year leads. As earlier noted, the Law permits a person to take a decision year only from the age of 22, and only following four years of deferments. A young hareidi man who begins the decision year at age 22, completes it when he is 23, when he is, as is usually the case, married, and generally the father of at least one child. In such a situation, as we pointed out earlier, the army has no incentive to recruit him, in light of the budgetary costs involved. The Government was also aware of this, and expressly stated in its response that: “as is shown by the data regarding those who choose to enlist in the army following the decision year, many of those deferred are not expected to be inducted even if there deferment ends for various reasons” (Government pleadings of 18 May 2008, p. 27).

              This is all the more so when the decision year is chosen at a later age. Because induction into the army is influenced by and related to the age of the person who has been granted a deferment, the longer it is delayed, the less the chances that he will be inducted for service. This also holds true for civilian service. While there are no formal age restrictions for joining the civilian service, the longer a person is spends in the “Torah is their calling” status (even if he took a decision year along the way), the lower his incentive to leave the arrangement and join the civilian service. Moreover, a person who takes a decision year at the age of 23 or 24 can request to enlist in the army at the end of the decision year, and in all likelihood – as the existing figures show – he will be granted an exemption from military service, and thus will also not have to perform civilian service either. If that be the case, what purpose is served by the decision year? Clearly, the decision year does not serve to realize the purpose for which it was created. In practice, the decision year may help some of the deferred men decide what lifestyle they wish to adopt, but it does not contribute to enlistment into the armed forces, the civilian service, or – it would appear – the workforce (although data was not submitted in that regard). It should further be noted that the most current data submitted to the Court relate to those opting for a decision year up to the end of 2009. In its last response to the Court, the Government did not append updated data on the decision year. Are we to understand that the Government has abandoned that track? The fact that the Government did not see fit to submit up-to-date figures on the decision year to the Court begs the question.

 

Interim summary

 

50.         What conclusion should be drawn from the analysis of the data concerning the implementation of the Deferment Law? Indeed, one cannot ignore the growing trend in the number of those enlisting into the army and joining the civilian service. The military service tracks were expanded. If, in the past, the only track for hareidi military service was the hareidi Nahal battalion “Netzach Yehuda”, there are now special tracks in the Air Force, and of late, in other branches of service, as well. These tracks offer hareidi soldiers unique professional training that does not merely prepare them for military service, but provides professional knowledge that makes for impressive integration in the labor market upon completion of that service. Together with military service options, the possibilities for civilian service were also expanded. Following the establishment of the Civilian Service Administration, extensive efforts were invested in identifying operators, and regulations were promulgated for placing volunteers in civilian service. Today, the service makes it possible to perform part of the service in national frameworks, rather than exclusively in the hareidi sector (see the statement of the head of the Administration, Sar-Shalom Jerbi, in the session of the Foreign affairs and Defense Committee on 18 January 2011, p. 29).

              However, the increase in the number of hareidi men serving in the army or civilian service notwithstanding, the overall number of those enlisting in the army or joining the civilian service is low, and it is certainly significantly lower than the number of those entering the deferment arrangement. From the figures presented by the Government, it appears that, as of January 2011, the total number of deferments stood at 61,877. The number of deferments rises steadily from year to year, and the Government estimates that some 4000 men join the deferment arrangement every year. As of 2007, the number of deferred men represented 14% of the total conscription pool of that year. It would further appear that despite the enactment of the Deferment Law and the steps taken for its implementation, the rise in the number of deferments has not been abated or halted (Government pleading of 24 January 2011, p. 20).

51.         Having examined the current data in regard to the implementation of the Law, the question that arises is whether that implementation meets the proportionality test, and whether the cumulative figure show that the means established in the Law realize its purpose. The answer requires that we address the degree of probability necessary for establishing that the means realize, or do not realize, the purposes of the Law. Is the degree of probability, as a component of the test of the proportionality of a law, dependent upon the nature of the infringed right? That question arose before this Court on several occasions in the past, in regard to various parts of the limitation clause. In HCJ 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [15] (hereinafter: the Bank Mizrahi case), President Barak suggested the possibility of creating different levels of constitutional scrutiny, in keeping with the nature of the violated right (ibid. [15], at p. 434). What that means is that the conditions of the limitation clause would be examined by the Court in accordance with the violated right and the entirety of other considerations. In that case, President Barak stated that it is “premature to determine what the Israeli rule will be as to the limitation clause, and whether our test should comprise a single level (as in Canada) or multiple levels (as in the United States)” (ibid. [15], at p. 435).

52.         Since rendering judgment in the Bank Mizrahi case, the case law has advanced quite a distance in recognizing the direct relationship between the importance of the infringed right and the required degree of constitutional scrutiny, although different from the degree of scrutiny of American constitutional law. In a series of cases, we established that the importance of the infringed right and the degree of its violation influence the overall constitutional analysis, and affect the manner in which the Court will examine each of the components of the limitation clause. This approach is based upon the view that not all rights – whether enunciated in a Basic Law or not – are of equal importance. The degree of protection afforded a right is a function of its character and importance when confronting a public interest that requires the infringing of the right. Because of the need to strike a balance between the right and the public interest that justifies its violation, the conditions of the limitation law cannot be addressed by this Court in a purely technical manner. The balancing process is directly connected to the degree of protection granted to the infringed right. The currently accepted approach in our legal system requires that the balances that are intrinsic to the tests of the limitation clause be applied to each case on its merits, in accordance with the full range of considerations, which includes, as I noted in the Menachem case, “the rationales grounding the protected right and its relative social importance, as well as the nature of the right or the competing interests” (ibid. [8], at p. 258). That approach emphasizes the scope of the Legislature’s latitude. The more important the right, and the greater the infringement, the less the room for maneuver, and vice versa. When we are concerned with rights that – in keeping with the values of the Jewish and democratic society that we maintain – are of lesser importance, the Legislature’s leeway in infringing the right will be greater.

              In that framework, we have held that that the nature of the right and degree of its violation influence the examination of the law’s purpose, in the sense that the more important the infringed right, and the more serious the harm, the more significant the public interest required to justify that infringement (see, e.g: HCJ 6055/95 Zemach v. Minister of Defense [16], at p. 262, per Zamir J. (hereinafter: the Zemach case); the Horev case [13], at p. 49, per Barak, P; the Menachem case [8], at p. 258, per Beinisch, J; the Adalah case [11], at para. 28 of the opinion of Barak, P; CrimApp 6659/06 Ploni v. State of Israel [17], at para. 30 of my opinion; HCJ 2605/05 Academic Center of Law and Business [10], at para. 45 of my opinion. And see: Barak, Proportionality, pp. 619-628). We adopted a similar approach in the Movement for Quality Government case. The Court, per President Barak, held that in view of the infringement of equality, as a component of human dignity, “the standard for examining the question of the importance of the need to achieve the underlying purposes of the Deferment Law at the expense of severe infringement of dignity, is whether the deferment of service realizes a significant social objective or a pressing social need” (ibid. [2], at p. 700).

              I similarly expressed my view that “the nature of the infringed right, its underlying rationales, and the intensity of its violation” influence the construction of the need for “express authorization” in a law, established in the first condition of the limitation clause (see: my opinion in HCJ 10203/03 “Hamifkad Haleumi” Ltd. v. Attorney General [18]; and also see: HCJFH 9411/00 Arco Electrical Industries Ltd. v. Mayor of Rishon Lezion [19]). We further held that the three subtests of the proportionality test “will be applied and implemented in accordance with the nature of the infringed right under review” (HCJ 1715/97 Investment Managers Association v. Minister of Finance [20], at p. 420, per Dorner, J. (hereinafter: the Investment Managers Association case)), and that “in regard to proportionality, we shall be as severe with the authority as the severity of the violated right or the severity of its violation” (the Stemka case [12], at p. 777, per M. Cheshin, J., and see: HCJ 5503/94 Segal v. Knesset Speaker [21], at p. 544, per E. Goldberg, J; the Zemach case [16], at p. 282, per I. Zamir, J; the Menachem case [8], at p. 280 of my opinion).

53.         Emeritus President Aharon Barak recently wrote about the probability test established under the first subtest in his book Proportionality: Constitutional Rights and their Limitations. President Barak suggests that where an important constitutional right is violated, the State bears the burden of showing a real probability that the means established in the law will realize its objectives, and that a low or reasonable probability of realizing the objectives will not suffice (Barak, Proportionality, p. 628). This approach expresses the view expressed by this Court in the past that constitutional scrutiny must accord with the infringed right, and represents a development in our constitutional law. The demand for a real, significant probability that the means chosen by the Legislature be appropriate to the purpose that it seeks to achieve, grounds the first subtest. This approach also reinforces the weight of the first test in relation to the two additional subtests – which are the least-harmful means test, and the proportionality test stricto sensu. The demand for a real, significant probability requires, in relevant cases, a thorough examination of the probability of the realization of the law’s purposes, which does not suffice with a reasonable or minimal possibility of realizing the purposes by the means established in the law.

54.         The infringed right in the case before us – the right to equality – has long been recognized as a fundamental right in our legal system. The right to equality has been one of the cornerstones of the Israeli system of government, even before the enactment of Basic Law: Human Dignity and Liberty. The right to equality is enshrined in the Declaration of Independence, and there are those who extol it as an overarching principle of our legal system, underlying the existence of the state as a Jewish and democratic state (see, e.g., the view of Deputy President (Emeritus) Cheshin in the Movement for Quality Government case). The central role of the right to equality has been noted in a long line of cases as “a fundamental principle of our constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [22], at p. 699, per Landau, J.). Justice M. Shamgar held that the right to equality is “a fundamental constitutional principle, incorporated and woven into our fundamental legal conceptions, and is inseparable therefrom” (HCJ 114/78 Burkan v. Minister of Finance [23], at p. 806; and see: Itzhak Zamir and Moshe Sobel, “Equality before the Law,” (1999) 5 Mishpat u-Mimshal 165 (Hebrew); HCJ 869/92 Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset [24], at p. 707; HCJ 1703/92 K.A.L. Kavei Avir Lemitan Ltd. v. Prime Minister [25], at p. 229; the Miller case [14], per Dorner, J; HCJ 4124/00 Arnon Yekutieli (deceased) v. Minister of Religious Affairs [26], paras. 35-36 of my opinion). The right to human dignity is also recognized by our legal system as a constitutional right since being incorporated into Basic Law: Human Dignity and Liberty. Human dignity “is the factor that unifies human rights” (the Movement for Quality Government case [2], at p. 681, per Barak, P.). The right to human dignity imposes both positive and negative demands upon governmental authorities – the duty to refrain from infringing dignity, and the duty to protect it (see: Aharon Barak, “Human Dignity as a Constitutional Right,” in Haim Cohn & Itzhak Zamir, eds., Selected Essays, p. 417 (2000) (Hebrew)).

              Indeed, the right to equality and the right to human dignity, along with several other rights, are worthy of the broadest protection of our legal system. That is surely the case when we are concerned with a violation of equality in the fulfillment of the most basic duties in Israeli society, and in sharing the burden borne by citizens who devote body and mind, and the bloom of youth to ensuring the safety of Israeli society. Opposite the need to safeguard equality stands a social interest that, inter alia, the Law seeks to promote. In the case of conscripting yeshiva students, the social interest has become complex, and we were, therefore, of the opinion that characterizing it was clearly a matter for the Legislature. In view of the difficulty in finding a solution to the problems arising from inequality, in defining the necessary considerations and in evaluating their relative weight, we were prepared, in the Movement for Quality Government case, to recognize the “significant legislative latitude” granted to the Knesset (ibid. [2], at p. 704 per Barak, P.). We noted that this is clearly a social-policy question that must be addressed by the Knesset, but we emphasized that the public interest does not exist in a vacuum. We therefore held that the purpose established by the Knesset would be proper if it realize a significant social objective or a pressing social need (ibid. [2], at p. 704). As stated in that decision, we left the question of whether the means established in the Law were suited to realizing its objectives for examination at a later date.

55.         At the present stage of examination, and bearing in mind the status and importance of the rights concerned, the degree of probability required to show a rational connection between the means and the objective must be real and significant. In other words, it is not enough that we find that the means established in the Deferment Law may realize its underlying purposes to some particular degree. Such a level of probability would not reflect the level of protection that our legal system grants to the rights that are the focus of the case before us. Therefore, a higher level of probability is required, which will indicate that the means chosen by the Legislature have a real and significant potential for realizing the Law’s objectives. We have reached a point where we are no longer speaking of conjecture. We are not examining the Law prior to its implementation by the Executive, when the possibilities for realizing its purposes are merely educated guesses. The Law has been implemented for some time. At this point, we must examine that implementation over the years since its enactment, and assess the probability that the means chosen for its implementation will lead to the realization of its purposes. Those purposes are, essentially, to bring about the induction of thousands of young men into military service, or at least into civilian service that constitutes an appropriate alternative to military service, and to promote the integration of those young men into the workforce.

56.         A comprehensive examination of the data regarding the various tracks set out in the Law – individually and cumulatively – leads to the unavoidable conclusion that the means established in the Law have not realized its purposes, and cannot do so with any real degree of probability. The implementation of the Law over the course of the lengthy trial period afforded it so far has shown that the Law comprises inherent impediments that exert considerable influence upon the possibility of implementing it, to the point of impairing the possibility of realizing its purposes. Those obstacles would prevent the realization of the purposes of the Law even if the authorities responsible for implementing it worked diligently – which has not entirely been the case over the years that the Law has been on the books. After nine years, the State was required to show significant realization of all the purposes of the Law together. Trends or developing processes, as important as they may be, are no longer sufficient. Can it be said, after nine years, that the induction of 898 hareidi men (of whom, some four hundred are drop outs), and the enlistment of 1,122 others into brief, vague and undefined civilian service from out of a total of 61,877 who were granted deferments constitutes a realization of the Law’s objectives? Can a situation in which most of those taking a decision year are exempted from military service or return to “Torah is their calling” status, and are not integrated into military service or its alternatives or into the labor market be seen as the realization of the Law’s objectives? Can we discern a realization of purposes when many more young men enter the “Torah is their calling” arrangement than any of the service tracks provided by the law? By any standard, an examination of these numbers reveals no real change in the situation. Indeed, we understand that we are concerned with a complex social process. No one denies that time is an important factor in that process. Nor does anyone deny that we cannot suffice by looking at the current picture alone, but rather we must consider the process as a whole, and the process does testify to some progress in the framework of the attempts to implement the Law. However, a more significant trend toward realizing the Law should have been apparent after the substantial period of time that passed since its enactment, but it was not. Most of the actions taken to implement the Law were too little and too late. Some were instituted suspiciously close to the dates of the proceedings before the Court.

57.         The main problem with the Law is not merely a result of failures in its implementation. The low enlistment numbers, the abject failure of the decision year, and the fact that the Law is entirely dependent upon the desire of the Executive to implement it, and if so, how, all testify to failures that are inherent to the law itself. As long as the Law does not establish standards or goals for its implementation, the realization of its purposes are entirely at the mercy of the Executive, which is free to choose if and how to implement the Law. The Executive can take decisive action to implement it, allocate resources for implementing only specific parts of the Law, or offer various incentives to the agencies responsible for implementing the Law. By the same token, the Executive can adopt a do-nothing policy, and render the Law a dead letter. The broad discretion granted the Executive, on the one hand, and the freedom of choice that it grants to those whose service is deferred, on the other, show the arrangement to be wanting. While it is not disputed that the implementation of every legislative act is dependent upon the relevant agencies, as part of the reciprocal relationship between Executive and the Legislature in a democracy, it would seem that the division of power between the two branches of government is blurred in the Deferment Law to the point that the Executive holds the power to eviscerate the Law.

58.         As we see above, two salient characteristics of the Law decrease the probability that the means it establishes will substantially contribute to realizing its underlying purposes. First, the law permits an “automatic” four-year deferment from age 18 to age 22. Both special tracks created by the Deferment Law – the decision year and civilian service – are relevant for yeshiva students from age 22 and up. The special military tracks (the Shahar tracks) are also intended for deferred men over the age of 22. The very fact that the Law establishes that the service tracks commence only from age 22, and no earlier, means that most of the deferred men will arrive at the enlistment crossroad when they are married, and when many are the fathers of at least one child. The army’s ability to absorb such recruits is significantly reduced by the increased costs associated with paying family stipends. As a result, those young men are directed from the outset to the civilian service, which is shorter and “cheaper” for the State – assuming they have not chosen to remain in the “Torah is their calling” arrangement. Should we not conclude that the Law comprises an inherent impediment to military service? Does this not contradict the Law’s purpose to advance equality in sharing the burden of military service, in the sense that more hareidi men will perform military service, or at least meaningful civilian service? (see: the Movement for Quality Government case [2], at p. 700).

59.         Secondly, the Law places the choice among the Law’s tracks entirely in the hands of the yeshiva students. A young hareidi man between the ages of 18 and 21 can choose between a deferment or enlistment for military service. At age 22, that same young man can choose to continue his deferment or to enlist in the army or join the civilian service. That young man can also choose to take a decision year, at the end of which he will be presented with precisely the same choices. Additional possibilities for choosing were granted to that young man by the Government’s decisions and the conscription directives. Those choices are almost limitless. They are not contingent upon the young man’s family status or his military profile. They do not depend upon the number of years that he deferred his service, or upon what he did in the course of the decision year. Furthermore, these possibilities do not lead to a duty to perform any service at any stage. The young man can defer military service for a number of years, at the end of which he will be exempted from military or civilian service. It should be superfluous to point out that this structure of the Deferment Law presents a mirror image of the situation of non-hareidi youth. Those youngsters are not free to choose whether or not to serve in the army. They are under a legal duty to serve in the armed forces, and the possibilities for fulfilling that duty by means of civilian service are of limited, marginal scope.

              Undeniably, one of the purposes of the Deferment Law was the creation of an arrangement that would not require coerced conscription. We recognized that as a proper purpose that reflected the desire to create a social arrangement based upon compromise and striking a balance between the needs of the different communities. However, in the absence of an element of obligation, implementing the Law and realizing its purposes are not dependent exclusively upon the Executive will, but also, and perhaps primarily, upon the will of those granted deferments. Even if the Executive provides the necessary resources, it will not guarantee a significant enlistment of hareidi men, unless the tracks include some element that would encourage joining them. Such an incentive is nowhere to be found in the current Law, nor in the steps taken for its implementation.

60.         Moreover, the Deferment Law does not comprise criteria for granting exemptions from military service, and it does not establish enlistment goals for military or civilian service. The Law establishes no intermediary frameworks for evaluating progress in its implementation, and it lacks any means of supervising that implementation. Absent from the Law is any requirement of meaningful service – of any kind – for all. What all this means is that the desire of the yeshiva students to opt for one of the Law’s frameworks is the decisive factor in the implementation of the Law. Under such circumstances, and in view of the data presented to us, it would be difficult to find that the means established in the Law actually realize its objectives, or that there is a real, significant probability that they will realize its objectives in the future. While the enlistment of several hundred members of the hareidi community represents a certain change in relation to the situation a decade ago, the number of deferments – which become exemptions – increases from year to year, and that number currently stands at 60,000. That means that the declared purpose of the Law cannot be realized under the present conditions, despite the Government’s decisions that attempted to breathe life into it. We should recall that those efforts, to the extent that they were made, were primarily intended to integrate the deferred men into the workforce – an important purpose in and of itself – which does not address either the problem of military or civilian service.

61.         In light of all the above, it would appear that the flaws that led to the current situation are inherent to the Law itself, or as termed in the Movement for Quality Government case, they are “genetic” flaws (ibid. [2], at p. 712) and not administrative flaws related to the manner in which the Executive implemented the Law. The conclusion is that the Deferment Law does not pass the proportionality test under the first subtest. In other words, the means established by the Law cannot realize its purposes, and it has become a tool for perpetuating the situation that existed prior to its enactment. In light of that conclusion, there is no need to apply the two other subtests. The result is that the Deferment Law does not meet the conditions of the limitation clause.

 

Consequences of the illegality of the Deferment Law

 

62.         The above requires that we conclude, after a journey that has taken several years, that the Deferment Law does not meet the proportionality requirement of the limitation clause and is, therefore, unconstitutional. The practical result of this conclusion is that the Deferment Law is declared void, or in other words, looking to the future, that it cannot be extended in its present form.

              Along with this declaration, we must take into consideration the fact that the Deferment Law was enacted as a temporary order. The Law, which was extended a second time by the Knesset, is slated to expire on 1 August 2012. In view of the fact that many arrangements were made in accordance with the rules established by the Law, and bearing in mind that we may assume that many people planned their lives in accordance with its provisions, I would recommend to my colleagues that the declaration that the Law is void be held in abeyance, and that we allow the Law run its course. This period will allow the Legislature time to weigh our comments, and enact a new arrangement that will take into account this judgment, as well as the prior judgments in the Ressler case, the Rubinstein case, and the Movement for Quality Government case, which formed the basis for enacting the Deferment Law, and for formulating an arrangement that addresses the matter in its entirety.

63.         We did not come to this decision easily. We are aware that along with the flaws in the Deferment Law, and along with the difficulties that arose in its implementation, Israeli society – and its hareidi component – have come a long way. It would appear that among various social strata and sectors of society – even among the hareidi population – there is a growing awareness that hareidi youth can be integrated into Israeli society, while preserving the religious, social and cultural values of the hareidi community, and respecting its religious values and lifestyle. Indeed, increasing numbers of hareidi men and women are seeking higher education and entering the workforce. There are also young men serving in the armed forces and in the civilian service frameworks, although the numbers remain far from reflecting social change. Nevertheless, the essential gap remains insofar as inequality in regard to military service and refraining from sharing equally in civic duties.

              Communal life in a society requires shared values and mutual respect. The recognition of the right of a unique group to preserve its lifestyle, culture and religious faith is accompanied by the aspiration toward an equal division of responsibility for advancing the shared interest in maintaining a cohesive Israeli society. Equal sharing of responsibility does not necessarily imply that everyone contributes in the same way and to the same extent. As my colleague Justice E. E. Levy expressed it: “Human society, even in a free, democratic state, is not egalitarian in the sense that each and every individual makes an identical contribution. The use of resources is also not identical” (the Movement for Quality Government case [2], at p. 783). Equally sharing the burden requires that there be egalitarian arrangements and apparatus that assess the individual’s ability to contribute in ways that are consistent with his talents and lifestyle, and as far as possible, his preferences. The Deferment Law purported to provide such an arrangement that could strike a balance among the various groups, interests and rights, and bridge the conceptual and religious differences without detracting from the need for an equal distribution of the burden, to the extent possible. The Law attempted to provide solutions to a complex problem. The Court was willing to permit testing its implementation over an extended course of time in order to ascertain whether the proposed solutions would mitigate the infringement of equality, and realize the provisions and purposes of the Law. In the end, the test of time proved that the Law did not realize its underlying purposes, and in practice, it primarily entrenched the pre-existing deferment arrangement. There was no meaningful change in the number of those opting for the constructive solutions that the Law provided for leaving the deferment cycle, and no formula has yet been found for abating the rapid growth of the deferral pool.

              For years, the Court acted with restraint in abstaining from drastic solutions in order to allow the development of social processes in hareidi society itself, which might lead to bridging the gap between the communities. The increasing number of deferments raises questions as to how we arrived at this point. The “Torah is their calling” arrangement influenced not only the number if deferments, but also nourished internal processes within hareidi society. In view of the ban upon going to work, the situation has become one in which most hareidi men do not work for a living, and poverty is widespread. Reliance upon government stipends grew significantly. In the absence of any limit upon the number of men who could be granted deferments, their numbers grew at a dizzying pace. As a result, the social reality changed beyond recognition. The character of the deferment arrangement changed from a privilege granted to a unique minority to a rampant phenomenon that knows no bounds. The number of deferred men relative to the overall draft has grown significantly. If once we were concerned with a small, defined group of scholars wholly devoted to the study of Torah, today the numbers account for over 14% of the conscription pool of any given year, and the numbers are growing. If the increase in the number of deferments is not halted, their number will double within a decade. Such a situation engenders a sense of injustice arising from the inequality that has spread among various social strata, and that widens social gaps and increases alienation among the various sectors of Israeli society. In addition to all of this, the dangers that have threatened the security of the state since its inception have only increased the practical need for inducting yeshiva students into military service.

              As President Barak stated in the Ressler case, “quantity makes a qualitative difference” (ibid. [3], at p. 505). Over the years, Israeli society endured the blanket deferments, as long as the number was limited to a small group. But a society’s tolerance for a situation in which a particular group is exempted from a universal duty is limited. Recognition of the importance of protecting community, religious and cultural rights is part of our democratic culture, which views such rights as worthy of protection. However, the protection granted such rights is not absolute. The need to maintain society requires balancing those rights against the State’s obligation to ensure equal treatment in civic life. That cannot be seen in the Deferment Law. Its arrangement constitute – for the most part – a mirror image of the arrangements that apply to non-hareidi youth. The Law was enacted in the hope of sparking a social process that would lead hareidi youth to choose to perform military or civilian service without coercion or the imposition of any obligation. That hope was in vain.

              In the Movement for Quality Government case, we pointed out that this complex social problem could not be resolved solely by coercion. Clearly, accountability, social responsibility and the desire to share society’s burdens cannot be achieved by legislation alone. Laws can ensure public order, encourage conduct that the Legislature deems necessary, and prevent an individual or a governmental agency from acting in a manner that harms other individuals or society as a whole. However, while accountability and social responsibility are not solely the result of legislation, laws can encourage or retard their growth. Resolving the social situation created by years of exemption – for all practical purposes – from military service is a complicated task. The data that we now possess make the task easier. The Deferment Law was tested over a period of time that was long enough to provide the Legislature with information about the more and less efficient methods for solving the problem. This information is vital to formulating a new legal arrangement that will take account of the flaws discovered in the Deferment Law.

64.         In consequence, the Deferment Law must be determined to be legally void. In light of the fact that the Law was enacted as a temporary order that will expire on 1 August 2012, we see no need to declare it void. The result is that the Law will remain in force until its expiry on 1 August 2012, and the Knesset will not be able to renew it in its present form. The Knesset will have to create a new arrangement, which can be based upon the framework established as part of the Deferment Law, but that takes into consideration what has been held in this judgment. In this regard, the Knesset will have to consider the flaws we noted, which derive, inter alia, from the lack of guidelines, criteria and goals for its implementation, as well as the fact that the Law comprised no obligatory element of service (neither on the basis of age, nor on the basis of fitness for service, and it did not require an alternative of civilian service or integration in the workforce). In correcting the flaws that we found in the Law and adapting it to its purposes in light of the lessons learned from its implementation, the Knesset can also make use of the findings in the public reports, such as the Interim Report and the conclusions of the Plesner Panel, which were presented to us as part of the Knesset’s response to the petitions before us. We would again emphasize that legislation that perpetuates gaps and flaws in equality of the scope revealed in the current situation cannot stand.

 

Postscript

 

65.         After writing the above opinion, I read the opinions of my colleagues Justice E. Arbel and Justice A. Grunis. As regards the opinion of my colleague Justice Arbel, it would appear that our fundamental views are not far apart. We disagree on the question of whether the pace of implementation of the Law is adequate and suffices to pass the proportionality test, considering the length of time in which the Deferment Law was in effect. In the opinion of Justice Arbel, the recent developments show a possibility for such change, and we should, therefore, wait for some additional period before examining the realization of the Law in practice. In my view, the data that we currently have, which reflect the implementation of the Law over a ten-year period, are sufficient to demonstrate the existence of inherent impediments and flaws, which we characterized as “genetic” flaws in the Law, and if they are not repaired, then the Law cannot realize its combined purposes. I take that view, even though I do not deny that there has been some positive change in the implementation of the Law.

66.         Like my colleague Justice Arbel, I, too, believe that reducing the inequality in sharing the burden among the various sectors of society is a protracted process. I am also party to the view that the complexity of the issue, and the intense emotional responses that it engenders, directly affect the complexity of the process and the method for its resolution. It is for these reasons that in the case before us, and in the proceedings that took place over the years, the Court maintained the position that unilateral, coercive steps should not be taken against any of the parties, and that it would be doubtful whether such steps could resolve a long-standing, fundamental debate concerning social values. On this, I have not changed my mind.

67.         The Court’s decisions in the Movement for Quality Government case and the other petitions that came before us demonstrate this Court’s restraint and moderation over the years. Although more than nine years have passed since the Law was enacted, we did not hurry to decide upon its constitutionality on the basis of its actual implementation. Although the data presented to us were hardly satisfying, to put it mildly, we preferred to grant the State additional time to realize the Law’s purposes. This judgment is handed down only following that additional, lengthy period for observing the realization of the Law’s purposes. We are now at the close of the first decade of the Law’s implementation. That is no trivial matter. It constitutes a significant period of time, in addition to the long years during which the matter was examined by all the relevant parties. In my opinion, it represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case: Does the Law comprise inherent impediments that prevent the full realization of its purposes? That is a purely legal, constitutional question. As I explained at length in my opinion, I believe that the answer is yes. There is no need to reiterate, and I will only briefly mention the difficulty raised by the decision year – which does nothing to contribute to choosing one of the Law’s tracks; the almost unlimited choice granted to hareidi youth; the broad discretion granted to the Executive in regard to implementing the Law, and in the manner of its implementation, including the emphasis that has been placed upon realizing one of its purposes at the expense of the others; and the need to contend with the unavoidable budgetary consequences of the Law’s arrangements. These impediments thwart realizing the Law, and correcting them may ensure that implementing the Law will not be contingent upon good will. I discussed the numerical data at length in my opinion. I was not convinced that the figures were satisfying in view of the extended period that had elapsed since the enacting of the Law. No doubt, the numbers indicate a trend, but at this stage, a trend is not enough. Even if there is an annual rise in the number enlisting in the army or civilian service, there is an analogous, continuous rise in the number of those joining the ranks of the “Torah is their calling” arrangement, and the proportion of people receiving deferments continues to increase. What that means is that, in practice, the Law did not bring about any significant change.

68.         I would add that a meaningful analysis of the data also requires an examination of the quality of service. The pursuit of an equal sharing of the burden is not merely a technical or formal matter. One can, of course, point to impressive conscription statistics when a service track of merely three months is offered. But it would be hard to say that such military service is equivalent to the three years that are required of anyone who is not hareidi, or even to service for the 16 months period offered to some hareidi men who choose to enlist. The same is true in regard to civilian service. It is clear that the civilian service track has become the primary service option for young hareidi men who choose to leave the “Torah is their calling” arrangement. This track, too, must be examined in terms of substance rather than solely on the basis of numbers, as one cannot speak of equally sharing the burden if the civilian service is performed within the community, unsupervised, and in some cases – as detailed in the State Comptroller’s Report cited in para. 44 of my opinion – over the course of a few days or on weekends alone.

69.         I now turn to the opinion of my colleague Justice Grunis, who is of the view that the matter is not suited to Supreme Court review. According to Justice Grunis, the Court should refrain from considering the constitutionality of the Deferment Law, inasmuch as the Law is intended to grant preferential rights to a minority. This approach also formed the basis of his opinion in the Movement for Quality Government case.

              President Barak, who wrote the main opinion in the Movement for Quality Government case, addressed the difficulties inherent in a theory of constitutional review that seeks to justify refraining from the review of laws in which the majority grants preference to a minority (see: the Movement for Quality Government case [2], at pp. 717-721), and there is no need to repeat what he wrote there. I will only remark upon a number of problematic points raised by the approach.

70.         First, underlying the approach of Justice Grunis is the assumption that the purpose of judicial review is to ensure the propriety of the political process. Indeed, judicial review is intended, inter alia, to ensure the propriety of the political process, protect against the violation of minority rights by the majority, and ensure that the majority does not wrongly exploit its power. But it does not end there. Judicial review is not limited to the narrow view of democracy as simple majority rule, and extends to the conception of democracy as a regime that protects fundamental human rights. That is the primary lesson learned after the Second World War, and it has been internalized in the constitutions of many states. Ensuring the democratic process is not enough; the essence of democracy, as expressed by the protection of human rights, must also be defended. That protection is not limited to situations that target minorities.

              Second, I think it doubtful that the approach presented by my colleague is appropriate to the Israeli political reality. In Israel’s coalition reality, ensuring the propriety of the democratic process – in which framework the majority’s desire to grant preferential rights to the minority is examined – takes on special meaning. In a political system composed of a large number of parties, and in which small parties play a decisive role, can one speak in the simple terms of a majority-minority relationship? In what situations can we state that the majority grants preference to the minority of its own volition? There would appear to be no more instructive example of the difficulty of the distinction between minority and majority rights than the matter before us. In terms of the factual background, it is no secret that the entire history of the deferment arrangement reflects coalition imperatives in which a majority surrendered to a minority, inter alia, for interests of coalition politics. In such circumstances, it is difficult to identify what represents an expression of the majority will, and what constitutes coercion.

              Moreover, the approach suffers from significant problems in its application. Under what circumstances should we say that a majority has granted preferential treatment to a minority? What are the criteria for distinguishing majority and minority groups? Should the distinction be numerical? Should it be based upon the ability to compete successfully in the political process? Should it be based upon social, economic or political standing? Can a group be deemed part of the majority in some circumstances, but as belonging to the minority in others?

              Third – and this is the main issue – constitutional review of the violation of rights concerns people as individuals. As a rule, the fact that many are affected by some governmental conduct – and the fact that they constitute a majority of society – does not free the Court from examining the constitutionality of the violation of rights. Constitutional law focuses upon the constitutionality of the violation, and not upon the identity of the victim. The fact that the person whose right have been violated is a member of a particular group is not relevant to the question of whether constitutional review is warranted, but rather to the character of that review and the scope of the latitude that will be allowed the Legislature.

71.         Lastly, my colleague raises the fear that our current decision in these proceedings will lead to a future petition asking that we revisit the issue. In his view, “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige”. I cannot accept that. First, factually speaking, I do not believe that one can say that there has been no real progress. Since the Court began examining the deferment arrangements, the matter has been addressed by legislation, and hareidi men have begun performing military and civilian service. Too a certain extent, the Court’s involvement served as a catalyst for the legislative process. Second, in matters such as that before us, founded upon ideological differences between different elements of society concerning values, we cannot expect that the issues will be resolved by the stroke of a single judgment – if such issues can actually be fully resolved.

              It is generally understood that the Court does not purport to bring about complete social change, but it is certainly one of the most important social agents for advancing the process of change. The Judiciary, in Israel as in other democracies, is one of the branches of government, and it has the potential for employing the tools at its disposal in resolving – even if that resolution is gradual or only partial – social strife. The Court’s contribution to resolving social rivalries is not always clear or immediate, and occasionally, Court proceedings and decisions stimulate a range of social processes, which are sometimes different from those sought in the petitions before it (and cf., in regard to the diverse influences of the monumental decision in Brown v. Board of Education [52], Martha Minow, In Brown’s Wake: Legacies of America’s Educational Landmark (2010), esp. pp 5-33). Indeed, the complexity of the dispute before the Court wholly influences the nature of the Court’s involvement, and the scope of its influence in resolving the issue, but that complexity should not, itself, lead to the conclusion that the Court should refrain from addressing the social issue. Therefore, I see no problem presented by the possibility that the Court may be called upon to address the issue before us again in the future, if there be constitutional legal grounds.

 

Conclusion

 

72.         As stated, the Deferment Law was enacted as a temporary order. It will soon expire. We now have an opportunity for retrospection, and for carefully examining its provisions. The very essence of legislating a temporary order is its impermanence and the need to revisit, and yet again reexamine whether the law is consistent with its purposes against the changing reality, and in light of its actual implementation. In my opinion, I pointed out the existing flaws in the law. Those flaws can and must be corrected before the Deferment Law expires.

              As stated, I am aware that if my opinion is adopted, the natural course of events may again lay the matter at our doorstep. That is not to be feared. The social processes are already afoot. We no longer stand where we were thirty or forty years ago. The Court was a partner to the processes that resulted in the enactment of the Deferment Law. The abrogation of the Law does not mean that we return to square one. The changes cannot be undone. The current objective is to correct the flaws that have been found in the current arrangement.

73.         Before concluding, I would note that the writing of this decision began long before the issue returned to the public agenda with the force that we now witness. The public debate, as I earlier noted, cannot prevent us form examining the legal aspects of the arrangement before us, while we strive to remain within the bounds of our authority, and to ignore the winds blowing about us. As required by the Deferment Law, and in view of its expiry in half a year, the matter now passes to the Knesset for debate, and it is its job to enact a law that will take into account the need to repair the flaws that we have indicated in the course of this judgment.

              In conclusion, if my opinion is accepted, I would recommend that my colleagues order that the Deferment Law remain in force until its expiry on 1 August 2012, and that it not be extended in its present form.

 

The President

 

Justice M. Naor:

 

1.           I concur with the opinion of the President.

2.           I would like to comment briefly upon the opinion of my colleague Justice Grunis. Justice Grunis foresees two scenarios: Under the first scenario, if the Knesset fails to enact a new law as a result of our judgment, then hareidi men will be required to serve in the armed forces, although few Israelis expect a mass conscription of yeshiva students into the ranks of the IDF, and a new petition will be required to coerce conscription. Even if such a petition is granted by the Court, my colleague believes that it will not lead to conscription. Under the second scenario, which he deems the more realistic, if a new law is enacted in an attempt to repair the flaws in the current law, a petition challenging the new law can be expected. In this regard, my colleague states that “in the absence of any real progress as a result of judicial intervention, this Court’s continual involvement in the issue of hareidi conscription certainly does not contribute to the Court’s prestige. Moreover, we delude ourselves if we expect that judicial decisions will lead to the conscription of hareidi men into the IDF, and to their integration into the workforce. Social and economic changes may lead to the desired result. The Court has little influence in cases like the one before us.”

3.           I would like to state clearly that the fear that Court orders will not be enforced is, in my view, misplaced, and certainly not one that we should countenance. The State of Israel is a state under the rule of law. In the State of Israel, the fear that orders will not be executed is unjustified. The rich experience of our judgments, even regarding difficult, complex and sensitive matters, is proof enough. Indeed, attempts to frustrate Court orders are doomed to fail. As this Court has already had opportunity to note in regard to the famous Brown decision, “such attempts at frustration are ultimately doomed to failure in a state under the rule of law, even if only at the culmination of prolonged legal proceedings. Indeed, it is a truism that justice and equality – even if delayed – will ultimately prevail” (HCJ 1067/08 Noar Kahalacha Assoc. v. Ministry of Education [27], at para. 14; on Brown, see Brown v. Board of Education of Topeka [52]; On the book Gerald N. Rosenberg, The Hollow Hope, 2^nd ed. (2008), see the review of Prof. Gad Barzilai, “Courts as Agents of a Social Change?” in Neta Ziv & Dafna Hacker (eds.), Is Law Important? (2010) (Hebrew)).

4.           My colleague is of the opinion that repeated consideration of the issue of hareidi conscription without achieving real progress as a result of judicial intervention does not contribute to the stature of the Court. In my opinion, what little progress that has been achieved – and first and foremost, the attempt by the Knesset and the Executive to address the issue in primary legislation – is directly attributable to the intervention of this Court. For decades, this Court practiced careful restraint, as we do again today. In today’s judgment, this Court does not issue a final order instructing the Executive to draft all the yeshiva students at once. Under these circumstances, it would seem to me to be inappropriate to speak of the failure to execute an order that has not yet been issued, or of harm to the prestige of the Court as a result of such non-execution.

5.           In conclusion, I am not of the opinion that the Executive branch of the State of Israel would refrain from enforcing judgments. In any case, our job is to decide the law and rule accordingly. In my view, there is no need to wait any longer. There is also no need to refrain from intervening. Therefore, as stated, I concur with the opinion of the President.

 

Justice

 

Justice E. Arbel

 

“The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple”

(Justice Barak, HCJ 6427/02 Movement for Quality of Government in Israel v. Knesset [2] (hereinafter: Movement for Equality of Government case).

 

The subject of the deferral of service for Yeshiva students for whom “Torah is their Calling” in its various incarnations has been on this Court’s table for many years. On all of the occasions that the Court addressed this subject it instructed itself to conduct itself with restraint and caution, in its awareness that the issue is located on one of the most sensitive seams of Israeli society, perhaps the most sensitive of them all. The Court’s self-imposed decree of caution and restraint was assumed while monitoring the “snail’s pace” processes taking place in the complex reality of Israeli society, in the hope of reaching the most consensual solution for all the world outlooks and life styles.

1.         In her opinion, my colleague, President Beinisch presented a broad review of the unfolding of events from the introduction of the arrangement for a deferral from military service in 1948, through to the petitions that attempted to challenge the legality and the constitutionality of the arrangement in the Ressler case (HCJ 910/86 Ressler v. Minister of Defense [3] and the Rubinstein case (HCJ 3267/97 Rubinstein v. Minister of Defense [1], in the wake of which the Knesset passed the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002) (hereinafter – Deferment Law, or the Law) and culminating in the ruling in the Movement for Quality of Government case, which adjudicated the constitutionality and the proportionality of the Law. In the last case the Court refrained from declaring that the Law was unconstitutional, and decided to wait until the termination of the Law’s period of validity, which the Knesset had set at five years. After that period the Knesset would have to determine whether the Law had actually realized its objectives. It ruled that “Unless there is a substantive change in the results of the Law’s implementation, there will be grounds for considering a declaration of its invalidity” (at p. 714). After the passage of five years and after hearing the positions of the professional bodies, who argued that at issue was a process of integrating and implementing a substantive social change which requires time, the Knesset extended its validity for an additional five years, until 1 August 2012.

            Against this background, the petitions before us were filed, being rooted in the question of the proportionality of the Law. On 29 May 2008 an order nisi was issued, and on 8 September 2009 a decision on the petitions was handed down (by Justice Hayut), ruling that before making a final decision upon the constitutionality of the Deferment Law, its mechanisms “which have only just begun to take shape and begin to operate” should be enabled “to prove their effectiveness or ineffectiveness by their results over an additional, fixed period”. (para. 9 of Justice Hayut’s decision). Accordingly, this Court fixed a period of an additional 15 months, after which the hearing of the petitions would be renewed; now the time to decide has arrived.

            At the end of her comprehensive judgment, my colleague the President concluded that the Deferment of Service Law is unconstitutional because it fails to meet the proportionality requirement of the limitations clause in Basic Law: Human Dignity and Liberty, and should therefore be voided. On the other hand, the President suggested deferring the declaration of annulment and allowing the legislature to complete the period scheduled for the validity of the Law, thereby allowing the legislature to examine the comments in her decision and to establish a new order that took it into account as well as the previous judgments in the cases of Ressler case, the Rubinstein and the Movement for Quality of Government case.

2.         Unfortunately, I am unable to concur in the result in the decision of my colleague the President. I stride together with her along a significant portion of a long road and agree with the general principles of her opinion, which are actually a continuation of the previous decisions concerning the enlistment of the yeshiva students. All the same, I do not think that it is appropriate at this stage to decide the fate of the petition. In my view even after the extension of the validity of the Law, and in view of the trend, albeit delayed, which has been demonstrated before us, the competent authorities operating parallel to the Government should be given extra time to operate in a manner that examines whether the Law can actually promote its goals. I therefore take the view that the Court should persist in its self-decreed policy of caution and restraint which it has always abided by in this subject. I would therefore propose that at this time the petition should remain pending before this Court, while monitoring the stages of implementation of the Deferment Law, and whether it succeeds in generating the desired societal change.

3.         Before setting forth my reasons I wish to clarify that the matter is by no means is easy for me. With all my heart I identify with those who complain about the inequality and the discriminatory allocation of the burden. I too share my life with a husband who serves as a senior officer in the regular army. All the members of my family, my daughters, sons in laws – who received security prizes – and my grandchildren – served and serve in the I.D.F, motivated by a sense of commitment and desire to contribute. My heart lies with those who say: no more inequality, no more exemption from bearing the burden of military service – a duty which in my view is a privilege for those seeking to enjoy the totality of rights to which the Israeli citizens are entitled. It would have been easy for me to add my opinion to those who argue that there is a limit to the degree of tolerance that a society can bear in waiting for the narrowing of gaps that reflect a societal inequality, especially when the inequality relates to a duty that involves a risk to life. It would therefore have been easy for me to concur with my colleagues who maintain that the Deferment Law does not meet the requirements of proportionality.

            All the same, having considered and reconsidered the matter, and with a heavy heart, I have arrived at the conclusion that the Deferment Law should not be voided at this time. This conclusion is based on the numerical data, together with hope and belief. This conclusion is based on the imperative of accommodating the processes underlying the nucleus of the Law to mature and to ascertain whether the Law has lead to the desired change, to the integration of the Yeshiva students in the frameworks of military and civilian service, in the work market and in the life of the State of Israel. My conclusion is based on my impression that we have yet to reach the moment of truth and that the time to drop the curtain on the Law and declare it unconstitutional has not yet arrived. The upshot of this holding is to restore the complex, painful constitutional and social dilemma to its starting point. And what then:

 

Let me clarify my position.

 

The Deferment Law

 

4.         The process of the Law's enactment was based on the work of a committee that sat on the problem for a protracted period. The Tal Commission was requested to formulate an appropriate arrangement for the subject of the enlistment of yeshiva students into the I.D.F. In the words of the its report, it attempted to choose a mediating solution. The Commission did not ignore the principle of equality and attempted to strike a balance between it, and other conflicting interests, ruling that "commensurate weight should be given to the differences between the groups, and commensurate weight should be given to the principle of equality, so that the difference in treatment not deviate from what is compelled by the relevant differences between the groups”. The Legislature endorsed the recommendation of the Commission, and in the Explanatory Note, wrote:

 

‘The changes recommended by the Commission are intended to enable the I.D.F to absorb the Haredi population into frameworks suited to them and in parallel to enable the Yeshiva students a "year of decision" at the end of which the student is permitted to return to his Torah studies in the yeshiva or to be integrated, in accordance with the Army's needs in shorted military service or civilian service, as well as into reserve duty (Draft Bill of Military service (Deferment of Service for Yeshiva Students whose Torah is their Calling) (Temporary Provision) 5760-2000, HH 455).’

 

The legislative process was a thorough, deep and painstaking process. The Deferment Law as ultimately adopted reflected an arrangement of social compromise; its purpose was to balance and bridge between conflicting trends (see comments of President Barak in the Movement for Quality of Government case [2]. para. 54, opening phrase). This would take place in recognition of the complexity of the reality that had materialized since the establishment of the State, prompted by the need and the desire to mediate between the different sectors of Israeli society concerning a matter lying at the very heart of our existence here – military service. The Law seeks to respect the different world views and lifestyles that make up Israeli society, without compromising the need for a equal allocation of the burden carried by the citizens of the State. The Law achieves this by establishing a framework for the gradual integration of the Yeshiva students in the frameworks of military and civilian service.

 

            It seems that during that entire period it was clear to all that time would be required to generate the genuine social change that would lead to the reduction of the inequality, and that such a process could not occur immediately, but rather step by step. The understanding that a social change can only materialize as a result of a gradual process that must be allowed to take place was also the basis of this Court's decision not to pass judgment on the Law prior to the full passage of its period of validity. Justice Procaccia's comments in the Movement for Quality of Government case [2], are of particular pertinence in this context:

 

‘The democratic process is based on the recognition that it not always possible to achieve the goal of equality between different sectors of the population in reliance on absolute formulae. It relies on a deep understanding of the social reality, its exceeding complexity, and the awareness that the achievement of equality may entail a gradual societal progress for locating the points of contact between the various sectors of the population, in recognition of the depth of the gaps between world views, lifestyles, and an understanding of the roles of the state which may lead to one community being set apart from the rest of the public. It is rooted in a definition of the appropriate goal and objective and the adoption of the appropriate steps for their realization. This may entail the gradual realization of the goal without disruption all of the networks, without destroying a fragile human-social fabric and without raising an axe that may cause irreversible social damage. It may necessitate a process of building, block by block – not by denunciation and condemnation, but by adoption of a path of respect and understanding for the one who is different, always striving to come closer and with a commitment to lowering the barriers of division. The democratic process shows understanding for the variety of needs of the members of the various communities, and attempts to find the common factor and the balance between them with the aim of enabling harmonious social life. Occasionally, the social process is a long term one, involving suffering on the way, and is unable to produce significant, immediate results (ibid. [2] at p. 791)

 

5.         Almost ten years have passed since the adoption of the Law. Undeniably, this is a long and protracted period. The picture emerging from the data presented to us is that during this period the Law did not lead to outstanding social change, and certainly not to the desired equality. All the same, one can discern a clear trend of process relative to the situation that preceded the Law. Processes of this kind, by their very nature may lead to a loosing of patience and the drawing of conclusions relating to the lack of purpose in the Law. My view however is that there are various considerations, which I will presently set forth, that may lead to a different conclusion, in accordance with which, despite the passage of years, and even if more could have been done, this period of time is not sufficient to complete the complex process of integration under the Law, and hence it would be unwise to cut it short prematurely. More time is required; more patience is required, and primarily, there is a need for persistence and tenacity in proceeding along the potholed path from which Israeli society in its entirety, including all of its sectors, will emerge for the better. I am aware that this is a process that may last for years, but in my view the first buds of change are already discernible and they must be allowed to develop.

6.         In my view the veracity of this conclusion is fortified when considering the background against which the Law’s effect is being examined. Since the establishment of the State, haredi society has lived in accordance with its world view, according to its defined life style which includes, inter alia the deferment of service for the men of community, whose life revolves around studying in yeshivas. This life style is a dominant element in the self-definition of the community, and it is therefore clear that the desired change has a chance only if it is part of a long process accompanied by patience and tolerance. This is a process that must be promoted, as has been done until now in the framework of the law, gradually, and in coordination with the members of the community, in manner that does not violate their basic beliefs (per Justice Levy in the Movement for Quality of Government case [2] at p. 785). The process must be overseen with eyes that are open and perspicacious, which understands that the process is one that will not occur in a day nor even in a number of years. The need to adapt to a change is not only that of the haredi community. The conscription of the members of this community into the I.D.F. may and already has triggered various problems stemming from the tension between the army life style and the haredi life style, such as the adaption to kashrut requirements and integration into the overall fabric of the I.D.F. The success of this process likewise depends upon finding solutions to these difficulties, with caution and mutual respect. To be precise: I do not claim that the difficulties are insoluble. It can and must be done, but it must be done with common sense, sensitivity, demonstrating patience, optimism and tolerance.

 

The Numerical Data

 

7.         A central foundation of my position lies in the data that was presented to us.

In her opinion, my colleague the President examines the numbers of those who enlist to the I.D.F and civilian service from the haredi sector in relation to the overall number of those receiving deferments. Today, this group numbers 61,000 men. I would suggest a different method for examining the data because I do not think it practical to expect that the older members of the community and heads of families will, today, enlist in the Army, or even apply for civilian service. In my view we should not look to the past, but focus on the present, with our faces towards the future. Accordingly, I suggest examining the data in accordance with the number of those whose service is deferred each year from the haredi community as opposed to the annual figures of those who join the framework of military service or civilian service. In my understanding, this is a realistic examination that has consideration for the existence of a process and which anticipates a gradual progress over the course of years. An examination of the number of those joining the service each year in relation to total number of those whose service was deferred over the years, in my view, ignores the fact that the one of the purposes of the law is to "bring about a gradual solution of the difficulties that existed in the arrangement for the deferral of service for Yeshiva students, in a gradual, and cautious manner (Movement for Quality of Government [ ], para. 54 of President Barak's judgment

            In my view, an examination of the data in this manner demonstrates the beginning of an encouraging trend. From the data presented by the respondents it emerges that in 2007 the potential enlistment pool was estimated at a potential of 4,850 men. (including those expected to enlist to the hareidi Nahal battalion). Only 303 people of the haredi community enlisted in the army during that year (including the hareidi Nahal) or joined the civilian service – in other words –only 6% of the potential enlistment pool. . In 2008 on the other hand, the enlistment pool numbered about 5000 in comparison with 823 haredi men who entered military or civilian service, in other words about 16%. In 2009 the potential enlistment cycle consisted of 5500 young men, of whom 1732 men joined one or another kind of service, namely about 31%. In 2010 the potential enlistment pool stood at 5,800 men. In that year 2020 men from haredi society enlisted in the I.D.F. or entered into the civilian service, which means 35% of the numerical datum of new enlisters. Having consideration for this trend, the respondents anticipate that in 2012 about 50% of the haredן enlistment pool will join the Army or civilian service. Regarding the year 2015, the expectation is 65%. It should further be added that in updated response of the respondents of 24 January 2011 we were informed that in 2009 the number of those serving in the military stood at 1357, of whom there were 729 new recruits into different tracks (Nahal Haredi and Shahar). In 2010 there were 2048 haredi men in the Army, of whom there were 898 new recruits in the Nahal and Shahar tracks (p. 21 of the Government's response 24 January 2011

            My view is that on the face of it these numerical data reveal a certain measure of progress and an increase in the numbers of the members of haredi sector who enlist in service, and this progress was also mentioned by the President (para. 50 of her opinion). These data, along with an optimistic forecast, albeit tempered by an element of scepticism and caution, justify giving a proper opportunity to the Law to prove its ability to promote its purposes

8.         Parenthetically I will note, further to the above, that after reading the response of my colleague the President to my opinion, I find that two points should be sharpened:

            First, my view was, and still is, that the inductees into the Nahal Haredi should be included in the framework of the numerical data that serves as a foundation for the decision. The assumption is that if not for this special track these young men would not have enlisted in the army and would have joined the ranks of "those whose service was deferred", because these are not the young men who have deserted the Haredi society. As such even if the track was not created by force of the Deferment Law, it still fulfills its objectives. It bears mention that these recruits are also included in the numbers of those who express the size of the haredi enlistment pool in the data mentioned above. This being the case this datum should also be considered when examining the number of recruits from the total number of those in the pool.

            Furthermore, if we ignore this datum and ignore the datum of members of the haredi community who choose to enlist to Nahal Haredi, we will discover that the trend of integration of the haredim into any kind of service, civilian or military, becomes even more pronounced. Hence, in 2007 only 53 young haredi men joined any kind of service – army or civilian, that was not part of the Nahal Haredi, from out of the enlistment pool of that year that numbered 4600 men – which means only one percent. On the other hand, in 2010, 1652 haredi men joined the military or civil service without including those who serve in Nahal Haredi – from an enlistment pool which in that year was in excess of 5470 men, and as such represents 30%.

9.         Another point relates to the including of those who joined civilian service in the numerical data. My colleague the President analyzes the numbers and presents the percentages based on joining the military service only, without the soldiers of the Nahal Haredi and without those who join the civilian service (para. 31 of my colleague's opinion). In my view, at this stage the examination should be based on those who enlist into military service as well as into civilian service. Indeed, in order to reach full equality, all of the members of the haredi sector should enlist in the army and not suffice with national service,. which is the obligation of the majority of the other sectors of Israeli society. All the same, this Court has already recognized that the purpose of the Deferment Law is to bring more haredi men into military or civilian service, as an appropriate goal that satisfies the requirements of the limitations claused (see in Movement for Quality of Government case [2], paras. 54-55 of the opinion of President Barak). President Barak wrote as follows:

 

‘In doing so the goals of the Law are realized: It enables the deferment of service for those who so choose; at the same time many will turn to the tracks of military or civilian service. The inequality will be reduced; there will be an integration of the haredi men into the work force; these changes will occur in a gradual and cautious manner, without coercion and by way of agreement (Movement for Quality of Government [2] para. 63 of President Barak's judgment).

 

In other words, in the complex and protracted process required in the move towards full equality, it must be recognized that contributing to the State by way of civilian service will also constitute an appropriate goal, even if it does not achieve full equality.

10.       Further to the data that were presented at the time by the attorney for the state, I wish to present current data from a session of the Foreign Affairs and Defense Committee, of 23 January 2012 (as recorded from the broadcast of the Knesset channel) which addressed the issue of the conscription of haredi men, coming from statements made by relevant professional entities. These data too support my approach and likewise indicate the nascence of a positive social trend towards the realization of the objectives of the Law, a trend in respect of which the professional entities too are optimistic about its continuation.

            Professor Eugene Kandel, the head of the National Economic Council who was a member of the interoffice panel that examined the encouragement of employment and promotion of national and civilian service among the haredi public (Gabbai Commission) claimed that “The cup is still not quite so empty and in recent years has been filling up with increasing rapidity”. Professor Kandel noted the growing trend towards the integration of haredi men both in military and civilian service frameworks. For example, whereas in 2007 the numbers of haredi men that enlisted in the I.D.F stood at only 288 men, by 2011 this number had grown to 1282. Regarding civilian service, in 2007 the number of haredi men who joined was only 15 only, by 2011 the number of those who joined had jumped to 1090 men. He emphasized that the Government had achieved the enlistment targets that it set for itself until that time, and that these targets were increasing annually so that by 2015 it was expected to reach 60% of the haredi community who would join either the military or civilian service. Finally, he mentioned that in the wake of these positive trends it was also possible to discern a growing trend over the last three years of Haredi men who were participating in the work force.

            General Orna Barbibai, Head of Manpower Division, noted that in 2011 the I.D.F recruited more haredi men than planned into the various haredi frameworks. The plan was to recruit 1200 haredi men, whereas in fact 1409 were enlisted, including within the framework of hareidi Nahal. She emphasized that the army had detailed plans for the absorbing and integration of haredi men expected to enlist in accordance with the Government targets, in the coming years. She agreed with Professor Kandel that there was a discernible increase in the enlistment of the haredi men into the Army. In her view, these data are encouraging “the datum of enlistment is a blessing and we believe that it should be promoted”

            Sar-Shalom Jerbi, the director of the Civilian Service Administration, claimed that there had been a real revolution in the world view of the haredi sector with respect to service. He too pointed to the growing tendency among the haredi towards joining the Civilian Service. He stressed that as distinct from the commonly heard criticism, the haredi men who serve are not integrated in their service in the yeshiva frameworks, even though there are those who provide assistance for at-risk youth. The areas in which they serve are welfare, public health, absorption of Aliyah, environmental protection, internal security, and rescue services. He also mentioned that only 57% serve within the community and that the tendency in the administration is to enable less service within the community. Finally he referred to a survey conducted among those who had completed civilian service for haredi men, which indicated that 78% of them intended to study or to go out to work after the completion of the service.

            Dr. Reuven Gal, a sociologist, and one of the founders of the Civilian National Service, and an academic researcher claimed that according to the data, the haredi public was becoming a partner to the service at a particularly fast rate, and that there had been a jump in the numbers beginning as of 2005 and until 2011. He maintained that social phenomenon do not generally take place at such an accelerated rate. About 10,000 hareidi men joined the frameworks of state service over the past 5- 6 years, both that of the military service and that of the civilian service. He further stated that both tracks, the military track and the civilian track constitute levers for the integration of the haredi population in the employment pool. Dr Gal’s recommendation was that Law be extended for another five years, parallel to the introduction of changes in the civilian and military tracks.

General (res.) David Ivri, the Chairman of the Temporary Public Council for Civilian National Service clarified that the Administration of the Civilian National Service only began functioning in 2007, and that it must be taken into account that the initial implementation of any new legislation would take many years. In his understanding, an opportunity should be given to the existing law, which had lead to very positive developments in relation to the statistics of those serving from among the haredi sector. He related that at the beginning he had thought that the haredi sector should be compelled to enlist, with no other choice, but that having been exposed to the complexity of the society problem and the difficulties involved in its conscription enlistment, he changed his outlook on the matter. In his view, at this stage it would not be proper to impose a duty of service and the voluntary aspect of the law should be left intact.

            We can therefore see that all of the professional bodies that were present at the hearing felt that the data points to satisfactory progress that should be continued and encouraged within the framework of the existing law. Not one of the professional bodies contradicted these conclusions at the hearing

.

The Objectives of the Law

 

11.       An additional layer to be mentioned relates to the objectives of the Deferment Law, which President Barak referred to as being appropriate, in the Movement for Quality of Government case. It will be recalled that the Law has four objectives. The first is to entrench in Knesset legislation the arrangement for the deferment of service for yeshiva students for whom their Torah is their calling and who wish to study in yeshivas. The second is to bring about greater equality in the allocation of the burden of military service in Israeli society, so that more members of hareidi community are integrated into military service, or at least civilian service. The third is to increase the participation of the haredi public in the pool of employment. The fourth is to bring about a gradual solution to the problems attendant to the arrangement for the deferral of service of Yeshiva students, based on broad consensus and without coercion (see Movement for Quality of Government [2], at pp. 700- 701). In respect of these purposes President Barak ruled:

 

‘Are these purposes “worthy”. In my view the answer is in the affirmative. They are intended to integrate the Hareidi sector into the texture of the life of the State, and thus assist that sector in reducing the inequality and to arrive at an arrangement that is acceptable to all the sections of society. They are intended to engender a long term societal change, which will lead inter alia to a reduction in the dimensions of the Deferment arrangement for Yeshiva students. These purposes, in their interaction, satisfy the requirement of a proper purpose. An arrangement was established the overall balance of which is consistent with the fundamental conceptions of Israeli society’ (Movement for Quality of Government para. 55 of President Barak’s opinion).

 

Given the characteristics of the hareidi public and the lifestyle to which it has become accustomed over many decades since the establishment of the State, I think that the admixture of these objectives at the beginning of the process will differ from the anticipated admixture at the end of the process. Conceivably, at the first stages emphasis will be placed upon the objective of incorporating the haredi public in the work force, which is an objective to which there is less opposition among this public and which can be incentivized in a more significant manner (regarding the ramifications of the non-participation of the hareidi sector in the work force see the Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter – Gabbai Committee Report). The economic straits in which many of the hareidi community currently find themselves may lead, and it would seem that it has already led to an increase in the integration of the members of this community in the work force. The nature of the work force as opposed to the characteristics of military service contributes to this. It may be added that the hareidi community is averse to the integration of its young and unmarried people in the general society given its fears of society's influence over them, which can be more profound. It is clear that the integration of the hareidi population in employment will in and of itself constitute an achievement not to be treated lightly.

            In my estimation, to the extent that the hareidi public becomes more integrated in the employment market, and all will observe, hopefully, that they can be integrated into the work force at no cost to the special character of the community, it will become easier to stiffen the requirement for the integration of members of the community into the frameworks involving more meaningful army and civilian service (see Justice Procaccia’s comments on this point Quality of Government [2], at pp. 793). In other words, the balance of proportionality will change to the extent that the process of integration continues. Accordingly, I do not think that we should recoil, at this stage, from sufficing with a requirement of a relatively short military and civilian service and from the exemption given to those of certain ages from regular service, that enables them to go out to work.

            I will again repeat that in my view the purpose of achieving equality in the allocation of the burden will not be achieved by coercion (see Movement for Quality of Government case [2], which refers to the Tal Commission Report; and also at p. 702), but only by a long and patient process. This conclusion is consistent with the fourth objective of the Deferment Law, namely, the achievement of a gradual solution based on broad consensus. Consideration should also be had for the fact that one of the objectives of the law, recognized by this Court as a an appropriate objectivee, is to legally anchor the deferment of the service of yeshiva students. As such it should be recognized that a certain part of the haredi community – which given that the purpose of equality is also part of the law, will be relatively small – will continue to study in the Yeshivot in the future without bearing the burden of military service.

 

Decision Year

 

12.       In her opinion, my colleague the President attached particular significance to the resounding failure of the decision year mechanism under the Law. I agree with her that this mechanism has not proved itself in terms of achieving the required change. All the same, the purpose of enlistment to the army or joining civilian service does not entail taking a year of decision. It therefore seems that the additional mechanisms in the Law, as well as the incentives that have and continue to be created by the Executive branch over the last few years are leading to a gradual, albeit slow change. The failure of the decision year mechanism, does not, in my view, in and of itself justify the declaration of the invalidity of the law.

 

Civilian-National Service

 

13.       The mechanism of civilian service only began to operate in 2008, after a Civilian Service Administration was established (hereinafter: the Administration) in 2007. The Administration was established in accordance with the recommendations of a committee headed by General (Res) David Ivri, appointed by Minister of Defense, and it recommended the broadening of the civilian service to include all Israeli citizens and residents who were not called up for military service or who are exempt from military service. This would be in addition to the recognition of the preferred status to be given to compulsory military service. The civilian service mechanism is a central component of the process contemplated by the Law. The Administration has only been operating for a relatively short period of time, In my view, only after the mechanism established for implementing the integration process has been operating regularly for a particular period of time, will it be possible to evaluate the Law’s degree of success in realizing its objectives.

            I have not ignored the criticism of the manner in which the civilian service is run and the absence of sufficient supervision. In any large network that begins to operate failures and difficulties are to be expected, in a manner akin to “birth pains”. These difficulties do not warrant the cancellation of the network and certainly not the cancellation of the Law in its entirety. Presumably, there will also be those from among the hareidi population who will seek to benefit from the advantages offered by the Law without conferring any real substance to the civilian service which they are committed to by reason thereof. In my view, at least at this stage, these failures must be treated, inter alia by tightening the supervision and allocation of the resources required for that purpose. Civilian service must constitute a real contribution to the society and not just lip service – a ticket into the work market. All the same, this is a far cry from a conclusion that the Law is void. I will add that the criticism of the activities of the Administration is based on the State Comptroller’s Report of 2009, and passage of time since then has – as submitted to this Court – witnessed significant changes: The Administration has contracted with an external body that assists it in all of its contacts with those who serve. Amongst other things, one coordinator has been allocated for every 45 servers, on the average and he bears responsibility for them and conducts ongoing inspections. It was explained that the coordinator visits the place of activity of each server on an average of once every two weeks. Any impropriety is reported directly to the Administration. In addition, each server is required to submit a monthly attendance report which must be confirmed both by the operating body and the coordinator. The Administration reports that cases of false reporting concerning attendance were treated with severity and some of the servers were even transferred for the treatment of the military authorities. The results of these measures and their contribution to the achievement of the aims of the Law can only be examined over the passage of time.

            I will add that yeshiva students between ages 22- 25 without children will be obligated to do either military service or civilian-military service, in frameworks such as the Police, the Prison Authority, Fire Extinguishing and medical evacuation, which can find their parallel in military service. I see importance in introducing activities that will encourage yeshiva students to turn to military service, as well as to civilian-military service. In fact, from the statistics it is evident that the existing training in the military service framework already creates this kind of incentive, given that it prepares the graduates of the track for their integration into the work market. From my perspective, consideration should be given to additional measures that will specifically incentivize the choice of the military service track, as the professional personnel may deem fit.

 

The Functioning of the Executive Branch

 

14.       Another reason for the decision that the Law is not constitutional is that the Law confers the Executive branch overly broad freedom of choice. I believe that this is a reason for judicial oversight of its implementation but not for declaring the Law to be void. The complexity of the subject before us was known to the Legislature. Understanding the uniqueness and the sensitivity of the hareidi population and recognition of the limited power of coercive measures in this context necessitated giving relatively broad leeway for actions on the part of the executive. The combination of numerous and conflicting goals in the framework of the same law also necessitated that the wording of the law be general and broad in a manner that would accommodate the infusion of substance in accordance with reality and changing conditions. For as long as the Executive acts in a reasonable manner towards the optimal execution and implementation of the Law I do not think that this reason can justify the disqualification of the Law,

            As mentioned, it seems that indeed during the first years of the Law’s existence not enough was done for its implementation and matters proceeded at snails pace. However, it seems that today the efforts have been stepped up significantly, notwithstanding that there are still additional measure that can be adopted. Accordingly, the respondents notified us that the I.D.F is busy in the establishment of new frameworks that will enable the absorption and integration of the hareidi population in an army framework. To do so a decision was adopted to increase the I.D.F budget and to designate it for that purpose. There are now a number of tracks that integrate the hareidi population (Shahar) – apart from the well known hareidi Nahal – in the Air Force, Intelligence, Computer and Communications, Navy, Technology and Logistics, Manpower and in the Home Front command. Some of these tracks were opened just recently, and it is to be hoped that they will develop and draw additional hareidi men wishing to serve. We were further informed that many new tracks are going to be opened in the near future. It bears note that in the course of the service or before it the participants undergo supplementary “practical education” as well as training in various professions. There is also the possibility of integrating in the army framework as well as the increased chances for the participants to be integrated in the work force after military service, which is also evidenced from the data indicating that about 80% of those who join the Shahar tracks integrate thereafter into the work market.

            We were further told that that the Government had decided to create an abbreviated military service track of three months duration for men aged 26 and upwards. The graduates of this track are supposed to serve as the preparatory network for states of emergency, where there are currently indications of a manpower shortage. As for the older yeshiva students, age 28 and over they are designated for the reserve duty pool. Regarding this point I will point out that even though I do not think that the latter arrangements achieve full equality, I think that in order to bring about a real change a realistic approach is required, which accepts – if only for the time being – the possibility that the possibility of integrating older yeshiva students into service is limited, and what’s more – its benefit is in doubt. This is especially so in view of the fact that the Law gives de facto recognition to the fact that not all yeshiva students will be enlisted, as mentioned above.

            In addition, the Civilian Service Administration is working diligently to increase the supply of frameworks as well as the numbers of those serving. The list of operators at the time of giving of the respondents’ reply stood at 209. Efforts are being made to publicize the civilian service track among the hareidi public, in a manner that does not provoke opposition. The Administration, as stated, contracted with an external body, part of its duties having been to supervise and conduct ongoing inspection of the activities of those serving The Government too decided upon the establishment of a civilian-military option, and we recently learned from the press about the opening of the first cycle of hareidi men serving in Israel Police as part of the civilian service. In that framework too work is currently underway to increase the incentives by way of programs that will assist the servers in integrating into work after completing their service. Apart from all of the above, the Government charged the interoffice committee established for that purpose with the ongoing monitoring of the targets it had set and the implementation of the Government decision regarding the attainment of those targets. The panel was likewise charged with examining the need to adjust the measures being taken if required, and to submit its recommendations to the Government until 1. July 2012

15.       The picture emerging from the entirety of actions underway is that the Executive is currently working for the implementation of the Law and the promotion of its goals and is even monitoring the progress and handling of the subject. Conceivably, these actions have been done at a relatively late stage, and possibly we were hoping for a different pace. Even so, in my view the aforementioned activities and its horizon leave room for hope and do not justify a determination that the Law is void In my view, these efforts, along with the data attesting to a positive trend, and having consideration for the forces attempting to undermine the trends of change, justify granting another appropriate extension to enable the continued examination of whether the trend is an ongoing one.

 

The Alternative Scenario

 

16.       As is well known when disqualifying a law, the judge is not required to demonstrate the consequences of that disqualification (see comments of the Deputy President M. Cheshin in the Movement for Quality of Government case [2] at p. 778). At the same time, in the sensitive case before us, when confronted by the appropriate goals of the Law, I think that we must be aware of the consequences of a declaration that the Law is void .

            I accept the position of the State – that the disqualification of the Law will not enhance its ability to realize its objectives, and that there is even a real chance that it will damage the possibility of achieving them. It seems to me that even those who support the disqualification of the law do not think that one day after the disqualification the much desired equality will be attained. The disqualification of a law means an upheaval. The Knesset will be required to pass a new law. One cannot rule out the possibility that this will require the establishment of an additional committee which will similarly required a significant period of time to discuss this particularly sensitive and complex issue. The Knesset will have to find another creative solution, the operation and implementation of which will likewise last a long time, and its success is not guaranteed. It may further be assumed that a committee of this kind, as well as the Knesset, will prefer to avoid an agreement the essence of which is a forcible conscription, even if only because such a move would not be effective and might well bring results that are the reverse of those that are currently confronting us. This being the case, and as much as I understand the anger and the frustration, I do not think that this process should be cut short just when it has begun to bear fruit, even on a limited scope, and in my view patience is likely to bring about the hoped for change. There is no escaping it: the Supreme Court sits among its people and when addressing such a sensitive and complex subject it must give consideration to practical matters which will make its decision relevant and not a dead letter in practical life. It is understood that if, parallel to the implementation of the Deferment Law, the Knesset deems it proper to change the Law, amend it, or enact another one in its stead, in a manner that achieves equality and sharing of the burden at a faster rate, then we will only be able to commend and bless it. As stressed by President Barak:

 

‘Of course, one can conceive of different and various solutions, reflecting different balances and different compromises between conflicting social objectives. This is a matter for the political sovereign powers. It is not a matter for the judiciary. The question confronting us is not whether other objectives or compromises could have been found, similarly, or even more appropriate. The question is whether the objectives forming the basis of law, reflecting the legislature’s perception concerning the solution of the social problem confronting it – are appropriate (Movement for Quality of Government case [2], para 56 of President Barak’s opinion.

 

The Position of the Committees Engaged in the Matter

 

17.       In terms of background, it is important to mention the recommendation of the two central committees that examined the subject of the conscription of yeshiva students, following the Tal Commission, the recommendations of which formed the basis of the Deferment Law. One of the committees is the Gabbai Committee – an interoffice committee established pursuant to a government decision of 15.July 2010. The recommendations of this committee were submitted to the Government on 19 December 2010, and were for the most part endorsed by a government decision of 9 January 2011, The committee comprised the Director General of the Prime Minister’s Office, the Head of the National Economic Council, an I.D.F representative, the Head of the Civilian-National Service Administration, as well as representatives of the Attorney-General and of the Ministry of Finance and the Ministry of Trade and Industry. The committee examined both the subject of enlistment of hareidi men into the army and into civilian service, and the integration of the hareidi sector into the employment cycle. From this broad perspective, the Committee submitted its conclusions for the implementation of the Deferment Law, positing clear and realistic targets for the service of the hareidi men until the year 2015. The Committee’s view was that these targets could be attained by the Deferment Law and it recommended the addition of service tracks, including the abbreviated service track, the combined service track and technological education track for hareidi youth. The Committee also recommended civilian-military service from age 22, the combination of professional and occupational training in various service frameworks and for appropriate funding for the Ministry of Defense in order to implement the recommendations. Finally, the Committee noted that in the event that after the implementation of all the recommendations there was still an insufficient number of servers from the hareidi sector in the I.D.F. or in the civilian service, it would be appropriate to consider a change in the system of incentives for service, which would include both positive and negative incentives.

            An additional panel that dealt with the issue was the team for examining the implementation of the “Tal Law” headed by MK Yohanan Pelsner (hereinafter – Plesner Panel). This team was appointed by the Knesset Foreign Affairs and Defense Committee and comprised six MKs from different parties. The Panel submitted an interim report on 16 January 2011, albeit without the concurrence of its two hareidi members with its conclusions. While the Panel deigned that the implementation of the Tal Law had failed, its overall position was that the Deferment Law should not be voided but rather “the policy and legislation should be changed so as to adapt the networks established therein to the positive processes that are taking place within hareidi society and the accumulated lessons regarding the conditions under which the hareidi men are enlisted into the I.D.F.” At the end of the day, the differences between the conclusions of the Pelsner Panel and the Gabbai Committee are not particularly significant. The Pelsner Panel too felt that the existing tracks in the I.D.F for the integration of the hareidi men should be broadened and new tracks established, both in accordance with the existing model and in accordance with a new perception, such as military service combined with studies in yeshiva. In addition, the Pelsner Panel felt that emphasis should be placed on the broadening of the combat tracks for haredi men. Regarding civilian service, the team felt that the Civilian Service Administration should be appended to the Prime Minister’s Office and become a body of vision and establishment of policy. It also recommended increasing the numbers of those charged with locating volunteers in the hareidi community and of bodies to absorb them; the adaption of the service frameworks to the hareidi lifestyle; the marketing of the benefits accompanying service and the accompaniment of those serving for purposes of employment placement upon become regular citizens. The Panel also supported civilian –military service for those aged 22 and upwards.

            The Government decided to conduct a system of double monitoring and supervision. The first would be by way of an interoffice term headed by the director general of the Prime Minister’s Office, to conduct the ongoing monitoring of the implementation of decisions, as well as to decide upon additional measures in view of the accumulated experience. The second would be a report submitted by the Panel until 1 July 2012, containing its recommendations to the Government, in a manner that enables ongoing monitoring and supervision.

            It thus emerges therefore that the two panels that examined the subject in depth felt that the implementation of the Deferment Law should be continued. The recommendations of the Gabbai Commission were endorsed in full by the Government, and the recommendations of the Plesner Panel are not substantially different, apart from its greater emphasis on a more meaningful combat service for the hareidi sector. Of course, this Court is not bound by the recommendations of these committees, but they can certainly be one of its considerations.

 

More on Equality

 

18.       A final matter I would like to add pertains to the principle of equality. Much ink has been spilt on the importance of equality in general and specifically in the context of the enlistment of yeshiva students whose Torah is their calling. Evidently, it is undisputed that equality is the touchstone of a democratic regime, and a central component of the relations between the individual and the state. One cannot maintain a society in a democratic state in the absence of equality, which is one of the derivatives of justice and fairness. Equality is synonymous with justice and fairness as perceived by the members of the society in any given period – equality that leads to justice, equality which represents the path of fairness. (see HCJ 7111/95 Center for Local Government v. Knesset [28], at p. 502. Regarding the yeshiva students, in a previous incarnation this Court held that the right to equality is part of human dignity, which is anchored in Basic Law: Human Dignity and Liberty, to the extent that it is tightly and substantively related to human dignity.

            Obviously, I have no dispute with my colleague the President or my other colleagues concerning the status and position of the right to equality in our legal system. Like her, I too endorse the constitutional analysis and holdings of President Barak regarding this matter as well as with respect to the remedy (Movement for Quality of Government case [2] at pp 683-685). I too share the aspiration to quality in the enjoyment of rights and bearing of obligations, and primarily in the allocation of the burden borne by the citizens of the state in protecting state security. The violation of equality in this context is grave and may cause fissures in the fabric of society, damaging the foundations of the regime. Accordingly, everything possible must be done to allay the problem with all possible speed. Even so, in my view, the reasons outlined, which justify granting additional time for rectifying the violation of the right, should be supplemented by a number of additional considerations which focus on the subject of the violation of equality.

            First, in my opinion it should be recognized that the violation of equality does not admit of immediate rectification. The shortest and most promising path to the attainment of the desired equality, is the path that currently appears to be long and arduous. As I mentioned, a declaration that the Law is void, with the aim of formulating a new law which will expedite the process appears prima facie to be a faster and easier way of attaining equality, but it is highly probable that this path will turn out to be the longer path. It will be stressed: This does not mean that what has been achieved thus far is sufficient. The holding that at this stage the violation of equality is proportionate is actually a “conditional” holding. It is based on the trend indicating progress that was presented to us by the State, supported by statistics regarding hareidi participation in military or civililan service as well as by what we have gleaned from the professional personnel that appeared before the Foreign Affairs and Defense Committee, as specified above. The State must continue to utilize the existing means, as well as to add new ones, which will encourage the continuation of the trend that was presented before us. Stymieing the trend towards an increase in the numbers of hareidi men that join military or civilian service may portend the end of the role played by the Deferment Law in realizing its objectives, which in turn would lead to the declaration of the Law as disproportionately violating the principle of equality.

            Second, as mentioned, the enlistment of the haredi sector into the army necessitates special arrangements (a special professional training network, Kashrut network etc). The integration of the haredi sector may also involve harm to other sectors, such as women, whose integration into the I.D.F is of public importance. As noted by Justice Procaccia in the Movement for Quality of Government case, the distinctiveness of the hareidi sector cannot legitimize a discriminatory arrangement, but it does compel “a gradual, multi-staged process on the path to achieving equality (at p. 790). Indeed, the I.D.F bears the complex burden of integrating the members of the hareidi community, while adjusting the service to their unique needs with tolerance and understanding. The integration and equality will via a natural process and not through coercion. In the same vein President Shamgar already stated that –

 

‘The sons and daughters of a free society, in which human dignity is a cherished value, are all called upon to respect the personal religious feelings of the individual and his or her human dignity. This must be based on tolerance and the understanding that personal religious feelings and their various modes of expression differ from one individual to another… an enlightened society also respects the beliefs and opinions of those who adhere to them with an fervor and identification that are not necessarily typical of the average person.’ (HCJ 257/89 Hoffman v. Western Wall Superintendent [29], at p. 354

 

This mission requires patience for complex and sensitive processes, while learning lessons during the integration process, and tolerance of one group towards its fellow group.

 

Conclusion and Result

 

19.       This opinion is not the end of the road, but rather one of the stones on the path. I am aware of the long road that has been traversed until now and the anticipation that at this stage the results would be more meaningful and conclusive. All the same, already now, despite the accusers, positive progress is discernible, even if in small and measured steps. That which has been achieved until now cannot be destroyed in one fell swoop, nor can the efforts invested and results achieved be treated lightly. As stated, the competent authorities operating in coordination with the Government should be granted additional time to continue in the promotion of the purposes of the existing Law. As I mentioned, a broader perspective should be taken, having regard for the point of time at which we are as part of a change in the situation that was created and that has existed since the establishment of the State. There must be a recognition of the complex societal situation and acceptance of the fact that the attainment of equality necessitates a long and slow multi-stage social process, in a search for the points of contact between diametrically opposed portions of the population separated by an abyss. There is no escaping the need to have consideration for the background of the subject and the difficulties in moving the process forward, to formulate realistic expectations that are attuned to the sensitive reality, which is splintered between world views and customs.

            As my colleague the President noted, the difference between us are not significant and we both share the same goal of promoting equality, of encouraging the enlistment to the I.D.F. and the partnership of the hareidi community in civilian service. However, as I noted at the very beginning of these comments, in my view coercion stands no chance and will achieve nothing. A declaration that the Law is void may perhaps create a feeling finally having achieved the long desired equality, but in reality the opposite is true. The disqualification of the Law will generate confusion and anger and will put a halt to the initial achievements, which cannot be set aside at the stroke of a decision. It will sever the last branch currently joining the extremes., the very same branch on which buds can already be seen and it is my hope, that from the perspective of years will sprout into the blossom of unity. Any law, whatever it may be, even if the current law is voided and a new and better law enacted as per the proposal of some of my colleagues – which I don’t see happening in the near future – must be based on compromise aimed at participation in the burden. Equality, which is at the heart of the goal, will continue to thrive only if based on the foundations already outlined. Its achievement will be via a gradual, multi-staged process that requires time, and which, so I believe will finally lead to a broader enlistment, with understanding, patience and tolerance.

            I therefore believe that we should enable and encourage the continuation of the aforementioned positive trend, in the process of continuous action and improvement of the existing means, looking towards the achievement of the goals upon which the Law is based. In my view, leaving the petition pending before this Court provided an incentive for promoting the subject and for the developments that have ensued, and which cannot be ignored. Accordingly, at this stage, the Court should continue the monitoring and supervision of the procedures relating to this sensitive and complex petition, while leaving the petition pending before us. I would like to believe that the joint service in dissimilar frameworks – army, civilian and other employment frameworks – will succeed in inculcating values of tolerance and mutual respect born out of cooperation and not coercion. I say this especially with respect to military service, which is conducted in accordance with the principles of equality and the basic values derived from the fact of it being the army of the people in a Jewish and democratic state.

20.       Upon the completion of writing this opinion, the subject of the enlistment of yeshiva students retuned to the headlines and is at the focus of public and political discourse. As judges – my colleagues and myself – despite our differing conclusions, know how to ignore and remain unruffled by the stormy winds of the hour, in our recognition of the need to beware of being dragged outside the four cubits of the law, and to decide in accordance with the best of our understanding and judicial conscience. Comments in this vein were made by President Landau, and they are pertinent to this matter too:

Yet, there is still grave concern that the court would appear to be abandoning its proper place and descending into the arena of public debate and that its ruling will be applauded by some of the public and utterly, vehemently rejected by others. In this sense, I see myself here as one who’s duty is to rule in accordance with the law on any matter lawfully brought before the court. It forces me, knowing full well in advance that the wider public will not notice the legal argumentation but only the final conclusion and the appropriate status of the court, as an institution, may be harmed, to rise above the disputes which divide the public. Alas, what are we to do when this is our role and duty as justices. (HCJ 390/79 Duwekat v Gov’t of Israel [30] at p. 1),

 

Were my opinion to be heard, we would leave the petitions pending and request an update from the respondents concerning the rate of progress in the proceedings, and concerning the means that the Executive has added, and is continuing to adopt for the implementation of the Law. Given that at this time the question of the extension of the validity of the Law by the Knesset is currently pending, and as mentioned, I do not intend to enter that arena, I would suggest receiving this kind of update in July 2012 upon the termination of the last period of the Law’s extension. Should it be decided to extend or to amend it, then in my view, as stated we should receive an update from the State at that time, and maintain a judicial monitoring, along with the determination of the future time on which this Court will again sit and consider the constitutionality of the Law in view of the latest developments.

 

Justice

 

 

Justice Elyakim Rubinstein

 

In the Kol Torah Yeshiva of Jerusalem one of the students requested permission from the Rosh Yeshiva (R. Shlomo Aeurbach, a Rabbinical Authority of the last generation) to travel to visit the graves of the righteous in the North. The Rabbi answered him: In order to pray at the graves of the righteous does one need to travel all the way to the Galilee/ When I feel the need to pray at the graves of the righteous, I go to Har-Herzl, to the graves of the soldiers who fell in the sanctification of God’s name (told by Rabbi Yisrael Meir Lau, from the book of Rabbi Y.Z. Rimon Halakhah Mimkora – Tzava (2010) [ ]; and also see the shortened version in the book of Rabbi Yosef Eliyahu, Oro Shel Olam (2003) [ ] 380.

 

1.         The Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling, Law 5762-2002 (hereinafter – the Tal Law or the Law) is a profound and sensitive attempt, in the wake of this Court’s ruling (HCJ 3267/97 Rubinstein v. Minister of defense [1] at p. 481) and following the work of the commission headed by Justice Tzvi Tal, who viewed this work as sacred task in its contribution, albeit partial, to the healing of a bleeding wound in the Jewish part of Israeli society, namely in other words, the subject of the enlistment of the Yeshiva students to the I.D.F. My colleague, President Beinisch reviewed the history of the subject which has been reviewed and discussed at length in the judgments of this Court since the Ressler case n 1986 continuing in the Rubinstein case, and up to the Movement for Quality of Government case. I will make every effort not to revisit matters already stated and reviewed.

2.         By way of preface, the bottom line is that I concur with the opinion of my colleague the President. The present situation exceeds the boundaries of what is constitutionally tolerable. Conceivably, responsibility for this situation is divided between the two branches who are the respondents in this file: the Legislature that enacted a Law that a priori is far from simple, and the Executive charged with its implementation. Conceivably, had the Executive done more for the effective implementation of the Law, despite its inherent problems, the situation would have been different and more tolerable. According to Justice Tal “The Law, at this stage, has been frustrated by the Government and the Ministry of Defense” (Tz. E Tal, Ad Bo HaShemesh (5770) 300), however, even according to his view, in the first place “the recommendations of the Tal Commission do not represent complete equality (ibid, p. 299; see also Tz. E. Tal, “The Problem of the Enlistment of Yeshiva Students”, Memorial Volume for Professor Ze’ev Falk (R. Horovitz, M.D. Herr, Y.D. Silman and M. Korinaldi eds. 5765) 355, 366; Similar explicit comments were made in the report filed by the “Tal Commission” (Report of the Commission for Crystallizing an Appropriate Arrangement on the Subject of the Enlistment of Yeshiva Students, vol. 1, 5760) 97), as well as from the Knesset podium at the second and third readings of the Law: “Any arrangement that does not establish absolute equality between citizens ….is a bad arrangement. The question is whether this is the lesser evil or evil incarnate "(Knesset Proceedings 23 July 2003, p. 8584, per MK Yossi. Katz)

3.         An additional significant part of the responsibility for the the current situation, in my view, lies with the hareidi society – “as far as one can attribute one point of view to this variegated society” (HCJ 746/07 Regen v. Ministry of Transport [32], para. 29 that adopted a position that is almost inconceivable from a Torah based-moral-civilian perspective (naturally, I am not addressing the question of Halakhah), and chose not to make broader use of the mechanisms established by the Law, and the unique and specially adapted service tracks offered by the State. Within the parameters of the constitutional-administrative law, this civilian group is not a “respondent” in this file, and under the circumstances its decisions will be related to as a factual given that we cannot change on an operative level in the framework of this proceeding, but which will influence our decision concerning the reasonability of the present situation and the possibility of leaving it intact. Needless to say, had the relevant hareidi instances sought to have their position heard in this proceeding, the doors of this Court would have been open to them.

4.         Accordingly, we have no choice but to examine whether, under these circumstances, the situation made possible by the Tal Law, even after the extension granted in the Movement for Quality of Government case, is tolerable from a constitutional perspective. I will address the situation and the question of its tolerability, for conceivably, in a different constellation, given different conduct on the respondents’ part with respect to the petition and on the part of those who are not parties to it, the Law would have lead to a situation that it tolerable, at least within the category of “appropriate preliminary arrangement” (the term adopted by the Tal Commission regarding the arrangement it formulated; see p. 97 of the Commission’s Report), as far as it touches upon the critical violation of equality between citizens of the state in a subject of life and death in its most literal form.

5.         In many senses, the situation created in the wake of the decision in the Movement for Quality of Government case is unique in the field of constitutional-administrative law. Generally, when the court reviews the constitutionality of a law involving the violation of protected human rights, it must examine whether the Executive properly interpreted and implemented the law. To the extent that the authority is acting as it should, the review will focus on the law itself. Here however, one of the significant variants relates to the conduct of the hareidi public. The non-constitutional effect (using the phrase similarly to the way it was used by Justice Naor in CrimApp 8823/07 Anon v. State of Israel [33]) flows from the convergence of a number factors, the hareidi sector being the principal one, being both its beginning and end, although the Knesset and the Government over the generations are also partners to the reality that emerged. Possibly, as stated, the cooperation of the hareidi sector might have – without ruling on the matter – lead to a different result. And indeed, this was the purpose of the trial period prescribed in the Movement for Quality of Government case, which in essence stems from the conclusions of the Tal Commission.

6          However, having been presented with the data reviewed in the opinion of the President, and having granted all those involved a significant period of time to attempt to bring about better results, we have no choice but to conclude that the current situation cannot continue; in other words to hold that the fundamental values of the State of Israel as a Jewish and democratic state as enshrined in the Basic Laws and interpreted by this Court, cannot endure this factual situation and it is therefore impossible to further extend the validity of the Law. Given the holding that the subject requires regulation in primary legislation (as correctly held in the Rubinstein case, there is no choice other than to create a new normative arrangement – this being a matter for the legislature. This is the “bottom line”, and now to its explanation.

 

The Study of Torah as one of the values of the State of Israel

 

7.         The historical process that culminated in the reality addressed by the Tal Law began with the assistance provided for the preservation of the world of Torah following the Holocaust. The first Prime Minister and Minister of Defense, David Ben-Gurion, a great, historical figure, was attached to the Tanach (Hebrew Bible) as an expression of our national existence notwithstanding his secular world view, and he understood the importance of restoring the ruins and of reviving that which had almost been destroyed. Accordingly, already in 1948, yeshiva students received an exemption from military service (see: Ressler [3] 449-451). This occurred notwithstanding that there were also yeshiva students who participated in the war effort during the War of Independence, and the halakhic authorities actually defined it as participation in an obligatory war (milhemet mitzva):

 

“In the situation in which the state presently finds itself, having barely gotten out of its diapers and being circled by sworn enemies who seek to devour it, Heaven Forbid, there is a special duty to arm themselves for battle, to speedily immigrate to Israel and to come to the assistance of Israel against an enemy who has attacked them, a duty that stems from its being an obligatory war (Resp. Tzitz Eliezer (R. Eliezer Waldenberg – twentieth century – Jerusalem], pt. 7.48 [ ]; see also Resp. Tzitz Eliezer p. 50 [ ]. and Resp Hekhal Yitzhak, Orah Haim, s. 31 [ ])

 

The standing of Israel’s wars that followed the War of Independence, was not, from a halakhic perspective, any different (see for example, Resp. Yehaveh Da’at (R. Ovadiah Yosef) pt. 2. 14). Needless to say, in his grand treatise of 5710 (1950)”Distinction and Mission” printed in Distinction and Mission (5731 – 1971)108) David Ben-Gurion discusses the historical conscription laws in the Jewish people, noting that “Every man and woman without exception was subjected to the duty of protecting the people in the face of an external attack” (p. 133), even though he does not address the subject of yeshiva students.

8.         The exemption granted in the early days of the State, in my view, was also in accordance with the spirit of the Declaration of Independence of the State (on the status of the Declaration see s.1 of Basic Law: Freedom of Occupation and Basic Law: Liberty and Dignity; HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], at p. 274) which opens with a comment on the assets of “national and universal culture” created by the Jewish people and which also addresses the claim of ”the survivors…..as well as Jews from other lands, proclaiming their right to a life of dignity, freedom and labor in their national homeland”. As written by my colleague, Justice E.A. Levi, in the Movement for Quality of Government case [2]:

 

`The world of the yeshivas is therefore an essential component of the identity of the Jewish people, an identity of many faces, and it is one of the most important expressions of the national spirit, its heritage and its culture. It would seem that even those who are remote from the world of Torah, would not deny its outstanding influence upon the formulation of essential components of the character of the nation and its society’ (p. 784)

 

Indeed, it is indisputable that the cultural treasures referred to in the Declaration of Independence, including the right to a life of dignity, freedom and labor also include the right to the personal and collective development of the Jewish Torah culture; this right is an inherent part of the foundations of the “liberty, justice and peace taught by the prophets of Israel” which the state of Israel was premised upon and part of the freedom of religion, education and culture which are guaranteed in the operative paragraph of the Declaration of Independence (see also HCJ 1067/08 Amutat Noar KaHalakhah v. Ministry of Education [27], at para.14 of Justice Levy’s opinion).

9.         Within the frame of the Basic Laws too, and by reason of Israel’s being a Jewish and democratic state, this Court has referred more than once to freedom of religion which “includes inter alia the right to fulfill the religious commandments and requirements” (Rubinstein [1] p. 528 per President Barak), and the connection between enabling yeshiva students to persist in their studies (ibid; see also G. Sapir, “Enlistment of Yeshiva students into the I.D.F: A Proposal for an Outline of the Relevant Normative Considerations” Pelilim 9 (2001) 217. 248). The values of the State of Israel as a Jewish and democratic State therefore include the study of Torah. Hence, in my view, the prevention of a person from studying Torah is liable to constitute a violation of a Jewish person’s dignity, and within the framework of the Basic Laws he would be entitled to protection from it.

10.       Indeed, I see no need to hold forth in explaining that the study of Torah is one of the values of State of Israel as a Jewish and Democratic state. It seems to me that the petitioners have no dispute with this. An observant Jew recites the Keriyat Shema every day, twice and even more,(and “Hear O’ Israel” has become a symbol of Jewish continuity) where it states “And these words, which I command thee this day, shall be upon thy heart…..and you shall teach them diligently to your children, and shall talk of them when you sit in your house, and when you walk by the way, and when you lie down, and when thou rise up” (Deuteronomy 6:6-7); and it further says: Therefore you shall place these – my words in your heart….. And you shall teach them to your children, to talk of them, when you sit in your house, and when you walk by the way, and when you lie down, and when you rise up ((Deuteronomy 11: 18-19 [ ]). The verse “'If you follow my decrees and are careful to obey my commands” (Leviticus 26:3) is interpreted by Rashi as meaning “when you are immersed in Torah”. It is therefore clear that the “the duty of studying Torah – as a religious commandment- is not merely the general study of wisdom; rather, it constitutes a central aspect in the formulation of a person’s world and lifestyle (AAA 10673/05 Mikhlelet HaDarom v. State of Israel [35] at para. g(3)).           

11        The Mishnah (Peah 1:1) [ ] includes the study of Torah among the matters “that have no measure”. In completing the list of things which “a person eats of their fruits in this world and the principal remains for him in the world to come” and which include “honoring one’s mother and father, and deeds of kindness and making peace between a person and his fellow person” and the Mishnah rules that  “the study of Torah is the equivalent of all of them combined” [ ]. The duty of being occupied in the Torah “day and night” (Joshua 1:8 [ ]) is considered a supreme value to the extent that the Tanna (sage) R. Shimon taught that “He who walks along a road studying, and interrupts his studies and says: “How beautiful is this tree!” “How beautiful is that field”- the Torah considers it as though he sinned against his own soul”(Mishna Avot 3. 7). In his glorious normative halakhic creation Mishneh Torah Maimonides writes the following:

 

Every Jewish man is obligated to study Torah, whether he is poor or rich, whether his body is healthy and whole or afflicted by difficulties, whether he is young or an old man whose strength has diminished. Even if he is a poor man who derives his livelihood from charity and begs from door to door, even if he is a husband and [a father of] children, he must establish a fixed time for Torah study during the day and at night, as [Joshua 1:8] commands: "You shall think about it day and night." (Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 1:8) [ ]

 

The bottom line is that from the perspective of the Torah scholars, as well as from the perspective of Israeli law, it is undisputable that the study of Torah occupies a unique position, as a component of identity and culture, in addition to being a religious duty of both the individual and community of Israel.

 

The Study of Torah and Other Values

 

12.       On the other hand, in the same breath as our comments above, we will also mention that not only does the State of Israel’s essence as a Jewish and Democratic State command the balance between values. According to the Halakhah there is a requirement, and not just a permit, to balance between the duty of studying Torah “which has no measure” and other needs and values. How is the balance struck with other needs – “"And thou shalt gather in thy corn". What is to be learnt from these words? Since it says, "This book of the law shall not depart from your mouth", I might think that this injunction is to be taken literally. Therefore it says, "And you shall gather in your corn", which implies that you are to combine the study of them with a worldly occupation (Tractate Berakhot 35b [ ]). And Maimonides too ruled:

 

Anyone who comes to the conclusion that he should involve himself in Torah study without doing work and derive his livelihood from charity, desecrates [God's] name, dishonors the Torah, extinguishes the light of faith, brings evil upon himself )Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:10 [ ]

 

Further on he states: “It is a tremendous advantage for a person to derive his livelihood from his own efforts. This attribute was possessed by the pious of the early generations. In this manner, one will merit all [types of] honor and benefit in this world and in the world to come, as it states: "If you eat the toil of your hands, you will be happy and it will be good for you". "You will be happy" – in this world. "It will be good for you" – in the world to come, which is entirely good". ((Mishneh Torah, Hil. Talmud Torah (Laws of Torah Study) 3:11[ ]). The author of Shulkhan Arukch too ruled that “Afterwards [after prayers – E.R] he should go to his business, for any Torah which is not combined with work leads to idleness, and leads to sin; but at all events he should not make his work his principal concern,…" (Orach Hayim, s. 156 [ ]), This ruling receives the following interpretation of the Mishnah Berurah in his treatise Beur Halakhah “for this was the teaching for the world at large, for not all people can merit the elevated level of being occupied solely in Torah, and there are certain individuals who may be permanently on that level (ibid). And, how is the balance struck with other values “One interrupts the study of Torah for the sake of a funeral procession and the leading of the bride [under the bridal canopy (Bavli, Kettubot 17a [ ]). And to remove all doubt it will be clarified that this not just a permit to interrupt the study of Torah Torah, but rather a duty: “'One interrupts Torah study' this means that there is a duty to interrupt” (Siftei Cohen, Yoreh Deah s. 361.1 [ ]).

13        In the present context, concerning a battle to “to assist Israel from an enemy which attacks them" (in the words of Maimonides, Hil. Melahim 5:1[ ]) it is specifically taught (Mishnah, Sotah 8:7 [ ]) “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle]"; To remove all doubt, the commentator R. Nathan b.Yehiel of Rome (eleventh and twelfth century – Italy) explained “and a fortiori Torah scholars (Sefer HeArukh). We might also mention that a significant portion of those who the Torah exempts from fighting in an optional war (and we will not address the specific definition of obligatory war as opposed to optional war), are not exempt from other forms of public service: “All those who return from the army camp… They must supply food and water to their brethren in the army and fix the roads for them…” (Hil. Melahim 7:9). The halakhah too struck a balance between the obligation of studying Torah, and other obligations, both the obligation of earning a living and the obligation of defense; between the absolute and uncompromising duty “This book of the law shall not depart from your mouth; but you shall meditate therein day and night” (Joshua, ibid.,) and a person’s obligations towards himself, his family, others and the society in which he lives. As such, the duty to study Torah is not the final word. This point is particularly pronounced in a state in which military service is a duty which occasionally may involve the endangering of life.

 

The Israeli Circumstances

 

14.       Israel is a Jewish and democratic state. Its unique character comprises two aspects and they both include the obligation of balancing, an obligation that goes hand in hand with the demand for equality being real and substantive equality to the degree possible in the bearing of the security burden with its inherent danger to  life. From the “Jewish” perspective, in a period in which there are still those who “rise up to destroy us” (Haggadah of Passover), we hear the echo of Moses our teacher “Will your brothers go to war while you yourselves sit here” (Numbers 32:6). This point was already addressed by the Deputy President M. Cheshin,in the Movement for Quality of Government [2] case:

 

‘Will we say of the Yeshiva students – whose Torah is their calling – the rebuking words of Moses to the Tribes of Reuben, Gad, and half of Menashe – that your brothers go to war while you yourselves sit here;…

From the aspect of the Jewish heritage too, especially with respect to the “Jewish State” demands, as a matter of principle the conscription of the Yeshiva students into the army, so that they can protect their houses, so that the young men of their own age will not have the status of the Cherethites and the Pelethites who would be forced to protect them while they sit back securely and diligently study Torah’. (pp, 737, at 740-741)

 

15.       From the democratic aspect too: Equality is a substantive values therein “a meta-principle that is reflected along the length and breadth of Israeli legislation (HCJ 5373/08 Abu Libda v. Minister of Education [36] – para. 29 of Justice Procaccia’s opinion. Indeed, the burden is not shared equally by all. The combat soldier differs from the staff unit soldier. But even so, the I.D.F. can still order the staff soldier to carry out a job that may endanger his life; he is not his own master and his personal autonomy is restricted (see also s. 9 of Basic Law: Human Liberty and Dignity). There are also sectors and individuals who do not participate in the service burden, first and foremost the majority of the Arab minority, apart from the Druze, Circassians and particular Bedouin volunteers, and a few Moslems and Christians, in the unfortunate circumstance of the political dispute in our region, and a not insignificant minority of the Jewish public that finds ways of not serving.

16.       Nonetheless, despite the differences between the kinds of service and the nature of populations, and even assuming the importance of the Torah study, even within the framework of Israeli law, the question arises: Does the principle of equality permit the granting of a blanket exemption from military service to such a large percentage of each conscription cycle? Can it enable such an extensive exemption arrangement, even if the purpose is appropriate and the goal commendable? Can it endure the damage to all of the other citizens of the State who are obligated to do military service in the regular and reserve army? We once again mention that as of 2007 it meant 14% of the conscription pool (!) of that year, which represented a massive increase, even after the enactment of the Tal Law in 2002, and that these data attest to a consistent increase from year to year (see para. 50 of the opinion of the President). Distressing as it might be, the question is, unavoidable: A law with an appropriate purpose and worthy intention, a law intended to provide a corridor specifically into the chamber of military service for the individual and into Israeli society in general – can it justify inequality (which is tantamount to injustice) on such a massive scale and regarding such a subject?

17.       From its inception the Tal Law was not based on equality. Nonetheless, in the Movement for Quality of Government case, this Court gave it a legal chance, based on the assumption that moving the cart of hareidi enlistment was a worthwhile goal. It was hoped that there was no “genetic” defect in the essence of the statutory arrangements, but rather an administrative flaw in its implementation (per President Barak, at p. 712), and that even if at already upon its birth the Law was tainted by the “virus of unconstitutionality” (per Justice Procaccia [2], at p. 795) the State would overcome it by way of the proper and appropriate implementation of the mechanisms prescribed by the Law. However, Law was similarly unsuccessful in the test of results. The data that guided by my colleague the President speak for themselves. The percentage of those joining the service, in all of its different frameworks, is particularly small. This situation, in which a blanket exemption from military service is granted to a growing public (and as stated, even if the numerical data is not the necessary result of the Law, the bottom line speaks for itself) constitutes, in my view, a disproportionate violation of the rights of the Israeli citizens who are required to serve and who serve in army, in a manner that compels a fundamental change in that situation.

18.       In my opinion in the framework of the interim decision of 8 September 2009 I commented on the rate at which the Law was being implemented: “The arrangement prescribed by Tal Commission is progressing at snails pace, drop after drop, with all the good will of the administrative and state institutions…the substantive change has not arrived, and is still at the periphery and the question “why do you think your blood is redder (than that of your friend)” (Talmud Bavli, Pesachim 25b) has not been answered. The petition before us is directed, as is the nature of constitutional law – at the state authorities – but on a moral plane, as mentioned further on in my opinion, it also addresses the members of the hareidi community who do not enlist for military service.

 

‘The challenge of transforming the trend from a thin trickle of those joining into a broad application lies at the doors of the leaders of the hareidi public. What began as the reestablishment of the world of Torah following the Holocaust has become the sociology of an entire society which is almost entirely absent from sharing the central burden of the State of Israel – military service; And I am certain that in the recesses of their hearts, even the leaders of the hareidi public and countless members of the community itself, sense the difficulty and the embroilment it occasions…the issue concerns an entire society that almost totally avoids fulfilling a duty anchored both in law and morality, and where have morality and character traits all disappeared to?”

 

19.       In 2007 I had occasion to comment that “The Tal Law attempted – with great hope and tremendous efforts, and we are as yet unable to state the degree of success – to strike a balance between two conflicting value systems that, at base, reflect real-life differences that can have life-and-death consequences”. (HCJ 5803/06 Guttman v, Minister of Defense [37] para.31). The data referred to by my colleague the President indicates that as of today, unfortunately, the effort to “strike a balance” has failed. And so we have returned to the basic situation described by Justice Arbel in the Guttman case [37] as a ‘harsh and justified sense of  discrimination‘

20.       As mentioned the petition’s arrows are aimed against the authorities who are obligated to protect the individual from the unequal and discriminatory bearing of the security burden (and I do not think that in the present context it is possible to hold it against the individual that he belongs to a majority that provides certain privileges to the minority). However, the responsibility, in the broad sense, also lies on the doorstep of the hareidi public. From a legal perspective, “sectoral uniqueness does not constitute grounds for violating the joint responsibility shared by the entire state citizenry” (HCJ 4124/00 Yekutieli v. Minister for Religious Affairs [26] para. 7 of the opinion of Justice Procaccia). From a moral-civil perspective, I find it gravely and profoundly disturbing: How is it for the public sacrifices not to be participated in by the entire public. This echoes the words of our teacher Moses “Shall your brothers go to war and you sit here”? And in the words of the Natziv of Volozhhin (R. Naftali Zvi Yehuda Berlin, 19^th century, Russia in his interpretation of Numbers):

  

‘This is a wrong against Israel [committed by those seeking to settle in Trans-Jordan and not to participate in the battle to conquer the Land of Israel] that you should have a land that has already been conquered by everyone, and that they had endangered themselves in war ‘(emphasis added – E.R.)

 

21.       At the beginning of the month of Iyaar, 5748 (May 1948), – five days before the Declaration of Independence – R. Shlomo Yosef Zevin (an important scholar and author, and the first editor of the Talmudic Encyclopedia) inveighed against those who called upon the yeshiva students “not to sign up, not to be counted, and not to appear” for military duty. The context is a detailed halakhic discussion but regarding the moral claim he writes:

                       

‘Is the matter at hand us just a matter saving others. Isn’t each and every one of us, without exception, confronting a life threatening situation – to himself, his household and all that he possesses? And is this the appropriate path – that those occupied in Torah are not obliged to save themselves, but will stand apart and place the burden of saving – themselves – upon others. Is this the proper path, or – is this the view of Torah? (S.Y. Zevin, On the Question of the Conscription of Yeshiva Students (1948) 5.

 

This argument is reminiscent of the position adopted by R. David b. Zimra (Radbaz, 15-16 centuries, Spain-France) according to whom the exemption from bearing the security burden granted by the Talmud (Bavli Bava Bathra 7b) to Torah scholars does not apply in cases in which the Torah scholars themselves acknowledge the need for guarding:

 

And [if] they themselves [the Sages] admit that they require protection, does the law, or commonsense permit that they be able to force themselves upon the householders to organize the guards and not assist themselves… such a thing was not said by any person… for this would violate the sense of justice, but they are permitted to coerce them (Resp. Radbaz pt. 2: 752).

 

In the same vein, the Hatam Sofer (R. Moshe Sofer, Germany- Hungary, 18 – 19 centuries), one of the leaders of Orthodoxy in his generation, mentioned that the Talmudic exemption does not apply in the framework of allocating the burden of state security needs, because “just as the kingdom requires protection from other kingdoms, the Torah scholar too is obligated (Novellae Hatam Sofer, Bava Bathra 8a. These last two sources are cited by R. Y. Brandes in Aggadah Le-Ma'aseh – Man and Society (2011) 137-139, who elaborates on the issue. See also R. A. Lichtenstein “This is the Torah of the Hesder”, Tehumin 7 (1987) 314; and on the other hand, see R. A. Sherman, “Talmud Torah is of greater value than the Saving of Life”, ibid, 335, and R. Z.B. Melamed, “Luminaries in Torah – this is the Need of the Nation”, ibid., 310.

22.       As mentioned, the choices of the hareidi public, whatever they may, are not a matter requiring a response from this Court, and no doubt there are answers to at least some of my queries. Still, had the hareidi community’s response been broader and more meaningful (and as stated the degree of efficiency and activity of the Executive may also be partially responsible), the respondents before us today would have been in a different place, equipped with other factual data. To our regret this is not the case.

 

Hareidi Society and its Attitude to Military Service

 

23.       Indeed, hareidi society too is not static, including with respect to its attitude to military service. Even if the starting point is the conscription of those who are unable or unwilling to be categorized as those for whom “Torah is their Calling” there also are young hareidi Torah scholars who have themselves reached the conclusion that attaches importance to a contribution to the State and to finding self-sustaining work, and have thus joined the special tracks structured for them by the I.D.F.

24.       However, truth be told, as opposed to the Jewish hareidi community in other countries which understood that only a selected few are suited for a life spent in the tents of Torah, in Israel an entire, problematic sociological stratum has emerged, and even its leaders know, in the recesses of their hearts, that it is neither good nor appropriate that by reason of military service thousands of men are sitting in yeshivas despite their unsuitability (and compare, in different contexts, the Regen case [32] para. 22). These men, were they to serve in the I.D.F. and were they to work like all other men while setting apart times for Torah in the way of “home owners” (i.e. those who are engaged in “regular work” and frequently set aside time for studying Torah) would be of benefit to the State, their communities, and themselves. “Labour is beloved, for all the prophets occupied themselves in it” (Midrash Tannaim on Deuteronomy 5:14 [ ]). I question whether the leaders of the hareidi public are sufficiently aware and sufficiently active with respect to the economic plight that results from the lack of a profession due to the trap of the “Torah is his Calling” proceeding.

25.       In the synagogue in which I pray on a daily basis, a central synagogue with dozens of minyanim (quorums of ten men conducting services) there are quite a large number of beggars almost (the word “almost” was added primarily for reasons of caution and purity of motive) all of them from the hareidi public, many of them strong and healthy and capable of working for a living and supporting their families in dignity. However, they are locked into an impossible situation and there is no one who stands up to proclaim that the clothes of king (“who are the kings – the rabbis” ) are not fitted for all people some of who may end up with no clothes to wear. Let us be precise: No-one would dispute that the Jewish heritage and the spiritual continuation of the Jewish people justify the existence of a substantive, serious kernel of people whose Torah is their calling on a permanent basis, In response to my question in the Court, Adv. Ressler, the most veteran of the petitioners in this field, who started it when he was about 40 and is now at an advanced age, answered that he would have had no gripe if there were a few thousand people, at all times, for whom Torah was their calling. It is possible, and even appropriate to take an expansive and open approach to men of truth who wish to continue their study of Torah uninterrupted, but this does not apply to many of those who for lack of choice persist in the status of “Torah is their calling” as an unfortunate “social obligation”, for whom the Torah is not truly their calling, and whose calling is replaced by the avoidance – of service and work. They fritter their days away in frustration while in the interim they raise families that require sustenance. The Chief Rabbi of Israel, Rabbi Shlomo Amar addressed the currently accepted practice in the Yeshiva world:

 

‘The yeshiva students of our time devote their lives to Torah and to serving God in purity, they labor and toil in it day and night without interruption, and give not a thought to the purpose of their existence – to ask themselves, what will we eat and how will we set up homes in Israel and how will we survive – for we don’t not sew and don’t harvest ; neither do they learn a profession that can provide their needs, even if partially, and how will they support their wives and children? (Birkat Eliyahu (Exodus, pt.2), p. 230)

 

Further on Rabbi Amar seeks to reconcile the well-known words of Maimonides “The way of sensible men is that first, one should establish an occupation by which he can support himself. Then, he should purchase a house to live in …” and this reality. In his view, Maimonides’ comments apply to the “sensible men” who conduct themselves:

 

‘In accordance with the natural order that God ingrained in his world. But those whose conduct is above the natural order who do not submit themselves to the natural order of the world… just as they devote all of their powers and desires to the word of God and His will – He too fulfills their wishes and provides them from His expanded hand, above the natural order” (Birkat Eliyahu, pp. 230-231)

 

I respect these words, but the question naturally arises, can one truly and honestly say, without any offense to those who devote their lives to the study of Torah, that all the tens of thousands who are registered as those whose Torah is their calling, really figure among those “whose conduct is above the natural order”?.

26.       Concededly, the blessing of the State by way of its various resources – National Insurance, budgets for the yeshiva world, etc, accompanied by a real willingness and devotedness on the part of those studying, as per the teaching “This is the way of the Torah: To eat bread with salt, to drink water in measure, to sleep on the ground and live a life of hardship and to study the Torah diligently all the while” (Mishnah Avoth, 6:4) – enables a person to eke out a meager living and to continue permanently in the House of Study. Even so, do all those who are permanently in the Beth Midrash for many long years really belong there? Or perhaps some of them have sentenced themselves to a life of indolence and degeneration? And, even if this economic reality is not directly related to the question of equality among those designated for military service in Israel, it is definitely relevant for the examination of a legislative act one of the declared purposes of which is to “find a way that will also lead to the integration of yeshiva students in the employment market” (from statements of MK Yossi Katz, Head of the Special Panel established for Implementing the Law, when it was presented for the second and third reading on 23 July 2002, Knesset Proceedings 34, p. 8585). Once again, our concern is not with those whose souls cleave to the Torah until their last breath “the remnants upon whom God calls”, who should be commended – although even regarding them, or many of them, nothing would be missing were they to bear the burden for a determined period, basically given to their own choice, and in service tailored specifically to their needs in terms of Kashrut, modesty and family. It will be recalled that the Tal Law also created the option of civilian service, protected from the “risks” of military service and which in and of itself constitutes a particularly outstanding deviation from the requirement of equality. Nonetheless, this too did not succeed in tilting the scales.

27.       Here it bears note that the economic criterion in accordance with which the I.D.F. too has on occasion examined the issue (see Ad Bo HaShemesh, at p. 298) cannot be the relevant and correct criterion when dealing with military service and its natural dangers. Just as the I.D.F. is required to invest huge sums of money to enable a woman wishing to enlist, to be able to do so on the basis of equality (see HCJ 4541/94 Miller v. Minister of Defense [14]; D. Friedman “Women’s Service in Combat Roles and Equality in Allocating the Burden”, HaMishpat 4 (1999) 27)), so too it is required to invest all of the resources required to secure the rights of its soldiers to an equal sharing of the burden. In other words, the State is not at liberty to enlist only those citizens who it is convenient (or cheap) to enlist and to saddle them with the full weight of the burden, even if the broadening of the pool of enlistees compels the investment of economic and other resources. As a matter of principle, it would be exceedingly difficult to imagine an “economic” approach which would give rise to distinctions between the blood of one person and another.

28.       What can be learned from all of the above? That the “mind switch” – not with respect to the study of Torah but rather in relation to the proper evaluation of the relevant human framework – has not occurred in the hareidi leadership even after the Tal Law. From the perspective of constitutional-administrative law, the Tal Law was unique, in so far as in addition to being appropriately and strictly implemented by the State, its constitutionality was also dependent upon the scale of response on the part of the hareidi public and the position adopted by its leadership (even though on a practical level the issue concerns individuals whose actions, either way, may be in accordance with the Law). The data before us demonstrates that these two conditions were not fulfilled. In the absence of any change on the broader front, as opposed to specific local changes, welcome as they may be, the progress towards equality continues to plod along and partnership in the burden – even if incomplete and non-identical partnership – has not materialized. To paraphrase the words of the Tal Commission cited above – not only have we not reached an appropriate arrangement for the conscription of yeshiva students; we have not even merited an “appropriate preliminary arrangement”. The data demonstrate only very of changes.

29.       Once again we stress: The hareidi public is not a respondent in this file. The subject for our decision is the constitutionality of the Tal Law in a given factual constellation. Conceivably, had the hareidi population made broader use of the Law’s arrangements, the problem of inequality might have been mitigated somewhat and come within the borders of the constitutionally tolerable. In the metaphor coined by President Barak in the Movement for Quality of Government case [2] , it is possible that a more extensive response on the part of the hareidi population would have enabled the Tal Law to recover from the constitutional birth pangs and perhaps even reach the age of “Bar Mitzvah” or “constitutional adulthood”; However, even after the Tal Law was granted a trial, and even a recovery period, and even if the Executive too bears responsibility for part of the disappointing data, perhaps having had the opportunity to make a greater effort in the implementation and enforcement of the law, in addition to that of hareidi public that did not hasten to utilize it – at the end of the day the result does not come within the boundaries of what is constitutionally tolerable. To put it quite simply – the current situation for which the Tal Law is the normative basis –violates equality to a degree that dictates change in the normative framework.

30.       The second possibility, of giving the opportunity to the Executive on the one hand and the hareidi society on the other hand, to act for the improvement of the data, was tried with much patience. Indeed, the patience of the Court had to contend with the violation of the rights of the citizens being called up for regular reserve service, and endangering their lives. The Tal Law was originally adopted as a temporary provision for a period of five years (section 16 of the Law), based on the Commission’s assumption that measures it recommended:

 

‘should be periodically examined and reviewed. The Commission recommends measures intended to create a trend, This trend should be examined over a passage of years: Was a trend even created? Has it developed at an appropriate pace… possibly, in another five years the military service framework of the I.D.F. will be entirely different, and the question of yeshiva students and their enlistment will not be quite as acute, problematic, and controversial…” (p. 98 of the Commission Report).

 

In 2006 this Court decided (in the Movement for Quality of Government case) to give the Law another trial period. Upon the termination of almost a decade from the enactment of the Law, the data attests to a situation which is constitutionally intolerable. The hope that the Law as given would “create a trend” was disappointed, and the circumstances of violation of equality demand intervention. In her awareness of in her awareness of the problems from all directions, i.e. the constitutional difficulties as opposed to the need for a societal change in the hareidi community, my colleague Justice Arbel seeks to give the Law another chance. I fear however, with all deference to her position, that what has happened until now justifies a different mode of operation.

 

The Explanations for Non-Service

 

31.       The following are the two principal explanations, in my understanding and experience, that have been given by those favoring the continuation of the status quo (see also Sapir, pp. 240-247; and Tal, The Problem of the Conscription of Yeshiva Students, at p. 362. First it is claimed that “The Torah …protects and saves” (Talmud Bavli, Tractate Sotah 21a); in other words, the yeshiva student who studies protects the country just as a soldier does. On the face of it, someone who believes this has that prerogative (although we will not deny, as written by Rabbi Zevin in 1948 (p. 6) that this quality is utilized primarily for the avoidance of military service, and is not a practical program for the conduct of the hareidi population in a time of danger; for additional criticism of this argument see Sapir, pp. 244-245). Even so, does this argument really apply to the entire public that enjoys an exemption from conscription? Furthermore, this is a matter of pure belief, and it is difficult to conceive of it being connected to operative decisions. What fate would await the State if many others, thousands and tens of thousands, were to claim that according to their view, other studies “protect and save” and they too were to request an exemption from military service? Indeed those subscribing to that belief can claim that the truth is with them and the others mistaken, but even if were we to ignore the practical problems (and it is doubtful whether they can be ignored), how could a democratic society, tolerant towards all of its components be maintained on the basis of those arguments? And it is not superfluous to stress, that according to all of the approaches there will never be a situation in which, God Forbid, there are no studiers of Torah occupied in the diligent study of Torah.

32.       Another explanation relates to the practical difficulties in the I.D.F. itself: the service of women, questions of the kashrut of the food,  and the concern that the service would have a detrimental affect on the hareidi soldier’s religious conduct. I do not treat these lightly, but the answer lies in the willingness of the I.D.F to arrange service tracks that are not problematic from these perspectives, and enable service conditions and food that are kasher at the most meticulous levels – a willingness that has already been proved to a significant degree and should be fortified even further. These matters are not in heaven. It is interesting to mention that Rabbi Avraham Yeshayahu Karelitz(the Hazon Ish) who was one of the foremost rabbinic authorities during the early days of the State, was described by the scholar Dr. Benjamin Brown in his all encompassing book (The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution (Jerusalem: Hebrew University Magnes Press, 2011; Hebrew) as someone who opposed the conscription of those who were genuinely studying (regarding those who pretended to be studying in order to avoid service, he ruled that they could be considered as “a pursuer of all of the yeshivas in Israel” (p. 305), and even maintained that those enlisted should be incorporated into mixed units and that he was “did not …fully share the fears of deterioration in the army, and at all events not in all cases, and he even regarded the joint service as a means of bringing the secular Jews closer to Judaism” (p. 306). According to the sources he examined, Dr. Brown notes that the Hazon Ish" regarded the service as a unavoidable necessity, and as a suitable path for the young man who was not devoting himself to the study of Torah" (ibid), and according to his view, the hareidi society had gone far beyond the framework outlined by the Hazon Ish( p. 304).

 

Final Word

 

33.       In view of the picture presented, the constitutionality of the Tal Law must now be examined, and to my distress the answer cannot be in the affirmative. In terms of the limitations clause of s. 8 of Basic Law: Human Dignity and freedom, the Tal Law is consistent with the values of the State of Israel, with respect to study of Torah; it is intended for an appropriate purpose of integrating the yeshiva students in military service while providing different kinds of options. Nonetheless, its actual result – and not because of those who conceived it or those who proposed it or drafted it, but rather by reason of its addressees and the authorities – has not established proportionality, but rather has almost perpetuated the inequality. The reason is that the current rate of joining the various tracks may well continue ad infinitum and “what then have the Sages achieved by their deeds”? The question of proportionality is invariably a complex one, and especially when it touches on rights which are inherently complex. The current situation may be analyzed as being both a disproportionate violation of the right to equality (which in certain aspects means a violation of an affirmative right) and a violation of the specific local rights of those who are required to serve, all to a degree that exceeds that which is necessary, due to the scope of the exemption (and in this sense, a violation of negative rights; see A. Barak, Proportionality in Law (2010) 513-514). It seems however that the primary difficulty in balancing is not – as is usually the case in constitutional law – the difficulty of balancing between two rights of equal worth; the problem rather is the practical difficulty of initiating a social process, and the question of the measures that can proportionately be employed to stimulate that process. Even so, notwithstanding the analytical complexity, and having consideration for the comments made in the Movement for Equality of Government case [2], I have no doubt that the current situation is untenable. As such, I have no choice but to concur in the result reached by my colleague the President.

34.       The President placed the question of a solution at the Knesset’s doorstep of the Knesset, having concluded that the current law could not be extended. She did not relate to the solution itself. I will allow myself to add that we sit among our people, and the solution this time must be far more radical in order to pass the test of the limitation clause. It is understood that one of the possibilities is a return to a numerical quota, which was the practice in the past, albeit in different numbers. In other words, at a certain age – 21 or 22 upon the completion of three or four years study in a higher yeshiva, conscription would be universal apart from agreed quota determined in accordance with prescribed criteria, and which would have consideration for the world of Torah and its continuity along with the needs of the State. Those included would continue in the path of Torah as their calling for as long as they wished, and the flame of God would not be extinguished. Other directions of varying kinds are also conceivable, but the arrangement must be coordinated, and given the current reality, I regret to say, must be less based on anticipations and hopes for future social changes.

A Comment before Concluding

 

35.       I cannot refrain from addressing in brief – though the subject warrants more and we are all the slaves of time and its constraints – the comments of my colleague, Justice (President Elect) Grunis. My colleague proposes not taking the path of judicial intervention in this case because “our concern is with a decision of the majority in the State (in accordance with the Knesset representation) to adopt a law that grants a privilege – not to be conscripted into the army – to a minority”. In his view, this decision does not involve “harm to individuals” as such, or “harm to a minority group”, and therefore “there is no justification for applying judicial review (para. 3). I take a different view. In my view this is a subject that touches on the very roots of the world of rights. The role of this Court is to be a mouth for the human rights of the individuals who make up the majority, and I do not even know whether the petitioners regard themselves, in this matter, as part of that parliamentary majority which granted “at their own expense” privileges to another minority group among whom they are not included, and whom they are unable to join in order to merit the same privileges that were given out by the majority. These are rights that cannot be trampled upon by a parliamentary majority without having been examined on a constitutional level, and this examination supports what has been said in the opinions of the justices who support the disqualifying of the Law.

36.       Even if in my view there should be restraint in judicial intervention (see, e.g. para. 28 in my opinion in HCJ 466/07 Galon v. State Attorney [38] that exceeds the norms of administrative law in general, in which based on many years of experience in different positions and different governmental structures, I think that this Court plays an important role of the first degree, and its failure to discharge it would be a betrayal of its mission; in various realms of life, and space constraints preclude their specification, significant changes have occurred in the conduct of the public administration in the wake of the Court’s decisions, and numerous laws and legislative enactments were passed, scattered over the entire history of the State. Nonetheless, in constitutional law too the Court cannot lay down its mantle and avoid that which is imposed upon by the Legislator- Founder – by him and by no other, in the Basic Laws concerning rights.

37.       Apart from the scholarly and detailed rationales of constitutional authority (see CA 6821/93 United Bank Mizrahi Ltd v. Migdal Cooperative Village [15]) it is clear to both the learned and the laymen from a simple reading of the Basic Laws on rights, that when speaking of basic laws and of restricting the possibility of their violation – even by legislation – in a manner that does not satisfy the proportionality requirements of the limitation clause, that it is incumbent upon the Court to examine whether rights were violated and whether the violation was appropriate and proportionate. My colleague feels that the subject before us is not one that we are required to address. As mentioned I disagree with his approach.

38.       We may be divided in our approaches to the possible contribution of the Court to this subject but it is beyond dispute that our concern is with an obligation, involving a principle of the most sensitive nature, to the extent of endangering of life. In my opinion there is absolutely no way in which this Court can avoid dealing with it. If there is any area of equality in the value- based sense, even if not on a practical, one-on-one level, which is impossible, there is perhaps no subject for equality more elevated than military service. Furthermore, in my view even those changes which have actually taken place in the hareidi society in the context of enlistment, are at least in part connected to judicial intervention, in the absence of which it is doubtful whether they would have even occurred. Our concern is with a conservative (the hareidi) society, with all implied thereby. As such even if our contribution in establishing the constitutional boundary does not transform the ways of hareidi society from one day to the next, it is to be hoped that it will sow seeds which will bud and produce fruit.

 

And one more comment

 

39.       The Tal Law was named after Justice Tzvi E. Tal, who headed the commission that dealt with the subject. It is not superfluous to mention that Justice Tal is a Torah scholar and God-fearing, meticulously observant in all matters, who served as a fighter in the I.D.F in the War of Independence and others, as he describes at length in his moving autobiography (Ad Bo HaShemesh). His son, a student of a hesder yeshiva, fell in the Yom Kippur War, and his grandchild who was born after the father’s death is a career soldier in the I.D.F; it is a family of Torah and the defense of the country, which attests that integration is proper and feasible, and should not be despaired of.

Subject to all the above, I concur in the conclusion of the President, and will mention that my comments, like hers, were written long before the current public discussion, to which we do not relate.

 

Justice

 

Justice Hanan Meltzer

 

1.         I concur in the opinion of the President, Justice D. Beinisch, but given the importance of the subject and the legal aspects it raises, I will allow myself to add some remarks.

2.         The Deferment of Military Service for Yeshiva Students Law whose Torah is their Calling Law, 5762-2002 (hereinafter: the Deferment Law”, in its implementation over the course of nine and a half years (until the signing date of this opinion) did not realize the purposes pinned on it by its drafters. It should therefore be cancelled and another arrangement, more proportionate and more balanced should replace it. In what follows I will explain these holdings.

 

The Constitutional Examination

 

3.         The constitutional examination proceeds from the holding of the President, Justice A. Barak in HCJ 6427/02 Movement for Quality of Government v. Knesset [2] supported by the judges who concurred with his opinion, to the effect that:

 

The Service Deferment Law discriminates between those who serve in the army by force of regular rules and the yeshiva students who are entitled to an exemption and deferral according to the Service Deferment Law, given that Torah is their calling. This violates the human dignity of each and every one of the majority of group who is obligated to do military service (ibid.[22],p. 691)

 

I would like to make three additions to this holding:

 

(a)        As noted by my colleague Justice E. E. Levi in the Movement for Quality of Government [2] case (ibid, p. 783):

           

‘This is not only a violation of dignity….it also involves the violation of other basic rights, among them the right to protection of life, the right to freedom of occupation, the right to privacy, personal freedom, property and the additional derived therefrom – all of them rights that are anchored in our Basic legislation.

 

(b)        The injured population is not only those who serve in the Army (in compulsory and reserve) but also those who are designated for military service, within the meaning of the Defense Service Law, 5746-1986 (hereinafter: DSL), who are likewise discriminated against, at least having consideration for the fact that they do not merit an automatic deferral for purposes of study, in comparison with their hareidi counterparts, who enjoy that privilege until they reach age 22.  Furthermore, when those designated for military service who are not hareidi receive a deferral for study purposes (for the most part in the frameworks of the academic reserves) they are required to return to full compulsory service and are frequently required to commit themselves to permanent service.

 

(c )        Over the years indeed, “Quantity has made a qualitative difference” (within the meaning given in HCJ 910/86 Ressler v. Minister of Defense in the broader context. In view of the shortage of manpower in the I.D.F. it even has implications for the length of service for those who serve, for this is influenced by the reduction in the scale of manpower (see Explanatory Note to Draft Bill of Military service (Temporary Provision) Amendment No.14) 5772-2011, in the wake of which in the Temporary Provision Law, adopted by the Knesset on 16 January 2112, the period of regular service as anchored in the Defence Service Law was lengthened by six months, and in the absence of which soldiers in compulsory service would have served for 30 months). In this context it should be noted that in the states which still have compulsory service, regular service generally lasts for between 18 – 24 months, and only in North Korea is the period longer than here. See: Panu Poutvaara and Andreas Wagner, The Political Economy of Conscription in The Handbook on the Political Economy of War (Christopher J. Coyne & Rachel L.

Mathers eds., 2011) (hereinafter: Poutvaara and Wagner). See also Gay Israel Zeidman, The Right to Serve in the I.D.F. ch. 6 ibid, Military Arrangements in Other States, pp. 121-143 (1996) (hereinafter – Prof. Zeidman); Bjørn Møller, Conscription and its Alternatives, 277 ; Rafael Ajangiz, The European Farewell to Conscription, 307 in: The Comparative Study of Conscription in the Armed Forces (Lars Mjøset and Stephen Van Holde ed.,) 20 Comparative Social Research (2002).

4.         Evidently, the normative arrangement anchored in the Deferment Law violates protected constitutional rights. However, this marks the beginning and not the end of the constitutional examination.. At the second stage we must clarify whether the aforementioned arrangement meets the requirements of the “limitations clause” included in s. 8 of Basic Law: Human Dignity and Freedom and in s. 4 of Basic Law: Freedom of Occupation.

            Before proceeding – two comments are necessary:

(a)        It seems that an understanding similar to the one presented above may also be reached by application of a “judicial limitations clause” on s. 4 of Basic Law: The Army, which provides as follows:

 

4. The duty of serving in the Army and recruitment for the Army shall be as prescribed by or by virtue of Law.

           

            On the interpretation of this section for purposes of the current context see: Mordechai Kremnitzer and Ariel Bendor, Basic Law: The Army, 67- 73 (part of the series Commentary on the Basic Law, Yitzchak Zamir ed. 2000). Regarding the “judicial limitations clause” see: EA 92/03 Mofaz v. Chairman of Central Elections Committee to Sixteenth Knesset [39] at p. 811; HCJ 7052/03 Adallah – Legal Center for Rights of Arab Minority in Israel v. Minister of the Interior [40], at p. 314, per President Barak; Dr. Avigdor Klagsbald, “Contradiction in Basic Laws” Hapraklit 45 (2006) 293.

 

(b)        There are certain contexts (internal-military) in which relevance may also attach to the special limitations clause for the security forces, included in s. 9 of Basic Law: Human Dignity and Liberty, which provides as follows:

 

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

 

Regarding the significance of this section and its interpretation, see [41], at pp. 73, 75; HCJ 6055/95 Zemach v. Minister of Defense [16]; my opinion in HCJ 6784/06 Shlitner v. Director of Payment of Pensions [42] and my article: “The I.D.F. as the Army of a Jewish and Democratic State (soon to be published in the periodical, Law and Business of the Herzliya Interdisciplinary Center, in the volume in honor of Prof. Amnon Rubinstein (hereinafter: my article on the I.D.F).

 

            Having consideration for all of the above, we may now proceed to analyze the “limitations clause”, which reads as follows

 

There shall be no violation of rights under this Basic Law except [1] by a law [2] befitting the values of the State of Israel, [3]enacted for a proper purpose, and [4] to an extent no greater than is required, or [1] by regulation enacted by virtue of express authorization in such law
(the numbering in the cited version is my addition – H.M)

 

In this framework we will limit ourselves to an examination of the aforementioned limitations clause on the Deferment Law.

5.         In accordance with the holding of the majority in the Movement for Quality of Government case the violation of the protected human rights included in the Deferment Law meet the requirements of conditions [1] – [3] of the limitations clause, as set forth below:

 

(a)        They are anchored in law as required. Here I will add that it is irrelevant whether the law is a regular law or a law which is a “temporary provision” or Sunset Law (a law with an inherent expiry, such as the law at hand). Furthermore, in the current context there is almost no importance to the dispute that arose in the “Mifkad Leumi” Ltd v. Attorney General case concerning the meaning of the phrase “by regulation enacted by virtue of express authorization in such law” in the limitations clause, because even the extension of the Deferment Law for five years (until1 August 2012) which was effected by a Knesset decision (See O.G. 5767 of 9 August 2007, p. 3910) was in accordance express authorization in the Service Deferment Law, which provides in s. 16(b)

 

‘The Knesset may, by decision, extend the validity of this law for additional periods, each of which shall not exceed five years; deliberation on the extension of the validity of the law shall be conducted in the Knesset no later than six months before the end of its validity’.

 

Here it should be mentioned that a law of the kind under discussion – if extended, and a fortiori if changed (to the extent required) – must be adopted in a regular legislative process (in three readings) and not by a Knesset decision only (compare s. 39 of Basic Law: The Government

 

(b)        The law is consistent with the values of the State of Israel within their meaning in Basic Law: Human Dignity and Liberty, and that context also gives expression to the fact that the State is a Jewish and democratic state. I will not elaborate on this point.

 

(c )       The Deferment Law, which is the product of a social compromise, consists of four combined objectives:

(1)        It anchors the arrangement of the service deferment for yeshiva students whose Torah is their calling and who seek immerse themselves in study day and night.

(2)        It seeks to increase the equality in the allocation of the burden of military service in the Israeli (Jewish) society, in the sense that more men from the hareidi community will, ultimately serve in military service (regular or special), or at the very least will serve in civilian service.

(3)`      It strives to engender greater participation of the hareidi public in the Israeli work force, which should improve the social position of the hareidi families on the one hand, and will contribute to an overall growth in the national product.

(4)        It aspires to resolve the difficulties that have long (since the creation of the State, and even before then, see – Prof. Zeidmann (188-194) accompanied the service deferment arrangement for yeshiva students by a gradual and cautious process and based on broad consensus and without a coerced conscription (which would evidently not be effective).

 

These four objectives are intertwined, and were already recognized as being appropriate in the Movement for Quality of Government case. At the same time it transpires that the Law does not meet the fourth obstacle in the limitations clause because the manner of its implementation has proved it to be disproportionate, given that its realization has not achieved the goal. In what follows we will clarify these points.

 

Proportionality Failures in the Deferment Law

 

6.         As known, proportionality is determined in accordance with three subtests:

 

(a)        The rational connection test – which examines whether there is a rational connection between the means chosen, which violates the constitutional right, and the objective.

(b)        The least harmful measure test – which examines whether the solution found for realizing the objectives of the law is the one which occasions the least harm to the constitutional right, from among the possible measures

( c)       The proportionality test stricto sensu –(“the test of relativity” as suggested by Prof. A. Bendor in his article “Trends in Public Law in Israel – Between Law and Judging (soon to be published in Law and Government 2012). See CrApp 8823/07 Anon v. State of Israel [43]) per my colleague the Deputy President, Justice E. Rivlin, at para. 26. According to this test to justify the constitutional violation, there must be an appropriate, positive reasonable relationship between the incremental advantage gained by realization of the legislative objective and the incremental harm liable to be caused to the constitutional rights as a result.

See Aharon Barak, Proportionality in Law – The Violation of a Constitutional Right and its Limitations, pp. 295-455 (2010)

7.         During the years of its implementation the Deferment Law has proved that it does not even pass the first of the aforementioned subtests (the rational connection test) because the means adopted for its execution have not succeeded in bringing about the realization of its four underlying objectives s, all as set forth in detail in the opinion of the President. The report of the Plesner Panel appointed by the Foreign Affairs and Defense Commission to monitor the implementation of the Deferment Law similarly concluded that the implementation of the Law had failed. Indeed, all of the easier alternatives which were put at the disposal of the yeshiva students were not sufficiently exploited and at too slow a rate. At the same time, here too I am obligated to make a few comments.

 

{a}       Even though the relevant basic data for reaching that conclusion exists, what is still missing are standard criteria for comparison and clarification of the Law’s position on the compliance of the Deferment Law with the “test of results”, This explains the thrust of the difference between the petitioners’ presentation of the facts and that of the respondents, and in my view also accounts for the discrepancy in the analysis of the numbers in President’s opinion in comparison to the analysis presented in the opinion of my colleague Justice Arbel. It is nonetheless clear that the overall number of hareidi men who received deferments and those who are exempt from I.D.F. service is increasing from year to year, notwithstanding the increased numbers of those enlisting from among that public into hareidi Nahal and into the various Shahar frameworks. At the same time there is a discernable continual growth in the numbers of hareid men ho opt for civilian service (this phenomenon has a variety of explanations, and one of the contributing factors is the benefits given to those included in that category including the benefits anchored in the Civilian Service (Legislative Amendments) Law, 5768-2008).

(b)        The defect is not only the result of the approach taken by the yeshiva students and their leaders. The Government too, by reason of budgetary constraints has “dragged its feet” in the realization of the Deferment Law (in all matters pertaining to the establishment and maintenance of supervisory bodies for the civilian service and with respect to the allocation of the budgets required for the actions necessitated by the broadening of the relevant military frameworks (the various Shahar units etc.)). See Government Decision 2000 dated 6 July 2010, Concerning the appointment of an Inter-Ministerial Committee for Monitoring and Formulating Recommendations for the Changing of Conscription Proceedings applicable to the Hareidi Sector – from which it emerges that the Government views the conscription of the hareidi men as a burden, and this is a pity.

            The I.D.F. too, despite declarations given in this context and certain efforts that have been made (see: Updating Notice from Respondents 2-4 of 24 January 2011), has yet to adjust itself sufficiently to the conditions dictated by its incorporation of the hareidi men and the need to maintain their freedom of religion, and I will not elaborate. See also: Gideon Sapir: “Conscription of I.D.F. Soldiers into the I.D.F.: Outline Proposal for Relevant Normative Considerations” Pelilim 9 (December 2000)

(c )       The new conscription proceedings (which were introduced when the petitions were pending and were based on the Government Decision of 9 January 2011) suddenly opened an additional track for abbreviated military service of three months only – for hareidi men whose service had been postponed, between ages 26- 27 (men above that age who had received deferments are at all events referred to the pool of reserve duty without any training and at the end of the day receive an exemption). This decision has three blatant defects

(1)        In defiance of the alternatives prescribed in the Deferment Law, which are supposed to be exhaustive, it adds an additional option, which prima facie contradicts the Law forming the subject of the petitions and the length of service prescribed therein.

(2)        It unlawfully assumed the powers of the Minister of Defense in these contexts, conferred to him in the Military service Law, in defiance of the provisions of Basic Law: The Government.

(3)        It purported to establish “facts on the ground” even before our ruling on the entire complex of issues.

            On the other hand, this alternative indicates the existence of measures other than those enumerated in the Deferment Law for the realization of its objectives, and it would have been proper for these to be examined already in the framework of the enactment of the Law, or before the extension of the validity of the Deferment Law, given that it comes within the category of the second subtest for proportionality – the least harmful means test. The failure to conduct such an examination constitutes grounds for judicial review, thereby bringing us back to the proportionality subtests.

8.         In the context of our comments in para. 7 it was concluded that the Deferment Law does not even pass the first subtest of proportionality. On the face of it I am therefore exempt from discussing the other proportionality subtests. However this would be improper having consideration for those of my colleagues who maintain that the Law forming the subject of the petitions meets the first subtest. The supporter of that view must still show the law also meets the other subtests, the second and third, and this must still be done.

            Without derogating from this problem, I would like to add, in addition to what is necessary and briefly, in deference to the opinions that take issue with my own, that the Deferment Law did not, in my view, adopt the measure that is the least harmful to constitutional rights from out all of the available means (and the matter mentioned in s. 7 (c ) above, is just an example that proves the claim). Willy-nilly, the Law similarly fails to meet the third proportionality subtest – the test of relativity The result is that it has not been proved to us that the social benefit of the arrangements in the Deferment Law, as realized, is actually greater than the violation of the rights of all those who are actually, or potentially recruited.

These conclusions bring me to the third stage of the constitutional examination which focuses on the constitutional remedies. In what follows I will address this subject.

 

Constitutional Remedies

 

9.         Our discussion thus far yields the conclusion that the Deferment Law in its existing format should be voided. What follows from this is that the Law cannot be extended beyond the date of its expiry on 1 August 2012. On the other hand, neither would be it appropriate to order its immediate cancellation, so as to enable all those concerned to utilize the remaining period of its validity to organize for the new situation. I will now present the legal reasoning for this position.

10.        As I clarified in my opinion in HCJ 466/07 MK Zahava Galon v. Attorney General [38] (hereinafter “Families Unification case), from comparative law we learn that temporary legislation is appropriate for four alternate situations (see Jacob Garsen, Temporary Legislation, 74 U. Chi. L. Rev. 247, 273-279 (2007:

(a)         Constraints of Urgency or State of Emergency

(b)         A supervised experiment of a new system, or new policy, or as a means of receiving information (note: situations (a) and (b) were discussed and confirmed in HCJ 4908/10 Roni Baron v. Israel Knesset [44].

(c)         Response to defects in the existing normative situation.

(d)         Attempt to overcome cognitive biases (see Christine Jolls, Cass R. Sunstein, Richard Thaler, Behavioral Approach to Law and Economics, 50 Stan. L. Rev. 1471 (1997-1998) or situations of asymmetric information (see George K. Yin, Temporary Effect Legislation, Political Accountability, and Fiscal Restraint, 84 N.Y.U. L. Rev. 174 (2009)

             As distinct from the matter confronting us in the Families Reunification case, prima facie none of these four alternatives has any application in the matter at hand, given that the Deferment Law has so far been granted nine and a half years for trial and error. Furthermore, under these circumstances the extension of the validity of the Deferment Law in its existing format is not possible, even for a shortened format, because on the face of it, even during the extension period beyond the expiry date it must meet the constitutional tests (see Yigal Marzel “Delaying a Declaration of Invalidity” Law and Government39 (5766); my opinion in the Family Unification case [43], (ibid para. 43).

11.        Should we seek to uphold the underlying objectives of the Deferment Law, which our case law has declared as legitimate and appropriate, the current law should be replaced by another more constitutional and more balanced arrangement. Naturally, in this framework I do not purport to suggest a solution to the problem or even to indicate a direction in a matter that is obviously located within the boundaries prescribed for legislative maneuvering (provided that the measures chosen are constitutional). All the same, I find it proper to point out for the convenience of all, a number of relevant lines of thought and ideas that I found n comparative law (while showing how they are parallel to the local contexts) and to emphasize a few subjects that require a response in view of the voiding of the Deferment Law in its current format. The next chapter is devoted to this matter.

 

Lessons from Comparative Law and Issues Requiring Arrangement

 

12.        The comparative law that we surveyed in a number of states in which there is (or was) compulsory service (Austria, Brazil, Germany, Denmark, Greece, Norway, Singapore, Finland, South Korea, North Korea, Cyprus, Switzerland and Turkey) is instructive in a number of matters:

 

(a)         In Switzerland – Jews are called upon to serve in compulsory service but religious Jews (including hareidi Jews) are provided with suitable conditions that ensure inter alia: the observance of kashrut, the Sabbath and the Jewish festivals (see: Standing Orders of Swiss General Staff No. 51.024 and 51.003). They are also reimbursed for expenses paid to obtain meals with special kashrut (which are not supplied by the army). See circular from the Federation of Jewish Communities in Switzerland: http://www.swissjews.ch/pdf/de/religioeses/merkblatt_militaer_2010.pdf

(b)         In Germany, until one year ago, there was regular compulsory service, or alternative civilian service. The Jews (and the Gypsies) were exempted from conscription in view of the need to restore their nation and their families who were exterminated and injured in the Holocaust (see: Procedure of the German Ministry of Defense dated 22.3.89; WE2-A2- 04-05-24, which is based on sections 12IV s.1 and 12 IV s.2 of the Wehrpflichtgesetz (German Compulsory Service Law); regarding the parallel exemption relating to alternative civilian service, see: Procedure No. 76 of the Federal Civilian Service Office of Germany, of 3 March 2006.

             Similar considerations originally gave rise to the arrangement of deferral of service for yeshiva students, which at the time was limited to just a few hundred yeshiva students. This arrangement received the consent of the Prime Minister and Defense Minister at the time – David Ben-Gurion, who during the Knesset debate gave the following description of the relevant background (Knesset Proceedings 25 5719):

 

‘Upon the establishment of the State the matter of the yeshiva students was raised with me by one of the leaders of Judaism and Torah in our times – Rabbi Maimon and Rabbi Yitzchak Meir Levin. They said: Since all of the centers of Torah in the exile were destroyed and this is the only country in which the yeshivas remained and there is only a very small number of those who learn, they should be exempted from military service. Their words seemed reasonable to me. It seemed that they were correct and so I gave an order to release the yeshiva students’.

 

For the sake of fairness and to complete the picture, we will mention that in the continuation of his speech on the same occasion David Ben-Gurion said the following:

 

‘Meanwhile things have changed. There are thousands of yeshiva students, both in Israel and in the diaspora. I doubt whether we are fulfilling are duty, not only to the people but also the individual. The bereaved mother whose sons fell will say: Perhaps had there been a few more young men with my son he would not have fallen. Can there be a Shabbat Goy where it concerns the defense of the nation? Isn’t this the duty of each and every person? As a person who has great understanding and respect for the sensitivities of the members of Agudat Yisrael I suggest that you give this matter consideration. We do not want the third Temple to be destroyed.

 

As we all know, David Ben-Gurion’s proposal was not accepted, and after the change in government in 1977, and in accordance with the coalition agreements drawn up in constituting the government of Menachem Begin, in the wake of the establishment of the Government, Defense Minister Ezer Weizmann cancelled the yearly quota of hareidim who would benefit from the deferment exemption.

            In this way we arrived at where we are today – see Prof. Zeidmann, p. 190

(c )       An exemption from military service may occasionally be granted for reasons of conscience, but the principle of equality dictates that person who enjoys an exemption of that kind be liable for an appropriate, alternative form of service (civilian), and the State must put such possibility at this disposal, See: Bayatyan v. Armenia, [2011] ECHR 23459/03 [53].

(d)        In states in which it is possible to replace compulsory military service with an alternative civilian service – the length of the alternative service usually exceeds that of the compulsory military service (compare to us in s. 9 (3) of the Deferment Law). Furthermore, a person serving in a military service usually receives extra economic grants during the service (and special benefits after release), in comparison to the parallel rights granted to those who chose civilian service. See: Poutvaara and Wagner, p. 3).

            Here too it has been ruled that this kind of preference is permitted. See: HCJ 11956/05 Bishara v. Minister of Construction and Residence [45]’ FNHCJ 1241/07 Bishara v. Minister of Construction and Residence [46 ]; my judgment in HCJ 11088/05 Heib v. Israel Lands Administration [47]

            In this context it further bears mention that all over the world today the prevailing trend (especially in Europe) is to go from compulsory service to voluntary service with a significant improvement in the accompanying salary, both for those in compulsory service and those serving voluntarily. See Europe Without Soldiers? Recruitment and Retention across the Armed Forces of Europe (Tibor Szvircsev Tresch and Christian Leuprecht, eds., 2010)

(e)         In states with compulsory military service the exemptions are limited and there are criteria (limited and restricted, numerically or qualitatively) and tight supervisory mechanisms for screening and supervising those who are entitled to the exemption. See: Central Intelligence Agency (CIA), The World Factbook, available at https://www.cia.gov/library/publications/the-world-factbook/fields/2024.html; War Resisters International (WRI), "Refusing to Bear Arms: A World Survey of Conscription and Conscientious Objection to Military Service" (2005), available at http://www.wri-irg.org/system/files/Rrtk-update-2008-Austria.pdf

             Here too, a similar approach is adopted with respect to exemptions and other expressions of leniency besides the ones under discussion and they are generally regulated in standing orders of the army, occasionally limited by numerical quotas or qualitative threshold conditions.

13.       In addition to the information adduced in para. 12 above, and which may be useful for future legislative needs, it bears mention that any legislation of this nature, should there be such, must (subject to the required, appropriate examinations):

(a)        Ensure the existence of the Hesder yeshivas , the operation of which is currently anchored in s. 9 of the Deferment Law (and prior to which, in the absence of the law, was anchored in the Army’s standing orders).

(b)        Ensure the continued nurturing of prodigies from among the yeshiva students – akin to the burning sticks that survived – who guard the torch of fire and the Jewish genius, which protected the Jewish people for thousands of years against those that rose up to consume it.

(c)        Ensure the existence of an appropriate normative and budgetary infrastructure for civilian service (and which can be also be expanded for other persons exempt from military service) and for the entities who supervise them.

(d)        Establish agreed indices which will enable an examination of the “test of the result”

14.       In approaching the end, this is the place to clarify that the voiding of the Deferment Law does not mean voiding the framework of the Hesder yeshivas or the haredi Nahal or the various Shahar units, because the existence of all these frameworks can be anchored within the framework of the Defense Service Law and the Army’s standing orders. This was how the army authorities operated prior to the enactment of the Deferment Law.

15.       Furthermore, today (and in fact since Amendment No. 7 of the Defense Service Law) the existing normative infrastructure provides solutions to some of the problems which the Deferment Law attempted to answer, at least with respect to the hareidi men who request to serve. It was possible to incorporate them into what is known as “recognized service”, currently regulated in s. 26A of the Defense Service Law. Under this section, the Minister of Defense is entitled to determine by order, with the approval of the Government and the Foreign Affairs and Defense Committee of the Knesset, that those designated for army service who are found to be fit for service and who have undergone a preliminary military training, may serve (having given their consent) in regular service or a part thereof in a framework of recognized service.

            For this purpose recognized service is inter alia:

 

“service in military units in the framework of a government ministry or organizational framework of a public body and under the supervision of a government ministry, designated for the attainment of a military- national objective in one of the following areas: immigration and absorption, education, health, protection of the home-front or voluntary activities for I.D.F. soldiers, all provided that the Minister of Defense is persuaded, having consideration for the circumstances at that time, and in consultation, as the case may be, with the Minister of Immigrant Absorption, the Minister of Education, Culture and Sport, or the Minister of Health, and with the Minister of Justice, that if such activity is not performed by those designated for military service in regular service, the objective will not be attained as required’.

 

For an understanding of the institute of “recognized service” and the background for the legislation of the relevant arrangement, see: Elyakim Rubinstein, “Basic Law: Human Dignity and Liberty and the Defense Establishment”, On Government and Law: Studies in Israeli Public Law, 225, 242-248 (20003); my article on the I.D.F.

In these special units, which are external to the regular I.D.F order of battle, it may also be possible to respect the hareidi life style in an optimal manner.

These last insights bring us to the conclusion

 

Final Word

 

16.       We have seen that the Deferment Law, in its present format, cannot stand. The solution however does not lie in incitement, but rather in finding genuine, proportionate and graded arrangements that are feasible within the framework of the objectives underlying the Deferment Law. It may be possible to achieve this and to attain substantial results provided that all of those involved learn to waive some of their requirements in the interests of “the middle path” and in recognition of three principles:

(a)        Service in the I.D.F. or alternative civilian service, is not just a duty but also a privilege

(b)        The freedom of religion of the hareidi men must be respected both outside the army and within the army (and in the various frameworks intended for the hareidi men who choose to serve). On the other hand, the hareidi men must recognize the immense contribution made by those who serve to state security and peace for all.

(c)        A arrangement based on consensus (anchored in law) is preferable to an arrangement based on coercion. To that end, the preferable alternative is not the one that seeks to achieve everything, but rather the one that leads to the integration, in various frameworks, of many of those hareidim who at all events are unable to diligently study Talmud in the yeshivot from dawn until dusk.

17.       If a legislative arrangement is achieved along the lines of paras. 12- 16 above, while learning the lessons of what has happened until now and from comparative law, it may obviate the need for Court’s intervention in the matter. In the past however, the judicial review of the entire matter was essential and this also applies to the petitions before us, and it may again be required of us in the future. Furthermore, I think that judicial review was one of the factors that lead to a certain degree of improvement (although still not sufficient) in one of the subjects treated of in the petitions, as clarified in the opinion of the President. In this sense, the court contributes – by way of the law – to the required social changes in addition to its establishment of the law, and the achievements that this produced in a variety of realms are all recorded in the history of this Court and in the annals of Israel’s history. A similar conception has long been accepted in the majority of the democratic states, and in the U.S.A. for example, adducing more remote evidence, most of the important struggles – political, social and economic, were channeled inter alia into legal frameworks and the decisions rendered shaped the character of America as we know it. See: Arnon Gutfeld, The Brown v. Topeka Board of Education Decision and its Impact on American History The Brown v. Topeka Board of Education Decision and its Impact on American History,” in Daniel Gutwein and Menachem Mautner (eds.).Law and History. 231; Stephen Breyer, Making Our Democracy Work: A Judge’s View, Part 1, pp. 1-74 (2010)

            It is superfluous to elaborate any further on this point at this stage, which brings me to the final paragraph.

18.       My colleague, Justice Rubinstein opened his opinion with a story told of Rabbi. Shlomo Zalman Aeurbach, of blessed memory. My colleague, Justice N. Hendel concluded his opinion with the words spoken by R. Yitzchak Gussman, of blessed memory. It emerges that there is a glimmer of hope because even in hareidi world today there are prominent figures today who take a similar approach. We recently read about one of the heads of the Ponevez Yeshiva (which is one the leading haredi yeshivas – the illustrious Rabbi Yerachmiel Gershon Edelstein, may he live long – in responding to his detractors (who criticized him for being “overly fond of the Zionists and the I.D.F. soldiers): “Even the secular [Jews-trans} who are not observant of the Torah and its commandments, if they give their lives for the saving of others because of their love of human beings, have a portion in the World to Come, just as the martyrs of Lod, who gave their lives to save the residents of the town. The Rabbi then related the story of the martyrs of Lod: “In Lod the daughter of the king was killed, and they suspected that the Jews were the murderers. A decree was issued that if the murderer was not found, then all of the Jews would be killed. Two brothers come and said that they were the murderers, even though they were not the murderers, in order to save the residents of the town, and the Sages said that no person can attain to the place in Heaven assigned to the martyers of Lud; published in Kikar HaShabat on 8 Shevat 5772

            On the gemara concerning the story of the martyrs of Lud, see: Pesahim 50a; Ta’anit 18b; Bava Bathra 10b and Rashi, ad loc.

            If this kind of conciliatory spirit of loving of Jews were to rest upon all, and the mindset of service was to be accepted, it would become possible to achieve an understanding and the I.D.F would be able to continue being the people’s army.

 

Justice

 

Justice Hayut

 

I concur in the opinion of the President, D. Beinisch and all of her reasons and would like to add a number of comments

 

1.         The Deferment of Military Service for Yeshiva Students for Whom the Torah is Their Calling 5762-2002 (hereinafter – the Deferment Law) was enacted in the wake of the recommendations of the Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students (headed by Justice Tzvi E. Tal (hereinafter: the Tal Commission), which was intended to find a feasible and practical solution for one of the most central, sensitive and complex problems which has been on our agenda for years. The legislative act was the product of the recognition that the issue of the enlistment of yeshiva students must be resolved in Knesset legislation (see HCJ 3267/97 Rubinstein v. Minister of Defense [1], and in the recognition that the strength and the unity of Israeli society mandates the treatment of the issue without delay, in view of the growing numbers of hareidi men who do not serve in the army, since the cancellation of the exemption quota for those for whom “Torah is their Calling” in 1978 (see data regarding this on p. 16 of Report of the Interoffice Team for Encouragement of Employment and Promotion of Military and Civilian Service in the Hareidi Sector (hereinafter: Report of the Gabbai Commission). At the same time – and this point was stressed in the report submitted by the Tal Commission – the obvious differences between the hareidi sector and the secular sector, finding expression inter alia in lifestyle, education, and scale of values, necessitates that a solution be found which takes into account the peculiarity of hareidi society and its needs.

            The Deferment Law enacted by the Knesset in 2002 may thus be characterized as a law that is the product of a social compromise, intended to increase solidarity among the different parts of Israeli society, and the integration of hareidi society therein by way of the different mechanisms established by the Law. Indeed, according to the hopes of its enactors, the Law sought to harness significant portions of the hareidi sector into bearing the onus of military service, albeit at a reduced level, and to increase their presence in the Israeli work market (see: Movement for Quality of Government v. Israeli Knesset [2] (hereinafter: Movement for Quality of Government case).

2.         Due to the unique nature of the Deferment Law, as a law that seeks to spearhead a social change using a model characterized by a graded process, we were required to adapt the judicial review to these distinct features. This point was taken up by President Barak, in relating to the first subtest of proportionality (the rational connection test) which concerns the existence of conformity and a rational connection between the objectives of the Deferment Law and the measures chosen by the Legislature to realize these objectives. In this context, President Barak stressed that the examination of this rational connection:

              

‘Must be conducted, for the purpose of the law under discussion, not as a theoretical matter, but rather as a practical matter tested by the results of its implementation. Indeed, as a theoretical question examined at the time of the law’s enactment, the arrangements prescribed in the law may be capable of realizing its objectives,..an (advance) examination of this kind will not suffice. When the underlying objective of the law is to orchestrate a social change, the occurrence of which is not purely a matter of theoretical speculation but is rather examined in the test of life, the suitability of the measures chosen to realize the purpose must be examined in terms of their results’. (Movement for the Quality of Government [2] at p. 710. For the approach according to which the examination of the rational connection is in general a test that for the full duration of the law’s validity, see Aharon Barak Proportionality in the Law – The Violation of the Constitutional Right and its Limitations 384-387 (2010)

 

Support for the “test of results” adopted in Movement for the Quality of Government case appears in s. 16 of the Law, which determined a period of validity of five years from the date of its publication (while empowering the Knesset, by decision, to extend its validity for additional periods each of which would not exceed five years) as well as in the Explanatory Note which noted that the Law’s period of validity was fixed for five years “to enable the monitoring of the progress in the trends, in the framework of the enlistment deferment arrangements for yeshiva students for whom their Torah is their calling, and primarily the influence of the proposed law on the scope of yeshiva students included in the arrangement…” (Draft Bill for the Military Service (Deferment of Service for Yeshiva Students for whom the Torah is their Calling) Law (Temporary Order), 5760-2000, Hatza’ot Hok 5760-2000, 2889, 455, 458.

            It will be stressed that in the Movement for the Quality of Government case, we did not ignore the fact that in terms of its results, and according to the situation at that time (2006) , there was no rational connection between the objectives of the Law and the measures used in its implementation, because the data at that time showed that the objectives of the Law had only been realized in a negligible and marginal manner and that its principal overall objective of the Deferment Law was not realized (see Movement for the Quality of Government [2 ] at p. 712. All the same, we felt that it was appropriate to wait until the passage of the full period of time prescribed by the legislator for monitoring the actual realization of its purposes (five years), so as to enable the Knesset to examine in accordance with the structure that it had prescribed, whether there had been any substantive change in the picture since the granting of the judgment.

3.         The petitions before us were filed in the wake of the Knesset’s extension of the Deferment Law for an additional five years on 8 August 2007, and in our decision of 8 August 2009 we reviewed the current data pertaining to the implementation of the Law at that time, and we expressed our disappointment that “the entirety of the data presented above concerning the integration of those who received deferments from I.D.F service and civilian service does not reflect a significant change of the kind contemplated by the judgment in Movement for Quality of Government [2] (para. 10 of the decision)” All the same, we will abide by our decision that “the test of the Deferment Law lies in its realization in practice. The test is in the actual social change that is achieved” (Movement for Quality of Government [2], at p. 711). We decided that at that stage too it was appropriate to enable the Law and the mechanisms fixed therein, which had already begun operating, to prove that it was capable of generating this kind of change. We therefore ordered that the hearing of the petitions would be renewed after the passage of fifteen months from the date the decision was given, in order to be able to once more examine the updated data pertaining to the implementation of the Law.

4.         Unfortunately, the desired change did not materialize even after the passage of the additional period of time that we allocated in our decision, and I agree with my colleague the President that the period of almost a decade that have passed since the enactment of the Law (1 August 2002) “represents a sufficient period for addressing the central question raised by this Court in the Movement for Quality Government case” [2](para. 68 of her opinion). I also concur with my colleague regarding the answer to be given to this question, and in accordance with which the “results test” over a period of time indicates that the Law does not pass the first subtest of proportionality, and that the means chosen to realize the Law are not suited to the purposes of the Law. For example, in 2010 the number of new inductees to the I.D.F. from the haredi sector from all age levels stood at 510 only (the 368 inductees into hareidi Nahal are not included in this group because the inductees of hareidi Nahal are not connected to the implementation of the Deferment Law) whereas the aggregate number of all those whose enlistment was deferred as of 6 January 2011 stood at 61,877 men (see p. 7 and 20 of the response of respondents 2- 4 dated 23 January in these petitions. The State claimed that the overall number of those whose service was deferred is smaller, inter alia due to the exclusion of those who are 30 and over, the efficacy of their enlistment being in doubt. However, even according to this approach, the aggregate number of all those whose service has been deferred is in excess of 50,000, and as such there is no escaping the conclusion that the percentage of those enlisted from the hareidi sector (530 in 2010 from all the age levels) was and has remained particularly marginal and negligible. If we take account of the fact that the rate of natural increase in the hareidi sector is far more rapid than the natural increase of the rest of the Jewish population in Israel (about 7% per annum for the hareidi sector as opposed to 1.3% for the rest of the Jewish population – p. 8 of the Gabbai Report), it is no wonder that the number of those whose service is deferred from among the hareidi population has consistently grown from year to year (see para. 50 of the President’s opinion). Thus, the data accumulated thus far do not point to any meaningful positive trend with respect to the attainment of the objectives to which the Law was directed. Quite the opposite: These data are worrying because they indicate that the dimensions of the problem which the Deferment Law sought to solve are growing. Hence, the Gabbai Report indicates that in the younger age range (20 – 29) only 11% of the haredi men service in the Army as opposed to 90% of the Jewish men in this age range (p. 12 of the report) and the results in the civilian service track are likewise rueful (see paras. 42-46 of the President’s opinion.

5.         The ineluctable conclusion from all of the above is that the Deferment Law did not succeed in realizing the objectives for which it was enacted. The reason for this is that the mechanisms established in the Law lack the power to generate the profound changes in the hareidi sector which would narrow the glaring inequality which has materialized in Israeli society as far as it concerns the bearing of the military burden, at least by way of civilian service. Hence, the arrangements prescribed by the Law relate primarily to men above the age of 22, an age at which the average haredi man is married and is often a parent to a child (see p. 19 of the Gabbai Report). As such his ability or will to enlist for significant service at that stage of his life is considerably less. Similarly, the arrangements prescribed by the Law are not sufficiently tight, and this opens the way for the authorities to divest it of all meaning, and thus frustrate the overall realization of its intended objectives (regarding this, see paras. 24- 26, 44-46 of the President’s opinion). For example, today already from age 22 there is no preference for military service over civilian service; civilian service is likely to be for one year only, see: Regulations for Deferment of Service for Yeshiva Students whose Torah is their Calling (Civilian Service) 5767-2007 and is for the most part performed within the community (68% according to the Head of the Administration, and 57% according to the position of the Minister of Science – see p. 27 of the interim report of the panel for examination of the implementation of the Tal Law, headed by Knesset Member Plesner, dated 16 January 2011) and is not sufficiently supervised; a track of abbreviated service of three months was established for those aged 26 and above; and men over age 28 are directly referred to the pool for reserve duty with no obligation of service.

6.         As an aside in this opinion, I would like to add a few remarks relating to the position taken by my colleague Justice A. Grunis, concerning the scenarios that will take place the day after our judgment and the conclusion that he sought to draw from that position.

            My colleague Justice A. Grunis says that “It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager” (para. 2 of his opinion).

            The question of the degree to which a judicial resolution can give rise to a social change is one over which jurists and scholars of political science have spilt much ink, in Israel and around the world. My colleagues justices M. Naor, and H. Meltzer, and my colleague the President D. Beinisch referred to some of the legal literature on this subject (and see also: Ruth Gavison “The Hollow Hope – Can Courts Bring About Social Change” Maasei Mishpat 2 15 (2009 which reviews the book of Gerald N. Rosenberg: The Hollow Hope: Can Courts Bring About Social Change (2^nd ed., 2008); Menachem Mautner, “Judicial Activism – An Appraisal, Alei Mishpat 4, 7 (2005) (hereinafter – Mautner); Judicial Activism: For and Against: The Role of the High Court of Justice in Israeli Society (2000); Yuval Albashan “Aharon Barak – Between Law and Protest, Barak Volume – Studies in the Judicial Activities of Aharon Barak 139 (Ayal Zamir, Barak Medina, Celia Fesberg eds. 2009); Neal Devins, Judicial Matters, 80 Cal. L. Rev. 1027 (1992); David Schultz & Stephen E. Gottlieb, Legal Functionalism and Social Change: A Reassessment of Rosenberg's The Hollow Hope: Can Courts Bring About Social Change?, 12 J.L. & Pol. 63 (1996). Personally, I tend to the view that the courts have the power, inter alia by way of judicial review, to be partners in processes that give rise to social changes. At all events, even if my colleague is correct in his approach to the effect that the courts’ ability to influence social changes is minimal, the question to be asked is whether that justifies the conclusion which he reached, namely that the courts should stand on the sideline and reject any attempt to influence these processes, even if only minimally.

            In my conception, the judicial decision in all of its variations, especially in the field of protection of human rights and the guarding of the rule of law and purity of conduct, is one that by its very essence touches on value based matters. These values have been embedded in the law of the State since the dawn of its existence and they constitute the foundation and the building blocks of the Israeli democracy in its entirety. Having been charged with the protection of human rights and guarding the rule of law, and being equipped with the legal – value based tools to perform that task, inter alia by way of judicial review, it is incumbent upon the court to fulfill that task, without being deterred by the negligible or extensive influence that its ruling may have. Comments in that spirit were expressed by Professor Mautner in his article on judicial activism cited above, where he states:

 

‘Another question, naturally concerns the extent to which the court succeeds in inculcating the appropriate values of administrative law in the public administration of the state. The answer to this question will certainly be mixed but this does not mean that the court should refrain from making the effort. As jurists we know that there is invariably a difference between the ideals of the law and the extent to which they are realized in the real world. But this does not mean that these ideals should be waived (Mautner, at p. 16)

7.         Examples of the efforts made by this Court to protect the basic constitutional principles of our democratic regime are scattered throughout its case-law during all the years of its existence, before and after the enactment of the Basic Law at the beginning of the nineties. Space would definitely prevent detailing the full picture, but one example nonetheless worthy of mention is the case of HCJ 153/87 Shakdiel v. Minister of Religious Affairs [34], where the Court did not recoil from protecting the principle of equality and cancelling gender based discrimination, when ruling that the petitioner should be included in the panel of the Religious Council of Yerucham as a candidate on behalf of the local authority. The protection of the principle of equality in that case required the Court to treat a topic of tremendous social and halakhic sensitivity, and the Court was aware of this, and noted, per Vice President M. Elon

 

‘We are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities (ibid, 270-271).

8.         The role of the judge in a democratic society as the protector of human rights and the rule of law has been discussed by discussed by many of the best (see Aharon Barak The Judge in Democratic Society (2004); Itzchak Zamir “Judicial Activism: A Decision to Decide Tel-Aviv Law Review 17, 647 (1993); Yitzchak Zamir “Judicial Review of the Public Administration” Gabriel Bach Volume 383 (David Hahn, Danah Cohen-Lekah, Michael Bach eds., 2011) Beverley M. McLachlin, The Role of the Court in the Post-Charter Era: Policy-Maker or Adjudicator?, 39 U.N.B.L.J 43 (1990). A derivative of this role is the court’s duty to do its utmost to narrow the gap that often exists between these fundamental values – which must be protected from a long term perspective – and the social reality which may materialize as a result of the actions of other governmental authorities, that are often motivated by short term considerations and various political constraints. Also germane to this context are the comments of Deputy President M. Cheshin in HCJ 2458/01 New Family v. Approvals Comm. for Surrogate Motherhood Agreements, Ministry of. Health [48]

 

“…far be it from us to mix reality and values. However, the test for determining the obligation of equality – and similarly the prohibition on discrimination – originated and currently exists specifically in order to combat “accepted social conceptions” . This is the case with respect to discrimination on grounds of race, discrimination on grounds of sex, discrimination on grounds of sexual inclination and discrimination on other grounds too. All of these discriminatory acts have their origin in “accepted social conceptions”: the social conception that a member of one race is inferior to the member of another race; that women are not competent to perform actions that men perform; that people of a certain age are not competent for particular professions etc. Indeed, the uprooting of ‘accepted social conceptions’ – accepted but illegitimate – is the purpose of various laws, and the court, in conjunction with the legislature, must stand on guard and act to inculcate the values of equality among the members of the society, which are built upon the talents of the individual and not upon stereotypes that have attached to the group to which a particular person belongs (ibid, p. 452; see also and compare HCJ 4948/03 Elchanati v. Finance Minister [50], para. 24; HCJ 104/87 Nevo v. National Labor Court [51], at p. 769, Mautner, at p.11)

 

The issue to be decided in these petitions has been brought before this Court time and again by petitioners who have ably served an entire public that has long lived with a harsh feeling of inequality, as far as it touches on bearing the burden of military service. In addressing this issue the Court has conducted itself with caution in awareness of the social sensitivity involved therein, and by reason of the caution, responsibility and humility which should always guide the Court in exercising judicial review over the other governmental authorities, and in the case at hand, over the Legislature. However, the time for decision has arrived, and for the reasons explained so well by my colleague the President, and by reason of the insights set forth above, which I acquired during the years in which proceedings on these matters were conducted before us, I add my opinion to that of the President and to the result that she arrived at, according to which the Deferment Law cannot be extended again in its present format, and a new arrangement must be formulated, which it is not for us to determine, and which ensures the intended objectives of the law in a more effective and more proportionate manner.

 

Justice

Justice N. Hendel

 

1.         It might be asked: How does the Supreme Court’s examination of the constitutional petition differ from the examination of the efficiency or non-efficiency of the Law forming the subject of the petition (the Law or the Tal Law)(see: interim decision of 8 August 2009, given in the wake of the granting of order nisi, para. 9 in the opinion of my colleague, Justice Hayut). The thrust of the question: Why is the “result test” so crucial to this Court’s decision of whether the Tal Law should be voided or not. The examination of the Tal Law should not, primarily, be an examination de jure but rather de facto, having regard inter alia for its success on the ground. It seems that this latter point is the crux of the dispute between the opinion of the President and the opinion of my colleague Justice E. Arbel. In explaining why the result test is proper and correct in this case I will briefly present the relevant background.

            The subject of the deferment of military service – to the extent of actually granting a complete exemption – to yeshiva students who declare that “their Torah is their calling” has been litigated before us on a number of occasions. The current variation of the exemption, in the form of the Tal Law, is now being heard for the second time in this file (see Movement for Quality of Government v. Knesset [2] (hereinafter – Movement for Quality of Government case). The procedural variation of the petition concerning the Tal Law establishes the boundary for a decision on the matter.

            The Tal Law infringes the right to quality in a manner that violates the Basic Law: Human Dignity and Liberty. Not every infringement of equality amounts to a violation of the aforementioned law. However the infringement caused by the legislative arrangement for the deferment of military service to the extent of granting an exemption touches at the heart of human dignity and perhaps even more so to liberty. Its import is that a youth of 18 years old who satisfies the criteria of “Torah is his Calling” is permitted to choose whether to serve in military service, while his contemporary of the same age is obligated to serve for three years during an important period in his life, while being liable to endanger his mind and body. The exemption applies to a group of significant dimensions – currently one out of every seven young men – (from the last conscription yearbook, which was examined and submitted to us). This constitutes sweeping and severe discrimination that is not based on any relevant difference that might be able to justify the distinction. Two conclusions derive from this: The first is that the Law violates equality under Basic Law: Human Dignity and Liberty. The second is that the nature of the direct violation and the sacrifice demanded of the individual – a young man of 18 who is obligated to enlist into military service – rules out the possibility of ignoring it purely because the victim is included in the majority group. In other words: Why should a young man of 18, – only yesterday a minor and having just entered the gates of adulthood – having been conscripted with no possibility of choosing, be required to shoulder the “burden of the status” of the majority. As such, I see no reason in this case to discuss the question of the extent to which the majority is entitled to discriminate against itself. This being the position, there is likewise no need to address the difficulties in defining terms such as “majority” and “minority” when the society and the government are not divided up in a binary sense (see and compare: Justice A. Grunis’ opinion in Movement for Quality of Government [2], at p, 803, opposite letter G, until p. 804 opposite letter B, in relation to a law that discriminates against women).

Along with the above, in the Movement for Quality of Government case it was held that the arrangement in the Tal Law was based on a number of purposes – that is to say that its purpose was not just to achieve greater equality. This approach is rooted in the recognition of reality, the history of the enlistment of the hareidi public into military service, the lack of wisdom in a change that would be revolutionary as opposed to evolutionary, and the advantage of a consensual solution in this kind of matter, as opposed to a coerced solution. The Tal Law was thus to be assessed in terms of its ability to achieve four objectives: to anchor in legislation an arrangement for the deferment of service for yeshiva students in “recognition of the uniqueness of the hareidi society and its culture, and the value of Torah studies (para. 55 of the opinion of President A. Barak in Movement for Quality of Government [2] which refers to the report of the Tal Commission); to generate greater equality in the bearing of the burden of military service in Israeli society; to integrate the hareidi public into the work force; to bring create a graded solution that has consideration for the difficulties of the arrangement for the deferment of military service of yeshiva students, based on broad consensus. It was held that these objectives are appropriate when examined through the prism of Basic Law: Human Dignity and Liberty, in other words, that they are consistent with the values of the State of Israel as a Jewish and democratic state. (Movement for Quality of Government case [2], at pp. 700).

            The Tal Law therefore recognizes the existence of a constitutionally based violation of the principle of equality but justifies it by the attainment of four objectives that have consideration for the complexity of the problem and for a certain degree of multiculturalism in relation to the sociological group of the hareidi public (Menachem Mautner, Law and Culture 246-247 (5768-2008)). Having such consideration is all the more justified in a state whose Basic Law defines it as being Jewish and democratic. However, it must be stressed that an important and central objective of the Law is the promotion of a change in the direction of reduction of the violation of equality. The decision in the Movement for Quality of Government case effectively rejected the demand for equality now, and was prepared to accept a change that was gradual, but meaningful. The importance attaching to the objective of narrowing the discrepancy in the allocation of the burden of military service stems from the nature of the constitutional violation, embedded in the Law itself – inequality. Accordingly, in the framework of the constitutional examination of the Tal Law significance attaches to its success in reducing the aforementioned gap, as attested by the result test. An additional practical consideration must also be added here – namely, that our current concern is with a law following the passage of a ten year period, which enables an examination of the law’s results, not as an evaluation that anticipates the future, but rather by means of examining the facts on the ground. In the Movement for Quality of Government case this Court postponed its decision, in its awareness of the objectives of the Law, which demanded an examination of the situation over a period of time. It is for this reason that I cannot concur with my colleague Justice E. Arbel in relation to the numerical data that were presented by the respondents. It seems to me that in order to examine her forecast on the basis of the statistics mentioned in her opinion, we would have to wait a number of additional years, etc, and I see no justification for doing so. The decade which has passed since the Law’s enactment suffices to present a picture. An additional reservation is that while there may have been a certain increase in the number of those enlisting from the ranks of the hareidi public, given the increase in the number of hareidi men in the annual pool of those designated for military service, the overall result is not an improvement but quite the opposite.

            From this perspective I cannot but agree with the result reached by the President. There is no point in revisiting her comprehensive and thorough review. Suffice it to say that according to the data presented to us our concern is with isolated percentages of yeshiva students who enlist to the military service (see paras. 10 and 31 of the President). Nor do they demonstrate the achievement of the objective of increasing the participation of the hareidi public in the work market. Notwithstanding the good will of those who labored over the task of enacting the Law, its failure in terms of results is not a borderline one, but significant. This failure is not necessarily the result of the arrangement forming the basis of the Law, but rather may stem from the willingness of those concerned to tread the path it paved. The choice or more precisely, “the surplus of choice” granted to the yeshiva students in the structure of the Tal Law thus became its stumbling block.

            If indeed the Law failed in its implementation or by reason of the gap between its intentions and its results, it is appropriate to devote our attention to its landscape, to go to the roots of the matter, and to illuminate a number of points that may not have been sufficiently clear.

2.         The study of Torah is the crown of the commandments. “The study of Torah is equal to all of them” (Talmud Bavli, Tractate Shabbat 127a) “The commandment to study Torah is greater than all of the other commandments” (Shulkan Arukh, Hoshen Mishpat 247:18). The greatness of the commandments derives from the fact that the Torah is the source of the law, but it does not there. In the Talmudic period “the question was asked…which is greater – the learning of Torah or its performance? Rabbi Tarfon answered: the performance is greater. Rabbi Akiva said: the study. And they conclude: "Learning is greater – only because it leads to performance” (Talmud Bavli, Tractate Kiddushin 40b). The harmony is clear, but so is the tension. The commandment of Torah study has primacy precisely because it leads to action. Nonetheless, the study of Torah is important not only for practical reasons, in both senses. From the perspective of the halakhah, “The Torah is the word of God. Accordingly my contact with Torah is indirectly a contact with the Holy One Blessed be He….this is the source of that special feeling of elation in the study of Torah. This unique feeling nurtures, sustains and shapes my entire involvement in Torah. It leaves its imprint on my entire world” (H. Sabato In Quest of Your Presence – Conversations with Rabbi Aharon Lichtenstein 18-19 (2011)). It should also be stressed that the study of Torah is not just a religious experience with the Creator the World, but also a significant historical and cultural tier, and a national asset of the first degree. The words of Ahad Ha’Am are appropriate in this context: “It may be said without any exaggeration, that more than Jews have kept Shabbat, Shabbat has kept the Jews; and if not for it, which restored their souls and renewed their spirits every week, the hardships of the week would have drawn them further and further down, until they reached the very lowest level of materialism, and moral and intellectual wretchedness” (Asher Tzvi Ginzberg “The Sabbath and Zionism” HaShiloah3 (6) 5658-1898). And if the question be asked – why the Shabbat: the answer would be – from the story of the creation in the book of Genesis and the laws of Shabbat appearing in the book of Exodus and the Babylonian and Jerusalem Talmud, in Tractate Shabbat. From this we can learn: More than Israel guarded the commandment of the studying Torah, this commandment guarded them.

Let us not forget that Jewish law is not one-dimensional. The commandment to study Torah is certainly not an only child0. The world is not only built on Torah but also on kindness (see Ethics of Fathers1:2). In the words of Rabbi A. Lichtenstein, the head of the Gush Etzion Yeshiva, to the Tal Commission “The involvement in Torah is supplemented by the value of acts of loving kindness, and the most demanding act of loving kindness is military service” (The Commission for Establishing an Appropriate Arrangement of the Subject of Conscription of Yeshiva Students – Report of the Commission 51 (2000). The demanding nature of military service is expressed not only in the endangering of the body of the soldier but also in the exposure of his soul to the unnatural occupation of combat with all that is implied thereby. This is part of the soldier’s devotion. The halakhah is aware of the difficulties attendant to fulfilling the commandment of fighting, and despite the heavy price a person is liable to pay, it is still a commandment (see letter of Rabbi Joseph Dov Soleveitchik further on). The “Great Eagle” Maimonides spread his wings over the Laws of War and stipulated that one of the situations included in the category of obligatory war is “to assist Israel from an enemy which attacks them (in the words of Maimonides, Hil. Melahim 5:1); see also Sefer Hazon Ish: Orah Haim, Moed, Erubin, Likutim, Halakhah 1, p. 166). The I.D.F. – Israel Defense Force – by its very essence fits into the halakhic definition, and who bears the burden of serving in an obligatory war? The Mishnah rules: “In an obligatory war, all go out – even a groom from his chamber and a bride from her wedding canopy [to do battle] (Talmud Bavli, Tractate Sotah 8:7, Maimonides, Mishneh Torah, ibid., hal. 4). Rabbi Y, of Karelin wrote regarding this Mishnah: “And this means that in an obligatory war all must go out, even the Torah scholars must interrupt their studies” (Keren Orah on Tractate Sotah). The author of the Arukh even learns this by force of a fortiori”Rabbi Judah said in the name of Rav “even a groom from his chamber and a bride from her wedding canopy – this means – and all the more so Torah scholars (Sefer HeArukh, “Energia [battle], of Rav Nathan b. Yehiel, who lived in the 11 century in Italy, based on the Babylonian Talmud, Tractate Sotah 10a, and see also Maharsha ad loc. ). The Hazon Ish clarified this point: “It appears that the Mishnaic ruling that in an obligatory war even the groom is commanded to leave his chamber does not relate to a situation in which they are needed in order to win the war, for it is clear that where it concerns a threat to life and the saving of the nation all are obligated, but even at a time in which there is only a need for a fixed number of soldiers, it was permitted to take a groom from his chamber, for those who are exempt from war have no special right during times of obligatory war. And this is similarly applicable to a discretionary war, they are not exempt unless the victory for Israel is not dependent upon them, in which the army has the numbers it requires without them. But if they are needed they must go to help their brothers” (Sefer Hazon Ish,ibid, p. 167).

In the absence of a Jewish state or Jewish government, the prevailing conception in the Middle Ages until the establishment of the State was that the laws of obligatory war in the form of protection of the Jewish people have no application.. Accordingly, the laws of war do not appear in the 4 parts of the Shukhan Arukh, which purported to establish the halakhah that was relevant in “this time”, i.e. in the period following the destruction of the Temple. On the other hand, the laws of war are set out in Arukh HaShulkhan HeAtid written by R. Yechiel Epstein, author of Arukh HaShulkhan, who lived in Russia in the 20^th century . Despite this, in the period between the 19 century and the beginning of the 20^th century Jews began to participate in wars waged in their host states. Rabbi David Zvi Hoffman, one of the prominent German rabbis, wrote after the First World War that one could not avoid military service the duration of which was “…a year, two years or three years…” just because of the desecration of the Sabbath, because “it is more than just the performance of a commandment for he who does so [avoids serving – translator] causes a discretion of the Divine Name if the matter becomes known (Responsa Melamed Leho’il, p. 1 s. 42).

Naturally, military service in foreign armies created halakhic problems. The following question provides an example: “Concerning young hareidi men who are about to be conscripted into the army, where they will be forced to break their hunger by forbidden foods… are they permitted to eat the forbidden foods immediately upon joining, or should they refrain from tasting anything until they are in danger, and upon reaching that situation are they obligated to make a blessing…?”(Resp. Ma’arkhei Lev, Yoreh Deah 43, of Rabbi Yehuda Leib Charleson, who was the chief rabbi of Serbia-Kishiven region during the period that preceded the Second World War). At the beginning of the 50’s of the previous century, rabbis in the U.S.A asked whether they should participate in the Korean War as army chaplains, given their fears that they would be forced (for example) to desecrate the Sabbath. Rabbi Joseph Soloveitchik ruled that they should enlist and elaborated with respect to even greater challenges: “The Halakhah, which displayed so much alertness to and understanding for all human weaknesses and frailties, has given much thought to the unique psychology of the warrior who, living in constant danger, loses the perspective of spiritual values and ethical norms…therefore, sought to rehabilitate the camp of the warriors and to raise it to a high level of morality and dignity. If the rabbis of today wish to continue this glorious tradition of giving their service where it is needed most, the military camp is the place” (Rabbi Joseph Dov HaLevi Soloveitchik, “"On Drafting Rabbis and Rabbinical Students for the U.S> Armed Forces Chaplaincy, Community, Covenant, and Commitment (ed. Nathaniel Helfgot, 2005) 23)

The Hafetz Haim, who lived in Poland about one hundred years ago, wrote a book called “Camp of Israel: The Laws and Conduct for Army People During their Period in the Army. In this unique work, a number of editions of which were printed, the rabbi addressed the laws of studying Torah in a military framework and compared the obstacle to studying Torah posed by the army to Joseph, who when imprisoned, reviewed the teaching of his father Jacob. He also discussed the laws of prayer in the army, stressing that one should not refrain from praying on a daily basis despite the numerous difficulties involved. From this historical perspective I confess that I felt the need to be grateful to the I.D.F that provides religious services such as military chaplains, religious quorums of ten (minyanim),kosher food, sensitivity to the observance of the Sabbath in non life-threatening situations, numerous classes in Torah for the hareidi Nahal, and the possibility of combining military service with the a yeshiva framework.

I have not written for sake of innovation, and my remarks above are well known to scholars of Torah. The question which presents itself however is what basis is there for opposition to military service in our time? It is well known that “During the War of Independence many young hareidi men joined the army that was fighting for independence….these pamphlets (the journal of the Agudat Yisrael Youth) abound with expressions of identification with the fighters and demonstrate the tremendous motivation that accompanied their military service” (Benjamin Brown – The Hazon Ish: Halakhist, Believer and Leader of the Haredi Revolution 247 (5771-2011).            In other words, the principles and rules governing the commandment of participating in a defensive war are well known and settled among rabbinical authorities and Torah scholars. Indeed, can one ignore the fact that Abraham (Genesis, ch. 14), Moses (Exodus ch.17:8, Numbers ch. 3; ibid., ch. 31; Deuteronomy, ch. 2) Joshua (Joshua, ch. 12) and King David (2 Samuel, ch. 5:6-10); 1 Chronicles, ch. 11, 4-9) all conducted wars. The answer to the question is that the hareidi position today stems from a quasi temporary provision. The halakhah recognizes the notion of a temporary provision (see Talmud Bavli, Tractate Yebbamot 38a and Maimonides, Mishneh Torah, Hil. Sanhedrin 24:4) – a practical consideration stemming from a complex situation, with special needs.

The problem is that reality has changed. The overall number of yeshiva students who are deferring their service ranges at around 60,000 men. As mentioned, over the past few years, the ratio is one out of every seven young men at the age of the annual conscription pool. The forecast based on past experience is that this number will rise. To make matter more concrete: The estimation is that between the years 1968 – 1988 the number of yeshiva students whose Torah was their calling rose four fold, from 4700 to 18,400 and the percentage of yeshiva students from among the total population designated for military service doubled from 2.5% to 5.3% (State Comptroller, 39^th Annual Report (1989), 904, Menahem Hoftung, Israel, State Security versus the Rule of Law 245 (1991). The rate of those who deferred their service under the Law from the annual conscription pool of the total population, rose from 8.4% in 1998 to 14% in 2007 (Statement of Response of Respondents, of 30.12.2008). During the period of the establishment of the State, the group of those whose service had been deferred numbered 400 men only. Towards the end of his days, the first Prime Minister, Ben Gurion expressed the view that he had erred in granting the exemption to the yeshiva students, because he thought at the time that the aforementioned group of 400 students only would not survive and would certainly not thrive (Knesset Proceedings, 13 October 1958; according to a conversation with Rabbi Shlomo Riskin, the chief rabbi of the Efrat settlement, who visited David Ben-Gurion in S’de Boker at the beginning of the seventies; see also letter from David Ben-Gurion to Levi Eshkol, Prime Minister (12.9.1963), Ben –Gurion Archives).

The hareidi community must therefore come to terms with its numerical success and its implications – success and growth that many did not anticipate. This numerical datum in conjunction with the fact that the hareidi public constitutes a steadily growing percentage of the total Israeli population also structures the current reality. The halakhic temporary provision must take this into account. When the State was established the fear was that the Eternal Flame in the House of the Study would be extinguished. In the words of the Israeli Chief Rabbi in 1949 – Ben Zion Ouziel to David Ben-Gurion: “The Assembly of Rabbis has decided to express…its opposition to the conscription of the yeshiva students so that the Torah will not be forgotten from Israel” (Rabbi Ouziel, Mihmanei Ouziel pt. 5, Letters, Correspondences, Part 409, p. 691 (5767-2007)). Quite simply, this fear was particularly tangible in the wake of the Holocaust during which many of the yeshivas in Europe were destroyed. This is no longer the case. The transformation was already described a few decades ago by the Chief Rabbi of Nethanya, Rabbi David Shalush “…Jerusalem the capital of Israel is teeming with its sons, growing and bursting West, East, North and South with buildings of glory and honor. Tens of thousands of scholars of Torah and students are sitting and meditating on Torah, and the voice of Torah and prayer pierces from the walls of the synagogues and houses of study in Jerusalem, as well as in many other cities (Resp Hemdat Genuza, Question 21, p. 233, pt. 8). The renewed building may be viewed as the first stage in the fulfillment of the verse “then I will send rain on your land in its season (Deuteronomy 11:14). In the scriptural context matar means bouteous rains in the land of Israel (Deuteronomy, ch. 28:12, ibid., ch. 28:24 Isaiah, ch. 30:23). At the same time, it is clear that the numerical change is also significant in terms of military conscription. A group as large as that, were it to be conscripted into the army would certainly be able to contribute to state security and even to bring about a more equal division of the burden. This is not just an academic point but a concrete fact. It is all the more true when an enormous increase is expected in the numbers of yeshiva students.

The irony is that there is now a state law that was enacted as a temporary provision that was temporarily extended for a period of five additional years in the Knesset Decision of 2007 (s. 16 of the Law), existing side by side with the approach of the haredi rabbinical authorities, which also concerns a quasi temporary provision, in the halakhic sense. Naturally, this Court does not rule in matters of halakhah and is not supposed to replace the discretion of the Knesset. These matters are presented here for the purpose of giving the full relevant picture. As ruled in the Movement for Quality of Government case, and clarified above, this Court recognized the propriety of the four objectives of the Law: to anchor the deferment of service arrangement in law, having recognition for the national importance of the yeshiva students; reducing the gaps of inequality; integrating the yeshiva students into the work market; creating a gradual consensual arrangement. Finding an appropriate solution to the problem is an exceedingly difficult task. As mentioned, my view is that the Law is not constitutional by reason of its being disproportionate in accordance with the first subtest, regarding the actual rational connection between the means adopted by the Law and its results. In the event that the arrangement fails to achieve the intended purpose, which establishes the proportionality of the Law – and in the present case the failure is unequivocal – then we are left with the grave violation of equality, and nothing else. In this case, the omission in the rational connection or in the conformity between the purpose and the means is not an omission in the regular sense. In other words, our concern is with an examination of the facts and the life experience of the Law for the length of the past decade, and not with a preliminary evaluation of the Law, including its logic. The constitutional defect lies in the lack of a connection in reality between the goals and the purpose.

The practical meaning of this at this time is that the Law cannot be extended. This result leaves a legal vacuum and a challenge for the Legislature. The need has arisen for the enactment of the new law that complies with the requirements of Basic Law: Human Dignity and Liberty. This is not the task of the Court. Our task is to identify when the statutory arrangement is not constitutional. The experiment of the Tal Law did not succeed in the test of results that it established. The possibilities for a new arrangement are many and varied. To reach an arrangement that is appropriate on a constitutional level will require creativity, good will, and sincere and genuine willingness on the part of all the parties to waive and compromise.

3.         Before closing, the subject of the compulsory conscription in defense service should be placed in the appropriate value-based context. To do so, the field of philosophy of logic may be of assistance. The philosopher David Hume, who lived in Scotland in the 17^th century taught us that there are two forms of reasoning: deductive reasoning and inductive reasoning. An example of the first form (deductive reasoning) is that if A is bigger than B, and B is bigger than C, then A must be bigger than C. This is a logical conclusion that may be regarded as a fact, subject to the assumptions presented. An example of the second form (inductive reasoning) is that if the sun rose yesterday and the day before, and in fact for the entire period of human memory, then it may be concluded that it will also rise tomorrow. This conclusion is based on our experience with the laws of nature, and is not a necessary fact from a logical perspective. See for example: David Hume, An Enquiry concerning Human Understanding (1748),

            The State of Israel has existed for 64 years. Since its establishment the sun has risen every day, and, notwithstanding the enormous difference, there has not been a single day without the occurrence of some security threat to the state and its citizens. While we welcome sunrise as part of the natural order and conclude that it will continue to shy away from the rays of the “sun” of the security threat, we try to interfere and to prevent its continuity, and we hope and take measures to ensure that what happened yesterday will not repeat itself tomorrow. This is also the approach of Jewish law. A defensive war is a positive commandment, while at the same time, peace remains the elevated ideal. As it is written “Great is peace for the entire Torah was given for their to be peace in the world, for its says (Proverbs 3:17) “Her ways are ways of pleasantness, and all her paths are peace” (Maimonides, Mishneh Torah, Hilkhot Hannukah, ch,4:14).

            We should cease occupying ourselves with war, including legal discussions concerning the duty of enlisting to the army, therein causing the elevated ideal of our sources to be forgotten. However, until we arrive at peace, the commandment of defending our state is one which has tremendous power to unify the people around it. Notwithstanding its ugliness it also teaches us that that which joints us is greater than what separate us.

 

“To illustrate the importance of the value of serving in the army, I will cite a story I heard from Dr. Feingold about the illustrious scholar, Rabbi Yitzchak Ze’ev Gustmann, of blessed memory, the last of the luminaries of Vilna, who was a members of the Beth Din of Haim Ozer Grodziensky, who experienced the terrors of the Holocaust and lost his only son. Years later he established a yeshiva in Rechavya, in Jerusalem. Among those who were close to Rabbi Gustmann was Professor Oman (Nobel Prize Laureate), whose son Shlomo Oman (may God avenge his blood), was a student of the Hesder yeshiva in Sha’alavim and was killed in the Peace for Galilee War. Upon hearing the news that Shlomo had been killed, Dr. Feingold came to take Rav Gustmann to the funeral. At the end of the funeral Rav Gustmann roamed around the freshly dug graves of the soldiers sighing and grieving for them, and had difficulty in leaving the graveyard. When they returned from the funeral he said “they are all holy”. One of the passengers travelling on the back seat asked him “All of them”? Even those who were not religious? Rabbi Gustmann turned around to the back seat and stated forcefully: “All of them ! All of them !”

When they came to Rechavya, Rabbi Gustmann turned around and said: “Dr. Feingold, perhaps we will go to Professor Oman to say something to him”….. and he turned to the widow, the parents, the brothers and the sisters and said: “My son Meirka was taken from my hands and thrown onto a truck in the kinderakzion…” And then the Rabbi straightened up and spread his hands out and said: “And now I will tell you what is happening in the World of Truth [the afterworld – ed.] My Meirka says to Shlomo “Be happy Shlomo that you were privileged. I was not privileged. I was not privileged to cast myself down in order to save the people of Israel. You were privileged! Professor Oman rose up from the ground and hugged Rabbi Gustman and said “You have comforted me, you have comforted me”.

 

When Dr. Feingold’s sons approached the age of conscription, he asked Rabbi Gustmann, who was admired by all of the great rabbis, even among hareidi circles: What does it say in the Torah of Moses: To go to the army or not? Rabbi Gustman replied: In the Torah of Moses our Teacher it says “Will your brothers go to war while you yourselves sit here?!” (This is what Moses our Teacher said to the sons of Reuven and Gad) (Rav Eliezer Melamed, Peninei Halakhah b’Inyanei Ha’am Ve-haaretz 85-86 (5765)).

 

These comments express an additional value-related aspect of the duty of conscription, which is that the service in the I.D.F is not only a duty but also a privilege.

4.         In conclusion, my view accords with the view of the President, that the Law for Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling (5762-2002) is not constitutional. Given the date upon which the validity of the Law is due to expire, this means that it will not be possible to extend it.

 

Justice

 

Justice A. Grunis

 

1.         Once again we are confronted with the subject of the non-enlistment of the haredi yeshiva students into the Israeli Defense Force. In my view, as opposed to the view of my colleagues, it would be preferable for the Court to altogether avoid addressing the subject and to leave it in the public arena, outside the courtroom. In my opinion given about six years ago in HCJ 6427/02 Movement for Quality Government in Israel v. The Knesset [2], I explained by position according to which there is no justification for applying judicial review in this case, to a law of the Knesset. The reason is that the relevant law – Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law (5762-2002) – is a law in which the majority granted an extra privilege to the minority. As I wrote at the time “When a majority acts by democratic means and adopts a law which confers preference to a minority, the court should not become the patron of the majority (para.1 of my opinion in HCJ 6427 [2]);

2.         In accordance with the result of the majority position in this proceeding (President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer and Justice N. Hendel), the Law will remain in effect until its last day 1 August 2012 and it will not be possible to extend it again. By reason of this decision, the Knesset has two possibilities: The first – not to adopt another law to replace the law that expired; the second – to adopt a new law that will attempt to provide a between answer to the problems and defects which were pointed out by the majority justices.

            Should the first possibility be adopted, namely that the Knesset avoids the adoption of a new law on this subject, theoretically it would mean that the young haredi men, who do not currently enlist into the army, would be obliged to enlist, as do the members of the majority. It seems to me that there are very few people in the State (and perhaps even that is an exaggeration) who believe that there is an expectation of a mass enlistment of the members of hareidi yeshivas into the I.D.F. In the event that no new law was adopted, and a petition was filed in which the Government, including the Minister of Defense, was requested to force the enlistment – would a judgment that accepted the petition actually lead to the desired enlistment ?! I think that the answer self-evident.

            The other possibility, which seems more realistic than the previous one, is that in the wake of the judgment, the Knesset would adopt a new law that would attempt to rectify, to an extent, the defects of the current law. It may already be presumed that this law would not satisfy the demands of certain elements of the majority (comprising secular tradition and religious Jews who enlist in the army). As such there is no doubt that in the future another petition would be filed, consisting of the objections to the new law. This Court’s repeated involvement in the subject of the enlistment of haredi men without any substantial progress on the matter, certainly does nothing to enhance the stature of this Court. It is illusory to expect that a judicial decision will lead to the enlistment of the hareidi men into the I.D.F and their entry into the work force. Social and economic changes are able to bring about the hoped for changes. The ability of the Court to influence in cases of this kind is meager.

3.         Summing up, there is no justification for the intervention of the High Court of Justice in this case. The reason for this is that our concern is with a decision of the majority in the State (as per Knesset representation)       to enact a law that gives an extra privilege – not to enlist into the army – to a minority. Where it concerns a right of this nature, which does not involve a violation of the democratic mechanisms, or harm to individuals, in their capacity as individuals, or harm to a minority group – there is no justification for judicial review. And what’s more – the contribution of the Court to changing the social conduct of an entire sector of the Israeli population is particularly limited, and does not justify the interference of the Court in the matter.

4.         Were my opinion to be heard we would deny the petitions.

 

Justice

 

Vice President E. Rivlin

 

I concur in the view of my colleague, Justice A. Grunis that it is doubtful whether there should be a litigation of subject currently concerning us. My reason is that the subject of the enlistment (or non-enlistment) of students in the haredi yeshivas is first and foremost a complex social issue, the solution to which is evolutionary. It has already been held in HCJ 6427/02 [2] that “The change recommended by the Tal Commission, and which the Knesset sought to realize is a gradual social change based on consensus…The Deferment of Service Law deals with one of the basic problems of Israeli society, which cannot be resolved by the stroke of a pen; its concern is with a sensitive matter that requires understanding and agreement; it seeks to provide solutions that are neither easy nor simple. In the first place it was enacted as a temporary provision….all of this compels us to wait with out conclusions. Those implementing the Law should be permitted to fix what they broke. Israeli society in general and specifically the haredi society must be allowed to internalize the arrangements of the Law and the methods by which its provisions are to be realized”. At that time the Court reached the conclusion that “in the event of there being no substantive change in the results of the implementation of the Law, there will be room to consider its declaration as being void”. Like my colleague, Justice E. Arbel I think that notwithstanding the passage of time since decision that was given in HCJ 6427/02 [2], we have still not reached the end of the road, and that it would not be proper at this stage to decide the fate of the petition. As such, I concur with the position of Justice E. Arbel, and the respondents should be given until the month of July 2012 to file an update regarding the rate of progress of the proceedings and the measures that are being adopted by Executive to implement the objectives of the Law.

            As noted by my colleague the President D. Beinisch, it would seem that the Deferment Law has yet to fulfill the many hopes pinned on it. Today, this conclusion is also shared by various political bodies, so that presumably, the result proposed by my colleague the President, which reflects the position of the majority justices in the panel, is also consistent with the emerging political practice. It may be hoped that the legislative body, when conducting its substantive examination of the Law’s provisions, will exploit the time remaining for a meticulous examination and that having regard for the comments of the Court, in this judgment and in the previous judgments dealing with the subject, it will succeed in the determination of a new arrangement, which is constitutional and which arranges the subject in its entirety.

            In view of which I concur with the position of my colleague, Justice E. Arbel, in accordance which the petitions should be left pending, and the respondents should be be ordered to file, in the month of July 2012, an updating notification concerning the rate of progress of the proceedings and the means that are being taken by the Executive to implement the objectives of the Law.

 

Vice President

 

It was decided by the majority opinion – President D. Beinisch, Justice M. Naor, Justice E. Rubinstein, Justice E. Hayut, Justice H. Meltzer, and Justice N. Hendel to grant the petitions and to make the order nisi absolute in the sense that the Deferment of Military Service for Yeshiva Students for whom the Torah is their Calling Law, 5762-2002, in its present form will not be extended and its effect shall expire on 1 August 2012, against the dissenting view of the Vice President, E. Rivlin, and Justice E.Arbel who opined that the petitions should be left pending the receiving of updating notifications regarding the future implementation of the Law; and as against the dissenting opinion of Justice A. Grunis who opined that the petitions should be denied.

 

Handed down today, 28 Shevat 5772 (21 February 2012)

 

 

   (-)                                            (-)

President                                  Vice President

 

 

   (-)                                (-)                    (-)

Justice                          Justice              Justice

 

 

   (-)                    (-)                    (-)                    (-)

Justice `           Justice              Justice              Justice

 

 

 

 

 

 

Petition granted.

21 Kislev 5767.

12 December 2006.