Constitutional Law

HCJ 1890/03

Bethlehem Municipality

and 22 others

v

1.       State of Israel – Ministry of Defence

2.       Gen. Moshe Kaplinsky – IDF Commander in Judaea and Samaria

 

 

The Supreme Court sitting as the High Court of Justice

[3 February 2005]

Before Justices D. Beinisch, E. Rivlin, E. Hayut

 

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

 

Facts: The site known as Rachel’s tomb, which is situated in the outskirts of Bethlehem, is believed to be the tomb of the Biblical Matriarch Rachel and is a holy site to Jews. It is the third holiest site in Jewish tradition, after the Temple Mount and the Machpela Cave.

Because of the persistent terror attacks by Palestinians on Jewish targets since September 2000, and following the discovery of a terror cell that intended to attack a bus of worshippers on their way to the tomb, the respondent made an order to requisition land for the purpose of paving a bypass road that would allow Jewish worshippers to travel safely to Rachel’s tomb. The order was amended twice, but the petitioners still argued that the order violated their freedom of movement and property rights.

 

Held: The respondent has a duty to ensure the realization of the right of freedom of worship by protecting the safety and lives of the worshippers on their way to and from Rachel’s tomb. In choosing the measures for realizing this purpose, the respondent must take into account the basic rights of the petitioners, including their property rights and freedom of movement, and he must strike a proper balance between the conflicting rights. In this case, the solution adopted by the respondent did indeed ensure the realization of the worshippers’ freedom of worship without violating the essence of the petitioners’ freedom of movement and property rights. Therefore no intervention of the court was warranted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 3.

Palestine Order in Council, 1922, art. 83.

Order Concerning the Requisition of Land no. 14/03/T (Judaea and Samaria), 5763-2003.

Order Concerning the Requisition of Land no. 14/03/T (Amendment of Borders) (Judaea and Samaria), 5763-2003.

Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003.

Protection of Holy Places Law, 5727-1967, ss. 1, 2(b).

 

Israeli Supreme Court cases cited:

[1]     HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[2]     HCJ 940/04 Abu Tir v. IDF Commander in Judaea and Samaria (not yet reported).

[3]     HCJ 10356/02 ­­­­­Hass v. IDF Commander in West Bank [2004] IsrSC 58(3) 443; [2004] IsrLR 53.

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

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

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

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

[8]     HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [1989] IsrSC 43(2) 529; IsrSJ 9 1.

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

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

[11]   HCJ 257/89 Hoffman v. Western Wall Superintendent [1994] IsrSC 48(2) 265.

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

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

[14]   HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 366.

[15]   HCJ 4044/93 Salomon v. Jerusalem District Commissioner of Police [1995] IsrSC 49(5) 617.

[16]   CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [1999] IsrSC 53(3) 600; [1998-9] IsrLR 259.

[17]   HCJ 672/87 Atamalla v. Northern Commander [1988] IsrSC 42(4) 708.

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

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

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

[21]   HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[22]   HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [1987] IsrSC 41(1) 197.

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

[24]   HCJ 148/79 Saar v. Minister of Interior [1980] IsrSC 34(2) 169.

[25]   HCJ 4706/02 Salah v. Minister of Interior [2002] IsrSC 56(5) 695.

[26]   HCJ 174/62 Religious Coercion Prevention League v. Jerusalem City Council [1962] IsrSC 16 2665.

[27]   HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [1978] IsrSC 32(2) 160.

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

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

[30]   HCJFH 4466/94 Nuseibeh v. Minister of Finance [1995] IsrSC 49(4) 68.

 

For the petitioner — A. Tussia-Cohen.

For the respondent — A. Licht.

 

 

JUDGMENT

 

 

Justice D. Beinisch

Before us is a second amended petition, in which the petitioners attack the legality of the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5733-2003, which was made by the IDF Commander in Judaea and Samaria (hereafter: ‘the second respondent’ or ‘the respondent’) on 17 August 2004. The order concerns the requisition of a strip of land in the area of Bethlehem, for the purpose of paving a bypass road for Jewish worshippers who wish to go from Jerusalem to the tomb of the Matriarch Rachel (hereafter: ‘the tomb’) and the building of a wall to protect this road. These walls are supposed to be integrated, as will be clarified below, in the route of the planned ‘separation fence’ in the Jerusalem area.

Factual background and sequence of proceedings

1.    On 9 February 2003, the respondent made the Order Concerning the Requisition of Land no. 14/03/T (Judaea and Samaria), 5763-2003 (hereafter — the original order). By means of this order, the respondent wanted to build walls that would ensure safe passage for worshippers who wished to go to Rachel’s tomb by means of the existing access routes from Jerusalem to Rachel’s tomb, which is located in the outskirts of Bethlehem, approximately 500 metres south of the municipal boundary of Jerusalem. According to the original planning, the wall was supposed to cross Hebron Road, the main road that goes through Bethlehem and which is currently the main traffic artery to the tomb, so that half of the road would be used only for traffic to the tomb, whereas the other half, on the other side of the wall, would be used by the local residents. In addition, a wall was planned on the other side of that road, as well as a wall along the El-Aida refugee camp, which is situated close to the tomb and has a commanding position over the access road to it (for the route of the original order, see the aerial photograph attached in appendix A). This order requisitioned large areas of land in the area of Bethlehem and Beit Jalla, and the walls that were planned in the order were likely to create a situation of enclosing a whole neighbourhood between them.

The making of the aforesaid order led to the filing of a petition by Bethlehem Municipality (the first petitioner), Bet Jalla Municipality (the second petitioner), the Jerusalem District Electric Company (the third petitioner, the Moslem Waqf (the twenty-third petitioner) and private residents (petitioners 4-22) who claimed that they were likely to be harmed by the realization of the aforesaid order (hereafter, jointly: ‘the petitioners’). In the original petition, which was directed against the aforesaid order, the petitioners claimed that the order should be set aside because, according to them, they were not given a right to present their case before it was published, and because according to them the order departed from the margin of reasonableness and proportionality. Their main argument was that in choosing the aforesaid original solution, the respondent did not give proper weight to the harm that would be caused to the local population and that other alternatives that affect the lives of the local population to a lesser degree were not considered. Within the framework of their petition, the petitioners also proposed several options to the original solution that was chosen. Inter alia they proposed that a tunnel should be made to the tomb, or a bypass road should be made for the worshippers, by building a double wall that would pass between the rows of olive orchards on the west side of most of the houses of the petitioners.

2.    In response to the original petition, counsel for the respondents gave notice that the second respondent decided to grant the petitioners a possibility of objecting to the order and that it was agreed with counsel for the petitioners that the petition, with its arguments and appendices, with constitute the objection, which would be submitted to the respondent for a decision. Pursuant to this agreement, the petitioners’ objection was indeed brought before the respondent, who decided to accept the objection and change the original order. Instead of the solution that was planned within the framework of the original order, which was based, as aforesaid, on making the existing access routes to the tomb secure, the respondent now chose a solution of preparing an alternative route, which would be used only as an access route to Rachel’s tomb, and making this road secure by means of walls. For the purpose of the aforesaid change, on 5 August 2003 the respondent issued the Order Concerning the Requisition of Land no. 14/03/T (Amendment of Borders) (Judaea and Samaria), 5763-2003 (hereafter: ‘the second order’). According to the route that was planned in the second order, the new road was supposed to start from roadblock 300 in the north, at the entrance to Bethlehem from the direction of Jerusalem, and to circumvent the houses near Hebron Road where most of the petitioners reside, to the west of those houses. Near the tomb, the planned road was supposed to split and connect up to Rachel’s tomb in two ways: one road would go east and join Hebron Road and from there continue south until it reached Rachel’s tomb by means of the existing access road, whereas the other would continue south and afterwards turn east to Rachel’s tomb. These two access routes to the tomb were supposed to create a ring road that would allow access to and from the area of the tomb. According to the plan, two walls would be built next to the new road, one to prevent shooting from the direction of Bethlehem and the other north of the El-Aida refugee camp and the area adjoining the refugee camp (for the route of the second order, see the aerial photograph which is attached in appendix A).

On 14 August 2003, the petitioners were notified that their objection had been accepted and that there was an intention to change the route, and on 19 August 2003, a tour was conducted in the area of the requisition, in which the petitioners and their counsel participated, in order to show them the route that had been chosen in the second order. On 28 August 2003, the petitioners submitted an objection to this route. Following this objection, a meeting took place between the respondent’s representatives and the petitioners’ representatives, but this meeting did not produce any results. Consequently, the respondent considered the petitioners’ objection on its merits and rejected it. After the objection was rejected, the petitioners filed an amended petition (‘the first amended petition’), which was directed against the aforesaid second order.

3.    The petitioners’ main argument in the first amended petition was that the respondent’s decision in making the aforesaid second order also suffered from extreme unreasonablenesss. According to them, this decision did not reflect a proper balance between the rights of the worshippers and the property rights of the local population and their right to freedom of movement within Bethlehem, which they claimed were seriously violated by that order. The petitioners also claimed that it was possible to realize the purpose of the order by means of other measures that would violate the rights of the petitioners to a lesser degree than the method chosen in the second order. It should be noted that the petitioners did not dispute that the second order resulted in a significant reduction in the number of residents whose freedom of movement was harmed as a result of making the access routes to the tomb secure, as compared with the solution proposed in the original order. The route of the new road that was planned in the second order, which circumvents to the west the houses adjoining Hebron Street in which most of the petitioners reside, led, in the respondents’ estimation, to a reduction of approximately 70% in the number of residents whose houses would be surrounded by a wall as compared with the route planned in the original order. Notwithstanding, the petitioners argued that the fact that the solution adopted in the second order was more proportionate (or perhaps we should say less disproportionate) than the solution adopted in the original order still was not capable of making this solution proportionate and reasonable.

It would appear that no one disputes that the main harm that the second order was likely to cause the residents (and especially their freedom of movement) arose from the last part of the route that was planned in the second order, according to which the planned road was supposed to split near the tomb and connect with Rachel’s tomb in two ways, as explained above. This last section was going to create an area that was surrounded entirely by walls that enclosed on all sides, even according to the respondents’ position, at least five residential houses where six families lived and where there were several shops and offices, including the offices of the Moslem Waqf (hereafter: ‘the area’). Indeed, it would appear that even counsel for the respondents was aware that it was this area that was likely to create the greatest violation of freedom of movement, since on page 16 of the respondents’ reply to the first amended petition, he said that ‘the main harm alleged is to the residents who will live from now on in an area that is surrounded by a wall, without free access to Bethlehem.’ It should be noted at this point that this section of the route, and the serious harm that it was likely to inflict on the residents who were going to be enclosed within it, is indeed the part that troubled us more than anything else in the route of the second order.

4.    On 29 October 2003, a hearing took place before us with regard to the first amended petition, at the end of which the parties reached an agreement, according to which the parties were prepared to discuss finding concrete solutions for the petitioners who would be harmed by implementing the second order, without the parties waiving their basic arguments. We therefore decided, on the basis of this consent, that the petitioners would submit to counsel for the respondents details of the concrete claims that ought, in their opinion, to be clarified, and that afterwards a meeting would take place between the parties for detailed discussions. We also decided that the parties would notify us of the results of the negotiations and that on the basis of their notice we would decide how the hearing of the petition would continue.

According to what is stated in the supplementary response of the respondents dated 5 December 2003, of all the petitioners only two petitioners (the Jerusalem District Electric Company and the Moslem Waqf) chose to submit detailed claims to the respondents. In the supplementary response, it was also stated that following the submissions of these two petitioners, a meeting did indeed take place between the parties, but in the end the parties did not succeed in reaching an agreement. In their reply to the supplementary response of the respondents, the petitioners confirmed that they did not succeed in reaching an agreement with the respondents on the questions and claims that were raised by them in the petition, and they gave notice that they therefore wished the court to decide the petition on its merits.

5.    On 2 June 2004, after negotiations between the parties failed, we held a further hearing on the first amended petition. The hearing focused mainly on the harm that the second order was likely to cause the residents of the aforesaid area, who were supposed to be surrounded as aforesaid by walls, and on ways of preventing or reducing the harm to those residents. After the hearing, an order nisi was made in the petition.

Following the making of the order nisi and in view of the court’s remarks during the hearing, the respondents asked for additional time in order to reconsider the planned route. Meanwhile, on 30 June 2004, this court gave its judgment in HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [1] with regard to the route of the ‘separation fence’ in the area north-west of Jerusalem. According to what is stated in the respondents’ reply to the second amended petition on 1 November 2004, after that judgment the respondents began a comprehensive reassessment of the route of the ‘separation fence’ in its entirety, and the respondents’ reconsideration of the route in the area of Rachel’s tomb was included in this reassessment.

6.    At the end of the aforesaid reassessment, the respondents decided once again to change the planned route in the area of Rachel’s tomb. Therefore, on 17 August 2004, the respondent issued the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003 (hereafter: ‘the new order’). The new route is based on the route that was proposed in the second order, in the sense that it includes the preparation of a bypass road, which would be used only as an access route to Rachel’s tomb, and which starts at roadblock 300 in the north and circumvents the houses adjoining Hebron Road (where, as aforesaid, most of the petitioners live) to the west. A wall will be built next to the road for the purpose of preventing gunfire from the direction of Bethlehem on passing cars, and a similar wall will be built to the north of the El-Aida refugee camp and north of the area adjoining the refugee camp. The change made by the new order as opposed to the second order is at the end of the road, in the area where it connects with the tomb. Instead of two access routes to the tomb, the new order retains only the road that joins Hebron Road to the east and continues from there to the tomb. By cancelling the ring road which, in the second order, connected between the bypass road and the tomb, and by making do with only one access route to the tomb, the result created by the second order in which some of the residents were going to be enclosed in an area surrounded by walls without free access to Bethlehem is avoided. Therefore, as a result of this last change in the route, none of the buildings belonging to the petitioners, including the Waqf building, is any longer going to be in an area surrounded by walls, and all the petitioners have free and direct access to the city of Bethlehem without any need to pass through a roadblock (for the route of the new order, see the aerial photograph that is attached hereto in appendix B).

The new order was sent to the petitioners, together with explanations for their counsel, and none of the petitioners submitted an objection to the order. But on 27 September 2004 the petitioners notified the court that this change did not satisfy them, and that they insisted upon their complaints being heard. Therefore, on 26 October 2004 the petitioners filed a second amended petition, which is directed against the new order. This is the petition that is before us today.

The arguments of the parties

7.    In their second amended petition, the petitioners as aforesaid attack the validity of the new order, namely the Order Concerning the Requisition of Land no. 14/03/T (Second Amendment of Borders) (Judaea and Samaria), 5763-2003. In this petition, the petitioners claim that the making of the new order and the replacement of the previous orders with the new order is still incapable of solving the problems that the petitioners outlined in the original petition and in the first amended petition. The main argument of the petitioners is that the respondent’s decision in making the new order suffers from extreme unreasonableness. According to them, this decision does not reflect a proper balance between the rights of the worshippers and the rights of the local population, and especially their right to freedom of movement. The petitioners do not dispute that the new order does not create a situation where residents are surrounded by walls, and that the new order does indeed reduce the harm to the residents as compared with the previous orders, but they claim that this order still results in unreasonable harm and inconvenience to the residents as a result of the restriction of their freedom of movement, and the disruption of their everyday lives. The petitioners also argue once again that it would be possible to achieve the purpose of the order by means of alternatives that would harm the petitioners less than the option chosen in the new order. Thus, for example, they claim that it would be possible to ensure the security of the worshippers by means of the existing security arrangements, or by digging a tunnel to the tomb. In addition, the petitioners argue that the respondent was motivated by irrelevant considerations in making the order, and they claim that the purpose of the order is not to ensure the security of the worshippers against terror attacks but to ‘annex’ Rachel’s tomb to Jerusalem. The petitioners also argue that the order should be set aside because they claim that they were not given a real right of hearing before the decision was made to issue the new order.

Against this the respondents argue that the solution chosen in the new order reflects a proper balance between the conflicting interests, and that the decision is reasonable and proportionate. Counsel for the respondents argues that the new order adopts a route that is intended to provide a response to the remarks of the court in the hearing on the first amended petition dated 2 June 2004 and also to the test laid down by this court in Beit Sourik Village Council v. Government of Israel [1]. The premise for the reconsideration, according to counsel for the respondents, was a desire to choose a more proportionate solution, which would minimize, in so far as possible, the harm to the local population, without abandoning the need to protect access to the tomb. Therefore, according to him, a route was chosen that provided a security solution that was not ideal, in order to prevent local residents being left on the other side of the separation fence. Counsel for the respondents argues that the route that was ultimately chosen does indeed provide a solution to the petitioners’ problem and to all of the specific claims that they raised in their original petition and in their amended petition. Counsel for the respondents argues that the solution that was ultimately chosen, with certain changes, is based on one of the petitioners’ own proposals in their original petition — paving a bypass road for the worshippers. Counsel for the respondents further argues that building the wall and paving the bypass road is clearly intended for a security purpose — the protection of the lives of Israelis going to Rachel’s tomb. Counsel for the respondents discusses in his response the need to make access to Rachel’s tomb secure for worshippers, and he reviews the terror attacks and operations, which include sniper fire, placing explosive charges, throwing Molotov cocktails and disturbances of public order that have been directed at the tomb since the combat activities and terror attacks began in September 2000. These events have led to the military commander being compelled to adopt measures to protect the site and ensure the safety of the worshippers on their way to and from the tomb, as well as when they are at the site. Therefore, counsel for the respondents in his response discusses how the decision is based on security reasons only and that there is no basis for the petitioners’ claims that irrelevant considerations and an intention to annex the area of the tomb to Jerusalem underlie the decision to pave the road and build the walls to protect it. Counsel for the respondents also emphasizes that we are speaking of temporary measures, and he argues that there is no intention at all to decide thereby the permanent status of the tomb and the means of access thereto.

Thus we see that the starting point for our deliberations is that the petitioners do not deny the rights of the worshippers to have access to Rachel’s tomb, but according to them this access should be ensured without harming their freedom of movement in Bethlehem and their property rights. The respondents, for their part, recognize their duty to minimize the damage caused to the petitioners’ freedom of movement and property rights as a result of the operations undertaken to ensure the worshippers’ freedom of access. The main dispute is therefore whether the respondent properly balanced the rights of the worshippers against the rights of the local population.

It should also be noted that the scope of the requisition under the new order (and the route of the bypass road and the walls planned within the framework of this order) was planned so that it would be integrated with the planned route of the ‘separation fence’ in the area of Jerusalem. Notwithstanding, as the petitioners state expressly in their petition, the present petition does not concern the ‘separation fence,’ but merely the question of the legality of the specific requisition order that is the subject of this petition:

‘It should be noted that this petition is not directed at the “separation fence” that is being built at this time in the territories (and the petitioners in this petition do not wish to address the question of the fence itself at this stage) but merely at the question of the safe passage to Rachel’s tomb, exactly as the respondents themselves define the order, which was intended for the purpose of building a wall to protect the worshippers going to Rachel’s tomb’ (s. 25 of the second amended petition; emphases in the original).

Indeed, the two parties agreed that the declared purpose of the requisition order in this case is not to prevent the infiltration of terrorists from the territories into Jerusalem, but to create a safe access road for the worshippers who wish to go from Jerusalem to Rachel’s tomb. The legal questions that arise in the present case are different from the questions raised by the ‘separation fence’ in general, and even the considerations that are under discussion are not the same (cf. Beit Sourik Village Council v. Government of Israel [1]). Therefore, our judgment will be restricted to the question brought before us by the petitioners — the question of the legality of the new order that is the subject of the second amended petition.

Deliberation

8.    In the petition before us, the petitioners do not raise any argument against the authority of the respondent to make the order for the requisition of land under discussion. Indeed, the general power of the military commander to requisition land on the basis of the provisions of the Regulations Concerning the Laws and Customs of War on Land, which are appended to the Fourth Hague Convention of 1907 (hereafter: ‘the Hague Convention’) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949 (hereafter: ‘the Fourth Geneva Convention’), when the conditions under international and Israeli law are satisfied, has been recognized by this court in a series of judgments (see, for example, Beit Sourik Village Council v. Government of Israel [1], at para. 32; HCJ 940/04 Abu Tir v. IDF Commander in Judaea and Samaria [2], at para. 10; HCJ 10356/02 Hass v. IDF Commander in West Bank [3], at paras. 8-9; HCJ 401/88 Abu Rian v. IDF Commander in Judaea and Samaria [4], at p. 770; HCJ 24/91 Timraz v. IDF Commander in Gaza Strip [5], at pp. 333-335; HCJ 2717/96 Wafa v. Minister of Defence [6], at p. 856). The petitioners in the petition before us argue against the discretion of the respondent in making the order and they raise arguments that make allegations of unreasonableness and disproportionality. Indeed, even when he acts with authority, the military commander is liable to exercise his authority (inter alia) in accordance with the principles of reasonableness and proportionality, and his discretion will be subject to the scrutiny of this court (see, for example, Beit Sourik Village Council v. Government of Israel [1], at para. 24; Hass v. IDF Commander in West Bank [3], at para. 10; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at pp. 375-377 {___-___}). Our deliberations will focus, therefore, on the exercising of judicial scrutiny with regard to the military commander’s considerations, in accordance with the criteria outlined by the court in its case law rulings.

The arguments concerning irrelevant considerations

9.    As stated, one of the petitioners’ arguments is that the respondent’s decision in making the order was based on an irrelevant consideration. According to them, the consideration that underlies the order was not ensuring the security of the worshippers against terror attacks but the ‘annexation’ of Rachel’s tomb to Jerusalem. Indeed, it is a rule that the administrative authority should act in every case on the basis of relevant considerations only and for the purpose for which the authority was given to it. But in our case we have not been persuaded that a satisfactory factual basis has been established to attribute irrelevant considerations to the respondent in making the order. In his reply, counsel for the respondents discusses how the order was based on security reasons only — the protection of the safety and lives of those coming to pray at Rachel’s tomb, and that there is no intention to use the order to determine the permanent status of Rachel’s tomb and the means of access thereto. In support of this argument, counsel for the respondents gives details of the threats that exist at this time to the worshippers on the existing access road to the tomb, and he explains why, in the respondent’s opinion, the measures chosen to reduce the danger currently threatening the worshippers are necessary. In his response to the second amended petition, counsel for the respondent argues that since the ‘Western Wall tunnel’ riots and even more since the events of September 2000, we can see a continuing Palestinian effort to harm the Jewish religious sites that remain in the territories, including Rachel’s tomb, the Jewish worshippers who go to those sites and the IDF forces protecting them. Counsel for the respondents also gives details of the terror attacks that were directed against Rachel’s tomb since October 2000, which include sniper fire, placing explosive charges, throwing explosive devices, throwing Molotov cocktails and disturbances of the peace. Counsel for the respondent also gave details of the security measures adopted until now, including the guarding and fortification of Rachel’s tomb. The respondents’ claim is that after protecting the tomb, the security risk lies in the access road to the tomb, which almost entirely passes through hostile territory. Counsel for the respondents further argues that Bethlehem has recently become a terror centre, so that the risk of terror attacks directed at those going to the tomb has increased, and in his supplementary notice dated 8 November 2004, he gives additional details that were only recently cleared for publication. In this notice, counsel for the respondents states that in the weeks preceding the filing of the notice, the General Security Service and the Israel Defence Forces discovered several terror cells in the city of Bethlehem; these included Palestinian policemen who served in Bethlehem. He also says that in the course of investigating the matter, it was discovered that there is a cell that carried out attacks in Bethlehem and the area of Rachel’s tomb, and that this cell also planned to carry out an attack against a bullet-proof bus that takes the worshippers to the tomb. According to the plan that was revealed, the cell was supposed to attack the bus by means of a car bomb and afterwards to attack the rescue services who came to aid the injured. The respondents therefore argue that there is a real need to adopt measures to protect the security and lives of the worshippers on the way to Rachel’s tomb, and this is the purpose that underlies the order. The supplementary notice was accompanied by a summary prepared by the General Security Service, which describes the information that was obtained as a result of discovering the terror cells. The arguments of counsel for the respondents in his reply to the amended petition and the second amended petition are supported, respectively, by the affidavit of the second respondent, General Moshe Kaplinsky, who is military commander for the Central District, and the affidavit of Colonel (res.) Dan Tarza, who is the coordinator for planning the route of the ‘separation fence.’ So we see that the respondents have provided a detailed factual basis from which it can be seen that in the situation prevailing today in Bethlehem, there is a real security risk to the lives of the worshippers who wish to go to Rachel’s tomb. By contrast, the petitioners did not prove any facts that could refute the arguments concerning security concerns that were the basis for the decision of the second respondent. Therefore, since the respondent’s presumption of administrative propriety has not be rebutted, this argument of the petitioners should be rejected.

Right to present a case

10. An additional argument that the petitioners made is that they were not given a real right to present a case before the decision was made to issue the new order. No one disputes that the petitioners have a right to present their arguments with regard to the area affected by the order (see, for example, Hass v. IDF Commander in West Bank [3], at para. 6; HCJ 358/88 Association for Civil Rights in Israel v. Central Commander [8], at p. 540); but, according to the respondents, this right was given to the petitioners and was realized de facto. Counsel for the respondents claims that the objections of the petitioners to the original order and to the second order were considered carefully and that in formulating the new arrangement the respondents were attentive to the arguments and problems of the petitioners and open to changing their original position. And indeed, a proof of this is the fact that as a result of the petitioners’ petitions and objections, the respondent changed his original position and made a significant change in the planning, by adopting an alternative that is based, with certain changes, on one of the alternatives proposed by the petitioners themselves. Moreover, no one doubts that the respondents took care to notify the petitioners that their objection to the original order was accepted and of the intention to change the planning, and they even invited the petitioners and their counsel to tour the area of the requisition in order to show them the second route that was adopted. Moreover, no one disputes that the petitioners were given an opportunity to object to the second order and that the petitioners did indeed do this. As a result of this objection, an additional meetings took place between the respondent’s representatives and the petitioners’ representatives with the aim of finding solutions that would be acceptable to the two parties. When this attempt failed, the respondent examined the objection and rejected it in a reasoned and detailed response. Likewise, no one disputes that the petitioners were given an opportunity to object to the new order, which was also sent to the petitioners together with explanations to their attorneys, but none of the petitioners filed an objection to this order. Indeed, the history of the order which is the subject of the petition and the changes that were made to it, to a large extent also as a result of the petitioners’ claims with regard to the harm caused to them, shows that the respondents gave every opportunity to persons who might potentially be hurt by the route of the planned road and fence to raise their arguments before making a decision on the final route. In these circumstances, we see no real merit in the claim that the petitioners’ were not given the right to present their arguments in this case, even though attention was paid to that right to be heard only after the original petition was filed.

Now that we have rejected the petitioners’ arguments with regard to irrelevant reasons and the right to present their case, let us turn to examine the petitioners’ main claim in this case, namely the claim that the respondent’s decision does not give sufficient weight to the harm caused to the basic rights of the petitioners, and it therefore suffers from unreasonableness and disproportionality.

Reasonableness of the respondent’s decision

11. As can be seen from the respondent’s affidavit, the order with regard to the requisition of the land was made in order to increase the security of the worshippers on their way to Rachel’s tomb. The purpose underlying the order, therefore, is to allow the realization of the worshippers’ freedom to worship at Rachel’s tomb. The problem is that the means chosen for realizing this purpose inherently involve a violation of the petitioners’ property rights and freedom of movement. The question before us is therefore whether the new order properly balances the worshippers’ freedom of worship against the petitioners property rights and freedom of movement. Let us first consider the worshippers’ freedom of worship at Rachel’s tomb and afterwards the proper balance between it and the rights of the petitioners.

Freedom of worship

12. The freedom of religion and worship is recognized in our law as one of the basic human rights. This freedom was already mentioned in article 83 of the Palestine Order in Council, 1922, and in the Declaration of Independence. Freedom of religion and worship has been recognized in the case law of this court for a long time (see, for example, HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 454; [10]        HCJ 650/88 Israel Movement for Progressive Judaism v. Minister of Religious Affairs [10], at p. 381; HCJ 257/89 Hoffman v. Western Wall Superintendent [11], at pp. 340-341; HCJ 1514/01 Gur Aryeh v. Second Television and Radio Authority [12], at p. 277). Freedom of worship was recognized as an expression of freedom of religion, and as a branch of freedom of expression (HCJ 7128/96 Temple Mount Faithful v. Government of Israel [13], at pp. 523-524; Hass v. IDF Commander in West Bank [3], at para. 19), and there are some who also regard it as an aspect of human dignity (President Barak in HCJ 3261/93 Manning v. Minister of Justice [14], at p. 286, and in CA 6024/97 Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 649 {___}). Within the scope of freedom of religion and freedom of worship the court has also recognized the yearning of persons of religious belief to pray at sites that are holy to them (Hass v. IDF Commander in West Bank [3], at para. 16). To this we can also add the recognition of the freedom of access for members of the various religions to the places that are sacred to them as a right that is worthy of protection, which is also enshrined in Israeli law in the Protection of Holy Places Law, 5727-1967 (ss. 1 and 2(b) of the law).

The status of the freedom of worship was discussed not long ago by this court in Hass v. IDF Commander in West Bank [3], per Justice Procaccia:

‘The freedom of religion is a constitutional basic right of the individual, with a preferred status even in relation to other constitutional human rights. The freedom of worship constitutes an expression of freedom of religion, and it is an offshoot of freedom of expression… The constitutional protection given to freedom of worship is therefore similar, in principle, to the protection given to freedom of speech, and the constitutional balancing formula that befits the one is also applicable to the other… We are concerned with a constitutional right of great strength whose weight is great when it is balanced against conflicting social values’ (ibid. [3], at para. 19).

Moreover:

‘The freedom of religion and worship… is regarded as a constitutional right of supreme status that should be realized in so far as possible in view of the conditions prevailing in the territories, while protecting the safety and lives of the worshippers’ (ibid. [3], at para. 15).

In that case, the court considered a very similar issue to the one in our case — the legality of a requisition and demolition order that was made by the IDF commander in Judaea and Samaria for the purpose of increasing the security of the persons using the ‘Worshippers’ Route’ in Hebron (a route that is used by the Jewish residents of Kiryat Arba who wish to realize their right to pray at the Machpela Cave). With regard to the rights of the worshippers in that case. Justice Procaccia said (ibid. [3], at para. 19):

‘The worshippers who wish to go to the Machpela Cave by foot on Sabbaths and festivals wish to realize a constitutional right of freedom of worship in a holy place. This right is of special importance and weight on the scale of constitutional rights’ (emphasis supplied).

13. No one disputes that Rachel’s tomb is a holy site for Jews and that this site has been regarded by Jews as a holy site and a place of worship for many generations. Indeed, there is much evidence regarding the sanctity of the site to Jews and pilgrimages that were made to it already from very early times. In his book, Wars of the Holy Places — the Struggle for Jerusalem and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip (Jerusalem Institute for Israel Studies, 2000), to which we were referred in the state’s reply, Dr S. Berkovitz states that the site recognized today as ‘Rachel’s tomb, in the outskirts of Bethlehem, has been identified as Rachel’s tomb for more than a thousand years. He also adds that Rachel, a holy figure in Judaism, represents motherhood, mercy, redemption and the return to the land of Israel, in both the Bible and in Jewish tradition, and that her tomb is regarded as the third most holy site to Jews, after the Temple Mount and the Machpela Cave (ibid., at p. 301). In the aforesaid book, Dr Berkovitz discusses how, notwithstanding its holiness to Islam as well, writers and pilgrims since the Middle Ages, both Jewish and Moslem, have regarded Rachel’s tomb as a holy place for Jews. He also says that the right of Jews to have possession of the site and to pray in it was recognized officially already in an edict of the Turkish Sultan in the middle of the nineteenth century, following the thorough renovation made at the site in 1841 under the direction of Moses Montefiore and with his funding (ibid., at p. 301, and also at pp. 17-19). During the period of the British Mandate, the status quo was preserved at the site, and Jews were allowed to go to the tomb and pray there (ibid., at pp. 26-29). After the War of Independence, when the tomb was under the control of the Kingdom of Jordan, the site was admittedly well preserved, but in practice it was not possible to realize the right of Jews to have access to the tomb (ibid., at p. 302). After the Six Day War, control of the tomb returned to Israel and a new status was given to the centrality of the tomb as a site of religious worship. The site was renovated and became both a site of worship and a tourist site. When the boundaries of Jerusalem were extended after the Six Day War, Rachel’s tomb was not annexed to Jerusalem, and its status within the municipal boundaries of Bethlehem was maintained. Notwithstanding, the right of access to it was realized, and the tomb became a centre of attraction for many worshippers and tourists (ibid., at p. 302).

Counsel for the respondents wishes to add to this that even in the interim agreements between Israel and the Palestinian Liberation Organization and the Palestinian Authority, within which framework the control of Bethlehem, inter alia, was transferred to the Palestinian Authority, the right of Jews to realize their right to freedom of worship at the sites holy to them was maintained, and according to these agreements, Israel retained the security control of the tomb and the access routes to it (see also Berkovitz, Wars of the Holy Places — the Struggle for Jerusalem and the Holy Places in Israel, Judaea, Samaria and the Gaza Strip, supra, at pp. 215-220, 287, 302-303). The petitioners, for their part, do not dispute the right of Jewish worshippers to freedom of worship at Rachel’s tomb nor do they even dispute the fact that the worshippers have the right to realize the right of freedom of worship with relative safety. The premise for our deliberations, therefore — without expressing any position as to the political status of Rachel’s tomb or the right to have possession of the tomb — is that Jewish worshippers have a basic right to freedom of worship at Rachel’s tomb.

14. The freedom of worship is not an absolute right. It is a relative right that may, in certain circumstances, yield to other public interests or basic rights. The remarks of Justice Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 455, are illuminating in this regard:

‘Freedom of conscience, belief, religion and worship, in so far as the theory of belief is put into the practice of action, is not an absolute right… my right to pray does not allow me to trespass into my neighbour’s property or to cause him a nuisance. The freedom of conscience, belief, religion and worship is a relative freedom. It should be balanced against rights and interests that are also worthy of protection, such as private and public property and the freedom of movement. One of the interests that should be taken into account is the interest of public order and public safety.’

Indeed, in certain situations, the military commander may restrict or even prevent the realization of freedom of worship at a certain place in order to protect public order and public safety and in order to protect the lives and safety of the worshippers themselves (see Hass v. IDF Commander in West Bank [3], at para. 19; see also HCJ 2725/93 Salomon v. Jerusalem District Commissioner of Police [14]; HCJ 4044/93 Salomon v. Jerusalem District Commissioner of Police [15]). But before he restricts the worshippers’ freedom of worship, the military commander should examine whether he is able to adopt reasonable measures that will allow the realization of the freedom of worship while ensuring the safety of the worshippers. This was discussed by Justice Barak in Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 455:

‘… Freedom of conscience, belief, religion and worship is limited and restricted in so far as is necessary and essential in order to protect public safety and public order. Naturally, before any action is carried out that may violate and restrict this freedom because of harm to public safety, the police ought to take all the reasonable steps available to them in order to prevent the violation of public safety, without violating the right to conscience, belief, religion and worship. Therefore, if the concern is one that there will be violence from a group that is hostile to the worshippers, the police should act against this violence, and not against the worshippers. But if reasonable action by the police is not capable, in view of its limitations, of removing the de facto harm to public safety, there is no alternative to a restriction on the freedom of conscience and religion, as required in order to protect public safety.’

(See also Hass v. IDF Commander in West Bank [3], at para. 19).

In the case before us, the worshippers have not been denied the right of worship by the authorities, but it has been violated as a result of the danger presented to the worshippers by terror activities that may be directed at them. Therefore the respondent decided to search for measures that would reduce the danger to the safety and security of the worshippers while preserving their right of worship. The respondent’s decision is to give significant weight to the basic right to freedom of worship, while making a proper balance between the freedom of worship and the public interest of protecting public safety. But in our case, the right of the worshippers to freedom of worship is opposed not only by the interest of public safety but also by the rights of the petitioners to property and freedom of movement, which may be harmed as a result of measures adopted to protect the safety of the worshippers and which are de facto harmed by the measures chosen by the respondent (see Hass v. IDF Commander in West Bank [3], at para. 18). It should be emphasized that the respondents do not dispute the fact that the petitioners have these basic rights and that the respondent is obliged to take them into account in his decision, whereas the petitioners, for their part, do not question the basic right of the worshippers to freedom of worship at Rachel’s tomb. The dispute between the parties therefore concerns the question whether the new order provides a proper balance between the worshippers’ freedom of worship and the petitioners’ freedom of movement and property rights. Let us first discuss the proper balance between the worshippers’ freedom of worship and the petitioners’ freedom of movement, and then the proper balance between the worshippers’ freedom of worship and the petitioners’ property rights.

Freedom of worship versus freedom of movement

15. As stated, the main claim of the petitioners is that realization of the worshippers’ freedom of worship in accordance with the order seriously violates the freedom of the petitioners to move within Bethlehem, and for this reason the order should be set aside. Freedom of movement is one of the basic human rights and it has been recognized in our law both as an independent basic right (see, for example, HCJ 672/87 Atamalla v. Northern Commander [17], at pp. 709, 712; HCJ 153/83 Levy v. Southern District Commissioner of Police [18], at pp. 401-402 {117-118}) and as a right that is derived from the right to liberty (per President Barak and Justice Cheshin in HCJ 5016/96 Horev v. Minister of Transport [19], at pp. 59 {213} and 147 {___} respectively). In addition, there are some authorities who believe that this freedom is also derived from human dignity (see the remarks of President Barak in Horev v. Minister of Transport [19], at p. 59 {213}; Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 651 {___}; and HCJ 2481/93 Dayan v. Wilk [20], at p. 472 {341-342}; cf. the position of Justice Tal in Horev v. Minister of Transport [19], at p. 181 {___}.

The status of the freedom of movement in our legal system was discussed by this court in Horev v. Minister of Transport [19], where it considered inter alia the relationship between the freedom of movement and an injury to religious sensibilities and a religious lifestyle. In that case, President Barak said that freedom of movement is ‘one of the more basic rights’ (ibid. [19], at p. 49 {___}), that the right to freedom of movement ‘is in the first rank of human rights’ (ibid. [19], at p. 51 {___}) and that freedom of movement is ‘a freedom that is on the very highest level of the scale of rights in Israel’ (ibid. [19], at p. 53 {___}). The president also added in Horev v. Minister of Transport [19] that ‘as a rule, we place the freedom of movement within the boundaries of the state on a similar constitutional level to that of the freedom of expression’ (ibid. [19], at p. 49 {203}). It should be noted that similar remarks with regard to the status of the freedom of movement were also made by the justices who did not agree with President Barak’s majority opinion in Horev v. Minister of Transport [19] (see, for example, the remarks of Justice Cheshin (ibid. [19], at p. 147 {___}) and the remarks of Justice Tal (ibid. [19], at p. 181 {___}). On the status of freedom of movement in Israeli law following Horev v. Minister of Transport [19], see also Y. Zilbershatz, ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ 4 Mishpat uMimshal (1998) 793, at pp. 806-809.

The freedom of movement is recognized as a basic right also in international law. The freedom of movement within the state is enshrined in a whole host of international conventions and declarations concerning human rights (see, for example, art. 12 of the International Covenant on Civil and Political Rights, 1966, art. 13 of the Universal Declaration of Human Rights, 1948, and art. 2 of the Second Protocol of the European Convention on Human Rights, 1950) and it would appear that it is also enshrined in customary international law (see Zilbershatz, ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ supra, at pp. 800-801).

Notwithstanding, like the freedom of worship and like almost all freedoms, the freedom of movement is not absolute. It is relative, and it should be balanced against other interests and rights. This is the case in our constitutional law (see, for example, Horev v. Minister of Transport [19], at pp. 39, 181 {___, ___}; it is also the case in international law concerning human rights. Thus, for example, art. 12 of the International Covenant on Civil and Political Rights provides:

‘1.          Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement…

…

3.            The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

…’

(See also art. 4 of the same Covenant with regard to the possibility of restricting the rights listed therein in situations of national emergency). It should be noted that, in view of the positions of the parties in their arguments before us, we are not called upon to decide the question whether and to what extent the principles of Israeli constitutional law and the international human rights conventions apply in Judaea and Samaria (cf. HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [21], at p. 364 {___}; HCJ 13/86 Shahin v. IDF Commander in Judaea and Samaria [22], at pp. 210-213). It is sufficient for us to say that within the framework of the duty of the military commander to exercise his discretion reasonably, he must also take into account, among his considerations, the interests and rights of the local population, including the need to minimize the degree of harm to their freedom of movement, and, as aforesaid, the respondents do not deny this. How, then, should the military commander balance the basic right of freedom of movement against the basic right of freedom of worship?

16. The proper balancing formula between these two rights should be determined in accordance with the relative weight of each of these rights, since ‘the balancing formulae vary in accordance with the conflicting values’ (Dayan v. Wilk [20], at p. 475 {345}) and as Vice-President Ben-Porat said in HCJ 448/85 Dahar v. Minister of Interior [23], at p. 708:

‘The proper criterion is not fixed and uniform for all types of case… but a suitable test should be adopted, taking into account the nature and importance of the competing principles in our outlook concerning the relative importance and degree of protection that we wish to give to each principle or interest’ (emphases in the original).

In the case before us, we are presented with a conflict between two basic rights of equal weight. As we have seen above (in paras. 12 and 15), both the freedom of worship and the freedom of movement have been recognized in our case law as being on the highest level of the scale of rights (with regard to the freedom of worship, see Hass v. IDF Commander in West Bank [3], at paras. 15, 19; and with regard to the freedom of movement, see Horev v. Minister of Transport [19], at pp. 49-53 {202-207}). Moreover, both the freedom of worship and the freedom of movement have been recognized in the case law of this court as having the same weight as freedom of expression (see Hass v. IDF Commander in West Bank [3], at para. 19, and Gur Aryeh v. Second Television and Radio Authority [12], at p. 285, with regard to freedom of worship; and see Horev v. Minister of Transport [19], at p. 49 {202-203}, Dahar v. Minister of Interior [23], at pp. 706, 708, and Levy v. Southern District Commissioner of Police [18], at pp. 401-402 {117-118} with regard to freedom of movement). In addition, with regard to both of them an identical balancing formula has been applied in order to balance them against the same public interests (with regard to the freedom of worship, see, for example, HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner [9], at p. 456; HCJ 7128/96 Temple Mount Faithful v. Government of Israel [13], at pp. 523-534; and with regard to freedom of movement, see, for example, the remarks of President Barak in Horev v. Minister of Transport [19], at p. 54 {___}: ‘In view of the close relationship between the freedom of movement inside the state and the freedom of expression and worship, it seems to me that the same requirement of likelihood [that applies with regard to a violation of the freedom of expression and the freedom of worship] should apply to a violation of the freedom of movement in the state’ (square parentheses supplied)).

The result implied by the conclusion that we are concerned with a conflict between two rights of equal weight is that the balance required in this case is a horizontal balance, which will allow the coexistence of both of these rights. The remarks made in Dayan v. Wilk [20], at p. 480 {353} (with regard to the balance between the right to hold a meeting and procession as opposed to the right to privacy in a person’s home) are pertinent:

‘We are concerned with two human rights of equal standing, and the balance between them must therefore find expression in a reciprocal waiver whereby each right must make a concession to the other in order to allow the coexistence of both… The balance required between the rights is a horizontal balance.’

Indeed, ‘in the organized life of society, there is no “all or nothing.” There is “give and take,” and a balance between the different interests’ (Justice Barak in HCJ 148/79 Saar v. Minister of Interior [24], at p. 178). Therefore, the freedom of worship should not be realized at the price of a total denial of freedom of movement, and the freedom of worship should not be denied absolutely in order to satisfy the freedom of movement, but a reciprocal restriction is required on the scope of the protection given to each of these liberties, so that the ‘essence’ of each of the competing values is preserved (Dayan v. Wilk [20], at p. 481 {354}). We must therefore find the balance that will allow the freedom of worship to be allowed in essence, without violating the essence of the freedom of movement (Levy v. Southern District Commissioner of Police [18], at p. 402 {118}). Within the framework of this balance, we should seek to preserve the ‘essence’ of each of these liberties, and the violation should only affect their ‘exterior.’ We should also take into account the extent and nature of the violation (Shavit v. Rishon LeZion Jewish Burial Society [16], at p. 651 {___}).

Against this background, let us examine the nature and intensity of the violation of the petitioners’ freedom of movement in this case, in order to examine whether the new order does indeed result in the realization of the essence of the freedom of worship without harming the essence of the freedom of movement, as required by the horizontal balance between these two liberties of equal weight.

17. How, then, should we examine the extent of the violation of the freedom of movement of the petitioners, who argue with regard to their right to move within the city of Bethlehem, when their place of residence or work is in the area close to Rachel’s tomb? From the case law of this court we can derive several subtests or criteria for examining the intensity of the violation of the individual’s freedom of movement, of which the main ones are the geographic scope of the restriction on movement, the degree of intensity of the restriction on movement, the period of time during which the restriction remains in force, and the interests that the freedom of movement seeks to realize.

With regard to the criterion concerning the geographic scope of the restriction of movement, Justice Türkel said in HCJ 4706/02 Salah v. Minister of Interior [25], at p. 704:

‘It need not be said that the most serious violation of the freedom of movement and the right to liberty is the imprisonment of a person in a jail, by virtue of an arrest warrant or a prison sentence, and the restriction of his movements behind the prison walls. Less serious than this is the restriction of freedom of movement to a specific place of residence, such as an alternative to arrest that makes the accused’s bail conditional upon his living at a specific address (“house arrest”). Less serious still is a restriction of movement to the limits of a certain city, and less serious still is a restriction of movement by means of a prohibition to enter the limits of a certain city. Less than this is a restriction on the freedom of movement by means of a prohibition against leaving the country… less than this is a restriction by means of a prohibition against entering a certain country, such as a prohibition against entering an enemy country…’

Similar remarks were also made by Justice Goldberg in Atamalla v. Northern Commander [17], at p. 710:

‘Restrictive orders are of different and varied kinds, and the degree of restriction caused by them are not always equal. A restrictive order that imposes “house arrest” on the person affected by the restriction… cannot be compared to a restrictive order that restricts his movements to an area within which he is allowed to move freely. And a restriction to a specific area, for someone who lives and works there, cannot be compared to such a restriction for someone who was “exiled” to the area by virtue of the order, just as someone who is prohibited from leaving Israel cannot be compared to someone whose movement is restricted within Israel.’

(See also the remarks of Justice Bach in Dahar v. Minister of Interior [23], at pp. 714-715; and see the remarks of Justice Cheshin (in a minority opinion) in Horev v. Minister of Transport [19], at p. 147 {___}).

An additional criterion, as we have said, is the degree of intensity of the restriction on movement. It is clear that the violation involved in a complete denial of the freedom of movement is more serious than a violation caused by a partial restriction on the freedom of movement, and the smaller the extent of the restriction, so the intensity of the violation will be less. Thus, for example, it was held with regard to the intensity of the violation of freedom of movement in the context of the closure of roads that the closure of a road that is the only means of access cannot be compare to the closure of a road where there are alternative access routes nearby; the closure of a main traffic artery cannot be compared to the closure of a road inside a neighbourhood; and the closure of a road that is tantamount to blocking access absolutely cannot be compared to a closure than results merely in a longer route and an inconvenience for the persons using the road; and the smaller the increase in time and convenience caused by the alternative route are, the smaller the intensity of the violation of freedom of movement (Horev v. Minister of Transport [19], per President Barak, at p. 67 {___}, per Justice Or at pp. 98-102 {___-___}, per Justice Cheshin at pp. 145-146 {___-___}, per Justice Levin at p. 162 {___}; HCJ 174/62 Religious Coercion Prevention League v. Jerusalem City Council [26], at p. 2668; HCJ 531/77 Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [27], at pp. 165, 167). Indeed, an absolute denial of movement cannot be compared to a traffic delay or inconvenience, and the smaller the degree of the inconvenience, the smaller is the intensity of the violation of the freedom of movement. Thus it was held, with regard to evaluating the intensity of the harm caused by the separation fence, that considerations such as the number and location of the exit gates and crossings planned in the fence, the distance between them and the place of residence and place of work of the local residents and the convenience and speed of passing through those gates and crossings should be taken into account (see Abu Tir v. IDF Commander in Judaea and Samaria [2], at para. 12; and cf. also Beit Sourik Village Council v. Government of Israel [1], at paras. 60, 74, 76 and especially para. 82; see also K. Michael and A. Ramon, Jerusalem Surrounded by a Fence — the Building of the Security Fence (‘The Separation Fence’) Around Jerusalem (Jerusalem Institute for Israel Studies, 2004), at pp. 79-82).

According to the criterion of the period of time during which the restriction remains in force, the longer the period of the restriction of freedom of movement, the greater the intensity of the violation (Salah v. Minister of Interior [25], at p. 705). A curfew that denies the right of a person to leave his home for several hours cannot be compared to house arrest that denies a person the right to leave his home for several weeks or even months; similarly, a restriction on the right to leave Israel for several days cannot be compared to a restriction of this right for several months or even years (Salah v. Minister of Interior [25], at p. 705); similarly, the closure of a part of a traffic artery for the duration of prayers cannot be compared to a closure for the whole of the Sabbath (Horev v. Minister of Transport [19], at p. 66 {___}).

According to the criterion of the personal interest of a person in realizing freedom of movement, the purpose of the movement or travel is considered in order to assess the intensity of the violation of freedom of movement. The restriction of the movement of someone whose travel is essential and important may increase the violation thereof. Indeed, someone whose travel is intended for the purpose of urgent medical treatment cannot be compared to someone whose travel is intended for the purpose of a pleasure trip (Salah v. Minister of Interior [25], at p. 705). A similar test was proposed by Prof. Zilbershatz in her article ‘On Freedom of Movement within the State: Following HCJ 5016/96 Horev v. Minister of Transport,’ supra, with regard to the freedom of movement:

‘The more important the purpose of the movement, the greater will be the constitutional protection that should be given to the right to freedom of movement… according to this, it is definitely possible that certain movement for a purpose that is not essential, such as for the purpose of travel only, will be recognized as a basic right that should be protected, but to a lesser degree than movement for an essential purpose, such as for the saving of life’ (ibid., at p. 815).

A similar approach was expressed in Horev v. Minister of Transport [19], where all the justices agreed that a restriction of movement on Bar-Ilan Street should be done in a way that left the road open to traffic for security and emergency vehicles (see, for example, the remarks of President Barak, ibid. [19], at p. 67 {___} and the remarks of Justice Tal at p. 183 {___}). Indeed, when examining the intensity of the violation involved in restricting movement, we should recognize that the right of movement is not merely a right in itself, but it is also a right that is required in order to realize additional rights and interests. Thus, for example, it was held in Horev v. Minister of Transport [19] that the harm to the secular public that used Bar-Ilan Road for the purpose of travelling from one part of Jerusalem to another part thereof was less than the harm to the secular public that lived in the area, inter alia because the ‘latter segment of the public has other special needs. The difficulties with which it will need to contend are different. The violation of the freedom of movement and other interests whose realization depends on the freedom of movement of this segment of the public is different’ (Justice Or, ibid. [19], at p. 104 {___}; see also the remarks of President Barak, ibid. [19], at pp. 67-68 {___-___}, and the remarks of Vice-President S. Levin, ibid. [19], at pp. 163, 167 {___, ___}, and of Justice Mazza, ibid. [19], at pp. 170-171 {___-___}). Thus, for example, it was held in Beit Sourik Village Council v. Government of Israel [1] that when the route of the ‘separation fence’ separates farmers from their land which is the source of their livelihood, this is a serious violation of their freedom of movement (ibid. [1], at paras. 60, 68-71, 80, 82). Therefore, when examining the intensity of the violation arising from the restriction of the freedom of movement, we should also take into account the purpose of the movement and the strength of the interests for the realization of which that movement is required.

Against the background of these criteria, let us examine the violation of the freedom of movement in this case.

From general principles to the specific case

18. When making the order with regard to the requisition of land, the respondent sought as aforesaid to increase the security of the worshippers on their way to Rachel’s tomb, in order to allow the realization of the worshippers’ freedom of worship. The respondent chose to realize this purpose (which no one disputes is a proper purpose) by means of a bypass road, which will be used only as a means of access to Rachel’s tomb, and the protection of this road by means of walls. The solution of paving a bypass road for the worshippers is an appropriate solution because it allows the access of the worshippers to Rachel’s tomb to be guaranteed in order that they can realize their right to freedom of worship on the site, without harming the freedom of movement of the local population on the existing roads in Bethlehem, as was likely to have happened according to the original order. Counsel for the respondents also argues that when the new arrangement that guarantees the safe access of the worshippers to the tomb is put into operation, it will be possible to remove the restrictions that currently exist on the freedom of movement of most of the residents who live between roadblock 300, which is situated south of Jerusalem, and Rachel’s tomb. Moreover, the harm caused by the new order to the freedom of movement of the residents is far smaller (both from the viewpoint of the number of residents harmed and from the viewpoint of the intensity of the harm) as compared with the solution proposed in the original order and the second order, and the petitioners do not deny this. What therefore remains of the violation of the residents’ freedom of movement?

A study of the arguments of the parties and of the maps and aerial photographs that were attached to their arguments shows that even after the change in the route within the framework of the new order, there are several residents whose freedom of movement is still harmed to a certain degree as a result of the protective measure adopted to enable the access of the worshippers to the tomb. As a result of the amendment to the route that was made in the second order (and was also retained in the new order), the movement of most of the petitioners, who live along Hebron Road, is not affected by the requisition order, since the road that will be paved will circumvent, as aforesaid, their houses to the west, in an area without buildings. Thus, according to the respondents’ estimation, the number of residents whose freedom of movement will be harmed was reduced by approximately 70% as compared with the original order. The harm that remains is to several dozen residents who live in the vicinity of Rachel’s tomb, in an area where the bypass road will connect with Hebron Road in the east, and from there continue southwards to the tomb. As a result of the amendment made in the new order, those residents who live close to the tomb will no longer be surrounded by walls, and their movement to the other parts of Bethlehem will be unrestricted, without any need to go through roadblocks. Notwithstanding, the harm is reflected in the fact that the movement of the residents who live close to the tomb will be affected in the sense that they will not be able to cross Hebron Street, but will need to go round the area of the requisition order to the south.

Thus we see that the second order led to a significant reduction in the number of residents whose freedom of movement is affected, whereas the new order led to a significant reduction in the intensity of the violation of the freedom of movement of the remaining residents that are affected. Indeed, in assessing the extent of the harm caused by the route chosen to the local residents, we should take into account not only the number of the residents that are affected, but also the intensity of the violation of their rights. The remarks made recently in Abu Tir v. IDF Commander in Judaea and Samaria [2], which concerns the route of the separation fence in the area of the village Tzur-Bahar, are pertinent in this respect:

‘In assessing the proportionality of the proper route, we should take into account both the number of the owners of rights who are likely to be harmed and also the intensity of the violated rights. A weighting of these components is required in accordance with their relative weight in order to arrive at a determination of a route that will, from an overall perspective, cause the least possible harm to the local inhabitants. An examine of the number of owners of rights who are harmed by each option is insufficient. Without assessing the intensity of their rights that are expected to the violated it is impossible to assess the proportionality of the chosen option… an assessment of the intensity of the rights being violated must be made at the same time as the number of residents that are harmed are taken into account, while making a proper weighting between them’ (ibid. [2], at para. 12; emphases in the original).

The reduction in the intensity of the violation of the freedom of movement within the framework of the new order, as compared with the second order, is mainly expressed in two of the criteria mentioned above: the geographic scope of the restriction on movement, and the degree of intensity of the restriction on movement.

From the viewpoint of the geographic scope of the restriction on movement, according to the second order that was cancelled, the residents in the area of the ring road that was planned close to Rachel’s tomb were supposed to be enclosed in an area surrounded by walls; going from this area, even to Bethlehem itself, required passing through a roadblock. In other words, according to the second order we are not speaking of restricting the ability of the aforesaid residents to enter Jerusalem or even restricting them to the boundaries of Bethlehem, but of restricting them to a very small area. According to the new order, however, the ring road has been cancelled and none of the petitioners will find himself any longer in an area surrounded by walls. The restriction on the movement of the residents is now limited, from the viewpoint of its geographical scope, to a restriction on their movement into Jerusalem, and even this restriction does not arise directly from the requisition order that is the subject of the petition before us. It is therefore clear that from the viewpoint of this criterion there has been a huge reduction in the violation of the freedom of movement.

From the viewpoint of the criterion that concerns the intensity of the restriction on movement, we are also speaking of a significant reduction in the intensity of the violation. According to the solution that was proposed in the second order, in order to leave the aforesaid area, the residents of the area were supposed to travel to roadblock 300 (a distance of approximately 250 metres) and pass through the roadblock in order to enter Bethlehem. But according to the solution that was ultimately adopted in the new order, the movement of all of the petitioners within Bethlehem is free and direct, without any need to pass through a roadblock. The movement of the residents of the aforesaid area to the west will now be absolutely unimpeded, whereas their movement to the east, to the other side of Hebron Road, will require circumventing Rachel’s tomb and the walls that protect the access to it from the south. This circumvention does admittedly lengthen the travel time of the residents of the area on their way to the eastern part of Bethlehem by several hundred metres, and this involves a certain nuisance and inconvenience, but it is clear that this nuisance is much less than the nuisance that they would have suffered as a result of the need to go through a roadblock every time that the residents of the area wanted to enter the area or to go from it to Bethlehem. This is a level of nuisance that a person is likely to experience in everyday life in circumstances where entry into a certain road is prohibited for traffic reasons or because of public order.

Even from the perspective of the criterion concerning the interests whose realization is dependent on the freedom of movement of the residents of the area, we can see a significant reduction in the harm caused by the requisition order to the petitioners. The solution that was proposed within the framework of the second order was likely to harm the normal lives of the residents who lived in the aforesaid area most seriously. The result of the second order was that even the most basic everyday activities — such as going to work and to school, buying essential items, medical treatment, etc. — required the residents to leave the area and to pass an army roadblock, something that would have caused the residents great hardship in conducting their daily lives. The lives of the residents of the area were likely to be harmed also by the fact that the entry of guests and visitors, as well as service providers (including the employees of the first petitioner and the third petitioner) into the area would have been restricted. Now that the restriction on movement to and from the aforesaid area has been removed to a large extent, this will result in a significant improvement in the daily lives of the petitioners who live there from the viewpoint of the interests whose realization depends on the freedom of movement.

With regard to the period of time during which the restriction remains in force, there is no change in the new order as compared with the two previous orders. The respondents admittedly emphasize that these are temporary measures and according to them when the security position improves and the danger to the lives of the worshippers going to the tomb decreases, it will be possible to dismantle the walls and remove the restrictions on the petitioners’ freedom of movement, but naturally this is an unknown period of time that depends on all the circumstances that prevail in the territories, which may continue for a long time.

The conclusion is therefore that even the new order contains a certain violation of the freedom of movement, but this is a considerably smaller violation than the violation that was involved in the original order and the second order. We naturally accept the petitioners’ basic argument that the mere fact that the respondents thought of adopting more harmful measures does not necessarily make the measure that was ultimately chosen reasonable and proportionate. But on the merits of the matter we have been persuaded that the harm that remains — a certain extra distance in the travel route of a small number of the petitioners when they go to the eastern part of Bethlehem — is not a serious and significant violation of the freedom of movement, which departs from the margin of proportionate and reasonable measures that the respondents, who are responsible for security and normal life in the territories, are entitled to introduce (see Horev v. Minister of Transport [19], at p. 67 {___} (per President Barak); Religious Coercion Prevention League v. Jerusalem City Council [26], at p. 2668; Baruch v. Traffic Comptroller, Tel-Aviv and Central Districts [27], at p. 165).

19. The petitioners further argue that it would have been possible to realize the purpose of the order — providing safe access for the worshippers who wish to realize their right to freedom of worship at Rachel’s tomb — by other means that would harm the petitioners to a lesser degree. Thus, for example, they argue that it would have been possible to ensure the security of the worshippers by means of the existing security arrangements (transporting the worshippers in a bullet-proof bus with an army convoy to the tomb), or by digging a tunnel to the tomb.

The respondents utterly reject the petitioners’ arguments. According to them, the measures proposed by the petitioners are inappropriate for realizing the purpose of the order and they even raise a doubt as to whether these measures would cause less harm to the petitioners. The respondents’ argument is that in the current situation, where only the area of the tomb itself is protected, the security weak point is the means of access to the tomb, which passes almost entirely through hostile territory. They also argue that the traffic to the tomb and from it is a preferred target for terror attacks, and that the existing method of exposed traffic by means of a bullet-proof bus and an army convoy does not provide a proper security solution to the danger presented to the lives of the worshippers and the soldiers who accompany them. These arguments are now strengthened, inter alia, by the information that was recently revealed by the General Security Service as a result of discovering several terror cells in Bethlehem, as stated in the respondents’ supplementary notice of 8 November 2004. According to this, the GSS discovered the existence of a terror cell operated by a Palestinian policeman, which carried out attacks in Bethlehem and the area of Rachel’s tomb, and it had even planned to carry out an attack on a bullet-proof bus of worshippers by means of a car bomb. The respondents even went so far as to claim that leaving the existing position as it was involved much greater harm to the local residents, since the existing position necessitates many restrictions on movement, whereas the solution proposed in the new order will make it possible to remove these restrictions.

With regard to the petitioners’ proposal that a tunnel should be dug to the tomb, the respondents argue that it is not at all clear whether this solution can be implemented from an engineering point of view, and in any case the digging of a tunnel under a hostile area is not a good solution. According to them, this solution involves a risk that a terrorist will infiltrate the tunnel or an explosive charge will be placed in the tunnel, which may turn the tunnel into a death trap for those in it. Therefore they claim that this solution requires a military presence to be kept in the area above the tunnel and at its entrances, and therefore this solution will not lead to a change in the military deployment in the area, and will merely increase the danger to those coming to the tomb. In addition, the respondents also claim that it is precisely a tunnel that has the characteristics of a permanent solution, whereas the respondents wish to find a solution to a temporary and specific security situation.

Thus we see that the parties disagree with regard to the security measures that are appropriate for realizing the purpose of the order and with regard to the effectiveness of the measures proposed by the petitioners. As a rule, in such a dispute on military-professional questions, on which the court does not have any expertise of its own, the court will give considerable weight to the professional opinion of the military authorities, which has the professional expertise and the responsibility for security (see Beit Sourik Village Council v. Government of Israel [1], at para. 47, and the references cited there). In the present case the petitioners have not discharged the burden of persuading us that their position with regard to the effectiveness of the measures that they proposed should be preferred to the opinion of the military commander.

Moreover, when we reached the conclusion that the harm resulting from the measure chosen by the respondents is not a serious and significant violation of the freedom of movement, and that this measure does not depart from the margin of proportionate and reasonable measures that the respondents are given, we are not required to decide the question of the effectiveness and propriety of the measures proposed by the petitioners. Indeed, there are often several ways of realizing the purpose, which are all proportionate and reasonable. The military commander has the authority to choose between these methods, and as long as the military commander does not depart from the ‘margin of proportionality’ and the ‘margin of reasonableness,’ the court will not intervene in his discretion (Beit Sourik Village Council v. Government of Israel [1], at para. 42). Indeed:

‘It is only natural that the court does not put itself in the military authority’s place… in order to substitute the discretion of the court for the discretion of the commander. It considers the question whether, in view of all the data, the adoption of the aforesaid measure falls within the margin of measures that can be regarded, in the circumstances of the case, as reasonable…’ (per President Shamgar in HCJ 1005/89 Agga v. IDF Commander in Gaza Strip [28], at p. 539; see also Ajuri v. IDF Commander in West Bank [7], at pp. 375-376 {___-___}; Beit Sourik Village Council v. Government of Israel [1], at para. 46).

In summary, after we have examined the nature and intensity of the violation to the freedom of movement in this case, we have reached the conclusion that the solution chosen by the respondents within the framework of the new order does indeed guarantee the essence of the realization of the freedom of worship without violating the essence of the freedom of movement. The respondent’s decision within the framework of the new order succeeds in preserving the ‘essence’ of both of these two liberties of equal weight, and this is therefore a reasonable balance that does not justify any intervention.

Freedom of worship versus property rights

20. Property rights are also included among the basic human rights. Property rights have been recognized as basic rights worthy of protection in the case law of this court (see, for example, HCJ 390/79 Dawikat v. Government of Israel [29], at pp. 14-15; HCJFH 4466/94 Nuseibeh v. Minister of Finance [30], at pp. 83-85) and have also been given explicit constitutional expression in s. 3 of the Basic Law: Human Dignity and Liberty. These rights are also recognized in international law, and in so far as territories held under belligerent occupation are concerned, they are enshrined, inter alia, in the Hague Convention and the Fourth Geneva Convention. Notwithstanding, property rights are not absolute, and they may give way to other public interests and basic rights (see, for example, Hass v. IDF Commander in West Bank [3], at para. 17; Ajuri v. IDF Commander in West Bank [7], at pp. 365 {___}).

The balance between the freedom of worship and private property rights was considered recently in Hass v. IDF Commander in West Bank [3]. In that case the court reached the conclusion that ‘there is no need to adopt a decisive position with regard to the conceptual ranking of the right of worship and the right of property in order to decide the question of how to balance between them in a case of a conflict.’ This was because, in the circumstances of that case, the court reached the conclusion that ‘Even if we assume, for the purposes of this case, that we are concerned with constitutional rights of equal standing and importance, even so, in the horizontal balance between them’ the balance made by the respondent satisfies the test of constitutionality (ibid. [3], at para. 20). These remarks are also appropriate in the case before us, and we too shall follow the same path, since we have been persuaded that the violation of property rights in this case is marginal. Counsel for the respondents claims in his reply to the second amended petition that the harm caused by the new order to private land is ‘absolutely marginal,’ in his words, and even the petitioners placed their main emphasis on the violation of freedom of movement and did not point to any concrete violation of the property rights of any of the petitioners. Counsel for the respondents claims that within the framework of the planning of the route an effort was made to rely, in so far as possible, on the existing borders of parcels of land, that only a few petitioners were harmed by the requisition of the land and that even so we are speaking merely of the requisition of small parts of parcels. Counsel for the respondents further states that for this requisition fair rent and compensation will be paid. Therefore we have been persuaded that the balance between the freedom of worship and property rights does not depart from the margin of reasonableness in this case, even if we assume that we are speaking of two rights of equal weight, and that the proper balance between them is therefore a horizontal balance. We have also made a note of the statement made by counsel for the respondents that the respondents will be prepared to examine any application for an amendment of the route at a specific point, in order to reduce the harm to the owners of the land.

Summary

21. Jewish worshippers have a basic right to freedom of worship at Rachel’s tomb and the respondent has the duty to ensure the realization of this right by protecting the safety and lives of the worshippers. Within the framework of choosing the measures for realizing this purpose, the respondent must take into account the basic rights of the petitioners, including property rights and the freedom of movement, and he must strike a proper balance between these rights. In this case, the solution adopted by the respondent, after he reconsidered the original plans and adopted a course that follows the case law of this court, does indeed ensure the realization of the worshippers’ freedom of worship without violating the essence of the petitioners’ freedom of movement and property rights. We have therefore not found that the arrangement determined by the respondent at the end of the proceedings contains any unreasonableness that justifies our intervention therein.

For these reasons, the petition is denied.

 

 

Justice E. Rivlin

            I agree.

 

 

Justice E. Hayut

            I agree.

 

 

Petition denied.

24 Shevat 5765.

3 February 2005.

 

 

C.A. 84/64

           

BETH HANANYA, WORKERS' COOPERATIVE SETTLEMENT LTD.

v.

MOSHE FREIDMAN et al.

 

 

In the Supreme Court sitting as a Court of Civil Appeal

[30 July 1964]

Agranat D.P., Berinson J. and Manny J.

 

 

 

Cooperative societies - membership - admission of wives - effect of long unchallenged usage - Cooperative Societies Ordinance, sec. 1.

 

 

At a general meeting of the appellant society a resolution was adopted amending a certain provision of its constitution. The respondents, members of the society, sought a declaration that the resolution was void because wives of members had voted thereon although not formally members themselves. The appellant pleaded that the wives had been duly admitted to membership, that it was customary, as throughout the settlement movement, for wives to become members and that the respondents were estopped from denying such membership. The District Court granted the declaration claimed.

 

Held, granting the appeal, that whilst normally a person did not become a member unless duly admitted under the relevant law or according to a society's rules, the question was whether or not in formally accepting a husband as a member the intention was to exclude his wife. Such intention could only be established by examining the circumstances. In the instant case, the only conclusion that could be drawn was that admission of a husband included his wife, especially as wives had always been treated as members for all purposes. The mode of admission to membership was left by law to a society's constitution and the statutory definition of "member" was broad enough not to exclude those who became members in some manner other than that specified in such constitution.

 

            A society's constitution was in the nature of a contract between it and its members or among the members inter se. In certain circumstances the contract might be varied by mutual consent evidenced manifestly in long continuous practice. Such variation received the force of a binding usage. That was so in the instant case, wives having been accorded rights and obligations equal to those of their husbands. The court could not equitably disregard this situation and set it at naught.

           

            To hold that the wives were not members would shake the society and others like it to their very foundations since it would render everything done by them void of all legal effect.

           

Israeli cases referred to:

 

(1)       C.A. 25/50 - S. Wolfson v Spinis Co. Ltd. (1951) 5 P.D. 265: 4 P.M. 26.

           

            Palestinian case referred to:

 

(2)   C.A. 5/40 - S. Cohen and Company and an. v. Abraham Capun (1940) 7.P.L.R. 80; (1940) 1 S.C.J. 63.

 

English cases referred to:

 

(3)       Lyle-Meller v. A. Lewis and Co. (Westminster), Ltd. (1956), 1 All E.R. 247.

(4)   Lewis H. Evans, Official Manager of the Agriculturalists' Cattle Assurance Company v. Aaron Smallcombe and an. (1868) L.R. 3 H.L. 249.

 

American case referred to:

 

(5) Francis v. Perry (1913) 144 N.Y.S. 167.

 

R. Navat for the appellant.

A. Fichman for the respondents.

 

BERINSON J.:                       The appellant is a workers' settlement constituted as a cooperative agricultural society (hereinafter referred to as "the society" or "the settlement"), and the respondents are members of the society.

 

            On 2 June, 1963, the general meeting of the society resolved to change the clause in the society's articles of association which deals with the settlement of disputes. At that meeting, as at all meetings of the society, members' wives participated and voted. The respondents claim that the wives are not members. Because they participated, the respondents applied to the District Court for a declaration that the above resolution was null and void and that the clause in its version prior to the resolution, remained in force.

           

            The society raised the following points in its defence:

           

1. The women were duly accepted as members.

 

2. In the settlement, as in all other workers' settlements of the Settlement Movement in Israel, there is a binding custom according to which wives are full members.

 

3. The respondents are estopped from denying the wives' membership.

 

            These contentions were not accepted by the District Court and judgment was given in favour of the respondents. In the present appeal, the same three points are raised and I shall deal with each of them.

           

1. With respect to the procedure for accepting members into the society. Mr. Tobel. the secretary of the society. testified as follows:

 

            "Application for membership is always made by both spouses together and both sign the application which is in the form specified in the society's articles of association... The committee considers the application after making enquiries about the personalities and the health of both spouses. They are both sent for medical examinations.  Should the committee find that one of the couple is unsuitable, neither is accepted. If the committee finds the couple suitable, it resolves to accept them and passes the matter on to the general meeting for approval. Only the name of the head of the family is designated in such approval. In my opinion, under this procedure the whole family is accepted as member."

           

            Mr. Tobel's opinion did not meet the approval of the learned Judge who held that "acceptance of members into the cooperative society may not be implied - it must be explicit". He deduced this from the definition of the term "member" in the Cooperative Societies Ordinance, and from the society's articles of association (hereinafter referred to as "the articles") which specify that the decision of the administrative committee to accept a member must be approved by the general meeting.

           

            It is true that usually a person does not become a member unless he has been duly accepted in accordance with the provisions of the law and the articles as they stand. Nevertheless, it seems to me that the learned Judge was in error here. First, we are not dealing with the question of implied acceptance of members. There is no dispute that the women, together with their husbands, signed the written applications for joining the society or that the committee would decide whether to accept or reject both husband and wife. The committee's decision would be passed to the general meeting for approval and the general meeting would approve the application in the name only of the husband. The sole question that might arise is what was the intention of the general meeting in giving its approval? Was it to approve the husband alone and to reject the wife or to approve them both even though formal expression of such approval was made in the name of the husband alone. In the Corpus Juris Secundum. vol. 7. p. 56, sec. 23(b), we find:

 

"One may become a member of an association by formally signing its articles, or in any other way that shows a mutual agreement between himself and the existing members that he is a member. But membership is a question of intent and cannot be established by any facts which fail to show the existence of a mutual intent that one shall be a member of the association... It is sufficient if the existing members agree to accept him as a member, and he agrees to become such, with the mutual understanding that he shall be entitled to all the rights and privileges incidental to membership, and shall assume all the duties and obligations attaching thereto, the question of membership depending on the intent and understanding of the parties."

 

The task therefore is to discover the true intention of the parties, having regard to all the circumstances of the case. First and foremost, obviously,  the conduct of the parties at the time of the application and their understanding of the outcome must be considered. Mr. Tobel's testimony regarding the acceptance of new members was absolutely clear. He found no express approval by the general meeting of the acceptance of the wives as members of the society but he testified that the approval of the general meeting in the name only of the husband, is viewed as approval of both husband and wife: "When it is decided to accept a new member, a whole family, and not just the one member, is accepted". This also emerges from the fact that the settlement does not accept bachelors. Bachelors who joined the settlement when it was first founded were required to marry within two years and those who did not do so were forced to leave. "At present" said Mr. Tobel, "there are no bachelors on the settlement".

 

            It is a fact that throughout the existence of the settlement, new members have been accepted in the above manner and when a new family is accepted,  everyone considers the wife to be a member with equal rights and obligations in every respect. Wives participate in the activities of the settlement together with their husbands; they participate in the general  meetings and enjoy the right to vote, they are elected to the institutions of the settlement and act in its name, just like their husbands. Accounts in the settlement are kept in the name of both spouses on the clear assumption that both are members of the society.

 

            In the light of these facts, the only possible conclusion is that the association in its general meetings would accept both spouses as members, even though only the name of the husband appeared in the minutes.

           

            This conclusion certainly does not contradict the articles of association, for, as we have said, the intention of the general meeting in approving the decision of the committee in the husband's name only is to accept both husband and wife as members. The best evidence of this is that subsequent to the approval, the wife is treated by all as a member of the settlement in every way. Nor is this conclusion contrary to the law, as the learned Judge thought, relying on the definition of "member" in section 2 of the Cooperative Societies Ordinance. According to this definition:

           

            " 'Member' includes a person joining in the application for the registration of a society and a person admitted to membership after registration in accordance with the rules (of the society) and this Ordinance and the regulations made thereunder."

           

            I have already said that the admission of the women was in fact consistent with the articles of association, for the action of the general meeting can only be interpreted as approval of the membership of both husband and wife. The Cooperative Societies Ordinance and the regulations made thereunder do not prescribe conditions for the admission of members. The regulations stipulate only that every association must in its articles of association specify the conditions for the acceptance of members, and the method of choosing them. When the choice is made in accordance with the articles, all the requirements of the law relating to this matter are satisfied. Similarly, the definition of "member" in terms of "includes" is not exhaustive, i.e., it does not preclude the possibility of a person becoming a member of the settlement in a manner different from those specified in the definition. Consequently, even if the admission of the women did not conform to all the specific provisions of the articles of association, nevertheless, since they were in fact recognized as members for many years, enjoying the benefits and bearing the responsibilities of membership, such de facto recognition gives rise to the assumption that their membership is in order de jure as well.

 

            I could in fact have ended my judgment here but because both sides argued at length on two other questions of great public importance, in that they relate not only to the present litigants but to all the workers' settlements belonging to the Settlement Movement, I will also deal with these questions as briefly as possible.

           

2. The second submission of the appellant is, as I have said, that the practice with respect to the acceptance of members has become so firmly rooted that it has become a binding custom which the respondents may not deny. The practice has been the same since the settlement was founded in 1951. Moreover, all other settlements belonging to the Workers' Settlement Movement have followed the same practice for as long as the Movement has existed. Mr. Arazi, a member of the secretariat of the Movement and the coordinator of its membership committee, pointed out: "I am familiar with the procedure for accepting members in all the settlements in Israel. In all settlements, it is customary for the acceptance of members to include the acceptance of female workers". There is no doubt that all those concerned knew of the practice and conformed to it. The learned Judge, however, thought that the practice cannot be binding because it is contrary to the law. The contradiction, he thought, lay in the fact that by giving the right to vote to both a member and his wife, a member would have two votes, whereas section 16(1) of the Cooperative Societies Ordinance allows each individual member one vote only. It would seem that conceptually, this view is based on the ancient rule of the Common law, taken from the Pentateuch, that a man and his wife are "of one flesh" (Gen. 2:24) and therefore the wife's act is that of the husband. This view is fundamentally wrong from both a legal and a factual point of view. The wife's right to her own opinion is given to her by virtue of her separate personality and membership. When the wife expresses her opinion on matters concerning the settlement, she is exercising this right of hers and in no manner can her vote be equated with the vote of her husband. Consequently, the husband is not given two votes but only one by virtue of his membership and the wife too has a vote by virtue of her membership. There was therefore no violation of the provisions of section 16(1) of the Ordinance.

 

            In support of his view denying the binding force of the above practice relating to the mode of accepting new members. the learned Judge quoted the following passage from Wurtzburg. The Law relating to Building Societies. (9th ed.) p. 21:

           

"As between the society and its members, a course of dealing at variance with the rules, for whatever length of time it may be pursued and acquiesced in, is of no validity whatsoever."

 

            The author himself adds a warning note to the effect that the authorities upon which this statement is based are not particularly strong and that his words must be read with caution. I have looked at those of the sources which I could obtain and can find in them nothing clear and explicit in support of Wurtzburg's view. And it is no wonder, for the principle emerging therefrom does not, in my opinion, conform to the accepted position of the law on this matter. The very same author says elsewhere (at p. 41):

           

"Sometimes a person is estopped, by virtue of an agreement and acceptance, from denying the legality or validity of a new regulation."

 

            That is correct. The articles of association are only an agreement between the society and its members, or amongst the members themselves, under which they proceed by mutual consent. In certain circumstances, a deviation from the articles of association will have effect because of such consent. When the deviation persists continuously for a sufficient period of time and is known to all those concerned and decisive in their mutual relations, it acquires the force of binding custom which the law recognizes, just as it recognizes every other custom or commercial usage which those concerned cannot deny.

           

            For this reason, there is no doubt that the usage with respect to the acceptance of members in the appellant settlement, in terms of duration, persistence and continuity and in view of its familiarity (Wolfson v Spinis (1) and Cohen v. Capun (2)], has become a binding custom not to be challenged.

           

3. The last argument is that in view of the circumstances, the respondents are estopped from denying the membership of the wives.

 

            After all that has happened. it is difficult to understand how the respondents summoned up courage to argue against the membership of the wives. One only has to see how in the past the respondents served in various capacities in the society and were elected at meetings in which women participated and voted. Together with their wives, they initiated various claims against the appellant in which they admitted that they and their wives were members of the society. All members of the settlement, including the respondents, looked upon the women as members of the settlement with rights and duties equal to those of the men, and not a murmur has been heard against membership of women since the settlement was founded. Now, after all this. the respondents wish to exclude the women, saying: "What happened in the past happened, but it was worth nothing, as if it had never happened." A person attempting to make such a claim must be clearly told: "What happened in the past is still valid, and will continue to be so in the future." A court of equity will not consider an argument which disregards the facts of life and attempts to dismiss them with a wave of the hand. The court will act upon the principle that a person must stand by his deeds and his words when another has acted upon them and, as a result, prejudiced his situation.

           

            Counsel for the respondents claims that the respondents' belief that the women were members was founded on a mistaken legal outlook and took no account of the real position. This contention is incorrect for a number of reasons. The question whether a particular person is a member of a society is a question of fact, see Francis v Perry (5) at p. 281, which quotes the Legal Encyclopaedia of America and England vol. 25, (2nd ed.) p. 1134, and no one will dispute that misrepresentation of fact is grounds for estoppel. We have already seen that the question of the membership of the wives hinges on determining the intention of the general meeting and that, too, is a question of fact. At most, it might be said that this is a factual conclusion arising from that which was proved, or that it is a mixed question of fact and of the law concerning the legal relationship between the parties. Even were it so, we have found a judgment of Denning J., in Kyle-Melle rv. Lewis & Co. Ltd. (3) (at p. 250), according to which misrepresentation, or deception,give rise to estoppel. In his words:

           

"I do not think that it is necessary to go into these refinements about law and fact. I am clearly of the opinion that this assurance was binding no matter whether it is regarded as a representation of the law or of fact or a mixture of both, and no matter whether it concerns the present or the future. It may not be such as to give rise to an estoppel at common law which was restricted to representations of existing fact; but we have got far beyond the old common law estoppel now. We have arrived at a new estoppel which affects legal relationships."

 

            The absence of any action which the actual situation demanded, when the position was known, is liable to be interpreted as a silent admission or as acceptance of the law, preventing the relevant party from later arguing the opposite. Such estoppel, arising as a result of silence when the position was known, has found expression in the decision of the House of Lords in Evans v. Smallcombe (4), where the Court ruled that shareholders in a company, who knew how a situation was developing and remained silent, are estopped from challenging the outcome if they did not protest at the time the event occurred...

           

            The District Court also held that one of the conditions for the application of estoppel was not fulfilled since no proof existed that the settlement had, by reason of the conduct of the respondents, changed its position to its detriment. "If the respondent settlement wishes to make the required changes in its articles of association, it can easily hold another general meeting and see to it that only the male members participate." This is a very narrow view of the issue and it misses the main point. The estoppel that was claimed against the respondents does not concern the said resolution of the general meeting but rather the question of the wives' membership: the fate of the decision hinges on this latter question. A determination to the effect that the women are not members of the settlement would be of tremendous importance and could shake the settlement to its very foundations. A workers' settlement is a way of life based on the principles of equality, mutual aid and responsibility, and the existence of communal living and services for the benefit of all the members, including women whose status and rights are equal to those of the men. From an analytical point of view, a decision that the wives are not members of the settlement and consequently are denied the right of lawful participation in the social and economic activities of the settlement would be a hard blow to the structure of the settlement and to the principles it advocates and would mar its character. From a practical point of view, such a decision would mean that everything that has been done in the settlement since its inception is without force and void ab initio because everything that took place at the meetings and in its institutions occurred with the participation of the women as subjects of equal rights to those of the men. Furthermore. in the light of Mr. Arazi's testimony, that the same situation applies in all the settlements belonging to the Cooperative Settlements Movement of Israel. it may be said chat everything that has been done in all the settlements and in the Settlement Movement itself from the very start is, and always has been, devoid of legal force. Obviously, such a result is most grave and could cause total confusion to the appellant and to all the ocher workers' settlements in Israel. This Court must do everything within its power to prevent the creation of such a terrible situation, to the extent that the law allows such action. Fortunately, the law does make such action possible, as explained above, for a number of reasons.

 

            In view of what we have said, the appeal is allowed, the decision of the District Court is hereby over-ruled, and the respondents' action dismissed, and the costs from both this Court and the District Court, in the sum of I.L. 1200, will be borne by the respondents.

           

            Appeal allowed

            Judgment given on 30 July 1964.

HCJ 3045/05

HCJ 3046/05

HCJ 10218/05

HCJ 10468/05

HCJ 10597/05

Yossi Ben-Ari

and others

v.

Director of Population Administration, Ministry of Interior

 

 

The Supreme Court sitting as the High Court of Justice

[21 November 2006]

Before President Emeritus A. Barak, President D. Beinisch,
Vice-President E. Rivlin
and Justices A. Procaccia, M. Naor, E. Rubinstein, E. Hayut

 

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

 

Facts: The petitioners are five same-sex couples of Israeli citizens who underwent ceremonies of marriage in Canada in accordance with Canadian law. Upon returning to Israel, they applied to the population registry to be registered as married. Their application was refused. They petitioned the court.

 

Held: (Majority opinion — President Emeritus Barak, President Beinisch, Vice-President Rivlin, Justices Procaccia, Naor, Hayut) Following the rule in Funk-Schlesinger v. Minister of Interior, that the purpose of the registry is merely statistical, the registration official at the population registry is not competent to examine the validity of a marriage. When he is presented with a marriage certificate, he is obliged to register the applicants as married, unless such a registration would be manifestly incorrect. The ‘manifestly incorrect’ exception does not apply in this case.

(Minority opinion — Justice Rubinstein) The rule in Funk-Schlesinger v. Minister of Interior, which held that the registration official is not competent to examine the validity of a civil marriage and should register the applicants as married when presented with a marriage certificate, should not be extended to the case of a same-sex marriage conducted in one of the few countries around the world where such marriages are conducted. Registration at the population registry is not merely statistical; it involves a de facto recognition of same-sex marriages. The question of same-sex marriages differs from that of civil marriages in that civil marriages are almost universally recognized around the world, whereas same-sex marriages are only recognized in a small minority of countries. The registration of same-sex marriages should therefore be left for the Knesset to decide.

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

 

Legislation cited:

Enforcement of Foreign Judgements Law, 5718-1958.

Evidence Ordinance [New Version], 5731-1971, ss. 3, 29.

Family Court Law, 5755-1995.

Inheritance Law, 5725-1965.

Law of Return, 5710-1950.

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

Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985.

Population Registry Law, 5725-1965, ss. 2, 2(a)(5), 2(a)(6), 2(a)(7), 2(a)(8), 3, 15, 16, 17, 19(1), 19(2), 19C.

Prevention of Family Violence Law, 5751-1991.

Residents’ Registry Ordinance, 5709-1949.

 

Israeli Supreme Court cases cited:

[1]      HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1963] IsrSC 17 225.

[2]      CA 630/70 Tamarin v. State of Israel [1972] IsrSC 26(1) 197.

[3]      HCJ 147/70 Steadman v. Minister of Interior [1970] IsrSC 24(1) 766.

[4]      HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [1995] IsrSC 49(4) 661.

[5]      HCJ 145/51 Abu-Ras v. IDF Galilee Commander [1951] IsrSC 5 1476.

[6]      HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

[7]      HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [1989] IsrSC 43(2) 723.

[8]      HCJ 2888/92 Goldstein v. Minister of Interior [1996] IsrSC 50(5) 89.

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

[10]    CA 8036/96 Yehud v. Yehud [1998] IsrSC 52(5) 865.

[11]    HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [2000] IsrSC 54(2) 368.

[12]    HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [2002] IsrSC 56(2) 721.

[13]    HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [2005] IsrSC 59(3) 385.

[14]    HCJ 80/63 Gurfinkel v. Minister of Interior [1963] IsrSC 17 2048.

[15]    HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [2005] IsrSC 58(5) 412; [2005] (1) IsrLR 268.

[16]    CA 10280/01 Yaros-Hakak v. Attorney-General [2005] IsrSC 59(5) 64; [2005] (1) IsrLR 1.

[17]    HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

[18]    HCJ 5398/96 Steiner v. Minister of Defence (unreported).

[19]    CA 373/72 Tapper v. State of Israel [1974] IsrSC 28(2) 7.

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

[21]    HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [1997] IsrSC 51(3) 876.

[22]    CA 191/51 Skornik v. Skornik [1954] IsrSC 8 141; IsrSJ 2 327.

[23]    CA 640/82 Cohen v. Attorney-General [1985] IsrSC 39(1) 673.

[24]    CrimFH 5567/00 Deri v. State of Israel [2000] IsrSC 54(3) 614.

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

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

 

Israeli District Court cases cited:

[27]    MA 369/94 Steiner v. IDF (unreported).

[28]    CA (Naz) 3245/03 A.M. v. Custodian-General (unreported).

[29]    CrimC (Hf) 477/02 State of Israel v. Bachrawi (unreported).

 

Israeli Magistrates Court cases cited:

[30]    CrimC (BS) 2190/01 State of Israel v. Moyal (unreported).

 

Israeli Family Court cases cited:

[31]    FC (TA) 48260/01 A v. B (unreported).

[32]    FC (TA) 3140/03 Re R.A. and L.M.P. (unreported).

[33]    FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General (unreported).

[34]    FC (Hf) 32520/97 A v. B (unreported).

[35]    FC (TA) 16610/04 A v. Attorney-General (unreported).

 

Israeli National Labour Court cases cited:

[36]    NLC 54/3-1712 Even v. Tel-Aviv University (unreported).

 

Israeli Regional Labour Court cases cited:

[37]    LabC (TA) 3816/01 Levy v. Mivtahim (unreported).

[38]    NI (TA) 3536/04 Raz v. National Insurance Institute (unreported).

 

American cases cited:

[39]    Hennefeld v. Township of Montclair, 22 N.J. Tax 166 (2005).

[40]    In re Kandu, 315 B.R. 123 (Bankr. W.D. Wash. 2004).

[41]    Lewis v. Harris, 378 N.J. Super. 168 (App. Div. 2005).

[42]    Lewis v. Harris, 2006 N.J. Lexis 1521.

[43]    Samuels v. New York State Dept. of Health, 811 N.Y.S. 2d 136 (2006).

[44]    Seymour v. Holcomb, 790 N.Y.S. 2d 858 (2005).

 

For the petitioners in HCJ 3045/05 and HCJ 3046/05 — D. Yakir, Y. Berman.

For the petitioners in HCJ 10218/05, HCJ 10486/05 and HCJ 10597/05 — O.A. Stock.

For the respondent — Y. Gnessin, D. Marx.

 

 

JUDGMENT

 

 

President Emeritus A. Barak

Two men, who are Israeli citizens and residents, underwent outside Israel a civil marriage ceremony which is recognized in that country. When they returned to Israel they applied to the registration official. They applied to change their registration at the registry from bachelor to married. The registration official refused the application. Was the refusal lawful? That is the question that each of the petitions has presented to us. It should be noted that the question before us is not whether a marriage between persons of the same sex, which took place outside Israel, is valid in Israel. The petitioners are not applying for their marriage outside Israel to be given validity in Israel. The question before us is whether the registration official — whose authority is prescribed in the Population Registry Law, 5725-1965, as interpreted in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]) — acted within the scope of his authority when he refused to register the marriage of the two men in the register. The petitions before us address the question of the registration official’s authority and not the question of the validity of the marriage.

A. The petitioners

1.    There are five petitions of five couples before us. Both members of the couple in each of the petitions are men, and they are Israelis citizens and residents. The petitioners in each of the petitions live together in Israel as a couple, and they conduct a family life and maintain a joint household. They married each other in a civil marriage ceremony in Toronto in Canada, which is recognized in accordance with the law in that country. After they returned to Israel, they applied to be registered as married at the Population Registry. They attached to their application documents that authenticated their marriages. Their applications were refused. They were told that ‘marriages of this kind are not legally recognized in the State of Israel, and therefore it is not possible to register them in the register’ (the letter of the director of the Population Administration office in Tel-Aviv dated 24 May 2005). This led to the petitions.

B. The arguments of the parties

The petitioners concentrate their main arguments on the authority of the registry official. According to them, the refusal of the registry official to register their marriages in Toronto is contrary to the rule in Funk-Schlesinger v. Minister of Interior [1], it discriminates against the petitioners in comparison to couples who are not of the same sex and it violates their right to family life. According to them, according to the rule decided in Funk-Schlesinger v. Minister of Interior [1], the registration official acts merely as a statistician. The registration itself is incapable of creating or changing status. The discretion of the registration official, when he is considering an application to register a marriage, is therefore limited. According to the petitioners’ approach, when the registration official is presented with an authenticated marriage certificate, unless there is a suspicion as to its authenticity, he should make a change in the registration and register the applicants as married. The registration official is not competent to examine the question whether the marriage is valid under the laws of the State of Israel, and whether the couple are competent to marry in Israel. These questions are often complex and delicate questions. According to the petitioners, the questions in the petitions before us are difficult ones. The registration official was not given the power to decide them. According to Funk-Schlesinger v. Minister of Interior [1], as long as no judicial decision has been made to the effect that the marriage is not valid, the registration official is obliged to register it in the population registry. The petitioners point out that in Israel there has never been a judicial decision with regard to the validity of a marriage of couples of the same sex in Canada, whether in the Supreme Court or in the lower courts. Therefore no weight should be attributed to the position of the respondent that the marriages are not valid, and he should register them. The petitioners emphasize that this court has repeatedly confirmed the rule in Funk-Schlesinger v. Minister of Interior [1] since it was adopted. It has been applied in matters of personal status both with regard to marriage and also with regard to adoption and parenthood. The rule has also been extended to the registration of the items of religion and ethnicity in the population register. The petitioners’ position is that this case law ruling is desirable, and that it should be applied to their case.

3.    The respondent requests that we deny the petitions. His position is that there is no basis for registering marriages of same-sex couples that took place in a foreign country. This position is based on three main reasons. First, in Israeli law the legal framework of marriage relates only to a marriage between a man and a woman. There is no recognized legal framework of marriage in our law between two persons of the same sex. Funk-Schlesinger v. Minister of Interior [1] is irrelevant to the petitioners’ cases. We should distinguish between registration in the population register of a marriage that took place outside Israel, whatever its validity, as long as it satisfies the existing basic legal framework of marriage in Israel, and registration of a marriage that is inconsistent with the existing legal framework of this concept in Israel. Only the registration of the former marriages is governed by Funk-Schlesinger v. Minister of Interior [1]. Second, the respondent points out that most countries of the world do not recognize marriages of same-sex couples that take place in foreign countries, and they do not register marriages between members of the same sex that took place in foreign countries. Many countries have enacted laws in which it is expressly provided that a marriage can only take place between a man and a woman, and that marriages between members of the same sex that took place in other countries should not be recognized. Therefore, it cannot be said that comparative law requires recognition of these marriages, since it cannot be said that in the few countries that conduct marriage ceremonies between members of the same sex there is an expectation that these marriages will be recognized in other countries. Third, the respondent’s position is that the question of the registration of marriages of same-sex couples is one of those matters that should be regulated in primary legislation of the Knesset. The administrative tool of registration in the population register should not be used to create a new legal framework that is contrary to the intention of the legislature. In enacting the Population Registry Law the legislature did not conceive of making the population registry into a tool for creating new legal frameworks. On the contrary, the legislature’s intention was that the population register should reflect the existing legal frameworks in Israel in matters of status. Creating a new personal status constitutes a primary arrangement that lies within the jurisdiction of the legislature. The proper place for determining the question of recognizing a new personal status of marriage between members of the same sex is the Knesset. This is especially the case in view of the fact that this question concerns controversial public issues with regard to the fabric and values of society.

c.     The proceeding

4.    The petitions were heard before a panel of three justices (President A. Barak and Justices E. Rubinstein and E. Hayut). In the panel’s decision of 16 November 2005, the parties were given the opportunity of supplementing their arguments. It was also held that the justices were considering expanding the panel and that oral argument would be heard. The panel was expanded on 3 March 2006 and oral argument was heard on 28 May 2006. All of the parties told us that they were prepared to regard the case as if an order nisi had been issued in the petitions and the hearing took place accordingly.

d.    The legislative framework

5.    The Population Registry Law, 5725-1965, regulates the activity of the population registry. It provides that items of information concerning residents are registered at the population registry. These items of information are set out in s. 2 of the Population Registry Law:

‘The registry and registration items

2.  (a) The following items concerning a resident and any change to them shall be registered at the population registry:

(1) Family name, personal name and previous names;

 

(2) Parents’ names;

 

(3) Date and place of birth;

 

(4) Sex;

 

(5) Ethnicity;

 

(6) Religion;

 

(7) Personal status (unmarried, married, divorced or widowed);

 

(8) Spouse’s name;

 

(9)           Children’s names, dates of birth and sex;

 

(10) Present and former citizenship or citizenships;

 

(11) Address;

 

(11A) Mailing address, according to the meaning thereof in the Address Update Law, 5765-2005, in so far as notice of this was given;

 

(12) Date of entry into Israel;

 

(13) The date on which a person became a resident as stated in section 1(a).

 

(b) A resident who is registered for the first time shall be given for his registration an identity number.’

The Population Registry Law sets out the significance of the registration in section 3 as follows:

‘The registry — prima facie evidence

3.  The registration at the registry, any copy or extract thereof and also any certificate that was given under this law shall constitute prima facie evidence of the correctness of the registration items set out in paragraphs (1) to (4) and (9) to (13) of section 2.’

Paragraphs (5) to (8) were excluded from the rule of ‘prima facie evidence.’ These paragraphs concern ethnicity (para. (5)), religion (para. (6)), personal status (unmarried, married, divorced or widowed) (para. (7)) and name of spouse (para. (8)). The matter before us — personal status (unmarried, married, divorced or widowed) (para. (7)) — was excluded from the framework of prima facie evidence.

6.    Chapter 3 of the Population Registry Law is concerned with the powers of the registration official. It provides that the registration official may require someone who gave notice of registration items to give the official any information or document in his possession concerning the registration items (s. 19(1)). He is also entitled to record a (written or oral) declaration concerning the truthfulness of the information or document given to him (s. 19(2)). The Population Registry Law distinguishes between initial registration and the registration of changes. Initial registration is made in accordance with a ‘public certificate,’ and if there is no such certificate, in accordance with the applicant’s statement. The registration of changes, which is the context of the petitions before us, shall be made in the following manner (s. 19C):

‘Registration of changes

19C. A change in a registration item of a resident shall be recorded in accordance with a document that is produced under sections 15 or 16 or in accordance with a statement under section 17 that is accompanied by a public certificate that testifies to the change; …’

In the petitions before us, no documents were produced in accordance with s. 15 (which concerns official actions in Israel, such as a marriage that is recorded under the Marriage and Divorce (Registration) Ordinance), nor were any actions carried out under s. 16 (judicial decisions).The petitions before us therefore fall within the scope of s. 17 of the Population Registry Law, which provides:

‘Duty to give notice of changes

17. If a change occurred, other than as stated in sections 15 and 16, in the registration details of a resident, he is obliged to give notice of the change to the registration official within thirty days…’.

This notice should be accompanied by a ‘public certificate that testifies to the change.’ A statement of the applicant alone is insufficient (see CA 630/70 Tamarin v. State of Israel [2]; HCJ 147/70 Steadman v. Minister of Interior [3]; HCJ 1031/93 Pesaro (Goldstein) v. Minister of Interior [4], at p. 676). A ‘public certificate,’ for this purpose, is ‘according to the meaning thereof in the Testimony Ordinance’ (which is now the Evidence Ordinance [New Version], 5731-1971). For our purposes, these are the marriage certificates issued by a competent authority under Canadian law in the place where the marriage ceremony was conducted (see the definition of ‘public certificate’ in s. 29 of the Evidence Ordinance [New Version]).

E. The normative status of the registry and the discretion of the registration official

7.    What is the scope of the registration official’s discretion? This question has been considered in a whole host of judgments. The main judgment is Funk-Schlesinger v. Minister of Interior [1]. This decision was made more than forty-two years ago. In that case Mrs Funk-Schlesinger, a Christian resident of Israel, married Mr Schlesinger, a Jewish resident of Israel. The marriage took place in Cyprus. On the basis of the Cypriot marriage certificate, Mrs Funk-Schlesinger applied to be registered as ‘married’ at the population registry. The Minister of the Interior refused the application. His refusal was based on the outlook that under the rules of private international law that apply in Israel, the spouses were not married. By a majority (Justices Y. Sussman, Z. Berinson, A. Witkon and E. Manny, with Justice M. Silberg dissenting) it was decided to order the registration. The opinion of Justice Y. Sussman, which was the main opinion, was based on the outlook that the Residents’ Registry Ordinance, 5709-1949 —

‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness’ (ibid. [1], at p. 249, and also HCJ 145/51 Abu-Ras v. IDF Galilee Commander [5]).

Against this background, it was held that ‘the function of the registration official… is merely a function of collecting statistical material for the purpose of maintaining a register of residents, and no judicial power has been given to him’ (ibid. [1], at p. 244). Therefore —

‘When he registers the family status of a resident, it is not part of the job of the registration official to consider the validity of the marriage. The legislature is presumed not to have imposed on a public authority a duty that it is incapable of discharging. The official should be satisfied, for the purpose of carrying out his office and registering the family status, if he is presented with evidence that the resident underwent a marriage ceremony. The question of what is the validity of the ceremony that took place is a multi-faceted one and examining the validity of the marriage falls outside the scope of the residents’ registry’ (ibid. [1], at p. 252).

In a similar vein, Justice Y. Sussman said that when the Supreme Court hears petitions against a refusal of the registration official to register the marriage of a petitioner, it does not make any legal determination with regard to the validity of that marriage. He wrote:

‘It is not superfluous to emphasize that we are not dealing with the question whether the marriage is valid or not. The question before us is… whether there was a justification for the refusal of the residents’ registry official to register the applicant as a married woman’ (ibid. [1], at p. 242).

Justice Y. Sussman recognizes that there may be cases in which the incorrectness of the details that a resident wishes to register in the registry is manifest and is not subject to any reasonable doubt. In such cases the official is not obliged to carry out the registration.

‘The public official is not obliged to exercise his authority in order to be a party to an act of fraud. When a person who clearly appears from his appearance to be an adult comes before him and applies to be registered as a five year old child, what doubt can there be in such a case that the registration is false and that the act of the person is an act of fraud? In such a case the official will be justified when he refuses to register the details, and this court will certainly not exercise its power… in order to compel the official to “forge” the population register’ (ibid. [1], at p. 243).

8.    Since the decision in Funk-Schlesinger v. Minister of Interior [1], this court has followed it consistently. Over the years its strength has grown. The repeal of the Residents’ Registry Ordinance and its replacement by the Population Registry Law did not change its effect. In HCJ 58/68 Shalit v. Minister of Interior [6], in which the law was decided in accordance with the Population Registry Law, Justice Y. Sussman wrote:

‘The registration official was not given judicial powers, and the purpose of the statute for which he is responsible also does not require him to decide any question. It is therefore unsurprising that neither the ordinance nor the law mentioned above gave the registration official the tools that the court uses in order to discover the truth… A citizen who comes to give a notice as required by the law is presumed to tell the truth. It is not desirable that the official should raise suspicions… The registration is not conditional upon the registration official being convinced that the details given to him are correct… The registration is merely a registration of the details as given to the official… Only one exception has been held with regard to this registration… and this is… when one of the details is inherently untrue and this is manifest, such as when an adult appears before the official and asks to be registered as a five year old… in such a case the official shall refuse to register his age, since he is not liable to be a party to the making of a false registration… The Population Registry Law can be seen from its name to be a registry law. Its purpose is the same as the purpose of the ordinance, its predecessor — to collect statistical material’ (Shalit v. Minister of Interior [6], at pp. 506, 507, 508).

This was also determined to be the law in later cases (see, for example, Tamarin v. State of Israel [2], at p. 227; Steadman v. Minister of Interior [3], at p. 770).

9.    Funk-Schlesinger v. Minister of Interior [1] was considered in HCJ 264/87 Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7]). It was held by the majority (President M. Shamgar and Justices A. Barak, M. Bejski and G. Bach, with Vice-President M. Elon dissenting) that the registration official should register the conversion of a person on the basis of a document that testifies to the conversion in a Jewish community outside Israel. President M. Shamgar wrote:

‘If after receiving details as aforesaid the registration official has a reasonable basis for assuming that the statement is incorrect, he should refuse to register it (s. 19B(b) of the aforesaid law [the Population Registry Law]). A statement that is incorrect means a statement that includes a falsehood (such as when we are dealing with an act of fraud or when there is evidence that the resident is a member of another religion…). It follows from the provisions of the aforesaid law that the registration official does not consider whether a conversion ceremony that took place in a Jewish community abroad and that is confirmed by the document submitted to him is valid or not. From his point of view, a certificate which appears to confirm that a conversion ceremony took place in a Jewish community as aforesaid indicates that such a ceremony requiring registration did indeed take place. This outlook concerning the powers and obligations of the registration official with regard to the registration of religion and ethnicity can also be seen from the approach of this court in the past, as reflected for example in the judgment in HCJ 143/62 Funk-Schlesinger v. Minister of Interior [1]’ (ibid. [7], at p. 732).

Even the minority opinion of Vice-President M. Elon was based on the assumption that ‘the registration official is obliged to register the details given to him in the statement unless he has a reasonable basis for assuming that the statement is not correct (Shalit v. Minister of Interior [6], at p. 507, and following Funk-Schlesinger v. Minister of Interior [1]).’ In that case Vice-President M. Elon was of the opinion that in view of the definition of ‘Jew’ in the Population Registry Law, the official had a reasonable basis for assuming that the statement made by the petitioners with regard to their conversion was incorrect.

10. Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] considered the power of the registration official with regard to the registration of the items of ethnicity (item 5) and religion (item 6). Pesaro (Goldstein) v. Minister of Interior [4] also considered, inter alia, this question. President Emeritus M. Shamgar, with the agreement of President A. Barak and Justice E. Mazza, M. Cheshin, T. Strasberg-Cohen and D. Dorner, but with the dissent of Justice Tz. Tal, said that:

‘The Population Registry Law is, as aforesaid, a civil law whose purpose is to collect factual information, including statistics. The minister responsible for implementing the Population Registry Law is the Minister of the Interior. He, and the officials of his office, have the power to make the registration of the registry items in accordance with a statement of the resident, and within the framework of the restrictions on the scope of the discretion that have been laid down in case law… According to Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], in so far as initial registration is concerned, the registration official is not competent to examine the validity of the conversion’ (ibid. [4], at p. 688).

11. Pesaro (Goldstein) v. Minister of Interior [4] considered the question of the conversion in Israel of Mrs Elian Chava Pesaro (Goldstein). This question was not decided in that case. All that was decided was that the Religious Community (Conversion) Ordinance did not apply to her conversion in Israel. It was not held that the conversion that she underwent in Israel was valid. Before the petitioner underwent the conversion proceedings and before judgment was given with regard to her conversion, she married Mr Uri Goldstein in a consular marriage at the Brazilian Embassy in Israel. The couple applied to the registration official with an application that he should register them as married. The official refused. His reason was that the consul of a foreign state had no authority to conduct a marriage ceremony in Israel. The court (Vice-President A. Barak and Justices E. Goldberg and E. Mazza) held that according to the rule in Funk-Schlesinger v. Minister of Interior [1] the registration official should register the couple as married (HCJ 2888/92 Goldstein v. Minister of Interior [8]). I said in my opinion that the question whether it was possible to hold a consular marriage in Israel was a difficult one. In these circumstances, the registration official should act, with regard to a change in registration, on the basis of a public certificate that was submitted to him concerning the marriage. In my opinion I said that:

‘Since Funk-Schlesinger v. Minister of Interior [1] the Supreme Court has repeatedly held that “the function of a registration official under the aforesaid ordinance is merely the function of a collector of statistical material for the purpose of managing the register of residents, and he has not been given any judicial power” (ibid. [1], at p. 244, per Justice Sussman). Therefore, “the official is obliged to register what the citizen tells him” (ibid. [1], at p. 249), unless this amounts to “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid. [1], at p. 243). It follows that if the couple present to the registry official a certificate that testifies to the conducting of a marriage ceremony before a consul of a foreign country in Israel, the official should register the couple as married, unless it is clear and manifest that the details are incorrect, or there is no doubt that the consul has no power to marry them…

Thus we see that if a non-Jewish woman (a citizen of country A) and a Jewish man (whatever his nationality) apply to the registry official, and present him with a registration certificate of a marriage between the couple that was conducted by the consul of that country A, the registry official should register the couple as married. Admittedly, there is a doubt with regard to the power of the consul to conduct a marriage ceremony in these circumstances, but the registry official is not entitled to decide this doubt. This doubt is inherent in the Israeli legal system, and as long as a competent court has not decided it, the doubt remains inherent in the legal system… Indeed, as long as this doubt exists, the registry official should register the couple as married, since “the question of the validity of the ceremony that took place is sometimes a multi-faceted one, and considering its validity goes beyond the scope of the residents’ registry” (Funk-Schlesinger v. Minister of Interior [1], at p. 252)’ (ibid. [8], at pp. 93, 94).

In this vein Justice M. Cheshin decided in one case that:

‘It is the duty of the registry official to register in the population register information that is given to him and that is supported by a document (such as a marriage), without him being able to examine the validity of the legal validity of that information (such as whether the marriage is valid or not: see Funk-Schlesinger v. Minister of Interior [1]; Shalit v. Minister of Interior [6])’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [9], at p. 387).

Justice J. Türkel referred to this approach in another case, where he said:

‘Registration of the respondents as the children of the legators in their identity card when the family immigrated to Israel has no significance with regard to recognizing the respondents as the adopted children of the legators (on the significance of registration in an identity card and in other official documents under the Population Registry Law, 5725-1965, see the remarks of the honourable Justice Sussman in Funk-Schlesinger v. Minister of Interior [1]; the remarks of the honourable Justice H. Cohn in Shalit v. Minister of Interior [6] and the remarks of Vice-President A. Barak in Pesaro (Goldstein) v. Minister of Interior [4])’ (CA 8036/96 Yehud v. Yehud [10], at p. 872).

12. Funk-Schlesinger v. Minister of Interior [1] was reconsidered in HCJ 1779/99 Brenner-Kaddish v. Minister of Interior [11]. In that case an adoption order was made in the State of California, according to which the son of one member of a lesbian couple was adopted by the other member. The couple returned to Israel. They applied to the registration official to record the adoption in the registry. The registration official refused. His position was that from a biological viewpoint the existence of two parents of the same sex is not possible, and therefore the incorrectness of the registration is manifest. The petition was granted. Justice D. Dorner said that:

‘In consistent case law over many years beginning with Funk-Schlesinger v. Minister of Interior [1], it has been held that a registration official is not competent to determine the validity of the registration that he is required to make, but that he is liable to register what the citizen tells him, unless it is a case of “a manifestly incorrect registration, which is not subject to any reasonable doubt” (ibid., at p. 243)… The registration before us does not change the biological position, merely the legal position’ (Brenner-Kaddish v. Minister of Interior [11], at pp. 374, 375).

Justice D. Beinisch agreed with this approach. She said that the position of the Minister of the Interior relied on the ‘exception’ recognized in Funk-Schlesinger v. Minister of Interior [1] with regard to the power of the registration official not to register something manifestly incorrect, which is not subject to any reasonable doubt. Justice D. Beinisch said that this exception did not apply in the case before her:

‘In the case before us, the respondent cannot point to any manifest “incorrectness” as aforesaid; the requested registration item is not a biological fact but a matter involving a complex legal question… the respondent’s contention… that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent… In the absence of any contention, which is not subject to reasonable doubt, with regard to the validity of the foreign adoption order or with regard to the correctness of the details of the applicants… the registration should register the details of the petitioners on the basis of the adoption order’ (ibid. [11], at pp. 376, 377).

The minority opinion of Justice A. Zu’bi was also based on the decision in Funk-Schlesinger v. Minister of Interior [1]. His conclusion that the adoption should not be registered was based on two reasons: first, Funk-Schlesinger v. Minister of Interior [1] was based on the assumption that a registration of marriage had no probative force, and its whole purpose was to collect statistical material. With regard to adoption, the registration concerns the item of parents’ names (para. (2)). This registration constitutes prima facie evidence of its correctness. Second, in order to give validity to the adoption order, it should be ‘recognized’ in accordance with the provisions of the Enforcement of Foreign Judgements Law, 5718-1958. Without this recognition, it should be ignored. In this way it is different from a marriage certificate, where registration does not necessitate ‘recognizing’ it. It should be noted that a further hearing is taking place with regard to Brenner-Kaddish v. Minister of Interior [11], and this has not yet been decided.

13. The next link in the chain of judgments based on Funk-Schlesinger v. Minister of Interior [1] was our judgment in HCJ 5070/95 Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]. The petitioners in that case underwent Reform or Conservative conversions (in Israel or in a Jewish community outside Israel). They sought to be registered in the population register as Jews in the ethnicity and religion items. The registration official refused the application. We decided in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] that the registration official acted unlawfully. Our approach was based on Funk-Schlesinger v. Minister of Interior [1]. The following is what I wrote (with the agreement of Vice-President S. Levin and Justices T. Or, E. Mazza, M. Cheshin, T. Strasberg-Cohen, D. Dorner, E. Rivlin, but with Justices I. Englard and J. Türkel dissenting):

‘The rule in Funk-Schlesinger v. Minister of Interior [1], which was made approximately forty years ago, continues to remain valid. In so far as the registration of the items of ethnicity and religion are concerned, it states that the function of the registration official is “… a function of collecting statistical material for the purpose of maintaining a register of residents…” (ibid. [1], at p. 244). The registration official has no judicial power and he may not decide an “open” question of law. When he is asked to make an initial registration by virtue of a statement of the applicant, he must grant the request, even if its legal validity is uncertain, and there are different views on the subject, provided that the incorrectness of the statement is not manifest. When the registration official is asked to make a change in a registration by virtue of the applicant’s statement, the application should be accompanied by a public certificate testifying to the change’ (ibid. [1], at p. 744).

This approach was repeated in HCJ 6539/03 Goldman v. State of Israel, Ministry of Interior [13]. Justice M. Cheshin wrote:

‘The Population Registry Law is merely a statistical records law, and its purpose is merely to maintain a database of information concerning the residents of Israel, and since the law is such, it should not be given the task of deciding questions that are beyond its capabilities… The value of the registration in the register — in principle — is the value of a merely statistical-technical registration, and that is indeed its value’ (ibid. [13], at pp. 393, 395).

14. Criticism has been levelled against Funk-Schlesinger v. Minister of Interior [1] (see M. Shava, ‘On the Question of the Validity and Registration of Mixed Marriages before a Foreign Consul in Israel,’ 42 HaPraklit (1995) 188). From its infancy, it was said that the statistical nature of the registration does not ‘exhaust the practical importance of the register’ (per Justice M. Landau in HCJ 80/63 Gurfinkel v. Minister of Interior [14], at p. 2071). Justice Tz. Tal emphasized that ‘the approach of a merely “statistical” register ignores the reality’ (Pesaro (Goldstein) v. Minister of Interior [4], at p. 709). Justice J. Türkel added that ‘I fear that today it may imply a kind of naivety or turning a blind eye to reality’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 764). Justice I. Englard said that:

‘… if we are merely dealing with insignificant statistics, why do there continue to be so many struggles with regard to the registration? … The truth is, of course, that the symbolic here is the essence, and without a certain outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 757).

Indeed, in Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] the state asked us to depart from the rule in Funk-Schlesinger v. Minister of Interior [1]. This request was denied, and we said:

‘The rule in Funk-Schlesinger v. Minister of Interior [1] has laid down roots in case-law, and considerations of great weight are required for us to depart from it. No such considerations have been brought before us. The argument concerning the reliance of state authorities is not at all convincing. State authorities are presumed to act according to the law. Within this framework they should be aware of the limited nature of the registration in the register… Like public authorities — and against the background of awareness of the limited role of the register — the public at large also understands that the registration of the items of religion, ethnicity and personal status in the register “… was only intended for statistical and similar purposes, and it does not give the person registered any special rights” (Justice S.Z. Cheshin in Abu-Ras v. IDF Galilee Commander [5], at p. 1478). Indeed, the registration in the register is “neutral” with regard to the various struggles that have taken place since the founding of the state with regard to matters of ethnicity, religion and marriage, and it ought to remain so. The substantive disagreements on these matters should be conducted by examining the substantive rights, and these lie outside the scope of the register’ (ibid. [12], at p. 745).

Indeed, the rule in Funk-Schlesinger v. Minister of Interior [1] is a proper and good one. It is not proper that without an express provision in the Population Registry Law the registration official — that is to say, the Minister of the Interior — should be given the power to decide fundamental questions of Israeli society. It is not proper that whenever there is a change in the leadership of the Ministry of the Interior there should be a change in policy on key questions of state. These questions ought to be decided by the people through its representatives in the Knesset. As long as the Knesset has not spoken it is proper, in so far as possible, that these ethical decisions should not be made within the framework of the registry. The rule in Funk-Schlesinger v. Minister of Interior [1] gives expression to this approach. Indeed, it is precisely someone who wishes to distance himself from any decision concerning symbols that should support the continuation of the rule in Funk-Schlesinger v. Minister of Interior [1] and its development. This was discussed by Justice M. Cheshin in Goldman v. State of Israel, Ministry of Interior [13]:

‘The Population Registry Law is, in essence, a technical law, and if we place upon its narrow shoulders a heavy burden of fundamental questions it will be unable to support them. The Population Registry Law was not intended in principle to incorporate questions of nationality and ethnicity, of religion and state, of conversion according to Jewish law or not according to Jewish law, of who is a Jew and who is not a Jew. Decisions on these questions and questions similar to them are historic decisions, and as such it is strange — and even absurd — to argue that the registry official should decide them. Decisions of this kind were not delegated to the registry official, nor even to the court when sitting in review of the decisions of the official’ (ibid. [13], at p. 395).

Naturally, Funk-Schlesinger v. Minister of Interior [1] does not prevent a judicial decision on questions of religion, ethnicity and marriage. Notwithstanding, it places the judicial decision in the proper light. Instead of a tangential decision in the technical field of the registry, a decision on the merits of the matter should be made in the proper context. Thus, for example, the question of the validity of non-orthodox conversion should not be made in the artificial context of the powers of the registry official (see Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12]), but in the substantive context of the Law of Return (see HCJ 2597/99 Rodriguez-Tushbeim v. Minister of Interior [15]). A change in the procedural context places the difficult questions in their proper light, by presenting the complete picture of the values, principles and rights that should be balanced.

15. In the petitions before us we have not been asked by the state to reconsider Funk-Schlesinger v. Minister of Interior [1]. All the parties have relied on Funk-Schlesinger v. Minister of Interior [1]. The petitioners said repeatedly that they are not asking for a decision on the question whether their marriage in Canada is valid in Israel. The state also does not ask us to decide the question of the validity of the marriage. The scope of the dispute between the parties concerns the scope of the rule in Funk-Schlesinger v. Minister of Interior [1]. The petitioners argue that the five cases before us fall within the scope of that rule. The registration official should register the change in the register on the basis of the marriage certificate that they presented to him, without examining the validity of the marriage in Israel. Counsel for the state argues before us that a marriage between persons of the same sex constitutes a legal framework of marriage that is not recognized in Israel, and therefore the rule in Funk-Schlesinger v. Minister of Interior [1] does not apply. Counsel for the state writes:

‘A distinction should be made between the registration in the population register of a marriage that took place outside Israel but satisfies the basic legal framework of marriage that exists in Israel, whatever its validity — whose registration in the population register is governed by the rule in Funk-Schlesinger v. Minister of Interior [1] — and the registration of a marriage that is inconsistent with the existing legal framework in Israel’ (para. 35 of the supplementary arguments of the respondent that are dated 23 March 2006).

Who is right? Let us now turn to examine this question.

F. The rule in Funk-Schlesinger v. Minister of Interior and the ‘legal framework’ argument

16. All the parties agree that the marriage certificates that were submitted to the registration official are lawful under Canadian law; that a marriage ceremony took place in Canada; that the details appearing in the marriage certificate are correct. On this basis we are prima facie drawn to the conclusion that the registration official should register the couple as married. This is the clear language of Justice Y. Sussman in Funk-Schlesinger v. Minister of Interior [1]:

‘When he registers the family status of a resident, it is not part of the duties of the registration official to consider the validity of the marriage… it is sufficient for the official in carrying out his duty and registering the family status that evidence is brought before him that the resident underwent a marriage ceremony’ (ibid. [1], at p. 252).

The state argues that this rule applies to a family status that falls within the scope of a legal framework that is recognized in Israeli law. This framework reflects the outlook of the legislature with regard to the variety of possible family statuses. For our purposes, these frameworks are ‘unmarried, married, divorced and widowed’ (s. 2(a)(7) of the Population Registry Law). The word ‘married’ in this context implies a marriage that is consistent with the basic legal framework in Israeli law concerning ‘marriage.’ This framework only relates to a marriage between a man and a woman. In this regard, the state distinguishes between a ‘social framework,’ a ‘social framework with a certain legal significance’ and a ‘legal framework.’ The social framework reflects family institutions or inter-personal institutions that are recognized by society. Sometimes there are various social ramifications that do not amount to a legal personal status that can be registered. Then it constitutes a ‘social framework with a certain legal significance.’ This framework is different from a legal framework in that it does not constitute a legal status, as compared with the basic legal framework of a legal status. In the state’s opinion, the petitioners’ marriage falls within the scope of a ‘social framework with a certain legal status.’ It does not fall within the scope of a ‘legal framework.’ Is the state correct?

17. I do not accept the state’s position. It is trying to reintroduce the question of the validity of personal status into decisions concerning registration in the register and the judicial review thereof. With a major effort over more than forty years the decision concerning the validity of the personal status has been excluded from the registration proceedings and the judicial review thereof. Along come the words ‘legal framework’ and they try to bring the issue of status back onto centre stage of the proceedings concerning registration in the register. We cannot agree with this. All the arguments that were raised over the years that support Funk-Schlesinger v. Minister of Interior [1] rule out the idea of the legal framework raised by the respondent. The population registry was not intended to decide the question of the existence or absence of legal frameworks; the registration official is not competent to determine whether there is a recognized ‘legal framework’ or merely a ‘social framework with a certain legal significance’; the register provides statistical data with regard to personal events (such as birth, death, marriage and divorce), not legal constructions that have passed the discerning scrutiny of the registration official. It is not right that the legal struggle concerning personal status should take place in the field of registration.

18. This expression of a ‘recognized legal framework’ is a new one. It did not appear in the state’s arguments in the past. In my opinion, it cannot make any contribution to the matter before us. It raises difficult questions with regard to the level of abstraction of the word ‘framework.’ Does a ‘marriage’ in Canada, which is a valid marriage under Canadian law, not fall within the scope of a recognized ‘legal framework’? Does an adoption of a child of a biological mother by her lesbian partner constitute a ‘recognized legal framework’? Adoption is certainly a recognized legal framework. Does the lesbian character of the joint lifestyle of the couple make this framework of adoption unrecognized? What is the criterion according to which an answer to this question is given? In any case, in Brenner-Kaddish v. Minister of Interior [11] it was decided to register this adoption. Was the registration official in that case — which was before we gave our judgment in CA 10280/01 Yaros-Hakak v. Attorney-General [16] — ordered to register a ‘legal framework that is not recognized’ or a ‘social framework with a limited legal significance’? What is the difference between the registration of a lesbian adoption and the registration of a homosexual marriage?

19. The state recognizes the fact that the joint lifestyle of homosexual couples constitutes a ‘social framework with a certain legal significance.’ Counsel for the state writes:

‘The State of Israel recognizes single-sex couples in many contexts. This recognition is given with regard to socio-economic issues, and also in the context of regulating lawful residence in Israel’ (para. 19 of the preliminary response of 13 November 2005).

In this the state is correct. Indeed, in a whole host of judgments it has been held that homosexual couples have rights under specific laws and arrangements. The following is a partial list: (1) rights under collective agreements that are limited to couples (HCJ 721/94 El-Al Israel Airlines Ltd v. Danielowitz [17]); (2) pension rights, such as surviving relatives’ rights (NLC 54/3-1712 Even v. Tel-Aviv University [36]); LabC (TA) 3816/01 Levy v. Mivtahim [37]); (3) pension rights under the Permanent Service in the Israel Defence Forces (Pensions) Law [Consolidated Version], 5745-1985 (MA (TA) 369/94 Steiner v. IDF [27]); (4) memorial rights (HCJ 5398/96 Steiner v. Minister of Defence [18]); (5) recognition as a ‘spouse’ for the purposes of the Prevention of Family Violence Law, 5751-1991 (FC (TA) 48260/01 A v. B [31]); (6) recognition as a ‘spouse’ for the purposes of the Family Court Law, 5755-1995 (FC (TA) 3140/03 Re R.A. and L.M.P. [32]); (7) recognition of a cohabitee for the purposes of rights under the Inheritance Law, 5725-1965 (CA (Naz) 3245/03 A.M. v. Custodian-General [28]); (8) surviving relatives’ pension under the National Insurance Law [Consolidated Version], 5755-1995 (NI (TA) 3536/04 Raz v. National Insurance Institute [38]). Thus we see that the ‘social framework’ of the homosexual partner has a ‘certain legal significance.’ Why does this significance not amount to a ‘legal framework’? The state’s answer is that these social significances are not ‘legal frameworks’ since they do not amount to a personal status. It follows that the concept of status underlies the state’s distinction. It rejects the ‘legal framework’ of homosexual marriage because it lacks status. So in the state’s opinion, the question of registration derives from the question of the ‘legal framework,’ and the question of the ‘legal framework’ derives from the question of status. According to the state’s approach, the registration official should examine the question of status before he determines the existence or absence of the framework. This approach conflicts directly with the rule in Funk-Schlesinger v. Minister of Interior [1], according to which the question of status is not a matter for the registry; a decision on status is not a matter for the registration official; the judicial review of the decision of the registration official should not consider questions of status. The registration official should not and cannot examine whether a given situation goes beyond a ‘social framework with a certain legal significance’ and amounts to a ‘legal framework.’ The court in exercising judicial review of a decision of the registration official should not consider these questions.

20. We asked ourselves whether it cannot be said that what underlies the concept of ‘legal framework’ is the desire of the state to prevent registration of a marriage that takes place outside Israel and is contrary to public policy in Israel. From the state’s written and oral reply it can be seen that it does not raise any arguments of public policy at all. In her written arguments, counsel for the state said:

‘The position with regard to non-registration does not involve adopting an ethical or public position on the question whether it is proper to recognize a marriage between persons of the same sex, but a professional-legal position with regard to the existing legal position’ (para. 94 of the respondent’s preliminary response of 13 November 2005).

In reply to our questions during oral argument, counsel for the state said that she is not raising any arguments concerning ‘public policy.’

21. In her arguments, counsel for the state said that according to the rule in Funk-Schlesinger v. Minister of Interior [1], the registration official should not register something that is manifestly incorrect and is not subject to any reasonable doubt. According to her, the registration of a homosexual couple as married is a registration that is tainted, from a legal viewpoint, with manifest incorrectness, since Israeli law does not recognize this marriage. This argument is fundamentally unsound, for two reasons: first, the incorrectness to which the rule in Funk-Schlesinger v. Minister of Interior [1] refers is factual incorrectness, whereas the state is arguing with regard to legal incorrectness (see Brenner-Kaddish v. Minister of Interior [11], at pp. 375, 377). Justice D. Dorner rightly pointed out in that case (which concerned the registration of an adoption involving a lesbian relationship) that ‘the registration before us does not reflect the biological position, only the legal position’ (ibid. [11], at p. 371). Justice D. Beinisch also said that:

‘The respondent’s contention in this case that the incorrectness of the requested registration is “manifest” because there is no possibility of recognizing two mothers for the same child is merely a different form of the argument that we should not recognize an adoption based on a homosexual relationship between the biological parent and the adoptive parent’ (ibid. [11], at p. 377).

Second, concerning the existence of a ‘manifest mistake,’ the question is not whether homosexual marriage is recognized in Israel. The question is whether Israeli law will recognize a homosexual marriage that is valid where it was contracted. The answer to this question is not at all simple. It requires us to make precise and detailed examinations. In any case, the decision on this issue — according to Funk-Schlesinger v. Minister of Interior [1] — will not be made in registration proceedings and in the judicial review thereof.

22. The state’s arguments are based on the contention that there is no social consensus in Israel on the question of the recognition of marriage between persons of the same sex; that the court should not decide these questions; that recognition of a status of same-sex marriages is an ethical question, which ought to be decided by the legislature. I agree with these arguments, to the extent that they concern the possibility that the court should decide the question whether same-sex couples may marry in civil marriages in Israel itself. An expression of that can be found in several judgments (see CA 373/72 Tapper v. State of Israel [19]; HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [20]; HCJ 4058/95 Ben-Menasheh v. Minister of Religious Affairs [21]; Yaros-Hakak v. Attorney-General [16]). In Ben-Menasheh v. Minister of Religious Affairs [21], the petitioner asked us to order the Minister of Religious Affairs to appoint an official who would conduct civil marriages in special cases. The petition was denied. This is what I wrote in my opinion:

‘The question of conducting civil marriages between couples who do not have a religious community — just like the conducting of civil marriages for couples who belong to different religious communities — is a difficult and complex question. There is no national consensus on this. It concerns the recognition of status, which operates vis-à-vis everyone. In this situation, it appears prima facie that the proper institution for dealing with and regulating the matter is the Knesset and not the court’ (ibid. [21], at p. 878).

Indeed, I accept that the question of conducting civil marriages in Israel, including marriages between persons of the same sex, should be determined first and foremost by the legislature. This is not the question before us. We are not dealing at all with marriage in Israel. Moreover, there is no application before us to recognize a marriage between two persons of the same sex that took place outside Israel. When this question arises, it will be examined in accordance with out accepted rules of private international law. All that is before us, and that Funk-Schlesinger v. Minister of Interior [1] seeks to resolve, is the question of registration — registration, not recognition — of a marriage between persons of the same sex that took place outside Israel. The state’s approach that we should deny the petitions because the marriage that the petitioners contracted is not a ‘legal framework’ recognized in Israel is an approach that seeks to adopt a position on the question of status; it is an approach that asks the court to rule on a social question that is the subject of dispute. The importance of the rule in Funk-Schlesinger v. Minister of Interior [1] is, inter alia, that it does not result in the court making a decision on matters of status. It is precisely the approach of the state with regard to a recognized ‘legal framework’ that makes it necessary to make decisions that the state itself believes ought to be left to the legislature.

23. Before we conclude, let us reemphasize what it is that we are deciding today, and what it is that we are not deciding today. We are deciding that within the context of the status of the population registry as a recorder of statistics, and in view of the role of the registration official as a collector of statistical material for the purpose of managing the registry, the registration official should register in the population register what is implied by the public certificate that is presented to him by the petitioners, according to which the petitioners are married. We are not deciding that marriage between persons of the same sex is recognized in Israel; we are not recognizing a new status of such marriages; we are not adopting any position with regard to recognition in Israel of marriages between persons of the same sex that take place outside Israel (whether between Israeli residents or between persons who are not Israeli residents). The answer to these questions, to which we are giving no answer today, is difficult and complex (see Y. Yonay, ‘The Law on Homosexual Orientation in Israel: Between History and Sociology,’ 4 Mishpat uMimshal 531 (1998); A. Harel, ‘The Courts and Homosexuality — Respect or Tolerance?’ 4 Mishpat uMimshal 785 (1998); M. Tamir (Yitzhaki), ‘The Right of Homosexuals and Lesbians to Equality,’ 45 HaPrakit 94 (2000); A. Harel, ‘The Rise and Fall of the Homosexual Legal Revolution,’ 7 HaMishpat 195 (2002); Y. Marin, ‘Marriage between Same-Sex Couples and the Failure of Alternatives to Legal Regulation of Single-Sex Couples,’ 7 HaMishpat 253 (2002); Y. Biton, ‘The Effect of the Basic Law: Human Dignity and Liberty on the Status of Single-Sex Couples,’ 2 Kiryat HaMishpat 401 (2002); see also E. Heinze, Sexual Orientation: A Human Right (1995); R. Wintemute, Sexual Orientation and Human Rights (1995); R. Wintemute and M. Andenas (eds.), Legal Recognition of Same-Sex Partnerships (2001); D.R. Pinello, Gay Rights and American Law (2003); E. Gerstmann, Same-Sex Marriage and the Constitution (2004)). It is to be hoped that the Knesset can direct its attention to these, or some of them.

The result is that we are making the order nisi absolute. The respondent shall register the petitioners as married in item 2(a)(7) of the population register.

 

 

President D. Beinisch

I agree with the opinion of President Emeritus Barak and with his reasoning. Many years of legal tradition have created and established in our legal system the distinction between the population registry, its function and the limits of its power and the very difficult issues of determining personal status. The fact that, from the viewpoint of the petitioners, the register and the declaration included in it is of importance does not affect the significant distinction that has been created in the case law rulings issuing from this court between the question of the registry and the question of personal status. This approach of our case law created a framework that left undecided those questions that are most complex from a legal viewpoint, and that left the question of social and ethical recognition to the Knesset and the legislature. All of this was discussed and emphasized by my colleague the president in his opinion, and I therefore agree with his position.

 

 

Vice-President E. Rivlin

I agree.

 

 

Justice A. Procaccia

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

 

 

Justice M. Naor

I agree.

 

 

Justice E. Hayut

I agree.

 

 

Justice E. Rubinstein

Introduction

1.    I fear that my opinion differs from that of my colleagues in this case. Forty-three years ago, this court decided by a majority the case of Funk-Schlesinger v. Minister of Interior [1], which held that an official of the population registry should register a couple as married if the couple come before him with prima facie evidence that proves that a marriage ceremony was conducted in another country, and the official should not examine the validity of the marriage. The judgment concerned a Jew and a Christian who were married in a civil marriage in Cyprus. Later this case law ruling became an established principle in the case law of this court in matters subject to dispute, and it was used in Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], Pesaro (Goldstein) v. Minister of Interior [4] and Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12] with regard to the registration of ethnicity, religion and conversion, and in Brenner-Kaddish v. Minister of Interior [11] with regard to lesbian adoption (it is not superfluous to point out that in the last case there is a further hearing — HCJFH 4252/00 Minister of Interior v. Kaddish). Now my colleague the president, and with him most of the panel, also wish to apply this ruling to a marriage between persons of the same sex. My opinion is different. My opinion is that we are really not dealing in this case with a mere statistical registration which was the original nature of the register, a definition that long ago became obsolete, but with a social-public symbol, and that is the true purpose of the petitioners. This is because there are now no economic or ‘practical’ issues that led them to petition the court. I therefore have doubts as to the distinction between registration and recognition in this context that my colleagues make. In a nutshell, my opinion on the issue raised in the petition is that the question of marriage between persons of the same sex — which is a relatively new matter in public debate, certainly from a historical viewpoint, and is not recognized in the vast majority of countries of the world, and which by its nature raises difficulties in various contexts in view of the attitude of parts of the population to it — lies within the jurisdiction of the legislature and not within the creative interpretation of the court.

2.    My colleague the president ‘sanctifies’ the rule in Funk-Schlesinger v. Minister of Interior [1], since he believes that its usefulness increases and becomes more widespread over the years, since it allows — in his words — ‘social quiet’ (along the lines of ‘industrial quiet’) in sensitive areas.

3.    The question in my opinion concerns the scope and limits of the rule in Funk-Schlesinger v. Minister of Interior [1]. I believe that its limits have already been stretched too far, and there is no room to extend them further. The purpose that this rule initially served, when it sought to resolve the registration of civil marriage that exists in most countries but was not consistent with the marriage system in Israel, is different from its continuing expansion into areas that do not fall within this framework. Specifically, in the present case, we are speaking of a matter that is the subject of dispute both all over the world and in Israel. The ordinary person does not distinguish between registration and the recognition of status; were we to go out onto the street and ask people, I believe that no one would question the fact that they are one and the same. In such circumstances, this court should ask the legislature to have its say. This is my approach in a nutshell. I shall now clarify it in greater detail.

On the ruling in Funk-Schlesinger v. Minister of Interior

4.    Mr Schlesinger, a Jew, and Miss Funk, a non-Jew, were married in a civil marriage in Cyprus. When they came to Israel, they applied to be registered as married. The registry official refused and they petitioned the court. The following are the remarks of Justice Sussman, who wrote the majority opinion:

‘It is clear and free of doubt that the function of the registration official, under the aforesaid ordinance [the Residents’ Registry Ordinance, 5709-1949, which was replaced by the Population Registry Law, 5715-1965] is merely a function of collecting statistical material for the purpose of managing the register of residents, and he has not been given any judicial power’ (at p. 244).

These remarks of Justice Sussman rely inter alia on the opinion of the Attorney-General (of 10 March 1958) in which it was stated that ‘the civil administration authorities are neither authorized nor capable, and they therefore are also not entitled, to make rulings and to decide issues of religious prohibitions’ (p. 246; emphasis in the original). Justice Sussman also said that the ordinance ‘… did not give registration in the residents’ registry the force of evidence or proof for any purpose. The purpose of the ordinance is… to collect statistical material. This material may be correct and it may be incorrect, and no one guarantees its correctness…’ (ibid. [1], at p. 249), and he gave examples to show that the registry has no probative value.

5.    The court, in the majority opinion, did not want to enter the minefield of Jewish religious law. Therefore it held fast to the rule in CA 191/51 Skornik v. Skornik [22], by saying that:

‘The State Attorney did not argue before us that the marriage should be void because it was celebrated in a civil ceremony; there was no basis for this contention because this court has already held that the form of the marriage is governed by the law in the place where the ceremony took place (Skornik v. Skornik [22]) and in the absence of any evidence to the contrary, a ceremony that was celebrated in a foreign country is presumed to have been celebrated according to law’ (ibid. [1], at p. 252).

Justice Sussman went on to say:

‘The marriage will be declared invalid… if an Israeli judge, in giving expression to the feelings of the Israeli public, will be obliged to say that the validity of such a marriage is inconsistent with our lifestyle… Something that disqualifies a marriage under religious law will be a very weighty consideration, but it does not need to be the only consideration. The Israeli public is today divided into two camps. One camp that observes the religious precepts or most of them is confronted by another camp that emphasizes the separation between a state governed by civil law and a state governed by Jewish religious law. The outlooks of the members of the two camps are completely opposed to one another. Public order in Israel does not mean that the judge will force the outlook of one camp on the other camp. Life requires an attitude of tolerance to others and respect for different outlooks, and therefore the criterion that guides the judge can only be a balance of all the outlooks prevalent among the public’ (ibid. [1], at p. 256; emphasis supplied).

Therefore the majority opinion reached the conclusion that the marriage ceremony is decisive for the purpose of registering the status, that examining the validity of the marriage is not the concern of the registration official and that prima facie evidence of the ceremony is sufficient in order to oblige him to register the ceremony. It should be noted that Justices Witkon and Berinson left unanswered the question of the recognition of the validity of civil marriage (p. 258), whereas Justice Sussman thought that it should not be held that civil marriage is definitely invalid. We see, however, that the court based its judgment on the doubt concerning the validity of the marriage under Israeli law (something that has no parallel in the case before us), and emphasized the need for a criterion that is ‘a balance of all the outlooks prevalent among the public.’ I cannot refrain from saying with regard to the remarks of Justice Sussman that even from the perspective of that time I doubt whether the polarized divergence that he described between two supposedly opposing camps, the supporters of civil law against the supporters of Jewish religious law, reflected the complex Israeli reality, which is multi-faceted. I will merely say that even among religiously observant Jews there were (and are) many whose attachment to Jewish religious law does not detract at all from their attitude to the state as a state governed by civil law, and who see a conceptual harmony in the combination of the two.

6.    Justice Silberg, in the minority, was of the opinion that the marriage under discussion, between a Jew and a Christian, had no validity under the laws of the state because Jewish law was the personal law of the man (Schlesinger); consequently, if the registration official —

‘… is persuaded that the man is not married, he is prohibited from registering something that, in his opinion, is absolutely false. This is because the registration questionnaire asks about the legal family status of the person being registered, and not about the vague fact of whether he underwent a marriage ceremony or not’ (p. 239; emphasis in the original; see also Dr Silberg’s article of 1941, ‘A Modern Question of the Law of Marriage’ (in his book Coming As One, at p. 225), where he says, following the case law of Mandatory Palestine, that ‘a mixed marriage of a Jew who is a national of Palestine is void…’ (at p. 230)).

Justice Silberg, who did not ignore human and practical needs, also made a practical suggestion for cases such as Funk-Schlesinger, which in his opinion could help in ‘removing the painful aspect of the vast majority of difficult cases’ (at p. 241). This was to add in the law after the word ‘married’ the words ‘in a civil ceremony’ or ‘in a religious ceremony.’ This requires legislation, and the legislature did not accept the recommendation. We have therefore come to where we now stand.

7.    There will be some who ask — even though for practical purposes the question is no longer relevant ­— whether ab initio there was a need for the rule in Funk-Schlesinger v. Minister of Interior [1], and whether Justice Silberg was not correct in his approach that implied that if there was a basis for bridging the gap between a marriage that is not recognized in Israel and the registration of Israelis who married abroad in such marriages, this was a task for the legislature. But it can also be argued in support of the approach of Justice Sussman, in the majority opinion, that it is a fact that for forty-three years now marriage under the personal law, which is recognized in Israel, and the registration of civil marriage have coexisted, and the judgment perhaps prevented public battles that would not have contributed to the welfare of the public. Even those who criticize the rule in Funk-Schlesinger v. Minister of Interior [1] should not minimize the importance of this factor in that context and similar contexts. Moreover, the legislature is not quick to provide solutions, even though there is considerable distress and there are significant problems with regard to issues of marriage, and we will merely mention those persons who are Israeli citizens by virtue of the right of return but are not Jewish, for whom the law does not provide a proper framework; as the number of non-Jews according to Jewish religious law who came to Israel under the Law of Return (the children and grandchildren of Jews and their spouses) increased — especially in recent years, although these problems began to arise already in the first wave of immigration from the former Soviet Union — the question of their marriage possibilities arose. This question is not at all insignificant, and this is why there have been initiatives such as the draft Civil Union Law (see the article of S. Lifshitz, ‘Registration of Relationships,’ in the Menasheh Shava Book (A. Barak, D. Friedman eds., 2006) 361, at p. 419). The legislature has not yet addressed these issues, and the question of how to resolve existing problems in the face of the delicate fabric of religious marriage laws. But are there no limits to the rule in Funk-Schlesinger v. Minister of Interior [1]? We are dealing with a marriage between persons of the same sex, in a legal framework that no one disputes did not exist in the past, and which was created recently as a part of radical cultural changes in certain sectors of society. Is it not the role of the legislature to address this? In my opinion the answer is that this is its function; and if indeed the legislature decides upon a certain outlook, or even if it does not adopt any position at all, the meaning will be that this is what it wanted.

8.    In concluding our analysis of the rule in Funk-Schlesinger v. Minister of Interior [1], I thought it would be appropriate to cite some of the remarks of Justice Türkel in Yaros-Hakak v. Attorney-General [16]:

‘There are cases where, after a legal ruling is handed down, it goes beyond its original scope and spreads to areas that the persons who made it never imagined it would reach. In my opinion, a blatant example of such a situation is the ruling that was made in HCJ 143/62 Funk-Schlesinger v. Minister of Interior…’ (ibid [16], at p. 142 {95}).

See also the remarks of Prof. Shava following the decision in Brenner-Kaddish v. Minister of Interior [11]:

‘The Supreme Court should reconsider the rule in Funk-Schlesinger v. Minister of Interior especially after its extension in the Goldstein case and its implementation out of all proportion… in HCJ 1779/99 (Brenner-Kaddish v. Minister of Interior)’ (M. Shava, ‘Registration and Recognition of a Foreign Adoption Order within the Framework of a Lesbian Family,’ 1 Kiryat HaMishpat 103 (2001), at p. 132).

On the registry

9.    Whether true or not, Funk-Schlesinger v. Minister of Interior [1] has prima facie established in the ‘legal’ consciousness the idea that the population registry is merely a statistical tool. I say once again that this is not the case; the population registry is the ‘entry gate’ into the Israeli legal reality. When confronted by a couple who present an Israeli certificate that declares them to be married, an ordinary person is incapable of making fine distinctions as to whether it is merely a case of registration or a recognition of status. But this is not only true of the ordinary man. This was discussed by Justice Landau a short time after the judgment in Funk-Schlesinger v. Minister of Interior [1] was given:

‘The statement… that “the purpose of the ordinance… is to collect statistical material” is certainly true in itself, but it does not exhaust the practical importance of the registry… Therefore the value of the registration should not be denigrated entirely as if it were merely the addition of another digit to the total statistical account of the registry’ (Gurfinkel v. Minister of Interior [14], at p. 2071; see also Pesaro (Goldstein) v. Minister of Interior [4], at pp. 711-712).

Several years later Justice Landau reiterated this approach:

‘And in truth, how is it possible to denigrate the value of the registration, from a political and social viewpoint, which is no less important than the narrow technical viewpoint… and it is possible to ask: if all of this is a matter of no significance, why is the petitioner fighting in his petition with such stubborn persistence… Is it really true that “all the people are in error” in understanding the importance of the registry?’ (Shalit v. Minister of Interior [6], at p. 526).

This approach was shared by President Agranat:

‘I ought to emphasize that I am in agreement with my colleague Justice Landau when he says that such a registration, when it has been approved, will not merely have technical value, but also has value from a political-social viewpoint, something which is proved both by the great debate conducted by the members of the Knesset… and by the great interest caused by the trial before us among the public at large’ (ibid. [6], at p. 598).

President Agranat also warned about the manner in which what is today called merely technical and statistical is likely to be interpreted in the future: ‘There are grounds for concern that allowing the registration as aforesaid is likely to be interpreted, in the course of time, as a revolution that has ramifications… also on other walks of life’ (ibid. [6]). His remarks are most pertinent. The path outlined by these great jurists was followed later by Vice-President Elon:

‘Indeed, the registration of the ethnicity item as “Jewish” in the population registry does not constitute prima facie evidence for any matter of personal status… and since this is so, it is argued before us that it is of no consequence. But when the legislature decided to register the item of ethnicity… we ought not to denigrate its national-public importance, and we should regard it with the proper respect. Moreover, the petitions before us, and the extensive deliberations and arguments required with regard thereto, prove how important and fundamental is the decision in them to all of the litigants before us’ (Federation of Sefaradim Torah Guardians — SHAS Movement v. Director of Population Administration, Ministry of Interior [7], at pp. 736-737).

This was followed by Justice Tal, who disagreed in Pesaro (Goldstein) v. Minister of Interior [4] with the determination of Justice Sussman in Funk-Schlesinger v. Minister of Interior [1] and presented a long list of practical ramifications of the registration, but also considered the public significance:

‘The approach that registration is merely “statistical” ignores reality… Not only do the organs of state and its citizens rely on the registry, but even the legislature itself has given the registry a status far beyond that of a mere statistical registration…

The question is therefore why these “married persons” should be registered in the population registry… when these marriages, as we have seen, have no local legal validity…

There is also considerable public significance to registration as a Jew in the population registry, far beyond the “statistical” significance. The public does not make the fine distinction between registration for the sake of the registry and registration for the sake of the right of return…’ (Pesaro (Goldstein) v. Minister of Interior [4], at pp. 705-708).

For this reason, Justice Tal held that ‘I cannot agree with the easy solution of registration for registration’s sake’ (ibid.). Justice Englard also continued along this path, when he said bluntly that all the substantial elements inherent in registration constitute a symbol, and it was this — the symbolic nature of the registration — that was under consideration:

‘Indeed, if we are merely dealing with insignificant statistics, why do there continue to be so many battles with regard to the registration? Why are there so many judgments containing dozens of pages in which the justices are divided in their opinions? The truth is, of course, that the symbolic here is the essence, and without a given outlook on life there is no decision on the question of registration or statistics’ (Naamat, Working and Volunteer Women’s Movement v. Minister of Interior [12], at p. 756; emphasis supplied).

Thus we see that the registry is not merely statistical and that it has practical and social ramifications upon the opinions of the public, the authorities and the legislature. It would appear that in recent decades the registry in the legal context has been mainly a battlefield for a struggle over symbols. This was the focus of the petitions mentioned above, and it is also the focus of the petition before us. Should the de facto struggle over symbols be the work of the court? And is it proper that it should be done in a roundabout manner, within the framework of the population registry, by continually extending the rule in Funk-Schlesinger v. Minister of Interior [1]?

10. It might be asked in what way is the marriage of persons of the same sex different from a civil marriage that is also not recognized in Israel but is registered by virtue of the rule in Funk-Schlesinger v. Minister of Interior [1] and is almost unchallenged. The answer in my opinion is not difficult: civil marriage is, as we have said, a recognized institution in many countries, probably in the vast majority of them, and logic dictates that there is no alternative to registering it, even if we do not regard the registration official merely as a recorder of statistics. But this is not the case with same-sex marriages: when the official looks at these, he will immediately know that he is facing a new legal creation, which the state described in this case as a framework ‘that our ancestors did not imagine,’ and which has been recognized only in small minority of countries around the world — apparently in approximately six out of more than one hundred and ninety, which is approximately three per cent. Is this therefore the very area in which the court in Israel, with its special character, should march out in front of the legislature? Is this not a situation in which the reasonable official can argue that in his opinion there is a ‘manifestly incorrect registration, which is not subject to any reasonable doubt’ (Justice Sussman in Funk-Schlesinger v. Minister of Interior [1], at p. 243), and therefore it should be addressed and decided by the legislature? Moreover, is the registration sought in this petition ‘a balance of all the outlooks prevalent among the public’ of which Justice Sussman spoke?

On the petitioners and the court

11. I would like to make a clear distinction between this case and the petitioners’ human dignity, to which they are obviously entitled as human beings, like every other human being, and as a constitutional right under the Basic Law: Human Dignity and Liberty, according to which their private lifestyle is their own concern. As the petitioners and the state both said, during the last decade the mutual economic, social and personal rights of same-sex couples have been regulated in case law and the opinions of government authorities, and indeed my colleague the president listed the main points in this field, which speak for themselves. In this way the courts and the authorities have addressed the dignity and fair economic rights of same-sex couples.

12. This petition does not concern a comparison of the social and economic rights of same-sex couples with the rights of married couples. The thrust of the petition, in my opinion, is not the protection of the rights of the petitioners as citizens, as human beings, who are entitled to dignity and equality. As I have said, in recent years, little by little, in field after field, and not without some hesitation, this court has made decisions towards the equality of rights. Indeed, at the beginning of the 1980s, Justice Barak wrote: ‘It is obvious that if two men or two women come before the court and apply for approval of an agreement between them as a spouses’ property agreement, the court will not approve it, since the applicants are not spouses’ (CA 640/82 Cohen v. Attorney-General [23], at p. 689). Much has happened since then, and the proper recognition of the need to continue to realize the protection of social and economic rights has steadily increased within the framework of the values of equality and dignity.

13. I think that the path began with the judgment of this court in El-Al Israel Airlines Ltd v. Danielowitz [17] (which was, admittedly, decided by a majority), and it continued with the other cases that the president mentioned in his opinion; but the main work has been done in the trial courts that apply on a daily basis the principles determined by this court. As the president said, in 2004 the Family Courts overturned his determination in Cohen v. Attorney-General [23] and recognized two men as ‘spouses’ for the purposes of the Family Court Law (with regard to approving a property agreement, see Re R.A. and L.M.P. [32], per Justice Rish-Rothschild; FC (TA) 6960/03 K.Z. v. State of Israel, Attorney-General [33], per Justice Granit, with regard to protection orders under the Prevention of Family Violence Law, see FC (Hf) 32520/97 A v. B [140], per Justice Globinsky). Fairness requires that we point out that there is conflicting case law — for a detailed survey see FC (TA) 16610/04 A v. Attorney-General [35], per Justice Gefman; but it is clear that what in the past was obvious is today, at the very least, a matter of dispute). Meanwhile, government authorities have also recognized the requirements  of dignity and equality, and I believe that for years there has been a clear trend of granting the applications of same-sex couples (for a detailed survey, see para. 41 of the petition in HCJ 3046/05).

14. In reply to my question, counsel for the petitioners said that there are additional rights that have not been given to the petitioners, and he referred to s. 3 of the Evidence Ordinance [New Version], 5731-1971, which provides that ‘In a criminal trial, one spouse is not competent to testify against the other, nor may one spouse be compelled to testify against a person who is charged together with the other in one indictment.’ Without making any firm determinations on this issue, which is not currently before us, I will point out that the trial courts have given the section a purposive interpretation and extended the exemption also to recognized cohabitees who are not married (see CrimC (BS) 2190/01 State of Israel v. Moyal [30], per Justice Meged; see also CrimC (Hf) 477/02 State of Israel v. Bachrawi [29], per Vice-President Pizam and Justices Razi and Shiff), from which it may be understood that such a determination is not far off. The principle is that each issue should be examined on its merits to see whether any material right is violated, but the desire for registration has a wider purpose than ensuring specific rights; it involves the recognition of a symbol. I am therefore of the opinion that a distinction should and can be made between issues that have a direct ramification on the petitioners as citizens and as human beings that are entitled to dignity and equality and questions of a general public nature, with a symbolic significance that has no major practical ramifications. It should also be remembered that granting rights is mainly dependent upon a recognition of status — a matter of principle that we have not been asked to decide in this petition — rather than registration that does not even constitute prima facie evidence of the correctness of its content (s. 3 of the Population Registry Law).

15. Indeed, my colleagues, following their approach, hold fast to the decision in Funk-Schlesinger v. Minister of Interior [1]; but even according to the supporters of the decision in Funk-Schlesinger v. Minister of Interior [1], do we have before us a case like that in Funk-Schlesinger v. Minister of Interior [1], and is it possible to compare the registration of a civil marriage, which is an accepted arrangement in many countries, with a marriage between persons of the same sex that has been recognized in only a few countries? In my opinion, the answer is no. In my opinion, the state is correct in its position that the judicial system should not decide this matter, and its policy should not be seen, albeit unintentionally, as an attempt to predetermine the issue; the legislature should consider the matter and have its say.

On public confidence

16. In my opinion, this court should also consider the question of to what extent it is distancing itself from the social consensus, since both my colleague the president and the petitioners themselves do not dispute that in this case no such consensus exists and since it is very difficult to speak of ‘a balance of all the outlooks prevalent among the public.’ Public confidence is often mentioned as a fundamental prerequisite for the proper functioning of the court. This means that in matters that are the subject of a major disagreement among the public, the court should consider whether it is essential that it should enter into the dispute; sometimes the answer will be yes, but there are times when it is not. In my opinion, the difference when making the relevant balance lies in the question of the degree to which substantive human rights are really violated in this context of the registry. As I have said, there is no violation in this case beyond the symbolic; the socio-economic rights have been regulated in a reasonable manner, and what remains, if anything, is negligible, and can be regulated in the future, if necessary.

17. Public confidence, according to President Barak in the very important books that he has written, means ‘that the judge does not express his own views but the fundamental outlooks of society’ (The Judge in a Democracy, at p. 50, and see also his remarks in Yaros-Hakak v. Attorney-General [16], at p. 117), that ‘when the judge is obliged to balance values according to their weight, he should aim to do so in accordance with what seem to him the basic outlooks of society’ (Judicial Discretion (1987), at p. 188). Elsewhere the question, together with the answer, are clearly presented by Prof. Barak:

‘Should the judge exercise his discretion in such a way that the legal norm that results from exercising the discretion (whether by way of statutory or case law interpretation or in another way) should also enjoy a social consensus? …

My opinion is that the judge should take into account among his considerations the degree of social consensus for the social values and legal norms that result from them. The judge should aspire to find a solution that is consistent with the social consensus, or at least does not contradict it. In my opinion, it is desirable to avoid choosing an option that directly goes against the basic outlooks of the public… The reason for this approach lies in democratic considerations, considerations of the separation of powers and the need to ensure public confidence… An act that conflicts with the social consensus will, in the long term, harm public confidence in the court system and the ability of the courts to function property’ (Judicial Discretion, at pp. 289-290 (emphases supplied); these remarks were also cited in Ben-Menasheh v. Minister of Religious Affairs [21], at p. 880).

Admittedly, public confidence does not mean —

‘… popularity and following the trends prevailing among the public. Public confidence does not mean bowing to public opinion polls and surveys. Indeed, public confidence means a recognition that “a judge administers justice in accordance with the law” ’ (CrimFH 5567/00 Deri v. State of Israel [24]).

The court is not a slave to opinion polls and it is not guided by them, but it is proper to examine matters, not merely from the perspective of individual justice for the petitioners, but also from the perspective of ‘public justice,’ which means, in my opinion, seeking the broadest common denominator between the different parts of Israel’s divided society and avoiding its extremes. Indeed, it is difficult to please everyone; but even if public confidence does not mean pleasing the public, as President Barak said on one occasion, it is not based on extremes. No one denies that social conditions may change, and this has happened to a considerable degree with regard to homosexual relationships (see The Judge in a Democracy, at pp. 60-61; El-Al Israel Airlines Ltd v. Danielowitz [17], at pp. 781-782). The court has made its contribution to preventing discrimination in socio-economic contexts, as we have said, and these have been regulated to a large degree. Even if this is not completely to the petitioners’ satisfaction, it is very close to it; but is there no point at which the need to act within the framework of public confidence, within the framework of the broadest common denominator, will lead the court to say that it has reached the limits of its role, beyond which the legislature should have its say, on matters that are the subject of great controversy?

The role of the court

19. Indeed, the recognition of economic and social rights is a fundamental aspect of human decency that is not opposed by any real conflicting value. By contrast, the line that is crossed by a registration of marriage indicates to everyone a de facto recognition of status and a conflict of values that ought to be decided by the legislature. It might be argued that, once the economic and social rights have been recognized, it makes no difference whether they are also accompanied by registration. But to tell the truth, once we saw that the registration is not merely for statistical purposes as stated in Funk-Schlesinger v. Minister of Interior [1], even if registration of personal status does not constitute evidence of its correctness (s. 3 of the law), it has great symbolic significance. A people lives by its symbols, and we should reiterate that, were this not the case, both statute and custom in Israel would not attribute much significance to them; moreover, truth be told, I think that the petitioners would not be fighting the battle that they are fighting in this petition. Justice Zu’bi has already said in Brenner-Kaddish v. Minister of Interior [11] that ‘in practice the petitioners are not merely seeking registration, but they are looking for de facto recognition of the adoption.’ I think that Justice Cheshin expressed these judicial feelings well, in a minority opinion in a different context:

‘The real subject of the petition before us is not the introduction of road signs [in Arabic] by the respondent municipalities. The subject is — from start to finish — the cultural and ethnic rights of Arabs in Israel. These rights, to the best of my understanding, go beyond the recognized rights that accompany the status of the individual in Israel… It is the nature of things that the court is not the proper forum to consider this issue and decide it, since the political system — and first and foremost the Knesset — has not recognized the rights of the kind that the petitioners desire’ (HCJ 4112/99 Adalah Legal Centre for Arab Minority Rights in Israel v. Tel-Aviv Municipality [25]), at p. 460; square parentheses supplied).

20. My colleague the president utterly rejects almost the entire legal position of the respondent. With respect, my opinion is different. Like the Attorney-General, I am of the opinion that we are dealing with a matter that should be decided by the legislature. The words of Justice Cheshin in Yaros-Hakak v. Attorney-General [16] are appropriate here: ‘… the court was not intended to march in the vanguard, nor was it charged with testing uncharted waters. The judiciary, in essence, was not given the task of delineating and paving new paths in social matters’ (ibid. [16], at p. 135 {86}). The remarks of my colleague the president in his book, The Judge in a Democracy, are also relevant: ‘The judge should generally not be the standard bearer of a new social consensus. As a rule, judges should reflect values and principles that exist in their society rather than create them’ (The Judge in a Democracy, at p. 47, which is cited in Yaros-Hakak v. Attorney-General [16], at p. 117 {64}). I am personally of the opinion that in so far as the rights of the individual are concerned, it is possible that on occasions the court will continue to march in the vanguard, and the same is true with regard to shaping the norms of public administration; but it should not do so in matters of a collective nature that are the subject of a controversy concerning changes in beliefs and outlooks. In these matters, I find the remarks of Vice-President Mazza in Yaros-Hakak v. Attorney-General [16] apt:

‘… whether it is desirable that this court should establish, in case law, a primary arrangement on this sensitive and controversial issue, which concerns giving a recognized legal status to single-sex couples. In my opinion, the answer to this question is no. The principle of the separation of powers, and the special sensitivity of the issue brought before us, require us to act in this case with caution and restraint’ (ibid. [16], at p. 79 {15-16}; emphases in the original).

21. With regard to the executive authority, President Barak has said:

‘… that there are matters of a unique kind in which the executive authority does not have the power to make fundamental decisions on basic questions that divide Israeli society. There are matters of this kind in which the decisions should be made by the Knesset, whereas the executive authority should restrict itself to the policy for implementing them’ (HCJ 3267/97 Rubinstein v. Minister of Defence [26], at p. 523 {194}).

The president will say: I am only dealing with the registry, whereas the primary arrangement will be made by the legislature. But in my opinion the registry in this regard is a significant step on the way to a comprehensive arrangement, and therefore its place lies in the legislative domain.  

Some remarks on comparative law

22. This court is not the first to contend with the question of the approach to marriages between persons of the same sex that took place in another country. Similar questions are the subject of huge dispute in the various states of the United States, and they are a part of a very vigorous public debate. Admittedly the dispute concerns the question of recognition of the actual marriage, but as we have said the question before us also goes beyond the scope of a mere statistical registration. In the United States the question also arises as to the line separating the work of the court from the work of the legislature. Indeed, in an absolute majority of states in the United States there are legislative arrangements that reject recognition of marriages between persons of the same sex that were contracted outside the state (the Defense of Marriage Act (DOMA)). For a survey of the legislative arrangements by state, see appendix to the article of A. Koppelman, ‘Recognition and Enforcement of Same Sex Marriage,’ 153 U. Pa. L. R. 2143 (2005), at p. 2165. The constitutionality of the provisions of the DOMA laws has been scrutinized in several cases, but no judgment has been given by the Supreme Court of the United States in this regard. However there are states, such as New Jersey, in which there is no legislative regulation and where a similar question to the question before us has arisen, and this also concerned a marriage that was contracted in Canada.

23. In Hennefeld v. Township of Montclair [39], the court of the State of New Jersey refused to recognize a marriage between persons of the same sex that took place in Canada. It held that —

‘… this court finds that the marriage laws of Canada which recognize same-sex marriage are not consistent with those of New Jersey which do not recognize same-sex marriage... Accordingly, the Plaintiffs’ Canadian marriage cannot be afforded comity in New Jersey.’

Canadian marriages have not been recognized in states where there are DOMA laws (see In re Kandu [40]). This case law relied on previous case law according to which the state constitution did not require recognition of marriage between persons of the same sex (Lewis v. Harris [41]). In that case the court addressed its role in recognizing the right of persons of the same sex to marry. With regard to the provisions of the constitution, the court held:

     ‘This constitutional provision does not give a court the license to create a new constitutional right to same-sex marriage simply because its members may feel that the State should grant same-sex couples the same form of recognition as opposite-sex couples who choose to marry… there is no basis for concluding that our society now accepts the view that there is no essential difference between a traditional marriage of a man and woman and a marriage between members of the same sex’ (emphasis supplied).

Even in the State of New Jersey no one disputes that same-sex couples should be given the same rights as heterosexual couples (to this end New Jersey even enacted the Domestic Partnership Act), but the manner, or the ‘framework,’ in which society chooses to confront the issue — such as whether it constitutes marriage, or a civil union, or another approach — is generally regarded as a public question that the legislature, and not the court, should address.

24. After I wrote the aforesaid, the Supreme Court of the State of New Jersey held, by a majority, that same-sex couples have a constitutional right to the same rights and benefits as heterosexual couples, but it was held that the question of the ‘name,’ the framework, by which the relationship will be known is a question for the legislature to decide (Lewis v. Harris [42]). The court held that it was not possible to strip the term ‘marriage’ of its loaded meanings, and therefore it was the legislature that should decide whether to use it with regard to same-sex couples:

     ‘Raised here is the perplexing question — “what’s in a name?” — and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself — independent of the rights and benefits of marriage — has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on committed same-sex couples… The Legislature is free to break from the historical traditions that have limited the definition of marriage to heterosexual couples or to frame a civil union style structure, as Vermont and Connecticut have done.’

In so far as the question of framework or symbol is concerned, the court therefore was of the opinion that public debate, as expressed in the work of the legislature, should be allowed to have its say. The court said that traditionally, since ancient times, the word ‘marriage’ has been used only for the relationship between a man and a woman, and therefore:

     ‘To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin. When such change is not compelled by a constitutional imperative, it must come about through civil dialogue and reasoned discourse, and the considered judgment of the people in whom we place ultimate trust in our republican form of government.’

When the court in New Jersey discussed the reasoning for this determination, which requires the referral of the question of the framework or symbol to the legislature, it addressed the same consideration that I addressed above, namely the need to act within the scope of public confidence:

     ‘Some may think that this Court should settle the matter, insulating it from public discussion and the political process. Nevertheless, a court must discern not only the limits of its own authority, but also when to exercise forbearance, recognizing that the legitimacy of its decisions rests on reason, not power.’

All seven justices of the New Jersey court in that case supported the approach that same-sex couples should not be deprived of legal rights and benefits in the law that are given to heterosexual couples. The minority opinion of three justices saw no reason to distinguish between these rights and the right to the ‘title of marriage.’ This minority opinion also considered the question of symbols — the linguistic use of the term ‘marriage’ — and it held that there was no basis for depriving the petitioners in that case of the symbol, so that it would not appear that the commitment in a relationship between persons of the same sex is weaker than that of persons of different sexes, and it also held that labels perpetuate prejudices. Thus we see that a debate took place and the majority referred the question of symbols to the legislature.

25. The Supreme Court of the State of New York, another state where there are no DOMA laws, held that the question of the registration of the marriage of same-sex couples is a matter for the legislature. While relying, inter alia, on the judgment in Hennefeld v. Township of Montclair [39] from the State of New Jersey, the court in the State of New York held:

     ‘The role of the courts is “to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes”… Deprivation of legislative authority, by judicial fiat, to make important, controversial policy decisions prolongs divisiveness and defers settlement of the issue; it is a miscarriage of the political process involved in considering such a policy change… Judicial intervention is warranted only where the Legislature has placed an unreasonable restriction on access to the legislatively defined right.’

(See also Samuels v. New York State Dept. of Health [43]; Seymour v. Holcomb [44]).

Conclusion

26. The essence of the matter is this: my colleague the president, like the petitioners, is not satisfied by the respondent’s argument that in Israel there is no appropriate legal framework for a marriage of same-sex couples; according to him, the ‘legal framework’ concept is new, it does not contain a proper criterion and there is no difference between the registration of homosexual marriage and the approval of a lesbian adoption, as decided in Brenner-Kaddish v. Minister of Interior [11]. Indeed, my opinion in that case is like the minority opinion of Justice A.R. Zu’bi. Personally, I do not think that giving socio-economic rights to homosexual couples for reasons of human and legal decency is a ‘legal framework’ similar to the registration of marriage. There is a dividing line between them, and crossing this line is a matter that should be addressed by the legislature. The line is the very symbol, the value decision, which calls for the legislature to consider the matter, since registration is ultimately tantamount to an official stamp of approval given by the state for the creation of a family unit that is recognized only in a small minority of countries around the world. Therefore, were my opinion heard, we would not grant the petitions.

 

 

Petition granted by majority opinion (President Emeritus Barak, President Beinisch, Vice-President Rivlin and Justices Procaccia, Naor and Hayut), Justice Rubinstein dissenting.

30 Heshvan 5767.

21 November 2006.

H.C.J 428/86

H.C.J 429/86

H.C.J 431/86

H.C.J 446/86

H.C.J 448/86

H.C.J 463/86

M.A.A 320/86

 

 

Y. BARZILAI, ADV.

v.

1       GOVERNMENT OF ISRAEL

2.       ATTORNEY-GENERAL

3-6. A-D                                                                                                                                                                         H.C.J 428/86

 

1.       Y. SARID, M.K.

2.       D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3.       CITIZENS RIGHTS AND PEACE MOVEMENT

4.       S. ALONI, M.K.

5.       R. COHEN, M.K.

v.

1.       MINISTER OF JUSTICE

2.       ATTORNEY GENERAL

3.       INSPECTOR-GENERAL OF POLICE

4.   DEPUTY PRIME MINISTER ANDMINISTER OF FOREIGN AFFAIRS

5-8. A-D.                                                                                                                                                                        H.C.J 429/86

 

1. M. MAROZ, ADV.

2. D. YIFTAH, ADV.

v.

1. MINISTER OF POLICE

2-5.A-D.                                                                                                                                                                         H.C.J 431/86

 

A. ZICHRONI, ADV.

v.

1.       INSPECTOR-GENERAL OF POLICE

2.       ATTORNEY-GENERAL

3.       MINISTER OF JUSTICE

4.       HEAD OF THE GENERAL SECURITY SERVICE (G.S.S.)

5.       ASSISTANT NO. 1 TO HEAD OF G.S.S.

6.       ASSISTANT NO. 2 TO HEAD OF G.S.S.

7.       ASSISTANT NO. 3 TO HEAD OF G.S.S.

8.       DEPUTY PRIME MINISTER AND MINISTER OF FOREIGN AFFAIRS                                                                                                                                                                                                                                                                   H.C.J 446/86

 

1. DR. J.M. EDREY

2. DR. H. BEN-MENAHEM

3. DR. B. BRACHA

4. DR. M. GUR-ARIEH

5. DR. K. MANN

6. DR. A. MAOZ

7. DR. C. PASBERG

8. DR. M. KREMNITZER

9. PROF. D. KRETZMER

10. DR. A. ROZEN-ZVI

11. DR. Y. SHACHAR

12. PROF. M. SCHIFMAN

v.

1. INSPECTOR-GENERAL OF POLICE

2. MINISTER OF POLICE

3. HEAD AND THREE OTHER MEMBERS OF THE G.S.S.

                              H.C.J 448/86

 

 

1. M.A. ABU GAM'A

2. S.H. ABU GAM'A

v.

1. GOVERNMENT OF ISRAEL

2. MINISTER OF POLICE

3. ATTORNEY-GENERAL

                  H.C.J 463/86

 

A. BARAK

v.

1.       Y. SARID

2       .D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3.       CITIZENS RIGHTS AND PEACE MOVEMENT

4.       S. ALONI, M.K.

5.       R. COHEN, M.K.

6.       MINISTER OF JUSTICE

7.       ATTORNEY-GENERAL

8.       INSPECTOR-GENERAL OF POLICE

M.A.A 320/86

 

 

In the Supreme Court sitting as the High Court of Justice

[6 August 1986]

Before: Justice Meir Shamgar, President

                                    Justice Miriam Ben-Porat, Deputy-President

Justice Aharon Barak.

 

         

Constitutional and Administrative Law - Pardon of offenders by President of the State - Presidential power to pardon unconvicted suspects - Basic Law: The President of the State. sec. 11(b) - Interpretation of Statutes -Meaning of the expression "to pardon offenders" - A "spacious interpretation" of constitutional provisions - Attorney-General's power to stay criminal proceedings - Presidential power of pardon and the powers of other State authorities relating to criminal justice -Pardon and Amnesty-High Court of Justice - Locus Standi - Amenability of State President to jurisdiction of the courts - Indirect judicial review of Presidential functions - Rule of Law.

 

          The petitions to the court related to the decision of the President of the State to pardon the Head of the General Security Service (G.S.S.) and three of his assistants in respect of all the offences attributed to them connected with the incident known as "bus no. 300". The pardons were granted by the President under sec. 11 (b) of the Basic Law: The President of the State, by which he is empowered "to pardon offenders and to lighten penalties by the reduction or commutation thereof." The principal issue raised in the petitions was whether the President had the power to pardon persons before conviction. The court was also asked to order the competent authorities to investigate the incident referred to.

         

1. In regard to the interpretation of sec. 11(b) of the Basic Law, the court examined the import of the terms "offence" and "offender," and reviewed the legislative background to the enactment of sec. 11(b) above, in particular Article 16 of the Palestine Order in Council of 1922 and sec. 6 of the Transition Law, 1949. The court also considered the influence on the interpretation of sec. 11(b) of the Basic Law of the Anglo - American Practice in regard to pardon, as well as the place of the Presidential power of pardon in Israel in relation to the powers of other State authorities charged with the administration of criminal justice.

 

          Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring):

          Having regard to the legislative purpose in the light of the above considerations, to the need for a "spacious" interpretation in matters of constitutional content, and to the accepted construction of the pardoning power since enacted in its original form, sec. 11(b) was to be interpreted as empowering the State President to pardon offenders both before and after conviction.

         

Per M. Ben-Porat D.P.:

          The grant of a pardon involves a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor and the State President was faced with the same predicament when making his pardoning decision.

          Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed:

         

          Per Barak J., dissenting:

          Upon a proper interpretation of sec. l l(b) of the Basic Law: The President of the State, the Israel Legislature cannot be presumed to have favoured Presidential intervention in criminal proceedings before these have run their full course. Under the Israel "constitutional scheme" the Presidential power of pardon must not be construed as a paramount power, or as rivaling the powers of other State authorities, such as the police, the prosecution, the courts. It must be construed as a residual or a "reserve" power to be exercised only after the other authorities concerned have exhausted their own powers, i.e. after conviction of the accused. The pardons granted in the present case therefore are void and of no effect.

         

2.       Held by the court (per Shamgar P.):

          (a) The absence of a real personal interest on the part of any of the petitioners, does not justify the immediate dismissal of the petition. The Supreme Court will take a liberal view on this aspect and grant access to petitioners where the question that arises is "of a constitutional character" or of "public interest related directly to the advance of the rule of law". This entails no general recognition of the actio popularis, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

          (b) In granting the pardons, the State President was acting in a matter "connected with his functions and powers" as provided in sec 13 of the Basic law: The President of the State. Hence he is not amenable to the jurisdiction of the courts in connection therewith, including the Supreme Court's powers of direct review - its authority to demand of the president himself an explanation of his decisions. This immunity relates to the direct challenge of any Presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions in proper cases and when the proceedings are directed against some other respondent.

 

Israel cases referred to:

 

[1] H.C. 73/85, "Kach"Faction v. Chairman of the Knesset 39(3) P.D. 141.

[2] H.C. 177/50, A. v. Chairman and Members of the Law Counci15 P.D. 137.

[3] F.H. 13/60, Attorney-General v. Matana 16(1) P.D. 430; S.J., vol. IV, p.112.

[4] H.C. 249/82, Wakhnin v. Military Appeals Tribuna1 37(2) P.D. 393.

[5] Cr. A. 224/85, Alba Pharmacy Ltd. v. State of Israel 39(4) P.D. 798.

[6] H.C. 156/56, Schor v. Attorney-General 11 P.D. 285; 21 P.E. 227.

[7] H.C. 329/81; M.A. 217/82, 376, 670/83, Nof v. Attorney-General 37(4) P.D. 326.

[8] Cr. A. 117/50, Haddad v. Attorney-General 5 P.D. 1413; I P.E. 318.

[9] H.C. 171/69, Filtzer v. Minister of Finance 24(1) P.D. 113.

[10] H.C. 228/84, unpublished.

[11] H.C. 270/85, unpublished.

[12] H.C. 659/85, Bar Yosef (Yoskovitz) v. Minister of Police 40(1) P.D. 785.

[13] H.C. 297/82, Berger v. Minister of the Interior 37(3) P.D. 29.

[14] H.C. 483/77, Barzilai v. Prime Minister of Israel et al. 31(3) P.D. 671.

[15] H.C. 652/81, Y. Sarid M.K. v. Knesset Chairman Savidor 36(2) P.D. 197.

[16] H.C. 40/70, Becker v. Minister of Defence 24(1) P.D. 238.

[17] H.C. 217/80, Segal v. Minister of the Interior 34(4) P.D. 429.

[18] H.C. 1/81, Shiran v. Broadcast Authority 35(3) P.D. 365.

[19] E.A. 23/84, Neiman et al v. Chairman of the Eleventh Knesset Elections Central Committee 39(2) P.D. 225.

[20] H.C. 186/65, Reiner v. Prime Minister of Israel et al. 19(2) P.D. 485.

[21] M.A. 838/84, Livni et al. v. State of Israe1 38(3) P.D. 729.

[22] H.C. 58/68, Shalit v, Minister of the Interior 23(2) P.D. 477; S.J., Spec. Vol. (1962-1969), 35.

[23] H.C. 390/79, Diukat v. Government of Israe134 (1) P.D. 1.

[24] H.C. 561/75, Ashkenazy v. Minister of Defence 30(3) P.D. 309.

[25] Cr.A. 185/59, Matana v. Attorney-General 14 P.D. 970.

[26] H.C. 742/84, Kahana v. Chairman of the Knesset 39(4) P.D. 85

[27] H.C. 94/62, Gold v. Minister of the Interior 16 P.D. 1846; S.J., vol. IV p. 175.

[28] C.A. 165/82, Kibbutz Hatzor v. Rehovot Tax Assessment Officer 39(2) P.D. 70.

[29] C.A. 481/73, Administrator of Estate Late E. Bergman v. Stossel 29(1) P.D. 505.

[30] H.C. 246,260/81, Agudat Derekh Eretz v. Broadcast Authority 35(4) P.D.1.

[31] H.C. 306/81, Flatto Sharon v. Knesset Committee 35(4) P.D. 118.

[32] H.C. 547/84, "Of Ha-emek" Registered Agricultural Cooperative Society v. Ramat Yishai Local Council 40(1) P.D. 113.

[33] H.C. 98/69, Bergman v. Minister ofFinance 23(1) P.D. 693.

[34] M.A. 67/84, Haddad v. Paz 39(1) P.D. 667.

[35] H.C. 507/81, Abu Hatzeira M.K. et al. v. Attorney-General 35(4) P.D. 561.

[36] C.A. 507/79, Raundnaf (Korn) v. Hakim 36(2) P.D. 757.

[37] H.C. 73,87/53, "Kol Haam"Co. Ltd. et al. v. Minister of the Interior 7 P.D. 871; 13 P.E. 422; S.J., vol. I, p. 90.

[38] C.A. 150/50, Kaufman v. Margines 6 P.D. 1005; 5 P.E. 526.

[39] C.A. 214/81, State of Israel v. Pahima 39(4) P.D. 821.

[40] H.C. 732/84, Tzaban v. Minister of Religious Affairs 40(4) P.D. 141.

 

English cases referred to:

 

[41] Reg. v. Boyes (1861) 9 Cox C.C. 32.

[42] R. v. Foster (1984) 2 All E.R. 678 (C.A.).

[43] McKendrick et al. v. Sinclair (1972) S.L.T. 110 (H.L.).

[44] Jennings v. United States (1982) 3 All E.R. 104 (Q.B.).

[45] Church Wardens & C. of Westham v. Fourth City Mutual Building Society (1892) 28 Q.B. 54.

[46] Thomas v. The Queen (1979) 2 All E.R. 142 (P.C.).

[47] Mistry Amar Singh v. Kulubya (1963) 3 All E.R. 499 (P.C.).

[48] Godden v. Hales (1686) 89 E.R. 1050 (K.B.).

 

American cases referred to:

 

[49] Ex parte Grossman (1925) 267 U.S. 87; 45 S.Ct. 332; 69 Law Ed. 527.

[50] M'Culloch v. Maryland (1819) 4 Law Ed. 579; 17 U.S. 316.

[51] Youngstown Sheet and Tube Co. v. Sawyer (1952) 26 A.L.R. 2d. 1378; 343 U.S. 579; 96 Law Ed. 1153.

[52] Ex Parte Garland(1866) 71 U.S. 333.

[53] Burdick v. United States (1915) 236 U.S. 79; 59 Law Ed. 476.

[54] Murphy v. Ford (1975) 390 F. Supp. 1372.

[55] United States v. Wilson (1833) 32 U.S. 149.

[56] Biddle v. Perovich (1927) 274 U.S. 480.

[57] Montgomery v. Cleveland (1923) 32 A.L.R. 1151; 98 So. III.

[58] Schick v. Reed (1974) 419 U.S. 256.

[59] Osborn v. United States Bank (1824) 22 U.S. 738.

[60] New York v. United States (1951) 342 U.S. 882.

[61] Ex Parte Wells (1855) 15 Law Ed. 421; 18 How. 307.

 

          The petitioner in H. C. 428/86 appeared in person; A. Gal- for the petitioners in H.C. 429/86; The petitioners in H.C. 431/86 appeared in person; A. Zichroni and I. Hanin - for the petitioners in H.C. 446/86; M. Soaked - for the petitioners in H.C. 448/86; H Langer- for the petitioners in H.C. 463/86; D. von Wiesel and A. Barak - for the petitioner in M.A. 320/86; Y. Harish, Attorney-General and Y. Ben-Or. Senior Assistant State Attorney and Director of the Criminal Department of the State Attorney's Office - for the respondents; Y. Arnon and D. Weisglas for A-D.

 

SHAMGAR P.

The Matter in Issue

 

1.(a) On 25 June 1986 the State President granted the Head of the General Security Service and three members of that Service a pardon in respect of

all the offences connected with the so-called bus no. 300 incident, and committed from the time of the incident on the night between 12 April and 13 April until the date of this Warrant.

 

The pardon was preceded by certain events which became the subject of debate for a period of several months, both in the Government and among the general public, centering mainly on the proper steps to be taken by the authorities in consequence of the stated offences, which had meanwhile become known collectively as the "bus no. 300 incident".

          The President was apprised of the details of the matter in two conversations with the aforementioned Head of the Service, and the decision to grant the pardon followed formal requests to that end. The pardon was granted before any legal proceedings had been instituted in respect of the matters mentioned in the Warrant of Pardon. On the day the pardon was granted, the President made a public statement in which he explained the reasons for his decision, inter alia as follows:

         

Acting under the power vested in me by law, I have today granted Avraham Shalom, Head of the General Security Service, and three of his assistants, a full pardon in respect of every offence prima facie committed in connection with the "bus number 300 incident". I have so acted with a view to putting a stop to the "devils' dance" raging around the incident and so preventing further grave harm to the General Security Service. In so exercising my power, I have acted upon the recommendation of the Minister of Justice following a cabinet meeting held last night with the participation of the Attorney-General.

   My decision was based on the deep conviction that it was for the good of the public and the State that our security be protected and the General Security Service spared the damage it would suffer from a continuation of the controversy surrounding the incident. This Service is charged with waging the difficult war against terrorism, and the remarkable work of its members saves us tens of casualties every month. Last year alone the Service uncovered some 320 terrorist bands who were responsible for 379 outrages and attempted assaults in all parts of the country. So far this year the Service has exposed the perpetrators of 255 terrorist acts, apprehending among them also those who had committed murder.  I wish to mention another aspect of the war against terrorism, which relates to the security arrangements for the protection of Israel's diplomatic missions and other agencies abroad.  It may be recalled that only recently a murderous assault on an El-Al aircraft was prevented when members of the Service foiled the attempt to smuggle aboard a bomb in a suitcase in London. The public in Israel does not really know what debt we owe to all those anonymous heroes of the General Security Service, and how many lives have been saved thanks to their efforts."

   As President of the State, I feel it my duty to rally to the support of members of the Service; knowing as I do the vitally important and arduous task fulfilled by them, devotedly and in secrecy, daily and hourly. I do so in the hope of preventing moral harm to the intelligence organisation and the security network, and to the war against terror.

   In the special conditions of the State of Israel we cannot allow ourselves any relaxation of effort, nor permit any damage to be caused to the defence establishment and to those loyal men who guard our people.

   The effect of the Attorney-General's unequivocal intimation at the cabinet meeting, that there was no alternative but to open a police investigation into the incident, was to create a situation which requires members of the Service to submit to the investigation without being left any possibility of defending themselves, short of divulging security information of the utmost secrecy. In this situation I saw it as my primary duty to act as I have done in protecting the interests of the public and the security of the State.

         

          (b) Two principal issues have been raised in these petitions. The first concerns the President's power to pardon an offender before his trial and conviction; the second relates to a demand for the holding of an investigation into the events known as the "bus no. 300 incident". Concerning the latter issue, on 15 July 1986 we received the Attorney General's intimation, confirmed by the Inspector General of Police, that the police would investigate the complaints lodged in connection with that incident.

          We accordingly have to deal here with the scope of the presidential power of pardon, and shall refer also to two related matters, namely: the reasons for our decision on 30 June 1986 concerning joinder of the President as a respondent in three of the petitions (H.C. 431/86, H.C. 446/86 and H.C. 463/86); and our ruling on the question of locus standi.

         

2. The President's power of pardon is defined in sec. 11(b) of the Basic Law: The President of the State (1964) (hereinafter "the Basic Law"), thus:

 

The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

 

          This legal provision is formulated to deal with two subjects, i.e. the pardoning of offenders and the lightening of penalties. The latter subject is not in issue in the present matter, so what remains to be decided here is whether the power to pardon offenders extends also to someone who has not yet been convicted.

 

The Approach in the Case Law

 

3. (a) For the reasons I shall set out below, it has to be concluded that in the case now before us the State President based the exercise of his power under the above section upon a legal construction in accordance with the accepted approach of this court for the past thirty-five years, which sees the President as empowered to grant a pardon also before conviction. I am not unaware of efforts made over the years by a few distinguished jurists to challenge that interpretative approach. That even they, however, have had to take the view enunciated by this court as the starting point of their analysis, is understandable and clear, for the reason succinctly stated by my learned colleague, Barak J., in "Kach"Faction v. Speaker of the Knesset [1], at p. 152:

 

In a democratic regime, based on the separation of powers, the authority to construe all legislative enactments - from Basic Laws to regulations and orders - is entrusted to the court.... Inherent in every statutory provision, naturally and axiomatically, is a delegation of the interpretative authority to the court. It is true that every state organ - and in the present context also every individual - will seek to interpret the law in order to plan ahead. In the case of certain organs, it is sometimes customary for the interpretative authority to be entrusted to a particular functionary. Thus, for instance, the Executive's interpretative function is entrusted to the Attorney-General, and his construction binds the Executive internally. But where the question of interpretation arises in court, this authority rests with the court and its construction will bind the parties. And where the construction is that of the Supreme Court, it will bind everyone (by virtue of the doctrine of stare decisis - sec. 20(b) of the Basic Law: The Judicature). In this regard Shamgar J. remarked as follows:

   "Every governmental authority must on occasion contend with the interpretation of a legislative enactment, for the application of statutory law frequently (in theory invariably) entails the formulation of an attitude as to its substance and content. But the final and decisive interpretative word respecting the law in force at any given time, rests with the court; and in respect to issues raised for deliberation within the legal system, this last word rests with the supreme judicial tribunal" (H.C. 306/81, at p. 141).

   Any other approach would strike at the very heart of the judicial process and completely undermine the doctrine of the separation of powers, and the checks and balances between them. Hence, relations both between the Judiciary and the Executive and between the Judiciary and the Legislature, are governed by the principle that the binding interpretation is that given by the court, no matter what other interpretations may be given.

         

I might add that the reservations expressed about this court's approach have related, as we shall see presently, to the recognition not only of a pardon before conviction, but also a pardon after serving the punishment and in other cases (see Prof. S.Z. Feller, "Rehabilitation", Mishpatim, 113 [1969], 497, 507). In fact, a complete alternative system of pardon has been prepared, and this proposed legislative revision is deserving of deeper study and deliberation than is possible in the framework of this judgment. (See the proposed Bills in the appendix to Prof. Feller's abovementioned article, which also include a proposed rephrasing of sec. 11(b) of the Basic Law by replacing the words "to pardon offenders" with an expression connoting remission of punishments.) Such further study of the subject would accordingly be important for shaping the desirable law in the future, if indeed it is sought to depart from the existing arrangement.

 

          (b) I shall now review the pronouncements of this court on the subject of pre-conviction pardoning under the prevailing law. The subject was first mentioned in A. v. The Law Council [2]. The petitioner asked for the restoration of his name to the Roll of Advocates following upon a presidential pardon granted him (after having served his sentence of imprisonment) in respect of the offence for which his name had been removed from the Roll. The petition was dismissed by a majority of the Court, for reasons relating both to the powers of the Law Council and to the Supreme Court's modes of exercising its discretion.

          Justice Agranat was the only member of the court to address the question of the pardoning power. The statutory provision underlying the President's power of pardon at that time (sec. 6 of the Transition Law, 1949) was phrased, so far as is relevant here, in language identical to that in sec. 11(b) of the Basic Law. It appears from the judgment of Agranat J. (as he then was) that he saw the power of pardon conferred on the President of the State of Israel as generally parallel to that vested in the King of England or in the President of the United States, whether in underlying perception, in nature and scope, or in the consequences of its exercise. In this connection the learned Judge referred, inter alia, to a statement in Halsbury's Laws (2nd. ed., Hailsham, vol. 6, p. 477) that "Pardon may, in general be granted either before or after conviction." Also referred to was the decision of the U.S. Supreme Court in Ex Parte Grossman (1925) [49], where it was held with regard to the Constitutional power to grant pardons for offences, that the Executive could grant a pardon for an offence at any time after its commission. Summing up his opinion on the scope of the power of pardon in Israel, Agranat J. clearly held that the President has the power to pardon offenders either before or after conviction (at p. 751; my italics - M.S.).

          It is true, of course, that the question of the power of pardon before conviction was not part of the ratio on which Justice Agranat founded his decision in that case. Nevertheless, the wider question of principle involving the substance and scope of the pardoning power, the matter of its historical roots and its present day construction, on which the decision of Agranat J. was founded, encompassed also this specific aspect of the exercise of the power before conviction. This aspect arose directly out of and became an integral part of the interpretative method adopted. That is to say, inherent in Justice Agranat's adoption of the view that the President's pardoning power was the same as that of the British King or the American President, was the conclusion that the definition of that power likewise derived from the interpretative process on which the learned Judge had founded his decision, as he himself in fact noted.

          Justice Agranat's abovementioned opinion has come to be recognized as representing the prevailing and commonly accepted interpretation of this court, whether this be due to the fact that no contrary judicial opinion on the matter has been expressed or whether this be attributed to the Further Hearing in the Matana case, a landmark decision in our constitutional law to which I shall presently return.

 

          (c) This subject arose again in the rehearing in Attorney-General v. Matana [3], representing the leading and most comprehensive decision so far on the power of pardon. Once again the substance of the power was analysed, this time in the court's full consciousness that the decision which had occasioned the rehearing amounted to a rejection of the minority opinion of Agranat J. in A. v. The Law Council, insofar as he had found a parallel between the power of the President of Israel and that of the British Monarch. In his judgment in the Further Hearing, Deputy President Agranat (as he then was) reiterated his view expressed in A. v. The Law Council that the President's power of pardon was exercisable also before conviction. He noted that while there was indeed no room for an equation of the President's power of pardon with that of the High Commissioner of Palestine (under Art.l6 of the Order in Council, 1922), he also had no hesitation in reaffirming his approach in A. v. The Law Council as regards the scope of the President's power and its comparison with that of the Executive under the corresponding Anglo-American constitutional law. The power under sec. 6 of the Transition Law, 1969 (which for our present purpose is the same as that set forth in sec. 11(b) of the Basic Law) was termed by Agranat D.P. an "original" power forming part of a "Constitution in miniature of an independent State." Hence it was not comparable to the pardoning power instituted under the Mandatory legislation, and the model for comparison was the power of the British or the American Head of State.

          In this regard the learned Deputy President added, by way of an interpretative guideline, that in view of its constitutional content the statutory provision concerned did not need a restrictive interpretation ( M'Culloch v. Maryland (1819) [50] at p. 602; Youngstown Sheet & Tube Co. v. Sawyer (1952) [51] at 1399, per Frankfurter J.). From the Youngstown case Agranat D.P. cited the statement of Jackson J. that because the American President enjoyed only those powers mentioned in the constitution it "does not mean that the mentioned ones should be narrowed by a niggardly construction."

          In short, it emerges from the Deputy President's judgment that while the relevant provision did indeed relate to a new and independent legislative enactment, for the proper understanding of its substance it was nevertheless permissible to refer also to the corresponding powers that existed in the countries looked upon as the principal models for comparison, and which had nourished and shaped our own legislation.

          Cohn J. (as he then was) - who together with Silberg J. concurred with Agranat D.P. in forming the majority opinion of the court - wrote a separate opinion stressing certain matters which appear to be particularly relevant in relation to the background of the problem now before the court, inter alia holding as follows (at p. 462):

 

Under sec. 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (23 June 1960), in the manner laid down for them in the judgment of this court (per Agranat J.) in A. v. The Law Council (at p. 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England, and which was possessed by the High Commissioner of Palestine. It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949, even then I would not venture today to change this practice which has received the seal of the Knesset at least by its silence, and more especially since the practice followed by the President of the State adds the "grace" extended by him to its citizens.

   I have no doubt, however, that the said provision in sec. 6 should be given a wide and not a narrow interpretation. But for the principles laid down in A v. The Law Council, which the Deputy President has again adopted in his instructive judgment in this Further Hearing, I would perhaps have gone further and interpreted the said provision even without reference to the powers of the King of England under the common law, which were also given to the High Commissioner of Palestine by virtue of the Order in Council, 1922. For the purposes of the decision in the present case, however, the principles laid down in the judgment referred to are sufficient for me too, and I arrive at the same conclusions as those reached by my colleague, the Deputy President, but without resort to the English and American authorities which he cites in his judgment.

 

          (d) In a dissenting judgment Berinson J. disputed the abovementioned interpretative theses. In essence, however, and notwithstanding the divergence between the minority view (of himself and Landau J.) and the majority view as to the President's power of substituting one sentence for another, even he was expressly of opinion that the President's pardoning power extended also to an act for which the offender had not yet been tried and convicted. In this sense, as Berinson J. expressly pointed out, the President's power was wider than that of the High Commissioner at the time:

 

Moreover the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial (ibid. p. 469).

 

4. Recently Justice Cohn has had further occasion to express his opinion on the subject ("Symposium on Pardon," hereinafter "Symposium," Mishpatim 15/1 [1984], 14). It was decided law, in his view, that it was never intended by the Israel lawgiver - whether in the Transition Law, 1949,or in the Basic Law - to curtail the scope of the pardoning powers vested in the King of England under the constitutional conventions; it followed that the power to pardon offenders before their conviction availed also in Israel.

 

5. (a) In view of the reference in our decisions to the Anglo-American comparative model, it is fitting that we supplement our above remarks with a brief review of the law of those countries on our present subject. It is consistently asserted in the literature of English constitutional law, that the King is empowered under the common law to grant also a pre-conviction pardon. It is so stated in Blackstone's Commentaries on the Laws of England (San Francisco, 1916; vol. II, p. 400). In Halsbury's Laws (4th ed., vol. VIII, 8, par. 949, p. 606) it is stated:

 

          In general, pardon may be granted either before or after conviction.

         

          S.A. De Smith opines that "a pardon may be granted before conviction" (Constitutional and Administrative Law, 5th ed., Street and Brazier, 1985, p. 150, note 121). He holds that this prerogative power, though not exercised today, has not become abrogated by disuse and, like Sleeping Beauty, "it can be revived in propitious circumstances" (p. 143). In other words, in exceptional circumstances which so justify, the King may conceivably have renewed recourse to this power. A like view is expressed by O. Hood Phillips - "A pardon may generally be granted before or after a conviction" ( Constitutional and Administrative Law, 6th ed., 1978, p. 378). English decisions and treatises on the subject are replete with statements to the same effect and one need not repeat them all here (see Reg. v. Boyes, [41] ).

         

          (b) In the U.S.A. the pre-conviction pardoning power is clearly enunciated in the classical work on the U. S. Constitution prepared by the Research Service and the Library of Congress: The Constitution of the United States of America, Analysis and Interpretation (Washington, 1973), p. 474. In Am. Jur. 59, 2d (Rochester & San Francisco, 1971) par. 25, the presidential power of pre-conviction pardoning is explicitly asserted, and with regard to the separate States it is added:

 

if the constitution does not expressly prohibit the exercise of the power until after conviction, it may be exercised at any time after the commission of an offense before legal proceedings are taken.

 

          That is to say, the customary interpretation is that any State wishing to preclude the grant of a pre-conviction pardon has to make express constitutional provision to that effect, and a power of pardon mentioned without such a reservation means that it may be exercised also before conviction of the offender. See also W.W. Willoughby, The Constitutional Law of the United States (New York, 2nd ed. 1929), vol. III, at p. 1491; B. Schwartz, A Commentary on the Constitution of the United State (New York, 1963), vol. II at p. 87; B. Schwartz, Constitutional Law (N.Y. and London, 2nd ed. 1979) at p. 198; L.H. Tribe, American Constitutional Law (Mineola, 1978) at p. 191.

          In the American precedents the power of pre-conviction pardoning is constantly reiterated. In the celebrated case of Ex Parte Garland (1866) [52], it was held (at p. 380) that the pardoning power

         

….extends to every offence known to the law and may be exercised at any time after its commission either before legal proceedings are taken, or during their pendency or after conviction and judgment.

 

          See also L.B. Boudin, "The Presidential Pardons of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power been Exceeded?" Un. Colo. L. Rev. 48 (1976/77), p. 1.

         

6. In Attorney-General v. Matana [3] the majority agreed with Agranat D.P. as regards the substance of the pardoning power. In the wake of this decision came a legislative development which also throws some light on the attitude of the authorities at the time to the abovementioned legal questions. When the Bill for the Basic Law: The President of the State came before the Knesset, it was decided to vary the text of the provision concerning pardon in a manner clearly enunciating the President's power to commute sentences, this being a matter on which divided opinions had been expressed in the Matana rehearing. However, no attempt at all was made to vary the existing statutory arrangement so far as its interpretation in the rehearing was concerned - both by Agranat D.P. who expressed the majority opinion and by Berinson J. - as empowering the President also to grant pre-conviction pardons. The amendments pertaining to the commutation of sentences clearly stemmed from the wish to eliminate possible doubt resulting from the divergent interpretations on this point in the Matana case. Thus, for instance, Dov Joseph, Minister of Justice at the time, had this to say in support of the proposed amendment:

 

   As to the presidential power to pardon offenders dealt with in sec. 6 of the Transition Law, the matter is now regulated in sec. 12 of the proposed new Law. The change in relation to the existing Law is that the new provision expresses the commutation of punishments to be, along with their reduction, a presidential power of pardon. This is no fundamental change, for even under the existing Law, which mentions the reduction of punishments but not their commutation, the latter was held to fall within the purview of the pardoning power vested in the President. However, since the Supreme Court arrived at this conclusion after much toil, with a minority of the Justices holding otherwise, we thought it desirable to clarify in the proposed new provision that such was the lawgiver's intention from the start (Minutes of the Knesset, 36 (1963/4), 964).

 

          Also of interest in this connection are the comments made in the same debate by Prof. Y. H. Klinghoffer:

         

In a decision of the Supreme Court a year ago, it was decided - as already indicated by the Minister of Justice in his opening remarks - that sec. 6 embodied a power of substitution of a lighter punishment for the one imposed, and in particular to commute a sentence of imprisonment to one of conditional imprisonment" ( ibid., p. 966).

 

          A year later (in 1965) Professor Klinghoffer rested on the same foundation his argument that if difficulties were to arise in consequence of the adoption of a certain proposal raised by him for debate, recourse could be had to the pre-conviction pardoning power in order to solve hard personal problems of punishment for which no other solution was available:

         

Another unconvincing argument advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council, H.C. 177/50 ( Minutes of the Knesset, 43(1965), 2319):

 

          Statements made in the course of Knesset debates do not, of course, bind the court when construing the law, let alone the fact that here we are seeking mainly to draw an inference from the non-amendment of the existing statutory arrangement on the subject. We do accept, however, that a particular enactment's legislative history may be a valuable aid in its interpretation (Wakhnin v. Military Appeals Tribunal [4] at p. 424), and we may be so guided here too. An inference may properly be drawn from the fact that at the time when the Knesset debated the implications of the decision in A. v. The Law Council, not a single voice was raised in favour of narrowing the President's power in 'respect of pre-conviction pardoning. Legislatively speaking, it has so far not been seen fit to disturb the wording of the pertinent provision nor, indeed, its manner of interpretation - by Justice Agranat in A. v. The Law Council and by  the Justices of the majority as well as the minority opinion in A. G. v. Matana- as empowering the President to pardon offenders also before conviction. The opportune time for having effected an amendment in curtailment of the pardoning power, should anyone have disapproved of its judicial interpretation, was surely at the stage when the Law was amended anyway to clarify operation of the pardoning power in a different respect, as already mentioned. The fact that the power as it stood was left intact in relation to the matter of our present inquiry, is proof that neither the Legislature nor the Executive saw fit to alter the legal situation that emerged from the expansive interpretation given the pardoning power in A.G. v. Matana.

          Incidentally, though at the time there may have been room for debating whether or not the provisions of the Transition Law, 1949, including sec. 6, were endowed with any permanent constitutional standing, there could certainly have been no doubt as to the constitutional content and standing of the Basic Law: The President of the State. Yet sec. 11(b) thereof repeats verbatim the part of sec. 6 of the Transition Law that is pertinent to our present inquiry, and which the court construed as it did in the Law Council and Matana cases.

         

7. The fact that the Knesset did not vary the court's construction of the power "to pardon offenders" as embracing also pre-conviction pardoning, has contributed to a general recognition of the approach in the two precedents cited as the accepted approach on this subject. Prof. A. Rubinstein, for instance, writes as follows ( The Constitutional Law of  Israel, 3rd ed., at p. 394; in Hebrew):

 

(e) Pardoning of offenders before conviction. The Law does not restrict the President's power to pardon offenders, and he may do so even before they have been convicted. English law is the same as regards the prerogative of pardon of the British Crown. The High Commissioner, however, was delegated only a part of the stated royal power and, in terms of Art.16 of the Order in Council, 1922, was able to pardon offenders only upon their conviction. In this respect the President's power is like that of the British Crown. Even Justice Berinson who interpreted the presidential power narrowly in the Matana case, held that "he has power to pardon any offender also before he is brought to trial."

 

          A more restrictive construction of the expression "to pardon offenders" - even if centering more on the meaning of the term "offenders," which point I shall presently discuss in greater detail - was proposed by Prof. Klinghoffer at a symposium on this subject, though with express acknowledgment that his own view differed from the interpretation given by the Supreme Court (see Prof. Y. Klinghoffer, "Pardon's Constitutional Framework," Lectures at the Symposium "Amnesty in Israel", held in Jerusalem on 13-14 May 1968, Publications of the Hebrew University Institute of Criminology, 2, 5; hereinafter "Lectures on Amnesty"). A similar view was expressed by Prof. S.Z. Feller in his abovementioned article, "Rehabilitation" (at p. 507, note 28). Also present at the symposium was the then incumbent Attorney-General, M. Ben-Zeev, who made these observations:

         

   Prof. Klinghoffer's constitutional analysis of the pardoning power is undoubtedly comprehensive and interesting. I feel it necessary, however, to mention one matter on which I disagree with him - if only to ensure that a different opinion also be heard on this important point. Prof. Klinghoffer interpreted the President's power "to pardon offenders" as applying only to convicted offenders and not to unconvicted suspects, a conclusion felt by him to flow from the very expression here used. Since in our law a person is presumed innocent until convicted he cannot be an "offender" until he is convicted; therefore, in Prof. Klinghoffer's opinion, the President has no power to pardon any person before he has been convicted. In this connection I might mention the case of A. v. The Law Council, cited by Prof. Klinghoffer, in which the wording of the relevant provision in the Transition Law was construed - and from which wording there was no departure, in the instant context, in sec. 11(b) of the Basic Law: The President of the State. This identical expression in both the above enactments was interpreted by Justice Agranat, after lengthy analysis in his abovementioned judgment, to mean that the President "has the power to pardon offenders either before or after conviction." This authority accordingly contradicts the approach of Prof. Klinghoffer and I myself, in my capacity as Attorney-General, have relied on this authority in giving my opinion that the President may pardon offenders also before conviction. The term "offender" obviously cannot be understood here to mean someone who has been duly convicted, but rather someone who comes to the President saying: "I have committed an offence and I ask you to pardon me." It is inconceivable that a person should come before the President and say: "I have not in fact committed an offence, but if I have, please grant me a pardon." Such alternative kind of pardon naturally finds no place in our law. But if a person should come and say that he has committed an offence for which he asks to be pardoned, then he is among the offenders whom the President has the power to pardon ( ibid., p. 53).

 

          Another participant in the abovementioned symposium was Dr. Leslie Sebba of the Criminological Institute of the Hebrew University, Jerusalem, who made this comment on the legal situation as portrayed there ("Summary of the Lectures at the Symposium 'Amnesty in Israel' " p.x):

         

Finally, there was some doubt as to the proper interpretation of the phrase "to pardon offenders." Did this include persons not yet convicted? In the opinion of the Government, which based its view on judicial opinion, such persons could be regarded as offenders for the purpose of the pardon, for the request for a pardon could in itself be regarded as an admission of the offence .

 

          This leads us to Dr. Sebba's illuminating work, On Pardon and Amnesty: Juridical and Penological Aspects (Ph.D. dissertation, Faculty of Law of the Hebrew University, Jerusalem, 1975; hereinafter On Pardon and Amnesty), in which the writer examined the scope of the pardoning power in Israel, inter alia making this comment (at pp. 152-153):

         

   Sometimes pardon before conviction or "advance pardon" is treated as an independent form of pardon. This power, which has a legal foundation in both English and American law (but not in France), is generally attributed also to the State President. This view is challenged, however, by Prof. Klinghoffer on the ground that everyone is presumed innocent until duly convicted: "Hence no person is an 'offender' until a final convicting judgment be given against him."

   In our view, the law does indeed enable a pardon to be granted without prior conviction. For certain purposes the Legislature has seen fit to describe an unconvicted suspect as an offender, and the Supreme Court has also held that an unconvicted suspect may be deemed to have a "criminal past" under sec. 2(3) of the Law of Return, 1950 (see H.C. 94/62, Gold v. Min. of Interior, 16 P.D. 1846). Finally, Art. 16 of the Order in Council conferred express power to pardon a person who turned "King's evidence" and whose evidence led to conviction of the principal offender.

         

          The introduction to Article 16 of the Order in Council clearly related to unconvicted suspects who were willing to give evidence for the prosecution. This was envisaged as the main area for application of this provision, which, as in English law for the past centuries, has been the main justification for preserving the power of "advance" or pre-conviction pardon.

         

8. We have so far described the ruling interpretative thesis. Having regard, however, to the arguments advanced during the hearing, it is necessary to examine the reservations and doubts raised as to the President's power to pardon unconvicted offenders under sec. 11(b) of the Basic Law. We shall pursue this examination, and the formulation of our interpretative standpoint regarding sec. 11(b), along three principal lines of inquiry: first, the linguistic import of the statutory provisions under consideration; second, the contention as to abrogation of the disputed power following the enactment of other, new powers; and third, the juridical-constitutional substance of the power.

 

The Language of the Section

 

9. Sec. 11(b) of the Basic Law speaks of the power "to pardon offenders." There is no definition of the term "offender" in either the Basic Law or the Penal Law of 1977. As already mentioned, Prof. Klinghoffer founded his narrow interpretation of the presidential power on the perception that the term "offender" applied only to someone duly tried and convicted (see "Lectures on Amnesty",supra; "Symposium," at p. 5). The like opinion was expressed by H. Zadok, former Minister of Justice (ibid., p. 9) and by Prof. S.Z. Feller (ibid., p. 10; and see also "Rehabilitation," at p. 507). Disagreeing with these views, Justice H. Cohn argued that the existence of a pre-conviction pardoning power was also indicated in the language of the Law. He commented that an enactment aimed at expanding civil rights and benefits called for a spacious and liberal interpretation. For purposes of the President's power, an "offender," in his opinion, was anyone who testified to himself as being such “ Symposium," at p. 14).

          I do not think the term "offender" must be understood as referring only to someone who has been tried and convicted. It is accepted in this court that an expression in a particular Law must be interpreted in the light of its legislative context, as was held by my colleague the Deputy President in Alba Pharmacy Ltd. v. State of Israel [5] at p. 802:

         

Expressions and directives in a Law must be interpreted in the light of the purpose it is intended to achieve. Hence it will sometimes happen that the identical expression appearing in different enactments is differently construed, all in accordance with the inherent purpose and intent of the enactment (C.A. 480/79, Treger v. Customs Collector, at p. 306).

 

          According to its plain meaning, the term "offender" relates to someone who has committed an act defined as an offence, and from the word offence or offender itself one can hardly learn that it has no other legislative application than to someone proved, in final criminal proceedings ending in a conviction, to have committed an offence. Fundamental to our perception of criminal justice is the presumption that a person is innocent until duly proven guilty, but this presumption is an incident of the individual's rights and obligations in confrontation with the judicial process, or with any other authority, or individual. It does not necessarily reflect upon all the possible linguistic nuances of a descriptive term employed in a variety of legislative contexts and conjoined to a variety of eventualities in the penal law and related area. Not infrequently one finds mention in enactments of the term "offence" or "offender," when it is intended to refer simply to a criminal act or omission, or to the person to whom such is attributed, even though not yet convicted in criminal proceedings. And this is so even though the circumspection needed when a person's status may be affected in criminal proceedings, would seem to indicate the use of other expressions such as "a person accused of..." or "charged with..." or "alleged to have committed an offence," or like language. The Penal Law of 1977, for example, makes frequent mention of the term "offence" in a variety of contexts. But when it speaks in sec. 4 of bringing an offender to trial, the reference is clearly to someone charged with, and not already convicted of, the offence. (In like vein see also secs. 7, 8 and 10(d) of the Law.) In this connection Dr. L. Sebba refers ( On Pardon and Amnesty, at p. 153) to the Criminal Procedure (Arrest and Search) Ordinance (New Version), sec. 3(3) of which empowers a police officer to arrest a person without warrant if he "has committed in the police officer's presence, or has recently committed" a certain kind of offence; here too one is clearly dealing with someone suspected of committing the offence rather than someone already convicted thereof.

          It is provided in sec. 3 of the Police Ordinance (New Version) that "the Israel Police shall be employed for the prevention and detection of offences, the apprehension and prosecution of offenders." There undoubtedly cannot be any reference here to already convicted offenders. The definition of the term offender in the Interpretation Ordinance (New Version), stresses the element of the sanction but nowhere mentions a finality of legal proceedings. And so one could without difficulty quote many more examples.

          We might, for the purpose of our linguistic inquiry, also examine other provisions of law on matters which may be said to be in pari materia. In this respect the wording of sec. 6 of the Transition Law, 1949 sheds no additional light on the meaning of the term "offender" in the Basic Law. However, besides the individual pardon provided for in the Basic Law, two other Laws were enacted dealing with the subject of general amnesty. The first was the General Amnesty Ordinance of 1949, which in see 2 provided that a person who prior to a specified date "committed an offence... shall not be arrested, detained or prosecuted for it, or if he is already being prosecuted... the proceedings shall be discontinued and he shall not be punished." Clearly the words "...committed an offence" extended the benefit of the amnesty also to offenders who had not yet been tried and convicted. The wording of sec. 2 spoke for itself, and a statement to the same effect was made by the then Minister of Justice, Mr. Y.S. Shapiro, when introducing the Bill for the Amnesty Law of 1967 before the Knesset:

         

This is the second occasion on which a general amnesty is extended by the State directly through the legislature. The first time the general amnesty was granted by the Provisional Council of State in its final session, prior to the convention of the elected assembly - the First Knesset. In the Law passed at the time by the Provisional Council of State, it was laid down that any person who had committed an offence, other than one entailing sentence of death or life imprisonment, should receive a pardon, whether already tried and convicted or not (Minutes of the Knesset, 49, p. 2484).

 

          In sec. 5 of the Amnesty Law of 1967, the second enactment of its kind, mention was again made of a "discontinuance of proceedings" taken in any court for "any offence committed" before a specified date. Thus the amnesty was once more extended in respect of "offences" for which the offender had not yet been tried or the proceedings concerning which had not yet been completed.

          The manner of use of the term "offence" in a Knesset enactment dealing with a general amnesty has implications for the construction of the same term in an analogous Knesset enactment dealing with individual pardons.

          In sum, it may be learned from a linguistic examination of pertinent statutory provisions, that the terms "offence" and "offender" may, according to the subject matter and context, simply import a criminal act or the person accused or suspected of having committed that act, and not necessarily a conviction, or a convicted offender. By analogy, the same term in sec. 11(b) of the Basic Law was intended to embrace also a person to whom a criminal act, attempt or omission is attributed, and not only someone already convicted of the same.

          By way of comparison it may be noted that the same term mentioned in the constitution of the U.S.A., in the context of "pardons for offences" (art. II, sec. 2, clause 1), has also not been interpreted as applying solely to criminal conduct which is followed by trial and conviction.

         

 Parallel Statutory Powers

 

10. It was a central argument of the petitioners that the power of pardon before conviction was abrogated by the effects of later, as it were, superseding legislation. This argument assumed diverse forms and I propose to deal with its different aspects. Since, for purposes of our present inquiry, it first found expression in a directive of the Attorney-General included in one of the petitions now before us, I shall start therewith.

 

11. (a) In his capacity as Attorney-General, Prof. Y. Zamir published a directive (no. 21.333) concerning the President's power to pardon offenders before completion of the trial. The learned writer first referred to the opinion of Justice Agranat in the case of A. v. The Law Council, contending that the equation there of the power of the High Commissioner with that of the British Crown was erroneous, as the former was not competent to pardon any person before his conviction. It followed that if the High Commissioner was not so empowered, no power of that nature could possibly have been conferred under sec. 6 of the Transition Law of 1949, when it was enacted.

          The above conclusion as to an equality of pardoning power displayed indeed a certain inaccuracy, for the power delegated to a colonial Governor or to the High Commissioner of a Mandated Territory did not coincide with the prerogative power of the King. But this point was clarified in the Matana case and, I might add, the Attorney-General himself fell victim to an inaccuracy when writing that the High Commissioner had no power to pardon unconvicted offenders. For it was expressly provided in the first part of art. 16 of the Order in Council that the High Commissioner might pardon "any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender." This empowerment therefore did not relate specifically to already convicted persons, and further proof is to be found in the continuation of art. 16, where express reference is made to convicted offenders in quite a different context.

         

          (b) The stated directive was further predicated on the premise that the abovementioned statements of Justices Agranat and Berinson (on the instant issue) did not amount to binding precedent. I do not accept this reasoning, since it overlooks the connection between the court's overall decision, as already described above, and the specific conclusion concerning the power of pre-conviction pardoning. The existence of this nexus has not only been acknowledged in extra-judicial commentaries, but was also expressly mentioned by Justices Agranat and Berinson in their respective judgments in the Matana case, both clearly having regarded the power of pardon before conviction as flowing integrally from their underlying legal perception of the wider issue before them. The fact that the learned Justices saw fit to recognise the possibility of pre-conviction pardoning, is evidence that such recognition was a natural corollary of a viewpoint shared by the Judges of the majority as well as the minority opinion in the Matana rehearing. Moreover, the fact that the question of a pardon before conviction was directly addressed in the abovementioned decisions, even though the question was not directly in issue on the facts in either of the two cases concerned, is further evidence of a clear and patent connection seen between the essential pardoning power - as interpreted by the court - and the possibility of a pardon granted before conviction. What I am saying is that one has to examine the judgments of the majority opinion in the Matana rehearing according to their essential legal rationale, rather than merely answer the question whether the judgments dealt directly with the power to pardon before conviction. The ratio of the majority opinion in the Matana rehearing is to be found in the conclusion that the presidential power, although original and autonomous by virtue of an Israel enactment, was nevertheless shaped by and for its legislative purpose according to the Anglo-American model. At the same time the court added its conclusion that the Presidential pardoning power in Israel was equal in scope to that of the King of England, or of the President of the U.S.A. The details of the power, also in the pre-conviction contingency, were but a derivative legal consequence. It was the constitutional analogy with the corresponding Executive powers in the above two countries - whose legal systems, far more than others, have inspired and nourished our own legal and constitutional notions and doctrines - that gave birth to the conclusion that is now the subject of our deliberation.

          A like opinion was expressed by Prof. C. Klein ("Symposium," at p. 17):

         

The source of the pardoning power is the royal prerogative. There is a clear connection between the method of pardon in Israel and the corresponding English method, from which one can learn about the scope of the presidential power of pardon in Israel (a divergence of opinion on this matter is echoed in the Matana case).

 

          The power of pardon is not everywhere the same and, as we shall presently see, a variety of methods are followed in other countries. At the time, however, it was not the constitutions of such other countries that served as the models for shaping our own powers of pardon, so that no conclusion whatever can be drawn from any comparison with them, and their situation cannot now reflect on our own, except as an exercise in the desirable.

          It would also be wrong to conclude from the analysis of principles in the abovementioned precedents that we are, as it were, held captive by our legal heritage and that we lack the vigour to fashion our own constitutional doctrines. Not so! Our essential constitutional form has throughout been autonomously our own, and remains so today. What is at stake is a historical-interpretative question that is concerned with the legal perspectives adopted at the time, with the constitutional result distilled from and founded on the same, and with the tenor of our precedents - representing, for some considerable time now, the accepted legal interpretation.

          Of course, there always remains the possibility that the Legislature may be disposed to replace the existing order with a new arrangement considered more suited to our time. Interesting proposals to this effect have been made, some of them ranging in substance far beyond the limited question of our immediate inquiry. Only in an appropriate manner, however, should we abandon a chosen path of the Knesset and the legislative purpose enshrined in the relevant provisions of the Transition Law and the Basic Law, especially when the powers conferred thereunder are of known scope after lengthy judicial analysis and circumscription. We should take care that any material change contemplated be not impelled by passing events, however stormy their nature, but result from orderly constitutional research and discussion. Any change resolved upon should be effected in a manner showing proper deference to a constitutional norm followed for a comparatively long time, that is to say, it should be done by way of legislative enactment.

 

12. In his directive the Attorney-General founded his conclusions as to the scope of the presidential pardoning power largely upon its comparison with his own power to issue a nolle prosequi:

 

A wider use of the power to order a stay of criminal proceedings has always been made in Israel, and in recent years thousands of requests for such a stay have been lodged annually with the Attorney-General. In practice, therefore, the power to pardon accused persons before completion of their trial needs less to be exercised in Israel than in England....

   A presidential power to intervene in criminal proceedings pending before the court, in a manner permitting termination of such proceedings at any time, is undesirable in principle. The pardoning power of the President bears no comparison with the Attorney-General's power to intervene in criminal proceedings by way of staying the same. The Attorney-General functions from the start as an integral factor in criminal proceedings, for he is empowered by law to prefer the charge on behalf of the State.... The President, on the other hand, is an extraneous factor in criminal proceedings. In this situation, his grant of a pardon in the course of a trial might be seen as an unwarranted intrusion into the domain of the court....

   Any interpretation that would empower the President to pardon also unconvicted suspects, suffers in addition the practical disadvantage of a concurrence between this power and the power of the Attorney-General to stay the proceedings against such suspects.

         

          In this connection it was contended that even in England the prerogative of pardon before conviction was no longer exercised. Accordingly, it was concluded in the directive that the President was competent to pardon only convicted persons, for the reason that his power to pardon unconvicted suspects had been replaced by the Attorney-General's power to order a stay of criminal proceedings.

         

13. The above argument is complex and involves, as we shall see presently, not only the matter of a nolle prosequi and its effects, but also other legal processes and their ramifications, including problems of interpretation. The full import of the argument is that a whole array of new penal laws enacted over the years have served to abrogate the power of pardon before conviction. It is true that the argument was not presented to us in precisely this form, but this was clearly its substance. It would be helpful, therefore, for us to dissect the argument into its component parts and different legal aspects, and to examine each in turn, namely:

          (a) First, what is the nature of the order staying a criminal prosecution, and what are the points of similarity and difference between this step and the power of pardon before conviction?

          (b) Second, what ground is there for the contention that the power of pardon before conviction is no longer existent in Anglo-American law?

          (c) Third, what other relevant statutory provisions exist on the issue before us, even if not mentioned in the Attorney-General's directive, or in the arguments addressed to us?

          (d) Fourth, can a constitutional directive deriving from statute or from the common law (where it exists) be considered to have been implicitly repealed or abrogated by later legislation dealing with the same subject?

          (e) Fifth, does the emergence, in practice, of a pragmatic legal substitute for an existing constitutional arrangement, implicitly repeal the latter, and is there any difference for this purpose between a constitutional or legal arrangement deriving from express statutory provision, and one which is solely the creation of judicial interpretation?

         

14. (a) As regards the issue of a nolle prosequi, it is provided in sec. 231 of the Criminal Procedure Law (Consolidated Version) of 1982, that the Attorney-General may stay the proceedings by reasoned notice to the court at any time after lodging of the information and before judgment; upon such notice the court shall discontinue the proceedings in that trial. The Attorney-General may also delegate to his deputy - either generally or in respect of a particular matter or classes of matters - his power to stay any criminal prosecution except in cases of felony. In a recent Bill for the amendment of the above Law (no. 1703, p. 34) it is further envisaged that the Attorney-General may delegate this power - in charges other than felonies, preferred by a prosecutor who is not an attorney of the State Attorney's Department (e.g. a police prosecutor) - also to the State Attorney or his deputy, to the District Attorney, or to any other attorney of the State Attorney's Department given the power of a District Attorney under see. 242 of the above Law. In the explanatory notes to that Bill, it was stated that the Attorney-General and his deputies were experiencing difficulty in handling the greatly increased number of requests made for a stay, and hence the proposed widening of this delegatory power.

          This proliferation of requests is apparently attributable, inter alia, to the proportion of such requests acceded to, and it is clear from the cited passage in the Attorney-General's directive, that thousands of requests are made annually in what seems latterly to have become a regular and widespread practice. I see no need to express any detailed opinion on the question (which is not in issue here) of the proper use of the power to stay a prosecution, and but for it having become interwoven with the argument now before the court, would have preferred not to deal with it at all. I shall merely state my lack of conviction that the wide use of the staying power, as described in the directive, is in accord with the lawgiver's underlying intentions and the character of the staying procedure. Any misgivings one might have with regard to the implications of a pre-trial exercise of the pardoning power, must also to a large extent accompany this phenomenon of a stay of criminal proceedings before the trial has run its course. We appear to be dealing here, not with the rare and exceptional exercise of a given power, but with a rapidly widening process which entails no public deliberation, no participation of any other authority, and which, by its very nature, allows little opportunity for judicial or any other kind of scrutiny (cf. K.C. Davis, Discretionary Justice, Baton Rouge, 1969, pp. 211-212). And, as already indicated, there are proposals afoot for a further, vertical, diffusion of this power.

 

          (b) Sec. 232 of the same Law provides that, following a stay of proceedings under sec. 231, the Attorney-General may upon written notice to the court renew the proceedings, provided no more than a specified period has elapsed from the time of the stay. Upon such notice, the court renews the proceedings and may commence them again from the start or continue from the stage of their discontinuance. Upon a second stay of the same proceedings, they may not again be revived. This means that the first stay does not finally close the matter, for it does not preclude the revival of the proceedings within a specified period, and only thereafter is finality reached.

         

          (c) The power to order a stay of proceedings is not to be seen as an institution of later legislative vintage than the pardoning power. The Attorney-General's power of stay did not first come into being in the Criminal Procedure Law of 1965, but existed before that under the Mandatory Art.16 of the Order in Council 1922. It continued to exist after the establishment of the State when the pardoning power was later re-enacted, first under sec. 6 of the Transition Law of 1949, and then under sec. 11(b) of the Basic Law of 1964 (see sec. 59 of the Criminal Procedure [Trial upon Information] Ordinance of 1924, and sec. 18 of the Magistrates Courts' Jurisdiction Ordinance of 1939). It follows that the theoretical parallel between the power to pardon and the power to order a stay of proceedings was there from the start - i.e. from the very inception of the pardoning power in its new constitutional guise after the establishment of the State - and that the power to stay a prosecution indeed antedated the Knesset's enactments on the power to pardon offenders.

          This fact alone should suffice to controvert the proposition that the presidential power of pardon was abrogated or curtailed by a later conferment of power on the Attorney-General to order a stay of criminal proceedings. The latter power coexisted with Art. 16 of the Order in Council 1922, and was still operative when the power to pardon offenders was widened in the Transition Law of 1949 and in sec. 11(b) of the Basic Law. And the construction of the power conferred under these enactments, in Matana and in A. v. The Law Council, did not precede, but followed the creation of the Attorney-General's power of stay.

         

          (d) On the relationship between the two powers, Justice Cohn, for instance, has said:

         

There is no similarity or parallel between the stated presidential power and the power of the Attorney-General to order a stay of proceedings: the one is a prerogative power, the other purely administrative; the one is subject to revocation and change at the Attorney-General's wish, the other is an act of much solemnity and by its very nature of rare and exceptional exercise ("Symposium," at p. 15).

 

          I myself am not inclined to view the Attorney-General's power as being administrative. It relates to a criminal procedure involving the exercise of a quasi-judicial discretion (see Schor v. Attorney-General [6]; Nof v. Attorney-General [7]). The purpose of the staying function was to reserve for the chief prosecution authority the power to halt criminal proceedings, without this entailing the consequences set forth in sec. 93 of the consolidated version of the Criminal Procedure Law (withdrawal of the charge), but retaining the possibility of resuming the proceedings within a given period. However, I do recognize differences between this power and the power of pardon, which I shall summarise presently.

         

          (e) There can be no full parallel between the power of stay and the power of pardon, since the former comes into play only after the suspect has been charged (sec. 231 of the Criminal Procedure Law [Consol. Version]). An immunity from prosecution promised a state witness who has not yet been charged, cannot be founded on the power of stay under see. 231, but only upon an Executive commitment or, if deemed fit, a pardon.

         

          (f) To sum up, the points of difference between the two powers are the following:

          (1) A stay of proceedings is inconclusive until expiry of the statutory prescribed period. A full and unconditional pardon, on the other hand, cannot be withdrawn (see Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System, St. Paul, 1976, p. 318).

          (2) A stay of proceedings under sec. 231 is possible only after the suspect has been charged.

          (3) A pardon (according to the decision in Matana ) acts to remove the stain of guilt utterly (in contrast, for example, to the prevailing approach in Britain, as expressed in R. v. Foster [42] and holding the pardon to wipe out only the consequences of the conviction; and see, in the U.S.A., Ex Parte Garland [52], and cf. Burdock vs. U.S. [53]; see also Killinger, Kerper and Cromwell, Probation and Parole, p. 322). A stay of proceedings is merely a trial procedure which, under the Criminal Procedure Law (Consolidated Version) of 1982, calls a halt on further activities from the time the stay is ordered, without any retroactive effect.

          (4) As a trial procedure acting to halt the proceedings, the stay of a criminal prosecution is not unique, as appears from sec. 93 of the abovementioned Law concerning withdrawal of a charge by the prosecutor.

          (5) It is necessary for the Attorney-General to give his reasons for issuing a stay of proceedings, whereas no reasons need be given for the issue of an instrument of pardon.

         

15. The comparison made with English law and the contended disuse of the pre-conviction pardoning power, as advanced in the Attorney-General's above directive no. 21.333, seems to show a confusion between the continued existence of a power and the frequency of its exercise. The fact of an abrogation of the royal prerogative to grant a pardon at any time after commission of the offence, is nowhere postulated in English legal writings. One view, stated for example by Hood Phillips (Constitutional and Administrative Law, p. 378) and by R.F.V. Heuston ( Essays in Constitutional Law, 2nd ed., London,l964, at p. 69), takes the form of a mere recital of the power as existing and valid, without any comment or reservation. Another view, advocated by De Smith, holds the prerogative power to be valid but slumbering, and capable of reawakening in special circumstances of need (Constitutional and Administrative.Law, at p. 150, n. 121):

 

It would seem that a pardon may be granted before conviction; but this power is not exercised.

 

Also (at 143):

 

In a Scottish appeal to the House of Lords ( McKendrick v. Sinclair [43] at pp. 116, 117 - M.S.), Lord Simon of Glaisdale said that "a rule of the English common law, once clearly established, does not become extinct merely by disuse"; it may "go into a cataleptic trance", but, like Sleeping Beauty, it can be revived "in propitious circumstances."

 

          It is noteworthy that under the heading "Pardon" it is provided in sec. 9 of the English Criminal Law Act of 1967, that "nothing in this Act shall affect her Majesty's royal prerogative of mercy." As formulated, the section makes no distinction between classes of free pardon. It is at all events clear that the exercise of this prerogative power has greatly diminished in England. Already in 1926 Sir Edward Troup wrote ( The Home Office, 2nd. ed., 1926, p. 57) that the prerogative was not exercised before conviction except in rare cases where the pardon would enable an important witness to testify without incriminating himself in respect of a minor offence. There is reason to believe that since then the power has come to be even less frequently exercised. But, as I have already said, the existence of the power and the measure of its use are two separate matters.

          The question of the continued existence of the prerogative power of pardon, alongside and notwithstanding the power to order a stay of proceedings, is discussed in an article written by A.T.H. Smith in which he states this conclusion ("The Prerogative of Mercy, the Power of Pardon and Criminal Justice," Pub. L. [Autumn 1983], 416-417):

 

   Whether or not the power continues to exist is a matter of some conjecture, but the better view would seem to be that it does. It has certainly not been abrogated by statute, and although it is true that prerogative powers can be lost or modified merely by disuse, as in the case of the royal power to sit as a judge, the criteria for deciding whether or not a power has become "obsolete" are far from clear. As a general principle, the rules of the common law (of which the prerogative is undoubtedly part) do not lapse through desuetude or obsolescence. Even though the power does not at present seem to serve any identifiable constitutional purpose, the prerogative has proved itself to be a remarkably enduring power, and one that can reappear at unexpected moments, and until the advance pardon is expressly abrogated by statute, the possibility that its use will revive at some future time cannot be discounted.

 

          In other words, the accepted view is that the prerogative power, which in England emanates from the common law and not from statute as does the power of pardon in Israel, has not been abrogated by disuse but continues to exist; moreover, neither in theory nor in practice is there anything to prevent its renewed use in special circumstances, and only an express statutory directive can extinguish its efficacy.

          As for the situation in the U.S.A., it will be recalled that the presidential power of pardon was exercised on two recent, well-known occasions. On the first occasion it was exercised in favour of President Nixon (39 Fed. Reg. 32601-02 [1974]). (In this connection see Murphy v. Ford [54] in which the grounds for exercise of the power were discussed; see also Mark P. Zimmett, "The Law of Pardon," Annual Survey of American Law, 1974/5.) On the second occasion, in 1977, the power was exercised by President Carter in favour of evaders of conscription in the Vietnam War, i.e. a form of pardon for a class of persons and a class of offences, bearing the character of a partial "general" amnesty. The pardon was formulated to extend, inter alia, to "all persons who may have committed any offence between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder" (42 Fed. Reg. 4391 [1977]). Bernard Schwarz writes of this pardon of 1977, "the legality [of which] was never questioned" (Constitutional Law, at p. 198). (On this pardon, see also G.S. Buchanan, "The Nature of a Pardon under the U.S. Constitution," Ohio St. L. J. 39 [1978], 36, 61, where the writer comes to the same conclusion.)

          The English system, so far as it is of comparative significance, seems accordingly to invite a conclusion that is the opposite of the one we have been asked to draw. If in England a power stemming from the common law has not lapsed or become obsolete notwithstanding the lack of its use, how much less so in our own case involving a statutory power construed by the Supreme Court (in 1960, in the Matana rehearing) as a valid and existing power in the opinion of all.

          As in England, so with us, the situation is one of a practical non-exercise of the debated power (see e.g. par. 5a of the Attorney-General's directive no. 62.100), rather than its explicit repeal. That is to say, the power itself has been reserved for use in exceptional cases, and its use knowingly restricted. The legal situation in the U.S.A. reflects a similar sparing use of the power of pardon before conviction, but its validity is clearly accepted there.

 

16. Our next assignment is to trace such other legal directives as may have a bearing on the aspect of pardon with which we are now concerned. In this regard Prof. Klinghoffer observed ("Lectures on Amnesty," at p. 7):

 

Showing mercy is not a monopolistic power of the State President. Other authorities too are competent to extend grace and clemency - as does the Attorney-General when issuing a nolle prosequi, or the Minister of Police when authorizing the early release of prisoners, with or without the recommendation of the competent board. The Military Justice Law likewise provides for the functioning of a penalty review board, with power to mitigate or substitute punishments, without derogation from the Presidential power of pardon. Already at the beginning of the lecture it was hinted that the contemporary trend is to permit the courts an increasing measure of mercy along with the doing of justice. Other matters affecting pardon and having constitutional implications, come into play when the quest for a pardon is pursued along the lines of a retrial.

 

          As already indicated, the statutory creation of an alternative legal framework for some of the processes for which the pardoning power is now used - in its various forms, mainly after conviction but also before - was proposed by Prof. Feller in his abovementioned article, "Rehabilitation." His proposal included a draft Rehabilitation Law, a supplemented and expanded rehearing facility, and an express narrowing of the provisions of sec. 11(b) of the Basic Law so as to encompass only respite or remission of punishments not yet served (as distinct from a pardon in respect of the conviction). Prof. Feller proposed a synthesis between new legislation and amendments to existing enactments, aimed at supplementing the existing arrangements on matters such as a stay of proceedings, review of punishment, mitigation of punishment and retrial.

          Some years ago the trend embodied in the above proposals gained momentum with the enactment of the Crime Register and Rehabilitation of Offenders Law of 1981, which provides, inter alia, for the automatic deletion from the register in certain cases of a person's previous convictions, for restricting the availability of information concerning the same, and like directives. In other words, we witness here the completion of part of the legislative program designed to establish new legal machinery that will give expression to and aid in the practical attainment of an equality of rehabilitative opportunity and rights.

          In sum, we see in existence today a number of statutory provisions to reach many of the same results as are attained through exercise of the power of pardon. Some of these provisions precede the Knesset's enactment of the existing power of pardon and its judicial construction, for instance those concerning the prosecution's discretion as to charging a suspect, or the power to stay criminal proceedings. Other such provisions have sprung up contemporaneously and in coexistence with the statutory directives concerning pardon, such as the provisions relating to retrial and review of punishment, while more recently provision was made, as already mentioned, for expunging a person's criminal record. Thus some of the new provisions apply in the pre-conviction stage of the trial, while others - and these form the bulk - are applicable in the post-conviction stage, i.e. the stage where most of the decisions affecting exercise of the pardoning power are in practice made today.

 

17. We must now give attention to the fourth of our questions posed above, namely, the nature of the reciprocal tie between existing legislation and new legislation on the same subject or, more specifically: does the emergence of a new statutory arrangement alongside and overlapping an existing provision entail any abrogation of the latter?

          The prevailing Anglo-American interpretative approach is to start on the premise that the lawgiver intends no tacit repeal of earlier enactments, particularly not when the enactments are all of modern date (see F.A.R. Bennion, Statutory Interpretation j London, 1984, p. 433, with reference to the decision in Jennings v. United States [44]; the same view is taken by R. Cross, Statutory Interpretation, London, 1976, 3). Incidentally, according to Cross. English law also does not recognize the possibility of abrogation of a law through desuetude, so that a statute will not cease to be valid merely on account of obsolescence. Generally speaking, express legislative direction is required for such invalidation.

          It is interesting that a similar approach was advocated by Prof. Klinghoffer, speaking at the time in a Knesset debate (Minutes of the Knesset, 43 (1965), 2319):

         

It is not the function of the prosecution to determine whether certain provisions of the penal enactments have become a dead letter. As long as they remain inscribed in the statute book they must be observed, and if their further observance be undesirable, it is up to the lawgiver - and not the prosecution - to repeal them.

 

          English law does not regard the mere concurrent existence of earlier and later legislative enactments on the same subject as warranting the inference of an implied repeal. This consequence flows only from contradiction between two enactments (see E.A. Driedger, Construction of Statutes, 2nd ed., Toronto, 1983, p. 226; also W.F. Craies, On Statute Law, 7th ed., London, 1911, p. 366). Cross succinctly states the situation thus ( Statutory Interpretation, p. 13):

         

The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together.

 

          In support the writer quotes the decision in Westham Church Wardens v. Fourth City Mutual Building Society (1892) [45], adding, "The fact that two provisions overlap is therefore not enough."

         

18. (a) The question of a repeal by implication was deliberated by this court in Haddad v. Attorney-General [8], which involved the relationship between different penal enactments prescribini different measures of punishment for one and the same offence. In a majority decision it was held, inter alia, as follows (at p. 1421):

 

If the contradictions and inconsistencies between the two Laws cannot be aligned and reconciled with each other, the conclusion cannot be avoided that the earlier enactment has been implicitly repealed by the new one. In keeping with that rule, it has been laid down that even though the new Law deals with an offence that is also dealt with in the earlier Law, both Laws may continue to exist together if the new Law is found to have a different purpose and for that reason prescribes a substantially different penalty for the offence concerned; in such event, the offender may be charged under either Law. If, however, the penalty varies in degree only, that is to say, the one enactment prescribes a heavier or a lighter penalty than does the other, the earlier enactment will be deemed repealed by the subsequent one (see Maxwell, pp. 193-194; also Henderson v. Sherborne [1837].

 

          Reliance upon the interpretative rule concerning repeal by implication, was founded in the above case on the doctrine that an accused person is entitled to be held to account under the less stringent of two penal directives applicable to him. Therefore, the directive of earlier date, which differs from the later one only in the heavier punishment it prescribes for the same criminal act, will be deemed repealed by implication. This interpretative rule operates only in respect of punitive criminal directives which are laid down in two separate enactments, each dealing with the identical act, omission or attempt. In other words, the contradiction finds expression, in the situation described above, in the different measure of punishment prescribed. That situation has little bearing on the problem now before us, and certainly the above rule of interpretation has no application to the situation described in the Attorney-General's directive, namely, a concurrence of the power of staying criminal proceedings and that of pardoning offenders. There is neither a contradiction nor an identity between the two.

         

          (b) The question of the rule to apply when the same power is extended in two overlapping Laws arose directly before this court in Filtzer v. Minister of Finance [9]. The issue was the effect on certain powers conferred under the Land (Acquisition for Public Purposes) Ordinance of 1943, of other powers to achieve the same objective conferred subsequently under the Rehabilitation Zones (Reconstruction and Evacuation) Law of 1965.

    For our present purpose, the above case is directly in point, since there too it was contended that the existence of parallel powers of different legislative vintage (in our own case the presidential pardoning power and the Attorney-General's power of stay) implied an abrogation of the earlier power. More specifically, it was argued in Filtzer that the Finance Minister's power of land expropriation under the Land Ordinance had been abrogated by the subsequent conferment of a parallel power on the rehabilitation authority constituted underthe later statute. Landau J. (as he then was) rejected the contention as to an invalidation of the power under the Ordinance of 1943, holding that even if the same purpose could be achieved under two different Laws, that did not preclude application of the earlier Law, though its provisions were less favourable to the citizen than those of the later Law. He noted that the two enactments were of equal status, and the Law of 1965 did not serve to deprive the Minister of his powers under the Ordinance of 1943, merely because the rehabilitation authority could achieve the same objective under the Law of 1965. Yet this conclusion had been said by the petitioners to be self-evident, in reply to which the learned Justice said (at pp. 119, 120):

 

The gist of the petitioner's argument is that the Law had effected a pro tanto repeal by implication of the earlier Ordinance in respect of all the eventualities covered in the Law of later date. Were it not for such an implicit repeal, it would anyhow be impossible to attribute to the Minister of Finance an abuse of his power under the Ordinance, when the exercise of such power is competent under the Ordinance as it stands. In H.C. 5/48 there arose a similar question in relation to the application of regulation 48 of the Defence Regulations of 1939. It was argued that this regulation had been implicitly repealed by regulation 114 of the Defence (Emergency) Regulations of 1945. This argument was rejected, the learned President (Smoira), quoting the following passage from Maxwell:

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

The reason for such extra caution in declaring a statute implicitly repealed, is clear: to act otherwise is to introduce an undesirable element of uncertainty into the interpretation of laws which derive their validity directly from the will of the Legislature.

 

          Landau J. referred also to the Haddad case [8], mentioning that ground for holding an earlier enactment to be implicitly repealed by later overlapping legislation, existed in the area of penal statutes, with specific reference to differences in the mode of trial or the punishment prescribed in the later legislation. Landau J. then quoted this passage from the judgment of Smoira P. in the above criminal appeal (at p. 1426):

         

Great importance attaches, in my opinion, to the principle of such an implied repeal specifically in the area of the penal law. One finds the theory as to a possible coexistence between two penal Laws dealing with the same offence, to be accompanied by the routine statement that the public prosecution may choose as it sees fit to prosecute either under the more stringent or the more lenient law. However, this statement has no foundation other than its   routine recital, and in my view violates the fundamental penal law rule: nulla poena sine lege. A plurality of penal statutes from among which the public prosecution has a right of selection, is tantamount to a situation of having no defined and certain law.

 

          The abovementioned statements are particularly instructive in the context of our present inquiry, as they show the court frowning in that case on the development of a situation in which the citizen who has committed an offence is dependent upon the prosecution's discretionary choice of the penal provision under which he be charged, whether the more onerous or the more lenient provision. "The penal law can affect the citizen' s freedom and reputation" Landau J. pointed out, adding that there was no like reservation with regard to other legislation in the public field.

          These views expressed by Smoira P. and Landau J. have a bearing on the contention that the Attorney-General's power of stay operates as an implied pro tanto repeal or curtailment of the presidential pardoning power. At stake is the repeal or abrogation of a recognized constitutional power, the power of pardon of such scope and substance in our law as fundamentally perceived and construed in the decisions of our courts. Any interpretation that seeks to narrow the hitherto understood scope of this power, would normally require to be unequivocally established, for, as already indicated, the tendency is to give constitutional powers a wide interpretation. It is all the more difficult, therefore, to adopt the perspective that a power entrusted to the prosecution, at the exercise of its sole discretion, should oust a constitutionally endowed presidential power. It would seem difficult enough to accept the proposition advanced even if we were talking about a power of the prosecution that was new, rather than one already in existence when the pardoning power was enacted. I must reiterate what I have already stressed, that the question here is the existence of the power and not the manner of its exercise.

          Our inquiry accordingly leads to the conclusion that the rule as to an implied repeal of a statutory provision by later overlapping legislation, is not applicable in the matter now before us. This is so not only for the reasons stated in the Filtzer case [9], but because the question of an implied repeal by later legislation actually fails to arise at all in our present matter, inasmuch as the Attorney-General's power of stay antedated the modern enunciation of the presidential pardoning power.

         

19. The fifth question we posed was whether the pragmatic development of defined processes in our current legal reality can curtail the operational scope of an existing constitutional arrangement which is essentially the product of statutory interpretation. This question entails here the notion of a pro tanto repeal of the concurrent part of an earlier enactment, a notion which was explained by Justice Landau in the Filtzer case to have no application in circumstances of the kind now before us. The answer to the question is negative.

          In the first place, the answer to the question would normally depend upon the substantive nature of the processes at work, as weighed against the degree to which the constitutional arrangement evolved from statutory interpretation, and upon which the stated processes would impinge, has taken root. If this arrangement is the outcome of a wide, basic constitutional perspective, its efficacy will not be diminished by processes which are not contradictory thereto.

          Second, we are dealing here with a contention that is in fact predicated upon a change in the rate and frequency of exercise of the power of stay. This change, so the argument runs, should be seen as justification for viewing the presidential power of pardon as having been curtailed. That is tantamount to saying that the Attorney-General, by the number of nolle prosequi's he issues, determines whether or not the presidential power continues to exist. I do not believe that this proposition finds any existing legal foundation. Jurisprudence does not yet recognise a biological process by which, within a complex of existing interrelated statutory provisions, a kind of law of natural selection functions as a mechanism for the abrogation of Laws for which there is abated need because they have, as it were, fallen into disuse.

          Third, there will be scant inclination in a democratic regime espousing the rule of law and individual rights, to adopt an interpretation that suffers the whittling down, and even negation, of a power destined mainly to serve the individual, and it matters little that there exist other parallel institutions exercising like powers.

         

20. We might conveniently summarise our above reasoning as follows:

          (1) It is our accepted view that a legislative overlapping or even duplication does not in itself abrogate an existing enactment or power.

          (2) The validity of a statutory directive is not annulled by the fact of its disuse or rare use.

          (3) An implied repeal of statute law may result either from directives which are contradictory in content or, in the penal field, from the prescription of a lighter punishment in a later enactment. The presence of such contradictory directives was not argued in the matter before us, nor have we perceived it to exist. That the existence of two concurrent competent authorities does not in itself amount to a contradiction is clear from the ruling in Filtzer [9].

          (4) The mere fact of an overlapping between the power of stay and the power of pardon before conviction, does not invoke the rule of interpretation that would negate one of the two arrangements. The one is a procedural power, whereas the other is among the powers vested in the person who functions as the formal Head of State. The latter powers were fundamentally, by their very nature, intended to produce similar consequences to those resulting - to one extent or another, whether by legal design or in practice - from the acts of other governmental authorities. The two powers are of different juridical substance and the one does not negate the other.

          (5) The crucial question is whether the power of pardon before conviction was ever actually created. Once it transpires that this court has recognised the existence of such a constitutional power, and regarded it as an element of the wider presidential pardoning power, the same can no longer be amenable to an inadvertent or implied repeal. It is proper that the repeal of a constitutional power be effected only after due consideration and in a patent and advertent manner, as befits the subject of the repeal. Moreover, the rule of law is fortified when we show respect for our constitutional directives, inter alia, in the way we set about their amendment or repeal.

 

21. Were we to hold that the very enactment of new legislation can curtail the scope of an existing statute, or even implicitly repeal an express constitutional provision, then surely even the presidential power to pardon after conviction should be overtaken by the same consequence. A retrial, or the different punishment review boards, or the operation of the abovementioned Law concerning the rehabilitation of offenders, all serve purposes which overlap, partly at least, those of a pardon after conviction. As already indicated, this situation lately assumed added significance with the enactment by the Knesset of the Crime Register and Rehabilitation of Offenders Law of 1981, incorporating the ideas of Professors Klinghoffer and Feller.

          The argument as to legislative duplication and overlapping mechanisms, can hardly be confined to comparison of a stay of proceedings with the power of pardon before conviction (and substitution of the one for the other), but should properly embrace all the pertinent parallel mechanisms in the field of the constitutional as well as the penal law. An interesting illustration of the possible co-existence of parallel powers in the post-conviction stage, is provided by the Privy Council decision in Thomas v. The Queen [46], where the power of pardon of the New Zealand Governor-General was not considered invalid in relation to the class of cases in which the law permitted a retrial.

          There is no logical basis for a mode of interpretation that would differentiate, for the purpose of determining the scope of validity of the pardoning power, between the various new statutory provisions and their effects, and single out precisely those pertaining to the pre-trial stage. The power of pardon has been interpreted in our law in relation not only to the post-conviction stage, but also the pre-trial as well as the trial stages, and the fact of a gradual evolution of overlapping and parallel mechanisms provides no justification for a selective kind of interpretation.

          In fact we have here no implied repeal, nor any other phenomenon of an extinction without trace. When dealing with a constitutional directive such as sec. 11(b) of the Basic Law, we cannot sanction the elimination of any part thereof except by an explicit statutory provision which, after all, is the product of methodical study and preparation and is founded upon tried and tested legal concepts rather than chance eventualities. It is important that objectives of constitutional import be attained in a seemly manner.

          In recapitulation, it seems clear that an enacted constitutional power is not repealed except upon express statutory directive, and that the statutory conferment on the prosecution of a power which is similar in content to that exercised by the President, does not act as an implied repeal of the constitutionally bestowed presidential power. It follows that the presidential power as construed in the cases of A. v. The Law Council and Matana, continues to exist and remain valid so long as not repealed by the Knesset.

          I would not disparage the view that the power of pardon needs to be reconsidered in a manner leading perhaps to revisory legislation. Any deliberation towards this end should, in the nature of things, encompass also a solution of the problem that arises, not infrequently, from the contradiction between the judicial decision and the pardon that follows it. The search for a proper balance and separation between the different Executive organs, and the coordination of their separate activities, does not come to an abrupt halt at the chance limits set by the legal dispute in a particular matter.

 

Juridical Substance of the Pardoning Power

 

22. Our next matter for inquiry, as I have already indicated in paragraph 8 of this judgment, is the juridical substance of the pardoning power.

          The power of pardon has ancient roots, and has for thousands of years been so interwoven with the ruler's status, as to induce an opinion that it finds no place in a democracy (see e.g. Blackstone's Commentaries, p. 397). The view that pardon was a feature of autocratic rule also found expression at the time of the French Revolution, when the power was abolished for the first time and left without trace for some years. Beccaria (On Crime and Punishment, New York 1963, pp. 58-59) saw an unbridgeable gap between his own penological perspectives and the power of pardon. Yet the power has survived in an overwhelming majority of world legal systems, although in a rich variety of forms so far as concerns its scope and the authority in whom it is vested (see Dr. L. Sebba, "The Pardoning Power - A World Survey," J. Crim. L. and Criminology 68 [1977], 83). The prevailing constitutional perspective is that the pardoning power now reposes in the people who, by the force of legislation, confer it in turn on a defined authority ( Am. Jur., supra, at p. 10).

          As to the variety of constitutional arrangements, I might briefly mention that sometimes the power of pardon vests in the Head of State, i.e. the President or the King; sometimes it entails the functioning of an advisory board representing all or some of the connected governmental authorities, or consultation with the court or a special judicial tribunal, or a judge (see J. Monteil, La grace en droit francais moderne, Paris, 1959, p. 22). In other countries the actual power is wielded by the legislature as such (for instance, in Switzerland and Uruguay), or by the judiciary. Sometimes the power is vested in the Council of State (for instance, in a number of Eastern European countries and in South Korea), or in the Presidium or a council specially constituted for this purpose. In Sweden the power rests with the Government and in the U.S.S.R. with the Supreme Soviet Presidium.

          These examples illustrate, without exhausting, the range of pardoning powers, which vary also in their prescribed procedures, such as the manner of lodging the request, of consultation with judicial bodies or other agencies, and of arrival at the decision. In Australia, for instance, an inquiry is conducted in all cases by a Justice of the Peace appointed by the Governor-General or by a Judge of the Supreme Court.

          In some countries the power of clemency is confined to the reduction of punishment alone (as in France, but there one finds also the special power of la grace amnistiante, which enables the grant of a full pardon to certain classes of persons; see Monteil, La grace, at p. 207). Pardon before conviction is possible in numerous countries, inter alia, the U.S.A., Britain, New Zealand, Singapore, Malawi, Sri Lanka, Iceland, Czechoslovakia, Lichtenstein, and the State of Queensland in Australia (see Dr. L. Sebba, On Pardon and Amnesty, at p. 291). In many other countries, however, there is pardon after conviction only (for instance in India, where the restriction is statutorily prescribed). The legal consequences of a pardon also vary greatly from country to country.

          In some countries the actual decision may be directly or indirectly challenged in the courts, whereas elsewhere, for instance in France, the decision offers no ground for recourse to the courts, whether as to the legality of the decision or as to its substance within the national framework. F. Luchaire and G. Conac phrase the situation thus: tant au niveau de leur legalité qu'au plan de la responsibilité de l'Etat (La constitution de la republique francaise, Paris, 1979, p. 351). The writers rely in this connection on a resolution of the Conseil d'Etat (30.6.1892; Gugel, Dalloz Periodique, 1894, III p. 61; 28.3.1947, Gombert, Sirey, 1947, III p. 89).

          Sometimes pardon is granted for political offences alone (for instance in Colombia), and at other times these are specifically excluded as a type of offence for which a pardon may be granted.

          Our purpose in sketching the abovementioned varieties and possibilities of pardon, is to illustrate the lack of any uniform model and the fact that virtually every legal system has fashioned its own peculiar perspective on the subject, in harmony with its other governmental institutions. For comparative purposes, it is of no moment that in the U.S.A. the President, in whom the power of pardon is vested, serves to head the executive, whereas in Israel the President fulfills the function of a titular and formal Head of State - much like the arrangement in England, adopted also in many of the European democracies after World War I. There is no uniform tie between the nature and general status of the executive office filled by the holder of the pardoning power, and the power itself, since it is sometimes vested in authorities other than the President or King. When this court made reference in Matana and in A. v. The Law Council to the constitutional situation in Britain or the U.S.A., it did so, not in order to link the Israel arrangement to one or another foreign complex of powers, but to indicate the source and substance of the viewpoints we ourselves adopted. These the court found reflected in what was taken at the time to be the prototype for our own constitutional mould when our initial autonomous directives to this end came to be enacted. Once domestically fashioned, the powers became independent of any influence other than our own perspectives and concepts. Processes in other countries may be of instructive and comparative interest, but cannot deflect us from what is customary and accepted here until such time as we ourselves decide to change the approach, and do so in the appointed manner, having regard to the character of the subject and the substance of the power concerned. For this reason, too, there is little logic in seeking guidance from other systems structured upon essentially different perspectives. If, for instance, French law decrees that grace, in the case of an individual, shall relate only to the punishment and not to the conviction (except in the case of grace amnistiante ), there is little we can learn from it as regards the possibility of pardon before conviction. The French method of grace, incidentally, seems to differ also from our own method of remission of punishment, for instance in relation to a mandatory death sentence. (On the reservations of former French President Giscard d'Estaing in this connection, see Luchaire et Conac, La constitution, at p. 348.) The opposite applies in Belgium, where remission Of a mandatory minimal punishment is possible (see Dr. Sebba's article "The Pardoning Power," at p. 86). In short, the lack of a power of pardon before conviction in France or Germany, for instance, has no bearing on the present situation in our law since the models in those countries played no part in the shaping of our constitutional framework of pardon. Furthermore, for a proper evaluation of standards, we should put the emphasis on the substance of the pardoning power, and not on the functionary who exercises it, or the manner of its exercise. In our law it has been held that the President is invested with the widest form of the power of pardon (as regards offences) and clemency (as regards punishment), being empowered to obliterate even the stain of the offence and not only its consequences. That is our existing legal situation and it is in the light of this conclusion that we have to draw further inferences as to specific aspects of the power. The fact that proposals have been made to change the legal situation - and I certainly am not opposed to the discussion of these ideas, and even the adoption of some of them - does in no way affect the substance of the existing law.

 

23. It accordingly transpires that in the present case the decision to pardon came within the formal scope of the State President's power. In this regard it should be noted that the lawgiver has made provision for the preliminary ascertainment of this court's views on matters of pardon. Thus sec. 32 (a) of the Courts Law (Consolidated Version) of 1984, provides that upon a request for a pardon or reduction of sentence lodged with the President, any question which arises and in the opinion of the Minister of Justice deserves to be dealt with by the Supreme Court, but which provides no ground for retrial under sec. 31 of the Law, may be referred by the Minister to that Court.

 

Exercise of the Power

 

24. Having concluded that the President has a valid power to pardon before conviction, we might now inquire as to the occasion for its exercise. In fact the power has so far remained virtually unused, such a pardon having been granted until now in only a small number of exceptional cases, some of which were brought to our notice in the course of our deliberations here. It is only right that the power be used sparingly, for only the most exceptional circumstances of paramount public interest or personal plight - for which no other reasonable solution can be envisioned - will justify such anticipatory intervention in the normal course of the trial proceedings. It would be wrong, therefore, to attempt to classify in advance the proper cases for the exercise of this power.

          The decision to pardon was held by Justice Marshall of America to be generally motivated as an act of grace ( United States v. Wilson [55], at pp. 160-161), but the prevailing American approach is to rest the decision on considerations of the public welfare (see: Biddle v. Perovich [56] at p. 486; and see also C.C. Joyner, "Rethinking the President's Power of Executive Pardon," Federal Probation 43 (1979) 16).

          As the general starting point for examining an exercise of the pardoning power, I am disposed to accept the approach enunciated in Montgomery v. Cleveland [57] at p. 1157:

         

While a pardon is a matter of grace, it is nevertheless the grace of the State, and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him.

 

          Normally, a pardon is not a natural further progression in the course of judicial proceedings, but should properly come into play only in exceptional circumstances which involve a material change in the situation after completion of the trial proceedings, and warrant an alteration of the judicial decision. All the more rarely and exceptionally, therefore, should the power of pardon be exercised before conviction, this being a reserve or residual constitutional power left with the President - something in the nature of a "safety valve."

          A theoretical example of circumstances warranting the grant of a pre-conviction pardon, was outlined by Prof. Klinghoffer in his abovementioned statement before the Knesset, the relevant passage from which I shall repeat below for the sake of convenience:

         

Another unconvincing argument advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council, H.C. 177/50.

 

          As a further example one might mention that reasons of state, involving arrangements with hostile elements, have been recognized in the past as legitimate grounds for the early release of prisoners from custody, even before completion of the trial and, implicitly at least, as warranting also the grant of a pardon (cf. H.C. 228/84 [10]; H.C. 270/85 [11] and Bar-Yosef v. Min. of Police [12]). Of course, even in the stated circumstances every case would still require to be examined independently and the situation would vary from one concrete set of circumstances to another.

         

25. Just as it would be inconsistent with the purpose of pardon for it to become converted into a kind of instance of appeal from judicial proceedings, so too pardon before conviction ought not to become a mode of appeal against the decisions (to prosecute) of the public prosecution. This slumbering, residual kind of power has been preserved for sole use in the exceptional situation of a risk of serious harm which the holder of the power may legitimately take into account, which is incapable of being warded off by other means, and thus warrants relaxation of the essential restraint on the exercise of the power.

          In concluding my remarks on the instant point, I should like to recall, and endorse with such changes as may be necessary, the recommendation made by Dr. L. Sebba (On Pardon and Amnesty). He proposes that even upon adoption and completion of the comprehensive legislative program proposed by him for the creation of machinery to deal effectively with all matters and foreseeable problems connected with or likely to result from punishment under the criminal law, there should still be left with the President a reserve or residual power, as he put it, to deal with exceptional cases (at p. 267):

         

However, even if all the proposed solutions be accepted, we do not recommend the complete abolition of this power. Even if the parole arrangement be instituted, even though it embody regulation of the penalty of life imprisonment, and even upon the abolition or qualification of prescribed minimal punishments, there will always remain special cases in which the offender will not find salvation unless the President be empowered to come to his aid. It is true that the flexibility contributed by the pardoning power to the process of meting out the punishment, has largely become redundant in view of the increased freedom allowed the courts over the years in this regard. It is also customary nowadays to enable the Executive to intervene in the more advanced stages of implementation of the punishment, so as to maintain flexibility in these stages as well. But in the end it is still necessary to leave an opening for intervention on the part of some additional authority, in the event that the other two authorities be unable to effect the desired solution. The proper authority for this purpose is indeed the State President, who ranks in status above the other two authorities, and especially since there is sometimes involved a departure from the policy laid down by the third authority, i.e. the Legislature. In these residual cases there remains room, therefore, for entrusting the President with a power that will function as a kind of "safety valve" in the event the customary processes provide no solution.

 

          And now, arising out of the hearing of the instant petitions, there are some additional observations I have to make.

         

The State and the Rule of Law

 

26. (a) The rule of law is not an artificial creation. It is to be observed in a concrete day-to-day manner in the maintenance of binding normative arrangements and their actual application to one and all, in the upholding of the basic freedoms, in the insistence upon equality and the creation of an atmosphere of trust and security. The rule of law, the public welfare and the approach of the State to problems are not opposing conceptions but complement and sustain each other.

          The court is specially charged with the practical realisation of these expectations, but all of the State organs are committed to the attainment of the stated objectives. One cannot conceive of a sound administration without maintenance of the rule of law, for it is a bulwark against anarchy and ensures the State order. This order is essential for the preservation of political and social frameworks and the safeguarding of human rights, none of which can flourish in an atmosphere of lawlessness. National security also leaned on the rule of law, both in protecting internal policy measures, and in aiding the creation of means to combat hostile elements. There can be no organized activity of any body of persons, or any discipline, without norms based on binding legal provisions.

         

          (b) Sound government requires that the authority concerned be in full possession of the relevant facts before acting. It is not necessary that the information be known to all, and the confinement thereof to a few persons is sometimes not only desirable but also legally imperative. Yet the need for the responsible authority fully to acquaint itself with the facts increases as the subject takes on greater importance. It must be remembered that the "leaking" of classified information does not happen by itself, but by its deliberate or accidental disclosure by some person involved.

         

          (c) Sound government is founded upon the faculty of sound decision making, which there can never be without prior knowledge of the relevant particulars, no matter the subject of the decision. The matter was discussed by this court in Berger v. Minister of the Interior [13], in the context of the Minister's duties with regard to the introduction of summer-time or "daylight saving." In background importance the subject, of course, did not match that which is now under deliberation, but the principle enunciated there is equally applicable elsewhere. In the above case the court formulated rules affecting the manner of ministerial decision making, reiterating the obvious proposition that this should result from and be structured upon knowledge of the factual situation.

          Sound administrative procedures will ensure diverse facilities for obtaining information, maintaining constant supervision and overseeing the implementation of directives. The process of gathering information or holding an investigation, when necessary, may also assume different forms. Here one golden rule has to be observed, valid for purposes of administration as well as inquiry, namely: the sooner a matter calling for investigation is examined, the better from all points of view. A particular authority may perhaps confine information departmentally, or otherwise restrict its dissemination and ensure that no harm result from the disclosure or obtaining of information. But there are no circumstances that allow an administrative authority to refrain totally from investigating a matter which may bear upon its capacity, and that of its subordinates, to function properly, and to decide issues within the scope of its immediate responsibility, or perhaps affecting its responsibility to the public at large. There is a world of difference between a decision to hold a controlled and protected investigation, and a decision not to conduct one at all. The latter option would be like trying to cross a busy road with one's eyes shut.

 

          (d) There are different ways to conduct a confined or departmental inquiry or investigation into any subject - including recourse to whatever legal proceedings be considered necessary - without prejudicing the national security. Such problems have been dealt with before, and I shall say no more on the subject on the assumption that the processes mentioned by the Attorney-General in his intimation of 15 July 1986, have been set in motion.

 

The President as a Respondent

 

27. On 30 June 1986 we ruled to delete the President's name as a respondent in petitions H.C. 431/86 and H.C. 446/86, and ruled likewise on 20 July 1986 in petition H.C. 463/86. Our reason for so doing is set forth in the Basic Law: The President of the State, sec. 13(a) of which reads as follows:

 

The President of the State shall not be amenable to any court or tribunal, and shall be immune from any legal act, in respect of anything connected with his functions or powers.

 

When he granted the instant pardon, the President was acting in a matter "connected with his functions and powers," so that he is not amenable to the jurisdiction of the courts in connection therewith, including this court's powers of direct review - its authority to demand of the President himself an explanation of his decisions. This immunity relates to the direct challenge of any presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions - in proper cases and when the proceedings are directed against some other respondent, as happened, for instance, in the case of Bar-Yosef v. Minister of Police [12].

 

28 (a) The question of the legality of the pardon granted is of wide range, embracing as it does both the power itself and the manner of its discretionary exercise. As regards the power itself, we have dealt extensively with the matter and sought to provide the correct answer above. With regard to the exercise of the presidential discretion, this court has had occasion to comment as follows, in connection with a ministerial recommendation for a pardon referred to the President:

 

Even if the President was misadvised, or even if he himself erred in the exercise of his discretion, the legal validity of his decision remains unaffected thereby and this court does not sit in appeal from the President's decision" (Barzilai v. The Prime Minister [14] at p. 672).

 

          The matter calls for a measure of clarification and qualification. It is accepted that in exercising judicial review, the court does not assume the role of the functionary whose conduct is under challenge (even if indirect) but examines whether the functionary acted as one in his position should have done ( Nof v. Attorney-General [77] at p. 334). The court does not seek to project and substitute its own decision but intervenes only when convinced that no reasonable authority in a similar situation could have arrived at that same conclusion. The degree of reasonableness required depends upon the status of the authority and the nature of its powers. That is to say, in exercising its jurisdiction the court will also have regard to the identity of the constitutional authority whose conduct is under review. The norms for the judicial review of discretionary power will in any event incorporate reference to the functional character and nature of the authority concerned (cf. Sarid v. Knesset Chairman [15] at pp. 203-4).

 

          (b) The petitioners' criticism of the President's exercise of his discretion extended also to the paucity of the information made available to him prior to his decision, as well as the haste, so it was further contended, with which the different pardons were deliberated and granted, and like contentions. I find none of them to provide any ground for intervention by this court. First, as regards the facts, there is no reason to dispute the declaration before us that the President was fully informed and had also met twice with one of the persons later granted a pardon. The fact that he did not meet with the other three applicants can hardly be regarded as an impropriety, as in fact the President normally deals only with written requests for a pardon and it is exceptional for him to meet with the applicant (see E. Abramovitz and D. Paget, "Executive Clemency in Capital Cases," N.Y.U.L. Rev. 39 [1964], 136, 137; and see Dr. Sebba, On Pardon and Amnesty, at p. 194). Once it is established that there was evidence before the President of the commission of offences as set forth in the pardon applications referred to him, whether verbal or in writing, and also that the applicants admitted having committed the criminal acts for which they asked to be pardoned, then clearly the President had before him sufficient particulars upon which to decide, thus leaving no ground for the court's intervention.

         

29. A further argument concerning the presidential pardoning power, focused on the distinction between amnesty and individual pardon, was addressed to us by Adv. Michal Shaked, learned counsel for the petitioners in matter H.C. 448/86. She contended that the circumstances of the grant of the pardons indicate them to have been in the nature of an amnesty, whereas the President enjoyed no such power, but the power to grant individual pardons alone. In support of her contention counsel quoted the following statement (extract from The Attorney-General's Survey of Release Procedures, Department of Justice, Washington, 1939 vol. III):

 

In an attempt to classify the institution of amnesty, we may state that it belongs to the upper concept of pardon. It is a plurality of pardoning acts, and its main feature is that the amnesty determines the conditions and the extent of the pardon by groups of persons or groups of crimes or by certain general attitudes of the individuals concerned. There is a pronounced predilection to lay stress on the motive. Even the exceptions and limitations in an amnesty are generally given by groups, regardless of the merits of the single case.

 

          It indeed appears from the decision in Matana [3] (at p. 445) that the President enjoys the power of individual pardon only (as is the case in England). But that exactly was the power exercised by the President in the instant case. It is true that he issued four different warrants of pardon, but each of them related solely to the individual named in that warrant and to the offence therein stated. The warrants did not define the right to the pardon according to a class of persons, or offences, or qualifying conditions. The fact that a number of pardons are granted simultaneously to several individuals involved in the same act or incident, does not serve to convert each separate warrant, or all of them together, into an amnesty (see Dr. Sebba, On Pardon and Amnesty, at p. 61).

         

Locus Standi

 

30. At the commencement of the hearing learned counsel for the respondents asked for dismissal of the petitions in limine, on the ground that the petitioners had no legal standing to contest the validity of the pardons granted. It was argued that these were in the nature of an individual act of the President and of concern to the recipients of the pardon alone. It was contended that the petitioners could not point to any real and direct personal interest in the invalidation of the pardons, as these operated solely for the benefit of the individuals pardoned (certain of the respondents in these proceedings), so that the petitioners, far from seeking any relief for themselves, were motivated merely to deprive others of a benefit (see Becker v. Minister of Defence [16], at p. 147).

          The absence of a real personal interest, even if this be true of the petitioners in the present case, does not, however, justify the immediate dismissal of the petition. This court has already held that it would take a liberal view on this aspect and grant access to petitioners where the question that arose was "of a constitutional character" ( Segal v. Minister of the Interior [17] pp. 429, 433), or "of public interest related directly to the advance of the rule of law" ( Shiran v. Broadcast Authority, [18] at 374; see also Dr. Zeev Segal's illuminating book, Standing Before The Supreme Court Sitting as the High Court of Justice, Papyrus Publishing, 1986). Needless to say, there is no general recognition here of the actio popularis, a "public petition" to the court, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

          Guided by the above rule I find the petitions now before us, which centre on the scope of the presidential pardoning power under the Basic Law: The President of the State, to disclose sufficient petitioner interest for recognition of their standing.

         

The Approach of Justice Barak

 

31. I have meanwhile had the opportunity of reading the interesting opinion of my learned colleague Barak J., and I am prompted to make several further observations in elucidation of our divergent approaches.

 

          (a) I naturally take no issue with the fundamental doctrine that we must decide according to our best knowledge and understanding of the law, regardless of the surrounding influences of the time and the subject concerned. That standpoint has always been customary with this court, and nothing new has happened in this generation to change the court's perspective.

         

          (b) A perusal of Justice Barak's opinion may lead one to think that our present subject has no acknowledged legal starting point founded in precedent, and that one is being referred (in Matana and in A. v. The Law Council) to nothing more, as it were, than some forgotten obiter dictum raised here from oblivion for the first time and elevated - without legal justification - to the standing of a recognized legal thesis. One might further gain the impression that even Justices Agranat and Berinson intended no differently in the above precedents. I must reject this approach because it does not accord, with all due respect, with the factual situation. The legal proposition that the President is endowed with the power of pardon before conviction, was clearly demonstrated first in the case of A. v. The Law Council and later, even more emphatically, in the Matana majority decision. Incidentally, even Landau J., at the end of his dissenting opinion in Matana. noted his complete agreement with the opinion of Berinson J. (at p. 461), whose remarks on the presidential power to pardon before conviction have already been quoted in full above.

          In brief, the ruling in Matana has become known and accepted as faithfully reflecting, for some decades now, the prevailing law on the subject. Confirmation thereof is to be found in the written commentaries and in all academic discussion of the subject. This situation has been so clear to all as to have prompted the two distinguished jurists who advanced a different perspective on the subject (Professors Klinghoffer and Feller), to acknowledge that their view was not in accord with the approach of the Supreme Court - which they interpreted substantially as I have understood and set it out above. One of them, moreover, relied on the very existence of the pre-conviction pardoning power for a proposed solution to other legal problems discussed by him at the time (see Prof. Klinghoffer's abovementioned remarks in the Knesset - Minutes of the Knesset, 43, p. 2319). It will be recalled that one of these jurists (Prof. Klinghoffer) based his approach upon a construction of the language of the pardoning directive, while the other (Prof. Feller) argued on the basis of the working of a complex of new (overlapping) statutory enactments, but I gather from the remarks of Justice Barak that his own viewpoint is founded on neither of the above two perspectives.

          There is no escaping the fact that Justices Agranat, Berinson and Cohn (to whose clear statements on the subject Justice Barak has not referred) all unequivocally expressed their opinion on the power of pardon before conviction within the general framework of pardon. That opinion has held sway until now. It was on the strength of an identical opinion that a past Minister of Justice, P. Rosen, acting upon the Attorney-General's advice, referred recommendations to the President for certain pre-conviction pardons which were subsequently granted. Our task here is not to search for the desirable constitutional framework, but rather to ascertain the existing legal situation concerning pardon in Israel, just as it was in fact enunciated by this court many years ago, without so far having undergone any change.

 

          (c) The constitutional development towards the existing situation was clearly traced in the Matana decision, from which one can gather the court's reasons for construing as it did the scope of the pardoning power under sec. 6 of the Transition Law and sec. 11(b) of the Basic Law: The President of the State. It is not possible to ascertain the meaning of an expression in a Law by seeking to unravel the true wishes of Knesset committee members from the surviving summaries of their statements in minutes of proceedings never published. In my recognition, the answer lies in an understanding of the legislative purpose. This is to be derived from the "spacious" interpretation to be given to constitutional provisions; from the construction of expressions according to their manifest purpose; and from factors such as legal background and development, constitutional analogy, the characteristics of our legal system and our own constitutional notions as given expression, inter alia, in the very determination of the presidential office, its object and functions. All these were dealt with in the Matana case and I shall not cover the same ground again.

          Justice Barak has sought to point out a divergence between the interpretative approach in Matana, and my own approach. Little substantiation of this has been provided, however. There is no substantial difference between the "historical-interpretative approach" said to have been adopted by me here, and the so-called legal-constitutional approach ascribed to Justice Agranat, and the difference in title is but a semantic one. Substantively speaking, the two approaches are alike: that followed on the one hand by Justices Agranat, Berinson and Cohn and - on the question of pardon before conviction - also adopted without reservation by Justices Silberg and Landau, and on the other hand, my own approach here. My learned colleague has commented thus:

         

Justice Agranat accordingly did not construe the Transition Law on the basis that its legislative purpose "was fashioned in the Anglo-American mould, which served as its prototype."

 

          In support of this connection he quotes the following observation of Agranat J.:

         

The result is that the ground of the absence of any similarity or comparison between the status of the President of our country and that of the British thrown (or of the President of the United States) is erroneous.

 

          This observation speaks for itself and, with all due respect, refutes my learned colleague's contention in indicating the opposite conclusion.

         

          (d) The legal situation in France, Germany and Italy was not fully portrayed in the Matana case, and I should like to clarify some additional facets. As far as I am aware, pardon before conviction is known in Italy too, but the pardon only comes into operation if the suspect is later convicted. This arrangement does not preclude putting the suspect on trial, and allows for an acquittal on the merits without recourse to the pardon. Briefly, in Italy and in Germany there has evolved the duality of a judicial pardon side by side with an extra-judicial one justizgebundener Gnadenakt and justizfreier Gnadenakt, see Mario Duni, Il Perdono Giudiziale, Milan, 1957; Richard Drews, Das Deutsche Gnadenrecht, Cologne, 1971; Klaus Huser, Begnadigung und Amnestie als Kriminalpolitisches Instrument, Hamburg, 1973).

 

          Judicial pardon or clemency, I believe, should be seen as a convincing reason for gradual curtailment of the Executive pardon. This process, which is also discussed by Prof. Feller within the wider framework of his proposed legislative program, has acted to shift the focal centre of the pardoning decision from the King, or President, to the judicial tribunal or special statutory bodies created to deal directly with the review of conviction and punishment (retrial, release and parole boards, and the like). The comparison of our system with those applied on the Continent is therefore questionable and premature in the existing state of affairs.

         

          (e) As to the pre-conviction pardoning power in England, concerning which too Barak J. has expressed reservations, I need only reiterate that there is not a single English constitutional text that fails to mention the continued legal validity of this power, though it be reserved for use in exceptional cases. Even the post-conviction pardoning power would seem to be somewhat less frequently exercised in England nowadays.

          I must also contest Justice Barak's endeavour to distinguish the American constitutional situation from our own on the basis of the President's status there as Head of the Executive. In fact, the power of pardon was originally conferred on the U.S.A. President as part of the legal continuity adopted there, with the concomitant imitation of the English model of the King's prerogative power (see the majority decision in Schick v. Reed [58], per Burger C.J.). The view that the U.S.A. President holds the pardoning power in his capacity as Executive Head, runs counter to authority:

         

Our government is established upon the principle that all governmental power is inherent in the people. Hence, crime is an offense against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon. As subsequently is noted, the people may confer the pardoning power upon any officer or board that they see fit ( Am. Jur., at p. 10).

 

          The import of the passage is that the U.S.A. President holds his power as representative of the people and it is not his executive capacity, designation or status that determine its scope.

          In our own constitutional framework the President stands outside the political arena, and this neutrality should allay at least one of the apprehensions expressed by my learned colleague. Moreover, the conferment and exercise of all power can and should properly be subjected to supervision and review, as was indeed noted by Justice Agranat in Matana (at p. 461):

         

   Nor have I overlooked the fact that to endow the power in question with its "full" content may lead to its excessive use, which in turn involves the danger that the authority of the law in the eyes of the public will be weakened. My reply to this point, however, is that every instrument of pardon by the President requires the countersignature of the Prime Minister or one other Minister (sec. 7 of the Transition Law, 1949). This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the Minister concerned. This Minister will ordinarily be the Minister of Justice who has the means of conducting a precise investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to.

 

And Justice Cohn had this to say on that same point (at p. 465):

I have no fear whatsoever of any supposed impairment of the courts power to judge and to punish by the extent that the President of the State is empowered to change or set aside the results of their judicial acts. I could see some slight ground for fear and some small degree of impropriety if the power in question were possessed by the government or one of its organs, or even by the Knesset, for that would perhaps involve some confusion of the boundaries between the judicial on the one hand and the executive or legislative authorities on the other. The President of the State, however, stands above all these three authorities. He embodies in his person the State itself.

 

          So far as I am concerned, the existing Israel form of the pardoning power is not a sine qua non for the maintenance of orderly constitutional government. The variety of arrangements made on this subject in different countries is indicative of more than one solution to a universal problem. Our own arrangement is hardly, therefore, to be seen as the sole possibility. The central feature of the pardoning power wielded is a personal, selective decision which is dependent, inter alia, on the recommendation and countersignature of an authority of a political character, i.e. the Minister. My own inclination is to prefer some new legislative arrangement that will introduce appropriate statutory mechanisms free to function, as regards judicially decided matters, without recourse to the decisions of political organs. At the same time, however, one has to reject the view that the full pardoning power presently prevailing is inconsistent with the rule of law. It should be remembered that we are dealing here with legally valid constitutional arrangements of the kind found today in countries of recognised democratic character, and to say that the existence of an effective rule of law is negated by reason of a pardoning power of full scope, where it exists, is an extreme proposition lacking any real foundation.

          I must also refer to the contention that the very overlapping of the presidential power with like administrative powers is inconsistent with the maintenance of good government. I have already pointed out that there is no complete parallel between the two kinds of power. Pardon in all its existing forms represents an institution which by its very nature and working contradicts the rulings of other authorities, just as it does whether it is extended before or after conviction. Such overlapping is therefore an inherent feature of the entire pardoning process and in this respect its exercise before conviction is not exceptional.

          It is only right that the abandonment of the existing arrangement in favor of newly devised systems should be preceded by a comprehensive study of the subject - of the kind undertaken by Prof. Feller - and be followed by orderly legislation embracing all aspects of pardon and clemency. But until the fundamental constitutional perspective underlying our recognition of the pardoning power be revised in the appointed way, there is no room for the abrogation - in a sporadic manner, by the method of interpretation - of one of the facets of that power which has been recognised for many years now, and is rooted in the fundamental judicial understanding of the pardoning institution in our legal system. The ad hoc erosion of an existing legal arrangement in answer to the needs of the hour, weakens rather than strengthens the rule of law. This was the kind of situation I had in mind when I remarked thus in Neiman v. Central Knesset Elections Committee [19] (at 260):

         

When constitutional matters are under review, their import and implications have to be considered in the long term, and proper weight has to be given to their influences on the political and social frameworks within which they operate. If these be subjugated to the needs of the hour and we adopt a casuistic approach in matters of constitutional content, we shall miss the mark and deal less than justly with the subject.

 

          (f) It is, in sum, an inescapable conclusion that the Matana precedent adopts a wide and embracing interpretation of the presidential pardoning power. It was explicitly decided there by Justices Agranat, Berinson and Cohn that it also encompassed pardon before conviction. Though the product of autonomous Israeli legislation, the power cannot be divorced from its repeated comparison and equation, in the Matana case, with the parallel power held in the Anglo-American legal system by the King or President, as the case may be. This equation had a direct bearing on the reach of the constitutional power unfolded in the above precedent. Much as I try, I find no evidence in the Matana decision to support the suggestion of Barak J., that at that time the origin and substance of the power in England and in the U.S.A. had not been properly understood. I also find no evidence that this court had overlooked, as it were, differences of constitutional structure between those countries and Israel or, for that matter, the prosecution's own powers and independence in Israel, or the clash of the presidential power with other overlapping, frequently exercised powers - both before and after conviction. This suggestion is in entire disaccord with the long-accepted Matana ruling.

The constitutional situation is, therefore, that enunciated in Matana, by which precedent we have to be guided - as regards the scope of the pardoning power until the lawgiver sees fit to intervene. We have to contend with the legal and factual circumstances as we find them unfolded before us, rather than with hypothetical or desirable situations, and without circumventing or bypassing the decisions of this court and their consequences. It is our judicial task, in the present context, to give a principled, normative decision, structured upon existing legal foundations. In the pursuit of this objective we should do well to apply Chief Justice Marshall's well-known dictum in Osborn v. United States Bank [59] (at p. 866):

 

Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect .... to the will of the legislature.

 

The Investigation

 

32. We understand from the State's reply, as intimated by the Attorney-General, that the police will conduct an investigation into the events forming the subject of these petitions. This leaves no room, in my opinion, for intervention by this court in connection with the holding of an investigation.

          Following the Attorney-General's intimation, the petitioners in file H.C. 431/86 gave notice of withdrawal of their petition, and the petitioner in file H. C. 428/86 advised that he was confining his petition to the sole issue of the legality of the pardons granted.

          As to the petition in file M.A. 320/86, I see no reason to question the decision on the investigation as intimated by the Attorney-General, the nature of which I find acceptable in principle.

         

33. I would accordingly dismiss the petitions and discharge the order nisi.

 

MIRIAM BEN-PORAT D.P.

 

1. The divergence of opinion between my learned colleagues, President Shamgar and Barak J., persuaded me to await their written judgments before giving my own decision on the important question under consideration here, namely: is the President of Israel empowered to grant a pardon to a person before trial and conviction? I find my learned colleagues to have unfolded in their judgments a wide and colourful tableau of concepts, precedents and scholarly comment, which have aided me greatly in formulating my own opinion. Their painstaking and comprehensive analyses leave me free to concentrate mainly and briefly on my reasons for concurring in the judgment of the learned President - more particularly, my reasons for agreeing that the pardons granted by the President are legal and valid and, primarily, my reason for holding that the stated presidential power of pardon before conviction effectively exists.

 

2. In see. 11(b) of the Basic Law: The President of the State, it is provided that the President

   shall have power to pardon offences (and to lighten penalties by the reduction or commutation thereof).

 

          I have put the latter part of the directive in parentheses since the first part is the focus of our deliberation here, although I shall of course deal with the whole in substantiation of my viewpoint. As already clarified by my learned colleagues, the power "to pardon offenders" was previously vested in the President under sec. 6 of the Transition Law of 1949, and remained so vested until the repeal of this provision by sec. 26(a) of the above Basic Law. A comparison of the language of the two sections shows only a slight difference in wording, of no material significance. We may accordingly treat anything stated or decided on the basis of sec. 6 of the Transition Law as equally applicable to sec. 11(b) of the Basic Law, with which we are now concerned. For the better understanding of my exposition below, it should be recalled that until the enactment of the Transition Law, the President's power was anchored (pursuant to sec. 14 of the Law and Administration Ordinance of 1948), in Article 16 of the Palestine Order in Council, 1922, which provided as follows:

         

When any crime or offence has been committed within Palestine, or for which the offender may be tried therein, the High Commissioner may, as he shall see occasion, grant a pardon to any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender or of any such offenders if more than one; and further may grant to any offender convicted of any crime or offence in any court.... a pardon either free or subject to lawful conditions, or any remission of the sentence.

 

          I have stressed, in the above passage, the word "offender" and the phrase "a pardon.... subject to lawful conditions," for purposes which I shall presently elucidate. At this stage, however, I merely wish to summarize the President's power at that time (from the transfer to him of the High Commissioner's powers under the above Ordinance) as embracing a pre-conviction pardon granted an accomplice who was willing to give information leading to the conviction of the principal offender or any such offenders, as well as a pardon granted any convicted offender. The pardoning power, as already indicated, was formulated differently in the Transition Law, and this version was later repeated without material change in the Basic Law.

         

3. Our search for the proper interpretation of the statutory provision in issue here, hardly breaks new ground. Justice Barak is aware of this fact, but attaches little weight to the precedents cited, for two reasons. In the first place, he holds the statements made in these precedents to have been obiter, and secondly, he considers certain passages therein actually to support his own view. Thus he mentions, for instance, that Justice Agranat saw the power conferred under sec. 6 of the Transition Law as an "original" one, and therefore offering no basis for analogy with the corresponding power in English law. Justice Barak also attaches no significance to the practice that has evolved out of those precedents.

 

          I accept Justice Agranat's determination, in the Matana case [3] (at p. 443), that the language of sec. 6 of the Transition Law- and likewise of sec. 11(b) of the Basic Law - was not comparable with that of Art.16 of the Order in Council, since the Transition Law provision represented an "original" Israel power of constitutional content, in contrast to the class of powers delegated by the English King to colonial Governors. The latter were much narrower than the King's own powers, and required a restrictive interpretation.

          However, I disagree with Barak J., that in the Matana case Agranat D.P. (as he then was) did not view the presidential power of individual pardon under the Transition Law (as opposed to a general amnesty), as being basically the same as that of the English King or the American President. In other words, Justice Agranat's remarks on the original nature of the power set forth in sec. 6 of the Transition Law, and on the universality of the pardoning concept, were only intended, I believe, to explain why the non-repetition in sec. 6 of the Transition Law of certain parts of Art.16 of the Order in Council, could properly be ignored in construing that section. For the purposes of the issue in Matana, Agranat D. P. was not prepared to regard the non-repetition in sec. 6 of the Transition Law, of the words "pardon.... subject to lawful conditions" (appearing in Art.16 of the Order in Council and stressed by me in the above citation), as being in derogation or restriction of the presidential power. On the contrary, his opinion was that the general language used in sec. 6 was characteristic of a constitutional directive and called for a wide interpretation, and he saw the Anglo-American legal sources as prompting the proper interpretation of our own statutory provisions (see the Matana case [3], at pp. 453, 454). It was his opinion (which became the majority opinion of the court) that notwithstanding the absence of an express empowerment of the President to grant a pardon subject to conditions, the general wording ("the power to pardon offenders") sufficed, by virtue of the wide interpretation, to invest the President with this power as well (i.e. to pardon conditionally).

          Any remaining doubt as to Justice Agranat's recognition (in Matana) of the link between Israel and England as regards the power of individual pardon, is surely dispelled upon reading his judgment in the earlier case of A. v. The Law Council [2]. While the learned Justice erred there with regard to the power of colonial Governors (i.e. the High Commissioner of Palestine), an error he subsequently corrected, his basic standpoint has nevertheless prevailed. This standpoint he expressed in the following terms, and in other statements to the same effect in his judgment:

         

   I am of the opinion that the power of pardon of the President of Israel is the same, generally speaking, as the power of pardon of the King in England, in its nature and in respect of the consequences which flow from its exercise" (ibid., p. 750).

         

          Agranat J. (as he then was) was indeed alone in considering the full arguments of counsel as to why the name of A., the petitioner, was to be restored to the Roll of Advocates following upon the full pardon granted him (after he had served his full sentence). Yet the related comments of Agranat J. were not mere obiter dicta - and as is known, these too can carry considerable weight - but were made in the deliberation, on its merits, of what he considered to be the real question underlying the dispute in that case:

 

The real dispute being waged today between the petitioner and the community, has its origin in the former's argument that the pardon gave him an absolute right to the restoration of his name to the Roll of Advocates....  It is clear that this court alone is competent to adjudicate upon this dispute between the petitioner and the public.... The fact that the petitioner, for the reason of having misconceived the powers of the Law Council, turned to that body for the enforcement of his right, does not negate the possibility that the petitioner's abovementioned argument may be finally disposed of in the present proceedings.... If we find the petitioner's argument to be well founded, and declare him entitled to renew practice as an Advocate, such a declaration will bind everyone, and the petitioner should experience no difficulty in having his name restored to the Roll. If, on the other hand, we decide that the pardon does not bring about the desired result, that ruling will equally resolve this dispute between the citizen and the public. One way or the other, I believe it is required of us to decide this whole question.... which is what I now proceed to do (my italics-M.B.P.).

 

          It seems to me that Justice Agranat's attitude reflected his clear perception that the power of pardon in Israel required to be widely interpreted, as in England and America, as embracing also the pardon of an offender before his conviction. This attitude is to be gathered from his judgments, in A. v. The Law Council and in Matana. It so transpires from his citation and adoption of a statement in Halsbury's Laws of England that "pardon may, in general, be granted either before or after conviction," and especially from his own conclusion (in A. v. the Law Council [2], at p. 751):

         

from which I learn that the President has the power to pardon offenders both before and after conviction, either unconditionally, or with qualifications.

 

          Justice Agranat gave practical implementation to his above perception by interpreting the consequences of the pardon in issue there in accordance with the customary approach in England and in the U.S.A. (ibid., p. 751).

          A perusal of the two precedents reveals that none of the other Justices dissented from the interpretation according to which the President of Israel was competent to pardon offenders also before conviction; indeed, most of the Justices explicitly took the same view. Thus the difference of opinion between Berinson J. and Agranat J. in Matana, as to the comparison of sec. 6 of the Transition Law with Art.16 of the Order in Council (with Berinson J. refusing to recognize a presidential power to grant a pardon subject to conditions, owing to the absence in sec. 6 of such express provision), did not prevent Berinson J. from holding (perhaps on account of the first part of Art. 16) that the presidential power of pardon was exercisable also before conviction ( ibid., at p. 469):

         

the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial.

 

          Landau J., at the end of his opinion in Matana, expressed his "complete agreement" with the judgment of Berinson J., from which it follows that he agreed also with the content of the above passage, or at least had no reservations about it.

          Justice Cohn fully supported Justice Agranat's interpretative approach, and emphasized his view that the Presidential power was to be widely construed.

          The general opinion, therefore, was that there was in Israel an existing, valid presidential power of pre-conviction pardoning. There was, however, a divergence of opinion in Matana on the question of equating the power of the President of Israel with that of the British Monarch.

          It may be noted that Justice Agranat's approach has been followed in practice ever since the decision in A. v. The Law Council. This fact is confirmed in the judgment of Cohn J. in Matana (at p. 461):

         

Under sec: 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (June 23, 1960, in the manner laid down for them in the judgment of this court (per Agranat J) in A. v. The Law Council, at 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England.

 

          This practice (with which few were as familiar as Justice Cohn, who had held office as Attorney-General for a lengthy period) had been followed for some ten years when the decision was given in Matana, and in this context the learned Justice went on to comment as follows (at p. 462):

         

It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949 [and it will be recalled that the opinions differed there on the question of a pardon subject to conditions, and not as regards a pardon before conviction - M.B.P.], even then I would no venture today to change this practice which has received the seal of the Knesset at least by its silence (my italics - M.B.P.).

 

          We are, therefore, talking about a practice that has now been followed for some decades. Initially the practice was founded on the single opinion of Agranat J, that is, on the ratio of his decision in A. v. The Law Council, and later also on the Matana decision.

          That even distinguished jurists treated the decision in A. v. The Law Council as laying down a rule to be accepted, may be gathered from the following extract from a statement made by Prof. Y. H. Klinghoffer in a Knesset debate on 29 June 1965 ( Minutes of the Knesset, 43, p. 2319):

         

Another unconvincing argument sometimes advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council (my italics-M.B.P.).

 

          The above remarks were made with reference to the question whether it were better to render it obligatory for the prosecution to charge a suspect and put him on trial when the evidence so warranted, or to leave the decision to the discretion of the prosecution. Prof. Klinghoffer clearly favoured the former option, reasoning thus:

         

In expressing my reservations I would recommend we abandon this method in favour of one that obliges the prosecution to put a person on trial when it is in a position to substantiate the charge upon sufficient evidence. When a particular act or omission is defined by statute as a criminal offence, the matter should properly be submitted for judicial determination, and it is not the concern of the prosecution, which is a part of the Executive authority, to relieve the suspect of responsibility for his act or omission by not putting him on trial, and precluding the competent court from judging him according to law. To entrust the prosecution with the option to decide on its own whether or not there be any public interest in holding a particular trial, and accordingly whether or not to institute criminal proceedings against the suspect, is to invite dangers of a political nature. This arrangement would amount to a conferment of power to pardon someone in advance, and convert the prosecution into a kind of pardoning institution, something that is not in keeping with its essential function (my italics - M.B.P.).

 

          We accordingly see that Prof. Klinghoffer drew a clear distinction between an unqualified discretion given the prosecution whether or not to charge a suspect - according to its perception of the public interest in the matter - and the exercise of the pardoning power. The distinguished jurist saw such an option as holding out certain dangers, and undesirably conferring a power of advance pardon, whereas he accepted as a matter of fact the presidential power to grant a pardon, in rare cases, even "before the trial commenced."

In the end the Knesset took the middle path, but I shall come back to this aspect later.

         

4.       Two conclusions may be drawn from what I have said so far:

          (a) As regards the scope of the presidential power to pardon offenders before conviction, we are not without guidance, for the existing judicial pronouncements on the subject to the effect that the President does possess such power, cannot be said to be purely obiter;

          (b) We are confronted with a practice that has taken root in Israel ever since the decision in A. v. the Law Council, that is to say, for some decades now.

          There can be no doubt as to the importance of these two considerations in the determination of our attitude.

          (c) Also carrying weight, purely as an interpretative indicator for me (and not as a source of legislation), is the fact of the lawgiver's silence on the instant point when the content of sec. 6 of the Transition Law was reenacted in sec. 11(b) of the Basic Law. This silence was maintained despite the clear trend of the precedents and the practice evolved and based thereon, and it stands out against the express addition in the Basic Law of a presidential power to "commute" sentences, the lack of which had been established in the precedent cited, together with the court's unanimous opinion that the President was empowered to pardon also before conviction. This silence and its implications are fully elucidated in the judgment of Shamgar P.

         

5. It is true, however, that a later legislative development sometimes does dictate a change in interpretative approach. Attitudes also change with the passage of time, and these changes come to be reflected in the decisions of the courts - in the manner of new wine poured into an old flask - if weighty reasons be found for departing from an existing rule, deeply rooted though it may be. If, for instance, the customary interpretation be found necessarily to misconceive the purpose of the provision concerned, or that it has not even the slightest foundation in the language of the provision, or that its implementation in the exigencies of new reality poses a real threat to the maintenance of good government, then I should be inclined to construe the pardoning power restrictively as being confined to the post-conviction stage alone.

          I have come to the conclusion, however, that there are no weighty reasons for disturbing the existing precedents and practice. My reasons for so concluding are the following:

          (a) The wide interpretation given the term "offender" finds ample justification in the language of the statutory provision in question. My colleague, Barak J., acknowledges that, linguistically speaking, the term "offender" could embrace also a suspect who has yet to be tried and convicted; hence, in his opinion, the wording of the provision alone does not advance our inquiry one way or the other. Yet the learned Justice suggests at the same time that only someone who has already been convicted is an offender, as appears, for instance, from the following passage in his judgment (par. 25):

         

   Even an admission by the applicant for a pardon that he committed an offence, is of no consequence, for he is presumed innocent until convicted by the court.

 

          I must confess that I find the emphasis given to circumscription of the term "offender" in the context of our instant inquiry, somewhat perplexing. It is common cause that the main (some hold, the only) purpose of a full pardon, is to make amends for a serious miscarriage of justice which has resulted in the conviction of an innocent person. If that be the main (or sole) purpose, then the recipient of the pardon is no "offender" at all, but the victim of an error. If we adopt the arguments of the petitioners, and of certain jurists, that only the court is competent to stamp a person as an "offender" for the purposes of pardon, we shall find that it is precisely that kind of error which the President is unable to repair - a situation that is contrary to all logic. Of what avail is it for the court to find, upon hearing evidence and argument, that the accused indeed committed the crime - and thus branding him an "offender" - if the essence, and main purpose, of a pardon be to proclaim that he is not such? This reasoning alone would warrant the conclusion that an "offender" includes someone to whom the commission of an offence is attributed.

          It is pertinent, moreover, to recall that Art. 16 of the Order in Council empowered the High Commissioner to pardon an offender (an accomplice) before conviction, if he was prepared to give information and evidence concerning the principal offender or any such offender. We must bear in mind the proximity in time between the repeal of the said Article 16 and the enactment of sec. 6 of the Transition Law, a proximity which provides further indication that the term "offender," as already pointed out in the judgment of Shamgar P., was intended to refer to someone to whom the commission of an offence "is attributed." The learned President cited many convincing examples of the lawgiver's use of the term "offender," in a variety of contexts, from which too one may learn that this term does not necessarily mean someone who has already been convicted. In other Laws the term may indeed import otherwise, depending upon the legislative context and intent, but the abovementioned examples all relate to the same or closely the same kind of material as our present matter (for instance, general amnesty), and convincingly show that the term "offender" should not be understood only as someone who has been tried and convicted. In addition to the above illustrations, among many other possible ones, I might also mention sec. 6 of the Secret Monitoring Law of 1979, which provides a framework for secret monitoring, inter alia, if necessary "to prevent offences or detect offenders." It is clear from the context that the Law envisages the monitoring and exposure of the conversations of a person involved in a criminal act (whether not yet committed, in the process of commission or after its commission) and all, of course, in the stage preliminary to the trial and, certainly, before conviction of the suspect.

          In essence, my learned colleagues and I all agree that linguistically speaking sec. 11(b) of the Basic Law suffices, as it stands, to encompass also the power of pardon before conviction. The requisite interpretative nexus for this purpose is there, and the statutory provision cannot be said to lack a linguistic foundation for such a construction.

 

          (b) We must now, after disposal of the linguistic aspect, deal with the main criterion, namely, the legislative purpose of the pardoning directive.

          Justice Barak holds in his judgment that a construction according to which the President of the State may pardon someone before his trial and conviction, is inconsistent with the purpose of the pardoning directive. He states that in order to choose between the possible linguistic options we must turn to the legislative purpose, and he holds the true objects of the pertinent statutory provision to be those enunciated by Justice Agranat in A. v. The Law Council and in Matana, and none other, namely:

         

The primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated - is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail ( A. v. The Law Council, at p.751).

Justice Barak then goes on to make this comment:

This reasoning naturally only holds true in relation to a convicted offender. It is not at all applicable to someone who has yet to be convicted. How, then, is this reasoning of Justice Agranat to be reconciled with his view that the President has power to pardon before conviction? Such power would necessitate a different rationalisation, of the kind that is not to be found either in A. v. The Law Council or in Matana (my italics - M.B.P.).

 

          This seems a cogent argument in support of the conclusion that, measured by the test of legislative purpose, the presidential power is restricted in its exercise to a pardon after conviction only. It is not so, however. Thus, for instance, in A. v. the Law Council Justice Agranat mentioned additional objects of a pardon, remarking inter alia as follows (at p. 755):

Third, I have not overlooked the possibility that a pardon may also be granted for reasons which do not stem, necessarily, from the innocence of the convicted person.

 

          These remarks link up with what Justice Agranat said later in the Matana decision (at p. 451):

         

It is quite easy to think of a case in which the need to use this system would arise when the public interest alone, and not that of the prisoner, requires his release from custody. It may, for example, be proper to liberate a prisoner who is a national of an enemy state on condition that he leave Israel territory immediately and permanently, in order to facilitate an international arrangement which will ensure, in return for such a pardon, the immediate release of a "Zionist prisoner" in custody in that state.

 

          The above example happens to relate to a convicted prisoner, yet this underlying purpose is not to reverse an injustice but to prefer the public interest, to which the rule of equality before the law must bow. That is to say, we have here a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor. The President of the State was in the same predicament in relation to the matters raised in the petitions before us. Thus he declared his conclusion that despite finding merit in the opposing viewpoint, he was satisfied at the time that vital security interests of the State were at stake and also that it was necessary to put an end to the "devils' dance," as he described it, and therefore he decided to accede to the requests for a pardon.

          The primary purpose of a pardon, at least until the retrial procedure was instituted, has indeed been to correct an injustice resulting from an error in judicial proceedings. But that has not been the only purpose of a full pardon. Thus, as already mentioned, it was possible under Article 16 of the Order in Council to pardon an accomplice (before trial) in order to induce him to give information and evidence against the principal offender or any such offenders. The purpose of such a pardon was not to reward its recipient, but to achieve an object considered by the pardoning authority more important than trying the person pardoned. (A similar approach is also to be discerned in civil law - see Mistry Amar Singh v. Kulubya [47], where the plaintiffs claim, though tainted with illegality, was sustained in order that the purpose of the law should not be defeated.) For the attainment of the same purpose a pardon or clemency may conceivably also be granted to a convicted offender, by way of a reduction of sentence, if the latter, only at that late stage, is prepared to disclose important information against other offenders who committed serious crimes.

          Furthermore, such rationalisation - that the public interest sometimes prevails over the interest of bringing the offender to trial or of having the trial run its full course - is to the best of my understanding, contrary to the opinion of Barak J., also to be found in the cases of A. v. The Law Council, and Matana. I base this conclusion in the first instance on the abovementioned remark of Agranat J. in A. v. The Law Council (at p. 755), that a pardon may also be granted for reasons "which do not stem, necessarily, from the innocence of the convicted person," and also on his following statement in the same case (at p. 747) :

         

lts main purpose - and I do not overlook its other purposes - was and remains to declare before all that the person tried and convicted, and now receiving a pardon, is free of guilt and that his offence has been wiped out (my italics-M.B.P.).

 

          Thus, we seem to find in the two abovementioned precedents precisely such "different rationalisation," according to which a full pardon may also be granted to someone other than a wrongly convicted person who is serving his sentence. This pardoning consideration, provided it is applied correctly and carefully in the proper cases, operates with the same validity and force both before and after the conviction of the offender. In fact, even Justice Barak countenances the possibility that it may be better, in rare cases, to pardon a person before conviction rather than to stay the proceedings against him - for instance when the person is suffering from a malignant disease - save that my learned colleague does not consider such exceptional cases to warrant a wide interpretation of the statutory directive. By the same token I would hold it desirable, in a rare case, for a person to be pardoned before trial and conviction for the sake of protecting a vital public interest. The Attorney-General is indeed the competent party to decide whether a person shall stand trial or not, to which end he may, even must, weigh considerations of a social or security nature. Like Justice Barak, I too find support for my view in the report of the Agranat Commission on the Powers of the Attorney-General (1962), where it was stated, inter alia, that

 

In certain circumstances a matter of security, political or public interest may dictate that no criminal charge be preferred (p. 6).

 

          The Commission dealt also with the Attorney-General's need to consult with the political authorities when making his decision, reporting thus (p. 13):

         

The stated duty to consult arises particularly when criminal proceedings are being instituted in relation to a matter of security, political or public interest. In such event it is always incumbent on the Attorney-General to consider whether the act of instituting criminal proceedings (or halting the same) is not more likely to prejudice the interests of the State than refraining from taking such action. This the Attorney-General will only be able to do after having sought information and guidance from those who carry the primary responsibility for safeguarding the State from the security, political and public aspects - that is to say, from those who, so we must presume, are more experienced and knowledgeable in those fields than we are. As already indicated, he will generally need to refer to the Minister of Justice for the required direction and advice; but sometimes, that is in cases which give rise to questions of "high policy," there will be no alternative but to obtain guidance from the Government as a body (my italics - M.B.P.).

 

          I shall come back to these statements later. First, however, I wish to consider the situation that arises when pursuant to sec. 59 of the Criminal Procedure Law (Consolidated Version) of 1982, a police investigation has to be opened upon a complaint of the commission of a felony, and it transpires that the very conduct of the investigation (including the taking of statements from witnesses) may seriously impair the security of the State. Who will then be empowered to decide whether the investigation shall be completed or discontinued?

          Mr. Harish, the Attorney-General, has submitted that he lacks the authority to order that a police investigation be discontinued (or not opened after the police learn of the commission of a felony). It is arguable, perhaps, that the police, being an arm of the Attorney-General for criminal investigation purposes ( Reiner v. Prime Minister of Israel [20], pp. 485, 486), is obliged to act as directed by him, thus rendering the Attorney-General competent to order discontinuance of the investigation. The matter, however, is far from clear. For instance, there is the express directive in sec. 60 of the above Law, that upon completion of the investigation of a felony, the police shall transmit the material to the District Attorney; the police, however, may refrain from investigating lesser offences, though only for the reasons set forth in sec. 59 of that Law. A measure of support for this separation of powers is even to be found in the following passage from the judgment of Justice Barak (in paragraph 25, though his remarks were intended for a different purpose):

 

This conclusion as to a "separation of powers", between the presidential pardon and the powers of other State authorities, is reinforced when regard is had to Israel's general constitutional framework. The other State authorities (the police, the prosecution and the courts) have the means to establish the facts. The police has its investigating facilities and seeks to reach an assessment of the factual situation. The prosecution, to whom the police must transmit the material, will handle and process the same until delivery of the judgment. The courts possess the institutional and normative facilities for elucidating the question of innocence or guilt.

 

          That is to say, each authority has its own field of responsibility. The police, upon receiving a complaint or otherwise learning of the commission of a felony, is obliged to conduct an investigation, and upon its completion to transmit the evidence to the appointed authority, the prosecution, which only then comes into the picture. It is even doubtful whether the police may halt its investigation in cases of felony, even where the police considers the Attorney-General to have good reasons for wishing to do so. On a plain reading of the conclusion to sec. 59 of above Law, the police has such a discretion (on the grounds of there being no public interest involved) only in relation to misdemeanours, and not felonies. And most important, even the Attorney-General's power to intervene in the investigation by directing that it be discontinued is, as already mentioned, a matter of doubt. Thus, there is the express provision (sec. 61 of the Law) that the Attorney-General may direct the police to continue investigating if, after receiving the material, he "considers it necessary for a decision as to prosecution or for the efficient conduct of the trial." This provision would seem to be superfluous if the Attorney-General is indeed competent to decree at will the completion or halting of police investigations.

          On the assumption that the police is legally obliged to complete its investigation of a felony, and then to refer the material to the District Attorney, the grant of a pardon would indeed be the only way of halting an investigation if it endangered a vital public interest such as the security of the State. The abovementioned view of the Agranat Commission that the security, political or public interests of the State may in certain circumstances require that no criminal charge be preferred, holds good also as regards the halting of an investigation for similar reasons. It is quite likely that in this situation (in contrast with the stage when the police refer the material of the investigation to the District Attorney) a presidential pardon will be the only way of halting the process.

         

          Again, even assuming the Attorney-General to have power to halt a police investigation, a difference of opinion may yet arise, in a particular case, between the Attorney-General and the State authorities with whom, as the Agranat Commission required, he must consult. While it has to be presumed, according to the Commission, that the security authorities are more experienced and better informed than the Attorney-General, and though they bear primary responsibility for safeguarding the security and other vital interests of the State, the latter nevertheless has to make his own decision on matters within his sphere of responsibility. In this situation, with each party insisting upon its own viewpoint, how will the conflict be resolved? It seems to me that the situation bears comparison with the conflict that arises between the need to withhold privileged evidence and the right of the accused to defend himself against a criminal charge. It is a hallowed principle of penal law, embedded in the structure of a democratic regime, that the accused shall be given every opportunity to avail himself of any evidence in the hands of the prosecution. Yet this right has been qualified in the Evidence Ordinance (New Version) of 1971, sec. 44(a) whereof provides:

         

A person is not bound to give, and the court shall not admit, evidence regarding which the Prime Minister or the Minister of Defence --- has expressed the opinion that its giving is likely to impair the security of the State --- unless a Judge of the Supreme Court on the petition of a party who desires the disclosure of the evidence finds that the necessity to disclose it for the purpose of doing justice outweighs the interest in its non-disclosure.

 

          If a Supreme Court Justice (not involved in a particular criminal case) should come to the conclusion that the need to disclose certain evidence, in the interests of justice, has to defer to the State interest in keeping such evidence privileged, he will uphold the latter even if the accused's ability to defend himself is affected thereby. If, on the other hand, it is decided that the evidence should be disclosed in the interests of justice, there would still be the possibility that the security authorities, taking a different view as to the measure of harm that may result, would prefer not to disclose the evidence, even if this should lead to the accused's acquittal. The acquittal may represent a more valuable prize to the accused than even a pardon, since he may be guilty and undeserving thereof; yet, in the view of the authorities concerned, the one interest (equality before the law) will have to yield to the other (safeguarding the security or existence of the State).

          The above situation was deliberated in the case of Livni v. State of Israel [21], where Justice Barak commented as follows (at p. 736):

         

Once the court has decided that the evidence should be disclosed, the prosecution is faced with the dilemma of deciding whether or not to continue with the criminal proceedings. If the trial continues, the prosecution will have to disclose the evidence; if the prosecution believes that disclosure of the evidence will endanger the security of the State, it may have to stay the proceedings and sometimes even cause the accused to be acquitted. Thus, whereas initially the conflict was between the need to disclose the evidence in the interest of doing justice, and the need to keep it privileged in the interest of State security, we now find - upon the decision of the court - that the conflict is between the need to proceed with the trial by way of disclosure of the evidence, and the need to keep the evidence privileged by way of the discontinuance of the trial. The former conflict is resolved by the Judge in adoption of the procedure prescribed in sec. 44(a) of the Evidence Ordinance; the latter conflict is resolved by the prosecution within the framework of its general discretion in the conduct and stay of criminal prosecutions.

 

Equally in point are these remarks of Barak J. in continuation (at p. 735):

 

On the other hand, there is the consideration that it is sometimes in the public interest to keep the material of the investigation privileged, if its disclosure may prejudice the security of the State. It is an important public interest to protect the security of the State against all harmful subversive acts, which are mostly the product of underground planning and organisation. The struggle against such harm calls for the gathering of intelligence information without its sources becoming known.... This war is being waged by the security services, whose struggle would be gravely prejudiced by the uncovering or identification and public exposure of these sources (Miscellaneous Applications 52/82)............................................ This consideration asserts itself in every country, but does so with particular sharpness in the State of Israel, whose security has been threatened ever since its establishment. We are a "democracy on the defensive"... which has to fight for its survival, not only in large-scale wars but also in the day-to-day campaigns thrust upon it by its enemies. We must not close our eyes to this bitter reality.

 

          It cannot be overlooked that those who discharge a clear security function find it especially difficult to act always within the law. The measure of departure may vary from country to country, but it exists as a fact, also in democratic regimes whose fidelity to civil rights is beyond question. In this regard Prof. B. Akzin has commented as follows ( Elements of International Politics, Akademon, 1984, in Hebrew, p. 332):

         

It should be added that while the police strives (or, at least, should strive) to act within the frame of the existing law, the intelligence and espionage services, including counter-espionage, are less punctilious about observing the law, and it sometimes happens that they knowingly and seriously violate it. Even in times of peace, let alone in times of war, they engage in acts of violence and sabotage, both in foreign countries and in their own. This reality leads to situations of embarrassment for countries which adhere to the rule of law, and places them in the dilemma of the comparative priority between the principle of legality and intelligence interests. That is no easy dilemma. If we compare the practice of some established democracies in this regard, we shall find that in the United States, for instance, the scope of intelligence operations is often (though not invariably) curtailed by the need to keep within the law, whereas in Britain and France the principle of legality does not restrict intelligence operations to the same extent (my italics - M. B. P.).

 

          Naturally, the smaller the deviation from the legal norm, the easier it would be to reach the optimal degree of harmony between the law and the protection of the State's security. But we, as judges who "dwell among our people," should not harbour any illusions, as the events of the instant case well illustrate. There simply are cases in which those who are at the helm of the State, and bear responsibility for its survival and security, regard certain deviations from the law for the sake of protecting the security of the State, as an unavoidable necessity.

         

          Barak J. has correctly pointed out in the Livni case [21] that when the two interests of a fair trial and the security of the State are competing for primacy, the conflict must be resolved. Both interests are of concern to the public, and the resolution of the conflict takes different forms in different countries, the form sometimes changing within the same country. He added that

 

this struggle between the conflicting interests is particularly sharp in Israel, since on the one hand we are insistent upon fairness in criminal proceedings and maintaining public confidence in them.... while on the other hand we are subject to considerable security risks, which have beset us for a long period (ibid., p. 735).

 

          It is true that when the issue of privileged information arises in the course of a trial, the conflict between the two interests is resolved by a Supreme Court Justice (who is not hearing that particular case). But even when he rules that the evidence must be disclosed, that is not the end of the matter, for such disclosure may be avoided by a discontinuance of the trial, leading even to the acquittal of the accused.

          By analogy it seems to me that a decision by the Attorney-General to refer a complaint to the police - despite the objections of the Executive authorities (in our present context, the inner Cabinet) that so to do would harm security interests - is also not necessarily final. There would be nothing improper in the Attorney-General's attitude that an investigation should be conducted notwithstanding the advice given him to the contrary, but equally there is no ground for questioning a resolution of the dilemma by way of its referral to the President as the Head of State - the symbol of the people whom he represents. I do not hold that the only course open to the Executive in the above circumstances, is for the Government to dismiss the Attorney-General, for his attitude is a legitimate one, and he may properly adhere thereto. Nor, by the same token, is any injury done to the standing of a Supreme Court Judge who has ruled that the evidence in question should be disclosed. The same may also be said of the authorities entrusted with the security and survival of the State, and who bear primary responsibility for this onerous task. In the present case it may be presumed of the President that he properly considered all aspects of the dilemma, and so it indeed appears from his public statement quoted in the judgment of Shamgar P. He mentioned his understanding of the opposing viewpoint, but was convinced that the interests of security should prevail. My respected colleagues and I all agree that if a presidential power to pardon before conviction exists, the considerations weighed by the President at the time of granting the pardons are valid.

 

          At the same time, however, it is necessary to stress the gravity of the offences disclosed before us, the nature and quality of which should alert us to the need for a thorough review of the security establishment, with a view to the determination of just norms and directives as far as this is possible.

         

          Justice Barak concedes the possibility of a valid presidential power of pardon before conviction, for exercise on rare occasions alone, but holds this to be undesirable as likely to increase in frequency and become the norm. He is accordingly deterred from building constitutional norms on what he regards as hope alone. With all due respect, I find no adequate basis for this apprehension. On the contrary, it was shown to us that the pre-conviction power of pardon has been exercised most rarely during the past thirty-five years, since the decision in A. v. the Law Council. That is no small guarantee that this will continue in the future as well, as indeed it should. Moreover, already in the Matana case, the fear of an excessive exercise of this power was allayed by Agranat D. P., in these terms (at p. 454):

         

Nor have I overlooked the fact that to endow the power in question with its "full" content may lead to its excessive use, which in turn involves the danger that the authority of the law in the eyes of the public will be weakened. My reply to this point, however, is that every instrument of pardon by the President requires the countersignature of the Prime Minister or one other Minister (sec. 7 of the Transition Law, 1949) [now sec. 12 of the Basic Law: The President of the State - M.B.P.]. This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the Minister concerned. This Minister will ordinarily be the Minister of Justice who has the means of conducting a precise investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to.

 

          There is therefore someone who is answerable to the Knesset (the Prime Minister or some other Minister) and this safeguard is now fortified by the possibility of challenging the pardoning decision indirectly. Another important factor is the special status of the President as representing the people and standing above political or public controversy. The State President presumably weighs all necessary considerations before deciding to exercise his power to grant a full pardon, whether before or after conviction. This is a power which has to be most rarely exercised. The pre-conviction pardon was not designed for the purpose of redressing an injustice done to the person pardoned, for the fact of his guilt is taken for granted and he is assumed to have committed the offence attributed to him (by the police or the prosecution). What has to be weighed, therefore, is the seriousness of the offence against some other interest - humanitarian, security, and the like. In other words, the pre-conviction pardon always entails a conflict between the interest of equality before the law and some other, vital, extraneous interest. This fact acts greatly to restrict the range of cases in which the exercise of this power will be justified.

 

          A constitutional directive gives expression to the will of the people, to its "credo." If under a directive of this kind the power to pardon offenders has been conferred on the President, the latter must be seen as the proper authority for the discharge of this difficult task (with the countersignature of the Minister concerned, who is also answerable to the Knesset, and subject further to indirect judicial review of the President's decision). In those cases where the offender benefits from a pardon, though not for the reason of his innocence of the charge but for the protection of a higher interest - whether before or after conviction - the principle of equality before the law will well be breached, but this will happen also when, for example, an acquittal results from the ruling of a Supreme Court Judge that privileged information be disclosed, in the circumstances outlined above.

          My abovementioned remarks as to the President being the ideal authority to grant a pardon, find support in the following statement of an American authority quoted in the judgment of Shamgar P.:

         

...Crime is an offense against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon... the people may confer the pardoning power upon any officer or board that they see fit ( Am. Jur., at p. 10).

 

          Like Justice Shamgar, I believe that the decisive factor is not the rank of the State President within the Executive hierarchy, but the fact that he symbolises the State and represents the people in holding and exercising the power of pardon .

          An undesirable exercise of the pardoning power must be avoided at all times, whether it takes the form of an uncontrolled or unjustifiable remission of sentence, or the grant of a full pardon after conviction. A reduction of punishment granted one offender but not another in comparable circumstances (so we assume), amounts naturally to a discrimination between equals. An ill-timed pardon, or one granted on grounds already deliberated by a judicial tribunal, is tantamount to an intervention in the domain of the judicial authority. It has to be borne in mind that the facilities available to the court - rules of procedure and evidence for the greater part determined by legislative means and partly by judicial means - offer the most effective may of establishing the truth and ensuring a fair trial. The reversal by non-judicial means of a judicial decision, particularly in an age when a retrial is possible, is a process the retention of which may well be questioned. But that is a matter for the lawgiver. What concerns us here is that the grant of a pardon for reasons other than the correction of an injustice, and involving a conflict between the principle of equality before the law and some other vital interest, invokes a power which should rarely be exercised, and only after much careful consideration.

 

          (c) From the aspect of the separation of powers, the President must be seen as holding a power termed "residuary" (by Justice Barak) or "reserve" (by Justice Agranat in the cases of A. v. the Law Council and Matana ). It is right that the power remain of such a nature, and that the President refrain from exercising it as long as some other authority is still competent to act in the desired direction.  In his judgment (par. 25), Justice Barak cites the example of a pardon granted after conviction but before sentence is passed. I hold, unlike my learned colleague, that in this case the power itself is there, but its exercise (the grant of a full pardon alone is possible at this stage) would entail a gross interference with the judicial function and a possible lowering of its prestige. The same applies when a pardon is granted where the possibility of a retrial exists. Like the President, Justice Shamgar, I would not discount the need for a change in the existing constitutional arrangement on the subject, perhaps along the lines proposed by legal scholars such as Professor Feller.

 

          (d) Justice Barak states that a pardon is given without publicity, whereas a stay of criminal proceedings is manifest and publicly known. I believe this picture should be put into its proper perspective.

          (1) The Attorney-General's decision to stay proceedings must be reasoned, and conveyed to the complainant (pursuant to sec. 63 of the Criminal Procedure Law, Consolidated Version). Information concerning the decision must not, however, be disseminated among the general public, but may only be furnished to certain specified authorities consistently with the provisions of the Crime Register and Rehabilitation of Offenders Law, 1981 (see sec. 11(a) thereof). It may be noted that these authorities are mostly public organs (the Attorney-General, the police, the General Security Service, and others).

          (2) As regards a pardon, the initiative is usually taken by the Ministry of Justice and the warrant requires to be countersigned by the Prime Minister or another Minister, normally the Minister of Justice. In case of complaint originally lodged with the police, it is clear that the fact of the pardon will also be brought to its notice, if it has to discontinue the investigation. Such discontinuance would also obligate the police to notify the complainant accordingly (sec. 63 of the Criminal Procedure Ordinance, Consolidated Version). There may be some difference in the measure of disclosure occasioned in each of the two cases, but the gap should not be exaggerated.

         

6. With reference to the petitioners' prayer concerning investigation of the complaint lodged with the police, I concur in the opinion of my learned colleagues that at this stage the court should rest content with the Attorney-General's intimation that the whole incident will be fully investigated. The petition, therefore, should be dismissed in this regard.

          It has occurred to me that this result - dismissal of the prayer regarding the investigation - might have the effect of converting an indirect challenge of the pardons into a direct one, which would not be permissible under the existing law.  I have not, however, delved too deeply into the question and, having regard to the attitude of my colleagues, have likewise preferred to deal with the question of the inherent validity of the pardons.

 

7. Having affirmatively answered the question as to the President's power to grant the pardons here deliberated, I must now deal with the second question confronting us, namely: were the requirements for the grant of such pardons satisfied?

          I should state that I have found the Warrants of Pardon to provide only a general description and not to be sufficiently particularised, though less so in relation to the Head of the General Security Service. In the latter case it is recorded that the pardon was to extend to all the offences "connected with the incident called 'bus no. 300' and occurring on the night between 12 April and 13 April 1984, whether committed on the day of the incident or subsequently in connection therewith until the date of this Warrant." In the remaining Warrants it was stated that the pardon extended to all the offences "connected with the so called 'bus no. 300 incident,' and committed from the time of the incident on the night between 12 April and 13 April until the date of this Warrant." On its own this would be an inadequate particularisation, but with the declarations we have of the pardoned persons, together with the contents of the pardon applications as well as the subsequent Warrants, we now have sufficient particulars to identify the offences concerned. I need hardly add that the pardon extends solely to those offences and none other.

          As to the State President's grounds for granting the pardons, we ruled earlier (on 1 July 1986) that there was no need for any declaration to be lodged concerning his reasons for deciding as he did.

          From the material before us it may be learned that the negotiations with the President were commenced some considerable time before the pardons were granted, and only the final, formal stage was completed in haste, on account of the pressure arising from the surrounding circumstances. It has been declared that all the particulars relating to the incident were explained to the President, and I have no reason to doubt the truth thereof.

         

8. In conclusion, I must emphasise that I, like my respected colleagues, have endeavoured to deal with the central issue - the President's power of pardon before conviction - in isolation from the stormy public controversy aroused by this unfortunate incident. Such detachment is enjoined by our judicial task, which we must fulfil to the best of our understanding. We are obliged to adopt an attitude, even with regard to matters of public controversy and even though part of the public may not approve of that attitude. What is conclusive is the court's decision, as distinct from its views (by way of analogy, see Shalit v. Minister of the Interior [22], at p. 520, per Witkon J.).

 

9. For the reasons given above I concur in the judgment of the respected President, Justice Shamgar, and in his conclusion.

 

BARAK J .

 

          I am of the opinion that the pardon granted by the State President to the Head of the General Security Service and three of his assistants is null and void, for lack of a presidential power so to act. It would follow that, as intimated by the Attorney-General, the investigation is to continue.

         

A. Our Judicial Function

 

1. After carefully perusing the judgment of my respected colleague, President Shamgar, I find myself agreeing with some of his opinions and not with others. The whole issue is important, lying as it does at the heart of our constitutional life. Interwoven with the immediate problem of the presidential power of pardon and the manner of its exercise, are questions of the rule of law and its supremacy. All these we shall examine from the legal standpoint. The issue has provoked a stormy public reaction, but we have not allowed that to influence our decision. We function in accordance with constitutional criteria and fundamental legal principles which reflect the "credo" of our national life. It is not passing moods that guide our approach, but fundamental national perceptions as to our existence in a democratic state. This guideline was succinctly stated by Shamgar P. , in Neiman v. Chairman of  1lth Knesset Elections Central Committee [19], in these terms (at p. 259):

 

Judicial decisions in constitutional matters, even in difficult cases, should properly be founded and shaped according to principles rather than considerations of policy structured according to what is viewed as desirable and responsive to the need of the hour or the feeling of the majority.

 

          We are aware of the public controversy that is raging around this matter, and in the dynamics of political life our judgment here may well come to be used as a lever in the struggle between the opposing political forces. That we regret, but we have to fulfil "our function and our duty as Judges," as was pointed out by Landau D.P. in Duikat v. Government of Israel [23], at p.4:

         

It is still much to be feared that the court may come to be seen as having abandoned its proper place and descended into the arena of public discussion, and that its decision will be enthusiastically welcomed by a section of the public while another section loudly and utterly rejects it. In this sense I see myself - as one whose duty it is to decide in accordance with law any matter brought before the court according to law - constrained to proceed undeterred in the discharge of my task. Even so, I know full well that the wider public will look not to the legal reasoning but to the final conclusion alone, with the attendant risk of damage to the rightful standing of the court as an institution beyond the divisions of public controversy. But what shall we do, if that be our function and our duty as Judges.

 

          We are an arm of government, whose task it is to review the functioning of the other authorities, so as to ensure the government's adherence to the rule of law. These arms of government are of high status, but the law stands above them all. We should be failing in our judicial duty, were we not to pass under review, within the framework of petitions properly lodged, the activities of other State authorities in the circumstances disclosed in the petitions before us. I propose first to examine some of the questions on which I share the opinion of Shamgar P., and then to deal with the State President's power to grant a pardon before conviction. Following that, I shall endeavour to clarify my reasons for dissenting from the judgment of my learned colleague, Shamgar P., and shall conclude with some general remarks pertaining to the functioning of the State authorities in the present case. I regret the length of this judgment, but I did not have enough time to write a shorter one.

         

B. Locus Standi

 

2. Like Shamgar P., I hold the petitioners to have due standing to approach the court in the present matter. I do so for various reasons. In the first place, a number of persons lodged complaints with the police relating to offences committed in the "bus no. 300 incident." Under sec. 58 of the Criminal Procedure Ordinance (Consolidated Version), it is open to "any person" to lodge a complaint with the police, and the complainant must be informed of a decision not to investigate the same (sec. 63). He may then lodge an objection with the Attorney-General, whose decision is subject to judicial review and the complainant certainly would have standing in such a petition (Ashkenazy v. Minister of Defence [24], at 371). It is true that not all of the petitioners lodged complaints, but their standing before the court may be recognized on a second ground, which I shall now state.

          When there arises before the Supreme Court a legal problem of constitutional import, the court will take a liberal view in matters of legal standing:

 

in such cases it is desirable to grant access to the court, without examining too carefully the interest at stake, provided this is in furtherance of the rule of law ( Segal v. Minister of the Interior [17], at p. 443).

 

          The rule of law would be so served in the present case, having regard to the allegation that the Head of the General Security Service, and a number of his assistants, committed very serious offences involving loss of life and interference with the processes of investigation and the administration of justice. According to the material before us, these allegations - raised by the Attorney-General, Prof. Zamir - were not being investigated, though such investigation was said to be called for. The petitions accordingly involve basic questions of the rule of law, of equality before the law and of the susbservience of the principal centres of power in the State to the law as it stands. In these circumstances it is fitting that the petitioners be recognized as having sufficient standing to approach the court as they have done.

 

C. The Petition Concerning the Investigation

 

3. Some of the petitioners have concerned themselves with instigating a police investigation into the "incident." In a written communication received by us from the Attorney-General (on 15 July 1986), it was intimated as follows:

 

The attitude of the Attorney-General, communicated here with the confirmation of the Inspector General of Police (the remaining respondents have no standing whatever as regards the investigation), is that the police will investigate the said complaints pursuant to its duty under sec. 59 of the Criminal Procedure Law (Consolidated Version) 1982.

 

          In his oral argument before us, the Attorney-General repeated his above intimation in these terms:

         

There will be a police investigation. The investigation will be conducted without qualification or reservation, until its conclusion, and will encompass all levels from top to bottom, including the political hierarchy. It is not intended to leave any matter uninvestigated, nor to exclude any person from the investigation.

 

          The Attorney-General further emphasized that the investigation had already commenced, and in that situation, he argued, there was no room for confirmation of the order nisi - as prayed for by some of the petitioners - but the petitions, so far as they related to the investigation, should be dismissed. I agree with Shamgar P. that the Attorney-General's view should be sustained.

         

D. The State President as a Respondent

 

4. A number of petitioners joined the State President as a respondent. We ordered that his name as a respondent be deleted. As was pointed out by Shamgar P., this ruling was dictated by sec. 13(a) of the Basic Law: The President of the State, under which "the President of the State shall not be amenable to any court or tribunal... in respect of anything connected with his functions or powers." The President's act of pardon although, in my opinion, ultra vires, was nevertheless "connected with" his functions or powers, so that this court has no jurisdiction to entertain any direct challenge against his conduct. In the criminal appeal in Matana v. Attorney-General [25], Berinson J. noted (at p. 979) that when the President purported to act within the scope of his functions and powers, he would, if he exceeded these, be subject, like everyone else, to the laws of the State, and "amenable to the jurisdiction and authority of the courts." It seems to me, however, that even when the President exceeds his powers, but does so in a matter connected with his functions and powers, in good faith and in furtherance of what he considers to be the discharge of his duties - this court will have no jurisdiction over him. This limitation falls away where it is not sought to render the President answerable directly, but only to challenge indirectly the legal competence of a presidential act. The question arose in Bar Yosef v. Minister of Police [12], where the Supreme Court held as follows:

 

We accept that the State President has a discretion in the exercise of his power under sec. 11(b) of the Basic Law: The President of the State, and that this discretion - as distinct from the President himself - is, in proper circumstances, subject to indirect judicial review.

 

          This perspective emerged from the approach of the Supreme Court in the abovementioned criminal appeal in Matana v. Attorney-General [25], where Berinson J. commented thus (at p. 786):

         

If indeed the President lacked authority to act as he did, there would be no need in the present case to disqualify the act itself. It would suffice for us to refrain from granting it validity and from aiding in its implementation, so far as this depends on us.

 

Elsewhere in the judgment, he added:

 

this does not mean that the legality of his official conduct and acts which may be prejudicial to the individual, cannot be indirectly reviewed without the President himself appearing as a party.

 

          In the Attorney-General's original reply to the petitions (dated 30 June 1986), he noted that "once a pardon has been granted to all the members of the General Security Service who are mentioned as suspected of having committed the offences attributed to them, there is no longer any ground for investigating this complaint." This approach is challenged by the petitioners, and incidental to this main line of attack (against the Attorney-General), they are also challenging the President's pardoning decision. That they are entitled to do.

          Such indirect judicial review is essential, for in its absence the power becomes unlimited in practice. Unlimited powers wielded by government authorities are alien to a democratic regime. Absolute powers, as Justice Douglas has rightly pointed out, are "the beginning of the end of liberty" (see New York v. United States [60], at p. 884, which statement was cited by this court in Kahana v. Speaker of the Knesset [26], at p. 92). The same is true of the pardoning power, which is not publicly exercised, the exercise of which need not be reasoned and which is little known to the public (see M. Gottesman, "Arbitrariness & Sympathy: The Criteria for Granting a Pardon," Mishpatim 1 [1968], 211; R. Gabison, "Arbitrariness & Sympathy: A Further Note," ibid., p. 218; D. Friedman, "Amnesty: Disclosure of Reasons," Hapraklit 25/1 [1969], 118; M. Ben-Ze'ev, "Matters of Amnesty," Hapraklit 25/2 [1970], 368). Such a power, if not subject to judicial review - even if only indirect - poses, upon its improper exercise, danger of the kind most destructive to all orderly government. Bentham has clearly outlined this danger:

 

From pardon-power unrestricted, comes impunity to delinquency in all shapes; from inpunity to delinquency in all shapes, impunity to maleficence in all shapes; from impunity to. maleficence in all shapes, dissolution of Government; from dissolution of Government, dissolution of political society ( The Works of Jeremy Bentham, ed. Bowring, New York, 1962, vol. 1, p. 530).

 

          These are strong words, perhaps too strong, but they speak eloquently of the need for judicial review. Since the lawgiver left no opening for challenging directly the President's exercise of this power, it is well that we do what is next best, and exercise indirect judicial review.

         

E. The Pardoning Power

 

(1) The Matter in Issue

 

5. I now come to the central issue in the petitions before us. This issue has a twofold aspect: first, does the State President have the power to pardon someone before he has been convicted? second, assuming this power to exist, were the conditions for the grant of a pardon to an unconvicted suspect satisfied in the instant case? I am of the opinion that the State President lacks the power to pardon before conviction, and it is therefore unnecessary for me to deal with the latter question concerning the propriety of the President's exercise of his pardoning power.

          As regards the first aspect, i.e. the existence of a presidential power of pre-conviction pardoning, the question is by no means an easy one, and has been the subject of keen controversy. In the circumstances, the proper path to have followed seems to be that appointed by the lawgiver, in see. 32(a) of the Consolidated Version of the Courts Law of 1984, namely:

         

Where a petition for a pardon or for the reduction of a penalty has been submitted to the President of the State, and a question arises which in the opinion of the Minister of Justice deserves to be dealt with by the Supreme Court, but which cannot provide a ground for a retrial under section 9, the Minister of Justice may refer such question to the Supreme Court.

 

          The circumstances were pressing, however, and the opportunity was missed. We have no option, therefore, but to examine the validity of the power within the framework of a petition to the High Court of Justice.

         

          (2) "To Pardon Offenders"

         

6.       In principle, the starting point for our inquiry is sec. 11(b) of the Basic Law: The President of the State (the "Basic Law"), which reads:

 

The President shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

 

          To ascertain the meaning of the expression "to pardon offenders," we must, as with any other act of interpretation, start with a linguistic inquiry. I believe the question whether the terms "to pardon" and "offenders" in themselves provide an answer to our inquiry, must be answered in the negative. In Israel legislation the term for pardon* does not have one single meaning only. Thus besides its use in sec. 11(b) of the Basic Law, it is also used in Knesset enactments to designate amnesty (thus the General Amnesty Ordinance of 1949, the Amnesty Law of 1967). There is no disputing that the two kinds of pardon differ from each other. The presidential pardon is an individual act, whereas the Knesset amnesty is a general, all-embracing act. The two pardons differ also in their consequences. Despite these differences between the two forms of pardon, the lawgiver has used the same term to describe both. In fact, the term haninah has not acquired any scientific precision or conceptual clarity in Israel, and the term on its own does not enable us to define its meaning. The reasons for this uncertainty - which is not unique to Israel - are hinted at by Dr. Sebba, in these terms (On Pardon and Amnesty, at p. 140):

         

The lack of clarity on this matter stems from a number of factors, but mainly from a confusion in the choice of terminology, historical changes in the development of these institutions, and a lack of definition of the functions of pardon in its different forms - both as regards their objectives and their legal consequences.

 

          It is quite clear that the term "to pardon" in the Basic Law, relates only to individual pardon. On the other hand, the "pardon" mentioned in sec. 149(9) of the Consolidated Version of the Criminal Procedure Law of 1982, would seem to embrace both individual pardon and general amnesty, but apparently refers mainly to the latter since diffferent situations of individual pardon (in the context of preliminary pleas in a criminal trial) are already covered in sec. 149(5) of the Law, which mentions "a former acquittal or former conviction."

          The term "pardon" (haninah) seems, therefore, to have no uniform meaning in Israel law. We have not yet evolved for ourselves an operative jurisprudence the reflective processes of which would generate "jurisprudential" expressions such as "pardon," having a recognized meaning for the entire legal community. Other countries - among them France, Italy and Germany - are more fortunate in this respect, since their own terms for the concept of a pardon granted by the authority at the head of and symbolizing the State (grace, grazia, Begnadigungsrecht), are all self-understood as relating to (individual) pardon after conviction. We have yet to reach such unanimity in Israel, and here, as already indicated, the term haninah encompasses both pardon and amnesty. As regards the question whether an individual pardon - with which alone sec. 11(b) of the Basic Law deals - has any reference to an unconvicted suspect, our own operative jurisprudence offers no answers. That leaves us no alternative but recourse to judicial interpretation, from which there shall evolve, in the course of time, the kind of operative jurisprudence that is responsive to the existing conceptual need.

 

          (3) "Offenders"

 

7. We have next to examine whether the term "offender" throws any light on our inquiry. Can an unconvicted suspect be deemed an "offender"? This question was discussed by Prof. Klinghoffer, who wrote as follows" ("Lectures on Amnesty," at p. 5):

 

The Law mentions the power to "pardon offenders." Now it is a cardinal rule in the constitutional law of Israel that a person suspected or accused of a criminal offence is presumed innocent until duly and finally convicted. That means no person is an "offender" until a final convicting judgment has been given against him.

 

The same approach was adopted by the then Attorney-General, M. Ben Ze'ev, when the Constitution, Law and Justice Committee of the Knesset was considering the proposed Basic Law: The President of the State. He said:

 

The designated meaning of the word [offender], in my opinion, is someone who has been convicted in a court of law. For if not so, we shall come into conflict with the cardinal rule in our system that a person is presumed innnocent until duly convicted according to law, and anyone might come to the President and say: "I am under suspicion, grant me a pardon" (quoted in the opinion of the Attorney-General, Prof. Zamir, dated 15 June 1985 and appearing in directive no. 21.333 of the Attorney-General's Directives).

 

          I naturally accept that every convicted person is an offender, but it does not follow that someone who has not yet been convicted cannot for the purpose of some particular enactment likewise be deemed an offender (cf. Gold v. Minister of the Interior [27]). Thus, for example, when sec. 3 of the Police Ordinance (New Version) speaks of the employment of the police in "the apprehension and prosecution of offenders...," it is clear from the context that the term "offenders" specifically excludes convicted persons; someone who has already been convicted of a particular offence may not be "apprehended" by the police or "prosecuted" for that same offence. Yet a convicted person is certainly an "offender" for purposes of the Basic Law. In fact, the lawgiver has made a far from precise use of the term, and has not always distinguished clearly between persons suspected, accused, or convicted of a criminal offence - having sometimes included all three possibilities within the purview of this term.

         

8. The term "offenders" raises further questions about its meaning. It will be found amenable to more than one meaning in the context of sec. 11(b) of the Basic Law. Besides certainly embracing someone who has been duly tried and convicted, in a final judgment (as distinct from the meaning of the same term in the new version of the Police Ordinance), does it also include someone who has been convicted in a judgment that is not yet final? And what is the situation of a person who has not been convicted but in respect of whom the court has held "the charge proved" and issued a probation order under sec. 1 of the Probation Ordinance (New Version) 1969? And in particular, what is the situation of  someone who has not yet been charged at all, or who has been charged but whose trial has not yet reached completion? "Offender" is therefore a vague term, ambiguous and open to different interpretations in different contexts.

 

(4) The Legislative Purpose

 

9. It is now clear that a linguistic examination of the term "offender" does not suffice to dispose of our interpretative problem - as indeed it rarely should be expected to do (Kibbutz Hatzor v. Rehovot Assessment Officer [28], at p. 74). Among the different possible meanings we should select that which ensures attainment of the legislative purpose - "the Law is an instrument for the achievement of a legislative purpose, and therefore needs to be construed according to its inherent purpose" (per. Sussman J. in Estate Late E. Bergman v. Stossel [29], at p. 516). This purpose can be ascertained, first and foremost, from the intention of the lawgiver. The legislative history of an enactment is a source from which one may ascertain the legislative purpose.

 

(5) The Intention o1the Legislature

 

10. In order to ascertain the intention of the Legislature when investing the State President with the power "to pardon offenders," we must return to the Transition Law. It represented the first Israel Law to deal with the presidential powers. In sec. 6 of the Transition Law the Presidential office had been established, inter alia, with the "power to pardon offenders." The objects of this directive were elucidated by Agranat D.P. (as he then was) in the rehearing in Attorney-General v. Matana [3] (at p. 441). He pointed out that as the basis for its debates at the time, the Constitution Committee of the Provisional Council of State relied on the draft constitution of Dr. L. Kohn and a memorandum submitted by E. Vitta. I have carefully considered all this material, from which it clearly transpires that it was not the pardoning powers of the English Monarch, nor those of the American President, the High Commissioner for Palestine, or the Head of any other State, that were envisioned by the draftsmen of the Transition Law as the model for the powers of our own President. Dr. Kohn did not elaborate on the presidential pardoning power, beyond a bold statement (in sec. 59 of his proposal) that the President be reserved the right to grant a pardon. Vitta changed the wording slightly, proposing that the presidential functions include the grant of pardon and the reduction of punishments. Commenting upon Dr. Kohn's proposal, Vitta opined that the presidential power be restricted to individual cases, with a power of general or even partial amnesty entrusted to the Legislature alone, for implementation by way of a formal statute. In a comprehensive debate on the President's proposed status conducted by the abovementioned Constitution Committee, the presidential powers in France, Czechoslovakia and Switzerland were mentioned, slight reference was made to the King of England, while the American President was only hinted at. With regard to the power of pardon, there is recorded only Z. Warhaftig's opinion that the directive be phrased to empower the President "to pardon and reduce punishments" (Proceedings of the Constitution Committee of the Provisional Council of State, Debate on the Executive Authority). The proposal was adopted. In introducing the Bill for the Transition Law, 1949, before the Knesset, Y. Idelson made only a brief statement, and the subsequent debate on the presidential powers was also short. Neither the English King nor the High Commissioner was mentioned in the context of pardon, while the office of the American President was mentioned only as differing from our own form of presidential office. Our survey accordingly leads to a twofold conclusion: first, we lack full information concerning the extent of the pardoning power which the Knesset sought to confer on the President at that time; second, it is clear that the Knesset did not consider imitating any particular model of the power, and certainly not the power of the English King, the High Commissioner or the American President.

 

11. The provisions of sec. 6 of the Transition Law were repealed with the enactment of the Basic Law. We have no access to the debates of the Knesset Constitution, Law and Justice Committee, which are closed, but I am prepared to accept the following account thereof given by the Attorney-General, Prof. Zamir, who apparently had the opportunity to peruse the minutes of the relevant proceedings (see his abovementioned opinion):

 

The Legislature's intention may also be gathered from the preparatory stages of the Law. The question before us was not discussed when the Knesset plenum debated the Bill for the Basic Law: The President of the State, but it did arise in a discussion of the Bill at a meeting of the Constitution, Law and Justice Committee (on 5 February, 1964). It appears from the discussion that all the speakers considered the President empowered to grant a pardon to convicted offenders only. The then Attorney-General, Mr. M. Ben Ze'ev, said at that meeting: "The designated meaning of the word [offender], in my opinion, is someone who has been convicted in a court of law. For if not so, we shall come into conflict with the cardinal rule in our system that a person is presumed innocent until duly convicted according to law, and anyone might come to the President and say: 'I am under suspicion, grant me a pardon.' " And Knesset Member, H. Zadok, remarked at the end of the discussion on this point: "It seems to me we have no difference of opinion on the substance of the matter. We intend to empower the President to pardon persons who have been criminally tried and convicted."

 

          This is further evidence that it was not the pardoning powers of the English Monarch, the High Commissioner, or the American President that served as a basis for the above Committee's discussions. On the contrary, the subjective thought of those who dealt with the question was -"We intend to empower the President to pardon persons who have been criminally tried and convicted".

         

12. Speaking for myself, I would not attribute too much weight to the factor of the legislator's intention in the instant case. The legislative history of the Transition Law offers us scant details and hardly advances our inquiry. As for the Basic Law, we know the opinions of members of the Knesset Committee who dealt with the Bill, but not what the Knesset itself thought. Actually, as faithful interpreters of the law, it is our task to act by way of "analysis of the law and not psychoanalysis of the lawgiver" (Agudat Derekh Eretz v. Broadcast Authority [30], at p. 17). We must not seek to establish a Knesset Member's attitude towards a particular problem confronting us from the legislative history of an enactment. The solution of such problems is our responsibility, and ours alone (FIatto Sharon v. Knesset Committee [31], at p. 41;"Kach"Faction v. Chairman of the Knesset [1], at p. 141). Elsewhere, I have had occasion to comment thus:

 

The Judge does not seek a concrete answer to the practical problem he has to decide in the history of a legislative enactment. The court is not interested in the specific pictures and concrete likenesses contemplated by the Legislature. In the legislative history of an enactment we seek its purpose; we seek the interests and objectives from which, after compromise and balance between them, there was distilled the policy underlying the norm which is being construed. What we seek is the fundamental perception rather than the individual application - the abstraction, the principle, the policy and purpose. We are interested in the Legislature's concept as to the purpose of the Law, and not in its conception as to the resolution of the specific dispute before the court ("Of Ha-Emek"v. Ramat Yishai Local Council [32], at pp. 143-144) .

 

          We must accordingly continue our search for the legislative purpose behind the statutory provision concerned.

         

(6) The Legislative Purpose: a "Spacious View"

 

13. The proper path to follow was indicated by Agranat D.P. (as he then was) in the Matana rehearing [3]. Referring to the Transition Law, which was then in force, Justice Agranat observed (at p. 444):

 

The "omission" in which my learned colleague found the expression of the desire of the Israel Legislature to cut down the provisions of Art. 16 of the Order in Council and therefore to restrict the President's power of pardon, is in no sense proof of any such intention. It is more correct to say, as was said by Smoira P. in another context... that the Israel Legislature "neither copied nor omitted, but built its law as an independent structure."

 

          The Transition Law was indeed an independent Israel Law, as is the Basic Law which followed it, and the presidential powers conferred thereunder are autonomous and original. The Israel legislator, far from "copying or omitting" anything, fashioned by its own means the constitutional framework for our national life, producing an "independent structure" which must also, therefore, be construed in the same way.

         

14. We are in fact dealing with an independent Israel Law of constitutional content. This element is of basic importance in the construction of the Law, as was pointed out by Agranat D.P. ([3], p. 442) with reference to the statement of Justice Frankfurter (in Youngstown Sheet and Tube Co. v. Sawyer [51]), that when a matter touched a document which laid down the framework of the government of the State, the court was to take a "spacious view of the powers herein prescribed." I myself followed this approach in the Neiman case [19], where I made these observations (at p. 306):

 

Basic provisions must be construed according to a "spacious view"- to use an expression of Justice Frankfurter in Youngstown Sheet and Tube Co. v. Sawyer, quoted by Agranat D.P. in the Matana case - and upon the understanding that we are dealing with a directive which determines the national pattern of life. A basic constitutional directive is not to be construed in the same way as an ordinary legislative provision. It was Chief Justice Marshall of America who, in the early stages of the shaping of the American constitutional perspective, stated that in interpreting the Constitution it had to be remembered that it was no ordinary document -"it is a constitution we are expounding" (M'Culloch v. Maryland). We are concerned here with a human endeavour which has to adapt itself to the changing realities of life. If we have said of an ordinary Law that it is not a fortress to be conquered with the aid of a dictionary, but a frame for a living legislative idea (Cr. A. 881, 787/79, at p. 427), how much more should we be so guided when engaging in the interpretation of directives of a constitutional nature.

 

          Constitutional enactments must indeed be interpreted with the structure of the whole system in mind. A Law is "a creature living within its environment" (per Sussman J. in Shalit v. Minister of the Interior [22], at p. 513), and the "environment" of a constitutional Law is, inter alia, the other constitutional enactments which determine the essential character of the regime. Every constitutional enactment is but a building block in the overall structure, which is erected upon given foundations of government and law. Hence, when construing a constitutional enactment, it is the judge-interpreter's function to bring the same "into harmony with the foundations of the existing constitutional regime in the State" (Justice M. Landau, "Rule and Discretion in the Administration of Justice," Mishpatim 1 (1969), 292). That expresses the real importance of Justice Agranat's perception that a "spacious view" must be taken of a constitutional enactment.

         

15. To take such a "spacious view" when construing the presidential power "to pardon offenders," means to view the presidential powers as part of the general distribution of powers among the State authorities. The presidential power of pardon must be seen as a component in the complex of governmental powers comprising the "constitutional scheme," as was stated by Justice Holmes in Biddle v. Perovich E56] (at p. 486):

 

A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.

 

The pardoning power forms part of the fabric of our democratic life: it flows from the regime's republican system of power allocation. This aspect was elucidated in the American case of Schick v. Reed [58], where it was held per Marshall J., at p. 276):

 

The references to English statutes and cases are no more than dictum: as the Court itself admonishes, "the power [of pardon] flows from the Constitution alone"... .Accordingly, the primary resource for analyzing the scope of Art. II is our own republic system of government.

 

16.     What conclusions are to be derived from the above mode of interpretation, according to which the presidential pardoning power must be "spaciously" viewed against the background of our own constitutional structure? Two main conclusions seem to be warranted. First, for the purpose of construing the President's pardoning power, we cannot be guided by the powers of pardon conferred on officeholders in other countries whose status, in the devolution of powers in their respective countries, differs materially from that of our own President. We may, however, by the same token, learn about his pardoning power by comparing it with such powers conferred on like officeholders in other countries of similar constitutional structure. The second conclusion is that whatever the scope of similar powers in other countries, we must in the final analysis construe the State President's own power against the domestic constitutional background, and in the end we can gain but limited interpretative guidance from the situation in other countries.

 

(7) The Legislative Purpose: Guidance from England?

 

17. Let us examine the power of pardon of the English Monarch. This power had its origin in the seventh century during the reign of the Anglo-Saxon kings (see L. Radzinowicz, A History of English Criminal Law, London, 1948, vol. 1, pp. 107-137). These kings had the power of life and death:

 

the power to take life included the power to save it... and the pardon power was identical in scope with the power to punish (Boudin, "The Presidential Pardons", at p. 9).

 

          This basic standpoint prevailed for a long period of time. Thus in 1686, an English court held that the Kings of England were absolute sovereigns, that the laws were the Kings' laws and that the King had the power "to dispense with any of laws of the Government as he saw necessity for it" (Godden v. Hales [48], at p. 1051). A number of attempts to curtail the royal power of pardon were made over the years, but in essence it remained as wide as before. Its ideological foundation was the notion that the King was the "fountain of justice." He was the defender of the public and dispenser of justice; he established courts and executed the law, he prosecuted offenders and granted pardons. As Blackstone has commented (Book 1, at pp. 268-269):

         

          As the public, which is the invisible body, has delegated all its power and rights, with regard to the execution of the laws, to one visible magistrate, all affronts to that power, and breaches of those rights, are immediately offences against him, to whom they are so delegated by the public. He is therefore the proper person to prosecute for all public offences and breaches of the peace, being the person injured in the eye of the law... and hence also arises another branch of the prerogative, that of pardoning offences; for it is reasonable that he only who is injured should have the power of forgiving... of prosecutions and pardons.

 

          With the conversion of the English Crown to a constitutional monarchy, the power of pardon itself underwent no real change, although a change did assert itself as regards the exercise of the power. Thus the royal power of general pardon was recognized, but never came to be exercised in practice. The royal power to pardon before conviction has likewise remained recognized, but has not been exercised since the middle of the nineteenth century. At that time this possibility was limited to an immunity from prosecution given to someone who turned "King's evidence."

          Nowadays, however, with the development of police powers as well as the Attorney-General's power to stay criminal proceedings, and with the establishment of the office of the Director of Public Prosecutions, the power of pardon is no longer exercised even in the above exceptional circumstances. An English authority has described the situation thus (see J.L. Edwards, The Attorney-General, Politics and the Public Interest, London, 1984, at p. 414):

         

During the nineteenth century it was common practice to grant a pardon to an accomplice who was to turn Queen's evidence, but this resort to the machinery of pardons, prior to the registering of a conviction, has long since become obsolete. Where the reluctance of a witness to testify on behalf of the Crown did not stem from his being an accomplice but arose on the ground that he would incriminate himself, it was also known for the Crown to prepare a free pardon in advance, ready to be produced by prosecuting counsel. The last occasion when a free pardon was granted to a witness in these circumstances was in 1891. There is now a general understanding among British constitutional law authorities that the practice of conferring a pardon upon a principal offender before conviction has fallen into disuse.

 

          The English King's historical power of pardon is rooted in the royal prerogative, with the King perceived as the source of justice. That perception provides no guidance so far as concerns the President of Israel, as was pointed out by Berinson J. in Matana v. Attorney-General [25] (at pp. 976-977):

         

I cannot say that the Israel Legislature in conferring the power of pardon upon the President of the State in the Hebrew language, intended to include therein the full content which the concept of pardon has acquired over the ages in English law, pardon which is wholly in the hands of the Crown without reserve or limit by virtue of the ancient royal prerogative. There is no point of comparison between the status of the President in our country and that of the Crown in England. The President is a creature of statute and his powers are defined by law. Like everyone else in this country, he enjoys no rights or privileges which are not accorded to him by the laws of the State and every official act of his which exceeds the limits of the law is null and void.

 

          Unlike the English Monarch, the President of Israel is not "the fountain of justice," he does not execute the law or prosecute public offences. Accordingly, as regards the presidential power "to pardon offenders," no interpretative guidance is to be derived from the pardoning power enjoyed in principle by the English Monarch. But we could certainly be guided as to the scope of the presidential pardoning power by the practice followed by the English Monarch today. And as we have seen, this practice does not extend to a pardon before conviction, since

such practice is out of harmony with modern views as to the propriety of granting dispensation before the normal process of the criminal law has run its course (Edwards, The Attorney-General, p. 475).

 

(8)     The Legislative Purpose: Guidance from the U.S.A.?

 

18.     In the American case of Schick v. Reed [58] Justice Burger relates that when the American Constitution was under preparation, a short discussion took place on the scope of the pardoning power to be entrusted to the President. The view that it be confined to exercise after conviction only, was rejected for the reason that this would preclude the possibility of using accomplices as prosecution witnesses in conformity with the English practice at the time. The American courts have since then interpreted the President's pardoning power as being similar to that of the English Monarch. This power embraces not only individual pardon but also general amnesty, and results from the perception that the President of the U.S.A. is charged with the execution of the laws:

 

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws (United States v. Wilson [55], at p. 160, per Marshall C.J.).

 

          The customary view, which is based on dicta in a number of old cases, is that the existing pardoning power extends also to the grant of a pardon before conviction. There seem to be several reasons, however, why even the American model cannot guide us with regard to the presidential power of pardon in Israel. First, in the U.S.A. the President heads the Executive authority. Like the English King in the past, so the American President today is responsible for execution of the law, so that there is a certain logic in entrusting him with a power not to execute the law in certain cases by way of granting a pardon. That is not the situation of the President of Israel, who holds no powers so far as execution of the law is concerned. Second, the U.S. President is empowered to grant a general amnesty, also to unconvicted suspects. There is a certain logic in the contention that the authority competent to grant an amnesty to unconvicted suspects should also be competent to grant an individual pardon before conviction (see P.B. Kurland, Watergate and The Constitution, Chicago, 1978, p. 145). This argument doesn't hold good in Israel, where the President is not empowered to grant an amnesty, and from this viewpoint there is no logical basis for empowering him to grant a pardon before conviction. A third reason for distinguishing the American situation from our own is that the framers of the American Constitution were mindful of the English experience, which they themselves had shared in the colonial period. This was pointed out by Judge Wayne in Ex Parte Wells (1856) [61]:

 

At the time of the adoption of the Constitution, American statesmen were conversant with the laws of England, and familiar with the prerogatives exercised by the Crown. Hence, when the words "to grant pardons" were used in the Constitution, they convey to the mind the authority as exercised by the English Crown, or by its representatives in the colonies. At that time both Englishmen and Americans attached the same meaning to the word "pardon."

 

          A different situation has existed in Israel. As we have seen, the draftsmen of the Transition Law did not seek to emulate the experience of the English monarchy, and those who legislated the Basic Law into existence did not consider the presidential pardoning power to be exercisable before conviction.

         

19. The result is that we cannot be guided by the Anglo-American experience when seeking to construe the scope of the President of Israel's power "to pardon offenders." This does not mean that the constitutional situation in England and the U.S.A. cannot ever provide any interpretative guidance for us. On the contrary: our own interpretative processes, ever since the establishment of the State, have drawn extensively on the Anglo-American constitutional experience, and the outlook in these countries on many subjects, among them human rights, have often inspired our own approach. Yet such nourishment has to be controlled, and the inspiration can only flow from a comparison between institutions, processes and perspectives which have a common basis. Thus we too can learn from the American recognition of the fundamental human rights, since both our countries have democratic regimes committed to the rule of law and the separation of powers. That, however, does not apply to the power of pardon, which in England and the U.S.A. is based on an approach that differs entirely from our own.

 

          (9) The Legislative Purpose: Proper Guidance

         

20. The absolute French monarchy also wielded a wide power of pardon, both before and after conviction, individual as well as general. Like powers were enjoyed by other absolute monarchies in Europe. A drastic change came with the French Revolution, when the existing form of pardon was abolished in France and replaced by a more restricted form. Since then it has been customary in most of the Continental countries for a limited power of pardon - not exercisable before conviction - to be conferred on the titular, and not executive Head of State, that is to say, the person holding the powers which symbolise the State. This is the situation in modern France (see e.g. sec. 35 of the Constitution of the Fourth Republic, and see also Monteil, La grace); in Italy (see art. 87 of the new Constitution, and see also Manzini, Trattato Di Dirrito Penale Italiano, 1981, p. 510; Bortolloti, "Il principio Constituzionale Della Clemenza," Rivista Trim. Di Dir. Civ. [1978], 1681): in Germany (see sec. 60(2) of the new Constitution) and in many other countries (including Holland and the Phillipines). It is interesting to discern the same trend in the new democracies which became a part of the British Commonwealth of Nations. Thus the King of England and the Governor-General of Canada cannot grant a pardon in that country except after conviction (see. 683 of the Criminal Code of 1970). The same holds true in Australia, except in the context of persons who turn Queen's evidence. Section 72 of the Indian Constitution empowers the President to grant a pardon after conviction only (see Balkrishna, "Presidential Power of Pardon," J. of Indian Law Institute 13 [1971], 103). It might also be noted that in a number of countries (among them France, Italy and Germany) the pardoning power is constitutionally defined in general terms, while their equivalents of the expression "to pardon offenders" have been construed, in judicial decisions and by commentators, as relating solely to pardon after conviction.

 

21. I may now conveniently summarize my observations on the interpretative guidance to be derived from a review of the pardoning methods in other countries. I have sought to show that in countries where the law of pardon is not laden with historical memories from the era of the absolute monarchy or coloured by other similar influences of a bygone era, and at the head of which stands a King or President who symbolises the State, this authority holds a restricted power of pardon. The most important restriction is the limitation of the power to the stage after conviction. This conclusion does not, however, put an end to our interpretative search, for we have seen that constitutional directives require a "spacious view" in their construction. In our present context, that means we have to construe the pardoning power in the light of the general governmental structure in Israel. This I now proceed to do.

 

(10) The Legislative Purpose: General Governmental Structure

 

22. During the era of absolute rule, when the power of pardon was wielded by the sovereign himself, there would have been little point in examining the division of authority among the different governmental organs. The ruler held supreme authority, and was therefore entitled to grant a pardon (individual or general) when so disposed, before or after conviction or the conduct of an investigation. It is different in a democratic constitutional regime. The sovereignty there lies with the people, the ruler is no longer omnipotent, and the rule itself is divided among the different authorities. Each has to function within its own sphere, though in general synchronization with the others and subject to mutual checks and balances. It is not in keeping with the democratic character of the regime that any authority, be it the President himself, should hold a paramount power which enables it to change a decision of any of the other authorities which have acted within their responsibility in the framework of criminal proceedings. Such a power may be fitting for an absolute ruler who wishes to show grace to his subjects, but is alien to a holder of high office who wants to serve his subjects. This contrast is well-illustrated in the American precedents. At first it was held by the Supreme Court that a pardon granted by the President, like one granted by the English King, was an act of grace (see U.S. v. Wilson [55], at p. 160) per Marshall C.J.):

 

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws....It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.

 

          This approach, however, fell into disfavour (see Buchanan, "The Nature of a Pardon under the U. S. Constitution,") and was later expressly rejected in Biddle v. Perovich [56], where Justice Holmes observed as follows (at p. 486):

 

We will not go into history, but we will say a word about the principles of pardons in the law of the United States. A pardon in our days is not a private act of grace from an individual happening to possess power. It is a part of the constitutional scheme.

 

          The power of pardon of the President of Israel is, indeed, a part of the constitutional scheme, within which it has to find its rightful place.

         

23. What then are the implications for the pardoning power of the need for its coordination with the other State organs and authorities? In the first place, it seems to me that the President's power of pardon must not be construed as placing him in paramount authority over all the other authorities involved in the administration of criminal justice. The pursuit of criminal justice involves different authorities in different stages, from the commission of the offence until the delivery of a final judgment: the police, the prosecution, the courts, and the prison services (for holding suspects in custody). It would be contradictory to this constitutional arrangement to enable the President to intervene in the normal process by exercising his power of pardon concurrently with the powers exercised by the other State authorities. Only an unworthy constitutional arrangement would permit the President a power to halt a police investigation or the prosecution of a criminal charge, or to intervene at any stage in the course of the adjudicatory process. Such a situation was decried by Landau J. in the Matana rehearing in these terms ([3] at p. 461):

 

I am unable to see any purpose which can justify such confusion in methods of punishment and the division of powers between the authorities of the State.

 

          The proper interpretative approach indeed requires us to focus attention on the division of powers between the different State authorities, the ramifications of which are to be gathered from the "constitutional scheme" underlying our legislation. The proper construction of the pardoning power against this background is that it should be exercised by the President only after the other authorities have discharged their own functions. If in that situation there be need for a pardon, the President will be empowered to grant it. This was the fundamental philosophical approach to the question of pardon in the U.S.A., as was pointed out by Hamilton (Federalist, no. 74):

 

The Criminal Act of every country partakes so much of necessary severity, that without an easy access to exception in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.

 

          The same idea was expressed by American Chief Justice Taft, in Ex Parte Grossman [49] (at pp. 120-121):

         

Executive clemency exists to afford relief from undue harshness or evident mistake in the operation or enforcement of the criminal law. The administration of justice by the courts is not necessarily always wise or certainly considerate of circumstances which may properly mitigate guilt. To afford a remedy, it has always been thought essential in popular governments, as well as in monarchies, to vest in some other authority than the courts power to ameliorate or avoid particular criminal judgments. It is a check entrusted to the Executive for special cases.

 

          That was also the approach of Justice Agranat in A. v. the Law Council [2], where he commented thus (at p. 751):

         

Here - as in England - the primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated -is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail. I need hardly state that not all the material which may throw light on the matter before the court is invariably produced at the trial, and even the judges, who are but human, may err from time to time. It is essential, therefore, that there be available such a reserve power in order to prevent the harmful consequences of an injustice, and also to enable the reduction of a person's punishment - even when properly convicted - should the circumstances so dictate or warrant .

 

          It accordingly transpires that the power of (individual) pardon is exercisable only upon conviction of the offender in a final judgment. Only then will the different State organs have exhausted their own powers, and only then can there arise the need to correct an injustice. Until that stage, the fate of the suspect is to be determined by the appointed authorities in the ordinary course of the administration of criminal justice. A presidential invasion of the province of any of these authorities is an inconceivable possibility in a democratic-constitutional country.

         

 24. The perception that the presidential power of pardon must not be construed as being in rivalry with the powers of the other State authorities, underlies the interpretative conclusion that the power does not extend to the grant of a general amnesty. The expression "to pardon offenders" - according to its plain meaning, as I have already explained - would seem to embrace also the grant of a general amnesty, since it too effects a pardon for offenders. Yet there is no disputing the view that the President lacks the power to grant a general amnesty, as was in fact held by Agranat D.P. in the Matana rehearing (at p. 455):

 

It must be understood that when the First Knesset conferred the power of pardon upon the President, its intention was that he should not be empowered to declare a general amnesty, the result of which would be to pardon all offenders, for the intention was to reserve the power of general amnesty to the legislative authority itself.

 

          I believe the rational explanation for the President's lack of the power of amnesty to be the perception that amnesty is a legislative act which is properly the function of the Knesset rather than that of the President. The latter must exercise no powers that impinge on those of the legislative authority or, by analogy, on those of other authorities. The powers of the police to conduct investigations, and of the Attorney-General to prosecute offenders, including their respective powers to discontinue the investigation, or the prosecution, must not be subject to encroachment by the President through exercise of his pardoning power. Neither, indeed, should this power be construed as warranting presidential intervention in the authority of the court to acquit or convict and impose whatever punishment it sees fit. It has to be recognized that the grant of a pardon in the course of the investigation of an offence, or a trial, is an intervention in the exercise of these executive powers just as unwarranted as an intervention by the President in the Knesset's exercise of its legislative powers. The undesirability of construing the pardoning power in a manner permitting such presidential intervention, was stressed by the Attorney-General, Prof. Zamir, in his abovementioned directive, in these terms:

         

A Presidential power to intervene in criminal proceedings pending before the court, in a manner permitting termination of such proceedings at any time, is undesirable in principle. The pardoning power of the President bears no comparison with the Attorney-General's power to intervene in criminal proceedings by way of staying the same. The Attorney-General functions from the start as an integral factor in criminal court proceedings, for he is empowered by law to prefer the charge on behalf of the State. This power naturally entails also the power to withdraw the charge as well as to stay the criminal proceedings at any stage before final judgment, such decision being founded on a close involvement in and familiarity with the proceedings. The President, on the other hand, is an extraneous factor in criminal proceedings. In this situation, his grant of a pardon in the course of the trial might be seen as an unwarranted intrusion into the domain of the court.

 

Such an unwarranted intervention would occur if, for instance, the court were to convict the accused and he be pardoned by the President before sentence.

 

 25. This conclusion as to a "separation of powers" between the presidential pardon and the powers of other State authorities, is reinforced when regard is had to Israel's general constitutional framework. The other State authorities (the police, the prosecution and the courts) have the means to establish the facts. The police has its investigating facilities and seeks to reach an assessment of the factual situation. The prosecution, to whom the police must transmit the material, will handle and process it until judgment. The courts possess the institutional and normative facilities for elucidating the question of innocence or guilt. That, however, is not the situation of the President, who has no facilities for ascertaining the truth and testing the facts. It is therefore only natural that in matters of pardon the President be guided by the court's rulings. If it finds the accused not guilty, that is the end of the matter; if it convicts the accused and sentences him, that will be the President's starting point. Before conviction of the accused the President has no factual basis whatever for weighing the justifiability of a pardon. Even an admission by the applicant for a pardon that he committed an offence is of no consequence, for he is presumed innocent until convicted by the court.

 

26. My approach to the construction of the presidential power of pardon is also dictated by the reality of Israel's own constitutional structure. The President is the "Head of State," and not the head of the executive authority. He is a kind of additional authority to those four already existing (the legislative, executive,  judicial and supervisory authorities). In the Israel constitutional context, the President is perceived as symbolizing the State. He is not party to the power struggles in the country, and stands above the day-to-day political strife. It is unreasonable to assume that a President so constituted should be endowed by the lawgiver with a power of intervention in the daily functioning of the remaining governmental authorities. That would be like descending into the "arena," and not fitting for the President. Here, indeed, is a material difference between the President of Israel and the American President. The latter heads the Executive and has to do battle every day. That is why his power of pardon may be construed as extending also to a general amnesty as well as a pardon before conviction of the offender.

 

27. Moreover, the exercise of power must be subject to judicial review, without which arbitrariness will result, for without the judge there is no law. Hence our  constitutional perspective that the activities of each of the governmental authorities are subject to judicial review, consistently with the scope of the powers of that authority. This court has held even the functioning of the Knesset to be subject to limited judicial review (see Bergman v. Minister of Finance [33]; Sarid v. Knesset Chairman [15]; "Kach" Faction v. Knesset Chairman [1]; Kahana v. Knesset Chairman [26]). However, it was seen fit in the Basic Law, see. 13(a), to free the discharge of the presidential function from direct judicial review. There does remain the possibility of indirect review of his decisions, but only in a restricted way. For example, if he pardons a particular person, but refuses to pardon someone else in a similar position, the latter person would have no remedy. It is inconceivable that that same Legislature which freed the presidential functions from judicial review, should have granted him pardoning powers in place of those of other authorities amenable to the jurisdiction of the courts. We should, on the contrary, construe the presidential pardoning power as a residual, or a "reserve" power - as Justice Agranat called it - for use when the powers of the other authorities have reached the limits of their exercise.

 

28. I have so far assumed that our own "constitutional scheme" requires the pardoning power to be construed as not competing with the powers of other authorities. Hence my conclusion that the President lacks the power to pardon before conviction. It might be argued that the desired result could be achieved by recognizing the President's power to pardon before conviction in the expectation that he would make only a limited use of that power, as is the case in England. There the law has left the constitutional monarch with the pardoning power of the absolute monarch, but ensured that he does not in practice exercise that power except as consistent with the democratic character of the regime. This alternative, attractive as it may seem, is unacceptable to me for a number of reasons .

          In the first place, constitutional norms cannot be built on hopes. Basic principles of government are not shaped on the assumption that all will proceed as planned. Quite the contrary. The entire constitutional edifice is testimony to the realization that checks and balances must be provided to prevent, or cope with, situations that are likely to go wrong. If under our "constitutional scheme" the presidential powers must not rival those of other authorities, it would be most undesirable to rest the attainment of this objective on the expectation of presidential restraint, and his refraining from the exercise of his available powers. What if the presidential conduct doesn't come up to expectations? And - should we pursue this approach - why not say that the President has a general power of pardon and amnesty? The fact is that we are dealing here with a matter of constitutional import, impinging as such on our lives within the national framework. When it comes to the shaping of basic principles of government, we have to adopt a clear stand one way or the other. The matter should not be left for resolution on a casuistic basis of distinction between case and case, exceptional or otherwise, that would leave everything exposed to the vagaries of the passing political rivalries. We have been so instructed by my respected colleague, President Shamgar, in Neiman v. Central Knesset Elections Committee [19], where he held as follows (at p. 260):

         

When constitutional matters are under review, their import and implications must be considered in the long term, and proper weight given to their influences on the political and social frameworks within which they operate. If these be subjugated to the needs of the hour and we adopt a casuistic approach in matters of constitutional content, particularly concerning the freedom and rights of the individual, we shall miss the mark and deal less than justly with the subject.

 

          Were we to resolve the problem by a casuistic determination that the State President has the power, in principle, to pardon before conviction, with everyone left hoping that he will only rarely exercise that power, we should be guilty of doing exactly as admonished not to do.

          Secondly, the very existence of a power, albeit slumbering, invariably arouses expectations of its use. The President would be subject to constant individual and public pressure to exercise his power of pardon before conviction, and thrust himself into the centre of public controversy whether he accede to or refuse the request for a pardon. It is precisely the need to regard the President as the symbol of the State and isolate him from political rivalries, that demands a clear and unequivocal determination as to the scope of his pardoning power, and its negation before conviction of the offender in a final judgment.

          Thirdly, the indirect - in Israel the only possible - judicial review of the President's discharge of his functions, would be ineffective if he intervened in the activities of the other authorities, for if he acted within his lawful powers, there would be little opportunity for intervention by the court. If we are bent upon a "separation of powers," it is necessary that we keep the powers duly separated.

         

29. It is accordingly my conclusion that our constitutional framework precludes a construction of the presidential pardoning power as being concurrent with the powers of other State authorities. It demands, in fact, that the power only be exercised after the other authorities have exhausted their own powers. It might be asked whether this approach is not unduly rigid, and whether it may not result in injustice in certain, perhaps exceptional, cases. Can it be said that the other authorities will weigh the same considerations as does the President, and that in a rare case the presidential pardon will not offer the most effective remedy if granted before conviction? These questions are important and must be answered.

          Our starting point is that in the overwhelming majority of cases, the different State authorities are sufficiently equipped to deal with the problems with which the power of pre-conviction pardoning is likely to be confronted. True, the mechanisms are not the same, nor is the legal consequence identical, but the main problems are solved. If someone's personal plight (for example, a malignant disease) indicates that he should not be interrogated or prosecuted, a presidential pardon is not the only satisfactory solution. The police and the prosecution may take the suspect's personal circumstances into account and, for example, the Attorney-General may stay the proceedings for lack of public interest in the continuation of the trial on grounds of personal considerations affecting the applicant. Legally speaking, pardon is of course a "stronger" remedy than a stay of proceedings, yet the latter "milder" remedy suffices to solve the problem of the incurably ill suspect, or other problematic cases, by achieving the generally desired effect: The Attorney-General may likewise take into account general social considerations (embracing also matters of security and foreign policy). It was pointed out in the report of the Agranat Jurists' Commission on the Powers of the Attorney-General (1962) that in certain circumstances a situation involving a security, political or public interest may demand that no criminal charge be preferred. In this connection the Commission reported as follows on the Attorney-General's need to consult with the political authorities (at p. 13):

 

The stated duty to consult arises particularly when criminal proceedings are being instituted in relation to a matter of security, political or public interest. In such event it is always incumbent on the Attorney-General to consider whether the act of instituting criminal proceedings (or halting the same) is not more likely to prejudice the interests of the State than refraining from taking such action. This the Attorney-General will only be able to do after having sought information and guidance from those who carry the primary responsibility for safeguarding the State from the security, political and public aspects - that is to say, from those who, so we must presume, are more experienced and knowledgeable in those fields than we are. As already indicated, he will generally need to refer to the Minister of Justice for the required direction and advice; but sometimes, that is in cases which give rise to questions of "high policy," there will be no alternative but to obtain guidance from the Government as a body.

 

          It will be found that most of the problematical cases for which a pre-conviction pardon is sought, can and should properly be handled through the existing mechanisms, which have been structured in advance to deal with that very kind of case. Every person is presumed innocent until convicted, and a suspect's legal status cannot change except upon conviction by the court. The particular problems, for the suspect himself and for the general public, can normally be satisfactorily handled through the authorities charged with the administration of criminal justice. The former situation of the comparatively poor facilities available for the "extinction" of the offender's criminal past, has now been significantly improved with the enactment of the Crime Register and Rehabilitation of Offenders Law of 1981, according to which a presidential pardon - and clearly only a pardon after conviction is envisioned there - is an extinction of the conviction for all intents and purposes (sec. 16(c).

         

30. I am ready to acknowledge the possibility of very exceptional circumstances in which the power of pardon before conviction would offer the most practical and effective means of dealing with the problem. Even that, however, would not be a decisive consideration, for the reason that the "spacious view" we have to take when construing a provision of constitutional content, which is the case here, otherwise dictates. We must take into account not only the individual's plight, but also the interests of the general public, and the possibility of the abuse of the power. We must also remember the dynamics of a progression in which the rarest exceptions become less rare, and then become the general rule. The Attorney-General's power to stay proceedings offers an illustration of such a progression. We accordingly have to strike a balance between the different interests - between the hypothetical special exception and the need for the determination of clear and sharply defined limits for the exercise of executive powers at the highest level. Since there is no ideal solution, we can only strive at one that promises the least evil by balancing between the clashing interests. In so doing, in these circumstances, there is no need to give any priority to anomalies and exceptions. The best way to deal with the special cases is through the powers of the authorities who deal regularly with the situations concerned, and not through the conferment of exceptional powers on the State President. That has been the experience of many countries with political regimes resembling our own. Thus the Heads of State in France, Italy, Germany, India, Australia, Canada and in numerous other countries, do not enjoy a power of pardon before conviction. This lack has not, so far as I am aware, led to injustice grave enough in exceptional cases to prompt any move towards amendment of the existing law of pardon. The modern trend seems rather to indicate the contrary, and countries which were formerly subject to the English King's power of pardon have acted to restrict exercise of the pardoning power in their own countries to the post-conviction stage. Edwards, for example, states the situation in these terms (The Attorney-General, at 474):

 

A review of the independence constitutions within the Commonwealth, negotiated with the United Kingdom Government prior to the transfer of sovereignty, provides substantial support for a pre-conviction limitation of the pardoning power.

 

          And the trend in our own country has been towards refinement of the functioning and facilities of the existing authorities, as witness the provisions of the Crime Register and Rehabilitation of Offenders Law of 1981. Even the most anomalous and exceptional circumstances should not, therefore, be allowed to controvert our fundamental constitutional doctrines.

         

31. Before concluding this part of my opinion, I wish to refer to a problem connected with the President's post-conviction pardoning power. Does the pardoning power avail, after conviction, in situations where other State authorities have their own powers to deal with the problem? For instance, can a presidential pardon be granted someone whose case is under examination in a retrial, or be granted for reasons of "permanent ill-health" when this question is under examination by the Minister of Police in the framework of his powers under sec. 49(d) of the Penal Law of 1977? These questions do not arise in the matter now before us, and must await elucidation at the opportune time. However, I may point out that the situations described raise a question different from that occupying us in the present petitions. Our concern so far has been whether the term "offender" includes also an unconvicted suspect, the term itself being "open" and amenable to different possibilities, so that we are assigned the task of selection in accordance with the legislative purpose. In the above problematical situations (such as retrial) the accused, who has already been convicted, is by any linguistic test an "offender" and the question is whether such a person can be said to fall outside the ambit of sec. 11(b) of the Basic Law. These situations raise interpretative questions of the greatest complexity. Hence, it may happen that the legislative policy, though its trend be clear, will not be given to implementation in respect of a certain class of "offender" concerning whom the language of the law is insufficiently flexible. The answer, whatever it may be, cannot however affect the construction of the term "offender" in those cases where the language of the Law is flexible enough to serve the legislative policy. It would be unreasonable to hold that since the Legislature failed to attain its objective in some of the possible cases, it then becomes desirable to construe its directives generally in a manner thwarting achievement of the legislative purpose. I believe we should take the opposite interpretative approach. As faithful interpreters, we are committed to attainment of the legislative purpose as far as possible, bearing in mind always that while the interpretation is not bound to the words used, the words do limit the interpretation and so restrict our interpretative freedom. We may implement a legislative purpose within the bounds of a maximum-minimum semantic gradation, but we may not implement a legislative purpose which has no foundation at all in the language of the statute. The point was elucidated by this court in Haddad v. Paz [34], in the following terms (at p. 670):

 

The legislative purpose constitutes an interpretative aid when it serves as a guide in choosing between different, linguistically permissible, interpretations. It is essential, therefore, that the interpretative option which would implement the legislative purpose, find a receptacle in the language of the Law. There has to be a verbal connection, even a minimal one, between the language and the purpose of a Law. It is necessary to find an Archimedean hold for the legislative purpose in the language of the Law. The interpreter may not implement a purpose that finds no linguistic anchorage in the Law.

 

          We have dealt with the legislative purpose. Linguistically speaking it may be achieved in relation to an unconvicted person. He is not in the category of an "offender." It is doubtful whether this purpose is attainable in relation to a convicted person whose case is under retrial, or under examination by the Minister of Police in the context of his powers in situations of permanent ill-health. These are difficult questions awaiting clarification at the proper time.

         

32. It may possibly be contended that such linguistic "rigidity" is indicative of a basic misconception as to the legislative purpose. It should perhaps be said that because the President has a power of pardon where there is a retrial, he has the like power where no trial has been held at all. My answer to this legitimate question is that the available evidence - factual (the views of the Knesset members concerned) and legal ("the constitutional scheme") - does not support such a conclusion.

 

(11) Interim Summary

 

33. The empowerment of the President "to pardon offenders" is couched in "open", equivocal language, offering in itself no answer to the question whether the power of individual pardon is exercisable also before conviction, or the term "offender" includes also an unconvicted suspect. For the purpose of choosing between the possible linguistic options, we must have recourse to the legislative purpose. That purpose was not the equation of the State President's pardoning power with that of the English King, or of the President of the U.S.A., so we cannot be guided by those models. The Basic Law: The President of the State, is indeed an original Israel Law - the Israel Legislature "neither copied nor omitted, but built its law as an independent structure." It must accordingly be construed against the background of our own national experience, with interpretative guidance sought from the countries which have a similar constitutional arrangement. In discharging the interpretative function we must take a "spacious view," having regard to our "constitutional scheme." Against this background, my own approach is not to presume that the lawgiver sought to confer on the State President - who does not head the executive authority but symbolizes the State, and whose functioning is not subject to direct judicial review - executive powers concurrent with those of other State authorities (the police, the prosecution, the courts). The lawgiver cannot be presumed to have favoured presidential intervention in criminal proceedings before these have run their full course. Therefore, I interpret the expression "to pardon offenders" as extending only to persons against whom a final convicting judgment has been given. This approach finds support in the scholarly treatises of two of Israel's most distinguished jurists, Professors Feller and Klinghoffer, in the criminal law and constitutional law fields respectively. In the view of both scholars, each from the angle of his own specialized field, the presidential power of individual pardon extends only to duly convicted persons (see Prof. Feller's article, "Rehabilitation," p. 5). The same approach was also adopted by Landau J. in the Matana rehearing, where he held as follows (at p. 461):

 

My main ground in opposing the wide interpretation proposed by the Deputy President is that matters of punishment in criminal cases fall within the jurisdiction of the courts. It is clear that side by side with this jurisdiction the special power of pardon is required in order to correct any serious error of the court which cannot otherwise be corrected, and as an act of grace after the offender has served part of his sentence.

 

          The matters of correcting "any serious error of the court," and "an act of grace after the offender has served part of his sentence," have relevance after conviction only. I am conscious of the fact that Deputy President Agranat (as he then was) and Justice Berinson, two of Israel's most distinguished Judges, expressed a different opinion. I shall seek to explain how this occurred when I examine the approach of my respected colleague, President Shamgar, which I now proceed to do.

         

F. The Approach of Shamgar P.

 

(1) The Gist of his Approach

 

34. I shall seek to set out the main points in the judgment of Shamgar P. on which our approaches diverge. My colleague's starting point seems to be that the Anglo-American model was envisaged by the Israel Legislature as the prototype for the presidential pardoning power in Israel at the time when sec. 6 of the Transition Law was enacted. Further, that it was also so held in the case of A. v. the Law Council and in the Matana rehearing. This "historical-interpretative" approach would dictate the conclusion that the presidential pardoning power in Israel is the same as that of the English King or the American President - and different from other models which may be disregarded - and that it embraces also the grant of a pardon before conviction. In the opinion of Shamgar P., this same situation was envisaged by the Israel Legislature when it later enacted the Basic Law: The President of the State. Hence, so far as pertaining to the issue now before the court, the text of the pardoning provision in the Transition Law was re-enacted without change in the form in which it had been interpreted in the precedents - an indication that no need was seen to change the then existing legal situation. Accordingly, it could not be contended that parallel powers held by other authorities (such as the Attorney-General's power to stay criminal proceedings) might affect the presidential pardoning power, without it first being proved that the existence of such parallel or overlapping powers have implicitly repealed the presidential power. In the opinion of Shamgar P., no such implied repeal could be established in the present matter since the existence of the parallel powers created no conflict. The State President was accordingly competent to grant a pre-conviction pardon and, in the view of Shamgar P., this conclusion was also consistent with the interpretative perspective that constitutional powers must be given an expansive interpretation.

 

35. Shamgar P. also made reference to other matters in his important judgment, but I believe I have sufficiently stated the essence of his approach. With all due respect, 1 am unable to agree with that approach. Lack of time prevents me from elaborating upon many of the points on which 1 am in disagreement with my respected colleague, and I shall confine my remarks to certain matters which seem to me important for the resolution of the problem before us.

 

(2) The Anglo-American "Mould and Prototype"

 

36. As I have already indicated, Justice Shamgar took as the starting point for his construction of the presidential pardoning power, the view that it was structured according to the powers of pardon of the English Monarch and the U.S. President. I have sought to show that this view is not in accord with the facts. It was not the latter powers that the lawgiver had in mind when the power of pardon was enacted under the Transition Law. I have examined the relevant legislative history, without finding any hint of factual support for this theory. The powers of pardon of the English Monarch did not serve as the "prototype" for the pardoning power of the President of Israel. Even Justice Agranat did not find as a fact, in A. v. the Law Council [2], that in enacting sec. 6 of the Transition Law the Israel Legislature had in mind the English Monarch's pardoning power as a matter historically established. Justice Agranat's approach was legal and not historical and he assumed, as a matter of law, that the pardoning power of the President of Israel was the same as that of the High Commissioner in the Mandatory period, which in turn he assumed was the same as that of the English Monarch. On this basis he drew the logical conclusion that the pardoning power of the State President was the same as that of the English Monarch, the learned Justice holding as follows (at pp. 750-751):

 

I am of the opinion that the power of pardon of the President of Israel is the same, generally speaking, as the power of pardon of the King of England, in its nature and in respect of the consequences which flow from its exercise. Before the enactment of the Transition Law of 1949, the High Commissioner was empowered under Art. 16 of the Palestine Order in Council (inter alia) to "grant to any offender convicted of any crime... within Palestine... a pardon either free or subject to lawful conditions, or any remission of the sentence passed on such offender.... " The power of pardon held by the High Commissioner was accordingly the same as the power of pardon held by the King of England.... If the provisions of sec. 6 of the Transition Law of 1949 were enacted in place of Art. 16 of the Order of the King-in-Council, as I believe happened, then the power of pardon held by the President must be deemed the same as the power formerly possessed by the High Commissioner, and later by the Provisional Government. That is to say, this power is parallel, in its nature and in the consequences which flow from its exercise, to the power of pardon exercised by the King of England.

 

          It is generally accepted today that the above parallel drawn by Justice Agranat in A. v. the Law Council contained two errors, as was indeed pointed out in the dissenting opinion of Landau J. in the Matana rehearing. In the first place, it is clear that the State President's pardoning power is not the same as was the power possessed by the High Commissioner. If these were the same, the question now before us might never have arisen, since except with regard to offenders who turned "King's evidence," the High Commissioner had no power of pre-conviction pardoning. This error was later acknowledged and corrected by Justice Agranat in the Matana rehearing, in the following terms ([3] at pp. 443-444) :

         

resort to a system of comparison between the language of Art. 16 of the Order in Council and that of sec. 6 of the Transition Law, 1949, in order to ascertain the intention of the Israel Legislature in the latter section which it enacted - resort to this mode of interpretation is out of place... The language of Art. 16 of the Order in Council need not prevent the giving of a wide interpretation to the President's power of pardon.

 

          The second error was Justice Agranat's perception of the High Commissioner's pardoning power as equal to that of the King of England. This aspect too was later dealt with by him in the Matana rehearing, where he pointed out that the High Commissioner held a delegated power which was not the full power of the English King:

         

   the power of pardon granted to the High Commissioner under Art. 16 of the Order in Council... is none other than the power delegated to him by the King from that accorded to the latter by virtue of the prerogative... In view of the rule of construction mentioned above which demands a restricted interpretation of the "delegated" powers of one who has the status of the governor of a British colony, it was imperative to define clearly and precisely the power which was delegated in this respect to the High Commissioner, and it is to this that the detailed and exact language of art. 16 must be attributed. The truth of the matter is that the power of pardon of the King of England was never delegated, in its entire scope, to the High Commissioner. This is proved by the fact that whereas we learn from the passage from Halsbury's Laws quoted above that the King is empowered to grant a pardon also " before conviction," it is provided by Art.16 of the Order in Council that the High Commissioner may only exercise this power in respect of "any offender convicted" (ibid., pp. 439-440).

 

          There accordingly appears to be neither a factual nor any legal basis for the "historical-interpretative" premise that at the root of the State President's pardoning power lay the power of pardon of the English Monarch. Nor, I need hardly add, is there any factual-legal basis for attributing such a role to the pardoning power of the U.S. President.

         

37. I shall now proceed to analyse the judgment of Agranat D.P. in the Matana rehearing. I have endeavoured above to show that he did not found his decision on any "historical-legal" basis of an Anglo-American "prototype" of the pardoning power. The starting point of his approach was the perception of the Transition Law of 1949 as an original Israel enactment. Agranat D.P. relied in this regard on a dictum of Smoira P., that the Israel Legislature "neither copied nor omitted, but built its law as an independent structure", and went on to add as follows ([3] at p. 444):

 

I have so far tried to show that the language of Art. 16 of the Order in Council need not prevent the giving of a wide interpretation to the President's power of pardon and that the formulation of this power in sec. 6 of the Transition law "suffers" such a construction. Is there any positive justification for this and how far should the line be stretched? To answer this question we must first consider the nature of the various powers of pardon.

 

The approach of Agranat D. P. is accordingly to be seen as interpretative rather than historical. Reading the text of sec. 6 of the Transition Law, he examines whether the language "suffers" the construction concerned, and among the possibilities "suffered", chooses the meaning for which there is "positive justification" but taking care not to "stretch the line" too far. He takes into account the fact that he is dealing with a constitutional provision which, he holds, need not be given a restrictive interpretation but calls for the taking of a "spacious view" (ibid. p. 442). It was against this background that Agranat D.P. examined the substance of the pardoning power. Making a thorough examination of the pardoning powers held by the King of England and the American President, he was confronted by the judgment of Berinson J. in the criminal appeal in Matana v. Attorney-General [3], where the latter dwelt on the difference between the English King and the President of Israel. Countering this argument, Agranat D.P. held as follows:

 

My reply to these words of dissent is twofold. Firstly even if the fact that the local provision is drafted in the Hebrew language must not be lightly disregarded, it would also not be right to give it undue weight. Not only do the expressions "pardon" and "reduction of punishments" have a universal meaning, but the power of pardon, in its scope under the common law, is the power which passed to the Provisional Government by virtue of sec. 14 of the Law and Administration Ordinance, 1948, and was known to local jurists at the time when that provision was framed.

 

   Secondly, the importance of the lesson from American precedent arises from the fact that although it was the clear aim of the draftsmen of the Constitution of the United States (and it was this very object which they wished to achieve) to ensure - by means of the provision imposing upon the President the duty of supervising the faithful implementation of all the laws of the State - that no trace should remain of those prerogative powers which served the King as a means of relaxing the bonds of various laws and statutes, nevertheless they left the power of pardon within the realm of criminal law just as it was, and introduced a specific provision conferring such power upon the President of the State.

         

          And in reply to the contention that the status of the President of Israel, as "symbolizing" the State, differed from that of the American President as "conducting its affairs," Agranat D.P. had this to say (ibid., pp. 453-454):

         

The reply to this argument is that also in France, where at least until 1958 the status of the President was basically similar to that of the President of Israel, it was found necessary to confer upon the President of the Republic the right to grant pardons.... The result is that the ground of the absence of any similarity or comparison between the status of the President of our country and that of the British Crown (or of the President of the United States) is erroneous.

 

          Justice Agranat accordingly did not construe the Transition Law on the basis that its legislative purpose "was fashioned in the Anglo-American mould, which served as its prototype." His approach was to take a pervasive constitutional perspective, to take a "spacious view" in construing the relevant statutory provision. In ascertaining for himself the meaning of "pardon," he availed himself of the English experience as well as the American, the French and the German. He did not distinguish between the legal situations in the different countries, and he was apparently unaware of the fact that in France the term grace mentioned by him, was not interpreted in the same way as the term "pardon" in the U.S. Constitution. He sought to uncover the essence of the matter, seeing the term "pardon" as harbouring a concept of "universal significance." I wish to adopt that same approach in the matter now before us.

 

.38. It cannot be overlooked that in his judgment in the Matana rehearing, Agranat D.P. also held, specifically, that the State President has the power to pardon before conviction, and so did Berinson J. As for the import of this determination, I believe it is generally recognized as carrying the weight of an obiter dictum. That would entail a twofold consequence. First, from the viewpoint of our legal system, the abovementioned conclusion constitutes no authoritative declaration that Israel law empowers the President to pardon suspects also before their conviction. Hence a District Court Judge, for instance, would still be free to hold that the presidential power of pardon avails after conviction only. For the same formal reason M. Ben-Ze'ev, a former Attorney-General, felt himself free to declare before the Knesset Constitution, Law and Justice Committee - after the decisions in A. v. The Law Council and in the Matana rehearing - that the presidential pardoning power was exercisable after conviction alone. For this reason too legal scholars have expressed the same opinion. In so doing they were not merely reflecting the desirable state of affairs, but what seemed to them to be the existing legal situation. It is true that "the final form in which the Law is shaped, is the form given it by the Judge" (Justice Sussman, "The Courts and the Legislating Authority," Mishpatim 3 [1971], 213). Also, "Once the Supreme Court has construed a legislative enactment as it did, in a dispute before it, this construction becomes part of that enactment" (Justice S. Agranat, "The Contribution of the Judiciary to the Legislative Endeavour," Iyunei Mishpat 10 (1984), 244). But these statements are true only with regard to the ratio decidendi, and do not apply to obiter dicta. The rational explanation for this is that in his passing remarks the judge does not sense the same responsibility as he does when setting forth the reasons for his decision. Knowing that his remarks in passing have no binding force, he may feel greater freedom in expressing them. It seems to me that our instant matter well illustrates the point. Thus Berinson J.'s statement concerning the presidential power to pardon before conviction does not, I believe, accord with his general line of thinking. Seeking to restrict, he in fact widened the interpretation. His own perspective provided little explanation for that result. As for Justice Agranat, he referred not only to Anglo-American law but also to Continental law, without, however, carefully examining the latter. He was therefore unaware of the fact that the Continental countries generally did not recognize the possibility of individual pardon without prior conviction. He would certainly have made a thorough study of the matter had he considered it central to his decision. Moreover, in substantiating the need for the pardoning power, Justice Agranat set forth the following two reasons alone (in A. v. The Law Council and in the Matana rehearing):

 

   The primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated -is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail (A. v. the Law Council [12], at p. 751).

 

          This reasoning naturally only holds true in relation to a convicted offender. It is not at all applicable to someone who has yet to be convicted. How, then, is this reasoning of Justice Agranat to be reconciled with his view that the President has power to pardon before conviction? Such power would necessitate a different rationalization, of the kind that is not to be found either in A. v. The Law Council or in Matana.

          The second implication (of holding a judicial statement to be obiter) is that much significance may nevertheless attach to obiter dicta. If these flow directly from a coherent basic perception, they are capable of heralding accurately the reasons for a decision in the future. As a result these dicta create public expectations which are frequently acted upon. The resulting practice may in turn contribute in the course of time to the adoption of a construction that is in keeping with the original dictum, the expectations thus fulfilling themselves. All of this, of course, will fail to be decisive if a later court holds the dictum to be wrong. But it will all be of great importance if the later court should hesitate between two possible constructions. It is true that as between truth and stability, we should prefer truth, yet sometimes when truth and truth vie with each other - stability is to be preferred (see Of Ha-Emek Cooperative Society v. Ramat Yishai Local Council [32]). These considerations do not apply in the case before us for several reasons. First, because the dicta of Justices Agranat and Berinson were not a necessary concomitant of their basic perspective, and with regard to Justice Agranat I have sought to show that he did not perceive the Anglo-American method of pardon as the "prototype" for our own, but that his underlying approach was to give the expression "pardon" its universal meaning. By such universal standards, the dictum that the State President has the power to pardon before conviction certainly cannot be said to have any compelling foundation. A second reason for not following this dictum is that no constitutional practice actually evolved in its wake. In fact, the contrary appears to be the case, for, by internal directive, requests for a pardon have generally not been acceded to before conviction. In argument before us only a very small number of cases of pardon before conviction could be cited. It seems that the dictum created no expectations which could influence our interpretation.

          It accordingly transpires that the question of the presidential power to pardon before conviction has remained essentially unanswered, and we are now called upon to resolve it for the first time. So far the question has been the subject of passing judicial statements, legal articles and jurists' opinions. It is now the time for this court to have its say.

         

39. My colleague, President Shamgar, relying on the statements of Agranat D.P. in the Matana rehearing, holds that constitutional provisions should be given an expansive interpretation. This is an important determination, since Shamgar P. seeks to give the presidential power of pardon a wide construction. I have two comments in this regard.

 

          First, Justice Agranat's starting point (in the Matana rehearing) was that constitutional directives did not necessarily require a restrictive interpretation, but called for a "spacious view" to be taken. I agree with that approach and it also forms the basis of my own judgment here. In my opinion, however, it does not follow that every directive of constitutional content should be expansively construed. That is unfeasible, since constitutional directives deal in the nature of things with the reciprocal relations between the State authorities, and the occasional expansive construction of a particular authority's powers necessarily entails a narrowing of those of some other authority. Furthermore, an expansive interpretation of a governmental power may often entail a narrowing of basic rights, which too is an inconceivable result. In fact, the question whether the construction should be expansive or restrictive does not determine the mode of interpretation, but is itself the interpretative outcome. Thus Justice Agranat himself held that the presidential power of pardon did not extend to a general amnesty, this conclusion being the result of a narrow construction of the pardoning power. The constitutional proposition, in my opinion, is that constitutional directives must be construed in a manner fitting their preferred standing, and in consonance with their capacity to determine the national pattern of life. A basic provision is not intended to perpetuate an existing situation, but to give direction to human experience. Its construction accordingly calls for a pervasive perception, and not a technical approach.

          My second comment is that if called upon to choose between an expansive and a restrictive construction of the presidential pardoning power, I should prefer the latter for several reasons: in the first place, in order to avoid the kind of unwelcome rivalry between the different authorities that I have already described; secondly - and this is the main consideration here - because pardon creates an inequality between "offenders," and a statutory provision relating to pardon must accordingly be given a narrow interpretation. The matter was discussed by Landau J. in Bergman v. Minister of Finance [33], in the following terms (at p. 698):

         

It is accordingly proper, especially in borderline cases, that where a statutory provision is open to two constructions, we should prefer the construction which upholds the equality of all before the law and does not set it at naught.

 

          This principle has been reiterated by the court on a number of occasions (see Abu Hatzeira v. Attorney-General [35]; Raundanaf (Korn) v. Hakim [36]).

         

40. Before concluding my remarks on the instant problem, I should state that President Shamgar's basic standpoint that Knesset Members contemplated a particular model of the pardoning power when our own version was enacted, raises many questions in my own mind. Supposing it were to be established that the English or the American model indeed served as the "prototype" for the wording of sec. 6 of the Transition Law, would that require us to construe the provision in accordance with the American tradition? I believe not. A Law, as I have already mentioned, is a creature living within its awn "environment," and the environment of an Israel statute differs from that of an English or American statute, even if they be similarly worded. "The law of a people must be studied in the light of its national way of life" per Agranat J. in "Kol Haam" Ltd. v. Minister of the Interior [37] at p. 884). The judicial discretion in the interpretation of a statute, so Justice Landau has guided us, must be exercised "in order to bring it into harmony with the constitutional regime in existence in the State" (see his abovementioned article in Mishpatim, 1[1969], at p. 306). All does not depend, therefore, on the model or prototype contemplated by the lawgiver when the pardoning provision was enacted and, important though this may be, it is not decisive. We must interpret the law in consonance with our national way of life, and this may change with the passage of time. If so, the interpretation of a Law will undergo a corresponding change. "If times have changed," Justice Sussman wrote, "the Law suffers a sufficiently flexible construction to enable its adaptation to the changes" (see his abovementioned article in Mishpatim 3 [1971], at p. 215). In this regard Agranat J. has commented thus (Kaufman v. Margines [38], at p. 1034):

 

When the Judge is confronted by a factual situation stemming from new conditions of life rather than those which called forth the existing ruling, it will be the Judge's task to re-examine the logical premise on which the ruling formulated against a different background was based, with a view to adaptation of the same to the new conditions.

 

          This adaptative need applies not only when the facts change, but also when the legal context or "environment" changes. The enactment of new Laws creates a new legal context, and these have the capacity to influence the construction of an earlier statute. It is to be observed that the question is not one of a repeal, expressed or implied, of an earlier Law, but of the effect of the very existence of the new and different Laws on the interpretation of the earlier Law. The point was discussed in State of Israel v Pahima [39], where it was held as follows (at p. 828) :

         

Sometimes a Law, upon its enactment, presents a number of interpretative options, but with the passage of time arid the enactment of additional Laws on the same subject, some of these options fall away, while others take their place. Apposite here is Justice Sussman's statement that "a term in an enactment is a creature living within its environment" (H.C. 58/58, at 513). This environment includes, besides other directives in that enactment, other statutory enactments which throw light on the interpretation of the Law concerned. It must be observed that here the additional enactments bring about no "legislative" change in the Law, only an "interpretative" change. The new enactments have created a new "environment," which by its very existence influences the manner of interpretation of the Law.

 

          Hence the "prototype" contemplated by the lawgiver when the State was established, for all its importance, cannot in itself determine the contemporary interpretation of the Law. A Law is a dynamic creation, adaptable to changing exigencies. This quality was thus elucidated by Justice Agranat in his abovementioned article (Iyunei Mishpat 10 [1984], at p. 239):

         

   Experience teaches that words have a dynamic life of their own. That is to say, with the changes wrought by time in the conditions of life and the concomitant changes in the different social outlooks, words gradually "shed" their original meaning and "assume" a new significance, or come to harbour additional shades of meaning. This factor may well - though it need not always - bring about a construction of the Law the result of which, although falling within the purview of the Law's general purpose, is not the interpretation contemplated by the lawgiver.

 

          It follows that new legislation (such as, for instance, the Crime Register and Rehabilitation of Offenders Law) enacted after the passing of sec. 6 of the Transition Law and sec. 11(b) of the Basic Law, is able to affect the mode of interpretation of the latter provisions.

         

(3) The Legislative Authority and its "Acquiescence"

 

41. The expression "to pardon offenders" was repeated in the Basic Law without change, just as it stood in the Transition Law. From this Shamgar P. infers that the Knesset adopted for itself the construction of the majority as well as the minority opinion of the court, on the question of the pre-conviction pardoning power, in the Matana rehearing. This approach is neither factually nor legally acceptable to me.

 

42. Factually, the above thesis seems in conflict with the views held by members of the Knesset Constitution, Law and Justice Committee when they discussed sec. 11(b) of the Basic Law prior to its enactment. It appears from the views they expressed, as cited by me above (see par. 11), that they considered the presidential pardoning power to be exercisable after conviction alone. They so understood the words "to pardon offenders," and that was the result they desired. I need only repeat the following statement made by Knesset Member H. Zadok towards the end of the Knesset Committee's discussion of the matter:

 

It seems to me we have no difference of opinion on the substance of the matter. We intend to empower the President to pardon persons who have been criminally tried and convicted.

 

Against this background, I do not see how it can be said that the Knesset "rested content" with the pre-conviction pardoning situation as interpreted by the court in the Matana rehearing. The Knesset focused its attention on the problems which inspired the ratio decidendi, and clarified the matter by way of a subsequent amendment to the wording of the Law on the troublesome point then in issue. The Knesset did not address itself at all to the obiter dictum on the matter of pardon before conviction.

 

43. Legally speaking I am equally unable to accept the aforementioned thesis of Shamgar P. My own approach is that the Knesset legislates only when it actually enacts, and not when it refrains from so doing (see A. Shapira, "The Silence of the Legislature: A Canon of Statutory Construction?," Hapraklit, 21, 293; G. Tedeschi, "Recent Trends in the Theory of 'Stare Decisis'," Hapraklit, 22, 320). The proposition was succinctly stated by Berinson J. as follows (in the Matana rehearing [3], at p. 470):

 

When have we found that the Legislature is able by silence or inaction to put its seal on a particular course of action of one of the State authorities?

         

          Accordingly, the Knesset's mere repetition in the Basic Law of the wording used in the Transition Law, cannot be said to have put the seal of a binding norm on the above dicta in the Matana rehearing.

         

(4) Implied Repeal

 

44. My colleague, President Shamgar; has devoted a considerable part of his judgment to the question of a repeal by implication. In my perception, however, this question fails to arise at all. It is not my view that the powers conferred on the different State authorities (the police, the prosecution, the courts) have repealed by implication the presidential power to pardon before conviction. To have thought so, would necessarily have entailed a recognition of the presidential pardoning power also before conviction. In fact, my approach is that the presidential power of pardon does not avail at all before conviction, so that no question of an implied repeal arises here. In my view, the various Laws dealing with the powers of the different authorities form part of the legal context or "environment," within the framework of which the pardoning power must be construed. These Laws have not implicitly repealed the provisions of sec. 11(b) of the Basic Law, but they do constitute a factor in the interpretation of the Basic Law (see State of Israel v. Pahima [39], at p. 828).

 

G. On the Rule of Law

 

45. Before concluding my judgment, I might observe that the petitions before us harbour in the background formal, as well as substantive, questions of the rule of law. In its formal sense the rule of law requires that all persons and bodies in the State - individuals, associations and governmental agencies - act in accordance with the law, and that any act in conflict with the law must be confronted by society's organized sanction. In this sense the rule of law has a twofold meaning: lawful rule and supremacy of the law. This embodies a formal principle, since it is not the content of the law that concerns us here, only the need for it. In this sense the rule of law is unconnected with the nature of the regime, but only with the principle of public order. As far as the executive authority is concerned, the rule of law concerns itself with the legality of the administration. The Executive is subject to the law, and its agencies have no rights, powers or immunities, unless conferred by law. It follows that a State functionary as such holds no greater rights, powers or immunities than does any other person in the State, and is therefore equally answerable for his actions. In this connection I may quote the well-known words of A.V. Dicey:

 

With us every official, from the Prime Minister down to a constable, or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen (The Law of the Constitution, 10th ed., p. 193).

 

          Consequently, if the Attorney-General be of the opinion that the available material provides prima facie justification for the opening of an investigation concerning very serious offences allegedly committed by members of the executive authority, the rule of law will require that the matter be examined and investigated. That is how we should treat anyone else, and State officials should be treated no differently. Security considerations dictate no contrary result, for there is no security without law, and the rule of law is a component of national security. Security needs dictate that the proper investigative machinery be found, or else the General Security Service will be unable to fulfill its task. The strength of the Service lies in the public confidence it enjoys, in the trust placed in it by the court. If security interests become the paramount consideration, the public as well as the court will lose their trust in the Security Service and in the legality of its operations. Without trust, the State authorities cannot function. That is the case with the public trust in the courts (see Tzaban v. Minister of Religious Affairs [40]), and so it is with the public trust in the other governmental organs .

         

46. The rule of law carries, in addition to its formal attributes, also a substantive significance, namely: rule of the appropriate law, law which displays a balance between individual and the public needs. The primary implication thereof is the equality principle, equality in the application of the law and its use. The rule of law is negated where there is discrimination between equals. The matter was discussed by this court in Neiman v. Knesset Central Elections Committee [19], where Shamgar P. made these observations (at pp. 261-262):

 

The rule of law finds its main expression in the fact that it is not the rule of persons - according to their own unfettered decisions, considerations and desires - but is founded upon stable normative directives which are equal for all and bind everyone in equal measure. The manner of definition of a right and even its recital in the Law do not in themselves constitute an effective safeguard, for these do not secure full realization of the right. Rights are practically realized when they are respected by applying them equally in practice, without unjust discrimination. The value and potency of a Law which confers rights lie in the facts that the rights thus conferred do not remain in the realm of an abstract idea, however lofty in spirit and trend, that also the letter of the Law comes down to what is concrete and available, that it is applied according to standards of an equality among equals, from which there be no deviation for improper reasons.

 

The subjection of one person to an investigation, but not another who is in an equal situation, is an impairment of the rule of law, just as it is to grant one person a pardon but not another in equal circumstances, or to afford one person every opportunity of defending himself and stating his version of events whilst withholding the same benefits from someone else with an equal claim thereto.

 

47. Historians tells us that Chief Justice Coke, when he was unable to dissuade King James I from asserting authority in the judicial sphere, addressed these memorable words to the King:

 

          Quod rex non debet sub homine, sed sub deo et lege (the King is subject not to men, but to God and the law).

         

          So be it.

         

          The petitions concerning the investigation dismissed by unanimous opinion; the petitions concerning the pardons dismissed by majority opinion. The orders discharged.

         

Judgment given on 6 August 1986.

 

* In Hebrew - haninah, חנינה-Translator's note

 

            H.C.J  187/54

 

           

HALIMA SULIMAN BARRIYA

v.

THE KADI1) OF THE SHARIA MOSLEM COURT, ACRE (SHEIKH MUSSA-T-TABARI)

 AND ANOTHER

 

           

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

[July 19, 1955]

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

 

 

Moslem religious courts - Non-interference by High Court of Justice in procedure of religious courts - Moslem Law - Guardianship of minors - Women's Equal Rights Law, 1951 - Civil and Religious law.

 

            An application was made to a Moslem Religious Court by the aunt of three minor children to be appointed their guardian. The applicant's deceased brother, the father of the children, had directed before his death that the mother of the children should be their guardian. After his death the mother had remarried and the aunt, relying upon Moslem law, had taken the children into her care and had prevented them from remaining with their mother.

           

            In the course of the proceedings before the Moslem Religious Court the mother submitted (inter alia) that she was entitled to the guardianship by virtue of s. 3 of the Women's Equal Rights Law 2. The Moslem Religious judge (the Kadi) decided to deal with the legal arguments only after hearing and considering the evidence in the case. The mother believing that the Kadi had in effect already decided to apply Moslem religious law and to disregard the Women's Equal Rights Law applied for an order staying or setting aside the proceedings in the religious court.

           

            Held per Olshan P. : There was nothing in the record of the proceedings before the religious court to show that that court intended to disregard the civil law and rely only upon the religious law, and the order in which the religious court decided to proceed with the case was a matter of procedure with which the High Court would not interfere.

           

            per Goitein and Berinson JJ. : If in the event it is seen that the religious court confined itself to the Sharia 1) law and refused to take into account the civil law regarding equal rights for women, then it would be acting without jurisdiction and the High Court would come to the aid of the petitioner. The present petition was premature as there was nothing to show that the Kadi intended to disregard the civil law.

           

Darweesh and Angel for the petitioner.

No appearance for the first respondent.

Hawari for the second respondent.

Bar-Or, Deputy State Attorney, for the Attorney-General.

 

            OLSHAN P. This is the return to an order nisi, dated December 26, 1954, calling upon the first respondent to show cause why he should not be restrained from continuing the proceedings in the claim of the second respondent in File 26/54 of the Sharia Court2), or why an order should not be made setting those proceedings aside.

           

            The petitioner is the mother of three minor children, a son and two daughters. Her husband died six or seven years ago. The second respondent is the petitioner's sister-in-law, a sister of her deceased husband, and an aunt of the children. On October 14, 1954, the petitioner married her present husband and thereafter, in the language of the petitioner, "the second respondent took energetic steps to take from her the guardianship of the children" and "she succeeded by intimidation and persuasion in keeping them with her, and in preventing them from remaining with the petitioner".

           

            The second respondent applied to the first respondent to be appointed as guardian of the children alleging, inter alia, that her deceased brother had directed before his death that she should be the guardian of his children. The second respondent was represented before the Kadi by Mr. Hawari. The petitioner was not represented by counsel, but she was assisted by Mr. Darweesh as amicus curiae.

           

            We have been furnished with a copy of the record of the proceedings before the Kadi, the clarity and arrangement of which are to be commended.

           

            The record shows that:

(a)   The second respondent based her claim to be appointed guardian upon the allegation that the petitioner had married a second husband and had left the three children with the second respondent.

 

(b)   The petitioner submitted in support of her claim that she was entitled to the guardianship of her children. relying upon section 3 of the Women's Equal Rights Law, 1951. That section provides that the father and mother are the guardians of their children, and that upon the death of one of them the surviving parent continues as guardian unless the interests of the children require the appointment of some other person. The petitioner submitted that this section binds all religious courts and that the interests of the children required that she should continue to be their guardian.

 

(c)   Counsel for the second respondent submitted that the court should apply the religious law, according to which that person should be nominated who had been appointed as guardian by the father before his death. Counsel requested the first respondent to decide upon the preliminary points before hearing witnesses.

 

(d)   The first respondent decided that the sections of the Sharia Law relied upon by counsel for the second respondent should be considered after the hearing of evidence to determine whether the second respondent had in first been nominated as guardian, and that he would then deal with "the Sharia and legal aspects of the case."

 

(e)   At the second hearing, after the above decision had been given, witnesses were heard and the hearing adjourned for the purpose of examining the evidence taken, and determining to what extent the various witnesses had been consistent with each other. At that stage the petitioner applied to this court and the order nisi was issued.

 

            Counsel for the petitioner submitted before us that in view of the arguments advanced before the Kadi by counsel for the second respondent the decision referred to above must be regarded as a finding by the first respondent on the point argued before him, that is to say, that it is the religious law which must be considered and even preferred, and that the Women's Equal Rights Law must be disregarded. In view of this finding, he submits, the order nisi should be made absolute.

 

            Counsel for the petitioner also submits that the Sharia Law discriminates against the wife in this case and that the decision of the Kadi, therefore, in so far as it seeks to apply the Sharia Law, is in conflict with section 1 of the Women's Equal Rights Law which provides:

           

            "A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect".

           

            Counsel for the petitioner also submits that the decision referred to is in conflict with section 3 of the same law.

           

            It appears from the record that counsel for the second respondent did submit before the Kadi that the religious law is to be applied in matters of personal status, and pointed out that according to the law, in his opinion, a mother who has married a second husband is not to remain guardian, since the children may not be permitted to live under one roof with the second husband, who is unrelated to them. It follows, although he did not say this expresly, that the first respondent was being asked to disregard the Women's Equal Rights Law.

           

            Relying upon a book of the Sharia Law regarding the question of the guardianship of children, counsel tried to show that that law does not discriminate against the wife in the present case. He also submitted that the decision of the court should not be regarded as a decision that the Women's Equal Rights Law is not to be applied, and that since the first respondent has not yet given his ruling on the point, the present application is based upon mere apprehension and is accordingly premature.

           

            Mr. Bar-Or did not deal with the question of the remedy that the submission of counsel for the second respondent that the order nisi should be discharged.

           

            Mr. Bar-Or did not deal with the question of the remedy that might be available in the event of a religious court deciding the case without taking into account the provisions of the Women's Equal Rights Law. He confined his submissions to the specific matter before us.

 

            He submitted that the decision referred to is not a ruling on a point of law, as was submitted by counsel for the petitioner. Since the present petition is not one concerning the assumption by a court of the power to deal with a matter beyond its jurisdiction, this court cannot issue an order restraining the continuation of the proceedings.

           

            An additional submission of Mr. Bar-Or was that even if the decision referred to could be regarded as a ruling not to apply the Women's Equal Rights Law, even then this would be a decision on the merits of a case within the jurisdiction of the religious court, and if that decision was based upon an error in the interpretation of the law which governed the matter, the remedy was an appeal to the Religious Court of Appeals.

           

            The matter before the Kadi, Mr. Bar-Or submits, is one relating to the guardianship of children which, in accordance with the Palestine Order in Council, is within the exclusive jurisdiction of the religious court. It is therefore clear that there is here no matter of jurisdiction in respect of which an injunction could be issued. All the more so is this the case when the Kadi has only decided to postpone "the consideration of the Sharia and legal aspects" (and he emphasises the word "legal") until after the hearing of the witnesses. How can counsel for the petitioner know that when the Kadi reaches the stage of considering the "Sharia and legal aspects" of the problem, he will decide not to have regard to the interests of the children, in accordance with the provisions of section 3(b) of the Women's Equal Rights Law? 1)

           

            I agree with the submissions of counsel for the Attorney-General, and those of counsel for the second respondent which he made before us (but not with those advanced by him before the Kadi).

           

            We are not called upon to deal with the problem of whether the Sharia Law discriminates against women in matters of guardianship. In the present case there is no attempt to discriminate between a man and a woman, the matter dealt with in section 1 of the Women's Equal Rights Law, for the question that arises here is which of two women is to be guardian of the children.

           

            As far as section 3 of the statute referred to is concerned there is no doubt that it binds all courts and tribunals, even in cases where the application of the religious law would lead to different results. Section 7 of the statute is quite unequivocal, the only case which forms an exception to the rule and where it is permissible to depart from the provisions of section 3 is where the parties are of the age of eighteen years or more and have voluntarily agreed before the court that the litigation between them shall be conducted in accordance with the laws of the community to which they belong.

           

            I do not accept the interpretation placed by counsel for the petitioner upon the decision of the first respondent. The clear meaning of that decision is that the truth of the contention of the second respondent in regard to her having been selected by her deceased brother as guardian of the children must be investigated first. Should it be proved that this contention is incorrect, there will be no need to consider the legal questions raised by counsel for the second respondent, but if it should appear that there is substance in this contention, then the Kadi will deal with "the Sharia and legal aspects of the case." That is to say, the Kadi will then give his opinion upon the legal submissions of counsel for the second respondent based upon the Sharia Law, and also upon the legal submissions of the applicant based upon the secular law. The question of procedure is one for the religious court, and is not a matter with which this court will interfere.

           

            In my opinion that is the proper interpretation of the decision of the Kadi and if that be so it will be seen that the complaint of the applicant narrows down to this, namely, that the Kadi should first have decided the legal question before him, and if he had reached the correct conclusion, he would have been relieved of the necessity of hearing witnesses. This is a matter of procedure, and each religious court proceeds according to its own rules. This is not a matter, as I have said, in which we should interfere.

           

            I may add that it was counsel for the second respondent who requested that a decision on the preliminary points be given first and the Kadi did not accede to this request. This shows that the meaning of the decision referred to accords with the interpretation I have just given.

           

            The petition should, therefore, be dismissed, and the order nisi discharged. Should the decision of the religious court conflict with the Women's Equal Rights Law, questions will arise that are not before us in these proceedings.

 

            In regard to costs, I think that the bringing of this petition was caused to some extent by the submissions of counsel for the second respondent before the Kadi, upon which he did not rely before us.

           

I think it right that each party should pay its own costs.

 

GOITEIN J. I agree with the President that the order nisi should be discharged and I do so for two reasons. (a) In my opinion the application is premature. At present there is no hint in the record of the religious court that the Kadi intends to disregard the provisions of the Women's Equal Rights Law, 1951. It is true that counsel for one of the parties who appeared before him requested him to disregard this law, but there is no evidence whatever before us to show that the Kadi intends to accede to this request. (b) The Women's Equal Rights Law does not confer upon a mother an unappealable right to the guardianship of her children. Section 3(b) of the Law leaves the matter within the discretion of the competent court or tribunal "with the interests of the children as the sole consideration." It follows that every civil and religious court will regard the mother as the natural guardian of her children until it is proved that the interests of the child demand that the mother should cease to be the guardian.

 

            The above considerations give rise to two problems. (a) Suppose the religious law does not recognise that it is in the interests of the children that the mother should be their guardian, is the religious court then free to decide that the interests of the children demand that they should not remain under the guardianship of their mother? (b) Assuming the religious law is inconsistent with the Women's Equal Rights Law, yet the religious court decides in accordance with the religious law and its judgment is confirmed by the Religious Court of Appeals, may this court interfere?

           

            The first question was raised in argument before us. Moslem religious law, it would seem, does not regard it as in the interests of the children that their mother should remain their guardian after she has married a second time. May the religious court decide in accordance with the religious law? It seems to me that the answer is to be found in section 3(b) of the Women's Equal Rights Law, which provides:

 

"The provisions of sub-section (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interests of the children as the sole consideration."

           

            The emphasis is upon the word "sole" - that is to say, the test is objective and judges, when dealing with this subject, are to disregard the theoretical presumptions of the religious law as to what constitutes the interests of the children in a particular situation.

           

            It was not argued before us that if the father take a second wife he ceases, according to Moslem law, to be the natural guardian of his children. If his guardianship continues in such a case, then it seems to me that there is discrimination here against the mother by reason of her being a woman. A religious court, therefore, is not entitled to remove the children from the guardianship of their mother and to hand them to their aunt - as in the case before us - relying upon a law which discriminates against a woman by reason of her being a woman. However, as I have already said, there is no proof before us that the Kadi intends to deal with this problem without regard to the Women's Equal Rights Law.

           

            The second question is more difficult and no clear answer to it is to be found in the law of Israel. It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not interfere with judgments of the religious courts unless they have acted without jurisdiction, or in cases where there has been a denial of natural justice, or in exceptional cases which call for our intervention for the administration of justice. It has therefore been held that this court will not turn itself into a court of appeal from judgments of the religious courts. That is to say, if those courts err in their interpretation of the law or disregard a particular statute, this court has no power to correct the mistake. The only remedy is an appeal to the religious court of appeals, and if that court also errs, its judgment stands. What then will be the fate of a judgment of a religious court in which it is clearly stated, or the text of which makes it clear, that the court disregarded the provisions of a particular statute - in this case the Women's Equal Rights Law, 1951? The answer, in my opinion, is to be found in Sections 1 and 7 of that Law. Section 1 provides:

 

"A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal act, against women as women, shall be of no effect."

           

Section 7 provides:

 

            "All courts shall act in accordance with this Law..."

           

            In the light of these sections, we say that the acts of any court which are contrary to the Law are of no effect, for the Women's Equal Rights Law restricted and confined the power of the religious courts to act in accordance with the religious law, as they had been doing before this statute was passed. The answer, therefore, to the question asked above is that when it appears on the face of a judgment that the court has failed to take notice of a law of the State, and that judgment is presented for execution, execution may be refused upon the ground that the religious court, in deciding as it did, exceeded its powers.

           

            It has been submitted before us that a shrewd judge in a religious court will be able to find a way of concealing the fact that he decided otherwise than in accordance with the laws of the State, and that it will then be impossible to invalidate his judgment in any civil court whatever. In my view there is no serious danger of a complainant being unable to establish upon the basis of which law the court gave its decision. If it emerges from proceedings, or from the record, that the religious court intentionally disregarded the laws of the State then this court as the High Court of Justice will restrain execution of the judgment. In the present case, as I have already said, there is no reason for us to suspect that the Kadi will not decide in accordance with the law as it stands, and there is therefore no reason for us to interfere.

           

            For these reasons I agree with the learned President that the order nisi should be discharged.

           

BERINSON J. I also agree that the order nisi be discharged for the reasons given by Mr. Justice Goitein, and I wish only to add a few words to clarify my attitude on one of the grounds advanced by him.

 

            Mr. Justice Goitein asks what would become of a judgment of a religious court when it is clear that that court disregarded the provisions of a particular statute such as, in this case, the Women's Equal Rights Law, 1951. His reply is that when it appears on the face of the judgment that the judges disregarded a law of the State, execution of the judgment may be refused upon the basis that the religious court, in deciding as it did, exceeded its powers. With this I agree, but it seems to me, with all respect, that this answer does not exhaust the matter, for in addition to attacking the judgment before the execution authorities, there are other ways of attacking an invalid judgment, given without proper authority. I assume that my colleague cited this method of setting aside the judgment before the execution authorities only as an example, as one of the ways, and did not intend to exclude others. As far as I am concerned, my view is that the ways of invalidating a judgment - such as the one here discussed - of a religious court, are no different or more restricted that those which are ordinarily open to an interested party for upsetting a judgment given by an inferior tribunal without authority. I will explain myself by reference to the facts of the petition before us. The subject of the dispute between the petitioner and the second respondent is the petitioner's guardianship of the three children who are now living with the second respondent, who is in possession of their property and administers it on their behalf. All that the second respondent seeks to obtain in the Sharia Court is the legal confirmation of this state of affairs. Let us assume that the Sharia Court issues an order of guardianship as applied for by the second respondent, basing itself upon the principles of the religious law, and totally disregards the Women's Equal Rights Law, that is to say, that it issues a judgment in excess of its powers. The second respondent need not present that judgment for execution for it merely confirms an existing state of affairs. Does it follow from this that every alternative legal method of invalidating this judgment is denied to the petitioner? An application could be made to this court for certiorari, contesting the validity of the judgment which was given in excess of authority. Again, an application for a writ of habeas corpus, directing the return of the children to her possession as their natural guardian in accordance with the Women's Equal Rights Law, could be lodged. It is beyond all doubt that these ways are not closed to the petitioner. In the result, I am of opinion that the judgment of a religious court given In excess of its powers by reason of its being in conflict with the provisions of a secular law which binds the court, may be invalidated in the same way as any other judgment of an inferior tribunal given in excess of its powers.

 

Order nisi discharged.

Judgment given on July 19, 1955.

 

1) Judge of Moslem Religious Court.

2) Women's Equal Rights Law, 1951, s. 3:

Equality in respect of guardianship.

3.         (a)         Both parents are the natural guardians of their children; where one parent dies, the survivor shall be the natural guardian.

(b)        The provisions of subsection (a) shall not derogate from the power of a competent court or tribunal to deal with matters of guardianship over the persons or property of children with the interest of the children as the sole consideration.

1) Moslem religious law.

2) Moslem Religious Court

1) For text of s. 3(b) see supra p. 429.

HCJ 316/03

 

1.  Muhammad Bakri

2.  Forum of Documentary Producers

v.

1.  Israel Film Council

2.  Ministry of Science, Culture and Sport

3.  Yitzhak Busidan (father of the late Amit Busidan)

4.  Leah Berr (mother of the late Dror Berr)

5.  Pninah Yaskov (widow of the late Avner Yaskov)

6.  Eva Meislish (mother of the late Dani Shmuel Meisliash)

7.  Solomon and Simcha Azuri (parents of the late Eyal Azuri)

8.  David Zimmerman (father of the late Eyal Zimmerman)

9.  Amnon Chava (father of the late Menashe Chava)

10.      Rosaline and Salomon Ezra (parents of the late Gad Ezra)

11.      Aryeh and Tziporah Weiss (parents of the late Shmuel Weiss)

12.      Rina and Mark Rabinson (parents of the late Matanyah Rabinson)

13.      Simcha and Pninah Melik (parents of the late Gedaliah Melik)

14.      Gadi and Bernice Ya’akov (parents of the late Avihu Ya’akov)

15.       Michal Arazi (mother of the late Tiran Arazi)

16.      Shlomo Alshochat (father of the late Ronen Alshochat)

17.      Mazal, Ami and Chagai Tal (parents and brother of the late Roey Tal)

18.      Dr. David Tzangan

19.      Zev Iluz

20.      Barak Alfi

21.      Baruch Bachar

22.      Avraham Gal

23.      Ron Teicher

24.      Yisrael Kaspi

25.      Rafi Lederman

26.      Sagi Marak

27.      Eli Proz

28.      Guy Friedman

29.      Aryeh Kadosh

30.      Amichai Kadron

31.      Avner Kinnal

32.      Maron Shtteter

 

 

The Supreme Court Sitting as the High Court of Justice

 [November 11, 2003]

Before Justices D. Dorner, A. Procaccia, and A. Grunis

 

Petition for an Order Nisi.

 

Facts: After IDF operations against the terror infrastructure in Jenin in April 2002 (“Operation Defensive Wall”), petitioner 1 filmed the responses of local Palestinians and edited them into the film “Jenin, Jenin.” After advance screenings, both domestically and abroad, and in anticipation of the film’s domestic commercial screening, petitioner requested the approval of the Israel Film Council. The Council denied its approval. Petitioners claim that this decision violates their constitutional rights and Israeli administrative law.

 

Held:. The Court held that freedom of speech constitutes one of the fundamental principles of a democratic society. Even so, the freedom of speech is not an absolute right and, under certain conditions, it may be infringed. The Court decided that, under the circumstances, the decision of the Israel Film Council unlawfully infringed the constitutional rights of the petitioners.

 

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty

 

Statutes Cited:

Film Ordinance of 1927

 

Israeli Supreme Court Cases Cited:

[1]HCJ 73/53, Kol Ha’am v. Minister of the Interior, IsrSC 7 871

[2]FH 9/11, Israel Electric v. Ha’aretz Publishing, IsrSC 32(3) 337

[3]HCJ 9723/01, Levi v. Dep’t of Foreign Worker Permits, Director of Industry and Services, IsrSC 57(2) 87

[4]HCJ 399/85 Kahane v. The Board of the Broadcasting Authority, IsrSC 41(3) 255

[5]HCJ 6126/94 Senesh v. Broadcasting Authority, IsrSC 53(3) 817

[6]HCJ 806/88 Universal City Studios v. Israel Film and Theater Council, IsrSC43(2) 22

[7]HCJ 7144/01 Gush Shalom v. The Broadcasting Authority, IsrSC 56(2) 887

[8]HCJ 2888/97 Novick v. The Second Television and Radio Authority, IsrSC 51(5) 193

[9]CrimA 2831/95 Alba v. The State of Israel, IsrSC 50(5) 221

[10]HCJ 2137/98 Elias v. Chairman of the Board of the Broadcasting Authority (unreported decision)

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

[12]HCJ 4804/94 Station Film v. Israel Film Council, IsrSC 50(5) 661

[13]HCJ 14/86 La’or v. Israel Film and Theater Council, IsrSC 41(1) 421

[14]F. HCJ 4466/94 Nosyabe v. Minister of Finance, IsrSC 49(4) 68

[15]HCJ 7852/98 Arutzie Zahav v. Minister of Communications, IsrSC 53(5) 423

[16]HCJ 4644/00 Yaforah v. The Second Television and Radio Authority, IsrSC 54(4) 178

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

[18]HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51(4) 1

[19]HCJ 1715/97 Israel Investment Managers v. The Minister of Finance, 51(4) 367

[20]HCJ 1715/97 Indoor v. The Mayor of Jerusalem, IsrSC 57(2) 157

[21]HCJ 606/93 Kidum Yezumot v. The Broadcast Authority, IsrSC 48(2) 1

[22]HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections for the Sixteenth Knesset, IsrSC 57(2) 62

[23]HCJ 1/81 Shiran v. The Broadcasting Authority, IsrSC 35(3) 365

[24]EA 2/84 Neiman v. The Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225

[25]CrimA 697/98 Sorotzkin v. The State of Israel, IsrSC 52(3) 289

[26]HCJ 206/61 Israeli Communist Party v. The Mayor of Jerusalem, IsrSC 15 1723

[27]HCJ 807/78 Ein Gal v. The Israel Film and Theater Council, IsrSC 33(1) 274

[28]HCJ 146/59 Cohen v. Minister of the Interior, IsrSC 14 283

[29]HCJ 381/66 The Attorney-General v. The Israel Film and Theater Council, IsrSC 20(4) 757

[30]HCJ 7128/96 Temple Mount Faithful v. The Government of Israel, IsrSC51(2) 509

[31]HCJ 953/89 Indoor v. Mayor of Jerusalem, IsrSC 45(4) 683

[32]HCJ 351/72 Keinan v. The Film and Theater Council, IsrSC 26(2) 811

 

Australian Cases Cited:

[33]Tobin v. Jones (2003) FCAFC 137

[34]Archbishop of Melbourne v. The Council of Trustees of the National Gallery of Victoria (1997) 96 A CRIM R 575

 

United States Cases Cited:

[35]Abrams v. United States, 250 U.S. 616 (1919)

[36]Whitney v. California, 274 U.S. 357 (1927)

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

[38]Cohen v. California, 403 U.S. 15 (1971)

[39]Stromberg v. California, 283 U.S. 359 (1931)

[40]Terminiello v. Chicago, 337 U.S. 1 (1949)

[41]Virginia v. Black, 123 S.Ct. 1536 (2003)

[42]Collin v. Smith, 578 F.2d 1197 (1978)

[43]Smith v. Collin, 439 U.S. 916 (1978)

[44]Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

[45]Street v. New York, 394 U.S. 576 (1969)

[46]Schenk v. United States, 249 U.S. 47 (1919)

 

English Cases Cited:

[47]Verrall v. Gt. Yarmouth B.C. [1981] Q.B. 202 (C.A.)

[48]Derbyshire CC v. Times Newspapers Ltd [1993] 1 All E.R. 1011 (H.L.)

[49]Hector v. A-G of Antigua and Barbuda [1990] 2 All E.R. 103 (P.C.)

[50]R. v. Home Secretary, ex parte Brind [1991] 1 A.C. 696

 

Israeli Articles Cited:

[51]Mordechai Kremnitzer, The Boundaries if Freedom of Expression, The Seventh Eye 26-27 (January-February 1996).

[52]D. Stattman, Offense to Religious Feelings, in Multiculturalism in a Jewish and Democratic State: A Book in Memory of Ariel Rosen-Tzvi 133 (1988)

 

Foreign Books Cited

[53]M.B. Nimmer, On Freedom of Speech (1992)

[54]D. Feldman, Civil Liberties and Human Rights in England and Wales (1993)

[55]M. Chesterman, Freedom of Speech in Australian Law – A Delicate Plant (2000)

[56]A.M. Dershowitz, Shouting Fire – Civil Liberties in a Turbulent Age (2002)

 

Miscellaneous

[57]8(2) Halsbury, The Laws of England (4th ed., 1996)

[58]P. Lahav, Freedom of Expression During National Security Crises (1973)

 

Jewish Law Sources Cited:

[59]Maimonides, Laws of Torah Study, Ch. 1,2

[60]Babylonian Talmud, Tractate Nedarim 81b

[61]Babylonian Talmud, Tractate Eruvin 13b

 

 

For petitioner—Avigdor Feldman

For respondents 1 and 2—Dina Zilber

For respondents 3-17—Ilan Bombach; Yariv Ronen

Respondents 18, 24 and 25 argued pro se.

 

JUDGMENT

 

Justice D. Dorner

 

With intelligence shall man distinguish between the true and the false.

 

Maimonides, Guide to the Perplexed,

I:2 [59]

 

Facts, Proceedings and Arguments

 

1.   On Passover eve, March 27, 2002, there was a terror attack at the Park Hotel in Netanya. A terrorist entered the hotel dining room—filled with almost 250 women, men and children in the middle of the Passover feast—and detonated a bomb that he had strapped to his body. The dining room was destroyed. Nineteen guests were killed on the spot. Eleven died later. One hundred and sixty were injured.

Two days later, the Israeli Defense Forces (“IDF”) began “Operation Defensive Wall.”  The operation was intended to uproot the terrorist infrastructure responsible for the unprecedented wave of terror attacks that had struck Israel. On April 3, 2002, IDF forces entered the Jenin refugee camp, which served as a central base for organizing terror attacks, and from which many suicide bombers had been sent to commit such attacks all over Israel.

After the civilian population was warned to evacuate, IDF forces engaged in intense house-to-house combat. This was one of the IDF’s most difficult battles in the area. Soldiers were fired on from every direction, booby traps were placed in their way, bombs were detonated around them. Armed Palestinians hid among civilians, a few thousand of which remained in the camp when the fighting began. These armed men fought from civilian homes and from civilian facilities. The IDF attempted to avoid injuring civilians. It did not make use of jets or artillery. Tanks and military helicopters, however, were utilized. After a force of reserve soldiers was ambushed, leaving thirteen soldiers dead, it was decided that bulldozers would be used to destroy the houses used in the course of combat. During the battle, 23 IDF soldiers were killed and about 60 were wounded.  According to IDF data, the Palestinians suffered 52 dead, half of whom were civilians. Serious damage was caused to property.

2.    During the warfare and for several days following, journalists were forbidden from entering the camp. It was only possible to learn of what had occurred by seeing the battlefield itself, and from testimony of the people involved. This media blackout contributed to the conflict regarding the events.

 

The report of Human Rights Watch, for example, claimed that severe violations of human rights had occurred in the camp, including mass detentions, the denial of medical assistance to the wounded, and the destruction of civilian property. Nevertheless, the report repudiated the claim—which had spread among the local Palestinian population and around the world—that the IDF had slaughtered the residents of the camps and carried out systematic executions. Amnesty International and the Secretary General of the United Nations released findings similar to those of Human Rights Watch. In response, the IDF released a report that emphasized the restraint it had displayed and its efforts to prevent injury to civilians, despite the harm that these efforts may have caused to its soldiers. The report underscored that medical and humanitarian assistance was offered to the residents of the camp, even during the course of warfare itself. It also claimed that at least half of the Palestinian dead were fighters in terror organizations. 

 

3.  It is clear that the traumatic experiences of the Jenin refugee camp impressed themselves upon the minds of the IDF soldiers who fought there, their families, and upon the minds of the residents of the camp. The events attained mythic stature among Palestinians, and this influenced the way in which the events were subsequently portrayed. After armed combat came to an end, the struggle for public opinion began, both in Israel and abroad.

 

4.    Petitioner 1, a resident of the village of Baana in the Galilee, entered the refugee camp, at the end of April 2002, accompanied by a film crew.  He filmed the reactions of Palestinian residents to the events, and edited them into the film “Jenin Jenin.” From the outset, petitioner declared that he did not attempt to present the Israeli position or present a balanced portrayal of the events. His goal was to present the Palestinian story.

 

Advance screenings of the film were shown in Tel Aviv and Jerusalem, and the film was screened in foreign countries as well. In anticipation of its commercial screening in Israel, the film was submitted, as required by the Film Ordinance of 1927, for approval to the Israel Film Council. The Council, which was then subject to the Ministry of Science, Culture and Sport, held hearings concerning the film on November 18, 2002 and December 23, 2002.

 

The film left a difficult impression upon the Council members.  One asserted that it was a “repulsive propaganda film,” “every second of which oozes venom.” See The Meeting Protocol, November 18, 2002, at 4. Council member Yechiel Guttman even stated that “the sins of the Gestapo in the concentration camps will seem as white as snow in light of the description of IDF activities in the movie.” Id. at 2.

 

A majority of Council members decided that the film should not be approved for screening. A minority of dissenting Council members suggested that the screening be permitted, but that it either be accompanied by slides presented by an IDF spokesman, or that it be permitted exclusively for viewers 18 and older. The Council, in a letter to the petitioner, listed the following reasons for its decision:

 

1.           It is a distorted presentation of the events, under cover of documentary truth, which may mislead the public.

 

2.           It is a propaganda film that presents a one-sided version of events, the position of a side that Israel is currently in a state of war with. It is not appropriate that the Council should aid and approve this screening.

 

3.           It is a film which severely offends the feelings of the public which may mistakenly think that IDF soldiers regularly and systematically commit war crimes, and this is completely at odds with the truth and the facts uncovered by investigations of the IDF and international bodies.

 

4.           The presentation of the events borders on incitement, even to the point of delegitimizing the existence of the State of Israel.

 

5.           The fundamental principles of a democracy—a democracy that does not wish to commit suicide—demands that we refrain from approving the screening of the film.

 

5.    The petition before us is directed against the decision of the Council.  An order interim was issued on January 10, 2003.  In the petition, petitioners claim that the decision is unreasonable and that it unlawfully violates their freedom of expression. They also claimed that the Council cannot base its decisions upon political considerations or upon its belief that the film is based on untruths. As such, they assert, the Council did not have the authority to make the decision, and that it took inappropriate considerations into account. Petitioners further claim that the ordinance under which the Council acted is unconstitutional.

 

6.    The State laid out its position in a lengthy and detailed response. It asserts that the film is false and callously distorts the truth. In its own words: “The one and only truth is otherwise.” This truth, in the opinion of the State, is clearly reflected by the description of the events in reports by the IDF, as well as by information presented by international and even Palestinian bodies. 

 

The State is of the opinion that the film must be censored, due to the danger that it poses to the public order and the offense it causes to feelings of the public. The State claims that the film contains incitement: its content may move some viewers to engage in violent activity. Second, the State claims that the film will weaken Israel’s international standing during this difficult time of war, and may even delegitimize the existence of the State. Third, the State claims that the film, being full of untruths, deceives the public and offends its feelings.

 

7.    In the hearing which took place on March 20, 2003, the parties elaborated upon their claims. We decided to allow the families of the IDF soldiers who fell in battle, as well as a group of soldiers who participated in the fighting, to join as additional respondents to the petition. These parties had claimed that the State did not properly represent their positions. We listened to all their words, and thoroughly read all their written submissions. These additional respondents claimed that the film causes severe damage to the reputation of serving IDF soldiers as well as to the reputation of those that fell in battle. In heart-wrenching testimony, they described their feelings of frustration and pain, feelings that they endure because they are being attacked and slandered for actions that they did not commit.

 

8.  A number of weeks after the State submitted its response, petitioners’ counsel informed us of the existence of a film called “The Road to Jenin.” The film, by the French director Pierre Rehov, was produced to challenge the content of petitioners’ film. It contests specific segments of “Jenin Jenin,” emphasizing the perspective of the IDF soldiers and the families of the fallen. Petitioners requested that an interim order be issued to prevent the broadcast of that film on the television program Mabat Sheni. We did not find reason to prevent the broadcast. We should note, however, that while many can view “The Road to Jenin” which, as stated, challenges the content of the film “Jenin Jenin,” the public’s ability to view the latter is significantly limited in light of the decision of the Israel Film Council.

 

We viewed both films, the film “Jenin Jenin” which was submitted by the State, and the film “The Road to Jenin,” which was submitted by the petitioners.

 

The Normative Framework

 

9.  The Council’s decision to prohibit the screening of the film infringes the freedom of expression of its producer, and of others whose opinions the film gives voice to. As is well known, the freedom of expression is one of the fundamental principles of our democracy. Our judgments, long ago, recognized it as a “superior right,” even acknowledging that it serves as a basis for other rights. See the famous words of Justice Shimon Agranat in HCJ 73/53 Kol Ha’am v. Minister of the Interior, at 876-78 [1]. 

 

The meaning of freedom of expression is, first and foremost, that the government may not restrict the voicing and hearing of opinions in public, and it must prevent others from infringing the right. See FH 9/77 Israel Electric v. Ha’aretz Publishing, [2] at 343. In the words of my colleague, Justice Ayala Procaccia in HCJ 9723/01 Levi v. Dep’t of Foreign Worker Permits, Director of Industry and Services, [3] at 94, “[t]he freedom of expression is not only the freedom to express opinions, to write and to present, but also the right to see and to hear.”

 

Freedom of expression is not an absolute right.  In certain cases, the law allows that it be infringed. We must distinguish between the very principle of freedom of expression—which extends to all forms of expression, and to all of the means which may be used for conveying expression—and between the degree of protection, which may only be partial. See, e.g., HCJ 399/85 Kahane v. The Board of the Broadcasting Authority, [4] at 283; HCJ 6126/94 Senesh v. Broadcasting Authority, [5] at 830-31; HCJ 806/88 Universal City Studios v. Israel Film and Theater Council, [6] at 34-35; HCJ 7144/01 Gush Shalom v. The Broadcasting Authority, [7] at 890-91.

 

The fact that expression may be offensive, rude, or grating cannot serve as a reason not to protect it. This was noted by Justice Mazza in HCJ 2888/97 Novick v. The Second Television and Radio Authority, [8] at 201:

 

Freedom of expression was not only intended to protect accepted and popular opinions, expressed under peaceful conditions, but also—and this is the central test of the freedom of expression—deviant, infuriating, and exasperating opinions, expressed after difficult events, in a callous and offensive fashion.

 

Also appropriate in this regard are the words of the English judge, Lord Denning.

 

Freedom of speech [is] amongst our most precious freedoms. Freedom of speech means freedom not only for the views of which you approve, but also freedom for the views you most heartily disapprove.

Verrall v. Great Yarmouth Borough Council, [1981] Q.B. 202, at 216 [47]. The mere fact that an expression is false does not constitute a cause for the removal of protection. This is in contrast to the manner it is expressed, such as being racist. The use of such a manner of expression—regardless of its content—violates a statutory prohibition and constitutes a cause for the restriction of that expression. See Crim. A. 2831/95 Alba v. The State of Israel, [9] at 320; Mordechai Kremnitzer, The Boundaries if Freedom of Expression, The Seventh Eye 26-27 (January-February 1996) [51].

Indeed, it has been established that “regarding the freedom of expression, we do not concern ourselves with the truth of the expression.” Universal, [6] at 33. To permit the restriction of false expression would allow the authorities the power to distinguish between the true and the false, to decide what is appropriate to be voiced and what is not, and the power to substitute its own decisions for the decisions of the free market of ideas.  “Freedom of expression also includes the freedom to present facts and interpret them, even if many are certain that the presentation is erroneous and the interpretation deceiving.” HCJ 2137/98 Elias v. Chairman of the Board of the Broadcasting Authority (unpublished decision) [10]. See also Senesh, [5] at 830; CA 214/89 Avneri v. Shapira, [11] at 857-58; HCJ 4804/94 Station Film v. Israel Film Council, [12] at 676; HCJ 14/86 La’or v. Israel Film and Theater Council, [13] at 433; Kahane, [4] at 281. As stated by Justice Oliver Wendell Holmes, of the United States Supreme Court:

 

But when men have realized that time has upset many fighting faiths, they may come to believe, even more than they believe the very foundations of their own conduct, that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out…

Abrams v. United States, 250 U.S. 616, 630 (1919) [35]. The words of Justice Louis Brandeis are also appropriate in this regard:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the process of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.

Whitney v. California, 274 U.S. 357, 377 (1927) [36].

     Another reason for protecting the freedom of expression includes protecting the speaker’s right to self-realization, and the need to preserve public order, especially by allowing for the release of the “social steam” by those who hold minority views. Imposing a prohibition against false expression may contribute to the accumulation of this “steam,” which may lead to violent eruption.  As stated by Justice William Douglas:

 

Free speech has occupied an exalted position because of the high service it has given our society, its protection is essential to the very existence of a democracy. The airing of ideas releases pressures which otherwise might become destructive. When ideas compete in the market for acceptance, full and free discussion exposes the false and they gain new adherence...

 

Dennis v. United States, 341 U.S. 494 (1950) [37].

 

10.  The “limitations clause” in section 8 of the Basic Law: Human Rights and Dignity sets the legal standard for using administrative authority to infringe the freedom of expression. See, e.g., F. HCJ 4466/94 Nosyabe v. Minister of Finance, [14] at 87; HCJ 7852/98 Arutzei Zahav v. Minister of Communications, [15] at 429; Yaforah v. The Second Television and Radio Authority, [16] at 182. This is the case whether freedom of expression is enshrined, fully or partially, in the right to human dignity established by the Basic Law—in which case section 8 is directly applicable—or whether freedom of expression is not enshrined in the right to human dignity—in which case the limitations clause will apply either by analogy or due to general administrative law. See HCJ 41/94 Miller v. Minister of Defense, [17] at 138; HCJ 5016/96 Horev v. Minister of Transportation, [18] at 43.

 

The limitations clause permits the violation of a right only where the authority to violate that right is granted by statute, if the violation is consistent with the values of the State of Israel, and if the violation has an appropriate purpose and is not disproportionate. Proportionality is measured by three tests. The “suitability test” ensures that the measure which violates the right is suited to the purpose of the violation. The “minimal violation” test confirms that the measures taken are those which violate the right least. The “relativity test” ensures that the benefits of the violation bear a reasonable relation to its costs. These tests weigh the purpose of the violation against the injury done to the person whose rights are infringed.

 

In addition to the proportionality tests, the courts, even before the advent of the Basic Laws, had developed balancing equations. These equations were intended to analyze the probability that expression would harm the public interest. See HCJ 6226/01 Indoor v. The Mayor of Jerusalem, [20] at 164. As is well known, injury to the public must be nearly certain in order to justify infringing the freedom of expression. See Kol Ha’am, [1] at 888.

 

Nevertheless, these probability standards are not applicable where expression results in injury to feelings. In such cases, we must examine the “force” of the offense. See the words of Justice Eliezer Goldberg in Universal, [6] at 41, as well as my opinion in Kidum, at 14. We must determine whether the intensity of the injury is beyond that which is tolerated in a democratic society, which has a high “level of tolerance.”  In the words of President Aharon Barak:

 

[O]nly severe offenses to feelings warrant curtailing the freedom of expression and creation.  Thus, a democratic society must arrive at a “level of tolerance” for offending feelings. Only where the degree of offensiveness exceeds this “level of tolerance” can restrictions on the freedom of expression and creation be justified in a democratic society… The tolerance threshold is particularly high in the context of limitations on the freedom of speech and creation.

 

Senesh, [5] at 836-37, 839. See also Kidum, [21] at 16; Yafora, [16] at 183.

 

Lawfulness of the Council’s Decision

 

11.  After having found that the Council’s decision infringes the petitioners’ freedom of expression, we must examine whether this infringement meets the conditions of the limitations clause. The first condition is that a freedom may only be infringed “pursuant to statute, or pursuant to the explicit authorization of a statute.”  In the matter at hand, the decision was made pursuant to the grant of authority to the Council contained in section 4(1) of the Ordinance, which provides:

 

No projection film may be presented unless it has been approved for presentation and marked by the Council. 

 

Petitioners, however, claim that the Ordinance itself is unconstitutional. As such, it cannot be considered a “statute” that can grant authority to infringe the freedom of expression. In light of my conclusion that the decision of the Council does not fulfill other requirements of the limitations clause—that it has no appropriate purpose and that it is not proportionate—we leave the claim of constitutionality open. We will also leave open the question of whether the decision is consistent with the values of the State of Israel as a Jewish and democratic state.

 

At the same time, it should be noted that the decision of the Council can harm the democratic process. Within the bounds of the democratic process, the way to choose between different paths is by allowing all political expression, and not by obstructing certain paths. My colleague, Justice Ayala Procaccia, has noted:

 

In a democracy, the freedom of speech…requires both the freedom to express ideas that shape public opinion, as well as the freedom to receive such ideas. 

 

HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections for the Sixteenth Knesset, [22] at 72. See also Kol Ha’am, [1] at 877, as well as the words of Justice Meir Shamgar in HCJ 1/81 Shiran v. The Broadcasting Authority, [23] at 377.

 

These ideas concerning pluralism with regard to ideas and worldviews are also supported by the Jewish values of the State of Israel. According to the Talmud, “[b]oth these and these are the words of God.” Babylonian Talmud, Tractate Eruvin, 13b [61]. See also the words of Vice-President Menachem Elon in EA 2/84 Neiman v. Central Elections Committee for the Eleventh Knesset, [24] at 294.

 

Appropriate Purpose

 

12.  The decision of the Council has a clear purpose: exposing the truth. The central rationale in which it grounded the decision, and which was later adopted by the State as the basis for its position here, is that the film, which is allegedly deceitful and distorts the truth, will remain, if its screening is not prohibited, a disgrace for all of history. This can be seen from the protocols of the Council meetings, from the reasoning of the decision, and from the response of the State to the petition here. In its decision, the Council wished to protect the public by disallowing false expression and permitting, as the only available expression, what respondents believe to be the truth.

 

The Council, however, like every other government body, has no monopoly over the truth.  It was not granted the authority to expose the truth by silencing expression that members of the Council consider to be lies. In general, revelation of the truth in a free and open society is a prerogative given to the public, which is exposed to a spectrum of opinions and expression, even false expression. As stated by Justice John Harlan of the United States Supreme Court:

 

The Constitutional right of free expression is powerful medicine in a society as diverse and populous as our. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

Cohen v. California, 403 U.S. 15, 26 (1971) [38].

When we are dealing with expression whose truth is disputed, the freedom of expression has special significance if that expression has important political implications. This is the case here, where the political intentions and factual claims of the film are virtually undistinguishable. As we have already noted, the petitioner did not even attempt to present a balanced picture of the events in the film. His goal was simply to express the Palestinian story. The Council does not have the authority to restrict expression that is principally ideological or political, simply because the government, part of the public, or even a majority of it, disagrees with the views expressed.

 

       In Britain, where similar questions have arisen, the House of Lords has ruled that political expression can not be restricted unless such restrictions are necessary to protect against violence or obscene content. See, e.g., Derbyshire County Council v. Times Newspapers Ltd. [1993] 1 All E.R. 1011 [48]. In Hector v. Attorney-General of Antigua and Barbuda, [1990] 2 All E.R. 103, 106 [49], Lord Bridge stated that any attempt to limit criticism of governmental authorities “amounts to political censorship of the most insidious and objectionable kind.”

      In addition, the Council’s composition and the framework of its proceedings are not suitable for deciding factual matters. A court of law, for example, has the authority to issue restraining orders in suits concerning libel, and in this context, often rules on factual findings in order to decide the conflict before it. The Council, in contrast, is not competent to rule whether the content of a documentary film is true or false. As such, it seems only logical that it does not have the authority to make such decisions.

In its decision to expose the truth, the Council exceeded the limits of its authority and acted upon inappropriate considerations. As such, its infringement of the freedom of expression was not motivated by an appropriate purpose.

 

Proportionality

 

13.  As stated, a proportionate decision is one that satisfies the “suitability,” “minimal violation” and “relativity” tests. In my opinion, the Council’s decision does not meet these tests.

 

14.  The “suitability” test. The Council believed that prohibiting the screening of the film, and ensuring that the public is not exposed to it, would reduce the danger it posed to public order. In this regard, it is appropriate to note that it is doubtful whether infringing the freedom of expression is an effective means of promoting public security. Rather, it is possible that the public peace may actually be ensured by permitting free speech. The United States Supreme Court discussed the relationship between free expression and public order in Whitney, [36] at 375-76:

 

[T]he path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; …the fitting remedy for evil counsels is good ones.

See also Stromberg v. California, 283 U.S 359, 369 (1931) [39].

 

Whatever the case, it is clear that the means chosen by the Council—prohibiting the commercial screening of the film in Israel—does not reduce the public’s accessibility to the expression, but rather achieves the opposite. The Council members knew that their decision would create public debate and that their decision would probably be brought before the examination of this Court, with all of the attendant consequences regarding the exposure of the film. Mr. Guttman, a member of the Council, stated: “I have no doubt… that if we agree to take this decision, we will be back in the headlines again.” See The Meeting Protocol, November 18, 2002. Another Council member, Dr. Menachem Horowitz, added that “[t]he problem is that I believe that a prohibition will give the film much more publicity.” Id., at 4.  And, indeed, subsequent to the Council’s decision, both the film and its producer became the focus of public debates and a subject for news articles. After being censored, “Jenin, Jenin” was transformed into a symbol.  Clearly, this was not the Council’s intention.

 

Moreover, the Council’s decision affects only the narrow area of commercial cinema in Israel. The Council does not have the authority to prohibit screenings in foreign countries or alternate means of viewing the film, such as television broadcasts, home cinemas, or the internet, where a person can purchase the film for $30. It is reasonable to expect that these alternative means will be able satisfy commercial demand for the film, which may now increase due to the media commotion created by the decision. 

 

It may even be possible that the prohibition itself will raise the suspicion that there is some truth to the film; otherwise, why would the Council feel the need to prevent its screening?  The means chosen by the Council did not promote the goal that it was intended to achieve, and may even have achieved the opposite.

 

15.  The “minimal violation” test.  Prohibiting the screening of a film is not the only means available to the Council. Section 6(2) of the Ordinance provides:

 

The Council may allow the presentation of any film of part of a film…either under specified conditions or absent any conditions, and it may refrain from so allowing the presentation of the film.

 

As such, the Council could have made use of a less blunt instrument. It could have, for example, limited the film to viewers of a certain age, preceded the film with a warning, instructed that certain segments be struck, or limited the hours for its viewing. Without expressing an opinion with regard to the lawfulness of these means or their suitability to the case before us, it is clear that they grant the Council a spectrum of possible actions. During its discussions, the possibility was raised of supplementing the film with commentary. From the protocol, however, it seems that the Council did not hold a serious discussion concerning such alternate means. The Council was mistaken in not doing so. An absolute prohibition against the screening of a film is the most drastic action which the Council is authorized to take. It must be a measure of last resort. Compare the words of Justice Aharon Barak in Universal, [6] at 35 and the words of Justice Eliahu Mazza in Crim. A. 697/98 Sosotzkin v. The  State of Israel, [25] at 308.

 

16.  The “relativity” test:  The damage caused by the Council’s decision is greater than its benefit. The viewing public is not forced to view the film against its will. This is not a case of a captive audience. The viewers will reach the cinema of their own free choice, pay to view the film with their own money, and it is reasonable that they will even prepare themselves for it mentally. In comparison, this viewing public has more choice than viewers of “The Road to Jenin.” That film was televised on a public television station during primetime. Indeed, the extent of the forced exposure to expression is one of the factors—although it is not always a decisive factor—in determining whether expression can be restricted. See Kidum, [21] at 16. This was already noted by Prof. Nimmer:

 

The presence or absence of a captive audience is a relevant factor which should be taken into account in reaching a proper accommodation between given speech and anti speech interests. It is useful in drawing an appropriate definitional balance.

M.B. Nimmer, On Freedom of Speech 1-40 (1992) [53].

Second, there is no doubt that the film injures the feelings of many members of the public, including the feelings of the soldiers who participated in the battle and their families, especially the parents, spouses and siblings of the fallen, including respondents 3-32. However, it should not be said that this injury, with all of its pain and anguish, is not within the bounds of that which is tolerated in our democratic society. An open, democratic society, which upholds the freedom of expression, certain in the feeling that this advances society and does not threaten it, is willing to bear offense, even substantial offense to the feelings of the public, in the name of the freedom of expression. The words of Justice Douglas are appropriate in this regard:

 

A function of free speech… is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech though not absolute… is nevertheless protected against censorship or punishment…

Terminiello v. Chicago, 337 U.S. 1, 4 (1949) [40].

In protecting freedom of expression we ruled that, for example, posting notices that used especially sharp and severe language to condemn government policy should be allowed. See HCJ 206/61 Israeli Communist Party v. The Mayor of Jerusalem [26]. We ruled that the screening of a film that could, by its portrayal of the character of Jesus, offend Christian viewers, should be allowed. See Universal [6]. We held that the television broadcast of an allegedly biased documentary, which presented the events which preceded the assassination of the Prime Minister Yitzchak Rabin, should be allowed. Novick. We also decided that the hanging of notices, which used rude and insulting language to condemn the head of the opposition, MK Yossi Sarid, should be allowed. Indoor [20]. An especially high level of protection for the freedom of expression was established in La’or [13], despite the fact that the play at issue there, “Ephraim Goes Back to the Army,” which compared the military government in the area to the Nazis, offended feelings in an extreme manner. In all those cases, the Court ruled that, despite clear injury to the sensitivities of the public, freedom of expression demanded that the offensive expression not be prohibited. Such is the case, in my opinion, in the matter at hand as well.

 

Respondents wish to rely on HCJ 807/78 Ein Gal v. Israel Film and Theater Council [27], where we approved the decision of the Israel Film and Theater Council to ban the screening of a documentary film. The film claimed that the Arabs of Israel were expelled from their land by the Jews. The Council prohibited the film, reasoning that it was false and prejudiced, disgraced the State of Israel, weakened its position in the world, and could incite to violence. Since this judgment was handed down in 1979, however, times have changed, and so has the law. In light of the development of the law since then, this ruling can no longer stand. In any case, I am of the opinion that Israeli society is now able to deal with such expressions. 

 

The pain and anguish of the families, of the soldiers, of the relatives of the fallen, is understandable. Allowing the screening of the film does not ignore this pain, and is not intended to reduce the esteem for their sacrifices. Nor does this decision impress the film with our seal of approval. It would be fitting if the respondents would focus their energies, as they have in fact done, and with success, within the ambit of the freedom of expression. 

 

There is no way to escape the conclusion that the decision not to allow the screening of the film unlawfully infringes the freedom of expression of the petitioners.

 

17.  In his famous 1644 essay, “Aeropagitica: A Speech for the Liberty of Unlicensed Printing, to the Parliament of England,” the English philosopher, John Milton wrote, regarding the freedom of printed speech:

 

Let [the Truth] and Falsehood grapple; Who ever knew Truth put to the worse, in a free and open encounter? …For who knows not that Truth is strong, next to the Almighty? She needs no policies, nor stratagems, nor licensings to make her victorious… Give her but room, and do not bind her…

The film “Jenin, Jenin” should be permitted to be screened in theaters, and the viewing public should be allowed to judge it for themselves. The order nisi should be made absolute, the decision of the Council should be reversed, and the screening of the film should be allowed. Respondents 1 and 2 shall pay petitioners’ expenses, in the amount of 15,000 NIS.

 

Justice A. Procaccia

 

I concur with the opinion of my colleague, Justice Dorner. Due to the significance of the matter, I wish to add the following comments.

 

The Council’s Reasons for Censoring the Film

 

1.    The decision of the Israel Film Council to prohibit the commercial screening of the film “Jenin, Jenin” is based upon three main reasons.

 

First, the Council asserted that the film distorted the events of the battle. This, under the cover of documentary truth, may deceive the public. Furthermore, the Council saw the film as a propaganda film made by a body with which the state is at war.

 

Second, the Council saw the manner in which the events are presented in the film as constituting incitement, to the point that the film delegitimizes the existence of the State of Israel.

 

Third, the Council believed that screening the film, in presenting IDF soldiers as responsible for war crimes, could seriously offend the feelings of the public. This belief took into consideration the temporal proximity between the film and the events that it purported to portray.

 

2.    In her opinion, my colleague, Justice Dorner, emphasizes the first of the Council’s three reasons—the false presentation of the events of the battle at Jenin. I agree that issues of truth in expression, including artistic productions, cannot usually constitute a cause for the restriction of freedom of expression, as this freedom is a primary, constitutional right. The view that freedom of expression is a broad, fundamental right—to the extent that it applies to even false and distorted expression—has been established in our constitutional jurisprudence for quite some time. Falsehoods should not be confronted by suppression. Rather, freedom of expression should serve as a means to present the truth and to challenge such falsehoods in the free and open market of ideas. In the free flow of information, opinions, ideas and values, the truth will ultimately prevail over lies. Such confrontation characterizes free life in a democratic society. All of the means of communication—the print media, film, theater and all of the channels of national and international media—may take part in this confrontation. Some of these means were even utilized in this case, such as when a new film was made which presented the events from the perspective of the Israeli soldiers who fought in the battles. The ability to respond, by presenting all the data and facts, substantially mitigated the possible harmful effects which “Jenin, Jenin” could have had as a propaganda film, and assuaged worries that it would interfere with the public order. 

 

The Council’s second reason—that the presentation of the events borders on incitement and delegitimizes the existence of the State—should also be rejected. The film is intended for the general public in Israel. The fear that the film will incite the public, or part of the public, to deny the State’s right to exist is far-fetched and has no basis in proven fact.

 

Injury to the Feelings of the Public

 

3.   In my opinion, however, the Council’s third reason—severe offense to the sensitivities of the public—requires special examination. It constitutes the crux of the matter, where the clashing values come into conflict. Can the suppression of a film, which portrays Israeli soldiers as systematically committing war crimes in Jenin, be justified? The film seriously offends the feelings of the public, a public which completely rejects the ideas of the film, sees it as in absolute conflict with the truth, and rebels against the attempt to undermine the images of Israel as a society founded upon moral values and respect for human life. In my opinion, the question is whether such substantial offense to the feelings of the public justifies prohibiting the screening of the film, or whether, the decision of the Council being unreasonable, there is a cause for our intervention.

 

4.    In their response to the petition, respondents asserted that the IDF’s activities in Jenin were forced upon the State of Israel as a response to the terror attacks that climaxed in March of 2002. During these attacks, hundreds of Israeli citizens were killed and thousands were wounded. The IDF was forced to enter centers of terrorist activity, including Jenin, in which a terrorist infrastructure of unprecedented extent had been operating. Fierce battles were fought in the camp, and these resulted in the deaths of 23 Israeli soldiers. Terrorists laid dozens of booby traps and explosive devices, and endangered the civilian population by exploiting women and children and abusing humanitarian concerns, such as ambulances, for terrorist causes.

 

5.    According to the film, the IDF carried out a massacre in Jenin and attempted to cover it up by hiding the bodies. IDF soldiers, so it claims, intentionally harmed women, children, the elderly and the handicapped. The camp was shelled by aircraft and artillery, and this caused extensive injury to people and property. The director of the hospital, Dr. Abu Raali, claims that the hospital was shelled and that the IDF intentionally cut off the hospital’s water and electricity. A 75 year old man tells, through bitter tears, of how he was removed from his bed in the middle of the night, shot in the hand and, after being unable to obey the commands of the soldiers, shot again in the foot. The film shows Palestinian detainees tied up and lying on the ground, while an armed personnel carrier moves towards them. The film, through the juxtaposition of photographs, verbal segments, and interviews, creates the impression that tanks and armed personnel carriers ran over the detainees. One of those interviewed tells of a child, Monir Washichi, who was hit by a gunshot in the chest and died after soldiers prevented him from going to the hospital. The film also relates that a youth named Abu Jandal was bound by IDF soldiers and shot twice in the head. It also claims that IDF soldiers used children to rip holes through walls and destroy buildings, and that some children were later executed by the soldiers. The film claims that the IDF demolished buildings even as residents remained inside.

 

6.    These allegations are harsh. They become even harsher when presented visually through the use of, as is claimed, deceptive pictures and interviews with people who seem to be telling their allegedly personal stories, either as witnesses to the events or as direct victims. Respondents, to counter the message presented by the film, assert that the IDF operations were characterized by an effort to reduce, as much as humanly possible, the harm caused to civilians and property. In adherence to this policy, certain military operations—such as the use of aircraft and artillery—that may have brought about the rapid conclusion of the mission while also reducing the danger to the soldiers, were not employed. There was, say the respondents, no massacre at Jenin. The claims presented by the Palestinian leadership have been refuted, proven to be groundless by international bodies. According to accurate data, 52 Palestinains were killed, most of whom participated in the battles against the IDF.

 

As per the claims regarding the hospital, terrorists barricaded themselves within it, endangering the safety of the patients. Despite this, IDF soldiers, pursuant to their orders, were careful not to enter the hospital or damage it, not to target it, and to allow its continued operation. They even supplied it with generators, water, electricity, and oxygen. The IDF made an effort to treat the wounded and the sick. Two hundred and fifty seven wounded were transferred to the hospital in the city of Jenin; sixty were transferred to hospitals in Israel. The words of the elderly man in the film are absolutely groundless: the Israeli doctor who treated the man testified to this—not a single Palestinian was run over by a military vehicle, no one was wounded by Israeli armored personnel carriers. The boy described as Monir Washichi was, in fact, a 19-year-old Hamas fighter who was killed in battle. The claim that Abu Jandal was shot from short range by IDF soldiers is completely groundless. There is no basis to the claim that IDF soldiers used children and intentionally harmed them. In fact, the terrorists employed children to distribute explosives and conduct observations. Private houses were destroyed and property was damaged, but not to the extent alleged by Palestinians. The damage to the houses was necessary due to the fact that terrorists made use of the houses, shooting from them and endangering the local population and its property. Some of the houses were even rigged with explosives. Bulldozers were indeed used to destroy houses and to subdue the terrorists. This, however, was only done, in order to minimize the danger to innocent civilians, after allowing sufficient time for those inside to exit.

 

7.  The film, as described above, is offensive to the feelings of many members of the Israeli public. The allegedly documentary presentation of the operations of the IDF—portraying them as war crimes—provokes difficult emotional reactions in three circles of the public. First, the inner circle of soldiers who participated in the operation, who closely experienced the horrors of battle, and the tragedy of losing their comrades in arms. Second, the circle of bereaved families who lost those dear to them in battle. Third, large parts of the public who relate to those events that are significant to the life of the State and society, who identify with the feelings of the Israeli side regarding the battle in Jenin, the portrayal of the IDF, and the loss of soldiers in combat.

 

All of these circles feel themselves committed to basic standards of humanity and respect for human life, even during war against the enemy. They are certain that the IDF adhered to fundamental—even more than fundamental—humanitarian standards. They are convinced that the IDF made use of combat measures that reduced the chances of injury to civilians, even as this increased the chances of harm to soldiers and slowed down military progress. They think that these combat methods contributed to the loss of the lives of Israeli soldiers. In light of this, attributing war crimes to the IDF soldiers who fought in Jenin is an extraordinarily offensive act. The intensity of the offense is only increased by the fact that the pain of loss is still fresh. The offense is intensified by the reality that the country continues to confront terrorist attacks. The film is offensive to the individual soldier, who fought in combat and endangered his life, while remaining committed to humanitarian values. It is offensive to the entire army, which is guided by these values. It is painful for the grieving families. It is offensive to the Israeli public, which deeply identifies with the existence of the State, and is dedicated to the moral, humane values it represents.

 

8.  What are the limits of the freedom of expression—in this case, the freedom of cinematic production—where such expression causes offense to the feelings of the public? Here, the offense is caused by the accusation that the army engaged in inhumane military activities, an accusation that points an accusing finger directly at the moral and ideological image of the Israeli public. Does such offense justify restricting expression?  What are the limits of the freedom of expression when the offense is caused during times of national crisis, or during war?  This is the question before us.

 

The Authority of the Council

 

9. The Council, pursuant to the Film Ordinance, may prohibit the screening of a film. Section 4(1) of the Ordinance provides that “[n]o projection film may be presented unless it has been approved for presentation and marked by the Council.” In other words, no film may be screened unless it receives a permit from the Council. The Ordinance does not establish standards for the Council’s discretion. Like any government authority, however, the Council is bound by limitations, which may be ascertained from the language and purposes of the legislation which established it. We have ruled that the Council must act within the strict bounds of the goal for which it was established, as they may be ascertained from the Ordinance. Its principal purpose is to prevent the presentation of films which may disturb the public order. Compare HCJ 14/86 La’or v. Israel Film and Theater Council, [13] at 430. “Public order,” in this regard, was broadly interpreted as including “disturbing the public order, whether this disturbance is the result of a criminal act, the result of an immoral act, or any other act which offends the feelings of the public and its safety.” (emphasis added).  See also HCJ 146/58 Cohen v. Minister of the Interior [28]; HCJ 381/66 The Attorney-General v. Israel Film and Theater Council [29]. In the words of Justice Zamir in HCJ 7128/96 Temple Mount Faithful v. The Government of Israel, [30] at 522:

 

The feelings of the public, including religious sensitivities, are an aspect of public order.

 

See also HCJ 399/85 Kahane v. Board of the Broadcasting Authority, [4]  at 295; La’or, [13] at 430.

 

“Disturbing the public order” is a broad concept, which also takes account of offense to the sensitivities of the public. Thus, when the Council decides whether to permit or prohibit the screening of a film, it must place, on the one hand, the principle of freedom of expression, which reflects a fundamental right with constitutional weight and, on the other hand, other values which the Council is responsible for preserving, and which are included in the need to protect public safety and public order. Whether a film is true or not, or whether a film has artistic value, are not considerations which the Council must balance against the freedom of expression. On the other hand, fear of offending the feelings of the public by screening a highly offensive film may be an important consideration in balancing between the relevant values.

 

In exercising its discretion, the Council acts as an independent authority and, generally, this Court will not substitute its own discretion for that of the Council. Nevertheless, in making its decision, the Council must act reasonably, while evaluating the relevant considerations and balancing between them appropriately.  In so doing, the Council must adhere to standards established by law, as these standards have been interpreted by the courts. HCJ 953/89 Indoor v. Mayor of Jerusalem, [31] at 693; HCJ 4804/94 Station Film v. Israel Film Council, [12] at 685. The purpose of our judicial review is to examine whether the Council relied upon relevant considerations and whether its decision properly balanced the conflicting values.

 

In deciding that screening the film “Jenin, Jenin” would be highly offensive to the sensitivities of the public, and thus prohibiting its screening, did the Council act within its authority? Did it act reasonably, pursuant to the standards established by law and the decisions of the courts?  This is the question at hand.

 

Freedom of Expression v. Offense to the Sensitivities of the Public

 

10.  In exercising its discretion, the Council must balance between the value of freedom of expression and the conflicting value of preserving the public order. In this case, the latter value finds definite form in the need to protect the feelings of the public. The standards that bind the decisions of the Council are deeply rooted in our caselaw and should be applied, in their spirit, to the case at hand. The general principle is the freedom of expression. It is a fundamental value in the accepted view of human rights in Israel.  It is derived from the democratic nature of the country, by the method of our elections, and from the right to vote and be voted for. It is a consequence of the freedom to voice ideas, opinions, and facts, whether true or distorted, and to see, hear and absorb them. It is derived from the right to criticize the government. This freedom applies to messages expressed through any means of artistic work, regardless of its nature, content, quality, or truth. Thus, “freedom of expression is the freedom of the artist to open and close her heart, spread her wings and liberate her thoughts.” La’or, [13] at 433 (Barak, J.). This includes the freedom to produce a work which bears a political message, whether it be true or  false, as offensive as it may be. HCJ 6126/94 Senesh v. The Broadcasting Authority, [5] at 676.  In a democratic process, the way to deal with an offensive message is not by prohibiting it, but rather by wielding the freedom of expression to react to it and present the truth.  In this way—in the undisturbed free flow of opinions and ideas—the truth, by challenging the false, shall find its place.

 

11.  The freedom of expression is not absolute. It may conflict with values that must be protected in order to ensure the vitality of any society. The need to preserve public order, in the broad sense of the term, is one of society’s fundamental values. If it is not protected, the foundation of the State and democracy may be damaged. When there is a conflict between the freedom of expression and the value of preserving public order, a decision must be made between these two values. The conflicting values must be balanced against each other. This balancing, according to our constitutional approach, takes into account the significance of each value in light of the circumstances. The importance of the freedom of expression must be evaluated in light of the expression at issue in the specific case. Similarly, there are various values included within the term “public order,” and their weight may also vary. Thus, the conflicting values are balanced while attributing the proper weight to each of them, according to their nature and the context.

 

12.  Protecting the sensitivities of the public is part of the concept of public safety and public order.  HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Central Elections Board for the Sixteenth Knesset, [22] at 73; HCJ 5016/96 Horev v. Minister of Transportation, [18] at 34-35; D. Stattman, Offense to Religious Feelings, in Multiculturalism in a Jewish and Democratic State: A Book in Memory of Ariel Rosen-Tzvi 133 (1988) [52]. The value is important to both the individual and to society in general. Protecting sensitivities is as necessary as protecting persons or property. It protects one’s spiritual property, one’s cultural and moral values, against harm.  It is intended to protect one from the desecration of all that is dear to him.

 

Protecting the sensitivities of the public is important, even if the offense causes no more than pain or anger. Even so, the force of an offense is not only connected to its content, but also to its timing. Offense during times of peace and calm is not similar to offense during times of war. The severity of the offense is affected by the social climate and by the circumstances of the time. The effect of an offense during national emergencies may even extend beyond causing pain or anger. It may cause irreparable damage to a society's morale. This may affect its ability to carry out tasks of existential importance. Under such circumstances, offense to the feelings of the public may have broader social ramifications, which may lead to a need to protect it more.

 

Balancing

 

13.  Freedom of expression means the freedom to express views, ideas, opinions, and facts, whatever their content. This freedom may offend the feelings of the public, and thus, disturb the public order.  Both the freedom of expression and the need to protect the feelings of the public are fundamental values in our legal system. In order to balance the two, we must first take into account the type of expression at issue. Second, the offense to the sensitivities of the public should be evaluated on two levels. We must take into account both the severity of the offense and the probability of its occurrence. Temple Mount Faithful, [30] at 522. With regard to the severity of the offense, the freedom of expression will yield to the sensitivities of the public only where the offense is acute, serious, and severe. La’or, [13] at 435; HCJ 251/72 Kinan v. Isreal Film and Theater Council [32]. As to the probability of the offense, it must reach near certainty.  HCJ 806/88 Universal City Studios v. Israel Film and Theater Council [6].

 

In light of the importance of the freedom of expression, it will be restricted only when we are faced with an offense whose intensity is beyond the level of tolerance which persons in a democratic society must accept. Senesh, [5] at 839. Such offenses include only those that “shake the very foundations of mutual tolerance,” that touch the deepest foundations of our existence, that undermine such basic axioms that it may harm the nation, and where it is difficult or impossible to react against. The level of tolerance is not a fixed constant. This level may change from liberty to liberty and from value to value. Temple Mount Faithful, [30] at 521. Tolerance for the freedom of expression, as such, should stand at a high level. Only cases of exceptional offenses will justify such a restriction of freedom of expression. Otherwise, the freedom will be emptied of meaning.

 

In HCJ 2888/97 Novick v. The Second Television and Radio Authority [8], this Court, as per the opinion of Justice Mazza, employed an even stricter standard:

The content of the expression must be so severe, and the expected offense so incurable, that failing to prohibit it will raise a substantial and present danger to the public order. 

Id, at 202. Thus, in general, the freedom of expression will prevail over the value of protecting the feelings of the public. Only an incurable offense to sensitivities, which may lead to a substantial disturbance of the peace, will justify restrictions on expression.

14.  A similar constitutional approach is accepted in western democracies. As a rule, the United States does not recognize offense to the feelings of the public as a cause for limiting the freedom of expression. As Justice Holmes stated in 1919:

The hallmark of the protection of free speech is to allow “free trade of ideas,” even ideas that the overwhelming majority of people might find distasteful or discomforting.

Abrams v. United States, 250 U.S. 616, 630 (1919) [35]. In Collin v.  Smith, 578 F.2d 1197 (1978) [42], known as the Skokie case, the court did allow the prohibition of a neo-Nazi parade which had been planned to be held in a Chicago suburb in which a large number of Holocaust survivors resided. In spite of the contempt that the court expressed for the goals and methods of the group, it held that the United States Constitution did not allow content-based restrictions of speech. Expression could only be restricted in cases of obscenity, “fighting words,” or “imminent danger of a grave substantive evil.” Id. at 1202. Offense to feelings did not constitute a cause to restrict expression unless it violated the right to privacy or intruded upon a “captive audience.”  Id. at 1206.  The court stated that:

[o]ur constitutional system protects minorities unpopular at a particular time or place from governmental harassment and intimidation that distinguishes life in this country from life under the Third Reich.

Id. at 1201. In Collin, the Supreme Court denied certiorari. Smith v. Collin, 439 U.S. 916 (1978) [43]. Compare also Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) [44]; Street v. New York, 394 U.S. 576 (1969) [45]. The Supreme Court of the United States maintained this position throughout the years, as expressed in the recent case of Virginia v. Black, 123 S. Ct. 1536 (2003) [41]. In that case, the Court held a Virginia state law that prohibited the burning of crosses to be overly broad and therefore unconstitutional. The Court stated that offense to the feelings of those exposed to the burning crosses was not cause to restrict expression, so long as it was not “inherently likely to provoke a violent reaction.” As Justice O’Connor wrote:

 

It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, "the lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot's hateful ideas with all my power, yet at the same time challenging any community's attempt to suppress hateful ideas by force of law.

Id., at 1551.

In England, the heavy weight of freedom of expression has been recognized, together with the understanding that there are public interests that may justify the restriction of speech. See 8(2) Halsbury's Laws of England 104 (1996) [57]; Feldman, Civil Liberties and Human Rights in England and Wales 560 (1993) [54].

In Australia, the freedom of expression is seen as a means of achieving social goals, such as advancing democratic discourse, rather than as an end in and of itself. Australian caselaw tends towards allowing restrictions on the freedom of expression where the offense concerns race, skin color, or ethnic origin. Toben v. Jones, (2003) 199 A.L.R. 1 [33]. Offense to religious feelings, grave as it may be, did not constitute a cause for restricting the freedom of expression. In Archbishop of Melbourne v. The Council of Trustees of the National Gallery of Victoria, (1997) 96 A. Crim. R. 575 [34], the court did not prohibit the presentation of a work of art that humiliated Jesus by presenting him while immersed in urine.

Offense During Times of Emergency and National Crisis

15.  Times of war or national crisis grant greater weight to the public interest in preserving public order, when that value stands in conflict with the freedom of expression. In such situations, the value of protecting the sensitivities of the public also receives special weight. This may tilt the balance between the conflicting values, transforming the value of public order into the senior interest.  However, even under such circumstances, any restriction on the freedom of expression must be proportionate. It may not exceed that which is necessary to ensure public order.

In this regard, we recall the words of Justice Agranat in HCJ 73/53 Kol Ha’am, [1] at 880:

During critical periods, when the country is in a state of war or other crisis, the matter should be decided in favor of national security. Of course, this depends on the circumstances of each case.

Times of national crisis may lead to a genuine need to restrict the freedom of expression in order to protect the public order. Even in the United States, the cradle of individual liberties, freedom of expression was restricted when the state was involved in military activities and the expression could have harmed military discipline. In Schenk v. United States, 249 U.S. 47, 52 (1919) [46], the United States Supreme Court, as per the opinion of Justice Holmes, stated that:

When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.

In such circumstances, the standard for restricting the freedom of expression is:

Clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In Abrams v. United States, 250 U.S. 616 (1919) [35], Justice Holmes, this time as a minority, emphasized:

Only the emergency that makes it immediately dangerous to leave the correction of evil counsel to time warrants making any exception to the sweeping command “Congress shall make no law…abridging the freedom of speech.”

A decade later, Justice Brandeis strengthened these doctrines in Whitney v. California, 274 U.S. 357 (1927) [36]. For an analysis of the restriction of the freedom of expression during times of national crisis in the United States, see the doctoral dissertation of Professor Pninah Lahav, Freedom of Expression During National Security Crises (1973) [58].

In England, courts have recognized the constitutionality of restricting radio and television broadcasts, when these related to the struggle between England and Northern Ireland. In R v. Secretary of State for the Home Department, ex parte Brind, 1 A.C. 696 (H.L. 1991) [50], the House of Lords approved the executive’s authority to restrict the live broadcast of speeches by members of Northern Ireland organizations, due to the offense they caused to feelings of the viewers, especially after terror attacks. Publication of the content of the speeches was not prohibited. However, live broadcast of the speeches was prohibited, and the restriction was recognized as reasonable and proportionate.

As such, a national crisis or emergency, such as a difficult period of armed struggle, may change the evaluation of the relative importance of the freedom of expression vis a vis the value of protecting the sensitivities of the public. Every constitutional system will change these relative weights, each in its own way.

16.  These are our standards for balancing the two values: the freedom of expression will usually be given senior status, even where this freedom is exploited to offend feelings, and even where the offense is substantial. Only in exceptional and extreme cases, where the offense is beyond the level of tolerance which should be borne in a democracy, and where the offense will substantially harm public safety and public order, will it be possible to limit the freedom of expression. States of national crisis or emergency may be included in those exceptional and extreme cases.

17.  As stated, the Council must take into account the offense to the feelings of the public. It is a relevant consideration. See Horev, [18] at 5-34.  The question is: what is the appropriate method of balancing this value against the freedom of expression, and what is the relative weight of each of these values, in light of the circumstances of the matter.

From the General to the Specific

18.  The film “Jenin, Jenin” purports to be a film that documents the battle of Jenin from the Palestinian perspective. Even if the film is one-sided, and even if it is distorted and fraudulent, our point of departure is that its producers have the right to present it, a right that is derived from freedom of expression, a right that Israel sees as fundamental. 

Against this right stands the offense which large parts of the Israeli public feel as a result of the film. We assume that the probability of such offense to the sensitivities of the public is not only a near certainty, but an absolute certainty. Even so, the question, as per our caselaw, is whether the offense is of such magnitude that the freedom of expression may be infringed.

I am of the opinion that, under the circumstances, even though the wound is grave, it is not of the severity required to restrict the freedom of speech. The injury is both broad as well as deep. Compare Temple Mount Faithful, [30] at 524-25. It is not limited to a single person or a small minority. It affects the IDF soldiers that fought in Jenin, it affects their comrades who serve in the regular and reserve forces, and it affects the grieving families of the soldiers who fell in battle. The feeling is shared by many in Israel. It is not a superficial injury, transient, and blowing over like the wind. The feeling, the reaction, is genuine and harsh. The offense is not vague, ambiguous in its direction. It relates to specific events, whose memory still scars the minds of those Israelis that took part in them. Even so, the offense does not shake the foundations of human tolerance to the extent that it threatens public order, and justifies restricting the freedom of expression. Despite the fact that the offense is related to Israel’s armed struggle against its enemies, this is not a time of emergency or national crisis that is severe enough to attribute decisive weight to the value of protecting against threats to the public order.

The Council should have considered the following issues:

19.  Fraudulent and distorted representations of IDF military activities are not isolated occurrences. They have become part and parcel of the conflict between the two nations. Dealing with the deep offense caused by false representations has become almost routine. Since the near future does not seem to promise resolution of this conflict, it should be assumed that such fraudulent expressions will continue. Restricting the freedom to screen the film signifies a willingness to recognize the ability to impose broad restrictions in the future, while unreasonably limiting the freedom of speech, whether such speech be true or false, right or wrong. Such restrictions are inappropriate.

20.  Our proximity to the events may aggravate the intensity of the offense. Between the battle in Jenin and the Council’s decision to prohibit the film, almost seven months passed. The scars of the battle, however, and the pain of the fallen soldiers and of the military operations, have not faded with time. Even so, the interim period has strengthened the public's resilience in the face of the offense caused by the film. It can now meet the film head-on, even wield means to present its own views of the truth.

21.  Despite the military operations that continue, and despite the unending terror, we do not find ourselves in a state of full-fledged war or national crisis that would require contending with immediate and serious issues of survival. The times, however stormy, reflect persistent security tensions and local military activities, processes which extend over a period of years. This reality does not justify infringement of the freedom of expression in order to protect the sensitivities of the public. These events demand a high level of tolerance from the public, even when its feelings are offended by expression, painful as that expression may be.

22.  The offended public has its own means of expression to present its account of the truth and of the facts. In fact, the film that presented the Jenin battle from the Israeli perspective took this path. The Israeli side has means of expression at its disposal. It has sources of information; the witnesses and the soldiers who took part in the battle can testify first-hand about the truth. The ability to employ such media, together with their actual use in the past, substantially reduces the offense caused by the film. It has been said before as well: the power of the Israeli public is not in the fact that it can restrict the expression of the other, but in the fact that it can convey the truth. Senesh, at 841.

23. It cannot be ignored that, aside from the medium of film, there are additional means of expression that can give voice to the issues raised by the conflict. These include the written word, newspapers, radio, and television. Prohibiting the screening of a film means singling out that specific means of expression while, at the same time, allowing other channels to remain free and open, even where they cause similar offense. “Jenin, Jenin” itself was only prohibited from being screened commercially, and the chance remains that, even with that prohibition, the public will be exposed to the film. As such, it is only natural to question the effectiveness of the Council's censorship, and these doubts only undermine the Council’s decision, especially where that decision stands against the freedom of expression.

24.  To summarize, although the film causes deep offense to much of the Israeli public, prohibiting its screening does not accord with our standards for balancing the conflicting values here. The Council’s decision is unreasonable and cannot be upheld. The film should be allowed to be screened. It should be allowed to struggle for its place in the free flow of expression.

The offense to the sensitivities of the public, harsh as it may be, does not threaten the public order. The resilience of the Israeli public is great. It has endured challenges to its survival, stubbornly preserving the dignity of its moral values. It has the internal strength to stand before these accusations, distorted and false as they may be. It is capable of responding appropriately, through other means of expression. This is true even though the pain of the events, still fresh, intensifies both the affront and the need to protest against it. These form the core of democracy: the need and the capability to deal with such challenges without restricting the freedom of expression, as well as the fundamental ideals of tolerance in a free society, even where such tolerance is not reciprocated.

The Limitations Clause of the Basic Law

25.  The constitutional principle of the freedom of expression, and our methods of balancing this freedom against other, opposing values, were developed long before the legislation of any of our Basic Laws, including the Basic Law: Human Dignity and Liberty. Even so, we make use of the standards established by those Basic Laws in order to interpret any statutory grant of authority. This is regardless of whether the statute in question was legislated before or after the passage of the Basic Law, and regardless of whether we deal with rights and freedoms which the Basic Law refers to explicitly. “This connection between the constitutional limitations clause and the entirety of our public law, including human rights not explicitly covered by the Basic Law, is entirely natural.” See Horev, [18] at 41-43 (Barak, P.)

Examining the present question in light of the conditions set out in the limitations clause of section 8 of the Basic Law: Human Dignity and Liberty, we are lead to the conclusion that we cannot let stand the Council’s decision to prohibit the film. The limitations clause sets out a framework for examining whether a specific public interest can justify restrictions on the freedom of expression. Within this framework, we must determine whether such a restriction would be appropriate in light of the values of the State of Israel as a Jewish and democratic state, whether the purpose of the restriction is proper, whether the restriction is proportionate, and whether it is narrowly tailored to achieve its goal. See Senesh, [5] at 835-36. As per the Jewish and democratic values of Israel, it may be said that we need consider not only the freedom of expression but also to the need to protect the sensitivities of the public. As such, restricting the freedom of expression is consistent with the Jewish and democratic values of the State, provided that the injury to sensitivities is extreme, and provided that it is nearly certain that such injury will occur. All this, however, is insufficient. Such restrictions must have an appropriate purpose, they must be proportionate, and they must be narrowly tailored. Here, even if the purpose behind the restriction—preventing offense to sensitivities—is proper, the scope and severity of the restriction is extreme, while the scope and severity of the offense is not. As such, the restriction does not meet the standard of proportionality. In light of this, the prohibition against the film cannot stand before our judicial review, and we must intervene in the Council's decision.

26.   I arrive at this conclusion after having examined one of the Council's rationales, the offense caused to the sensitivities of the public. But even if the collective weight of all of the Council's reasons would be placed on one side of our judicial scales, I would still come to the same conclusion. The power of these reasons, even collectively, in our present circumstances, is insufficient to parry the force of the freedom of expression. 

27. In conclusion: the authority of the censor stands only weakly before the freedom of expression. Our fundamental assumption is that the false and the fraudulent should be confronted with the good and the true, and that it is the latter that will ultimately prevail, taking its place among the rainbow of beliefs, ideals, and faiths of the free world. As in the words of Alan Dershowitz in his book, Shouting Fire (2002), [56] at 187:

The problem is that our First Amendment prohibits persuasive governmental censorship. The solution is to answer bad speech with good speech, and to have the good speech prevail in the marketplace of ideas.

For these reasons, I concur with the opinion of Justice Dorner.

Justice Grunis

 

I concur with the opinion of my colleague, Justice Dorner and with the additional reasons of my colleague,  Justice Procaccia.

F.H. 5/63

 

           

ATTORNEY-GENERAL

v.

DANI WEIGEL

 

 

In the Supreme Court sitting as a Court of Criminal Appeal

[October 31, 1963]

Before Olshan P., Berinson J., Cohn J., Manny J. and Halevi J.

 

 

 

Construction of statute - prostitution offences - mandatory imprisonment - exclusion of probation - Penal Law Amendment (Prostitution Offences) Law, 1962, sec. 10-Probation of Offenders Ordinance, 1944, sec. 3 (2).

 

            The respondent was convicted at first instance of being a procurer under section 1(b) of the Penal Law Amendment (Prostitution Offences) Law, 1962, but owing to the special circumstances of the case he was not given a prison sentence but put on probation. An appeal to the Supreme Court having failed, the Attorney-General applied for a Further Hearing* regarding the construction of the said section 10 in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944. The sole issue was whether a person convicted under the Law must be sentenced to imprisonment or may instead be put on probation.

           

Held by a majority (1) An "offence punishable by imprisonment or fine" to which the Probation Ordinance applies is descriptive of the kind of offence for which probation is available. Such an offence does not cease to be of that kind if the penalty is expressly mandatory. "Punishable" is not restrictive so as to exclude a mandatory penalty.

 

(2) A section of the Law under which "a penalty of imprisonment shall be imposed" is intended (upon sentencing) to exclude a penalty as the sole penalty which is not imprisonment. Probation as such is not a penalty and therefore falls outside the ambit of the section.

 

(3) To oust existing sentencing powers and restrict the rights of the individual, particularly in criminal matters, express statutory provision is necessary. Section 10 contains such an express provision as regards conditional imprisonment but not as regards probation.

 

(4) Probation is a method of treatment alternative to imprisonment, intended to assist in the rehabilitation of offenders. Ever since its introduction it has not conflicted with but complemented imprisonment

 

(5) The cases of prostitution offences in which the courts will direct probation rather than impose imprisonment are very rare. Indeed it would defeat section 10, if they did so to any appreciable extent.

 

Israel cases referred to:

 

(1)       Cr.A. 69/63-Attorney-General v.Dani Weigel (1963) 17 P.D. 712.

(2)       Cr.A. 26/55-Rahel and Yaakov Shakraji v. Attorney-General (1955) 9 P.D. 378.

(3)       Cr.A. 44/52-Kassem Hasin Diab v. Attorney-General (1952) 6 P.D. 922.

(4)       H. C. 186/62- B. Veider v. Minister of the lnterior and others (1962) 16 P.D. 1547.

(5)       Cr.A. 38/61-Moshe ben David Yitzhak v. Attorney-General (1962) 16 P.D. 514.

(6)       Cr.A. 155/59-Yaakov Darai  v. Attorney-General (1960) 16 P.D. 233.

(7)       Cr.A. 24/55-Attorney-General v. Barukh Salmander and others (1954) 8 P.D. 474.

(8)       Cr.A. 558/62-Morris Rabo v. Attorney-General (1963) 17 P.D. 162.

(9)   Cr.A.-234/53 Tel Aviv-Yafo Attorney-General v. Avraham ben Yitzhak HaGoel (1955) 11 P.M. 84.

 

English case referred to:

 

(10)     R. v. Parry and others (1952) 2 All E.R. 1179.

 

Z. Bar-Niv, State Attorney, for the appellant.

B. Shagia for the respondent.

 

OLSHAN P.               The sole issue before us is the construction of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, in the light of section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter referred to as "the Ordinance").

 

  Sections 1 and 3 of the said Law define various prostitution offences and prescribe the penalties therefor by the following formulae:

           

"Shall be liable to imprisonment for a term of five years" (sections 1, 2 and 5);

 

"shall be liable to imprisonment for a term of three (five) years"

(section 9);

 

"shall be liable to imprisonment for a term of seven years" (section 3).

 

Then comes section 10 which provides:

 

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him."

 

            In Attorney-General v Weigel (1), the subject of the present hearing, a majority of the judges were of the opinion that section 10 does not prevent the court from applying section 3 (2) of the Ordinance which generally speaking empowers the court, in the event of a person being punishable with imprisonment or fine, to make a probation order instead of sentencing him. Relying on the phrase "shall be imposed" in section 10, the judge in the minority had no doubt that the section places a duty on the court to impose a sentence of imprisonment, either as a sole penalty or in conjunction with another penalty, and that the court is commanded by the legislature, where a person is convicted under section 1, 2 or 3, to impose a penalty and may not let him go free without any penalty, that is to say, that it is impossible to put him on probation in place of imposing a penalty.

           

            According to the interpretation given by the majority therefore the court must first consider in the light of section 3 (2) of the Ordinance whether or not any penalty is to be imposed and only if it thinks that a penalty should be imposed must it be imprisonment. The minority view was that where a person is convicted of a prostitution offence under section 1, 2 or 3 the court is not free to consider whether or not to impose a penalty but is commanded to impose the penalty of imprisonment.

           

            After hearing counsel representing the parties, I have reached the conclusion that the law is with the minority judge. The submissions of Mr. Bar-Niv, the State Attorney, appeal to me for the following reasons.

           

 (1) The words "shall be imposed" appear to me to be in the imperative mood. A distinction must here be made between "imprisonment shall be imposed" and "shall be liable to imprisonment"; in all the sections of the Criminal Code Ordinance, 1936, the penalty-fixing formula is "is liable to" and only in one section "shall be sentenced" (cf. sections 49, 50, 213 and many others together with section 215 before amendment). Ever since the establishment of the State, whenever the first above formula was intended the legislature employed the words "shall be liable to imprisonment" and whenever the second was intended it used the words "the court shall impose" or "shall be imposed".

 

            Where "is liable to" occurs, the convicted person may be punished with imprisonment and the question of its length will only arise when the court comes to the conclusion that a probation order should not be made in place of imposing a sentence. Were the majority's interpretation of section 10 to be accepted, the legislature would not have needed to use the words "shall be imposed" and it could have adopted the formula "he shall be liable...". Section 10 would also then have been unnecessary.

           

            Having found it proper to use the "shall be imposed" formula in section 10 instead of the "shall be liable" formula in section 1, 2 and 3 of the Law, then - and this is a canon of interpretation - the legislature is not to be assumed to have done so inadvertently. According to the interpretation proposed (by the respondent) we must ignore the words "shall be imposed" and read in place thereof "shall be liable".

           

(2) According to that interpretation also, the opening words "Where a person has been convicted..." must be read as if they said something like "Where a penalty has been imposed under section 1,2 or 3, the penalty shall be imprisonment... but conditional imprisonment shall not be imposed". But significance attaches to the words "Where a person has been convicted". They instruct the court what to do with the defendant after conviction, that is, after conviction a penalty is to be imposed and he is not to be allowed to go free without penalty. We are not at liberty to ignore the legislature's formula and replace it with another consistent with the said interpretation.

 

(3) Why the legislature found it right to add the words "but conditional imprisonment shall not be imposed" but not also "no probation order shall  be made", the answer, it seems to me, is that the purpose of the section is to prescribe the obligatory nature of the penalty from among the various penalties found in our law, such as fines, conditional imprisonment and others. It was necessary to exclude conditional imprisonment expressly because according to Shakraji v Attorney-General (2) imprisonment by itself includes conditional imprisonment. Had the legislature not excluded conditional imprisonment a court could comply with section 10 by imposing the latter-a course not welcome to the legislature. On the other hand, a probation order is not a penalty; section 3 (2) of the Ordinance says that "the court may, in lieu of sentencing him, make a probation order". Hence, the court being bound to impose the penalty of imprisonment, it was not essential to mention the Ordinance which enables relief from penalty.

 

(4) Purposively there is no great difference between a probation order after conviction and conditional imprisonment. The object of a probation order was explained in the judgment of my honourable friend, Berinson J., in Weigel (1) at 719, and I have nothing to add. It seems to me that the imposition of conditional imprisonment is also founded on the belief that if the defendant is given the opportunity, he will mend his ways and refrain from his law-breaking. Upon the enactment of the Penal Law Amendment (Modes of Punishment) (Amendment No. 5) Law, 1963, the identity of the two drew even closer (apart from supervision by a probation officer). Section 7 (4) (b) and (5) (b) provide that if a probationer is convicted of another offence during the period of probation the court may sentence him for the offence for which he was placed on probation. That means that exemption from penalty and placing on probation are subject to the possibility of being sentenced for the first offence, if a breach of the probation order occurs or another offence is committed during probation. According to sections 18D and 18F added in 1963, when a further offence is committed, the court is not bound to activate the conditional imprisonment but may extend it for an additional period. In activating the conditional imprisonment, the court may also order that the sentences be concurrent. Conditional imprisonment is thus directed to those instances where there is a belief or expectation that its imposition instead of actual imprisonment will help the defendant to mend his ways. That belief and expectation exist when a probation order is made. I do not however say that this identity of purpose should be decisive in interpreting section 10. If it is clear from this section that the legislature directed the court to impose a term of imprisonment upon an offender convicted under sections 1, 2 and 3, since in spite of its high purpose, the imposition of conditional imprisonment has, on any view, also been forbidden by the legislature.

 

(5) In association with the opening words "Where a person has been convicted", the marginal heading to section 10, "Mandatory imprisonment", means that once convicted of an offence under sections 1, 2 or 3, an obligation arises to impose imprisonment. In general, where the section of a statute is clear, there is no need to refer to the marginal heading; only those who plead that the meaning is obscure will need to do so. In my judgment no such necessity occurs here, but if it does, it supports the conclusion drawn by the minority judge. The question which arises in connection with this submission is the extent to which the marginal heading is part of the law. In Diab v. Attorney-General (3) Silberg J. indicated (at 926 and 928) the difference that exists in this regard between England and ourselves. It has long been normal in England to embellish a statute with headings and marginal headings after it has been adopted by the legislature. Silberg J. held, after comparing Mandatory legislation, that "there is nothing to prevent us from obtaining 'interpretative inspiration' from the headings". He said

 

"We see therefore that everything revolves round the cardinal question whether these headings and 'embellishments' have or have not been brought to the attention of and approved by the legislature, whether they have or have not received official approval. The traditional English view is that for Parliament there is only the archaic statutory roll which leads the reader on without name or description, without marginal headings and punctuation, and anything which it does not or need not include is not part of the statute, a kind of incidental nugatory addition by 'irresponsible' people who have no hand in the law-making of the legislature".

 

The question is therefore what is the situation with regard to Israeli legislation. When a bill is presented to the Knesset, it includes marginal headings. That may be seen from the copies before the Knesset at the second and third readings... . In the bill of the Law so presented, section 10 had the marginal heading "No penalty of a fine alone" and the words "but conditional imprisonment shall not be imposed upon him" did not appear in the body of the section. During the debate the Minister of Justice mentioned that there were lighter penalties as well as probation orders and he proposed that the section be deleted. Others objected to deletion and suggested that the above words should be added and their suggestion was accepted. The Law as adopted and then published contained section 10 in its present form. If the Law in the second and third reading contained marginal headings, it is to be assumed that the value of the heading we are concerned with was the same as that of the others. I do not need to lay down any hard and fast rule as to whether or not the marginal headings are part of the Law since there are decisions on the question in respect of Israeli legislation. In Voider v. Minister of the Interior (4) it was said (at 1551) that

 

"There is no need to deal with the question whether or not marginal headings are part of the Law, since in any event no authority was cited to show that even if they are not, some bar exists against taking them into account when considering the object of the section in connection with its interpretation."

 

In Yitzhak v. Attorney-General (5) the court said (at 523) that

 

"Although possibly sometimes - when the language is not plain enough and ambiguous - headings may help, it is quite a different matter to base on them an additional offence having no connection at all with the clear definition given in the body of the section."

 

It seems to me that here the marginal heading certainly does not help respondent's counsel in his endeavour to replace "shall be imposed" with "shall be liable", or to introduce before "shall be imposed upon him" the words "upon being sentenced".

 

            In Darai v. Attorney-General (6) the appellant was convicted of an attempt to unlawfully cause the death of a person under section 222 of the Criminal Code Ordinance, 1936. Counsel argued that the prosecution must prove "malice aforethought" as in murder and he relied upon the marginal heading "Attempt to murder". That is, he tried to read into the section the element of "malice aforethought" in view of the word "murder" in the heading. He did not succeed. In the case before us indeed the marginal heading is at one with the provisions of the section and not in conflict. Hence words which do not appear therein are not to be introduced.

           

 (6) The Law relating to assaults on policemen, where a minimum term of imprisonment is also provided, has been cited at length. In Attorney-General v. Salmander (7) this Court decided that that Law is lex specialis and its provisions set aside, implicitly if not expressly, the general provisions contained in the Criminal Code Ordinance, 1936, in as far as the two sets of provisions are inconsistent. (The problem there was whether it is possible to impose on an offender convicted under the said Law a fine according to section 42 (1a) or a recognizance to keep the peace according to section 45 of the Criminal Code Ordinance.) It appears to me that the Probation of Offenders Ordinance, 1944, also contains general provisions whilst the Law concerning prostitution is lex specialis. The former was enacted at a time when there were no laws prescribing "mandatory imprisonment". Accordingly, upon the enactment of a special Law on prostitution, section 3 (2) of the said Ordinance must be read subject to this special Law. If it patently emerges from the wording of section 10, in the context of the other sections, that upon a conviction for prostitution the offender receives mandatorily a prison sentence, it cannot be argued that the section must be treated as containing something which it does not contain, only because the legislature did not expressly exclude the application of section 3 (2) of the Probation Ordinance, particularly when this special Law deals with the imposition of penalties whereas the Ordinance deals with probation which is not a penalty.

 

            In Salmander (7) this Court held that the minimum imprisonment prescribed is a penalty which cannot be reduced, that is, it is mandatory, notwithstanding the use of "shall be liable" (and not "shall be imposed"). The meaning of "shall be liable" in the Law there is that an offender may be punished by imprisonment up to the prescribed maximum but must be punished with the minimum term of imprisonment.

           

            In view of the decision in Salmander we must say, and we may not ignore the fact, that the question whether the offender may be held free of all penalty and be put on probation according to the Ordinance was not raised in this appeal. Relying on Attorney-General v. HaGoel (9) - that the provisions of the Law relating to assaults on policemen do not prevent making a probation order instead of imposing a penalty - one may say that "shall be liable" to a minimum term of imprisonment (as obligatory) becomes operative only after the court takes the view that a probation order is not to be made in place of imposing a penalty, since this Law does not employ the language of section 10 ("Where a person has been convicted... shall be imposed"). There is no need to take up any position on the merits of the argument itself.

 

(7) Section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, abolishes the death penalty for murder and provides that "Where a person has been convicted of murder, the court shall impose the penalty of imprisonment for life, and only that penalty". Here everyone, other than respondent's counsel who must differ if he is to be consistent, agrees that the possibility of making a probation order instead of imposing the penalty is excluded. The argument here is, however, that that is because of the addition of "and only that penalty". This argument, it seems to me, is groundless. If a probation order is not a penalty, then the words cited do not form a provision excluding probation as an alternative to imposing the penalty. Consistently with the suggested interpretation of section 10, this section would also have to be read as if providing "Where a person has been convicted of murder, and the court is of the opinion that he is not to be exempted from penalty and put on probation, the court shall impose the penalty of imprisonment for life, and only that penalty". That is, if a penalty is imposed it must only be life imprisonment. It follows that there is no connection between the words added and the prohibition against making a probation order. The prohibition stems from the words "Where a person has been convicted... the court shall impose", which is similar to the language used by the legislature in section 10, and not from the words "and only that penalty". If the fact that probation has no place in murder is not disputed, then I see no justification for adopting a different interpretation in section 10.

 

(8) As I have said, "shall be liable" is generally used by the Israeli legislature in place of the Mandatory "is liable" and "shall be imposed upon him" in place of "shall be sentenced". That there is a difference in meaning between the two phrases used by the Israeli legislature is not to be disputed, and I have not heard of any other meaning attributed to "shall be imposed upon him" to distinguish it from "shall be liable". Prostitution offences were specified in many of the sections of the Criminal Code Ordinance, 1936. In treating some of these offences with particular stringency because they are increasingly plaguing the country, the legislature repealed the sections of the Criminal Code Ordinance, 1936, and replaced them with the Law in question, as lex specialis. In this Law section 10 is devoted to the offences mentioned in sections 1, 2 and 3. Although the penalties for offences under sections 5. 6 and 9 were increased the normal course was followed and words of command or mandate were not employed. With regard to these latter offences nothing was said limiting the discretion of the court in choosing the penalty or even in making a probation order. The intention of the legislature, it seems to me, is thus clear. What is involved is the principle of strict construction in favour of the offender, and this principle is not impaired since any other interpretation of section 10 is artificial and cannot be sustained without introducing words which the section does not contain.

 

(9) Assuming that after enacting the Probation of Offenders Ordinance the Mandatory legislator had amended section 215 of the Criminal Code Ordinance by providing that "upon conviction shall be sentenced to imprisonment for life", in my judgment there would have been no room for the argument that a probation order could be made instead of life imprisonment. The Probation Ordinance is not a "constitutional" law in the light of which all other law is reviewed. That being so, the two Laws must be reconciled, having their respective legislative intent in mind. Plainly, the 1944 Probation Ordinance does not embrace any intention to give section 3 (2) an entrenched position for the future. Had that been the intention, it would have been wholly invalid from the viewpoint of constitutional law. It is therefore to be understood that as regards the future the intention of the Ordinance was that use of section 3 (2) is subject to every new Law which can expressly repeal it or restrict its thrust with regard to some particular offence by prescribing that when an offender is convicted thereof he is to be sentenced by imposing the penalty of imprisonment. But such an intention would have to be clearly expressed in the new Law. Thus we return to the meaning of section 10 which appears to me to be so clear that we may not say to the legislature that, although the meaning is clear, we will ignore the clear intention simply because it did not expressly state that section 3 (2) of the Probation Ordinance is not to apply. To that the legislature would say that the presumption is that it was aware of section 3 (2) of the Ordinance and the failure to mention the necessary words - rightly or not, and as I have said above I think rightly - is not a ground justifying disregard of the clear meaning of section 10.

 

            The many reasons for rejecting the suggested interpretation of section 10 are not evidence that it is not clear or is ambiguous. The many reasons are the consequence of the many arguments advanced which in themselves do not prove that the intention of the legislature is not plain.

 

            In my judgment the appeal should be granted and imprisonment imposed upon the respondent.

           

BERINSON J.                        In the previous hearing of this matter we heard exhaustive arguments from the Deputy State Attorney, Mr. Bach, and the late Mr. Toussia-Cohen on the main issue, the interpretation of section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962, and its relation to section 3 (2) of the Probation of Offenders Ordinance, 1944. The majority and minority judgments appear to me not to have passed over any point worthy of attention, In this Further Hearing the State Attorney appeared and repeated in fact these arguments but more expansively and with the coherence normally characteristic of him. I have no intention of depreciating the value of his submissions by saying briefly that I have found nothing to move me to change my previous view which I explained at length in the earlier hearing. I shall therefore confine myself to a number of brief observations.

 

            In this Further Hearing the question is whether section 10 of the Prostitution Offences Law can stand alongside section 3 (2) of the Probation of Offenders Ordinance, 1944, so that the provisions of the latter are applicable notwithstanding section 10, or whether section 10 ousts the application of section 3 (2). The question turns on the meaning to be given to "offence punishable with imprisonment" in section 3 (2). The view has been voiced that "punishable" refers only to offences for which the court may impose imprisonment and not to offences for which imprisonment is mandatory. I cannot agree to this interpretation. In my opinion, the phrase involved describes a group of offences in respect of which a probation order may be made instead of imposing a penalty (imprisonment or fine) and it is immaterial how the court comes to impose the penalty on the offender, whether permissively or mandatorily. An "offence punishable with imprisonment" does not cease to be such when the imprisonment is mandatory.

           

            The President says that had it not been the intention of the legislature to direct the court to impose a penalty, and precisely the penalty of imprisonment, for prostitution offences under sections 1- 3 of the Law to deny the possibility of making a probation order in place of imposing a penalty, it would not have adopted the imperative mood in section 10, "shall be imposed", and generally there would have been no need for this special section since it had already prescribed for the specific offences the maximum penalty of imprisonment by the terms "shall be liable to imprisonment". I have another explanation. Section 10 is not superfluous in the least because it is intended to limit the kinds of penalties which a court is empowered to impose for prostitution offences. When it imposes a penalty, it must impose the penalty of imprisonment (whether or not in conjunction with another penalty) but no other penalty can serve as a substitute to imprisonment. That, in my opinion, is the meaning of the mandatory imprisonment in section 10. It does not, however, negative the alternative of putting the offender on probation which is not a penalty and may replace it.

 

            The State Attorney persists in arguing that if section 10 of the Prostitution Offences Law does not entirely exclude the possibility of making a probation order, then the same rule should apply also to murder with regard to which the legislature employs exactly the same terms in directing in section 1 of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954, that where a person has been convicted of murder the court shall impose life imprisonment and that alone. The terms of this Law indeed make it difficult psychologically to accept the view that I have propounded, although an important difference exists between the two Laws. In the first, the penalty is mandatory imprisonment (with or without some other penalty) but the court is completely free to fix the term of imprisonment /is no other penalty. If, however, it is said that this important difference is not determinative for the question before us, then, there being no option, I would not hold back from saying that both should be treated alike and in both a probation order may be made instead of imposing imprisonment. Until the adoption of the Law abolishing the death penalty for murder no difficulty occurred. When the Probation of Offenders Ordinance was enacted in 1944, it was clear that it did not apply to murder. At that time and until its abolition in 1954, death was the only penalty for murder and the Ordinance did not apply because it only covered offences for which the penalty was imprisonment or fine. When the Knesset abolished the death penalty and replaced it with life imprisonment but did not say anything about probation, murder also became "an offence and punishable with imprisonment" within the meaning of section 3 (2) of the Ordinance. It is difficult to imagine a case in which the court would in fact exercise this power but theoretically it is available as it then was in the case of manslaughter the penalty for which was life imprisonment, and today as well when it is a term of 20 years' imprisonment.

 

            In my earlier judgment I explained the view why it cannot be contemplated that by adopting section 10 of the Prostitution Offences Law the legislature intended to avoid indirectly the possibility of placing a person upon probation instead of sentencing him to imprisonment, and I do not need to go over that again. Had the Knesset so desired it would have needed to say so expressly, as it did regarding the non-imposition of a conditional sentence in place of actual imprisonment.

           

            My view remains as it was and in my judgment the Further Hearing should be dismissed and the majority opinion of the previous hearing upheld.

           

HALEVI J.                  The question before us is the relationship between section 10 of the Penal Law Amendment (Prostitution Offences) Law, 1962 (hereinafter referred to as "the Prostitution Offences Law") and section 3 (2) of the Probation of Offenders Ordinance, 1944 (hereinafter called "the Probation Ordinance"). Are these two enactments compatible? And if not, which takes precedence?

 

            Sections 1, 2, 3, 5, 6 and 9 of the Prostitution Offences Law define various offences and prescribe for each the maximum penalty which an offender may receive by the formula "shall be liable". Regarding offences under sections 1-3 the legislature goes on to prescribe by section 10, that "where a person is convicted... a penalty of imprisonment shall be imposed..., either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed". The meaning of this provision - and in this regard I join in the view of the President and Cohn J. without hesitation - is that mandatory imprisonment is laid down for the offences mentioned.

           

            On the other hand section 3 (2) of the Probation Ordinance provides that "where any person is convicted... upon information of an offence punishable with imprisonment or fine, and the court is of the opinion that, having regard to the circumstances, including the character, the antecedents, age, home surroundings, health or mental condition of the offender, the nature of the offence and any extenuating circumstances in which the offence was committed, it is expedient to release the offender on probation, the court may, in lieu of sentencing him, make a probation order".

 

            In view of these two sections, the question arises of the relationship between section 10, imposing mandatory imprisonment, and section 3, empowering the court to release an offender on probation instead of sentencing him to prison. Can the two sections exist side by side or are they conflicting? And if they are conflicting, which takes precedence? Opinions are divided and each has some foundation.

           

            One view is that neither affects the other since they concern different things - "a penalty" and "probation" which is not a penalty. Section 10 prescribes "mandatory imprisonment" as the penalty for any person convicted of an offence under section 1 or 2 or 3 of the Prostitution Offences Law, thus restricting the judge's discretion in choosing between different penalties - imprisonment, conditional imprisonment or fine - when sentencing the offender. Section 3 (2) on the other hand does not affect the content of the sentence and the kind of penalty which is to be imposed. It allows the judge in given circumstances to refrain from sentencing and instead make a probation order. According to this outlook there is no conflict between the two sections, but if any substantial inconsistency does exist, section 3 (2) of the Probation Ordinance prevails.

           

            Another view urges that section 10 of the Prostitution Offences Law contradicts and sets aside section 3 (2) of the Probation Ordinance. The provision in section 10 that "where a person has been convicted...a penalty of imprisonment shall be imposed" obliges the judge convicting the defendant to impose a penalty and that penalty has to be imprisonment. The judge will not be doing his duty if he exercises his normal power under section 3 (2) of the Probation Ordinance "to release the offender on probation... in lieu of sentencing him". The duty to impose imprisonment upon any one convicted of one of the offences referred to in section 10 deprives the judge of the power to put the offender on probation. Inevitably, according to this view, in the conflict between section 10 of the Prostitution Offences Law and section 3 (2) of the Probation Ordinance section 10 prevails.

           

            The matter is therefore open to debate but upon consideration the first view seems to me to be preferable to the second. My reasons are as follows.

           

            The Prostitution Offences Law is to be read and understood against the background of the Penal Law Revision (Modes of Punishment) Law, 1954. Section 1 of that Law provides that

           

"A court which has convicted a person of an offence may impose on him any penalty not exceeding the penalty prescribed by law for that offence".

 

Section 10 provides that

 

"Where the law prescribes imprisonment and does not prescribe a fine, the court may -

...        

(3)...impose imprisonment as prescribed or a fine not exceeding IL 5,000 or both such penalties; provided that where the law makes imprisonment obligatory or prescribes a minimum period of imprisonment, imprisonment shall not be replaced by a fine".

 

Section 18 before amendment in 1963 provided that

 

"(a) Where the court may impose a penalty of imprisonment, it may, in lieu thereof, impose conditional imprisonment".

 

And after amendment, that

 

"(a) Where the court imposes a penalty of imprisonment, it may, in the sentence, direct that whole or part of such penalty shall be conditional"

 

Section 25 as amended provides that

 

"The court which has convicted a person may, in addition to the penalty imposed, order the person sentenced to bind himself by recognizance to abstain from an offence for such period not exceeding three years as the court may prescribe".

 

            These sections taken together prescribe the great rule as to modes of punishment in Israel, that every penalty prescribed by any criminal law is a maximum penalty and that the legislature entrusts to the judge the task to prescribe in his discretion the penalty appropriate to each case both as regards the kind of penalty and as regards its extent, as appears to him to be right and proper. Section 10 of the Prostitution Offences Law makes an exception from this general rule. Apart from this section, a court convicting someone under section 1, 2 or 3 of the Law might, in view of the sections of the Modes of Punishment Law set out above, impose a penalty of imprisonment as prescribed in the section dealing with the offence in question or conditional imprisonment or a fine of up to IL 5,000 or a combination of such penalties with or without recognizance. But then section 10 comes along and provides that

           

"Where a person has been convicted of an offence under section 1, 2 or 3 of this Law, a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty, but conditional imprisonment shall not be imposed upon him".

 

The effect and significance of section 10 is to restrict the judge's freedom of choice as between the kinds of penalties mentioned in the Modes of Punishment Law to imprisonment with or without "another penalty" such as fine or recognizance (and according to Rabo v. Attorney-General (8), also conditional imprisonment). The sole penalty prescribed by section 10 is (unconditional) imprisonment for the offences in question and in this sense the marginal heading that sums up the section, "Mandatory imprisonment", is correct.

 

            As for the wording of section 10 - "Where a person is convicted of an offence... imprisonment shall be imposed upon him" - it is proper to notice the similar wording of section 1 of the Modes of Punishment Law - "A court which has convicted a person of an offence may impose on him any penalty" (Cf. also section 10 of this Law - "Where the law prescribes imprisonment ... the court may impose"). This parallelism to my mind strengthens the view I have taken that section 10 of the Prostitution Offences Law is to be read in the light of sections 1, 10 and 18 of the Modes of Punishment Law. In order to depart from the maximum-penalty rule laid down in the Modes of Punishment Law (sections 1 and 10) section 10 of the Prostitution Offences Law says that "Where a person has been convicted of an offence... a penalty of imprisonment shall be imposed upon him, either as the sole penalty or in conjunction with another penalty". In order to exclude section 18 of the Modes of Punishment Law in its original version, section 10 employs the same terms but adds "but conditional imprisonment shall not be imposed upon him". The phrase "Mandatory imprisonment" in the margin to section 10 repeats also the language of the end part of section 10 of the Modes of Punishment Law, that "where the law makes imprisonment obligatory... imprisonment shall not be replaced by a fine".

 

            It seems to me that the main purpose of section 10 is merely to exclude the offences mentioned therein from the provisions of the Modes of Punishment Law which give the court freedom of choosing between kinds of punishment in its discretion. Section 10 varies the normal "modes of punishment" by prescribing "mandatory imprisonment" for given offences. But it does not deal with or affect the placing of offenders on probation. As my honourable friend, Berinson J., said, probation is an "alternative" to penalty, a point stressed in section 3 (2) by the words "in lieu of sentencing him". According to that section, the judge must before making the probation order explain its meaning to the offender and inter alia that "if he fails... to comply therewith or commits another offence, he will be liable to be sentenced for the original offence". When sentence is pronounced for the original offence (in the event of a breach of the probation order etc.) section 10 of the Prostitution Offences Law will apply and imprisonment will be imposed. Section 10 does not set aside the provisions of the Probation Ordinance nor compel the judge to give a sentence since section 3 (2) of the Ordinance empowers him to abstain from doing so and to put the offender on probation. Section 10 lays down provisions binding as regards the content of the sentence but not as regards to the circumstances in which it is or is not to be given according to an enactment not referred to therein.

           

            Section 3 (2) of the Probation Ordinance applies to every offence "punishable with imprisonment or fine". It cannot be argued that these words are confined to an offence for which just"imprisonment or fine" are prescribed, excluding mandatory imprisonment. The meaning is undoubtedly "an offence punishable by imprisonment or an offence punishable by fine". The word "punishable" also does not restrict one to a penalty which is not "mandatory". Section 3 (2) of the Probation Ordinance was copied with some small variations from section 1 (2) of the (English) Probation of Offenders Act. 1907. which provides inter alia that

 

"Where any person has been convicted on indictment of any offence punishable with imprisonment. ... the court may, in lieu of imposing a sentence of imprisonment, make an order etc.".

 

Until the enactment of the Criminal Justice Act, 1948 (which replaced the 1907 Act) there was no general statute in England which enabled all the courts to impose a fine instead of imprisonment for commission of a felony. Section 13 of the Criminal Justice Act provides that

 

"Any court before which an offender is convicted on indictment of felony (not being a felony the sentence for which is fixed by law) shall have power to fine the offender in lieu of or in addition to dealing with him in any other manner in which the court has power to deal with him".

 

In R. v. Parry (10) Lord Goddard C.J. (at 1180) explained the history of section 13 as follows.

 

"The history of that section and the reason for importing it into the Criminal Justice Act, 1948, is well known. There were certain felonies, principally those under the Larceny Act, 1916, in which a court of summary jurisdiction had power to fine. That was because it was considered desirable in the case of petty thefts that a court should be able to fine the offender and not send him to prison, but in cases which came before a court of assize or quarter sessions on indictment there was no power to fine until this Act of 1948, except in the case of manslaughter. The reason for that was that the offence of manslaughter varies enormously in seriousness according to the circumstances in which it is committed. Over and over again judges have had to deal at assizes with an offence which technically was a felony, where they would have been glad to have imposed a fine had there been power to do so. The court was often left in the position that it had either to send a person of hitherto good character to prison for a comparatively small offence or else bind him over, which was to inflict no punishment. That is the reason why Parliament by the Act of 1948 gave to courts trying cases on indictment the same powers as courts of summary jurisdiction formerly had in certain cases and now have in all cases of felony, i.e., the power of imposing a fine instead of sending to prison."

 

            Thus until 1948 the penalty for most felons in England was "mandatory imprisonment" in the sense of the last part of section 10 of the Modes of Punishment Law and section 10 of the Prostitution Offences Law. Nevertheless the English courts were never denied the power to release a person convicted of any offence apart from murder by binding him over, with or without sureties, to come up for judgment, a course which served as an alternative to sentencing him and imposing mandatory imprisonment. (See the judgment of Lord Goddard in the case cited above and Archbold, Pleading, Evidence and Practice in Criminal Cases, 35th ed., paragraph 722.) Another alternative to sentencing was introduced by section 1(2) of the Probation of Offenders Act, 1907 (mentioned above) which empowered the courts to release on probation any person convicted of an offence "punishable with imprisonment", other than those for which the penalty was death. In view of the statutory situation in England until 1948, "punishable with imprisonment" in section 1 (2) of the Probation of Offenders Act, 1907 (which served as the pattern for drafting of section 3 (2) of the 1944 Probation of Offenders Ordinance) included also, and mainly, offences for which imprisonment was mandatory. The intention of the English legislature was to give the courts a new alternative (far more important than the old one of binding over) to imposing mandatory imprisonment on an offender who seemed to merit and be suitable for probation. Throughout the subsistence of the original English Probation Act (from 1907 until 1948) there existed therefore side by side "mandatory imprisonment" and "probation" applicable to the same offences, and not only were they not in conflict but complementary, serving as the legislature had intended, as alternative methods for the courts. There is no reason for attributing a different relationship between mandatory imprisonment under section 10 of the Prostitution Offences Law and probation under section 3 (2) of the Probation Ordinance.

           

            The English Probation Act of 1907 was, as I have said, replaced by the Criminal Justice Act of 1948, section 3 (1) of which provides inter alia that

           

"Where a court by or before which a person is convicted of an offence (not being an offence the sentence for which is fixed by law) is of opinion etc. ... the court may, instead of sentencing him, make a probation order"

 

            Section 80 of the same Act defines

 

" 'Offence the sentence for which is fixed by law' means an offence for which the court is required to sentence the offender to death or imprisonment for life or to detention during His Majesty's pleasure".

 

An offence "for which the court is required to sentence the offender to... imprisonment for life" is non-capital murder under section 9 of the Homicide Act, 1957. Section 3 (1) of the 1948 Act does not directly affect the matter before us and I have only mentioned it in order to show that even under existing English law, a probation order can be made in every criminal offence apart from murder and those for which life imprisonment is prescribed.

 

            I see no need to express an opinion regarding the interpretation of the Penal Law Revision (Abolition of the Death Penalty for Murder) Law, 1954. Even if the legislature did not realise the need for amending the Probation Ordinance as a result of the abolition of the death penalty for murder there is yet a vast difference between life imprisonment as a mandatory penalty (see section 2 of the Modes of Punishment Law) and mandatory imprisonment for one day prescribed by section 10 of the Prostitution Offences Law. Whatever the position regarding mandatory life imprisonment, there is nothing in section 3 (2) of the Probation Ordinance to suggest that mere "mandatory imprisonment" with which we are concerned excludes an offence from the operation of the Ordinance.

           

The existing legislation regarding the modes of punishment is not of one piece and even if all the difficulties concerning the different enactments in this area have as yet not been resolved, no far-going conclusions in law are to be drawn from that. Accordingly it appears to me that one should not infer from the lack of reasonableness in applying the Probation Ordinance to murder for which the penalty is mandatory life imprisonment, that this Ordinance does not apply to every other offence the penalty for which is mandatory imprisonment.

 

            Since section 3 (2) of the Probation Ordinance does not distinguish between imprisonment which is mandatory and that which is not, the legislature's intention to deny the application of the Probation Ordinance, if it had such intention, should have found expression in section 10 of the Prostitution Offences Law. In order to ascertain the legislature's intention I do not need to rely on the speeches in the Knesset during the debate on the section. According to the usual rules of interpretation, express statutory provision is necessary to negative lawful judicial powers, particularly in criminal matters. The judicial power under section 3 (2) of the Probation Ordinance to release a person convicted on information for an offence punishable by imprisonment and to put him on probation is not negated by any express provision of section 10 of the Prostitution Offences Law. In the judgment of my honourable friend, Cohn J., in Weigel (1) the legislature's intention to deny the existing powers under the Probation Ordinance is implied from the word "Where a person has been convicted... a penalty of imprisonment shall be imposed upon him", which he construes as "Where a person has been convicted... a penalty of imprisonment shall be imposed upon (but he shall not be released on probation) and the penalty shall be imprisonment (and no other penalty)". With all respect, this seems to me mere inference since there is no "automatic penalty". Section 10 does not say that "notwithstanding the provisions of any other enactment" the penalty of imprisonment shall be imposed. In my view, so fundamental a matter as the setting aside in part of the method of probation cannot rest on inference without express statutory provision, since it restricts the powers of the court, the rights of the individual in criminal matters and the functioning of a probation service intended to rehabilitate the offender and turn him into a useful citizen.

 

            Nevertheless I do find myself bound to stress what my honourable friend, Berinson J., said at the end of his judgment in Weigel, that in offences of the kind in question it will be "most rare" for the court actually to exercise its power to place an offender on probation. The Prostitution Offences Law of 1962 was intended to treat procurers of various kinds with severity and it was found fit in the public interest to increase the penalty to five or seven years' imprisonment, to make imprisonment mandatory and to direct that it should not be commuted to conditional imprisonment. Probation officers and judges would make the Law a sham, were they to go on using probation for offenders who come within section 10. I have mentioned probation officers since under section 3 (2) of the Probation Ordinance, as amended, a court is not to make a probation order until it has received the opinion of a probation officer. Moreover, under section 19(a) of the Modes of Punishment Law, the court may, before imposing a penalty, require a written report by a probation officer, and under section 19(b), as amended, the court may not impose a penalty of unconditional imprisonment on an offender who had not reached the age of 21 at the time when the offence was committed until such a report has been received. Section 19(c) provides that "in a report as aforesaid, the probation officer may recommend to the court the type of penalty which, in his opinion, offers prospects of reforming the prisoner". Thus the probation officer plays an important role when the court effectuates probation and in this sense he is "a partner of the judge", although it is the latter who has the last word. It is in general difficult for an appellate court to interfere with the discretion of a judge who decides to place an offender on probation, and the question whether the learned District Court judge in the present case was right does not arise. In any event, apart from exceptional instances, the right place for procurers and those who promote prostitution is prison.

 

            For these reasons I propose to confirm the decision of the majority in Weigel (1) and to dismiss the appeal.

           

MANNY J.                 I concur in the judgments of my learned brothers, Berinson J. and Halevi J., and join in the conclusion they have reached.

 

COHN J.                     I disagree with the premise of my honourable friend, Halevi J., that section 10 of the Penal Law Amendment (Prostitution Offences) Law is to be read and construed against "the background" of the Penal Law Revision (Modes of Punishment) Law. For me, the opposite is the case: the entire object of section 10 is only to take out the penalties mentioned therein from the rules prescribed in this Law regarding punishment for all other kinds of offences. It is very true that section 10 is not intended to affect the rule of the maximation of penalties and to this extent the general law applies to it, but it is intended expressly and unambiguously to affect the alternation of penalties, and just as it decrees "mandatory imprisonment" excluding fine and conditional imprisonment, it also decrees imprisonment excluding modes of treatment which do not come within the meaning of penalty.

 

            Likewise I do not draw the analogy which my honourable friend, Halevi J., has drawn between "may impose" in the Modes of Punishment Law and "shall be imposed" in the Prostitution Offences Law. I agree wholly with the learned President that the imperative of "shall be imposed" is not to be ignored, in contrast to the permissiveness and discretion of "may impose". Here as well, the opposite is the case: whilst the Modes of Punishment Law gives the judge a discretion as to the severity of the penalty he may impose, the Prostitution Offences Law denies him that discretion since, whatever he may wish to do, imprisonment shall be imposed.

 

            As I suggested in my previous judgment in this matter, it seems to me that the question of interpreting section 3(2) of the Probation of Offenders Ordinance, 1944, does not arise at all. The appellant's fate must, in my opinion, be decided according only to the interpretation of section 10 of the Prostitution Offences Law; and on the correct interpretation of this section there is no place for applying this provision of the Probation Ordinance whatever its interpretation, because section 10 excludes the application of any statutory provision which empowers the court to deal with a person convicted of an offence under the Law in any manner other than by imposing imprisonment alone.

           

            Accordingly I come to the same conclusion as the learned President and adhere to his view.

           

Further Hearing dismissed by a majority and the majority decision in the previous hearing upheld.

 

Judgment given on October 31, 1963.

 

* Under section 8 of the Courts Law, 1957, a Further Hearing by five or more judges of the Supreme Court will be granted "in view of the importance, difficulty, or novelty" of a ruling of the Supreme Court sitting with three judges.

            Crim.A. 156/63

 

           

ATTORNEY-GENERAL

v.

ZVI OESTREICHER

 

 

            In the Supreme Court sitting as a Court of Criminal  Appeal.

[October 1, 1963]

Before Agranat D.P., Sussman J. and Halevi J.

 

 

 

 

Administrative law - state of emergency - power to make secondary legislation on essential activities - derogation of powers of legislature.

 

            The respondent was charged with an offence against the Commodities and Services (Control) (Transport of Bread) Order, 1960, for transporting bread in open dirty boxes on the roof of an automobile. He admitted the facts but denied liability on the ground that the Order was ultra vires the Minister of Health who had issued it, according to the terms of the enabling Law, which confined the power to make Orders regarding specified essential matters and in a period only during which a state of emergency prevailed. At first instance this plea was rejected and he was convicted and sentenced, but on appeal to the District Court, the plea was accepted and conviction and sentence were overturned. The Attorney-General appealed.

           

Held (1) An activity essential for ensuring orderly daily life in peacetime can well have the same character during a state of emergency.

 

(2) Since, in view of the existing state of emergency in the country, the legislature found it necessary to derogate from its own powers and set up other law-making machinery to ensure that essential activities be effectively and speedily regulated, the measures taken are valid and for that reason alone are unchallengeable.

 

(3) An activity may be essential not only economically but also from a medical or hygienic viewpoint.

 

(4) Obiter, it is desirable that the legislature itself regulate in the normal way those matters which have no direct connection to the dangers stemming from a state of emergency.

 

Israel cases referred to:

 

(1)   H.C. 222/61 - Chemo-Ta'as Haifa v. Minister of Commerce and Industry (1962) 16 P.D. 297.

(2)   H.C. 300/60 - Zvi Gottlieb v. Minister of Commerce and Industry (1960) 14 P.D. 2182.

(3)   H.C. 60/60 - Shmuel Reisky v. Director-General of the Minister of Health (1960) 14 P.D. 1373.

 

G. Bach. Deputy State Attorney. for the appellant.

Y. Weins for the respondent.

 

AGRANAT D.P. The respondent was convicted in the Magistrate's Court, Tel Aviv of an offence under section 39(a)(1) of the Commodities and Services (Control) Law, 1957 (hereinafter called "the Law"), in that he transported bread on the roof of an automobile in violation of paragraph 3 of the Commodities and Services (Control) (Transport of Bread) Order, 1960 (hereinafter called "the Order"), which provides as follows:

 

"A person shall not transport bread save in a closed, dry, and clean case in which sufficient ventilation openings have been installed."

 

            The particulars of the offence, as described in the information, are that on 29 September 1961 in a street in Ramat Gan, the respondent transported "on the roof of automobile No. 00622 open, dirty boxes in which there were hallahs."

           

            At the trial in the Magistrate's Court, counsel for the respondent admitted the truth of these particulars but denied his client's guilt, basing himself on the legal argument that in prescribing the said paragraph 3, the Minister of Health who issued the Order exceeded the authority granted him in the Control Law. In his reasoned judgment, the learned Magistrate dismissed this argument and therefore convicted the respondent of the said offence and fined him IL. 50 or ten days imprisonment in lieu thereof. The respondent appealed from this result to the District Court and there his counsel repeated the argument of ultra vires which had been dismissed by the Magistrate. This time the argument was accepted, and the conviction and sentence were overturned. Now it is incumbent upon us to consider the appeal from this judgment filed by the Attorney-General after receiving leave for the purpose.

           

            It is my opinion that the appeal before us should be allowed.

           

            Before I consider the reasoning which guided the learned judges of the District Court, I should cite the provisions of the Control Law concerning the power of the Minister of Health to enact the said Order which relate to our case.

           

            (1) Section 5(a) of the Law provides that "A Minister may regulate by order - (1) the production, safekeeping, storage, transport, transfer from place to place or from hand to hand, distribution, sale, acquisition, consumption, treatment and use of a particular commodity, including the slaughter of cattle". (See also section 15 as to the auxiliary powers granted the Minister for the purpose of implementing the powers mentioned in the Second Chapter of the Law.)

           

            (2) The term "Minister" is defined in section 1 as "any member of the Government, in so far as the Government has transferred to him the power to implement this Law", and section 47(a) states that "the Government may confer on any of its members the power to implement this Law and to make regulations as to any matter relating to its implementation." Pursuant to the last section, the Government granted the Minister of Health the power to implement the provisions of the Second Chapter of the Law which also included the aforementioned section 5(a)(1) (see the notice of the Government of 4 February 1958, published in Yalkut HaPirsumim, No. 584 of 13 February 1958, p. 566). It should be noted that this power was also granted (inter alia) to the Minister of Agriculture and the Minister of Commerce and Industry (ibid.).

           

            (3) Section 3 restricts the exercise by a Minister of "his powers under this Law" to instances in which "he has reasonable grounds, for believing that it is necessary so to do for the maintenance of an essential activity or the prevention of profiteering". Section 1 defines the term "essential activity" as "any activity which a Minister regards as essential to the defence of the State, public security, the maintenance of regular supplies or regular services, the increase of exports, the intensification of production, the absorption of immigrants, or the rehabilitation of discharged soldiers or war invalids". In interpreting the provisions of the said section 3, this Court has said, per Berinson J., that the question which may arise in connection with this section "is only factual in two senses: first, whether the conditions listed therein actually exist, and second, whether the Minister gave thought to them and was satisfied that they existed before deciding to issue the order" (Chemo-Ta'as v. Minister of Commerce and Industry (1) at 300).

 

            (4) Finally, pursuant to section 2, the Law will apply "only during a period in which a state of emergency exists in the State by virtue of a declaration under section 9(a) of the Law and Administration Ordinance, 1948". No one disputes that such a state exists in the State to this day by virtue of such a declaration made long before the Law was enacted.

           

            The reasoning of the District Court judges by which they found that the Minister of Health exceeded his authority when he enacted the provision of paragraph 3 of the Order is, in summary, as follows:

           

            (a) The power granted the Minister in section 5(a) as above - including the power to regulate the matters mentioned in paragraph (1) - is tied to the state of emergency which prevails in the State and therefore to the fact of "irregular" life characteristic of such a period. The same thus holds true for the considerations which must lie behind his exercise of that power for purpose of maintaining an "essential activity"- that is to say, there must be a connection between them and such state of emergency.

 

            (b) As a result, to the extent that the sole objective of maintaining "an essential activity" is also valid in a period of peace and is necessary for purpose of improving that "regular" daily existence which typifies it, the exercise of the stated power has no place since it has no connection to the state of emergency.

           

            (c) In our case, it is readily apparent that only hygienic-sanitary considerations were behind the enactment of paragraph 3 of the Order. Since these considerations are inherent in an objective which also has its place in a period of peace - the objective of protecting public health - there is again no connection between it and the special state because of which the Minister of Health was granted the power under consideration. It follows that enactment of the said provision constituted a departure from the framework of the Law.

 

            (d) If we do not give the statutory provisions concerned such a limited interpretation, it would detract from the legislative power given to the sovereign legislature: the Knesset. On the other hand, such an interpretation does not empty of meaning the Minister of Health's powers in this area since, to the extent that health matters are bound up with the conditions of a state of emergency, he may take them into consideration when deciding whether the exercise of his power is necessary for maintaining "an essential activity" for which he sees a need.

           

            I will quote a few sections from the District Court judgment which reflect the substance of the above reasoning.

           

"It is true, indeed, that the state of emergency ... can include any period for which the Government finds this name appropriate, i.e., a state of affairs which is still so far from normal conditions of life and society that we are unprepared to recognize that we have already reached the peace and serenity of regular life ... but it is necessary for the Order under consideration ... to have some connection with some irregular state."

 

"The Law under consideration does not speak of health explicitly. It is clear that the matters designated therein, such as security and supply of services and so on, are interrelated. Many health matters can be connected to these, such as health installations for a possible state of emergency. It is no wonder that the Minister of Health received power for secondary legislation under the Law. That is not to say that all matters of daily health became a question of an essential service or of State security. On the other hand, the annulment of the Order does not at all mean that the powers of the Minister of Health under this Law will be void of content."

 

"In the present case the Minister exercised his powers for ordinary legislation against a background of regular life."

 

"The sanitary control of the transport of bread in the manner prescribed by the Order is, from a civilized perception of life, essential to a very regular style of life and without connection to any period of emergency. We need not decide whether this Order could have been issued as secondary legislation under the Public Health Ordinance or by means of licensing conditions under the Trades and Industries Ordinance... Possibly there is a need to amend the Laws under consideration. However, that is a matter to be brought before the Knesset, and the Minister of Health may not use special powers for that purpose."

 

"By a strict construction of the key words in the law, we protect the spirit of Knesset legislation."

 

            In my opinion, the foregoing reasoning suffers from one basic fallacy. I am ready to agree - for the purpose of this appeal - with the view that when the Minister is about to exercise his authority, he must be satisfied that it is necessary for maintaining an activity which is essential not only from the standpoint of one of the purposes mentioned in the definition of the Law (see supra) but also having regard to the state of emergency which prevails in the State. Yet, if these conditions obtain, it is illogical to say that since the activity in question could be regarded as essential for ensuring normal daily life in peacetime as well, it can no longer be so regarded during a state of emergency, and heaven forbid therefore that the Minister exercise the power granted him by law in order to maintain it. As Mr. Bach, Deputy State Attorney, argued, concern for ensuring a regular supply of water is essential to the population at all periods and times; for this reason alone, should not the activity necessary to regulate matters in this area be regarded as essential when such a state prevails? The answer begs itself.

           

            If indeed it is asked why the legislature restricted application of the Law - and, consequently the exercise of the powers mentioned therein - solely to a period of emergency such that when that ends the Minister is no longer authorized to exercise them even for purposes of maintaining activities which meet the "essential" requirement, the answer must be as follows: The Knesset saw need - in view of the existence in fact of a state of emergency in the State - to establish legislative machinery which could ensure that the essential matters with which the Law deals are regulated as far as possible in a manner which is both effective and speedy. Thus, it granted Ministers power of very broad scope to enact secondary legislation in the area concerned - power which it would not have been proper (so must our assumption be) to take from the sovereign legislature during a period of peace. The fact that the Knesset bestowed this legislative power only upon Ministers - as opposed to officials - is a sign that it was cognizant of the broad scope of the power but found it justified by the need to establish - having regard again to the essential objectives of concern to the State during a state of emergency - legislative machinery to serve those objectives in the manner most appropriate to the conditions of this state.

 

            If this explanation for the legislative objective is correct, then it can be understood why the application of the Law was restricted to a state of emergency period. However, the point is that such an explanation tends to deny value to the viewpoint which says that the grant of the legislative power under consideration was intended to ensure maintenance of an activity which is "essential" only during a period as aforesaid and therefore this requirement is not met if the activity is of such a nature also during peacetime.

           

            As will be recalled, under the definition in section 1 of the Law, the Minister may regard as "essential" an activity necessary "for the maintenance of regular supplies". Indeed it is difficult, if not impossible, to imagine an activity more essential than that required to ensure the regular supply of a commodity as important for residents - especially in a state of emergency - as bread. Surely it is clear that this specific objective also embraces the need to regulate that the transport of bread will be carried out under conditions guaranteeing that this commodity will reach residents-consumers in an edible form, and that not only that it should not be wasted but - and this is important - also that it is not injurious to public health. Otherwise, the supply of bread would be deficient and irregular. It follows that the Minister of Health lawfully enacted the provisions of paragraph 3 of the Order and did not then exceed in any manner the authority granted him by section 5(a)(1) of the Law.

           

            I find support for my opinion in the judgment in Gottlieb v. Minister of Commerce and Industry (2), to which our attention was drawn by the Deputy State Attorney. That case dealt with an order issued under section 5 of the Law, which imposed a prohibition on the use of "food colouring" in connection with the manufacture of sausages. One of the grounds for this prohibition was "to prevent the use of food additives which may be injurious to health" (at p.2183). It was argued by counsel for the applicant that this ground was unreasonable. The argument received the following reply from the President of the Court (Olshan J.):

 

'"Regular supply' is a very broad concept; first of all, it means concern for an adequate supply provided without interruptions in an orderly fashion. 'Regular supply' also means unadulterated supply, and this term is so broad that it even includes the grounds which, according to the applicant, brought about publication of the Order" (at p. 2184).

 

"The definition of the term 'regular supply' is very broad, and I have not heard sufficient reason from counsel for the applicant to arouse doubt in me that the Order under consideration exceeds the framework of the Law under which it was issued" (ibid.).

 

            If the ground of prevention of injury to public health was sufficient to allow the said prohibition as an essential activity necessary for maintaining an unadulterated supply of sausages, the same rule applies to the sanitary ground for the provision which is the subject matter of the present case and whose purpose is also to ensure an unadulterated supply of bread.

           

            In this court, Mr. Weins, counsel for the respondent, emphasized that he no longer supports the reasoning of the District Court. Yet, the truth is that most of the arguments raised before us are in the same vein but dressed up differently. I will therefore mention here only one argument which he raised and which possibly does not come within this description. The argument - if I understood Mr. Weins properly - is that in as far as the Minister of Health was granted the powers mentioned in the Second Chapter of the Law, he may exercise them only in respect of those matters which he would deal with by the nature of his function, that the concept "regular supply" implies economic objectives exclusively, such as concern the quality of the commodity in respect of which the arrangement of supply is in effect, regulation of its just distribution, ensuring that a reasonable price is fixed for it and like objectives, but that concern for regular supply (including the manner of transport) of bread - as opposed, for example, to concern for the regular supply of medical commodities - is thus not a matter of regulation for which the Minister of Health was granted the said powers.

 

            I cannot, accept this argument. As to the second part of the argument, it has already been explained above that the term "essential activity" means for us any activity necessary to ensure that the supply of commodities such as foodstuffs - including their manufacture and transport - is carried out in a manner which does not affect public health. If that is the case, then it is logical - and this is the answer, to the first part of the argument - that it is precisely for the Minister of Health to exercise the power granted him in the Second Chapter of the Law in order to achieve the said objective.

           

To avoid misunderstanding, I should add that, in my opinion, no legal importance attaches to the question of which Minister (among the Ministers authorized by the Government) exercises some of the powers of control mentioned in the Second Chapter, provided that his action comes within the framework of one of these powers and that the conditions of which section 3 speaks are met. Indeed, it is very possible that the Government acted as it did in this matter with the intention that the said Ministers share among themselves the exercise of those powers in accordance with the areas with which they are accustomed to deal; it is also not impossible that an arrangement in this spirit was made among them. Nevertheless, that has no significance from the standpoint of the Law and is of no concern to the court. Furthermore, it also cannot be assumed that it is possible to carve out boundaries, as aforesaid, for each and every matter. Thus, behind the prohibition which was the subject of the Order dealt with in Gottlieb (2) stood an economic in addition to the "health" consideration (at p.2183), and that Order was issued by the Minister of Commerce and Industry (Kovetz HaTakanot 5720, No. 994, p. 809). The comments of Cohen J. in Reisky v. Director-General of Ministry of Health (3) (at p. 1379) on which counsel for the appellant relied are irrelevant here. There the statutory provision in issue, granted exemption from import duty for motor vehicles built in such manner as to be "designed for medical rehabilitation" subject to the condition that they "were imported with the prior approval of the ... Director-General of the Ministry of Health". In light of the transparent purpose of this condition, one can with all respect agree with Cohen J. when he says that "the very authorization of the Director of the Ministry of Health in this regard proves that only considerations of health and medicine may be legitimate considerations before him". It is obvious that no analogy can be drawn from these comments to the various areas in respect of which the Ministers may exercise the broad powers granted them under the Law which is the subject of our consideration.

 

            My final conclusion thus is that the appeal should be allowed, the judgment of the District Court set aside, and the judgment (conviction and sentence) of the Magistrate's Court reinstated.

           

            Before concluding, I wish to make the following observation. For the purpose of my reasoning above, I have not taken into account one of the arguments of the Deputy State Attorney, that if it becomes clear that the declaration as to the existence of a state of emergency in the State still remains in effect, this Court should then not review whether a connection exists between this state and the exercise by the Minister of some of the powers concerned. I think, however, that whether or not a basis exists for this argument, it would be well for the Minister possessing the power to consider seriously whether the said state really requires the exercise thereof in this or-another concrete situation. I want to say that from a general standpoint I have a certain sympathy for the approach of the District Court even though I have tried to show that the Law makes it impossible to support it in the instant case. My sympathy stems from the fact that the state of emergency has existed by virtue of the aforesaid declaration for more than fifteen years; and even though far be it from me to give a hand to creating an atmosphere of serenity as to the state of security and the economy of the country at the present time, it is also true that it is difficult over such a long period to have citizens maintain the feeling of "tension" usually inherent in the existence of the aforesaid state as regards each and every matter. Therefore, it is desirable that those matters requiring regulation without any connection to the dangers stemming from the state of emergency should be regulated by ordinary legislation of the Knesset which is not necessarily intended for a state of emergency even if, as to one matter or the other, the sovereign legislature comes to realize that it is better to transfer the power to enact secondary legislation to the executive authority, and then prescribes such a solution by law. It is to these matters that my comments are directed, because in respect thereto it would be well for the Ministers to exercise sparingly the broad and drastic powers granted them in the Control Law. (A violation of the provision of the Order in question - as any violation of a provision prescribed by regulation or order enacted under the Control Law - constitutes a felony carrying a maximum penalty of seven years imprisonment.) In this connection, the words of the learned C.K. Allen (in his book, Law and Orders, second edition, p. 66) are worthy of note, that as regards the exercise in England of comparable powers, the history of the years following the World War are evidence of the phenomenon that -

 

"Government by decree, once made, is extremely difficult to unmake, and that 'emergency', once it has taken hold, is a very tough plant to uproot".

 

And before this, at p. 54:

 

"It is part of the democratic process, even during war, to be vigilant that emergency expedients do not exceed the real necessities of the situation, as, from their very nature, they always tend to do."

 

            It should be noted that my comments are not to be regarded as prescribing any rule, and the conclusion should not be drawn from them that Ministers have in the past been excessive in the exercise of the legislative power under consideration. (Cf. Prof. H. Klinghoffer's comments in similar connection in the Jubilee Book for Pinhas Rozen, p. 118) I have only intended to warn against a possible orientation in the future not to remain faithful to the principle of the rule of law.

           

SUSSMAN J.             I concur.

HALEVI J.                  I concur.

 

            Appeal allowed.

            Judgment given on October 1, 1963.

HCJ 1074/93

1.       Attorney-General

2.       Bezeq, the Israel Telecommunication Corporation Ltd

v.

1.       National Labour Court, Jerusalem

2.       General Federation of Labour in Israel

3.       Bezeq Employees’ Joint Representation

4.       All Bezeq Employees

 

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

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

 

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

 

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

 

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

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

 

Petition granted.

 

Basic Laws cited:

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

 

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

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

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

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

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Labour Court cases cited:

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

[19]    NLC 52/4-3 (unreported).

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

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

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

 

English cases cited:

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

 

Dutch cases cited:

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

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

 

Finnish cases cited:

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

 

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

For the second petitioner — S. Bechor.

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

For respondents 3-4 — A. Feingold.

 

 

JUDGMENT

 

 

Justice D. Levin

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

The facts relevant to the case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The judgment of the Regional Labour Court

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

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

The appeal to the National Labour Court

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

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

The judgment of the National Labour Court

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

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

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

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

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

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

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

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

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

The main arguments of the petitioners

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

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

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

The main arguments of the respondents

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

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

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

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

Preliminary arguments

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

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

The two arguments should be rejected.

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

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

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

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

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

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

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

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

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

The freedom to strike

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            The political strike — classification and status

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

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

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

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

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

Comparative law — conceptual distinctions

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

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

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

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

            A strike and a quasi-political strike

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

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

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

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

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

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

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

From the general to the particular

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

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

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

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

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

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

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

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

(2) …

(3) …’

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

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

(a) Sympathy strikes…

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

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

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

 

 

Justice M. Cheshin

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

First point: classification

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

Justice Ts. E. Tal:

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

 

 

Petition granted.

10 Nissan 5755.

10 April 1995.

 

 

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

[†]           Ibid., at p. 377.

[‡]           Ibid., at pp. 378-379.

[§]           Ibid., at p. 386.

[**]         IsrLC 25 367.

[††]         Ibid., at p. 376.

[‡‡]         IsrLC 25 367.

[§§]         Ibid., at p. 390.

HCJ 358/88

           

The Association for Civil Rights in Israel and others

v.

The Central District Commander and Another

 

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[July 30, 1989]

Before  Shamgar P., Elon D.P., and Wallenstein, J.

 

 

Editor's Synopsis -

            Regulation 119 of the Defence (Emergency) Regulations 1945 authorizes a Military Commander to order the forfeiture and destruction or sealing of any house from which gun fire has issued or explosive or incendiary material was thrown unlawfully, and of any house in an area or village residents of which violated the Emergency Regulations involving violence or intimidation. These regulations, including the said Regulation 119, were promulgated by the British Mandate during the period of its rule in Palestine.

           

            Regulation 119 continues to be in force in Israel by virtue of section 11 of the Law and Administration Ordinance enacted by Israel upon its establishment in 1948, which provide in essence that the law that was in force on the eve of the establishment of the State shall continue to be in force until abolished or amended by a law enacted by the Israeli Knesset. The Regulation also continues to be in force in Jordan by virtue of similar legislation there. Therefore, it is part of the local law that was in force in Judea and Samaria when those areas were occupied by the Israel Defense Forces during the Six Day War in 1967, and under international law it continues to be the law in force in the occupied territories. No substantive change has been made in the law in Gaza since the Mandate and Regulation 119 continues in force there as well.

           

            This Petition concerns the procedures applicable when a Military Commander issues an order to demolish a house pursuant to Regulation 119, more particularly, whether the owner or occupants of a house affected by such an order should have the right to a brief delay in its implementation, during which time they can present their objections thereto before the Commander who issued the order, consult with legal counsel and, if they wish, raise their claims by petition before the High Court of Justice. The Court issued an order directing the Respondents to show cause why they should not allow the Petitioners the rights claimed.

           

            The Petitioners argued that the right to present one's claims is a fundamental right of natural justice that has legal force even if it is not set forth expressly in the Regulations at issue. This right is especially important in the case of the Regulation at hand, since the destruction of the property is irreversible. Destruction of the property is a severe sanction, whose very severity requires that an opportunity be allowed to present one's claims before the Regional Military Commander and, if need be, before the Court.

           

            The Respondents asserted that, in practice, it is generally possible for a party affected by such an order to present his claims before the Military Commander who issued the order and that implementation of the order will ordinarily be postponed to enable the affected party to petition the High Court of Justice, if he wishes to do so. But, they contended, there are occasional instances of "severe and exceptional cases" in which it is essential that the powers granted by Regulation 119 be enforced promptly after the event because of which the order was issued, in order to achieve the desired deterrent effect. Such cases consist of incidents involving lethal injury or grievous wounding and the throwing of incendiary bottles. The Respondents objected to a broad ruling that would require a delay in implementing the order in all cases, such as was sought by the Petitioners.

           

            The Court accepted the Petition and issued a rule absolute in the Petitioner's favor to the effect that -

           

1.  Except for matters involving ongoing military-operational needs, such as, for example, the need to clear away an obstacle or overcome resistance that prevents taking prompt military action in response to an attack on military forces or on civilians, an order issued under Regulation l19 should include a notice that the person affected by the order may select an advocate and present his claims before the Military Commander, within a fixed time period set forth therein, before the order is implemented, and that he will be given an additional fixed period to apply to the High Court of Justice;

 

2.     The State may apply to the Court, in an appropriate case, and request that the hearing of the matter be given preference;

 

3.     In urgent situations, the premises can be sealed on the spot before the appeal or hearing takes place. The sealing of the premises, as distinguished from their destruction, is not irreversible.

 

            In reaching its decision, the Court noted, inter alia, that international law does not recognize any right to present one's claims under a regime of military law, as the Petitioners seek in this case. However, Israeli military authorities who function in the occupied territories do so under a dual and cumulative standard. In addition to their duty to abide by the Laws of War, as Israeli officials in the Area, they must also act in accordance with the norms of Israeli administrative law. As such, an Israeli official does not fulfil his duty merely by satisfying the norms of international law, but he must also act in accordance with the rules of Israeli administrative law that define what constitutes a fair and ordely administration. The right to be heard is not a part of the Laws of War, but an Israeli authority will not fulfil its duty if it does not respect that right.

 

Israel Supreme Court Cases Cited:

 

[1] H.C. 897/86 jabar v. The Central District Commander, 41(2) P.D. 522.

[2] H.C. 513, 514/85 Nizal v. The Commander of the I.D.F. Forces in the Judea and Samaria Region, 39(3) P.D. 345.

[3] H.C. 434/79 Schoweel v. The Regional Commander of Judea and Samaria, 34(1) P.D. 464.

[4] H.C. 22/81 Chamad v. The Regional Commander of Judea and Samaria, 35(3) P.D. 223.

[5] H.C. 274/82 Chamamra v. The Minister of Defence, 31(2) P.D. 755.

[6] H.C. 69, 493/81 Abu Aita v. The Regional Commander of Judea and Samaria, 37(2) P.D. 197.

[7] H.C. 619/78 "Al Tliyah" Weekly v. The Minister of Defence, 33(3) P.D. 505.

[8] H.C. 331/71 Almakdesah v. The Minister of Defence, 26(1) P.D. 574.

[9] H.C. 361/82 Chamri v. The Regional Commander of Judea and Samaria, 36(3) P.D. 439.

 

American Cases Cited:

 

[10] Hirabayashi v. United States 320 U.S. 81 (1954).

[11] Korematsu v. United States 319 U.S. 432 (1944).

[12] Calero-Toledo v. Pearson Yacht Leasings Co. 94 S. Ct. 2080 (1974).

 

 

JUDGMENT

 

            SHAMGAR P.: 1. This petition concerns the introduction of fixed and general appellate procedures to apply in Judea, Samaria, and the Gaza Strip, following the issuance of an order pursuant to Regulation 119 of the Defence (Emergency) Regulations, 1945, with regard to the demolition or sealing of a building or part thereof.

 

            Based on the petition, this Court issued an order nisi, instructing the Respondents to appear and explain:

           

            "A. Why they should not permit a resident of a house, as to which an order of demolition or sealing will be issued pursuant to Regulation 119 of the Defence (Emergency) Regulations, 1945, to present his claims before the competent authority prior to the implementation of the order.

 

B. Why they should not allow such resident a delay of 48 hours from the denial of consent to his application, or of a longer period of time as may be determined by this Court, to submit a petition to this Court, if he should so desire, prior to the implementation of the order.

 

C. Why they should not permit such a resident to establish immediate contact with a lawyer, if he should so desire.

 

D. Why they should not notify such a resident that he has these rights."

 

            2. The aforementioned Regulation 119 of the Defence (Emergency) Regulations was promulgated by the High Commissioner in the year 1945, during the time of British rule over all the territories which today include the State of Israel and the areas occupied by her. This is the text of the regulation:

           

            "FORFEITURE AND DEMOLITION OF PROPERTY, ETC.

           

119. (1) A Military Commander may by order direct the forfeiture to the Government of Israel of any house, structure, or land from which he has reason to suspect that any firearm has been illegally discharged, or any bomb, grenade or explosive or incendiary article illegally thrown, detonated, exploded or otherwise discharged, or of any house, structure or land situated in any area, town, village, quarter or street, the inhabitants or some of the inhabitants of which he is satisfied have committed, or attempted to commit, or abetted the commission of, or been accessories after the fact to the commission of, any offence against these Regulations involving violence or intimidation or any Military Court offence; and when any house, structure or land is forfeited as aforesaid, the Military Commander may destroy the house or the structure or anything growing on the land. Where any house, structure or land has been forfeited by order of a Military Commander as above, the Defence Minister may at any time by order remit the forfeiture in whole or in part and thereupon, to the extent of such remission, the ownership of the house, structure or land and all interests or easements in or over the house, structure or land shall revest in the persons who would have been entitled to the same if the order of forfeiture had not been made and all charges on the house, structure or land shall revive for the benefit of the persons who would have been entitled thereto if the order of forfeiture had not been made.

 

(2) Members of the Government Forces or of the Police Force, acting under the authority of the Military Commander may seize and occupy, without compensation, any property in any such area, town, village, quarter or street as is referred to in subregulation (l), after eviction without compensation, of the previous occupiers, if any." (Emphasis added - M.S.)

 

            The Regulation continues to be in force in Israel by virtue of the provisions regarding the continuity of the law, as stated in paragraph 11 of the Law and Administration Ordinance, 5708-1948.

           

            It continues to apply in Judea and Samaria by virtue of similar provisions regarding the continuity of the local law, which were enacted by the Jordanian government.

           

            In H.C. 897/86 [1], we stated in this regard, at pp. 525-526:

           

"... Regulation l19 is part of the law which was in force in Judea and Samaria just before the establishment there of I.D.F. rule.... The local law remained in force, with exceptions not related to the matter before us, in accordance with the principles of public international law, as set forth also in the Law and Administration Proclamation (Judea and Samaria) (No. 2), 5727-1967 of the Regional Commander of I.D.F. Forces (see Regulation 43 of the 1907 Hague Regulations and Article 64 of the Fourth Geneva Convention). Hence, the authority granted by the said Regulation ll9 is local law that exists and applies in the area of Judea and Samaria, that was not abolished during the previous regime or the Military Rule, and no legal reasons have been brought before us, on the basis of which it should be deemed abolished now."

 

            With regard to the continuing force of the above-mentioned Defence (Emergency) Regulations in Judea and Samaria, see also H.C. 513, 514/85 [2], at p. 650; as to the validity of Regulation 119, see also, inter alia, H.C. 434/79 [3], at p. 466; H.C. 22/81 [4], at p. 224; H.C. 274/82 [5], at p. 756.

           

            No substantive change in the local law has occurred in the Gaza Strip since the period of the Mandate, so no claim has ever been raised against the continuing validity of the above-noted Defence (Emergency) Regulations in general, and of Regulation 119 in particular, there.

           

            3. The Petitioners claim that the owners of the building or those who reside in it, as to which an order pursuant to Regulation  119 is about to be implemented, should be permitted to present objections to the Regional Commander who issued the order. Thereby, the right to present one's claim will be given expression prior to implementation of the order, so that one who is affected by the matter can try to persuade the Regional Commander that the order should not be issued in the circumstances. As requested by the Petition before us, if the Regional Commander declines to rescind his decision, there should be an additional delay in implementing the order for 48 hours or more, as will be determined, so as to permit application to the High Court of Justice prior to implementation of the order. Thus the right to present one's claim will find its expression before the property of those affected in the matter is damaged. According to the Petitioners, the right to present one's claim is a right rooted in Israeli law, available to every person in judicial, quasi-judicial and even administrative proceedings. They assert:

 

"The principle accepted in Israel is that when legislation grants a government authority the power to take a decision that injures a citizen, the principles of natural justice apply without the need that they be enacted expressly. These principles do not apply only when there exists an explicit and clear legislative provision that negates their applicability. Legislative silence should not be interpreted as a negative regulation, when it comes to the applicability of principles of natural justice, and its express recognition in the one case does not imply its rejection in others."

 

            In the Petitioners' opinion, the emergency situation does not abolish the existence of the right as stated, and the power applied pursuant to emergency regulations - including both those who source is Mandatory legislation as well as those whose basis is paragraph 9 of the Law and Administration Ordinance - does not limit the described right. In their words:

           

"The essence of Regulation 119, which grants power to inflict extreme and severe punishment, does not suggest the negation of principles of natural justice. On the contrary. The more extreme the authority, and the more severe the injury to the citizen's rights, the more it is necessary to adhere strictly to the procedural protections given to the person who is likely to be hurt, including his right to have his claim heard."

 

            They further contend that the negation or postponement of the right to present their claim can be justified only to prevent serious danger or the complete frustration of government action. An example of circumstances of the first type is the hospitalization of a person against his will if he is liable to hurt himself or another, or the destruction of a dangerous article. Also, a security operation, such as the destruction of a building for immediate-operational reasons to prevent it from being used as a hiding place for terrorists, can justify a departure from the right to present one's claim. An example of the second array of circumstances is the issuance of an order barring departure from the country or the seizure of an item which may be removed beyond control; even then, two cumulative conditions must be satisfied, that the action taken is reversible (a bar against leaving the country can be cancelled), and that the right to be heard will be granted immediately after the action is taken.

 

            The sanction pursuant to Regulation 119 is severe, and the demolition is irreversible. The claim is that the Respondents' opposition to permitting a delay in enforcement of the order for the purpose of presenting their objection is intended primarily, according to the Petitioners, to prevent application to the High Court of Justice, because in this forum, the question whether the issuance of the order was weighed pursuant to standards formulated in this Court will be put to test, including whether there is an adequate factual basis for the exercise of the authority. Without hearing the claim by the owner of the building, there is no opportunity for suitable weighing and examination of the facts by the competent authority:

           

"When an order is issued immediately after a horrible terrorist episode or a serious incident (such as the Baita Incident), the Military Commander is liable to reach his decision as a result of his and the public's emotional reaction, and sometimes even before the facts of the incident are thoroughly clarified. The Commander must act from logical and relevant considerations. He must not operate - and the public must not fear that he operates - out of anger, haste or a public atmosphere that demands revenge. A reasonable pause and listening to the affected party are the best assurances for making a reasoned decision".

 

            According to the Petitioners, there is no proof that speed of action helps bring about deterrence, and, even if the matter were so, it would not justify making an exception to the principles of natural justice.

           

            4. The Respondents claim that, in reality, it is generally possible for the affected party, against whose property an order of demolition or sealing has been issued pursuant to Regulation 119, to present objections to the Regional Commander even though Regulation 119 in particular and the local law in general do not contain provisions allowing objections or appeal before a judicial authority. In other words, according to the Respondents' answer, it is the practice today, in many cases, to delay the implementation of an order if the affected party wishes to petition to the High Court of Justice concerning the issuance of the order after rejection of his application to the Regional Commander.

 

            As stated in the Respondents' answer, the Regional Commander's work practices contain directives to provide the affected party an opportunity to set forth his claims during the time period necessary for gathering the facts and reaching a decision, except in serious and exceptional cases, subject to such limitations as will ensure that this will not frustrate the primary goal, which is to exercise the authority without particular delays so as to fulfil the Military Commander's obligations and rights to protect public law and order in the area.

           

            These matters, according to the Respondents, are a consequence of the policy that seeks to apply the general principles of law, as far as possible, even in times of emergency and in conditions of emergency; but this is to be done in such a way as to preserve the required balance between the principles mentioned and safeguarding security needs and the public order in the area, as changing conditions require from time to time.

           

            The Respondents further explained in their Response the background for their opposition to the Petitioners' request that a delay be allowed in every case to raise an objection and apply to a court before the excercise of the said authority based on Regulation 119; and thus it is said, inter alia, in the words of the Response:

           

          "Regulation 119, by its very nature, grants the Military Commander the authority to apply the sanctions specified therein at varying levels of severity, beginning with forfeiture, partial or complete sealing, and ending with forfeiture and demolition of the structure.

           

          The more severe the implemented sanction, the greater is the corresponding deterrent effect.

 

Alongside the severity of the sanction and its level, it is of the greatest importance that it be implemented quickly and immediately after the criminal act, because of which it was taken in the first place.

 

An immediate response in executing the sanction is of the greatest importance, particularly in serious and exceptional events, in which demolition of the building urgently and immediately - as distinguished from sealing it - will have the greatest deterrent effect.

 

I wish to reassert once again that the defence establishment is cognizant of the extreme seriousness of the destruction of a house without providing a prior right to assert claims, but this sanction will be applied only in serious and exceptional cases, that result in a lethal injury or grievous wounding, and against those who throw incendiary bottles and are caught within a short and reasonable time thereafter."

 

            In a notice from the State Attorney, detail is given of the lines of action approved by the Minister of Defence, pursuant to which the Respondents will operate from now on. The statement reads:

           

"(A) Except in severe and exceptional cases, notice is to be given to the residents of the house concerning the possibility to present their contentions before the Military Commander, before the excercise of the authority under Regulation 119 of the Defence Regulations. Afterwards, if they should so desire, they are to be given additional time to submit their contentions to the honorable Court, before the implementation of the order.

 

(B) 'Severe and exceptional cases' will be deemed particularly serious events that result in lethal injury or grievous wounding.

 

(C) Also, the residents of the house will not be given the opportunity to raise their claims prior to implementation of the order, in situations requiring, in the Military Commander's opinion, a quick deterrent response, shortly and within a reasonable period of time after the event.

 

Such situations occur today in cases of the throwing of incendiary bottles.

 

(D) Residents of the building are not to be prevented from contacting a lawyer, if they so desire."

 

            In the course of the hearing, the Court raised a proposal, according to which, if there is an intention to seize the house, it would be possible to seize the house and seal it before hearing the residents' claim, but the act of demolishing the house would not be taken until after the right to present the claims has been allowed, pursuant to the usual time periods. The Petitioner's learned counsel, Advocate Shoffman, agreed to the said proposal.

           

            The Minister of Defence's response to the Court's said proposal was presented in a notice from the State Attorney's Office, which stated:

           

"After the Minister of Defence consulted with various security officials, including the Respondents, and after he considered the Court's proposal and examined it, and giving consideration to the current circumstances and situation, the Minister of Defence cannot accept the honorable Court's proposal, at this time".

 

            Nevertheless, the Respondents once again confirmed that they will adhere to the arrangement whose salient points were quoted above.

           

            We will now examine the litigants' claims.

           

            5. According to the Law and Administration Proclamation (Judea and Samaria) (No. 2), 5727-1967, the law which was in force in the Gaza Strip and the Judea and Samaria area on the 27th of Iyar 5727 - June 6, 1967, or the 28th of Iyar 5727 - June 7, 1967, respectively, will continue and remain in force, insofar as there is nothing therein that contradicts the above-mentioned Proclamation or any Proclamation or Order which will be issued by the Commander of I.D.F. forces in the area, and subject to such modifications as may result from the establishment of I.D.F. rule in the area. The Proclamation expresses public international law principles, as they are also set forth, inter alia, in Regulation 43 to the Supplement to the 1907 Hague Regulations regarding the Law and Customs of War On Land (hereinafter - the Hague Regulations) and in Article 64 to the Geneva Convention Relative To The Protection of Civilians in Time of War, 1949 (hereinafter - the Fourth Geneva Convention).

 

            When applying principles of public international law, the Regional Commander operates according to guidelines that are derived from the basic conceptions of administrative law practiced in Israel. We said in H.C. 69, 493/81 [6], at pp. 231-232:

           

"...[T]he Court reviews the legality and validity of the action in accordance with the principles of Israeli administrative law, to ascertain whether the official who carries out functions of the Military Government, acts lawfully and according to the norms binding on an Israeli public servant. More particularly, this does not mean that Israeli administrative law applies to the Region and its inhabitants or that the legality of an act in the Administered Territory will be examined according to Israeli law only. The above dictum means that the legality and validity of actions of the Military Government and its authorities, as arms of the Israeli Executive, will be tested by additional criteria. True, the rules of Israeli law have not been applied to the Area, but an Israeli official in the Area brings with him to his functions the duty to act in accordance with those additional standards that are demanded by reason of his being an Israeli authority, wherever he may be. In this regard he bears an additional and cumulative duty, because the duty to conduct himself according to the norms of Israeli administrative law does not release him from the duty to abide by the Laws of War. Therefore, he cannot rely on norms of the Israeli administrative law to refrain from fulfilling a duty or honoring a prohibition that applies to him as is customary under the Laws of War. But, from this Court's perspective, an official does not generally fulfil his duty by merely doing what the norms of international law require of him, since more is demanded of him as an Israeli authority, namely, that he act in the Military Government Area in accordance with the rules that define fair and orderly administration. For example, the Laws of War do not contain any firmly established rule - or even a developing rule - about the right to be heard, but an Israeli authority will not discharge its duty, when its acts are judicially reviewed by this Court, if it does not respect this right in those cases in which the norms of our own administrative law require that it be granted. All this is obviously subject to specific legislation prescribing special regulations in any particular matter. It was to this that the following remarks describing the two-level Israeli conception were directed:

 

'From the normative point of view the rule of law in the territories found its expression in the adoption of two main principles of action:

 

(1) the prevention of the development of a legal vacuum by the de facto observance of customary international law and the humanitarian rules included in the Hague Rules and the Fourth Convention and furthermore;

 

(2) the supplementation of the above-mentioned rules and provisions by the basic principles of natural justice as derived from the system of law existing in Israel, reflecting similar principles developed in western democracies.

 

(M. Shamgar, Legal Concepts and Problems of Israeli Military Government, supra at 48-49)'"

 

In H.C. 619/78 [7], at pp. 511-512, it was indicated that -

 

"From the facts and the claims which are before us, it appears that the Israeli Military Government did not exercise its above-stated authority, granted it under international law, to the fullest extent and severity, but rather sought to limit itself, as much as possible, to those means which are absolutely essential for the preservation of public safety and peace, while giving expression, in practice and in theory, to the tendency to go beyond the rule of law in the formal sense of this phrase and adopt our conception of the rule of law in its substantive meaning ..." (Emphasis added - M.S.).

 

            In other words, the Israeli regime took a more moderate approach, in various areas, than that permitted according to the principles of international law. Thus, for example, the more extreme approach with regard to its consequences for individual rights, as expressed for example in the circumstances described in the decisions of the United States Supreme Court in Hirabayashi v. United States (1943) [1O] and Korematsu v. United States (1944) [11], was not taken.

           

            The above noted H.C. 619/78 [7], added, at p. 512:

           

          "The Respondents' exercise of authority will be tested by the same standards that this Court applies when it reviews the actions or omissions of any other arm of the executive, taking into consideration of course the Respondents' obligations as they are defined from the nature of their functions, as described above."

 

This means, in defining the obligations of Military Commanders, and when the Court reviews government actions, the Court is guided by the rules of administrative law, which always include, of course, reference to the scope, the character and the substance of the powers and the duties of the public servant whose actions are being examined by the Court.

                                                                                                

A derivative question arises at this point, namely, how do the rules of administrative law integrate themselves within the operation of local law. Do the above statements mean that the provisions of the local law, too, are altered automatically, being subordinated to the rules of Israeli administrative law? Such a sweeping answer must be rejected because, for example, we cannot hold that every local provision of law that grants authority to act to any government authority, incorporates by itself, without supplementary defense legislation, the relevant norm of Israeli administrative law. This approach is not in accord with the principles of public international law, that the local law may only be amended explicitly, on the basis of security legislation within the bounds created by international law (see Regulation 43 to the Hague Regulations and Article 64 to the Fourth Geneva Convention cited above, and see also H.C. 331/71 [8], and H.C. 493, 69/81 [6], referred to above.

 

To summarize this point: the topic under consideration must be dealt with at all times according to the context, nature and implications of the local law. The primary guideline in a case such as this is that a change in the local law provisions can only derive from legislative directive, which in the area of Military Government finds its sole expression in the security legislation (see, for example, Order Concerning the Cancellation of the Boycott Laws Against Israel (Judea and Samaria) (No. 71), 5727-1967, and Order Concerning Local Courts (Death Penalty) (Judea and Samaria) (No. 268), 5728-1968).

                                                                                                

And yet, it is also necessary to examine each subject according to the substance of the directive or the guideline which it is sought to engraft as an additional layer on the existing local law. Therefore, if the Regional Commander establishes for himself internal rules of action, by virtue of which he abstains from excercising a certain power in its fullest severity, and establishes for himself a more liberal rule of action that does not harm individual rights, the matter may be expressed in internal working procedures alone, even without legislation.

                                                                                                

6. The Regional Commander bears responsibility for the public security and order in the area which he commands. In the framework of his obligations he must also protect the safety of the I.D.F. forces and public administration officials and maintain lines of transportation (see Article 64 to the Fourth Geneva Convention, noted above). He must ensure, as necessary, the appropriate and effective operation of the penal laws and prevent crime and anarchy. A resident of the territory who commits an act of violence against the armed forces commits a crime and it is expected that he will be brought to judgment according to the law and that every possible sanction within the local law or according to the security legislation will be taken against him (see also Sir H. Lauterpacht, The Law of War on Land, Part III of the Manual of Military Law (London, 1958) 35-36.

  The prevention of acts of violence is a condition for the establishment of public safety and order. There is no security without enforcement of the law, and law enforcement will not be successful and will not be effective if it does not also have a deterrent influence. The range of steps taken to enforce the law is in all cases related to the seriousness of the offense, to its frequency and to the nature of the offense committed. If, for example, there is a proliferation of murders of people because of their contacts with the Military Government, or if attacks are made which are intended to bum people or property so as to sow terror and fear, stricter and more frequent enforcement of the law is required. These things are true in every location, and the Military Government territory is not exceptional in this regard; to the contrary, the establishment of order and security and its preservation in practice are, according to public international law, among the central tasks of the Military Government.

                                                                                                

Regulation 119 cited above is among the lawful sanctions applicable according to the local law, and the excercise of its powers is given, of course, to the discretion of the military authority that commands the territory and whose tasks were defined above.

                                                                                                

This discretion is subject to judicial review, just as that of all other administrative authorities, and we have already referred to our statement on this matter in H.C. 619/78 [7] supra (see also H.C. 274/82 [5] supra). Judicial oversight examines whether the discretion was excercised lawfully. And in this connection, attention is also paid to the question whether the decision was properly considered and examined and, inter alia, whether the enforcement of the regulation and the level of its enforcement are commensurate with the seriousness of the act for which it is sought to be applied, pursuant to the examination according to these standards.

                                                                                                

Thus it was said, for example, in H.C. 361/82 [9], at p. 444, that:

           

"The Military Commander's judgment, that the circumstances of the matter before him demand forceful action, which can be a deterrent, and protect thereby security and order, is a consideration that, in the circumstances of the matter before us, falls within the framework of the lawful considerations that the Military Commander is permitted to weigh."

 

            7. The Respondents do not dispute that there are circumstances - and until now these were apparently the majority of instances - in which, even in their opinion, there is no reason not to permit the making of objections (within a fixed time) before the person who issues the order, and also to allow the possibility of postponing its implementation for an additional fixed time (48 hours were mentioned), during which it will be possible to present a petition to this Court requesting the exercise of judicial review over the administrative decision. It is unnecessary to add that it is possible that an interlocutory order will be given, as a result of the application to the Court, and additional time will pass until the actual decision will be given.

           

            However, it is argued, there are situations whose circumstances require on the spot action, and in which it is not possible to delay the implementation of the action until the said periods have passed.

           

            Demolition of a building is, everyone agrees, a harsh and severe means of punishment, and its deterrent power does not diminish its described nature. One of its central characteristics is that it is irreversible, that is, it cannot be corrected after the act; a hearing after implementation of the order is always very limited from the point of view of its practical meaning. According to our legal conceptions, it is, therefore, important that the interested party be able to present his objections before the Commander prior to the destruction, to apprise him of facts and considerations of which perhaps he was unaware.

           

            This Court considers that the existence of fair hearing rules in a matter involving a person, is expressed, inter alia, in that one who anticipates severe harm to his person or property shall be given advance notice and be granted an opportunity to raise his objections in the matter. This rule applies also when the law permits an act on the scene, such as immediate forfeiture of property (which is permitted in certain circumstances, for example according to the United States decisions, even when the property owner was not involved in committing the offense because of which the property is forfeited. See: Calero-Toledo v. Pearson Yacht Leasings Co. (1974) [12]).

           

            8. Certainly there are military-operational circumstances, in which the conditions of time and place or the nature of the circumstances are inconsistent with judicial review; for example, when a military unit is engaged in an operational action, in which it must clear away an obstacle or overcome resistance or respond on the spot to an attack on army forces or on civilians which occurred at the time, or similar circumstances, in which the authorized military authority sees an operational need for immediate action. By the very nature of the matter, in circumstances such as these there is no place for delay in the military action, whose performance is required on the spot.

 

            9. In my opinion, ways should be found to maintain the right to present one's claim before implementation of a decision which is not among the types of situations dealt with in paragraph 8.

           

            This Court, when sitting as the High Court of Justice, has not closed its gates to complaints and appeals of She inhabitants of Judea, Samaria and Gaza since the establishment of military rule in June 1967, and has dealt with them according to the same standard we apply to anyone who presents his matters before us. There is no legal or other justification, particulary in a matter whose consequences are irreversible after the act, for us to raise the threshhold and refuse to listen to claims against the acts of the administration.

           

            The legitimate and proper balance between the need to act in a quick and effective manner and the grant of opportunity to present one's objection to the Commander or by petition to this Court must and can find its expression in the right of preference, which the court can grant in urgent situations, as it has done, more than once, in varied and different situations, if such a request comes to it from an interested party.

           

            In other words, the military practice can allow a fixed delay for application to a lawyer, to the Regional Commander or to this Court, in that order, and upon request the Court may, according to its discretion, grant priority for clarification of matters such as this.

           

            Furthermore, if on-the-spot action is required, it is sufficient to take action which is reversible, such as eviction and sealing, and to delay the matter of demolition until after the judicial decision.

           

            In other words, I see room to distinguish between sealing and demolition. The first may be done on the spot, if circumstances require this. Before taking action of the second type (demolition), time is to be given to assert one's claims by way of objection or of petition, as the case may be.

 

            In summation:

           

            (A) I think that, except for matters involving military-operational needs as set forth in paragraph 8, it would be appropriate that an order issued under Regulation 119 should include a notice to the effect that the person to whom the order is directed may select a lawyer and address the Military Commander before implementation of the order, within a fixed time period set forth therein, and that, if he so desires, he will be given additional time after that, also fixed, to apply to this Court before the order will be implemented.

           

            (B) Of course, the State may apply to this Court, in an appropriate case, and request that the hearing in a petition of this type be granted a right of preference.

           

            (C) In urgent situations, the premises can be sealed on the spot, as distinguished from demolition, which is, as stated, irreversible, before the appeal or hearing of the Petition takes place. In the case of an on-the-spot sealing, as stated, notice is to be given to the affected party, clarifying that the right of objection or submitting a petition remains available.

           

            This is the absolute order I propose in this situation.

           

            ELON D.P.: I concur.

           

            WALLENSTEIN J.: I concur.

           

            Decided as stated in the President's decision.

           

            Judgment given today, the 27th of Tammuz 5749 (July 30, 1989).