Constitutional Law

 

 

HCJ 3914/92

 

Petitioners: 1. Leah Lev

                  2. Liron Lev, Minor

                  3. Ido Lev, Minor

                  4. Roi Lev, Minor

                                                                        v.

 

1. Tel-Aviv-Jaffa Rabbinical Court
2. Supreme Rabbinical Court of Appeals
3. Ran Lev

 

In the Supreme Court sitting as the High Court of Justice

[February 10, 1994]

Before Deputy President A. Barak and Justices S. Levin and D. Levin

 

 

 

 

[1]   CA 26/51 Kotik v. Wolfson, IsrSC 8, 1341

[2]   CA 99/63 Peleg et al. v. Attorney General, IsrSC 17, 1122

[3]   HCJ 136/54 Pollack v. Herzog et al., IsrSC 9, 155

[4]  HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court  et al., IsrSC 15, 106

[5]   HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals et al., IsrSC 40(3) 699

[6]   HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court et al., IsrSC 48(3) 203

[7]   ST 1/60 Winter v. Beeri, IsrSC 15, 1457

[8]   CrimA 230/56, 4/57 Shorer v. Attorney General, IsrSC 11, 750

[9]   FH 22/73 Ben Shahar v. Mahlev, IsrSC 28(2) 89

[10] HCJ 547/84 Of Ha’emek, Registered Agricultural Cooperative Association v. Ramat Yishai Local Council et al., IsrSC 40(1) 113

[11] MApp 613/82 State of Israel v. Awad, IsrSC 36(3) 612

[12] HCJ 991/91 David Pasternak Ltd. et al. v. Minister of Construction and Housing et al., IsrSC 48(5) 50

[13] HCJ 355, 370, 373, 391/79 Katalan et al. v. Prisons Service et al. IsrSC 34(3) 294 [http://versa.cardozo.yu.edu/opinions/katlan-v-prison-service]

[14] HCJ 14/51 Attorney General v. Editor of “Davar” et al., IsrSC 8, 1017

[15] BAA 663, 691, 5145/90 A. v. Israel Bar Association District Committee of Tel Aviv – Jaffa, IsrSC 47(3) 397

[16] MApp 678/82 Tayar v. State of Israel, IsrSC 36(3) 386

[17] CA 703/70 Somech v. Ozer et al., IsrSC 24(2) 799

[18] CA 230/69 Kaneti v. United Shvili Film et al., IsrSC 23(1) 505

[19] LA 451/85 Adin Marketing Company Ltd. v. Flatto Sharon, IsrSC 39(3) 303

[20] CA 548/78 A. et al. v. B., IsrSC 38(1) 736

[21] LCA 26/89 Mashraki et al. v. "Rotem" Insurance Company Ltd., IsrSC 42(4) 348

[22] LCA 18/89 Pichman v. Bank Leumi Leyisrael Ltd., IsrSC 42(4) 513

[23] HCJ 243/62 Israel Film Studios Ltd. v. Levi Geri et al., IsrSC 16, 2407; IsrSJ 4, 208 [English]

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

[25] HCJ 323/81 (Mot 533/81) Vilozny v. Supreme Rabbinical Court in Jerusalem, IsrSC 36(2) 733

[26] HCJ 158, 2130/66 Segev et al. v. Rabbinical Court et al., IsrSC 21(2) 505

[27] HCJ 10/59 Levi v. Tel Aviv Rabbinical Court et al., IsrSC 13 1182

[28] HCJ 155/65 Gurovitz v. Tel Aviv Rabbinical Court et al., IsrSC 19(4) 16

[29] HCJ 95/63 A. v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 17, 2222

[30] HCJ 161/64 Mussman v. Haifa Rabbinical Court et al., IsrSC 18(3) 502

[31] HCJ 816/80 Gotthelf v. Tel Aviv – Jaffa Rabbinical Court et al., IsrSC 38(3) 561

[32] HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court, IsrSC 9, 1193

[33] HCJ 7/83 Biaris v. Haifa Rabbinical Court et al., IsrSC 38(1) 673

[34] HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court, IsrSC 20(2) 342

[35] HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court, IsrSC 46(2) 1

[36] HCJ 1689/90 Aasi v. Central District Sharia Court, IsrSC 48(5) 148)

[37] HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221

[38] HCJ 80/93 Gurfinkel v. Minister of the Interior, IsrSC 17, 2048

[39] CA 303/57 Reich v. Hammer,  IsrSC 11, 1362

[40] HCJ 111/53 Kaufman v. Minister of the Interior, IsrSC 7, 534

[41] HCJ 190/57 Assaig v. Minister of Defence, IsrSC 12(1) 52

[42] HCJ 505, 496, 488/83 Baransi v. Director of the Visa and Nationality Dept; Dasuki v. Minister of the Interior et al., IsrSC 37(3) 722

[43] HCJ 448/85, HCJApp 32, 5/86 320, 284/85 Dahar et al. v. Minister of the Interior,  IsrSC 40(2) 701

[44] MApp 1064/86 Archbishop Ajamian v. State of Israel, IsrSC 41(1) 83

[45] FH 9/77 Israel Electric Corporation. v. “Ha’aretz” Newspaper Ltd., IsrSC 32(3) 33; IsrSJ 9, 295

[46] LA 558/85 Ilin et al. v. Rotenburg et al., IsrSC 40(1) 553

[47] HCJ 869, 852/86 Aloni et al. v. Minister of Justice et al., HJCApp 521, 523, 543, 518, 515-512, 507, 502, 487, 486, 483/86 IsrSC 41(2) 1

[48] HCJ 578/82  Naim v. Jerusalem District Rabbinical Court et al., IsrSC 37(2) 701

[49] HCJ 403/71 Alkourdi v. National Labor Court et al., IsrSC 26(2) 66

[50] ST 1/50 Sidis v. Chief Execution Officer, Jerusalem et al., IsrSC 8, 1020

[51] CA 174/83 N. Soher v. P. Soher, IsrSC 38(2) 77

[52] HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court et al., IsrSC 26(2) 765

[53] HCJ 428/81 unreported

 

Labor Court cases cited:

 

[54] ] LC 52/8-4; 7-41 unreported

 

United States cases cited:

 

[55] Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)

[56] Matter of Alamance County Ct. Facilities, 329 N.C. 84, 405 S.E.2^nd 125 (1991)

 

 

 

 

Petition for an order nisi. The case was heard as if an order nisi were grated. The petition was granted, and the order nisi was made absolute.

 

M. Bar Shilton, Y. Bar Shilton – on behalf of the Petitioners

Y. Sidi – on behalf of Respondent 3

 

JUDGMENT

 

Deputy President A. Barak: The question before the Court in this petition is: What considerations may a Rabbinical Court take into account when considering whether or not to grant a writ ne exeat republica?

 

The Facts

 

1. Petitioner 1 (hereinafter: the Petitioner) and Respondent 3 (hereinafter: the Respondent) are married. They have three minor children (Petitioners 2, 3 and 4). Disputes arose between the Petitioner and the Respondent. The Petitioner filed a claim for child support and custody in the District Court (on May 10, 1992). She also sued for divorce in the Rabbinical Court. In response, the Respondent filed suit for marital reconciliation with the Rabbinical Court (Respondent 2). In the framework of the suit for marital reconciliation, the Respondent requested that the Tel Aviv-Jaffa Rabbinical Court issue a writ ne exeat republica to prevent the Petitioner from leaving Israel. The request stated that "for some time, the wife has been having an affair with a foreign man who is a resident of the United States, and it is her present intention to leave Israel, to move to the United States with the children, and  to live there with this man". The Rabbinical Court, in the presence of the Respondent alone, issued an order barring the Petitioner and her children from leaving the country. The Petitioner requested that the Rabbinical Court rescind the order. The request noted that the Petitioner and her eldest daughter (Petitioner 2) wished to go abroad for two weeks. The vacation was planned long in advance and was "meant as a bat-mitzvah gift for the daughter". The two sons (Petitioners 3 and 4) would remain in Israel. The Petitioner has an active business in Israel, and there is no concern that she might not return to Israel. The Respondent objected to this request. In the meantime, the original date for the Petitioner's departure from Israel passed. She amended her request to a new date (August 14, 1992), adding that she was also combining a business trip in her trip and that preventing her from leaving would inflict severe monetary damage.

 

The Proceeding before the Rabbinical Court

 

2. The Tel Aviv-Jaffa Rabbinical Court held a hearing in the presence of the parties (on August 2, 1992). The relationship between the parties was described in the course of the hearing. The Respondent stated that a foreign man disrupted the couple's marriage. According to the Respondent, the purpose of the Petitioner's travel abroad was to meet with the foreign man and to have intimate relations with him. The Petitioner emphasized the rift in their personal relationship. She stated that the purpose of the trip was an excursion (as a gift to the daughter) and business enquiries. At the end of the hearing (on July 30, 1992), the Rabbinical Court reached the following decision:

 

Having heard the arguments and responses of the parties and their attorneys, in light of the material presented to us, and in view of the claims of the husband who claims and who fears that the wife's travel abroad at this stage would cause a final and irreparable rift between them, this court decides – at this stage – not to grant the wife's request to rescind the writ ne exeat republica against her. The court will hold an additional hearing on the matter of the wife's request on the 24^th of Elul, 5752 (September 22, 1992) at 9:00 a.m. The parties are required to negotiate an appropriate solution which will enable them to travel abroad together, or will enable the wife to travel separately under such terms as will abate the husband's concerns.

 

An application for leave to appeal this decision was filed with the Supreme Rabbinical Court. The court was asked to schedule an urgent date for a hearing in order to allow the Petitioner to leave Israel on the date she requested, so that she and her daughter would be able to return to Israel in time for the beginning of the school year. The Supreme Rabbinical Court denied the application for leave to appeal (on August 6, 1992), ruling:

 

Inasmuch as the Regional Court decided to schedule an additional session to continue the hearing, it is inappropriate to hear the appeal at this stage .

 

The petition before us was filed against these Rabbinical Court decisions.

 

 

The Parties' Arguments

 

3. The Petitioners claim that the reason that was given by the Regional Rabbinical Court to bar their exit from the country – how the departure would affect the couple's relationship – is invalid. This reason is contrary to the Rabbinical Court's own approach and to the case law of the civil courts. It is repugnant to the provisions of Basic Law: Human Dignity and Liberty. This Basic Law establishes the right of every person to leave Israel. Against this background, granting a writ ne exeat republica must be limited to securing a party's appearance in court and guaranteeing the monetary rights of the other party. It was further argued that the Rabbinical Court lacked authority to prevent the daughter from leaving the country.

 

4. In his response, the Respondent argues that he seeks to achieve marital reconciliation. The court acted within this framework and did not act ultra vires. There is a concern that the Petitioner may not return to Israel for the Rabbinical Court's hearings and will thereby frustrate the claim for marital reconciliation. The Petitioner must wait until the hearing in the Regional Rabbinical Court is exhausted.

 

5. Upon the commencement of the hearing (on August 13, 1992), (at the consent of the parties) we treated the hearing as though an order nisi had been granted. After hearing the parties' arguments, we made the order absolute and cancelled the writ ne exeat republica against the Petitioners. We instructed that the cancellation of the order be conditioned upon the Petitioners' furnishing a personal bond securing their return by September 15, 1992, and a third-party guarantee in the amount of NIS 100,000.

 

We ruled that the Respondent will bear the Petitioners' costs in the amount of NIS 10,000. We instructed that our reasons will be given separately. These are our reasons.

 

The Normative Framework

 

6. The Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713-1953 (hereinafter: the Rabbinical Courts Jurisdiction Law) sets forth the normative framework of the rabbinical courts' jurisdiction. The law establishes the jurisdiction of the rabbinical courts over matters concerning the personal status of Jews. The substantive law under to which the rabbinical courts rule on personal status matters is Jewish Law. The Rabbinical Courts also rule in accordance with the general substantive (statutory and case-law) law that applies to matters under their jurisdiction. The Rabbinical Courts Jurisdiction Law does not establish any rules of procedure for the rabbinical courts in matters that are in their jurisdiction. In the past, certain provisions in this regard were established in the Jewish Community Regulations.[1] These regulations are no longer valid, and for this reason alone they cannot serve as a source of the authority to promulgate procedural rules. What, then, is the procedural regime that applies in the rabbinical courts?

 

7. One might argue that the authority to prescribe procedural rules derives from the substantive law. Since the substantive law followed by the rabbinical courts is primarily Jewish law, therefore Jewish law should also be the source of the rabbinical courts authority to establish rules of procedure (see: E. Shochetman, Procedures (Sifriyat Hamishpat Ha’ivri, 5748) 12 (Hebrew)). This argument  cannot be accepted. The authority to establish procedures derives from the nature of the body’s status as a judicial instance and not from the substantive law by which that judicial instance rules. Thus, for example, the civil court rules in accordance with Jewish law in many matters of personal status, however it does not apply the procedural (and evidentiary) rules of Jewish law when ruling on such matters (see, CA 26/51 Kotik v. Wolfson [1] at p. 1344; CA 99/63 Peleg. v. Attorney General [2] at p. 1128). Indeed, to paraphrase Justice Silberg’s statement that "the law here is, so to speak, a 'function' of the judge" (see: M. Silberg, Personal Status in Israel (Mif'al Hashichpul, 5718) 6 (Hebrew)), we might say in this case that the procedure is a “function” of the judge and not of the (substantive) law by which the judge rules. Therefore, the power of a rabbinical court judge to establish the court’s rules of procedure does not derive from the substantive law by which he rules. How, then, are the rabbinical courts’ rules of procedure established?

 

8. In my opinion, in the absence of statutory authorization in this matter, the power to establish procedures lies with the rabbinical courts themselves. The origin of such authorization is the inherent jurisdiction of each judicial instance to decide its own procedures (see HCJ 136/54 Pollack v. Herzog  [3] at p. 165; also see P. Goldstein, The “Inherent Jurisdiction” of the Court, 10 Iyunei Mishpat 37, 49 (5744-45) (Hebrew); I. H. Jacob, The Inherent Jurisdiction of the Court, 23 Current Legal Problems 32 [1970]). Justice Berenson elaborated on this in reference to the rabbinical courts, stating:

 

A court for which the State did not prescribe procedures and did not delineate the manner by which they shall be established is authorized, by virtue of its inherent jurisdiction, to establish its own procedures that it will follow… When there is a hierarchic system of tribunals for which the legislature has not provided procedures, the question of who will decide them and how is generally an internal manner  (HCJ 150/59 Committee of the Sephardic Community of Jerusalem v. Jerusalem Rabbinical Court [4] at p. 114).

 

Similarly, my colleague Justice D. Levin stated:

The Druze courts, which were duly established and have been conducting their hearings for years, do not operate in a vacuum. Since no procedural regulations were promulgated by the authorized minister, the judges of the Druze courts were permitted to establish their own procedures that they followed by virtue of their inherent jurisdiction (HCJ 364/85 Fakhr Aldin v. Druze Court of Appeals [5] at p. 704).

 

Thus, the rabbinical courts have inherent jurisdiction to prescribe the procedures that they will follow. In exercising that jurisdiction, the Israeli Rabbinical Courts Procedure Regulations, 5753 (Y.P. 5753 2298) were promulgated. A review of these regulations reveals that their content reflects Jewish law (see Shochetman, ibid., at p. 11). However, in terms of the power to promulgate them, they in fact realize the rabbinical courts' inherent jurisdiction to prescribe their own procedures. Indeed, alongside the procedures that were promulgated in the past by virtue of the rabbinical courts' inherent jurisdiction, the courts continue to enjoy inherent power to regulate those procedural matters which have not been addressed in regulations (compare: HCJ 305/89 Nir v. Haifa Magistrates (Traffic) Court [6] at p. 214). This inherent jurisdiction derives from the rabbinical court (like any other judicial instance) being a judicial institution established by law, which is intended to rule upon disputes, and which is granted power that is inherent to the very performance of the duty and the need to conduct judicial proceedings.

 

Inherent Jurisdiction and its Limits

 

9. A judicial instance's inherent power to prescribe procedures is of signal importance. "Without it proper judicial activity would be impossible" (Justice H. Cohn in ST 1/60 Winter v. Beeri [7] at p. 1474). The inherent powers "are vital in order to allow the court to perform its duties properly…" (Justice Landau in CrimA 230/56 Shorer v. Attorney General [8] at p. 753). They underlie "that minimal authority in matters of procedures, trial efficiency and justice that the court needs in order to perform its purpose: administering justice. This power is the external reflection of the internal sense of justice with which the judge is endowed and that he expresses in his daily actions" (Justice Berenson in FH 22/73 Ben Shachar v. Machlev [9] at p. 96).

 

This power is broad. It "encompasses any matter that occurs in or out of the courtroom that is related to the trial" (HCJ 305/89 [6] at p. 214). Indeed, due to the broad scope of this power, it has long been accepted that it should be exercised with great caution (see: Roadway Express v. Piper (1980) [55] at p. 763). This ancillary power is not unlimited. It is not broader than the express authority to prescribe procedures. By its nature, it operates within the boundaries of procedural law and relates to the matter of the proper management of the judicial proceeding and its proper control. Moreover: inherent jurisdiction (as well as express jurisdiction in procedural matters) is, in essence, "governmental authority". Therefore, it must be exercised reasonably. Indeed, the judge, like any person exercising governmental authority, must act reasonably. I addressed this elsewhere, stating:

 

A judge may not toss a coin. He may not consider any factor that he chooses. He must consider reasonably. We have here, as in administrative law, a margin of judicial reasonableness. There are a number of options within the margin among which a reasonable judge may choose. Two reasonable judges may reach different results (HCJ 547/84 Of Haemek v. Ramat Yishai  [10] at p. 141).

 

This duty to act reasonably also applies when a judge exercises his inherent jurisdiction (MApp 613/82 State of Israel v. Awad [11] at p. 616).

 

10. What constitutes reasonable exercise of judicial authority? The answer is that reasonable exercise of judicial authority means its exercise in a manner that strikes a proper balance among the values, principles and interests that must be considered. I addressed this elsewhere, stating:

 

Judicial discretion, like any governmental discretion, must be exercised in the framework of the law. A judge must not be arbitrary or discriminatory. He must consider his discretion reasonably… This requirement means, inter alia, that the judge must weigh all of the relevant considerations, juxtapose them, and strike a balance among them where there is friction. The nature of the relevant considerations changes from case to case… what characterizes them all  is that they present considerations of judicial and judiciary efficiency along with considerations of justice, morality, human rights and the court's standing in modern Israeli society… (HCJ 991/91 David Pasternak Ltd. v. Minister of Construction and Housing  [12] at p.  60).

 

Thus, proper exercise of "inherent" judicial authority – like the exercise of explicit statutory procedural authority – means exercising the inherent authority in a manner that strikes a proper balance among the values, principles and interests that must be considered when exercising inherent authority.

 

11. What are the values, principles and interests that must be considered when exercising inherent jurisdiction? It would appear that these values, principles and interests are not essentially different from those that apply when exercising statutory procedural jurisdiction. Naturally, these values, principles and interests, which determine the "environment" of the (statutory or inherent) procedural jurisdiction, change from case to case in accordance with the specific procedural issue at hand. However, a number of typical considerations can be identified as a common thread through the procedural process in general and the exercise of inherent jurisdiction in particular. Procedural justice is a central consideration. This consideration means, inter alia, perceiving the procedural process as intending to realize substantive law, based upon exposing the truth. Procedural justice requires observing the rules of natural justice, which treat of granting each party an opportunity to voice its arguments, prohibiting bias, and the obligation to state reasons. Rules regarding a fair hearing are also derived from procedural justice. In this context we might note knowledge that a hearing is being held, being granted a proper opportunity to present arguments, fair exercise of procedural powers, as well as open  and accessible courts. The efficiency, simplicity and finality of proceedings can also be included in this framework. The aspiration for confidence, stability and certainty in procedural arrangements should also be included in the framework of these typical considerations.

 

12. A typical set of values that must be considered in every procedure is that of human rights. Among these it is necessary, inter alia, to consider a person's dignity and personal liberty (see: HCJ 355/79 Katalan v. Prisons Service [13]; HCJ 14/51 Attorney General v. Davar [14]). A person's right to privacy and confidentiality must also be considered. Any procedural arrangement must treat the litigating parties equally. It must guarantee freedom of expression, occupation and property (see BAA 663/91 A. v. Israel Bar Association [15]). It must consider the right to strike and lockout (see: MApp 678/82 Tayar v. State of Israel [16]; MApp 613/82 State of Israel v. Awad [11]; LC 52/8-4 7-41 [54]). It must ensure the freedom of movement that is guaranteed to every person, and in that framework, the right of every person to leave the country (see: CA 703/70 Somech v. Ozer [17]; CA 230/69 Kaneti v. United Shvili Film [18]; LA 451/85 Adin Marketing v. Flatto Sharon [19]). Indeed, constitutional human rights are part of constitutional law and are directed first and foremost towards the governmental authorities. However, they project (directly and indirectly) onto all the branches of law and thus create a constitutionalization of the law. Procedural law is not immune to human rights. On the contrary: procedural law must recognize them and give them expression. Indeed, in a long line of judgments, this Court has recognized procedural law's subordination to accepted human rights. Justice Elon addressed this in stating:

 

…In the absence of express law, the court does not have the power to order blood tests, even if it would not involve coercion. Indeed, the court has ancillary inherent jurisdiction to issue various decisions and orders in order to effect a just and efficient examination, however orders that by their very nature comprise an infringement of a person's basic right, even if the infringement will not be coercive, cannot not be included in this ancillary power (CA 548/78 A.. v. B. [20], at p. 756).

 

Similarly, the Supreme Court of the State of New York [sic][2] ruled, in reference to the court's inherent power, that: "Even in the name of its inherent power, the judiciary may not... violate the constitutional rights of persons brought before its tribunals" (Matter of Alamance County Ct. Facilities [56] at  p. 132). Similarly, my colleague Justice S. Levin emphasized the need to consider a person's constitutional right to leave Israel in the context of proceedings concerning the issuing of a writ ne exeat republica (see LCA 26/89 Mashraki. v. "Rotem" Insurance  [21] at p. 552).

 

My colleague, Justice S. Levin, wrote:

 

…In light of the severe restriction of the freedom of movement inherent to the use of this regulation (Regulation 376 – A.B), a freedom which is a constitutional right of the highest order, the regulation should not be employed unless all of its elements have been strictly proven…. (LCA 18/89 Pichman v. Bank Leumi [22] at p. 517).

 

13. I have addressed the corpus of general considerations that govern the exercise of (statutory or inherent) procedural power. Sometimes these considerations all lead in one direction and sometimes they conflict internally with one another: procedural justice leads in one direction while procedural efficiency leads in another. And both of these could lead in a direction that differs from the direction of human rights. In such a state of affairs, there is no choice other than to strike a proper balance among the conflicting considerations. In the framework of such a balance, significant weight must be given to considerations pertaining to human rights. This is particularly evident now, with the enactment of the Basic Law: Human Dignity and Liberty. This Basic Law has elevated human rights – the majority of which were based on case law ("'Unwritten' Basic Rights": HCJ 243/62 Israel Film Studios. v. Levi Geri [23]) to a supra-statutory constitutional level. Although the validity of the previous law – with its procedural rules – was preserved (sec. 10 of Basic Law: Human Dignity and Liberty), its interpretation, internal balances and application must be influenced by the constitutional status of human rights (see: CrimApp 6654/93 Binkin v. State of Israel [24]).

 

The Rabbinical Courts' Inherent Jurisdiction and its Limits

 

14. Does this general approach regarding the scope of inherent jurisdiction – both in terms of its breadth and in terms of its limitations – also apply to the inherent power of the rabbinical courts to prescribe their own procedures? The answer is affirmative. A rabbinical court is a judicial instance established by statute. "The rabbinical courts draw their judicial authority from the state's legal system that granted them that authority” (Justice Elon in HCJ 323/81 Vilozny v. Supreme Rabbinical Court [25] at p. 738). Like any judicial instance, it is also granted inherent powers to arrange procedures. When exercising these inherent powers, the rabbinical court is subject to all of the limitations that are imposed upon any judicial instance that exercises inherent powers. This approach was clearly expressed in a long list of judgments that held that the rabbinical courts' procedures must respect "basic principles of fairness" (HCJ 158/66 Segev v. Rabbinical Court [26] at p. 521, per President Agranat). These are the rules of natural justice that obligate any court system, including the rabbinical courts (see: HCJ 10/59 Levy v. Tel Aviv-Jaffa Rabbinical Court [27]; HCJ 155/65 Gurovitz v. Tel-Aviv Rabbinical Court [28] at p. 19; HCJ 95/63 A. v. Tel Aviv-Jaffa Rabbinical Court [29] at p. 2221; HCJ 161/64 Mussman v. Haifa Rabbinical Court [30]; HCJ 816/80 Gotthelf v. Tel Aviv-Jaffa Rabbinical Court [31]). Justice Berenson addressed this matter – in the context of the Rabbinical Court's inherent power – stating:

 

A court for which state law did not establish procedures nor delineate the manner for their establishment, is authorized, by virtue of its inherent jurisdiction, to decide for itself the procedures that it will apply. In this regard – to the extent that the state law does not limit the court – it is its own master. However, the arrangements it prescribes must not comprise anything repugnant to the relevant general laws of the State … and must realize the principles of natural justice, since they must be properly observed by every body that decides legal or quasi-legal matters … (HCJ 150/9 [4] at p. 114).

 

Observing the rules of natural justice is but one of the limitations upon inherent jurisdiction. It is not the only limitation. Justice Goitein addressed this in stating:

 

It has already been decided on innumerable occasions that this court, when sitting as the High Court of Justice, will not intervene with judgments of the religious courts unless they have acted without jurisdiction, or in exceptional cases which call for our intervention for the administration of justice (HCJ 187/54 Barriya v. Qadi of the Acre Sharia Moslem Court,  [32] at p. 1198; [IsrSJ 2, 429 at 436]).

 

Justice Bejski stated in a similar spirit:

 

That which has been stated until now justifies the intervention of this Court, despite its reticence to do so on the merits except in cases of ultra vires, of infringement of the principles of natural justice, or for the sake of tikkun olam [“repairing the world” – ed.] (HCJ 7/83 Biaris v. Haifa Rabbinical Court [33] at p. 687).

 

Thus, the "administration of justice" and the "repairing of the world" are additional limitations – beyond the limitation associated with the rules of natural justice – that apply to the exercise of (statutory or inherent) procedural authority. These also include, inter alia, the limitations deriving from the fundamental principles concerning recusal and judicial integrity, and open and accessible courts (and compare: HCJ 349/65 Pero v. Qadi Madhab, Druze Religious Court [35]; HCJ 1923/91 Rosenzweig v. Haifa Rabbinical Court [35] IsrSC 46(2) at p. 21; HCJ 1689/90 Aasi v. Central District Sharia Court [36]). Similarly, any recourse by the rabbinical court to its inherent authority must be consistent with the protection of human rights. Indeed, every litigant in the rabbinical courts appears before those courts bearing all the human rights enjoyed by every person in Israel. The Israeli legal regime guarantees human rights to every person, and every person enjoys these rights in every judicial forum. The move from a “civil” judicial forum to a “religious” one does not lead to a loss or denial of basic human rights. “It would be inconsistent with these fundamental rights that the move from a civil court to a religious court would lead to a loss or infringement of these basic rights. No ‘confiscation’ of these civil rights can be permitted in the absence of an express statutory provision consistent with the requirements established under our constitutional system” (HCJ 1000/92 Bavli v. Great Rabbinical Court [37] at p. 248). Indeed, the promise of human rights is general and applies to all relationships and before all the courts. A religious court does not operate in a vacuum. It operates within the general framework of the Israeli legal system. Professor Rosen-Zvi rightly observed:

 

The religious court indeed holds jurisdiction – sometimes exclusive – to address a certain area of Israeli law. But the court remains an Israeli judicial forum within the general framework of Israeli law. The court operates within the framework of Israeli law and the general legislative framework, and it is not exempt from the commandments of the provisions of Israeli law (A. Rosen-Zvi, Israeli Family Law: The Sacred and the Secular   (Papyrus, 1990) 86 [Hebrew]).

 

The Israeli legal system is not a confederation of separate systems. The Israeli legal system is a unity that recognizes the uniqueness of its various parts. Therefore, substantive matters of personal status are subject to Jewish law, which at times may take precedence over some arrangement of the general law. However, such precedence is limited exclusively to matters of personal status, “no more and no less” (per Landau J. in HCJ 80/63 Gurfinkel v. Minister of the Interior [38] at p. 2068). It does not apply to what does not fall within the scope of personal status (see: Rosen-Zvi, ibid., p. 76). Thus, for example, it does not apply to the civil “mass” (and the various property rights it encompasses) with which every person comes before the Rabbinical Court (see: HCJ 1000/92 [37]). It also does not apply to the exercise of the rabbinical court’s inherent authority to address the proceedings before it. In exercising that authority, the rabbinical court must respect human rights, and like every other judicial forum, it must properly balance all of the conflicting values, principles and interests in each and every issue. This balance is imposed upon the inherent jurisdiction “from without”, by virtue of the entire complex of values of the Israeli legal system. It reflects the substance and principles of the Israeli legal system of which the rabbinical courts are a part.  What is that proper balance when the rabbinical court is requested to issue a writ ne exeat republica against one of the litigants?

 

 

Ne Exeat Republica

 

15.       A stay of exit, whether as temporary or interlocutory procedural relief, can only be issued as a procedural means intended to assist a party “in realizing the relief that the substantive law grants to the party” (per Landau J. in CA 303/57 Reich v. Hammer [39] at p. 1363). The inherent authority of a judicial instance to establish procedure in regard to the granting of this procedural relief must therefore properly balance the values, interests and principles vying for dominance in the framework of procedural law.  A person’s constitutional right to leave Israel must be placed on one side of the scales. This right has been recognized as a basic right of a person in Israel. “A citizen’s freedom of movement to leave Israel is a natural right that is recognized as self-evident in every country with a  democratic regime, of which our country is one …” (per Silberg J. in HCJ 111/53 Kaufman v. Minister of the Interior [40] at p. 536; and see: HCJ 190/57 Assaig v. Minister of Defence [41] at p. 55; HCJ 488/83 Baransi v. Director of the Visa and Nationality Dept. [42]; HCJ 448/85 Dahar v. Minister of the Interior [43]; MApp 1064/86 Archbishop Ajamian v. State of Israel [44]). It derives from being a free person, from the democratic character of the state, and from being part of the international community in which freedom of movement is recognized as a customary human right. Basic Law: Human Dignity and Liberty adopted this approach (sec. 6(a)) and granted the right to leave Israel (“All persons are free to leave Israel”) supra-legal status (see: CrimApp 6654/93 [24]). “All governmental authorities” – including all judicial forums (as they, too, are governmental authorities) “are bound to respect” this right (sec. 11 of Basic Law: Human Dignity and Liberty).

 

16.       As against the constitutional right of every person to leave the country stands the interest of a litigant to realize the substantive law. A litigant’s leaving the country may influence the legal proceedings and the possibility of executing the judgment. Maintaining proper legal proceedings to ensure substantive rights is a legitimate interest deserving protection by all parties. There is also a public interest that legal proceedings be effective, that suits not be frustrated, and that judgments be executed. Leading a litigant to an “empty well” because the other side has left the country infringes both the personal interest of the victim and the public interest in maintaining proper legal proceedings. However, the plaintiff’s interest that  deserves protection is not the pressuring of the defendant to concede the suit in order to liberate himself from the restriction imposed by a stay of exit. The state is not a prison, and agreeing to a suit should not be a key for release from captivity. “… staying the defendant is not meant to serve as a means for pressuring him to ransom himself from captivity” Y. Sussman, Civil Procedure, S. Levin, ed., (6^th ed., 1990) 571 (Hebrew)).

 

17.       We have addressed the values, principle and interests that must be considered in regard to granting relief in the form of a stay upon exiting the country. On one hand stands the basic value of freedom of movement, while the litigant’s interest in ensuring his substantive rights by means of a legal process stands on the other. The two values stand in opposition. Balancing the conflicting values is therefore required.  My colleague Justice S. Levin addressed the need for striking this balance in the area of procedural law, noting:

 

The fundamental question that must be addressed in interpreting the said regulation is where is the balance point between the principle that the defendant’s right to freedom of movement not be restricted unnecessarily, and the need to prevent the defendant from fleeing abroad and thus frustrating the suit filed against him (LCA 26/89 [22] at p. 552).

 

Professor S. Goldstein similarly observed:

                       

…granting any type of preliminary relief involves a delicate balance of the plaintiff’s interests in preventing the defendant from frustrating the litigation, and that of the defendant in not having his liberty or property restrained prior to the definitive adjudication of his liability (Stephen Goldstein, Preventing a Civil Defendant from Leaving the Country as a form of Preliminary Relief, 20 Is.L.R. 18, 24 (1985)).

 

                       

Indeed, the balance must reflect the relative social importance of the conflicting interests. The balance should properly be an expression of principle that reflects a “decisional framework which contains a guideline of value…” (per Shamgar J. in FH 9/77 Israel Electric Corporation. v. “Ha’aretz” [45] at p. 361 [IsrSJ 9, 295]; and see: HCJ 991/91 [12] at p. 60).  This balance serves a dual purpose: first is serves as a standard for interpretation by which a procedural rule is given meaning; second, it establishes the boundaries of the (statutory or inherent) authority of the procedural rules themselves. Procedural rules whose interpretation leads to the possibility of preventing leaving the country to an extent that exceeds the standards established by the principled balance exceed the (statutory or inherent) power of the promulgator of the rules.

 

18.       It would appear to me that the proper constitutional standard is as follows: a litigant may be prevented from leaving the country if there is a sincere and well-founded suspicion that the litigant’s leaving the country would frustrate or thwart the judicial proceeding or prevent the execution of the judgment. My colleague Justice S. Levin gave expression to this standard in noting:

 

…when there is real, direct or circumstantial evidence from which one may infer a danger that the proceedings may be thwarted by the defendant’s travel abroad, the first principle (the defendant’s freedom of movement – A.B.) will retreat before the need to prevent the complainant from facing an empty well when judgment is rendered against the defendant, inasmuch as the rule is not intended to shield the defendant from his creditors and thwart them (LCA 26/89 [22] at p. 553).

 

I would like to make a few comments in regard to this standard. First, this standard is of a constitutional character. By establishing a causal connection between preventing leaving the country (as a constitutional right) and the negative effect of the absence upon the judicial proceedings, it expresses a constitutional view of the status of the fundamental principles of our legal system. Professor Goldstein addressed this in his abovementioned article in noting (at p. 26):

 

…the requirement of a causal connection is not merely a result of the interpretation of a specific rule of civil procedure, but rather the demand of a more fundamental principle of Israeli jurisprudence. It represents the application of a constitutional norm regarding the freedom of movement in general, and the right of a person to leave the country in particular.

 

Second, the causal connection between the danger and its prevention required by this standard is “a sincere and well-founded suspicion”. This standard was adopted in the Dahar case [43] in regard to striking the balance between the right to leave the country and the public interest in state security. In my opinion, this standard is also appropriate for striking the required balance in the matter before us. Dr. Yaffa Zilbershats addressed this in noting:

 

In our opinion, the “sincere and well-founded suspicion” test is better suited to balancing the interests in this case in which we deprive a person of his basic right to leave the country in order to protect the interest of the plaintiff that the legal proceedings or the execution of a judgment not be frustrated (Y. Zilbershats, The Right to Leave a Country (Ph.D. Diss., Bar Ilan, 1991) 203).

 

 

Third, not any possible harm, whether severe or insignificant,  can serve to prevent a litigant from leaving the country. The harm must be of a special type, of particular severity, i.e., “frustrating the lawsuit in advance through the debtor’s fleeing abroad…” (LCA 26/89 [21] at p. 552, following LA 558/85 Ilin v. Rotenburg [46] at p. 556). In addressing the nature of the permissible infringement of a person’s right to leave Israel, Dr. Zilbershats writes (ibid., p. 180):

 

In our opinion, because the right to leave the country is a basic human right of great importance, it should only be possible to restrict it if it has the potential to frustrate a judicial proceeding or prevent the execution of a judgment against the person seeking to leave the country.

 

Fourth, meeting the said standard is a necessary condition for exercising the authority of preventing a litigant form leaving the country. It is not a sufficient condition. Thus, for example, procedural rules may impose additional demands, for example, that a condition for granting a writ ne exeat republica is that: “The defendant is about to leave the country permanently or for an extended period” (rule 376(a) of the Civil Procedure Rules, 5744-1984). Fifth, before exercising its discretion, the court must consider whether there are less drastic means for ensuring the interest deserving protection while not infringing freedom of movement. Thus, for example, providing an appropriate bond may often meet this requirement. Sixth, the court should exercise this procedural authority with great care. “Unquestionably, preventing a person from leaving the country infringes an individual’s liberty, and therefore requires careful consideration…” (per Ben-Porat, D.P. in LA 451/85 [19] at p.305). The court must therefore meticulously examine whether the required standard is met, and only “if all the elements have been strictly proven” can the requested order be granted (per S. Levin, J. in LCA 18/89 [22] at p. 517). Granting the order must not be routine, and it should properly be granted only when justified by the circumstances.

 

Seventh, naturally, the application of the said standard changes in accordance with the substantive right that the judicial proceeding itself is intended to realize. Proceedings for the return of a loan are not the same as divorce proceedings. In the former, the legitimate interests of the creditor can usually be ensured by an adequate bond. In the latter, at times (although not always) the sincere and well-founded suspicion that the woman may be rendered an agunah [a “chained woman” – ed.] may require granting a writ ne exeat republica. Moreover, proceedings that can lawfully be conducted without the personal presence of the parties are unlike proceedings that can only be lawfully conducted if the parties are actually present. In the former case, a party’s leaving the country will not frustrate the proceedings, while in the latter it will frustrate the very possibility of conducting proceedings.  Nevertheless, even here a less drastic means should always be preferred. Eighth, this standard is formulated to take account of the fact that we are concerned with interlocutory relief in the course of a pending proceeding. We must bear in mind that the claim has not yet been proved, and a judgment has not yet been rendered. The certain infringement of one party’s freedom of movement stands against the mere claim of the other party who argues that his substantive right has been infringed, but whose claim has not yet been accepted and no judgment has recognized it. In such a situation, the standard that should be adopted should be one that tends, as far as possible, to protect the person who will suffer the certain infringement of rights. In so doing, we express the serious weight of an individual’s right to leave the country.

 

Ne Exeat Republica in the Rabbinical Court

 

19.       As we have seen, the Rabbinical Court has the inherent power to establish rules of procedure. Procedures for preventing a litigant from leaving the country were established within that framework. Such procedures are established under rule 106 of the Rabbinical Courts Rules of Procedure, 5753 (see: HCJ 852/86 Aloni v. Minister of Justice [47] at p. 61). In the framework of its inherent power, the Rabbinical Court can, indeed, establish procedural rules in general, and procedural rules in regard to preventing a person from leaving the country in particular, in accordance with its procedural conceptions, which may differ from the procedural conceptions of the “civil” courts or of other religious courts (see: Shochetman, On Orders of Ne Exeat Regno against Judgment-Debtors and the Authority of the High Court of Justice to Review Procedural Orders of Rabbinical Courts, 14 Mishpatim 83 (1984)). However, the Rabbinical Courts inherent power to establish procedural rules in general, and procedural rules in regard to preventing leaving the country in particular is limited by the proper balance of the values, interests and principles that characterize Israeli law. Therefore, the Rabbinical Court’s authority to order that a litigant may not leave the country is limited by the appropriate standard for balancing the conflicting values, interests and principles in this context. In accordance with them, judicial authority to bar a litigant from leaving the country may be exercised only when there is a sincere, well-founded suspicion that his leaving the country will frustrate or thwart the legal proceedings or prevent the execution of the judgment. It is against this background that one must understand this Court’s  statement that “the purpose of the restriction imposed upon a person, which prevents his leaving Israel, is identical for a [civil] court or a rabbinical court” (HCJ 578/82 Naim v. Jerusalem District Rabbinical Court [48] at p. 711), and that “the areas of the authority of the various judicial forums – civil and religious – in regard to preventing leaving the country…must be similarly construed” (per Shamgar P. in HCJ 852/68 [47] at p. 61). Adopting this standard will achieve the normative harmony and legal unity to which every legal system aspires. This will ensure that the fundamental values and principles grounding our legal system will be protected and uniformly realized in the procedural rules of all Israeli judicial forums. In the framework of their inherent power, the rabbinical courts are free to establish procedural rules consistent with their worldview. “Their procedural rules are their own business” (per Berinson J. in HCJ 403/71 Alkourdi v. National Labor Court [49] at p. 70). However, that procedural freedom is not unrestricted. It is subject to the limits – to which all judicial forums are subjected – that derive from the proper balance of values, principles and interests that reflect the values of the State of Israel.

 

From the General to the Particular

 

20.       The District Rabbinical Court’s decision to prevent the Petitioner from leaving the country must be examined against the background of this normative structure. The Petitioner’s suit for divorce from the Respondent was pending before the Rabbinical Court. The Respondent’s suit for marital reconciliation was also pending. The court was requested to issue a writ ne exeat republica against the Petitioner and the children in the framework of the reconciliation suit. The Rabbinical Court granted the request on the basis of the Respondent’s claim that he “fears that the woman’s leaving the country at this stage would result in a final, irreparable rupture between them”.  The Rabbinical Court ordered a further hearing in two months, and requested that the parties negotiate “to achieve a suitable solution that would allow their joint travel abroad, or allow the wife to leave subject to conditions that would allay the husband’s fears”. The Great Rabbinical Court denied the wife’s appeal, holding that there were no grounds for hearing the appeal “inasmuch as the District Rabbinical Court had set a date for a further hearing of the matter”.

 

21.       Does the District Rabbinical Court’s decision maintain the proper balance between the freedom of movement (of the Petitioner) and ensuring the realization of the substantive rights (of the Respondent) by means of the judicial process? In my opinion, it does not, for two reasons. First, the evidentiary groundwork presented to the Rabbinical Court did not substantiate a “sincere and well-founded suspicion”. All that was before the court was the husband’s claim (unsupported by any additional evidentiary foundation) and the wife’s denial. That is insufficient to ground a sincere, well-founded suspicion. Second – and of primary importance in this context – the condition that the Petitioner’s absence from the country might frustrate or thwart the judicial proceeding in regard to reconciliation was not met. The judicial proceeding in the matter of reconciliation would not be frustrated at all by the Petitioner leaving the country. It is clear from the circumstances that the Petitioner will be travelling abroad for only a brief period. This brief absence from Israel cannot potentially influence the proceedings. In any case, the matter can be adequately addressed by requiring an appropriate guarantee. Postponing the hearing on revoking the writ ne exeat republica for two months is inconsistent with the status of the freedom to leave the country as a basic human right. Note that I am willing to assume – without deciding the matter – that the Petitioner’s leaving the country might negatively influence the couple’s relationship, and might even – as the husband argues – result in a final rupture of the relationship. It is also possible – although here, too, I cannot make a finding – that preventing the women’s leaving might serve to advance a reconciliation between her and the Respondent. But even if that were the case, the Rabbinical Court’s inherent power to establish procedures does authorize it to prevent a litigant from leaving the country when the standard that properly balances the relevant values, interests and principles is not met. Indeed, the suit for marital reconciliation (which is a matter of personal-status law, see: ST 1/50 Sidis v. Chief Execution Officer, Jerusalem [50] at p. 1031; CA 174/83 N. Soher v. P. Soher [51] at p. 82) raises serious problems, particularly in the area of interlocutory relief. Interlocutory orders that infringe basic human rights like the right to property (in regard to vacating a residence), freedom of movement (in prohibiting leaving the country, see: HCJ 185/72 L. Gur v. Jerusalem Rabbinical Court [52] at p. 770) and the autonomy of personal will (by preventing meeting another person) may be granted out of a desire to realize the substantive law (see in this regard: S. Dichovski, The Authority of the Rabbinical Courts as reflected in their Judgments, 10-11 Dinei Israel 9, 15ff. (5741-43) (Hebrew)). In this case, we are witnesses to an example of the fundamental problem deriving from the first attempt “of its kind in Jewish history to apply religious law and impose religious jurisdiction in a society in which the majority of its members define themselves as secular” (P. Maoz, The Rabbinate and the Religious Courts: Between the Hammer of the Law and the Anvil of Halakha, 16-17 Annual of the Institute for Research in Jewish Law 289, 394 (1991) (Hebrew)). In the matter at hand, this special attempt leads to a gap between the basic conceptions underlying marital reconciliation in religious law and the worldview of a largely secular society. As judges, we take the law as a given and do not  question it. However, to the extent that interlocutory orders are granted in the context of marital reconciliation that do not meet the requirements of proper balancing of the values, principles and interests that must be addressed, the Rabbinical Court is not authorized to issue a writ ne exeat republica merely because the matter interferes with marital reconciliation (as opposed to interfering with the judicial proceedings in regard to reconciliation), inasmuch as its procedural power to grant such orders is subject to the limitations required by the proper balance that we discussed. In his aforementioned book,  Prof. Rosen-Zvi correctly pointed out (pp. 117, 119):

 

The Rabbinical Court issues [orders – A.B.] comprising remedies attendant to marital reconciliation that infringe the spouse’s liberty. Some of these orders also concern prohibitions that directly affect third parties. For example, an order forbidding a spouse to meet with a particular person whose name appears in the body of the order. Such an order seriously infringes an individual’s right and is inconsistent with the fundamental values of Israeli society…

 

…Israeli law does not grant the Rabbinical Court a free hand even if it is required by the worldview of religious law and the original content of the marital reconciliation cause of action. The Rabbinical Court operates within the framework of boundaries set by Israeli law. These exigencies obligate it, and it may not deviate from or exceed their borders.

 

Indeed, to the extent that such interlocutory orders do not conform to the delicate balance of the values, principles and interests that must be considered – primary among them the human rights of the parties to the proceedings and of third parties – they deviate from the inherent authority (as currently expressed in the Rules of Procedure of the Israeli Rabbinical Courts, 5753) of the Rabbinical Court to grant interlocutory relief. It may be superfluous to note that, nevertheless, the Rabbinical Court is authorized to take the conduct of the parties into account among its considerations in accordance with Jewish law, and give it the duly required weight under the substantive law. In this regard, it is apt to recall the words of Deputy President Y. Kahan, who held:

 

Clearly, the Rabbinical Court may draw all the conclusions that derive under [Jewish – ed.] law from the fact that the Petitioner, who is married, is conducting intimate relations with another man.

 

However, we have not found any legal basis upon which to ground a restraining order as issued in this case (HCJ 428/81 [53]).

 

That is also so in the matter before us. The Rabbinical Court is not authorized to issue a temporary order prohibiting the Petitioner from leaving the country. However, it is authorized to make inferences in regard to the substantive law in the matter of reconciliation from the fact that the Petitioner left the country, and from her conduct in the country and abroad. For these reasons, we have made the order absolute (as stated in para. 5 of our opinion).

 

Justice S. Levin: I concur.

 

Justice D. Levin: I concur.

 

Decided in accordance with the opinion of Deputy President Barak.

Given this 29^th day of Shevat 5754 (Feb. 10, 1994).

 

 

 

 

The Supreme Court sitting as High Court of Justice

HCJ 10042/16

HCJ 10046/16

HCJ 10054/16

HCJ 76/17

HCJ 802/17

 

Quintinsky v. Knesset

 

In the matter of the Multiple Apartments Tax Arrangement

 

Summary

 

            The petitions challenged the Multiple Apartments Tax Arrangement and its legislative procedures. An expanded five-justice panel of the Court (per Justice N. Sohlberg, Deputy President M. Naor and Justices E. Hayut and N. Hendel concurring, Justice M. Mazuz dissenting) granted the petitions and declared the Multiple Apartments Tax Arrangement relatively void, such that that the Knesset was not required to revisit the legislative proceedings prior to the Arrangement’s deliberation in committee in preparation for the second and third readings, but could “return” to the legislative proceedings from the point in which the defect occurred – i.e., the stage of the deliberations in the Finance Committee.

1.         The Tax Arrangement, anchored in Chapter XII of the Economic Efficiency (Legislative Amendments for the Implementation of the Economic Policy for Budget Years 2017 and 2018), 5777-2016, imposed a designated tax upon owners of multiple apartments whose aggregate rights in the apartments was 249% or more. Under the Tax Arrangement, a holder of apartments to the said extent would be subject to a tax of 1% of “the determining amount” for each apartment held, exclusive of two apartments as he may choose, where the “determining amount” would be calculated in accordance with a formula set out in the Appendix to the Law.

2.         Five petitions were submitted, arguing that the Court should annul the law both for defects in the legislative process and for unconstitutionality. On Feb. 28, 2017, the Court issued an order nisi requiring the Respondents to show cause why the Tax Arrangements should not be revoked “due to a substantive defect in its legislative proceedings that goes to the heart of the proceedings”. Inasmuch as the order nisi addressed only the defects in the legislative proceedings, the Court’s judgment focused solely upon that subject.

3.         At the outset of his opinion, Justice N. Sohlberg addressed the fundamental guiding principles of judicial review of the Knesset’s legislative procedures. On the one hand, he emphasized the principle of the separation of powers, from which the Knesset derives its elevated status as an independent authority entrusted with legislation, and which requires restraint and moderation in the judicial review of its actions. On the other hand, he presented the justifications for judicial intervention in the legislative process, bearing in mind, inter alia, the principle of the rule of law and the Knesset’s role in supervising and monitoring the activities of the government. Indeed, the principle of the separation of powers requires that judicial review of the legislative process be carried out with awe and reverence, moderation and respect. However, it also requires that the Court vigilantly stand guard lest the Knesset serve as the government’s doormat. This particularly so in Israel’s parliamentary regime in which the executive branch controls a majority of the members of the legislative branch, and all the more so when an “exceptional” legislative process like that of the Arrangements Law is concerned. The Court must, therefore, ensure that the Knesset fulfils it role faithfully and responsibly, inter alia through a proper, productive legislative process. Justice Sohlberg also noted that the Court was not concerned with review of the content of the Law, but solely with an examination of the process of its enactment.

4.         After presenting the guiding principles, Justice Sohlberg addressed the criteria for judicial review of the legislative process as developed in HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society v. Government of Israel, IsrSC 59(2) 14 (2004) (hereinafter: the Poultry Growers case) – deemed the leading case on the subject of judicial review of the legislative process – which established that judicial intervention in the legislative process is justified only in the presence of  “a defect in the legislative process that ‘goes to the heart of the process,’” that involves a severe and substantial violation of the basic principles of the legislative process. Such defects include, inter alia, the “principle of participation”, which is examined on the basis of two criteria: the first is whether the Knesset members were “denied any practical possibility of knowing about what they are voting”; the second is whether the Knesset members were denied any “practical possibility of formulating their position with regard to the draft law”.

5.         Thirteen years having passed since the Court’s decision in the Poultry Growers case – and in light of the experience accumulated in the interim, and in view of the Knesset legal adviser’s statement in the course of hearing this case that the case law does not currently provide adequate guidance to the legislature – Justice Sohlberg was of the opinion that some further polishing and direction was required. The Poultry Growers case had served its purpose, but at present, achieving a proper balance between the Knesset’s sovereignty and the need for legislative procedures appropriate to Israel’s constitutional parliamentary regime required that emphasis no longer be placed upon the question whether the Knesset members were “denied any practical possibility of knowing about what they are voting”. Rather, a somewhat different, more easily implemented and effective test was required along the lines of the second criterion raised in the Poultry Growers case. The legislative process must allow the members of the Knesset to adopt a substantive position, if only in a very limited manner, in regard to the bills placed before them. Under this approach, adopting a position is not a mere “passive” act, but requires a certain cognitive process, independent processing of the information presented to the Knesset member, and the formulation of an informed decision for or against the proposed law. Only when such an opportunity is provided, can it be said that the Knesset members were granted an opportunity to participate in a real, active sense in the legislative process.

6.         Justice Sohlberg addressed the substance and importance of parliamentary debate, and held that a proper legislative process requires debate in the substantive sense of an exchange of ideas. In the absence of an opportunity to conduct a debate, the Knesset members’ participation in the legislative process is deprived of content, and is limited merely to a basic, “passive” understanding of the proposals before them. In such a situation, there is a not-insignificant fear that the Knesset will become a “rubber stamp” for the law’s sponsors – at times, the executive branch which, as noted, enjoys a parliamentary majority. Justice Sohlberg emphasized, however, that the Knesset is not under a duty to conduct a hearing like the “due process” required of administrative agencies. The Court’s intervention in the legislative process would be justified only when Knesset members are deprived of any practical possibility for conducting a minimal discussion of the proposed bill and form an opinion in its regard – even if only in the most basic sense (para. 79 of the opinion). However, if the legislative process was conducted in the said manner, but the Knesset members failed to exploit the opportunity afforded them, there would be no grounds for judicial intervention that would “coerce” the Knesset members to conduct themselves in some particular manner.

7.         Justice Sohlberg further stressed that the question whether a parliamentary debate was conducted must not be examined in accordance with rigid, formal rules in the absence of which the principle of participation is not fulfilled. Care must be taken not to set an overly high, unattainable bar. Often, time limitations and workloads do not permit “sitting seven clean days” on every law, and conducting a comprehensive, exhaustive discussion of every jot and tittle. Clearly, it is often impossible to grant each and every Knesset member the opportunity to present all of his arguments at length and in detail. Judicial review of the legislative process thus requires addressing the matter in light of all its circumstances.

8.         Justice Sohlberg also addressed the “exceptional” procedural framework through which the Tax Arrangement was enacted. In this regard, he noted that the need for the earlier noted parliamentary debate would seem to be inconsistent with the haste that characterized the enactment of the Arrangement Law, but he nevertheless held, in accordance with the holding in the Poultry Growers case, that despite the not inconsequential problems presented by this legislative mechanism, recourse to it does not, itself, invalidate a law. Judicial review of the legislative process must be substantive, and must focus upon the maters themselves, viz., whether there was a clear, serious infringement of the fundamental principles of the legislative process. This conclusion is a consequence of the view that even if ab initio it were preferable to take the ‘high road” of the normal legislative process, after the fact there is no justification for judicial intervention in the legislative process as long as the fundamental principles of the process were maintained. Moreover, we must take care not to adopt a “pure” approach that would impose demands upon the legislative process that the public’s representatives would be unable to maintain. Therefore, the government must be permitted some leeway in this regard, and the Court should not preclude a priori a mechanism that facilitates a more rapid legislative process that makes it possible to combine matters that are directly and substantively connected to achieving the budgetary goals, as long as this does not constitute a clearly serious violation of the fundamental principles of the legislative process.

9.         Against this background, Justice Sohlberg examined the legislative process of the law under review, and held that the cumulative circumstances surrounding the legislative proceedings of the Tax Arrangement in the course of the preparation of the bill by the Finance Committee for a second and third reading leads to the conclusion that there was a defect that went to the heart of the legislative process. In this regard, Justice Sohlberg took note of the hurried schedule of the Finance Committee’s debate, which did not allow the Knesset members time to examine the details of the updated bill prior to the debate; the atmosphere of haste, pressure and panic that characterized the Committee’s debate (as reflected by the protocol of the session); and the complexity of the Multiple Apartment Tax Arrangement, which had serious economic and legal ramifications, and which could not be addressed in a hasty, routine manner.  It was further emphasized that no one characteristic of the process under review, alone, constitutes grounds for annulling the legislative procedure. However, when members of Knesset are required to hear the reading of the provisions of a bill – “new” as well as “old” – understand and assimilate the explanations, express an opinion and listen to other opinions under such time restraints and haste, in the middle of the night, and following long, exhausting debates of other issues, while all the while being pressed to hurry, it becomes clear that no real debate can be held. Inasmuch as the members of the Finance Committee who so desired were not granted an opportunity to conduct a proper debate and form a considered opinion in regard to the Multiple Apartments Tax Arrangement, the principle of participation was clearly and substantially infringed. Under such circumstances, there is no recourse but to hold that there was a flaw going to the heart of the legislative process of the Multiple Apartments Tax.

10.       Incidentally, Justice Sohlberg noted that the “abandoning” of the Finance Committee debate by members of the opposition may have had its political reasons, but such conduct does not provide grounds for judicial review of the process. Judicial review of the legislative process focuses upon the possibility afforded the Knesset members to conduct a debate and establish a position in regard to the bill. A Knesset member’s choice to relinquish that possibility does not itself justify judicial intervention.

11.       As for the remedy, Justice Sohlberg held that the finding of a flaw going to the heart of the legislative process does not necessarily require the nullification of the legislation under review. A distinction must be drawn between the question of the existence of a flaw going to the heart of the process and the question of the conclusion to be drawn from such a flaw. The decision as to the consequences of a flaw in the legislative process must be examined in light of the doctrine of relative voidness. In that framework, consideration must be given to the public interest that may be harmed from declaring a law or administrative act to be void, as well as to the extent of reliance upon the legislation, the scope of reasonable expectations that it created, and the consequences of declaring it void.

12.       Justice Sohlberg addressed the proposal of the Knesset’s attorney that a “warning of voidness” – a cautionary sign for the future – would suffice, but held that it would be inadequate under the circumstances. From a forward looking perspective, a mere warning would be insufficient in view of the seriousness of the defect in the legislative process, as well as in light of the opinion of the Knesset’s legal adviser in regard to the need to give expression to the principle of participation and the need to set a minimum standard, and also owing to the fact that warnings – that were, in effect, “warnings of voidance” – were repeatedly given in the past, along with expressions of great concern in regard to flaws in hasty  legislative procedures in regard to the Arrangements Law and other laws.

13.       The arguments in regard to expectations created by the Tax Arrangement were examined, along with the reliance upon its provisions in the marketplace and the public arena, and particularly by individuals, but such expectations were not found sufficient to justify retaining the Tax Arrangement. While some individuals and some of the public would certainly lose due to the nullification of the Multiple Apartments Tax, that loss would be made up for by the gain of proper legislative practices. Moreover, an examination of the protocol of the Finance Committee’s debate, and in light of the arguments made by the parties, the possibility cannot be ruled out that a proper debate in the Committee prior to the second and third readings may have resulted in changes in the content of the chapter concerning the Multiple Apartments Tax that would have influenced the ultimate legislative product.

14.       In this regard, Justice Sohlberg emphasized that the judgment was entirely focused upon the legislative process, and not on the content or wisdom of the Tax Arrangement. The Knesset may reenact the Multiple Apartments Tax Arrangement, and such a reenacting would not be what is polemically referred to as a “High Court bypass law”. A proper legislative process could give the Tax Arrangement legal force. Only then will the Arrangement’s expectations, reliance interests, and purposes be properly founded.

15.       Lastly, it was held that despite the severity of the defect in the legislative process, it was centered in the Committee’s deliberations in preparation for the second and third readings. That being the case, it would be proper that the remedy be focused upon what needed correction and not beyond that. There is no need or justification for voiding the entire legislative process and starting again from the beginning, which would cause greater harm than benefit. In light of that, Justice Sohlberg proposed ordering the Multiple Apartments Tax Arrangement relatively void, that is, it would not be necessary to repeat the legislative stages prior to the Committee’s deliberations in preparation for the second and third readings, and the legislature could “return” to the legislative process from the stage of deliberation in the Finance Committee – the stage at which the defect occurred – and continue as required.

16.       President M. Naor concurred in the judgment of Justice Sohlberg, the main points of which were presented above, and added only a few comments of her own. Inter alia, President Naor addressed the role of the chair of a Knesset committee and that of the chair of the Finance Committee in particular. The President noted that while the role of the chair of the Finance Committee is complex and requires consideration of various interests, ultimately, as the chair of a Knesset committee he must ensure the principle of parliamentary independence and the conducting of a proper legislative process. On one hand, he must ensure efficient debate, while on the other hand, he must not surrender to a demand to bring a law to a vote at any price and at any time. Against this background, the President noted that in the instant case the Chair of the Finance Committee should have acted differently, for example, by convening a further hearing on the bill on the following day, as was requested by some of the committee’s members. The President further noted that the Court had expressed criticism in regard to the legislative process, but had refrained from intervening in a law that had been enacted by such a process due to the restraint and moderation demanded by the relationship among the branches of government. However, she emphasized that this does not mean that “everything is permitted” in legislative proceedings. When the separation of powers is undermined, it is the role of the Court to ensure that each branch act within its own realm.

17.       Justice E. Hayut concurred in the judgment of Justice N. Sohlberg, and noted that given the inherent problems of accelerated legislative proceedings, as in the case of the Arrangements Law, there is no avoiding the presumption that such proceedings are facially susceptible to defects. She therefore added that it is important to establish rules and criteria that would lessen the threat, and it is regrettable that such rules have not been incorporated into the Knesset rules even 13 years after the Poultry Growers case. Justice Hayut noted that the Knesset’s legal adviser, Advocate Eyal Yinon, faithfully fulfilled one of his central statutory roles in clearly explaining to the Knesset House Committee, in advance, the importance of strict observance of the proper legislative procedures despite the pressing schedule. However, the new draft of the Multiple Apartments Tax Arrangement was only presented for the review of the members of the Finance Committee at the outset of the debate upon it, which raised objections from Knesset members from the entire political spectrum, as well as by the committee’s legal adviser. Under such circumstances, “the writing was on the wall” and it was clear that the debate that was about to take place under such circumstances would be improper and tainted by a defect that went to the heart of the process. In regard to the Knesset legal adviser’s letter warning that there was a defect going to the heart of the legislative process of the Multiple Apartments Tax Arrangement, and the Knesset Speaker’s letter asking the chair of the Finance Committee to consider reconvening the committee in view of the defects in the legislative process, Justice Hayut noted that one might have expected that such an exceptional letter from the Knesset legal adviser, especially when accompanied by a request from the Speaker, would have fallen on attentive ears. Unfortunately, the chair of the Finance Committee did not heed that call, and we have thus arrived at this juncture. Inasmuch as more-than-sufficient “warnings of voidance” were given in this matter, Justice Hayut concurred in the opinion of Justice Sohlberg and the remedy he proposed.

18.       Justice N. Hendel concurred in the opinion of Justice N. Sohlberg, and expanded upon the theoretical and practical importance of the right of Knesset members to participate in legislative proceedings from the perspectives of political theory and Jewish law. Often, modern legislation is not the product of philosophical enquiry seeking truth and justice, but rather of political negotiations that involve political pressure and the relinquishing of principles. However, such a procedure does not violate the honor of legislation, as that derives from the nature of the common social project reflected by lawmaking. That joint creation that balances the values of all parts of society is a significant achievement that grants the law a special status worthy of public respect. But that is only true if the representatives of all the public were afforded an opportunity to participate in the legislative process. It is that participation that makes the law a foundational, unifying force, and transforms the exigencies of the process from coercion to a source of strength.

            Justice Hendel further addressed the question of the duty of Knesset members to participate in the legislative process. Jewish law stresses the recognition of this view in light of the conception of the public’s elected representatives as partners, agents and trustees of the public. Common to these approaches is a raising of the bar required of the holders of elected office. Justice Hendel’s opinion referred to a number of halakhic decisors who were active at the time of the establishment of the State of Israel and thereafter who were supportive of democracy in general, and of the State of Israel in particular. As opposed to Jewish law, Israeli law leaves the duty of Knesset members to participate in the legislative process to the public sphere. But that public duty of participation also carries legal weight when the scope of the right to participation is examined.

            The importance of the right of participation and the existence of a “public duty” of Knesset members to participate in the legislative process lead to the conclusion that, in the instant case, members of Knesset were actively deprived of that right of participation to an extent of a flaw going to the heart of the process that leads to the nullification of the law.

 

Dissent of Justice M. Mazuz:

 1.        Justice M. Mazuz, dissenting, was of the opinion that the petitions should be denied. He disagreed with the Court majority both in regard to the principles applied in reviewing the process in this case, as well as in regard to the application of those principles to the instant case.

2.         In the opinion of Justice Mazuz, the majority’s approach constituted an unjustified, substantive deviation from over three decades of the Court’s consistent precedent in regard to judicial intervention in the Knesset’s legislative process. The approach to intervention in the Knesset’s work procedures had, until now, been limited to protecting the democratic “rules of the game”. It was accordingly held that the Court would intervene in the internal decisions of the Knesset only when confronted by a serious violation of “substantive values of our constitutional regime” (the Sarid rule [HCJ 652/81 Sarid v. Speaker of the Knesset, IsrSC 36(2) 197]). That position was justified, inter alia, by considerations of the separation of powers and mutual respect among the branches of government.

3.         As far as the constitutional review of a law on a claim of flaws in its legislation, the leading case in this matter (the Poultry Growers case) established a more exacting rule under which the Court’s intervention is limited only to cases in which it is proven that the legislative process was tainted by “a defect in the legislative process that ‘goes to the heart of the process.’ A defect that ‘goes to the heart of the process’ is a defect that involves a severe and substantial violation of the basic principles of the legislative process in Israel's parliamentary and constitutional system”. That rule, which the Court reiterated on numerous occasions, focuses upon preserving the democratic “rules of the game” in regard to the legislative process (“the basic principles of the legislative process”), and expressly held that the Court would not review the legislative process on the basis of arguments as to the quality of debate (“proper legislative process”). In accordance with that rule, all of the many petitions submitted in this matter to date were unanimously denied.

4.         Justice Mazuz was of the opinion that although the majority viewed their position as implementing the extant rule in this matter, its approach actually represents a substantive change of the rule in law and in practice. In practice, the majority approach abandons the rule established in the Court’s consistent precedent that focuses upon protection of a Knesset member’s right of participation in the legislative process, and concentrates its constitutional review for claims of defects in that process upon criteria that concern the quality of the of the legislative debate in the Knesset (the length of the deliberations on the bill; the influence of the deliberations upon the bill; and the time that elapsed from the presentation of the bill for examination by the Knesset members and the date of the deliberations), inter alia in reliance upon criteria proposed by Victor Goldfeld in the framework of the doctrine of “legislative due process”, a doctrine expressly rejected by the Israeli Supreme Court.

5.         In the opinion of Justice Mazuz, we are concerned with a far-reaching change in the delicate, sensitive relationship between the Court and the Knesset in its primary role as the legislature – from the role of protecting the democratic “rules of the game” to that of conducting detailed review of the quality of the Knesset’s legislative debates. In Justice Mazuz’s view, this is a very problematic conception that raises a series of difficult theoretical and practical issues, both in terms of the normative aspect of the principles of constitutional review and in terms of the principle of the separation of powers and inter-institutional comity, as well as in terms of its practical consequences. This approach was expressly rejected over and over again by the Supreme Court in a large number of judgments spanning over three decades, and it has no counterpart in the law of other states.

6.         In the opinion of Justice Mazuz, an examination of the procedures adopted in enacting the Multiple Apartments Tax Law clearly shows that there was no violation of the right of the members of Knesset in general or of members of the Finance Committee in particular to participate in the legislative process. The rule of intervention established by the case law in this regard refers to a situation in which Knesset members are “denied any practical possibility” of knowing about what they are voting and of formulating their position with regard to the draft law. An examination of the matter refutes the argument that such was the case in matter before the Court.

            The proposal regarding the “Multiple Apartments Tax” was published for public review on Aug. 2, 2016. Shortly thereafter, the proposal was approved by the Government, and a memorandum of the law was published for public comment. After comments were obtained from various bodies, the bill was approved by the Ministerial Legislation Committee. The bill was submitted to the Knesset on Oct. 31, 2016, and was debated in two lengthy sessions of the Finance Committee held three weeks apart. The first session, held on Nov. 21, 2016, lasted some two-and-a-half hours. In the course of that session, the details of the bill were presented and comments and objections were voiced by members of the committee. The second session was held on Dec. 15, 2016. That marathon session lasted some eight hours, and at its conclusion, the bill was approved for submission to the plenum for a second and third reading. During this not inconsiderable period from the publication of the first proposal, the proposal was the subject of active, sometimes turbulent debate in the media and in various public forums. In addition, during the period of some three weeks between the two sessions of the Finance Committee, meetings and consultations were conducted between representatives of the Ministry of Finance and coalition and opposition members of the committee, as well as with the legal advisers of the committee and representatives of the Bar Association and the Institute of Certified Public Accountants. While by the very nature of the process, various changes were made in the bill in the course of the process, primarily in response to requests by Knesset members, these were included in the draft presented to the committee prior to the debate, and they were also presented and explained in the lengthy concluding session by senior representatives of the Treasury who were present at the session.

7.         Under these circumstances – in which the legislative process proceeded for nearly five months, including publication to the public, a plenum debate and vote in the first reading, two lengthy sessions of the Finance Committee, and a plenum debate and vote on the second and third readings – one can hardly say, in the opinion of Justice Mazuz, that the members of Knesset were denied any practical possibility of formulating their position and of knowing about what they were voting, which is the test for a constitutional violation of the right of participation.  Justice Mazuz was also of the opinion that this was not a legislative process of which to be proud. There is no doubt that the haste and urgency of the concluding session of the Finance Committee impeded the possibility for a detailed examination of the bill. However, that is not the test for intervention, particularly when the Knesset members were acquainted with the main points of the bill for some considerable time.

8.         In Justice Mazuz’s opinion, even a comparison between the circumstances and defects argued against the process in the present case and those addressed in prior judgments shows that the defects in the present case were not of a kind that differed or were of greater severity than those addressed in previous petitions that were all denied. On the contrary, in at least some of the previous petitions, including that of the Poultry Growers case itself, the defects were clearly more severe in various aspects. In the opinion of Justice Mazuz, this demonstrates that the criteria applied in this case were different from those applied in the Court’s previous decisions.

9.         Justice Mazuz was of the opinion that broadening the scope of constitutional review of legislative proceedings also raises a significant theoretical normative problem in regard to the source of authority for constitutional review of the quality of legislative proceedings themselves. Justice Mazuz surveyed the legal situation in other countries (the United States, England, Canada and Germany), and pointed out that constitutional review of legislative proceedings per se is not accepted in those countries, and that the approach adopted by the Court’s majority deviates from the accepted practice of other states.

10.       In concluding, Justice Mazuz expressed a dissenting view in regard to the appropriate remedy in this case, as well. In his view, even if there were defects in the legislative procedures that would justify the Court’s intervention – as was the view of the majority, and with which he disagreed – the operative result decided upon by the Court’s majority is not the remedy that accords with the circumstances and the principles of constitutional relief. In his view, it would have been sufficient in this case to point out the defect, which did not influence the results of the vote, or to issue a “warning of voidance”, or at most, to declare “delayed voidance”, that is, to establish a time frame during which the law would remain in force and during which the Knesset could reenact the law from the point in which the alleged defect occurred.

[Emblem]

 

In the Supreme Court as High Court of Justice

 

   HCJ 390/79

 

Before:                                    The Honorable Justice Landau – Deputy President

                                    The Honorable Justice Witkon

                                    The Honorable Justice Asher

                                    The Honorable Justice Ben Porat

                                    The Honorable Justice Bechor

           

 

The Petitioners:

 

                                    ‘Izzat Muhamamad Mustafa Dweikat et al.

 

                                    versus

 

The Respondent:

 

1. The State of Israel
2. The Minister of Defense
3. The Military Commander for Judea and Samaria
4. The Military Commander for Nablus Sub-District
5. Felix Menahem
6. Shvut Avraham

                                   

                                    Objection to Order Nisi of date 25 Sivan 5740 (June 20, 1979)

 

Adv. E. Khouri

                                    On behalf of Petitioners 1-16

 

                                    Adv. A. Zichroni, Adv. A. Feldman

                                    On behalf of Petitioner 17

 

                                    Adv. G. Bach, State Attorney

                                    On behalf of Respondents 1-4

                                   

                                    Adv. R. Cohen, Adv. M. Simon

                                    On behalf of the Respondents 5-6

 

 

 

 

Abstract

 

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land privately owned by Arab residents. On the morning of June 7, 1979, Israeli citizens, assisted by the IDF, began to settle on a hill east of the Jerusalem-Nablus road. The hill is entirely on rocky and undeveloped land. The land was privately owned by, and registered to, the petitioners in the Nablus registry. Two days before the settlers arrived on the land, the Commander of the Judea and Samaria area, signed an Order for the possession of land that declares the lands were possessed for military needs.

The petitioners approached this court on June 14, 1979, and on June 20, 1979, an order nisi was granted against the respondents, ordering them to show cause why the court should not declare the Orders of Possession invalid. An interim order was also issued to prohibit any additional digging, construction, or settlement of additional citizens on the relevant land.

In the responding affidavit, the Chief of the General Staff explained that a civilian settlement at that location was required for security purposes, because in a time of war, military forces may leave the base in order to execute mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. Opposing the Chief of General Staff, the Minister of Defense believed that these security needs could have been met in ways other than a settlement at the relevant site. Additionally, according to Lieutenant General (Res.) Bar-Lev, during wartime, IDF forces would be grounded to secure the civilian settlement, instead of engaging in combat with enemy forces.

 

The main issue the court considered (in a majority opinion by Deputy President Landau), was whether it may be legally justifiable to build a civilian settlement on the relevant site, despite having taken possession of private property for such purposes. For each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

 

The legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander, an order that is directly rooted in the powers that international law grants a military commander in territories occupied by his forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to the laws of war under international law. Substantively, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the authorities granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. Customary international law is in any event part of Israeli law to the extent it does not conflict with domestic legislation.

 

The court discussed the Beit El case (HCJ 606/78), in which a civilian settlement was found to comply with Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation”, and held that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” Here, the Court interpreted military needs to include “ensur[ing] public order and safety” under Article 43 of the Hague Regulations, as well as – under Article 52 – what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity, which may come both from outside and from within. It must be demonstrated, according to the facts of the case, that military needs were those which effectively motivated the decision to build a civilian settlement at the relevant site. The court found that here, the professional opinion by the Chief of the General Staff, in itself, did not lead to the decision to build the settlement of Elon Moreh, but that the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the Government was actually the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. Both the Ministerial Committee and the Government majority were determinatively influenced by reasons that are of a Zionist worldview as to the settling of the entire Land of Israel.

 

Military needs, under international law, cannot be construed, by any reasonable interpretation, as including national security needs in their broad sense. Where the needs of the military are concerned, one would expect military officials to initiate the settlement on that particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the Government for approval of the settlement. Here, it is clear that the process was inverted: the initiative came from the political level and the political level reached out to the Chief of the General Staff for his professional opinion. The fact that those charged with assessing the military needs were not those who initiated the process to settle that particular site, but that, instead, their approval of that site was given only after the fact, in response to the initiative of the political level, demonstrates that there, in fact, was no military necessity to take private property in order to build a civilian settlement, as required by the terms of Article 52 of the Hague Regulations. It was not proven that in establishing this civilian settlement, the military preceded the act of settlement with thought and military planning. Instead, the pressure exerted by the people of Gush Emunim was what motivated the Ministerial  Committee. Military considerations were subordinate to the political decision to build the settlement. As such, this does not meet the strict demands of the Hague Regulations as to preferring military needs over the individual’s right to property.

The Court also addressed the issue of how a permanent settlement can be established on land that was possessed only for temporary use. The decision to establish a permanent settlement that is intentionally designed to stand in its location in perpetuity – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were, in advance, intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown.

The concurring opinion by Justice Witkon reiterated that the legal framework is the state authorities’ actions both in light of the domestic (or “municipal” as it is commonly termed in this context) law and in light of international law. There is no dispute that the force of the orders, in terms of the domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” Here, however, even the experts charged with state security are divided as to the need for settlement in the relevant location

Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense and the Chief of the General Staff. In terms of the hierarchy between them there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the court.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, the court asks: who bears the burden of proof? Justice Witkon held that the burden is placed upon the respondents. The law does not give the commander’s assertion that the taking of possession in required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. The court need not be convinced of the sincerity of the consideration, but rather of its correctness.

 

The Court must not allow a serious infringement of property rights unless it is satisfied that it is necessary for security purposes. Here, as noted, the Minister of Defense himself was not persuaded this possession was necessary. It is not the court’s business to engage in political or ideological debates; but it is the court’s duty to examine, whether pure security considerations justify taking possession of land for the purposes of settling at that location. To determine this, Justice Witkon thought it important to know what the settlers’ position was. If they were not motivated, primarily, by security purposes, the court struggled to accept that this indeed was the purpose of their settlement.

Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations. Here, too, the test is the military need, and when one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either.

The question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of Article 49(6) of the Geneva Convention is not easy, and, as far as we know, it has yet to be resolved in international case law.

In his concurring opinion, Justice Bechor found that, had the court reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs, which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, he would have endorsed his action. But, as the Deputy President demonstrated in his opinion, the action of the military commander exceeded in this case the limits of its power under international law.

 

Judgment

Deputy President Landau

For this petition, we must consider the legality of establishing a civilian town (settlement) in Elon Moreh, on the outskirts of the city of Nablus, on land that is privately owned by Arab residents. A similar issue was decided by this Court in HCJ 606/78, Suleiman Taufic Ayuv et al. v. the Minister of Defense and 2 Others; Jamil Arsam Mataua and 12 Others v. the Minister of Defense and 3 Others, IsrSC 33(2) 113, 127, 124-129, 128-129, 131, 132-133, 120, 126, 116, 118, 119 (hereinafter for brevity: the Beit El matter), on March 13 1979. We ruled there that the establishment of two civilian towns on private lands in Beit El near Ramallah and in the B Valleys by Tubas violated neither domestic Israeli law nor customary international law, which constitutes part of domestic law, as both towns were established for military purposes, as we interpreted the term.

It was said in the Beit El case (bottom of page 128), in terms of the justiciability of this issue, that the problem of the settlements “is in dispute between the government of Israel and other governments, and that it is liable to be at issue at fateful international negotiations in which the Government of Israel is involved.” Meanwhile, the intensity of the dispute has not since subsided in the international arena; moreover, it has intensified within the Israeli public discourse, as well, as reflected in the very decision to build a civilian settlement in Elon Moreh, which was adopted by a majority vote in the Israeli cabinet. This, therefore is a pressing issue that is hotly debated within the public. In HCJ 58/68, Binyamin Shalit v. Minister of Interior , IsrSC 23(2) 477, 521, 530 (the issue of “who is a Jew”), I wrote (at the bottom of page 521) of “… the grim result in which a court seemingly abandons its rightful place, above the disputes that divide the people, with its justices themselves entering the fray…”, and on page 530, I explained – as one of the minority justices – that the Court must refrain from ruling on the dispute there, when it has no valid source for its ruling. I added that even in such case, “there may be instances where a justice sees himself as compelled to respond with his personal position on matters pertaining to his own worldview, though it is controversial.” This time we have valid sources for our ruling and we need not, and further – must not, when adjudicating, involve our personal views as citizens. Still, there is great concern that the Court might be seen as having abandoned its rightful place in entering the fray of public controversy, and that its decision might be received by part of the public with applause and by the other part with complete and passionate rejection. In this sense, I see myself here as obligated to rule in accordance with the law, in any matter lawfully brought before this Court. That is what compels me, knowing full-well in advance that the public at large would pay no attention to the legal reasoning, but only to the ultimate conclusion, and that the Court, as an institution, could have its rightful stature compromised, beyond the disputes that divide the public. But what can we do? This is our role and this is our duty as justices.

On the morning of June 7, 1979, Israeli citizens, assisted by the Israel Defense Forces (IDF), began to settle on a hill, located about 2 kilometers east of the Jerusalem-Nablus road, and about the same distance south east of the intersection of that road with the road descending from Nablus toward the Jordan Valley. The operation was carried out with the assistance of helicopters and heavy machinery. A road was forged from the Jerusalem-Nablus road to the hill. The entire hill is rocky and undeveloped land (aside from a small plot on the site’s north-west side, which was plowed and planted only recently, and in the opinion of the respondent’s expert, this was done out of season, at a location where there is no prospect of any financial gains from the produce). However, forging the 1.7 kilometer road, required harming the existing sorghum crops, in a territory of about 60 meters long and 8 meters wide, as well as about six four-year-old olive plants.

The hill is located within the lands of the Rujeib village, which is located nearby to the northwest. The seventeen petitioners, who are residents of the village, hold plots registered to their names in the Nablus registry after having gone through a process of land regulation. The total area of their plots is about 125 Dunams. The petitioners hold no rights of ownership in the land of the forged road.

On June 5, 1979, two days before the settlers arrived on the land, Brigadier General Binyamin Ben Eliezer, the Commander of the Judea and Samaria area, signed an Order for the possession of land number 16/79 (hereinafter: “Order of Possession” or “Order of Possession n. 16/79” – ed. note). The heading of the Order of Possession reads: “Under my authority as area commander, and because I believe it to be required for military needs, I hereby order as follows:…”. And in the body of the Order the signer declares a territory of about 700 dunams, defined by a map that was appended to the order, as “possessed for military needs.” Petitioners’ plots are included within this territory. Section 3 of the order stipulates that any lawful owner or holder of the land included in the territory would be permitted to submit, to a Claims Department Officer, a claim for periodical use fees, due to the possession of the land, and for compensation for any real damage caused in the course of the taking of possession. Under section 5, “notice of the contents of the order will be given to owners or holders of land located in the territory.” A similar order pertaining to the terrain of the road to the hill (number 17/79) was signed only on June 10, 1979 – three days after the settlement on the land. As for giving required notice to the land owners, including the petitioners, it turns out that only on the actual day of the settlement on the land, at 8 am, around the time the works on the site began, a notification of the order was given to the leaders (mukhtars) of the Rujeib village, who were summoned to the office of the Nablus military ruler. Written notices were given to the leaders only on June 10, 1979, for delivery to the land owners. In the responding affidavit for this petition, Lieutenant General Raphael Eitan, the Chief of the General Staff, says that it would have been appropriate to give advance notice to the land owners of the intent to possess the land, as is customary as a general rule in similar cases, and that he has instructed that, in the future, such notices be given to the relevant land owners at an appropriate time before the possession of the land. It is unclear why those in charge deviated from the prevailing custom this time. It seems that the arrival on the land was organized,  as if it were a military operation, exploiting the element of surprise, with the intent of preempting the “risk” of this Court’s intervention, as some the land owners had already approached the Court prior to the commencement of the work on the site.

The petitioners approached this Court on June 14, 1979, and on June 20, 1979 an order nisi was granted against the respondents – the Government of Israel, the Minister of Defense, the regional Military Commander of Judea and Samaria, and the Military Commander of Nablus – ordering them, inter alia, to show cause why the Orders of Possession should not be invalidated and why the instruments and structures on the land should not be removed in order to prevent the building of a civilian settlement on the land. Additionally, an interim order was issued to prohibit any additional excavation or construction on the relevant land, as well as the settlement of any additional citizens on it, in addition to those who settled on it before the interim order was granted. This interim order is in effect until today, with certain changes made at the request of the settlers over the course of the hearing of the petition.

In the responding affidavit, the Chief of the General Staff explained that in his opinion establishing a civilian settlement at that location is required for security purposes, and that his position as to the security significance of the territory and the settlement on it was brought to the knowledge of the Ministerial Committee for National Security Affairs,. The Ministerial Committee resolved in its meetings on May 8, 1979 and May 10, 1979 to approve the possession of the land through an Order of Possession for the purposes of building the settlement, and, following these decisions, which were approved by the Cabinet in its meeting on June 3, 1979, the area Commander of Judea and Samaria issued the Order of Possession in question. Lieutenant General Eitan, in his affidavit, elaborated on the important contribution of civilian settlements to the protection of the Jewish population, dating back to before the establishment of the state, as well as during the War of Independence. He discussed the security purposes that these settlements fulfill in terms of regional defense and in terms of the IDF’s organization, both in periods of calm and in times of emergency. With great emphasis, the Chief of the General Staff expressed his unequivocal opinion regarding the importance of regional defense, suggesting serious criticism of those who neglected regional defense, bringing it to an “all time low,” in his words, by the 1973 Yom Kippur war, when the military’s mindset still rested on the laurels of the victory in the Six Day War. However, “after the 1973 War, regional defense was restored to its greatness, which it was denied by hubris and fundamentally wrongful consideration as to its contribution.” Today, the regional defense communities are armed, fortified, and properly trained for their mission to protect the area where they live, and their location on the ground is determined with consideration for their contribution to controlling the area and assisting the IDF in its various missions. The Chief of the General Staff explained the unique importance attributed to a civilian settlement, as opposed to a military base, because in war time, the military units may leave the base for the purposes of executing mobile missions or attacks, whereas the civilian settlement remains in its place. Being properly armed, it controls its surroundings, in observation and protection of nearby traffic arteries, in order to prevent the enemy from seizing control. This is particularly pertinent when reserves are recruited in a time of war – and in this case, in a time of war on the eastern front. At such a time, the military units must move toward their designated locations, which are spread out. The import of controlling traffic arteries in order to ensure quick and uninterrupted movement, therefore grows. Nablus and its surroundings sit at an irreplaceable crossroad, rendering control of nearby roads especially important. Elon Moreh sits over a number of such roads; these are the Ramallah-Nablus road, the Nablus-Valley road through Jiftlik, and an additional road to the Valley through Aqraba and Majdal, which also runs close by to the south.

There is no doubt, and even the petitioners’ attorneys – Mr. Elias Khouri on behalf of petitioners 1-16 and the respected sirs A. Zichroni and A. Feldman for petitioner 17 – do not dispute, that Lieutenant General Eitan is absolutely sincere and deeply convinced of his positions, which are a matter of his professional expertise as the highly experienced military man that he is. But he does not conceal that there is dispute over his conclusion as to the crucial importance of building a civilian settlement on the site chosen for Elon Moreh. In paragraph 23(d) of his affidavit he says as follows:

“I am aware of the opinion of respondent no 2, who does not dispute the strategic significance of the relevant area, but believes that security needs may be met in ways other than a settlement at the relevant site.”

Respondent no. 2 is the Minister of Defense. An usual circumstance has arisen in which the respondents themselves hold diverging opinions on the subject matter of the petition, such that the Chief of the General Staff’s affidavit must be viewed as representing the opinions, both of the military authorities as well as of the Israeli Government, which decided this matter by a majority vote on an appeal submitted by the Deputy Prime Minister challenging a decision by a ministerial committee (the Deputy Prime Minister too, like the Minister of Defense, is a clear authority on military matters, having previously served as the second Chief of General Staff of the IDF). The petitioners were also permitted to submit additional expert opinions, one by Lieutenant General (Res.) Haim Bar-Lev, and the other by Major General (Res.) Mattityahu Peled. Lieutenant General (Res.) Bar-Lev expressed his professional assessment that Elon Moreh does not contribute to Israel’s security as it is unhelpful, both in combatting acts of terror and sabotage in times of calm, as well as in times of war on the eastern front, because a civilian settlement located on a hill about 2 kilometers from the Nablus-Jerusalem road cannot facilitate securing this traffic artery, and in any event there is a large military base located close to the road itself, which controls central traffic arteries to the south and to the east. In fact, according to Lieutenant General (Res.) Bar-Lev, hostile activity against the settlement during wartime, would necessitate the deployment of forces to secure the settlement, at the expense of engaging those forces in combat with enemy forces. The apparent response to these misgivings in Lieutenant General Eitan’s affidavit is that the primary significance of a civilian settlement on the relevant site is not for the purposes of combating hostile terrorist activity, and that this was not the Chief of the General Staff’s reason for taking possession of the site, but that the main importance may be revealed specifically during wartime, because, in war, the very  base that Lieutenant Bar-Lev speaks of would be vacated, and that there is no comparison between a civilian settlement that is currently integrated into the regional defense strategy and  the civilian settlements of the past, in terms of the quality of its ammunition, equipment and level of training. The opinion of Major General (Res.) M. Peled is detailed and his conclusion is that “the argument as to the security value attributed to the ‘Elon Moreh’ settlement is made in the absence of good faith and for one purpose alone – to justify taking possession of land that cannot be justified otherwise.” I did not find in Peled’s opinion any discussion of Lieutenant General Eitan’s primary reason, that is the role of a settlement located in the relevant area to safeguard the freedom of movement on nearby roads as reserves forces are spread along the eastern front during wartime. As for the opinion of Lieutenant General Bar-Lev and other military experts who share his position, I have no intention to insert myself between experts. It will suffice for me to say here, too, as we said in HCJ 258/79 (unpublished) as follows:

“In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.  Very convincing evidence is necessary in order to negate this assumption.”

 

And it was also said there that:

“In matters of professional military assessment, the Government would surely guide itself primarily by the counsel it receives from the Chief of the General Staff.”

Indeed, we mentioned there the “giver of the respondents’ affidavit,” whereas here the respondents are divided in their opinions. But as we have heard from Mr. Bach, the learned State Attorney, who argued on behalf of respondents 1-4, that despite his difference in opinion, the Minister of Defense accepted the decisions of the cabinet majority and – complying with his constitutional duties as the government-appointed supervisor of the military under section 2 of Basic Law: The Military – passed the Government’s decision on to the Chief of the General Staff for its implementation.

At the core of the discussion in this petition must stand a factual analysis, insofar as these facts have been uncovered by the evidence before us, in light of the law, and particularly in light of our ruling in the Beit El case. But before I turn to that, I must first complete the presentation of the facts themselves, as we have received additional factual material in the Chief of the General Staff’s written response to a questionnaire we drafted, after hearing the main oral arguments by the parties’ attorneys, in order that he respond to it, instead of to an oral cross examination that petitioners’ attorneys sought. The responses to the questionnaire and other documents that the learned State Attorney was permitted to submit shed additional light on the facts of the case, expanding and deepening our understanding and evaluation of these facts, beyond what was included in Lieutenant General Eitan’s affidavit and the first affidavit by Mr. Aryeh Naor, the Government Secretary, which mentioned decisions by the Ministerial Committee for National Security Affairs and by the Government in the Ministers’ Committee’s appeal. The following is the picture that is ultimately revealed:

1. On January 7, 1979, following an unlawful protest (“an unauthorized protest” as the Government secretary puts it in his affidavit) of people from “Gush Emunim” on a road in the Nablus area, the Ministerial Committee for National Security Affairs convened, resolving the following:
   
   1. The Government sees the “Elon Moreh” group as a candidate for settlement in the near future.
   2. The date and location of the settlement will be determined by the Government in accordance with appropriate considerations.
   3. When determining the site for the Elon Moreh settlement the Government will take into considerations, to the extent possible, the group’s wishes.
   4. The people of “Elon Moreh” must now return to the camp from which they came.
2. Following this resolution of the Ministerial Committee for National Security Affairs, representatives of the Ministerial Committee on Settlement Affairs conducted a preliminary tour of the area, in order to find a proper site for the “Elon Moreh” group to settle. Five alternative locations in the area were suggested, each submitted for examination by the IDF. The entities charged with the matter in the Judea and Samaria Area command and at the General Staff examined each of the proposed locations and decided, based on IDF considerations, that two of the suggested locations should be thoroughly explored. One of these locations was a site recommended by the Minister of Agriculture, who is the Chair of the Ministerial Committee on Settlement Affairs and a member of the Ministerial Committee for National Security Affairs. The second site is the site that was ultimately chosen by the IDF and is the subject of this petition (para. 2(d) of the Chief of the General Staff’s answers to the questionnaire.)

The Judea and Samaria Area command examined the possibility of finding some territory in the area that is not privately owned, but no such location was found (Ibid., para. 2(e)).

3. On April 11, 1979 (likely after the abovementioned preliminary tour and as a result thereof) the Chief of General Staff gave his approval that General Staff authorities charged with the matter take possession of the area for military purposes (Ibid, para. 2(b)).
4. In anticipation of a hearing that was to be held by the Ministerial Committee for National Security Affairs, the Chief of the General Staff was asked as to his opinion, and on May 3, 1979 he once more notified the above authorities at the General Staff, through his bureau chief, that in his view there is a military need for taking possession of the territory. (Ibid., loc. cit..)
5. The opinion of the Chief of the General staff was brought to the attention of the Ministerial Committee for National Security Affairs while it discussed the settlement in its session on May 8, 1979 (Ibid., loc. cit., and the first affidavit by the Government Secretary, para. 4.) In that session, the Ministerial Committee for National Security Affairs decided to support the Order of Possession for military necessities (first affidavit by the Government Secretary, para. 3(a)).
6. On May 30, 1979, the Ministerial Committee for National Security Affairs reaffirmed its decision from May 8, 1979 (Ibid, para. 3(b)).
7. The Deputy Prime Minister appealed the decision by the Ministerial Committee for National Security Affairs before the Government Cabinet and on June 3, 1979 the Cabinet rejected his appeal by a majority vote and upheld the decision of the Ministerial Committee.
8. On June 5, 1979 Brigadier General Ben Eliezer signed the Order of Possession, and on June 7, 1979 the settlers arrived on the site, assisted by the military, as recounted above.

Here, I will discuss two arguments by Mr. Zichroni on behalf of petitioner no. 17, in order to dispose of them before delving into the core matters of this petition. He argues that there was a constitutional flaw in the decision-making process in regards to the settlement, because under Basic Law: The Military, the Minister of Defense is the Chief of the General Staff’s superior, so his opinion on military matters is prioritized over the opinion of the Chief of the General Staff, as well as over the opinion of the Ministerial Committee for National Security Affairs and that of the Government itself, both of which operate under Basic Law: The Government. Consequently, the Government (or the Ministerial Committee for National Security Affairs) was unauthorized to decide contrary to the position of the Minister of Defense. This argument must be rejected. Indeed, the Minister of Defense is the supervisor of the military on behalf of the Government under section 2(b) of Basic Law: The Government, but the military is subordinate to the Government as a body, according to section 2(a) of that same Basic Law, and so the Chief of the General Staff is subject to the authority of the Government under section 3(b), though he directly answers to the Minister of Defense, as that same section provides. Therefore, as long as the Government has not decided on a particular matter, the Chief of the General Staff must follow the instructions of the Minister of Defense. However, once a matter was brought before the Government, a decision by the Government binds the Chief of the General Staff, as the Minister of Defense is but one of the members of the Government. As long as he remains a member of the Government he bears, together with his fellow ministers, joint responsibility for its decisions, including decisions made by a majority against his own opinion. Such  is also the case for decisions by ministerial committees appointed by the Government, either as a permanent committee or for a certain issue according to section 27 of Basic Law: The Government, because in the absence of an appeal to the Government, even were an appeal submitted and rejected, the fate of a decision by a ministerial committee is as the fate of a decision by the Government in its meeting, as provided by section 32(c) of the Government Operations Regulations.

The road is now open to discussing the main issue: whether it may be legally justifiable to build a civilian settlement on the relevant site, despite the taking of possession of private property for such purposes. In the Beit El case, we resolved a similar question in the affirmative, both under domestic, municipal Israeli law, as well as under customary international law, because we were persuaded that military needs required building the two civilian settlements in question, on the very sites where they were built. It is self-evident, and Mr. Bach also notified us that this was well explained during the meetings of the government, that this ruling does not constitute the Court’s endorsement of all takings of possession of private land for the purposes of civil settlement in Judea and Samaria, but that for each and every case it must be examined whether military needs – as this term must be interpreted – did indeed justify taking possession of private land.

At the outset of this discussion stands now – unlike in the Beit El case – the argument by two settlers of the “Elon Moreh” site who are the members of the settlers’ council and who were permitted (Motion 568/79) to join this petition as respondents, since Justice Y. Cohen who decided the motion found them to have a material interest in the petition. In their affidavits and pleadings, these additional petitioners painted a broad picture, far beyond what was argued by the original respondents. In the affidavit given by Mr. Menachem Reuven Felix, it was explained that the members of the group settled in Elon Moreh because of the divine commandment to inherit the land given to our forefathers and that “the two elements therefore of our sovereignty and settlement are interlinked” and that “the act of settling the people of Israel in the land of Israel is the act of security that is most real, most efficient, and most true. But the settlement itself… does not stem from security purposes or physical needs but from the force of a calling and from the force of Israel’s return to its homeland.” And he later declares:

“Elon Moreh is located in the heart of hearts of the Land of Israel in the deepest sense of the word, indeed both geographically and strategically, but first and foremost it is the place where this land was first promised to our first forefather and it is the place where the first property of the father of our nation, which this Land – the Land of Israel – is his namesake, was acquired.

…

Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

And after citing Numbers, 33, 53: “And you shall take possession of the land and settle in it, for I have given you the land to possess”, he adds as follows:

“Whether some of the settlers of Elon Moreh will be incorporated into regional defense according to IDF plans, or not, settling the Land of Israel , which is the calling of the People of Israel and the State of Israel, is in any event in the safety, wellbeing, and in the best interest of the People and of the state.”

Regarding petitioners’ arguments, which are based on international law, including various international treaties, he has adopted an explanation received from his attorney, that international law bears no relevance because the conflict is an internal dispute between the People of Israel returning to their homeland and the Arab residents of the Land of Israel and that this is not an “occupied territory” or “held territory” but the heart of the Land of Israel, our right over which is undisputed, and second – because even factually and historically we are concerned with Judea and Samaria which were part of the British Mandate and were conquered by physical force by our neighbor to the east – an act of conquest and annexure never recognized by anyone (except for England and Pakistan.) This is the crux of the affidavit.

Even those who do not share the views of the giver of the affidavit and his cohort must respect their profound religious faith and the spirit of devotion that motivates them. But we who preside in a state committed to the rule of law, where religious law is applied only to the extent permitted by secular law, must apply the laws of the state. As to the  giver of the affidavit’s views regarding property rights in the land of Israel, I assume he does not mean to say that under Jewish law it is permissible to void the private property, for any reason, of anyone who is not of our religion. After all, our scriptures state explicitly that “the foreigner living among you will be as a citizen and you shall treat him as your own as you were foreigners in the land of Egypt” (Leviticus 19:34.) In the literature submitted to us by the other respondents, I found that the Chief Rabbi, I.Z. Hertz, of blessed memory, mentioned this verse when the British Government solicited his opinion on the draft of the language of the Balfour Declaration. In his response, he said that referencing the civil and religious rights of the non-Jewish communities in the Declaration’s draft was but a translation of that same fundamental principle from the Torah (Palestine Papers 1917-1922, Seeds of Conflicts (John Murray) p. 13). This was the authentic voice of Zionism, which insists upon the Jewish people’s right of return to its homeland that was also recognized by other nations, for instance in the preamble to the Mandate for Palestine, but never sought to strip the residents of the land, members of different peoples, of their civil rights.

This petition includes a compelling response to the argument which seeks to interpret the historical right guaranteed to the People of Israel in the Torah as violating property rights under private property law. After all, the legal framework for deciding this petition is defined first and foremost by the Order of Possession issued by the area commander and this order is, by all accounts, directly grounded in the powers that international law grants a military commander in territories occupied by its forces during a time of war. Additionally, the discussion is framed by the tenets of the law that has been implemented by the Israeli military commander in the Judea and Samaria area – this too according to international humanitarian law. These tenets are found in Proclamation No. 1 published by the military commander on June 7, 1967 whereby on that day the IDF entered the area and assumed control and the establishment of security and order, as well as in Proclamation No. 2 from that day that establishes in its section 2 that:

“The law that applied in the area on June 6, 1967 will remain in effect, to the extent it does not conflict with this Proclamation or any other proclamation or order issued by me and with appropriate changes resulting from establishing the rule of the IDF in the area.”

Also, section 4 of that same proclamation should be mentioned, where the commander of the Judea and Samaria area declared:

“Movable and immovable property… that was owned or registered to the Jordanian Hashemite state or government or a department or agent thereof or any part thereof, located in the area, will be passed into my exclusive possession and will be managed by me.”

These proclamations are the legal basis for the military rule in Judea and Samaria, which still exists there to this day, without having been replaced by another form of rule. Mr. Rahamim Cohen, on behalf of the additional respondents (the people of the Gush Emunim group) directed our attention to the Jurisdiction and Powers Ordinance, 1948, which establishes in section 1 that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” Although the Minister of Defense did not issue a proclamation defining Judea and Samaria as occupied by the IDF for the purposes of this section, but – as Mr. R. Cohen says – the main point is that the Provisional State Council, as the sovereign legislature of the State of Israel, authorized the Minister of Defense to issue orders as to any part of the Land of Israel: this mere authorization is testament to the fact that the Provisional State Council as the legislature, saw the State of Israel as sovereign over the entire Land of Israel.

This is a forceful point, but it must be rejected. The fact of the matter is that the Minister of Defense did not issue an order based on his authority under section 1 of the above Ordinance in terms of the area of Judea and Samaria (and the Government of Israel did not even extend the law of the State of Israel onto that area, as it did in terms of East Jerusalem, in a decree based on section 11 of the Law and Administration Ordinance, 1948.) When addressing the legal foundations of Israeli rule over Judea and Samaria, we are concerned with the legal norms actually, and not merely potentially, in effect. The fundamental norms upon which Israeli rule in Judea and Samaria were in fact enacted were and are, as said, to this day, norms of military rule rather than the application of Israeli law, which involves Israeli sovereignty.

Here we must command again to memory, like in previous petitions that came before this court, an important argument that Israel expresses in the international arena. This argument is based on the fact that at the time that the IDF entered Judea and Samaria this area was not held by any sovereign whose possession of it received general international recognition. Mr. Rahamim Cohen reiterated this argument with much force. In the Beit El case I said (on page 127) the following:

“This petition does not require our consideration of this problem, and we therefore join this dispute here to that bundle of disputes which I discussed in HCJ 302/72, 306/72, Sheik Suleman Hsain Udah Abu Hilo v. the Government of Israel; Sheik Sabah Abud Ala Oud Al Salima v. the Government of Israel, IsrSC 27(2) 169, 179, 176, 177, 184, there on page 179 which remain open in this Court.”

I believe that in the petition before us, as well, that it can be resolved only according to the presumption at the basis of the Order of Possession. These presumptions indicate the bounds of the discussion for the additional respondents as well.

We therefore must examine the legal force of the relevant Order of Possession under international law from which the military commander who issued it derives his authority. In addition, we must examine whether the order was issued lawfully under Israeli law, because – as was in the Rafah Approach case (HCJ 302/72, p. 169 on p. 176) – we must assume here, too, that the authority for such review exists personally in regards to officials in a military administration who belong to the state’s executive branch as “people who fulfill public functions under law” and who are subject to the review of this Court under section 7(b)(2) of the CourtsLaw-1957. On the merits, we must examine under domestic Israeli law whether the Order of Possession was issued lawfully according to the powers granted to the Government and the military by Basic Law: The Government and by Basic Law: The Military. In the Beit El case, we conducted each examination – that according to domestic Israeli law and that according to international law –separately. I have already discussed above, according to the mentioned Basic Laws, the argument about the decision making process regarding the possession of the land, taken on the Governmental level. I can now conduct the primary discussion combining the two examinations together, as customary international law is, in any event, part of Israeli law to the extent it does not contradict domestic law (see, the Beit El case, at 129.).

Counsel for all the parties focused their arguments on comparing the matter before us to the facts of the Beit El case and to the ruling there, with one side seeking to reveal the similarities between the two, and the other side emphasizing the distinctions. Mr. Bach added to this and reiterated the non-justiciability claim that he made already in the Beit El case and that was already rejected there in no uncertain terms, in the words of my honorable colleague Justice Witkon (at the top of page 124):

“I was not impressed by this argument whatsoever… assuming – an assumption that indeed was not confirmed in this case – that one’s property was harmed or was completely denied to them, it is hard to believe that a court will wash its hands from that person because their rights may be subject to dispute in a political negotiation. This argument did not add weight to the respondents’ other arguments…”

For my part, I added that (on p. 128-29) although the special aspect of the case requiring interpreting section 49(6) of the Geneva Convention must be seen as non-justiciable, petitioners’ claim is generally justiciable before this court, as it involves property rights. Mr. Bach maintained his argument was misunderstood, because, in this opinion, the matter of justiciability is merely a function of the matter at hand, and the matter is on one hand bitterly controversial politically and on the other hand concerns undeveloped and rocky land at some distance from the Rujeib village itself. And he again quotes an article by Professor Jaffe published in in 74 Harvard Law Review, 1265, pp. 1302-1304.

The argument was well understood even at the time; repeating it does not add to its force. At the time, I excluded section 49(6) of the Geneva Convention from the discussion entirely, because as part of treaty-based international law, it is not binding law in an Israeli Court, but I joined the opinion of my honorable colleague as to the matter’s justiciability in terms of the Hague Regulations, because, as customary international law, they do indeed bind the military administration in Judea and Samaria. I will act similarly here and refrain from discussing the matter before us in terms of section 49(6) of the Geneva Convention. But concerning an individuals’ property rights, we cannot dismiss the matter with a claim of the right’s “relativity.” Under our legal system, the individual’s property right is of significant legal value which is protected by both civil and criminal law, and it does not matter, as far as a land owner’s entitlement to protect their property under law is concerned, whether the land is cultivated or rocky.

The principle of the protection of private property applies also in the laws of armed conflict, as expressed in Article 46 of the Hague Regulations. A military administration that wishes to infringe upon private property rights must demonstrate legal authority and cannot exempt itself from judicial oversite on the grounds of non-justiciability.  

For his part, Mr. Zichroni attempted to distinguish our ruling in the Beit El case, because there the court justified the civilian settlement with military needs tied to combating hostile terrorist activity in times of calm, whereas, here, the Chief of the General Staff emphasizes in this affidavit primarily the military need in a civilian settlement on the relevant site in case of actual war on the eastern front. But there is no basis for this distinction. The Beit El case, too, concerned the needs of regional defense designed to be integrated into the general system of defending the country specifically in times of war – and see the quote from Major General Orly there, at 125, as well as my comment at the top of page 131, that “the military’s powers at times of active war and at times of calm cannot  be strictly distinguished. Even if today there is quiet in the area near Beit El, it is best to take preventative measures.” My honorable colleague, Justice Ben Porat, said this with additional emphasis (Id, at 132-33.) And again in the Matityahu case, HCJ 258/79 (unpublished) on p. 4 of the opinion, we said that such matters cannot be viewed from a static perspective, ignoring what might happen in the future, whether as a result of hostile activity from outside or from within the occupied territory, and proper military planning must account, not just for existing dangers, but also for dangers that might be created as a result of dynamic developments in the area.

The question then circles back: Have respondents demonstrated sufficient legal authority to take possession of the petitioners’ lands? The Order of Possession was issued by a military commander and states at the outset that the Order was issued “under my authority as commander of the area and because I believe it to be required for military needs.” It should be recalled here that in this Order the area commander chose at the outset language that was less determinate than that used in the order given in the Beit El case. The Order of Possession stated that possession of the land where the Beit El base stands, and on whose outskirts the construction of a civilian settlement commenced only eight years later – was “imperatively and overwhelmingly demanded by military needs.” There, we justified the civilian settlement on the basis of Article 52 of the Hague Regulations, which allows taking possession of land “for the needs of the army of occupation.” On page 130 I also referenced the words of Oppenheim who believes that temporary use of private land is permissible when it is necessary “for all kinds of purposes demanded by the necessities of war.” I mentioned the British Manual of Military Law, which supports the temporary use of the privately owned land and buildings for the purposes of “military movements, quartering and the construction of defence positions.”

We also rejected (on page 130) the argument by Mr. Khouri that the phrase “for the needs of the army of occupation” includes only the immediate needs of the military itself, and noted (at the bottom of page 130) that the “primary role of the military in an occupied territory is to ‘ensure…public order and safety,’ as provided by Article 43 of the Hague Regulations. What is necessary for this end, is in any event necessary for the needs of the occupying military in terms of Article 52.” In a similar fashion. we might say here, too, that what is necessary for the military in order to fulfill its role in protecting the occupied territory from hostile activity. which may come from outside and from within, this, too, is necessary for military needs in terms of Article 52.

Thus far I concur with Mr. Bach that possession of privately owned land for the purposes of a civilian settlement is potentially justified under Article 52 of the Hague Regulations  – and we found no other source for this in international law. Under what circumstances? When it is proved, according to the facts of the case, that military needs were those which in practice brought upon the decision to build a civilian settlement at the relevant site. I reiterate that there can be no doubt that according to the professional view of Lieutenant General Eitan, building a civilian settlement at this location accords with the needs of regional defense, which has particular significance in ensuring the safety of the traffic arteries when military forces must disperse at times of war, but I have concluded that the Chief of the General Staff’s professional opinion would not, in itself, have led to the decision to build the settlement of Elon Moreh, but for further reason that was the propelling force behind the decision of the Ministerial Committee for National Security Affairs and of the government cabinet, that is – the strong desire of the people of Gush Emunim to settle the heart of the Land of Israel, as closely as possible to the city of Nablus. As for the discussions in the Ministerial Committee and the cabinet, we could not investigate them through reviewing their minutes, but even without them we have sufficient indication in the evidence before us, that both the Ministerial Committee and the cabinet majority were determinatively influenced by reasons stemming from a Zionist worldview as to the settling of the entire Land of Israel. This worldview is clearly revealed from a notice by Mr. Bach on behalf of the Prime Minister during the Court’s hearing on September 14, 1979, in response to additional respondents’ affidavit in paragraph 6 of his affidavit, to which I called attention during the Court’s hearing on the previous day. I recorded Mr. Bach’s words verbatim, for their significance and the status of the person on whose behalf Mr. Bach spoke, as following:

“I spoke to the Prime Minister yesterday and he authorized me to state, after the matter was raised during yesterday’s session – that on many occasions, in Israel and abroad, the Prime Minister emphasizes the right of the People of Israel to settle in Judea and Samaria and this is not necessarily related to discussions taking place in the Ministerial Committee for National Security Affairs concerning national and state security , when what is up for discussion is a specific matter of taking possession of some site or another for security purposes. In the Prime Minister’s view, these matters are not in conflict, but they are still distinct. As for what was said about the Prime Minister’s intervention, this was in the form of raising the issue for discussion before the Ministerial Committee for National Security Affairs, of which the Prime Minister is the chair and where section 37(a) of the Government Operations Regulations, concerning deliberations of the Ministerial  Committee for National Security Affairs, mandates that the Prime Minister determines the topics on the agenda, by his initiative or at the request of Committee members. He took part of the discussion in the Committee and expressed his clear and unequivocal opinion there in favor of issuing an Order of Possession for the purposes of building that settlement. This, as noted, considering, inter alia, the opinion of the Chief of the General Staff.”

The view as to the People of Israel’s right, which is expressed in these words is based on the tenets of Zionist theory. But the question again before this court in this petition is whether this worldview does indeed justify the taking of private property in a territory that is subject to military administration. As I attempted to clarify, the answer depends on the correct interpretation of Article 52 of the Hague Regulations. I believe that the military needs discussed in this article cannot be construed to include, by any reasonable interpretation, national security needs in their broad sense, as I have just described them. I shall again bring the words of Oppenheim, id., in section 147, at 410:

“According to Article 52 of the Hague Regulations, requisitions may be made from municipalities as well as from inhabitants, but so far only as they are really necessary for the army of occupation. They must not be made in order to supply the belligerent’s general needs.”

Military needs for the purposes of Article 52 may therefore include the needs that the Chief of the General Staff discussed in his responding affidavit, that is the needs of regional defense and of securing traffic arteries to allow reserves forces to disperse uninterruptedly at time of war. At the meetings of the Ministerial Committee the resolution was undertaken “considering inter alia the opinion of the Chief of the General Staff,” in the language of Mr. Bach’s notice (emphasis added – M. L.). The decision of the Ministerial Committee from January 7, 1979 guarantees Gush Emunim that the time and location of the settlement would be decided by the cabinet “in accordance with appropriate considerations,” and that while determining the location for the settlement the government would consider, as much as possible, the wishes of the Elon Moreh group. I would not be mistaken were I to assume that what Mr. Bach said on behalf of the Prime Minister reflects the spirit of the discussion in the Ministerial Committee. I do not doubt that indeed the Chief of the General Staff’s position was among the other factors that the Committee considered. But I believe this to be insufficient in order uphold the decision under Article 52, and these are my reasons:

I.                When it comes to military needs, I would expect that military officials initiate the establishment of a settlement on a particular site, and that the Chief of the General Staff would be the one to bring, according to such initiative, the military’s needs before the political echelon for approval , should it find no political reasons barring it. The Chief of the General Staff’s affidavit of response does seem to indicate that this was the decision-making process. But from the more complete picture that emerged after the Chief of the General Staff responded to the questionnaire presented to him, as well as from the additional documents submitted by Mr. Bach, it was made clear that the process was inverted: the initiative came from the political echelons, which then reached out to the Chief of the General Staff for his professional opinion. The Chief of the General Staff then expressed a positive opinion, in accordance with the conception he has always held. This is entirely clear from the responses of the Chief of the General Staff to the questionnaire, in paragraph 2:

“1. To the best of my knowledge, the body that initiated the settlement in the Nablus area was the Ministerial Committee for National Security Affairs.

2. I did not approach the political echelons with a proposal to build the settlement in Elon Moreh.

…

3. There was no preexisting plan to build a civilian settlement on the relevant site approved by a competent military authority.”

It also became evident from one of the additional documents that on September 20, 1973 then GOC of the Central Command, Major General Rehavam Ze’evi submitted to the then Chief of the General Staff a detailed proposal for settlement in the occupied territories. The proposal said, in regard to agricultural settlements in Samaria, that it would be “difficult, because of a shortage of available land.” This teaches us that the prevailing view at the time was still that private property ought not be taken for the purposes of settlements. And indeed, Major General Orly argued in July 1978 in HCJ 321/78 (unpublished) (the Nabi Salah case) as follows:

“7. When identifying the location that would be settled near the village of Nabi Salah, those acting on respondents’ behalf were guided by the principle laid out by government policy not to take possession of private property for the purposes of settlement.”

In the petition before us we find something of a change in this position, as the first affidavit by the Government Secretary, in paragraph 5, addresses this matter as follows:

“In response to the petitioners’ claims… as to the Government policy in regard to taking possession of the lands:

1. I hereby clarify that the policy of the Government of Israel not to seize private lands, to the extent possible and consistent with security needs, still stands.
2. When the government believes that the security needs requires as such, it approves requisition of private land but instructs the military to exclude from the taken property, to the extent possible, cultivated land.”

As for Major Commander Ze’evi’s plan, it should be noted that his proposals did not gain the approval of any authorized military or civilian body. The plan did include a suggestion to establish a Jewish town in the Nablus area, but not on the site now chosen for the Elon Moreh settlement, though not far from it.

In paragraph 4 of his questionnaire answers, the Chief of the General Staff replies to the question:

“Did you approve a civilian settlement on the relevant site because you believed to begin with that it was necessary there for the purposes of regional defense or because you post facto found that, were a civilian settlement to be established on this site, it would integrate into the system of regional defense?”

With:

“I approved taking possession of the land in question in this petition for purposes of the settlement because this fit the military needs in this area, as I saw them to begin with, and it is consistent with my security approach as to the needs of security and protection of the State of Israel as explained in sections 9-20 of the main affidavit.”

But when the perception of the security needs did not initially bring upon the initiative to settle that same site, but, rather, approval only came retroactively, in response to the initiative of the political echelon – I do not believe that this passive approach indicates that from the beginning there was a military necessity to take private property in order to build a civilian settlement, under the terms of Article 52 of the Hague Regulations. This time, therefore, it was not proven that in building the civilian settlement the military preceded the act of settlement with thought and military planning, as we have said in the Beit El case (on page 126.)

II.              And more on the question of the military necessity: I cited above the language of the decision by the Ministerial Committee for National Security Affairs from its meeting on January 7, 1979, as it was quoted in the Government Secretary’s second affidavit. Recall that those deliberations followed a protest by Gush Emunim on a road in the Nablus area. The resolution stated that “when determining a site for the Elon Moreh settlement, the Government will consider, as much as possible, the wishes of the group,” and, as if as in exchange for this promise, the people of Elon More were required to return to the camp from which they came, that is to end their unlawful demonstration. I see this as clear proof that the pressure by Gush Emunim was what motivated the Ministerial  Committee to address the matter of a civilian settlement in the Nablus area in that meeting. Afterwards, the matter was passed to the Ministerial Committee for Settlement Affairs, in order that it send its representatives on a preliminary tour for the purposes of selecting potential locations for settlement by the “Elon Moreh” group in the Nablus area. These representatives selected five locations and, from among the five, the IDF approved the relevant site. It follows, that the IDF did not take part in selecting those five sites, but was given the opportunity to choose among five sites selected by the political level. This process does not comply with the language of Article 52, which in my opinion requires the advance identification of a particular tract of land, because that specific location is necessary for military needs. And as said, it is natural that the initiative for this would come from the military level that is familiar with military needs and plans them in advance with military forethought.

In this regard, Mr. Bach argued that the military must first consider whether there are candidates for a possible civilian settlement willing to go to the location where their settlement is required for military needs. I agree, but again, this is contingent upon military planning that was approved by a competent military authority that would first search for candidates to settle a particular site. Here the opposite occurred: first came the desire of the Elon Moreh people to settle as closely as possible to the city of Nablus, and only then, due to the pressure they exerted, came the approval by the political level to build the settlement on that site. The political consideration was, therefore, the dominant factor in the Ministerial Committee’s decision to establish a settlement on that location, though I believe that the Committee and the Government majority were persuaded that the settlement fulfills military needs as well, and I therefore accept the Chief of the General Staff’s statement that for his part he did not consider governmental or political factors, including the pressure by the people of Gush Emunim, when he prepared to submit his professional opinion to the political level. But the military consideration was subordinate to the primary, political decision to build the settlement. As such, it does not meet the strict demands of the Hague Regulations for preferring military needs over individual property rights. In other words, would the Government’s decision to build the settlement on that site have been made in the absence of pressure from the Gush Emunim people and ideological and political considerations? I have been persuaded that but for these, the decision would not have been made in the circumstances that existed when it was made.

I wish to add several words regarding dominant and subordinate reasons in state authority decision making. In HCJ 392/72, Emma Berger v. Haifa District Planning and Building Committee, IsrSC 29(2) 764, Justice I. Cohen mentioned the debate around the matter of plurality of purposes as it appears in the third edition of De Smith’s book, Judicial Review of Administrative Action, on page 287 onward. Of the five tests proposed there, Justice Cohen opted for the test of whether the wrongful consideration or purpose had a real impact on the authority’s decision. For my part, I am willing to adopt a test more lenient with the authority, as proposed there by De Smith (top of page 289), which is:

“What was the dominant purpose for which the power was exercised? If the actor pursues two or more purposes where only one is expressly or impliedly permitted, the legality of the act is determined by reference to the dominant purpose.”

(In footnote 74, below the line, the author presents examples from English case law where this principle has been applied).

What I explained at length above reveals which outcome this test’s application must bring in the circumstances of the case before us, when the initiative for the settlement did not come from the military level. Thus. I will quote the words of the author there, on page 291, which seem apt to our matter as well:

“… it is sometimes said that the law is concerned with purposes, but not with motives, this view is untenable in so far as motive and purpose share a common area of meaning. Both are capable of meaning a conscious desire to attain a specific end, or the end that is desired. In these senses an improper motive or purpose may, if it affects the quality of the act, have the effect of rendering invalid what is done.”

III.             And I have yet to address and additional reason that must bring the reversal of the decision to take possession of the petitioners’ land – a reason that stands independently, even without regard to the other reasons I have so far detailed. In the Beit El case a serious question was raised: how could a permanent settlement be founded on land that was possessed only for temporary use? There we accepted Mr. Bach’s reply:

“The civilian settlement may exist in that same location only so long as the IDF still holds the territory under the Order of Possession. This possession itself may end someday as a result of international negotiations that may be culminate in a new agreement that would be valid according to international law which will determine the fate of this settlement, as it would the fate of other settlements located in the occupied territories” (Id, p. 131.)

The settlers themselves did not express their own position in that case, as they were not joined as parties. This time we cannot accept this excuse. Here, the submitter of the affidavit on behalf of the settlers explicitly says in paragraph 6 of this affidavit:

“Supporting an Order for Possession with security considerations in their narrow technical sense, rather than their basic and comprehensive sense, as explained above, has but one meaning: the temporary nature of the settlement and the possibility of its being replaceable. We absolutely reject this terrifying conclusion. It also is inconsistent with the Government’s decision in regard to our settlement in this location. In all the discussions, and many assurances we have received from the ministers of the Government, and above all the Prime Minister himself – and the Order of Possession at hand was issued as a result of the Prime Minister’s personal intervention – they all see the settlement of Elon Moreh a Jewish settlement as permanent as Degania or Netanya.”

It should be noted that this paragraph includes two parts. Its first part considers the position of the settlers; the other part what they have heard from ministers. We were not asked to permit the submission of a countering affidavit by the Government or by any minister to rebut the words attributed to them in the second part of this paragraph and thus we must accept them as truthful. This indeed being the case, the decision to establish a permanent settlement that is intentionally designed to stand in its location for all time – and even beyond the duration of the military rule in Judea and Samaria – meets an insurmountable legal obstacle, because a military administration cannot create within its territory “facts on the ground” for the purposes of its military needs that were in advance intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown. This is seemingly a contradiction that joins the other evidence before us in this petition to reveal that the decisive consideration that motivated the government to decide upon the relevant settlement was not the military consideration. In these circumstances, even a legal declaration as to the taking of possession alone, rather than expropriation of the property, cannot change the face of things – that is taking possession that is the core content of property, in perpetuity.

On the basis of all this, I believe the order nisi must be made absolute, in regard to the petitioners’ lands that were taken under Order n. 16/79.

Justice Asher

I agree.                       

Justice Ben Porat:

I agree.

Justice Witkon:

I too believe that the law is with the petitioners.

Like in the Beit El case (HCJ 606, 610/78,) here, too, we must examine the state authorities’ actions both in light of the “domestic” (or “municipal” as it is commonly termed in this context) law and in light of international law. These are two different issues, and as said in the Beit El case (id, p. 116): “The activity of a military rule in an occupied territory may be justified for military, security purposes and yet it is not out of the question that it is flawed under international law.” The domestic law which is subject to discussion here is the law that is relevant to two orders issued by the commander of the Judea and Samaria area under his powers as a commander in an occupied territory (Order n. 16/79 and Order n. 17/79.) In these Orders the commander stated that he “believes it necessary for military needs…” and he declared that taking possession of the lands is “for military needs.” And indeed, there is no dispute that the force of the orders, in terms of domestic law and really also in terms of customary international law (Hague Convention), is contingent upon their being “for military needs.” We elaborated on the content of “the military need” and the extent of our intervention in the discretion of military authorities in Rafah Approach (HCJ 302/72, Abu Hilo v. The Government of Israel) and in the Beit El case. We emphasized and reiterated that the scope of our intervention is limited. In the Beit El case I said (ibid., page 118) that the authority “is vested in the hands of the military officials, and for the Court to intervene in the exercise of their authority, it must be satisfied that this exercise was an abuse of power and a pretext for other purposes.” Similarly, my honorable colleague the Deputy President wrote as follows, ibid., (p. 126):

“We have repeatedly emphasized before, including in HCJ 302/72 (pp. 177, 179, 184) that the scope of this Court’s intervention in the military considerations of the military administration are very narrow, and a Justice would certainly refrain from substituting his personal beliefs in terms of political and security matters for the military considerations of those charged with securing the State and public order in the occupied territory.”

We additionally clarified in the Beit El case that a military, security need and the establishment of a civilian settlement do not necessarily contradict one another. As we said there (p. 119):

“The main point is that in terms of the pure security consideration it is undisputed that the presence of settlements – even ‘civilian’ settlements – of citizens of the occupying power in the occupied territory significantly contributes to the security in that area and facilitates the military’s ability to perform its duty. One need not be an expert in military and security affairs to understand that hostile elements operate more easily in an area that is only populated by a population that is indifferent or sympathetic to the enemy rather than an area where there are also people who may monitor them and notify the authorities of any suspect activity. Terrorists may not find refuge, assistance or supplies with them. This is simple and needs no elaboration. We will only mention that according to the respondents’ affidavits, the settlers are subject to the military authority, whether officially or due to the circumstances. They are there thanks to the military and its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

It need not be emphasized that with everything we said in these two decisions (and in others like them) we did rule that from that point onwards, any civilian settlement in an occupied territory serves a military purpose. We held that each case must be examined according to its particular circumstances. There, we were persuaded that indeed the taking of possession in order to build a civilian settlement served a security purpose. Here I am not persuaded that such was the purpose.

How is this case different from those that came before? The most important difference, is that here, even the experts charged with state security are divided as to the need for settlement in the relevant location. As they did there, here too security authorities presented us with affidavits meant to persuade us as to the security and military needs for taking possession of the land and building a civilian settlement on it. But whereas there the evidence was consistent and unequivocal, here, in terms of Elon Moreh, the evidence reveals that the experts disagree amongst themselves on the military need. On behalf of the Petitioners, we received the affidavit by Major General (Res.) Mattityahu Peled, as well as the letter by Lieutenant General (Res.) Haim Bar Lev, which ought to be quoted in full:

“To the best of my professional estimation, Elon Moreh does not contribute to the security of the State of Israel, and this for the following reasons:

1. A civilian settlement located on a hill far removed from main traffic arteries has no significance in combating hostile terrorist activity. The mere location as an isolated island in the heart of an area densely populated by Arab residents may facilitate attempts to attack. Securing travel to and from Elon Moreh and securing the settlement itself would divert security forces from essential missions.
2. In a case of war on the eastern front, a civilian settlement located on a hill about two kilometers east of the Nablus--Jerusalem road would be unable to ease safeguarding this traffic artery. Moreover, there is a large military base located near the road itself, and it controls the traffic arteries to the south and to the east. Indeed, should there be terrorist activity at time of war, the IDF forces would need to stay in place in order to protect the civilian settlement, rather than focus on combating enemy armies.”

More than this, the petitioners stated in their petition that “according to what they learned from the media, respondent 2 (the Minister of Defense) stated there was no security or military need for the land.” Generally, we do not consider information given to us by rumor, but here is confirmation for the disputing position of the Minister of Defense from the giver of the affidavit himself – the Chief of the General Staff, Mr. Raphael Eitan – who said in section 23(d) of this affidavit:

“I am aware of the opinion of the respondent 2, who does not dispute the strategic importance of the relevant area, but believes that it is possible to realize these security needs by means other than building a settlement on the relevant site.”

This situation, of a dispute between the Minister of Defense and the Chief of the General Staff on the mere need of taking possession, is unprecedented in Israeli jurisprudence, and it is also difficult to find examples in foreign countries for where a judge was required to choose between the opinions of two experts – one being the minister charged with the relevant matter and the other being the person heading the executive mechanism. The State Attorney attempted to overcome this difficulty by relying on section 3(b) of Basic Law: The Military, which reads: “The Chief of the General Staff is subject to the authority of the Government and subordinate to the Minister of Defense.” It is true, argued the State Attorney, that the Chief of the General Staff answers to the Minister, but here the matter was subject to the Government’s decision, where the Minister of Defense was among the minority, and thus his disputing position is overruled by the majority, which accepted the opinion of the Chief of the General Staff. I fear this response by the State Attorney is beside the point. Basic Law: The Military addresses the order of the chain of command between three bodies – the Government, the Minister of Defense, and the Chief of the General Staff. In terms of the hierarchy between them, there is indeed no doubt that the Chief of the General Staff is below the Minister and they are both below the Government. When the Chief of the General Staff receives an order from the Minister that conflicts with other orders he receives from the Government, it is possible – and I do not wish to express my opinion in this regard – that he would be obligated to follow the order of the Government over the orders of the Minister. But here the question is not whose order trumps, but rather whose opinion is more acceptable to the Court. It is possible one (for instance, a judge) may withdraw his opinion in light of that of his peers, but the fact that the Minister accepted the decision of the majority does not lead to a conclusion that he withdrew his opinion. On the contrary, we must assume that he stands by his opinion and has left to us the duty to say which of the opinions – his or that of the Chief of the General Staff – should be accepted.

It is well known that courts are asked to determine matters that require special expertise – expertise that is generally beyond the judges’ grasp. We are presented with opinions by respected experts and these completely contradict one another. This happens frequently in trials concerning medical issues, as well as, for example, in cases involving patent infringements, which raise problems in chemistry, physics or other natural sciences. In security affairs, when the petitioner relies on the opinion of a security expert, while the respondent relies on the opinion of someone who is both an expert and responsible for the state of security in the country, it is only natural that we attribute special weight to the opinion of the latter. As the Deputy President Landau said in the Naalin case, HCJ 258/79 (unpublished): “In such a dispute regarding military-professional questions, in which the Court has no well founded knowledge of its own, the witness of respondents, who speaks for those actually responsible for the preservation of security in the administered territories and within the Green Line, shall benefit from the assumption that his professional reasons are sincere reasons.” According to this rule, I could possibly have seen myself obligated to prefer the opinion of Lieutenant General Eitan over the opinion of Lieutenant General (Ret.) Bar-Lev, though in terms of their expertise, I do not know who is preferable. But when the choice is between the Chief of the General Staff and the Minister of Defense, I believe this rule should not be applied. There is no way to say that one is charged with ensuring safety whereas the other is not. They are both responsible.

In such a situation of a draw, when the opinion of the giver of the respondents’ affidavit should not be presumed to be superior to the opinions of other experts, we must ask ourselves: who bears the burden of proof? Must the petitioners satisfy us that the land was taken for non-military or security purposes, or shall we demand that the respondents – the military authorities – persuade us that this taking of possession was necessary for this purpose? I believe that the burden is upon the respondents. The law does not give the commander’s assertion that the taking of possession is required for military needs the force of a presumption – let alone that of conclusive evidence – that indeed it is so. Moreover, it is not sufficient that the commander sincerely and subjectively believes that the taking of possession was essential, in order to place the question beyond judicial review. We need not be convinced of the sincerity of the consideration, but rather of its correctness (see the well-known dispute Liversidge v. Anderson (1942) A.C. 206; (1941) 3 All E.R. 338; (1942) 110 L.J.K.B. 724; 116 L.T. 1; 58 T.L.R. 35; 85 S.J. 439 (H.L.), and the article by R.F.V. Heuston, L.Q.R. 86, p. 22. And see also: Ridge v. Baldwin (1964) A.C. 40; (1963) 2 W.L.R. 935; 127 J.D. 295; 107 S.J. 313; (1963) 2 All E.R. 66; 61 L.G.R. 396; 79 L.Q.R.  487; 80 L.Q.R. 105; 127 J.P.J. 251; 234 L.T. 423; 37 A.L.J. 140; 113 L.J. 716; (1964) C.L.J. 83 (H.L.)). And in our law, the Kardush case, HCJ 241/60, Mansur Taufik Kardush v. The Registrar of Companies, IsrSC 15, 1151; and FH 16/61, Registrar of Companies v. Mansur Taufik Kardush, IsrSC 16, 1209. The law I presented at the outset conditions the legality of the possession on the existence of a military need. Obviously,  the Court must not allow a serious infringement of property rights unless it is satisfied that this is necessary for security purposes. The State Attorney himself did not claim he is exempt from the burden of persuasion and labored to present us with all of the materials. As said, had we only had before us the evidence on behalf of the respondents, or had the respondents’ experts disputed the petitioners’ experts, I may very well have given the respondents the benefit of the doubt. But here, as noted, we were told that the Minster of Defense, himself, is not persuaded that this possession was necessary. It is true that the office of a minister is a political office and there is no requirement that the minister himself be an expert in military matters. But here we have the dissenting opinion of a Minister of Defense, who, as a former head of the IDF Operations Directorate and former commander of the air force, himself is a prominent security expert. The State Attorney did not dispute this, either. Where such a minister is not persuaded, how can we – the judges – be expected to be persuaded? When he does not see a military need for building a settlement in this particular location, who am I to question him?

This is also the primary reason that brings me to distinguish this case from all the previous cases and to reach a conclusion different from that reached in those cases. This should be coupled with two more things, though of lesser importance. First, in the cases of Rafah Approach and Beit El, my point of departure was that the Israeli settlements, located on lands taken from their Arab owners, were necessary for the security forces in their daily combat against terrorists. “One need not be an expert in military and security matters,” I said in the Beit El case at 119, “in order to understand that terrorist elements operate more easily in a territory populated only by a population that is indifferent or sympathetic to the enemy, than in a territory where there are also people who may monitor them and notify the authorities of any suspect activity. There, terrorists shall not find refuge, assistance and supplies.” This time the Chief of the General Staff, Lieutenant General Eitan, explained to us that the main security benefit in building the settlement on this site is its integration into the system of regional defense in case of a “total” war. I went back to review the affidavit that Major General Tal submitted to us at the time for the Rafah Approach case, and indeed, there, only prevention of terrorist activity at times of calm was discussed. I similarly reviewed the affidavit of Major General Orly in the Beti El case, although I did find – after additional review of the affidavit – that he also spoke of regional defense needs. These considerations were expressed in the opinion of my colleague Justice Landau (there, p. 124). In any event, in that case, two possessed territories were discussed: one actually on potential terrorists’ path, and the other bordering an important military base (Beit El.) There can be no serious doubt that, in terms of their immense strategic value, these sites – and only they – could have fulfilled the designated security role and that they were irreplaceable. Here, on the other hand, I cannot say the matter is free of any doubt.

The third aspect in which the case before us is different than the previous cases is a result of the settlers’ affidavit. Recall that in the Beit El case the settlers were not joined as petitioners and that they were not given the opportunity to voice their arguments. We presumed that their presence in the area was wholly for the purposes of security and defending the homeland. In the words of my honorable colleague the Deputy President (id., p. 127): “… given that the majority of the military is reserves forces, it is well known that at the time of need the residents of peripheral civilian residential areas become, even in personal matters, subject to military command.” And I said (id., at 119): “… the settlers are subject to the military’s authority, whether officially or by virtue of the circumstances. They are there thanks to the military and by its permission. Therefore, I still hold the opinion, that seemed to me correct in the Rafah Approach, case that Jewish settlement in an occupied territory – and as long as a state of belligerency continues to exist – fulfills real security needs.”

This time we heard from the representatives of the settlers themselves, and it seems we must not ignore the heart of their argument. Let me emphasize: I do not wish to address recent events, which revealed the people of “Gush Emunim” (among which the settlers before us are counted) as people who do not accept the authority of the military and do not hesitate to express their resistance through violence. I do not wish to address these events because we do not have certified knowledge as to the level of the support for the actions of others in other locations by the settlers before us. Therefore, I did not come to question that were the settlers to be called upon for reserve duty, they would be subjected to the military’s authority, as would any soldier. Indeed, the words of the giver of the settlers’ affidavit raise a different question. He says, explicitly, that:

“Members of the Elon Moreh group and myself settled in Elon Moreh because we were ‘commanded to inherit the land given by God to our forefathers, Abraham, Isaac and Jacob and we shall not leave it to other nations or in desolation’ (the Rambam, Book of Commandments.) The two elements, therefore, of our forefathers and our settlement are interwoven with each other.”

He adds and says in that same affidavit:

“Though superficially it seems that there is no link between the motivations of the settlers and the Order of Possession, the truth is that the act of settling the Land of Israel by the People of Israel is actually the real and most efficient security activity. But settlement itself, as inferred from the previous section, is not the product of security reasons and physical needs, but of destiny and of the return of Israel to its homeland.”

It is true that the settlers do not rule out the security considerations but that these are, as they maintain, secondary and completely insignificant. They state in their affidavit:

“Therefore, with all due respect to security considerations, and though its sincerity is not doubted, in our view it neither adds nor detracts.”

Very strong words indeed. Needless to say, the settlers deserve praise for their candor that did not allow them to pretend or to conceal their true motives. But the question plagues me: these settlers, who openly declare that they came to settle Elon Moreh not out of security considerations, and whose contribution to security – to the extent it is positive – is but a byproduct, could it still be said of them, as I said in the Beit El case, that they are there thanks to the military and by its permission? Of course, one can act to benefit another without the latter’s knowledge or involvement, but a privilege or benefit that the beneficiary rejects wholeheartedly, can we enforce it upon him? And let it be clear: without any dispute over the words of my honorable colleague Justice Landau, for my part, I need not argue with the settlers over their religious or nationalist ideology. It is not our business to engage in political or ideological debates. But it is our duty to examine whether pure security considerations justify taking possession of land for the purposes of settling these settlers at that location, and it seems to me that in this context, it is important to know what the settlers’ position is. If they did not come, primarily, for security purposes, I am hard pressed to accept that this indeed is the purpose of their settlement.

It remains for me to briefly address another argument by the settlers. In their view, Judea and Samaria should not be considered to be an “occupied territory” subject to IDF rule, but as part of the State of Israel. They rely, first and foremost, on the historical destiny of the Land of Israel, and in addition, in terms of the law, they claim that when the land was conquered during the Six Day War there was no other sovereign that lawfully held this area. The claim is familiar from the writings of Professor Blum (3 Isr. L. Rev. 279, 293) and was also positively considered by Professor J. Stone (see No Peace No War in the Middle East, published in Australia in 1969). The settlers’ attorney also mentioned the fact that the Israeli legislature never defined the state’s borders and only stipulated in section 1 of the Jurisdiction and Powers Ordinance, 1948, that “any law that applies to the State of Israel in its entirety will be considered to apply to the entire territory which includes the territory of the State of Israel and over the Land of Israel which the Minister of Defense defined by proclamation as being held by the IDF.” He also referenced the amendment to the Law and Administration Ordinance, 1967 (and see in this regard Professor A. Rubinstein, The Constitutional Law of the State of Israel, 1969, p. 46). The implication of this claim is twofold. If it concerns an act that occurs within the territories of the state, surely international law does not apply to it, but then military regulations and orders issued under such regulations are invalid in the area that is part of the state. The State Attorney replied correctly that if the settlers arrived at the site other than by force of the Order of Possession issued by the area commander, their entire presence there is without basis. After all, there was no dispossession under Israeli law here. This response is rooted in good law. Additionally, were there serious doubt as to the status of the relevant area, we would have been compelled to approach the Minister of Foreign Affairs and request an official document that defines the area’s status. This question is not “justiciable” and in such matters the Court must follow Government decisions.

This settles the issues of domestic, municipal law. Because in light of the material before us I am not persuaded that the taking of possession was justified under municipal law, I need not actually examine the legality of the taking of possession under international law as well. But lest my refraining from discussing this aspect be misunderstood, I shall add several comments. The issue is legally complex and warrants clarification. As said in the Beit El case, there is a distinction between customary international law and treaty-based international law. The former is part of the municipal law, whereas the latter is not, unless it has been ratified through national legislation. Included within customary international law are the rules of the Hague Convention, so this Court should examine the lawfulness of the taking of possession in light of Article 52 of the Hague Regulations, as did my honorable colleague, the Deputy President. Here, too, the test is the military need. If one is not persuaded such need exists under the criteria of municipal law, one would not be persuaded, in any event, that it exists under the criteria of the Hague Convention either. On the other hand, the Geneva Convention must be seen as part of treaty-based international law and therefore – under the approach common in common law countries as well as in our system – the injured party has no standing to approach the court of the country against whose government he wishes to raise claims and assert his rights. Such standing is given only to states that are parties to the Convention. Such litigation cannot be conducted in a state court but only in an international forum. Therefore, I said in the Rafah Approach case and reiterated in the Beit El case, any expression of opinion on our part as to the lawfulness of the civilian settlement under the Geneva Convention is merely a non-binding opinion, from which a judge would do well to refrain.

Any yet, here too, the State Attorney invites us to affirm to the authorities that under the Geneva Convention, as well, there is nothing wrong in granting the settlers possession of the land for the purposes of their settlement. As his argument goes, this is not inconsistent with the humanitarian provisions of this Convention that are acceptable to the State of Israel. Recall, we are concerned with Article 49(6) of the Geneva Convention, which prohibits the occupying nation from deporting or transferring parts of its civilian population into the occupied territory. It is a mistake to think (as I have recently read in one of the newspapers) that the Geneva Convention does not apply to Judea and Samaria. It does apply, though, as noted above, it is not “justiciable” in this Court. Nor would I say that the “humanitarian” provisions of the Convention address only protecting human life, health, liberty, or dignity, and not property. No one knows the value of land as we do. But the question whether voluntary settlement falls within the prohibition over “transfer[ring] parts” of a “population” for the purposes of section 49(6) of the Geneva Convention is not easy, and as far as we know, it has yet to be resolved in international case law. Therefore, I prefer, here too, not to settle this matter; moreover, in light of the conclusion I reached on the matter, both under domestic law and under customary international law (Article 52 of the Hague Convention), it requires no determination. But my refraining from determination must not be interpreted as support for either of the parties.

For these reasons – in addition to those detailed by my honorable colleague the Deputy President – I believe the order must be made absolute.

 

Justice Bechor:

I concur with the comprehensive opinion of my honorable colleague the Deputy President (Landau), which contains a thoughtful and persuasive response to some hesitations I had in the matter.

Both the military commander and the Government acted in this case by virtue of the powers international law grants to a military which, as a result of hostilities, occupies a territory that is not part of the state to which the law of the land applies (the municipal law). As my honorable colleague demonstrated, we must adjudicate this case according to the law that applies to the issue and that governed the actions of both the government and the military commander. It is not within our authority to consider policy questions or questions rooted in religious belief or a national and historical worldview. And this is a limit that we must not, and may not, exceed, whatever our personal beliefs and worldviews. The actual language of the Order issued by the military commander is rooted in the powers that international law grants a military that occupies a territory that is not – legally – part of the state’s territory. On this basis then the decision must be made.

My honorable colleague, Justice Witkon, in his opinion, extensively discussed the matter of the disagreement between the Chief of the General Staff and the Minister of Defense. In my opinion, this question, too, has been answered in the opinion of the Deputy President (Landau). In this matter, we must distinguish between the military commander’s decision, within his power under international law, and the power of the Minister of Defense and of the Government, under municipal law. When the discussion revolves around international law, the test is whether the military commander operated out of military reasons in order to ensure the military goal. This is a matter for the military commander, and, in this regard, the opinion of the ministerial level is insignificant, as the power under international law is granted to the military commander alone and not to the minister of defense or to the government. Where the military commander acted within his power, there is no flaw in the exercise of this power, even if the ministerial level, in this case the Minister of Defense, is of a different opinion. It is another situation entirely, when the broader question of the municipal law level arises. On this level, the opinion of the military command is the first port of call but is not the end all be all. On this level, as my colleagues said, the Chief of the General Staff is “subject to the authority of the Government and subordinate to the Minister of Defense”. It is true that the Minister of Defense holds a different opinion than the Chief of the General Staff in this matter, but on the policy level, even the opinion of the Minister of Defense is not the end all be all either, and – as reflected by the words of the Deputy President – the final word is that of the Government.

Had we reached the conclusion that the military commander operated in this case in order to ensure military needs, and that he initiated that action for the purposes of ensuring such needs which were the dominant factor in his decision, in light of all the circumstances and the timing as described in detail in the Deputy President’s opinion, I would not be hard pressed to approve his action, though other opinions – even contradictory ones – exist and though even the opinion of the Minister of Defense differs. But, as the Deputy President demonstrated in his opinion, the action of the military commander in this case exceeded the limits of his powers under international law.

The Deputy President also addressed the question arising from the contradiction between taking possession of the land for military needs, which is temporary, and building a civilian settlement as a permanent settlement. It is well known that civilian settlement has always constituted an integral part of the system of regional defense, within a broader system of regional civil defense, and things to this effect were said also in HCJ 606+610/78, Beit El, and HCJ 258/79, Matityahu. We must distinguish here between two things. Integrating the civilian settlements in the system of regional defense began many years ago, even before the founding of the state, and continued after the state was founded within the state’s territory. In all this time, there has always been the premise that the civilian settlements were permanent settlements and this was of no legal flaw because the settlement followed the founding of the state in territory that was within the territory to which state law applied. Even in the time before the founding of the state the intention was always that such settlement would be permanent settlement on land owned by the settling institutions. Here, we are concerned with temporary possession, and thus the contradiction between it and creating permanent settlements. This question was made more poignant in this petition for the first time, perhaps primarily because respondents 5 and 6 were joined, and because of their clear position.

As noted, I join the opinion of the Deputy President (Landau).

 

It was decided to render the order nisi absolute and declare the Order of Possession n. 16/79 invalid in terms of the lands owned by the petitioners, whose registration details were brought in paragraph 2 of the petition, and to order the respondents 1-4 to vacate from the petitioners’ lands the civilian settlers who settled on them as well as any structure built upon them and any object brought to them. There is no place to issue any order in terms of the road lands taken under Order n. 17/79, as none of the petitioners hold any ownership rights for the road lands.

We grant respondents 1-4 30 days from today in order to comply with the permanent order.

Respondents 1-4 will pay petitioners 1-16 their expenses in this petition, at a total sum of 5,000 Israeli Pounds, and that same amount to petitioner 17. There is no order as to costs for respondents 5 and 6.

Given today, 1 Cheshvan 5740 (October 10, 1979).

                 

 

 

 

In the Supreme Court sitting as a Court of Administrative Appeals

 

AAA 2975/15

 

Before:                                    President M. Naor

                                    Justice D. Barak-Erez

                                    Justice A. Baron

           

 

Appellants:

 

1.Ha’aretz Newspaper Publishing

2.Barak Ravid, Ha’aretz Journalist

 

                                    v.

 

Respondent:

 

                                    Ministry of Foreign Affairs

                                   

                                    Appeal against the decision of the Jerusalem District Court sitting as a Court of Administrative Affairs, from March 29, 2015 in AP 42750-09-14, handed down by the Honorable Judge D. Mintz.

 

Date of session:           4th Kislev 5776 (Nov. 16, 2015)

 

Adv. Tal Lieblich

                                    On behalf of the Appellants

 

                                    Adv. Moriah Freeman; Adv. Dana Briskman

                                    On behalf of the Respondent

 

 

Judgment

Justice D. Barak-Erez

 

1.Do the freedom-of-information laws require providing a journalist with a list of the guests who participated in a holiday dinner at the residence of an Israeli ambassador to a foreign country? This was the focused question which we were called upon to determine, following a request for the disclosure of information concerning a “second Passover Seder” dinner held at the home of the Israeli ambassador in Washington D.C. In order to answer this question, we were also called upon to consider general aspects regarding the claimed implications of such disclosure on the operation of the Foreign Service. 

 

The Factual Foundation and Proceedings to Date

 

2.On April 15, 2014, a “second Seder” meal was held at the residence of the Israeli ambassador in Washington, Mr. Ron Dermer, in which members of his immediate family, some members of his extended family, and additional guests participated. The identity of some of these guests is known – since they made their participation public, including the American Secretary of State John Kerry, journalist Andrea Mitchell, and Pastor Gary Bauer. Mr. Barak Ravid, Appellant 2, a journalist who writes for the Ha’aretz newspaper, and Appellant 1 (hereinafter, respectively: the Journalist and Ha’aretz) submitted a request to the Ministry of Foreign Affairs under the Freedom of Information Law, 1998 (hereinafter: the Freedom of Information Law or the Law), for details about the dinner – the names of its participants and additional details, such as costs. This request was rejected, with the exception of details concerning the dishes served at the dinner.

 

3.As a result, Ha’aretz and the Journalist filed an administrative petition under the Freedom of Information Law in the Jerusalem District Court sitting as an Court of Administrative Affairs (AP 42750-09-14, Judge D. Mintz) demanding the above details. The Respondent continued to object to the disclosure of the details, and maintained that disclosing such information might compromise the foreign relations of the State of Israel, and thus should not be provided, under sec. 9(a)(1) of the Law.

 

4.The District Court denied the Petition on March 29, 2015, noting that it appeared that the Petitioners had not indicated the reason for which they required the information. It further explained that the Respondent had also failed to indicate what particular harm would be involved in the disclosure, but that under the circumstances of the case, there was no justification to grant the request. It should further be noted that during the hearing, the Respondent agreed to provide the Appellants information as to the cost of the dinner.

 

The Arguments of the Appeal

 

5.The Appellants again argue that they are entitled to receive the requested information under the Freedom of Information Law.

 

6.On November 16, 2015, a short hearing was held before us. Although the original request was more extensive, in the course of the hearing, the request was narrowed to receiving details only as to the identities of the participants in the dinner.

 

7.The Appellants claim that the District Court erred in shifting the burden of proof as to the disclosure of the information. According to them, they are entitled to receive the information under the provisions of the Law, and the burden of proof falls on the Respondent to demonstrate why the information must not be disclosed. The Appellants argue that the Respondent must show that there is a near certainty of actual harm to the foreign relations of the state in order to avoid disclosing the information, and that the “concern test” that this Court addressed in the Shani case (HCJ 2007/11 Shani v. Ministry of Environmental Protection (Feb. 5, 2012)) applies only to disclosing information that may harm public safety or welfare, as opposed to information that may compromise the state’s foreign relations.

 

8.The Appellants further argue that the reasons presented by the Respondent for non-disclosure are general, and do not address the specific matter. The Appellants wish to emphasize that in considering petitions under the Freedom of Information Law, an administrative authority’s refusal in principle is unacceptable, for otherwise – they claim – the general rule will become the exception and the exception will become the general rule (referring to HCJ 10271/02 Fried v. Israel Police, IsrSC 62(1) 106 (2006) (hereinafter: the Fried case). Moreover, the Appellants point to the fact that the existence of the event is a public fact, inasmuch as some of the participants even mentioned their participation on different websites. Under these circumstances, the Appellants argue, the names of all the participants in the event cannot be claimed to be confidential when the event and the identity of some of its participants are a matter of public knowledge.

 

9.The Appellants argue that  the Law does not require that they specify the reason for their interest in the requested information, and in any event, when journalism is concerned, the journalist has no “private” interest in the information and his interest stems from his role – bringing information to the knowledge of the public.

 

10.The Appellants further argue that the Respondent’s refusal to disclose the information was not reasoned as required. They claim that the Respondent did not show that it considered either the public interest in disclosing the information or the possibility of providing the information with certain reservations, or while redacting certain details, as required by secs. 10-11 of the Law.

 

11.Finally, the Appellants emphasize that even were the argument that the requested information falls within the compass of sec. 9 of the Law (that is, that we are concerned with “information that must not or does not have to be delivered”) to be accepted, the Court must, nevertheless, exercise its authority under sec. 17 of the Law, and order the disclosure of the information because of the public interest in it.

 

12.As opposed to this, the Respondent presents a general, principled approach against the disclosure of information about events held at the homes of Foreign Service representatives, and maintains that the reasons for such non-disclosure are apt in the matter before us, as well.

 

13.The Respondent claims it is not authorized to provide the requested information given the provisions of sec. 9(a)(1) of the Law. In its view, the probability standard for the disclosure of information under this section, as held in the Shani case, is the “concern test”, but even were the “near certainty test” applied in our matter, as the Appellants’ argue, the requested information should not be disclosed.

 

14.The Respondent argues that the residence of the ambassador does not constitute an office, and therefore events held there are of a more personal nature. They must, therefore, be distinguished from public events held by the Respondent, information about which it publishes in an organized fashion. Under its approach, events of the first category serve as a unique platform for the exchange of sensitive messages, and it is, therefore, imperative to protect flexibility in inviting guests to them, without causing concern for these guests that their participation may become public knowledge. The Respondent emphasizes that diplomatic efforts are based on a relationship of trust and mutual assurance, which cannot be established without a promise of discretion even in regard to the contact itself, and that participants in events of this nature have an expectation that their identity will not be published. The Respondent further argues that, aside from this being the accepted norm among diplomats around the world, it is of particular importance in conducting the foreign affairs of Israel, which faces challenges, at times, in meeting with the representatives of various states and organizations.

 

15.The Respondent additionally relies upon sec. 9(b)(1) of the Law in support of the non-disclosure. This section states that a public authority is not obligated to provide information whose disclosure may compromise its normal course of operation or its ability to perform its duties. Therefore, it was argued, disclosing the names of the participants in events of the type concerned here may create a “chilling effect” that would discourage certain figures from attending such events. The Respondent claims this is akin, to a certain extent, to what is addressed by sec. 9(b)(7) of the Law, which mandates that a public authority is not obligated to provide information whose non-disclosure was a condition for its provision, or the disclosure of which may hinder the ongoing receipt of that information.

 

16.The Respondent further argues that the fact that the holding of the event was made public, and that some of the participants even made their participation public, does not justify exposing the names of the remainder of the participants. It was also argued that providing a list of participants in events such as this might violate the rights of third parties and, therefore, according to sec. 13 of the Law, the authority must notify them about the request for providing information and of their right to object to it. The Respondent emphasizes that this raises a particular difficulty in the present matter, as many of the participants in events of the Ministry of Foreign Affairs are foreign citizens or residents.

 

17.According to the Respondent, the public interest in disclosing the information that the Appellants seek does not outweigh the reasons to keep it concealed. In this context, it was argued that the case law expresses different views as to the authority of an administrative body to consider providing information covered by sec. 9(a) of the Law. The section employs the language “shall not deliver information” as opposed to the permission granted not to provide information under sec. 9(b) of the Law (citing AAA 2820/13 Rosenberg v. Enforcement and Collection Authority, paras 12-14 (June 11, 2014)), and in any event, the discretion of a public authority as to non-disclosure of information is broad. The Respondent further claims that although section 10 of the Law does, indeed, require considering the Appellants’ interest in obtaining the information, they did not point to a concrete, salient public interest in its disclosure.

 

18.Additionally, the Respondent maintains that it gave reasons as required for the decision not to provide the information, and even gave partial information (in terms of the menu and costs of the meal), in accordance with sec. 11 of the Law. It argues that the possibility of giving reasons for refusing to provide confidential information is necessarily limited.

 

19.In the course of the hearing, we again asked whether, under the circumstances, it would be possible to publish the names of some of the participants, but the Respondent’s attorney argued that, in her view, the very possibility of disclosure in this case presents problematic, precedential implications. The Respondent’s attorney noted that it is possible to disclose – officially – only the fact of the participation of the ambassador and his wife, and of Israel’s military attaché in Washington and his wife. It was also stated, in response to this question, that all the participants in the event were Israeli or American citizens, and not holders of any other foreign citizenship. In response to additional questions posed to her, the Respondent’s attorney noted that the Respondent’s position is that there is no place for establishing criteria (such as the number of participants) to define events in regard to which the identities of participants is subject to disclosure. Thus, for example, she refrained from taking a definitive position even on the question whether the list of participants in an Independence Day celebration at the ambassador’s home would be subject to disclosure, although she did acknowledge that the response to this question may be in the affirmative.

 

20.In her response, the Appellants’ attorney noted that she accepted the principle that there are many meetings of the Foreign Service that are best kept confidential, and that those must be distinguished from the dinner under discussion. According to her approach, this cannot justify a blanket exemption of events of this nature, which is tantamount to an exemption from the application of the entire Freedom of Information Law. The Appellants’ attorney relied upon the fact that, to date, an order barring the publication of names of a dinner’s participants has never been granted, which undermines the Respondent’s position that the disclosure of the information may compromise Israel’s foreign relations. Additionally, she pointed to the fact that the Respondent has yet to reach out to the event’s participants in order to learn their positions as to publishing their participation in it.

 

21.The Respondent expressed willingness to present details as to the dinner’s participants for our review. The Appellant’s attorney noted that, in her view, there is no justification for disclosure in this format, but added that she would not object to it. At this point, we held an ex parte hearing in which a complete list of the dinner’s participants was presented for our review. We were also presented with a letter from the ambassador, Mr. Dermer, in which he explained the clear importance of the ability to invite people to events at his home without the possibility that this be accompanied by a “shadow” of disclosure. Additionally, we were presented with the opinion of Ms. Liora Herzl, deputy director general and head of the North America Department in the Ministry of Foreign Affairs, in which she presented the general principle of flexibility and confidentiality of meetings of the Foreign Service, and the existence of a “diplomatic code” as to the non-disclosure of the identities of participants in such meetings. A list of examples of meetings in which representatives of the State of Israel participated in other countries over the years was attached to this opinion. The above opinion was presented, at our request, for the Appellants’ attorney’s review, as well, with the omission of the examples. At this hearing, Mr. Reuven Ezer, the deputy ambassador in Washington also responded to our questions, and he presented the Respondent’s position from his perspective.

 

22.It should also be noted that at this point of the hearing, as well, we presented the State’s representatives with the question whether they would be willing to disclose names of additional participants in the event, while redacting certain names for which there may be particular sensitivity, but the response we received was that even such limited disclosure would, in the view of the Ministry of Foreign Affairs, harm diplomatic freedom of operation.

 

Discussion and Decision

 

23.The appeal before us is one of those cases that addresses a matter that seems relatively trivial on its face, but that actually reflects principled considerations regarding the laws of freedom of information, on one hand, and public interests that sometimes weigh against disclosure, on the other. After weighing these considerations, I believe the Respondent’s approach cannot be accepted as it was presented. I shall explain my position.

 

Protection of Information regarding Foreign Relations: An Important Public Interest but Not One that is “Outside” of the Law

 

24.The enactment of the Freedom of Information Law represented a shift in our legal system – the premise is now that public information is information which the public has a right to receive (as stated in sec. 1 of the Law), whereas non-disclosure is the exception. The exceptions may sometimes be significant, and even broad, but they are still exceptions, and the burden to prove that they apply is upon the party seeking to rely upon them (see, e.g: LCA 291/99 D.N.D. Jerusalem Stone Supply v. Director of Value Added Tax, IsrSC 54(4) 221, 233 (2004); LAA 1786/12 Julani v. State of Israel –Ministry of Public Security, para. 45 of my opinion (Nov. 11, 2013) (hereinafter: the Julani case)). In doing so, the Law expanded the right to review administrative documents, which was granted to the individual even before the Law’s enactment, and recognized the individual’s right to receive information even when he may not have a personal interest in it (LAA 7029/03 Geva v. Mayor of Herzlia, para. 11 (June 9, 2006)). This reflects the view that the administrative authority holds information in trust for the public, and that the disclosure of the information advances freedom of expression and allows the public to supervise the administration’s activity (see, e.g: LAA 8282/02 Ha’aretz Newspaper Publishing Ltd. v. State of Israel –State Comptroller’s Office, IsrSC 58(1) 465, 470-72 (2004); LAA 9135/03 Higher Education Council v. Ha’aretz Newspaper Publishing, IsrSC 60(4) 217, 230-32 (2006) (hereinafter: the Higher Education Council case); LAA 7744/10 National Insurance Institute v. Mangle, para. 5 of Justice N. Hendel’s opinion (Nov. 15, 2012) (hereinafter: the National Insurance Institute case); LAA 3908/11 State of Israel, Courts Administration v. The Marker Newspaper, Ha’aretz Newspaper Ltd., paras 20-23 of Justice E. Arbel’s opinion (Sep. 22, 2014)).

 

25.These guiding principles of freedom of information also apply to the Ministry of Foreign Affairs, including its representatives and Israel’s embassies abroad. It would not be superfluous to note that certain public bodies are explicitly exempted from the Freedom of Information Law, as stated in sec. 14 of the Law. These bodies include, inter alia, the IDF’s intelligence service, the Mossad, the General Security Service, and other bodies (see, e.g., LAA 4349/14 Association for Civil Rights in Israel v. Prime Minister’s Office (Nov. 3, 2015). Also see and compare: the Julani case, paras. 18, 22, and 25 of my opinion). The Ministry of Foreign Affairs is not included among these bodies, and indeed, the Respondent does not claim otherwise. Thus, information that concerns Israel’s Foreign Service is information that is not “automatically” exempt from the laws of freedom of information. Indeed, it is reasonable to assume -- and indeed the Appellants do not dispute this – that certain aspects of the Foreign Service’s activities should remain under wraps. However, this is not to say that the entire Foreign Service is exempt from the laws of freedom of information.

 

26.At the same time, an examination of the Freedom of Information Law reveals that the interest of protecting the State’s foreign relations was contemplated by the legislature, and this interest was recognized in the framework of a defined exception, alongside other important public interests. Section 9(a)(1) of the Freedom of Information Law mandates that “information, whose disclosure may raise fear of harm to national security, the State's foreign relations, public security or a person's safety or welfare” shall not be disclosed. Therefore, in order to privilege information relating to foreign relations, one must point to a “fear” of harm to foreign relations, and in this context it was already held that a fear that is a remote possibility is not sufficient, but rather only a significant concern relative to the severity of the risk and the likelihood of its realization. And this is what was held on this issue in the Shani case:

 

            The probability test that the legislature established in sec. 9(a)(1) of the Freedom of Information Law is the concern test – when it is met, disclosing information that may harm state security or public safety is prohibited. Indeed, this is not a test that amounts to a “near certainty” like the one that serves to limit the infringement of freedom of expression by virtue of censorship (HCJ 680/88 Schnitzer v. Military Censor, IsrSC 42(4) 617 (1989)), but neither is it a test that is satisfied by any, even remote, possibility of such harm. In effect, this is a test that evaluates the prospects of harm to public safety or welfare. The product of severity of the risk and its likelihood points to the prospects of harm to public welfare or safety (ibid., para. 4. Also see: HCJ 2662/09 Movement for Freedom of Information v. Prime Minister’s Office, para. 5 (Jan. 4, 2011)).

 

I would further note in this context that I cannot accept the distinction that the Appellants wish to make between information that concerns the “public’s safety and welfare” and information that concerns the state’s foreign relations. It is clear that in joining these issues together in sec. 9(a)(1) of the Law, the legislature intended that the same probability test to, even if its implementation is influenced by the relevant contexts and risks.

 

27.The Respondent’s argument focuses on the fact that the diplomatic channels of the State of Israel require preserving the ambassador’s residence as a “safe zone” of sorts, if not “extra-territorial,” whose visitors may be assured that their identities will not be disclosed. This is the case even if they are citizens of friendly states, and even if the events included many participants. This is because this is the expectation of the participants under the “diplomatic code”, even if it was not agreed upon in advance with any of those in attendance. In other words, the primary concern to which the Respondent points is the concern about a chilling effect that would compromise the ability of the officials of the Ministry of Foreign Affairs to meet with representatives of states and foreign organizations that do not wish that the fact of the meeting be revealed. The question is whether this claim of a chilling effect constitutes a “real concern” that tips the scale toward refraining from disclosing information by establishing the blanket rule the Respondent seeks. Before I respond to this question, I wish to expand the framework of our discussion and present it from a comparative perspective.

 

Comparative Examination: The Foreign Relations Exception and Diplomatic Practice

 

28.The discussion before us may benefit from a comparative review of the acceptable standards as to disclosure of information regarding foreign affairs in other countries. Ordinarily, the justification for it is connected to the general background of the enactment of the Freedom of Information Law, which was informed, inter alia, by the “wave” of legislation around the world on the issue. However,  this justification is stronger in the current context. On its face, the accepted norms of other countries may shed light upon the development of diplomatic practice, as well as upon the shaping of the views of foreign citizens that the State’s argument seeks to protect.

 

29.Although I cannot point to a case that is identical in all its aspects to the one before us, I believe that a comparative review reveals two trends that are highly relevant to our discussion. First, the recognition of an exemption or immunity from disclosing information that may compromise a state’s foreign affairs is an acceptable standard in the legislation in this field, but it also becomes clear that this exception is applied to “core” matters of foreign relations – classified information received from a foreign country, deals with foreign entities, secret contacts, etc.. In any event, the exception is not interpreted as exempting entire diplomatic fields from the application of the laws of freedom of information, as opposed to concrete matters. Second, there seems to be a growing trend toward submitting requests for information about meals and other official events. Such requests are considered on their merits – at times they are granted and at times they are rejected, on a case by case basis. Moreover, they led to a practice of “voluntary disclosure” of details concerning official visitors.

 

The Interpretation of the Foreign Affairs Exception in Comparative Law

 

30.As noted, exceptions concerning protection on a state’s foreign relations are accepted, in various formats, in the freedom of information laws of other states. Thus, for example, the United States’ Freedom of Information Act, 1966, establishes an exception in the framework of what is termed “Exemption One”, which authorizes the executive branch to classify documents as secret for reasons of protecting national security or foreign relations (as detailed in Executive Order 13526). Section 27 of the British Freedom of Information Act 2000 provides for an exemption from disclosure for reasons of foreign relations. Section 13(1) of the Canadian Access to Information Law 1985 permits the refusal to disclose information acquired in confidence, inter alia, from a foreign government or an institution thereof, or an international organization or an institution thereof, and section 15(1) provides that the state may refuse to disclose information the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs . The Australian Freedom of Information Act 1982 regulates the matter in sec. 33, and exempts disclosing information that would, or could reasonably be expected to cause damage to the international relations of the Commonwealth (subsection (3)(a)) or any information or matter communicated in confidence by or on behalf of a foreign government, an authority of a foreign government or an international organization (subsection (b)). However, the important question revolved not only around the manner in which the exception is defined in legislation, but primarily around the accumulated judicial and practical experience as to the types of cases in which it was applied.

 

31.I believe that the cumulative experience demonstrates that the foreign relations exception is primarily applied in situations that are at the core of the area of foreign relations. Thus, it is often applied to information concerning cooperation with foreign governments on intelligence or security issues. In the United States, for example the application of the exception can be seen in regard to documents in which a foreign government that had assisted the FBI was identified (Summers v. U.S. Department of Justice, 517 F. Supp. 2d. 231 (2001)); documents concerning the detaining of a person in incarceration in Yemen in order to protect information given by government personnel there (Mobley v. CIA, 924 F. Supp. 2d 24 (2013)); as well as information concerning the involvement of the United States in developing Iraq’s energy policy (Muttitt v. Department of State, 926 F. Supp. 2d 284 (2013)). Similarly, in Canada, the exception was applied to information regarding activity in Afghanistan (Attaran v. Minister of Foreign Affairs 2009 FC 339). In Great Britain, the use of the exception was permitted in relation to discussions and correspondence between that country and the United States about receiving naval vessels from the American Navy, a matter that was considered a controversial environmental issue (EA/2006/0065 Foreign and Commonwealth Office v. Information Commissioner and Friends of the Earth (2007) (hereinafter: the Friends of the Earth case)); information about the sales of military equipment to Saudi Arabia (A/2007/0071, EA/2007/007, EA/2007/0079 Glibly v. Information Commissioner (2008) (hereinafter: the Glibly case); EA/2011/0109 Campaign Against Arms Trade v. Information Commissioner (2011); and in regard to a request to disclose minutes of Cabinet meetings in which it was decided to deploy British military forces to Iraq (EA/2008/0024, EA/2008/0029 Cabinet Office v. Information Commissioner (2008). In Australia, too, it was held that there is justification not to disclose correspondence between Australian authorities and the United States about a person held in detention in Australia and suspected of being an Al-Qaida operative (Re McKinnon and Secretary of Foreign Affairs and Trade 40 AAR 255 (2004)).

 

32.Indeed, the foreign affairs exception was not only applied to security information, but also in other instances where the disclosure of information received from a foreign country was concerned. In Australia, for example, the non-disclosure of details concerning information of cooperation by Australian authorities with Costa Rica, which facilitated the prosecution of the requester of the information, was approved (Maksimovic v. Attorney General’s Department [2008] AATA 1089). In another case, it was held that the exemption from disclosure applies to information that was received from the government of Vietnam and was used to preparation of a document on the situation in the requesters’ state of origin for the purposes of considering their request to be granted refugee status in Australia (Van Xinh Bui v. Department of Foreign Affairs and Trade [2005] AATA 97 (hereinafter: the Van Xinh Bui case)).

 

33.Even in cases where the exception was applied because of the sensitivity of the requested information, its application was limited according to the public interest that weighed in favor of the disclosure. This was the case, for example, in the British Gilby decision, where it was clarified that the exception would not apply to information concerning possible involvement of British government personnel in payments of an illegal nature, such as bribery, in relation to sales of military equipment to Saudi Arabia, based on the view that the public interest in disclosing this prevails.

 

34.Another consideration taken into account is the culture of freedom of information of the country the relationship with which or whose people the disclosure concerns. Thus, in Great Britain, it was held that the fact that a request concerned relations with a state where governmental transparency is not practiced is a consideration that may be factored in, whereas, when the foreign state (the United States) is a constitutional democracy with developed legislation in the area of freedom of information, the  point of departure is that it will express understanding for the consequences of local freedom of information laws (see: GIA/150/2011, GIA/151/2011, GIA/152/2011 All Party Parliamentary Group on Extraordinary Rendition v. Information Commissioner (2011), para 65).

 

35.As a general rule, cases where it was argued that the exemption applied were examined in accordance with the totality of their circumstances, while refraining from general statements. In the Canadian case of Bronskill v. Minister of Canadian Heritage, 2011 FC 983, it was held that rejecting a request to disclose documents that concerned a public figure, who had died many years earlier, due to the fact that they contained intelligence materials was overly broad and that the claim of exemption from disclosure should have been examined in regard to each document independently, while taking into account the amount of time that had elapsed. The decision mentioned, inter alia, the words of the Canadian Supreme Court that exemptions established by law are not intended to be used to prevent “embarrassments” (ibid., para. 131 of the decision). In the Australian Van Xinh Bui case, it was ruled that the claims for exemption must be considered in light of the nature of the information, the circumstances in which it was received, the nature and scope of the relationship between the two countries, and the facts of the concrete case (ibid., para. 23).

 

36.Another question at issue was the weight that should be attributed to opinions of professionals in Foreign Service. In Great Britain, it was held that while such opinions are important, they must be examined on the basis of their content and merits, rather than taken as gospel (see: Friends of the Earth, para. 39).

 

37.The balanced approach for examining the exemption is reflected not only in the case law, but also in the decisions and instructions as to the manner of  implementation. In Great Britain, instructions were published in this regard by the Information Commissioner’s Office, who is charged with implementing the Freedom of Information Act. Inter alia, it was decided that the exemption for foreign affairs should not be applied and prioritized over the public interest in disclosure where the claimed harm to foreign relations is trivial (Freedom of Information Act Awareness Guidance No. 20 (2004), section B, and that the exemption should be implemented while considering the characteristics of the specific relationship between Great Britain and the other relevant country or organization, as well as the changes to it, as the case may be (Freedom of Information Act Awareness Guidance No. 14 (2004), section B).

 

38.In light of all of the above, it appears that an exemption for the protection of foreign affairs is accepted in freedom of information law. However, it can be seen that the exemption from disclosing information is supposed to be based on a specific, material justification that concretely addresses the harm that may be caused as a result of the disclosure. A mere concern is insufficient. The application of exemptions in this area is based upon an examination of the nature of the information, the circumstances in which it was received, the nature and quality of the relationship between the two countries concerned, the character of the foreign country to which the information relates, and similar factors. As is readily seen, all the above examples address information of a highly sensitive nature, as in another case that was addressed by this Court (see AAA 615/15 Oron v. Director of Security Exports Supervision Department (April 11, 2016)), in which the exemption from disclosure was applied to a request for information about security exports to Rwanda at a time when there was an international embargo on such exports. These are very different from the case before us, both in the nature of the information and in consideration of the existence of a concrete expectation (rather than merely a general one) for secrecy.

 

Requests Concerning Guests and Meals and a Policy of Voluntary Disclosure in Comparative Law

 

39.By its nature, the expectation for protecting confidentiality is also influenced by accepted standards of disclosure. Therefore, examples from similar cases, as reflected in the policy or common practice of other countries, should be examined. At this stage, I will move from the general discussion of the exemption for foreign affairs to cases where requests for disclosure address meetings of government representatives with guests, including in events of a social nature.

 

40.I should begin by stating that examining the practice in other countries reveals that requests by private individuals, organizations or media outlets to government offices for “guest lists” or details of a social event are becoming commonplace. Such routine requests do not always lead to a judicial hearing, and they often end up being fully or partially granted by the office charged with implementing the freedom of information law in the relevant authority. However, we cannot suffice in pointing to requests that have been granted without judicial review. Moreover, there is no doubt that not all the requests are granted to the extent expected by the applicant. However, the practice of submitting requests for “guest lists” in different places around the world indicates that the submission of a request of this type should not be considered surprising. I will present several examples. The British Information Commissioner’s Office instructed that requests to disclose the names of heads of state to whom the Prime Minister sent Christmas cards must be granted (see FS50080115 Decision Notice 26 March 2007.) Another example worthy of mention concerns the decision of the above Commissioner to partially grant a request concerning a dinner held by the British Foreign Secretary in honor of then United States Secretary of State Hillary Clinton, including details of the dinner’s budget. The request was partially granted as concrete details that created a concern for risk to British interests were omitted, along with information about the process of the production of a video prepared for the event (see: FS50504224 Decision Notice 4 February 2014).

 

41.Second, in this context, a policy of voluntary disclosure of details and documents by authorities, regardless of the question whether they are required to disclose them under the freedom on information laws, is of importance. American case law held that information concerning visitors of the President of the United States is not subject to the Freedom of Information Act since it does not constitute “agency records” in their ordinary meaning (for reasons that go to the constitutional aspect of the institution of the Presidency in the United States. See: Judicial Watch v. United States Secret Service, 726 F. 3d 208 (2013)). Nevertheless, the White House adopted a policy of voluntary disclosure in in regard to official dinners and White House guest lists (see White House Press Office, White House Voluntary Disclosure Policy Visitor Access Records). This is an initiative of disclosing the details of all guests to the White House, other than purely personal guests of the President’s family members or of the Vice President’s family members, who have no professional link. Similarly, there is an exception for “small group” visits – appointments and meetings that have been defined as particularly sensitive (while referencing the example of meetings with potential candidates for Justices of the Supreme Court). In this context, it should be noted that reports will be given on the number of such meetings, and that their details would be provided in the future, when they are no longer “sensitive” (see also: Ronald J. Krotoszynski, Transparency, Accountability, and Competency: An Essay on the Obama Administration, Google Government, and the Difficulties of Securing Effective Government, 65 U. 449, 464-465 (2011)). It is important to note that this is merely an example, but it is of great interest precisely because it does not revolve around considering specific requests, but rather around a policy of active, serial, ongoing disclosure of all the guests to the White House, subject to exceptions. I believe that this particular example demonstrates the “expectation” as to the level of confidentiality of meetings held at the Ambassador’s official residence. This gains further support when the facts of the case before us are examined – a dinner where only citizens of Israel and of the United States were present.

 

42.Third, the decisions by United States courts tend to permit disclosure of lists of visitors to governmental facilities or participants in ceremonies, rather than deem them to be private information (see: Sikes v. United States, 987 F. Supp. 2d 1355 (S.D. Ga. 2013); Cameranesi v. United States DOD, 941 F. Supp. 2d 1173 (M.D. Cal. 2013).

 

Towards a Decision: The Set of Factors in regard to Protecting Information about Foreign Relations

 

43.It is time to return to the discussion of the Freedom of Information Law and the exception it establishes in regard to information concerning foreign relations.

 

44.The point of departure necessary for the decision in this case must be the examination of each request for information disclosure on its merits, in the absence of prior “immunity” for a matter argued to be related to foreign affairs, while adopting a careful approach in cases where a concrete claim is raised as to the protection of foreign relations. The solution for preventing a chilling effect is not establishing a blanket rule that prohibits the disclosure of information. The Freedom of Information Law sought to establish a starting point for disclosure. As noted, in order to realize the purpose of the Law, the authority must examine whether, in a concrete case, there is a real concern for harm to the state’s foreign relations (see and compare: the Higher Education Council case, pp. 245-46; the Fried case, pp. 127-28.) It should be emphasized that as long as the authority has not presented a good reason for non-disclosure of the desired information, other than concerns of a general nature, the reason for the request to disclose the information is not, in itself, material (see: the Julani case, para. 29 of my opinion; the National Insurance Institute case, para. 5 of Justice Hendel’s opinion).

 

45.The representatives of the State of Israel abroad are public servants. Their activity should be subject to public scrutiny and public debate. Indeed, at times such a veil of secrecy that is guaranteed in advance may be convenient. However, it may also hide – and this is said on a general level alone, and with no allusion or relation to the facts of the case before us – matters that ought to be subjected to public scrutiny. One of the possible uses of the laws of freedom of information is exposing the meetings of government personnel with private entities, meetings that may be of benefit or assistance, but may, at times, reveal conflicts of interests or inappropriate considerations that are irrelevant.

 

Incidentally: Is there also a Violation of the Dinner Guests’ Privacy?

 

46.As was already noted, the Respondent also relied on the “expectations” of participants of the dinner. To the extent that the expectation argument concerns the claimed risk to the State’s foreign relations, this is a factual argument that is informed by the acceptable norms in other countries as well, as was discussed above.

 

47.As opposed to this, to the extent that the argument concerns a violation of the rights of those participating in the dinner, the matter was raised by the Respondent only incidentally.  However, before making our ruling, it is, nevertheless, our duty to examine whether there is a concern here for harm to third parties, as the Law states, because at the end of the day, the desired information concerns them, as well. This is a question that is distinct from the question of harm to foreign relations, as it could also arise in regard to similar requests submitted in regard to an official dinner at the home of a minister or a director general of a government ministry in Israel.

 

48.When a request to disclose the names of participants in an event (as opposed to a more comprehensive request, such as requesting details as to the information exchanged during the event) is concerned, the issue of harm to third parties, to the extent it arises, focuses on their right to privacy. Section 9(a)(3) of the Freedom of Information Law prohibits providing information whose disclosure would constitute a violation of privacy as defined in the Protection of Privacy Law, 1981 (hereinafter: the Protection of Privacy Law), unless the disclosure is permitted by law.

 

49.I believe that in regard to an event that was held by an authority, including a formal dinner, a party or a large reception, the assumption of the participants ought to be that their names will not remain secret, and thus, in any case, it cannot be said that exposing their names causes them harm. In effect, it could be said that there is a presumption that participants in a publically held event of an official or formal nature consent to the disclosure of their participation. This, of course, according to the nature of the event. An event to which only a few people were invited, or where it was made clear that only “cleared” participants would be invited, would be an event for which such consent would not be presumed. In American law, a test of “expectation” was previously proposed for the purposes of defining the scope of protected privacy. As noted, this test raises difficulties since there is a “circular” aspect to its implementation, as the expectation itself stems from the scope of the law’s protection of privacy (see further: Michael Birnhak, , 197 (2010) (Hebrew)). It seems more appropriate to rely upon the presumption of consent in such cases. As we know, sec. 1 of the Protection of Privacy Law, prohibits violating a person’s privacy in the absence of consent (“No person shall infringe the privacy of another without his consent”).

 

50.This has dual significance. First, there is no need to ask the participants in such events in advance as to their position in regard to disclosure under the provisions of sec. 13 of the Freedom of Information Law, because they are presumed to consent to the provision of information as to their participation (see and compare: AAA 398/07 Movement for Freedom of Information v. State of Israel – Tax Authority, IsrSC 63(1) 284, 318-19 (2008) (hereinafter: the Tax Authority case); AAA 9341/05 Movement for Freedom of Information v. Government Corporations Authority, para. 42 of Justice E. Arbel’s opinion (May 19, 2009) (hereinafter: the Government Corporations Authority case)). Second, the Court is not required to join them into the proceedings and hear their arguments under sec. 17(c) of the Law for the very same reason. This, as opposed to cases concerning small events held under conditions that are not public (see and compare: AAA 49/16 Regev v. Drucker (February 10, 2016)).

 

51.This conclusion that there is no need to inquire of participants in publically held events is consistent with the purposes of the Freedom of Information Law, as well as with the practical aspects of its implementation. In truth, it necessarily derives from them. As is well known, under sec. 8(1) of the Freedom of Information Law, a request for information may be rejected if “its handling requires unreasonable allocation of resources.” Were every large event to require reaching out to each and every the guest in order to permit them to raise arguments challenging the disclosure due to a potential privacy violation, and thereafter to be joined in the legal proceedings, the entire point of the mechanism of supervising and scrutinizing authorities through the Freedom of Information Law would be foiled. This is not a case of acting beyond the letter of the law in the sense that “if it does not help, it cannot hurt.” In this context, what  does not help and is not required (because there is no violation of privacy) is actually harmful, because it unnecessarily complicates the process that allows the flowing of information to the public arena, and increases its cost.

 

From the General to the Specific

 

52.From all the above it appears, in my view, that we cannot accept the Respondent’s argument for an exemption as broad as the sea in regard to meetings in the ambassador’s residence, whatever their nature and the identity of their participants. The arguments presented by the Respondent are such that, were we to accept them as a whole, might lead to a conclusion that no disclosure is to be permitted in regard to the “unofficial” meetings calendar of high-ranking officials of the Ministry of Foreign Affairs. Such an outcome cannot stand. Indeed, it is conceivable that there are meetings that are best kept secret, and there are even meetings for which it is agreed in advance that the identities of the participants will remain confidential. But an exemption as broad as the one claimed might create an enclave entirely concealed from public view.

 

53.I have no doubt that the Respondent’s arguments were presented in good faith and out of the sincere belief and conviction that they present the best interests of the State of Israel’s Foreign Service. However, I believe the convenience of activity under a cloak of secrecy and confidentiality is insufficient. Public servants often believe that conducting meetings away from the spotlights will be conducive to quiet, undisturbed discussions that will advance the public interest. That belief is not enough.

 

54.In truth, my view is that the facts of the case before us cannot be considered “borderline” at all. Among the relevant circumstances, I find it appropriate to reiterate the following facts, which were already revealed or permitted for disclosure: there were also journalists among the attendees, various guests publicly discussed their participation in internet posts, all the attendees were citizens of the United States or of Israel, and none of them was promised that the identities of the event’s participants would be kept secret. In fact, every one of the participants in the event could have anticipated, at any time, that their participation in the event might be mentioned on one social network or another. On the other hand, the Respondent did not point to any concrete circumstances that might indicate that there was a real concern that disclosing the information would lead to any harm to the state’s foreign relations. Therefore, the Respondent failed to demonstrate that the exception for non-disclosure of information established in sec. 9(a)(1) of the Law applies. In light of this, there is no need for me to address the issue of balancing this exception against the public interest in disclosing the information. Those characteristics of the event also indicate that there was no reason to delay the disclosure for reasons related to the privacy of the event’s participants.

 

55.From a broader perspective, it is important to note that in light of the Respondent’s comprehensive position, which did not attribute sufficient weight to the framework of the Freedom of Information Law and its purposes, preparations for establishing a proper policy on the issue have yet to be made. At this stage, we can therefore suffice by holding that it would appear proper that the Respondent establish its own criteria for distinguishing between events that are “disclosable” and events that are not, which would apply in the future where requests for disclosure of this type may be submitted. Relevant factors may include, for example, the number of participants in the event, their countries of citizenship, the nature of the participants (diplomats or people from the private sector), the presence solely of “cleared” participants in the meeting, the location of the meeting, and so forth. Indeed, these criteria cannot exempt the Respondent from examining each request for disclosure on its merits, but they may assist in the review of such requests. It should be noted: the Respondent’s claim that it voluntarily publishes information regarding certain events cannot justify the broad exemption that it claims in this case. In effect, not only is the Respondent permitted to set standards for distinguishing between events for which it would appear that details should not be disclosed and events that are not subject to the “secrecy” rules,  it is preferable that it does so. The existence of such an advance classification would facilitate handling similar requests submitted in the future, to the extent that they are submitted, and would also make clear to participants in such events in which circumstances they may assume that their participation will be kept secret.

 

56.Therefore, should my opinion be heard, the appeal would be granted. The Respondent will provide the Appellants with the names of all the participants in the dinner, with the exception of any minors, within 30 days of this decision. During that time, the Respondent will be able to update the United States Department of State as to the outcome of these proceedings, as it may deem fit. Under the circumstances, the Respondent will bear the Appellants’ costs in the amount of NIS 10,000.

 

 

Justice A. Baron:

 

In her comprehensive opinion, my colleague Justice D. Barak-Erez thoroughly analyzed the exception established under the Freedom of Information Law, which addresses protecting information that concerns foreign relations, and I concur with her reasoning and in her conclusion.

 

                                                                                               

 

President M. Naor:

 

1.The Appeal before us concerns the decision of the Jerusalem Administrative Court (AC 42750-09-14, Judge D. Mintz) rejecting the Appellants’ petition challenging the Respondent’s decision not to provide the Appellants with the list of guest who attended a second Passover Seder dinner held at the residence of the Israeli ambassador to the United States, Mr. Ron Dermer, in April 2014.

 

2.In her opinion, my colleague Justice D. Barak-Erez discussed at length the main facts and  arguments in the Appeal, and I do not find it necessary to repeat them. The Appeal addressed two issues: first, and primary, was whether the exception regarding protecting the foreign relations of the state under section 9(a)(1) of the Freedom of Information Law, 1998 (hereinafter: the Law), which allows refraining from providing information, applies in this case. Assuming that the exception does not apply, the second issue is whether the Court should permit third parties who may be harmed by the provision of the information to make arguments to the Court before its decision is handed down, as stated by sec. 17(c) of the Law.

 

3.In her opinion, with which my colleague Justice A. Baron concurred, my colleague Justice D. Barak-Erez found that both questions must be answered in the negative. As to the first question, my colleague found that the Respondent argued only generally that the provision of the guest list may compromise Israel’s foreign relations, and did not point to concrete circumstances that would justify refraining from providing the information. In her view, “we cannot accept the Respondent’s argument for an exemption as broad as the sea in regard to meetings in the ambassador’s residence, whatever their nature and the identity of their participants … an exemption as broad as the one claimed might create a zone entirely concealed from public view” (para. 52 of her opinion).

 

4.My colleague further noted that there were also journalists among the invited guests at the dinner; that various guests gave public expression to their attendance at the event through internet postings; that all guests were either citizens of the United States or of Israel; that none of the invited guests was guaranteed that their identities would be kept secret; and that each of the attendees could have expected, at any time, that their attendance at the event might be mentioned on one social network or another. Based on the above, my colleague held that the scales clearly tip toward providing the information.

 

5.Having found that the exception for not disclosing information by reason of protecting the State’s foreign relations does not apply, my colleague turned to examine the second issue that arises in this appeal: whether relevant third parties, who are not parties to the proceeding – that is, guests at the dinner – must be permitted to make arguments before the Court before granting an order to provide their names. This question arises in light of the provision in sec. 17(3) of the Law, whereby: “The Court shall order delivery of information that is liable to harm a third party's rights only after it has given the third party an opportunity to present his arguments in the manner in which the Court shall prescribe”. In this regard, my colleague held that there was no need to allow the guests at the dinner to argue before the Court, as in any event, their rights would not be violated as a result of the disclosure.

 

6.According to my colleague, when a request to reveal names of participants at an event is concerned, the question as to harm to third parties centers on their right to privacy, and in the case at hand, there is no such concern. My colleague based her conclusion on the public, official nature of the event, which establishes a presumption that the participants at the dinner consented to revealing the fact of their participation. In the words of my colleague: “in regard to an event that was held by an authority, including a formal dinner, a party or a large reception, the assumption of the participants ought to be that their names will not remain a secret, and thus, in any event, it cannot be said that exposing their names causes them harm. In effect, it could be said that there is a presumption that participants in a publically held event of an official or formal nature  consent to the disclosure of their participation…” (para. 49 of her opinion) (emphasis added – M. N.). Therefore, my colleague held that there is no such risk that the rights of the participants in the event would be harmed as a result of disclosing the information, and there is no obligation to seek their position as required by sec. 17(c) of the Law.

 

7.The view of my colleague Justice D. Barak-Erez that the Respondent in this matter has not demonstrated that the exception under sec. 9(a)(1) of the Law applies has its merits. However, I believe it would be appropriate to make a final decision as to the disclosure of the information only after we permit the relevant third parties to voice their arguments on the matter before the Court. To the extent that any of the third parties elects not to respond, this would express their consent to disclosing the information, and the need to continue the deliberation on this point would become moot.

 

8.The point of departure for my position is the provision of sec. 17(c) of the Law, which provides, as may be recalled, that “[t]he Court shall order delivery of information that is liable to harm a third party's rights only after it has given the third party an opportunity to present his arguments in the manner in which the Court shall prescribe”. The purpose of sec. 17(c) of the Law is intertwined with the purpose of sec. 13(a) of the Law, which stipulates that a third party must be granted the opportunity to voice its arguments before the authority when the authority considers the request under the Freedom of Information Law, and before it has made its decision.

 

The purpose of the above sections is to promote two related purposes: procedural justice and procedural efficiency. Procedural justice, as an expression of the principles of natural justice, means that third parties must be given proper opportunity to present their arguments before a decision that harms their rights is made. Procedural efficiency means that the proceedings should not be complicated unnecessarily in order to realize the rules of procedural justice, such as granting a hearing to anyone who may be harmed by providing the information (AAA 49/16 Regev v. Drucker, para. 15 of my opinion (February 10, 2016) (hereinafter: the Regev case). In any event, sec. 13(a) of the Law is irrelevant to this case, since the authority did not consider releasing the information.

 

9.My colleague found, as noted, that the participants in the event implicitly consented to publishing the fact of their participation. Therefore, in her view, there is no need to obtain their positions before publishing their names. My view is different. First, I have doubts as to whether there was implicit consent for publication. My colleague held that we are concerned with an official event held in public circumstances, but according to the opinion of the Respondent, it is customary that the identity of the participants in such events is not disclosed to unauthorized entities. Indeed, in the case at hand, there are circumstances that are inconsistent with such custom, particularly the fact that some of the attendants posted the fact of their attendance on their own initiative. However, although this fact carries some weight, it is insufficient to deny the other participants, who chose not to publicize the matter, the opportunity to express their position. In addition, although the dinner was held over two years ago, to date the list was not published in its entirety. Even the fact that journalists were also in attendance does not point conclusively to the participants’ consent to have their names revealed, because in light of the privilege that exists between journalists and their sources, we cannot rule out the possibility that the guests assumed that the their attendance itself was not to be disclosed,  and that conversations were not to be quoted. It should be emphasized that this is not a determination of the question whether the information is to be provided or not. It is possible that, at the end of the day, even under my approach, there would be no reason not to provide the information. All I hold here is that the position of third parties should first be heard.

 

10.Even were I to assume that there is a presumption that the participants granted their consent to publicizing their participation in the event, I do not believe there is justification to revoke their right to be heard. My colleague raises various considerations in this context, but I believe that, under the circumstances, they do not justify circumventing the legislature’s instructions in sec. 17(c). In my opinion, the finding that a third party is not entitled to present arguments based on the assumption that they consented to the disclosure of the information limits the scope of the right to be heard as established in sec. 17(c). Even if it is conceivable that there are cases where revoking the right to be heard on this basis would be justified, and I am not setting anything in stone in this regard, this case is not among them.

 

11.My colleague notes that the “the Freedom of Information Law sought to establish a starting point for disclosure” (para. 44 of her opinion), and that the authority must not be permitted to circumvent fulfilling its duty by relying on the difficulty of obtaining the position of third parties. I share this approach, but this is not the case here. There were 34 participants in the dinner, some of them minors whose names the Appellants agreed should not be publicized in any event (see p. 8 of the protocol). In other words, we are concerned with only a few dozen relevant third parties, rather than hundreds of guests (compare, e.g.: AAA 1386/07 Hadera Municipality v. Shenrom Ltd. (July 16, 2012) (hereinafter: the Hadera Municipality case); AAA 11120/08 Movement for Freedom of Information v. Antitrust Authority (November 17, 2010)). Regardless, this Court has already discussed in the past the issue of balancing the right to receive information and the interest of public authorities in proper functioning and the right to privacy, and even created practical solutions designed to reach an optimal balance in complex situations that include a large number of third parties (see, e.g., the Hadera Municipality case, paras 14-17 of Justice H. Melcer’s opinion). As noted, in our case we are not concerned with a large number of third parties. Additionally, as opposed to other cases, we can identify those third parties, and there is no need for an unreasonable investment of resources in order to locate them.

 

12.Moreover, the Respondent addressed the issue of [the lack of] consent or expectation by participants to disclosing their names during oral arguments, as well: “as to the list – as we noted, in regard to the United States ambassador, he did not wish to disclose the participants” (the statement of the State’s attorney, p. 8 to the protocol of the hearing of November 16, 2015); “The accepted norm for such events is that the very fact of participation not be publicized” (ibid., p. 9 of the protocol); “This was an intimate event, as the ambassador told us. This is the accepted norm in the diplomatic world for such events” (ibid.) (emphases added – M. N.). Beyond this, in its summation, the Respondent addressed the need for the positions of all of the dinner’s participants before disclosing their names (see para. 42 of the Respondent’s summation).

 

13.As a result, it appears from the material before us that there is, at the very least, a concern that such parties may be harmed by disclosing the information. It should borne in mind in this context that sec. 17(c) of the Law does not require certain harm to third parties as a condition for its application, but rather possible or probable harm suffices: “The Court shall order delivery of information that is liable to harm a third party's rights only after it has given the third party an opportunity to present his arguments ” (emphasis added – M. N.). Therefore, my opinion is that, under the circumstances, there is no place for a “presumption” of consent by the participants for the publicizing of their names and the fact of their participation in the event. Indeed, I agree with the general assumption of my colleague Justice D. Barak-Erez whereby it is reasonable to attribute to attendees at events with a large number of guests, which are of a formal  and official nature, a presumption of consent to disclosing their participation. However, this presumption is not absolute and it may be rebutted. I believe that under the circumstances of the case at hand, and in light of what was described above, the presumption of consent that may be attributed to participants appears to have been refuted, and its true test would be in hearing the positions of the participants.

 

14.Given my position whereby there may a violation of third parties’ rights in this case, the language of sec. 17(c) of the Law requires that the Court grant the third parties an opportunity to be heard before ordering the disclosure of the information.

 

15.In my view, the question arises as to how the third parties may present their arguments. In the Regev case, we found that once the District Court considered ordering the provision of information that may harm third parties, the best practice would have been to follow sec. 17(c) of the Freedom of Information Law, and to grant those parties the opportunity to be heard in a manner decided by the court before handing down a decision in the case. The lower court did not act in such a manner, and thus, in those circumstances, we saw no alternative but to go back to the best practice, that is, that the case be remanded to the Administrative Court for the purposes of hearing the third parties. We held that following the renewed hearing, the Administrative Court would hand down a new decision, after having considered the arguments by all parties. Under the circumstances, we also saw no place to consider the arguments on the merits raised in the State’s appeal challenging the disclosure of the information, and we expressed no opinion regarding them.

 

16.The lower court in this case did not consider ordering the disclosure of the information in the belief that the exception under sec. 9(a)(1) of the Law applied. Therefore, it did not address the application of sec. 17(c) of the Law, at all. Under these circumstances, I believe it would be proper that we permit third parties to provide this Court with their positions, through the Respondent, similar to what was done in CA 7759/01 Ha’aretz Newspaper v.  Ministry of Justice, IsrSC 55(5) 150, 154 (2004). I would have ordered that their positions be submitted initially for the Court’s eyes only.

 

Conclusion

 

17.In my opinion, before issuing a decision on the merits of this appeal, it would have been appropriate to obtain the positions of third parties that participated in the event, through the Respondent, and only after reviewing them, it would have been appropriate to decide the fate of the proceedings before us.

 

 

Decided by a majority of the Court in accordance with the opinion of Justice D. Barak-Erez.

 

Given this day, 29 Iyar 5776 (June 6, 2016).

 

 

In the Supreme Court

 

EA 1/65

 

Before:                                    President Agranat

                                    Justice Sussman

                                    Justice Cohn

           

 

Yaakov Yeredor

 

                        v.

 

 

Chairman of the Central Elections Committee for the Sixth Knesset

 

 

 

 

 

Judgment

 

Justice Cohn:

1. This appeal comes before us pursuant to section 24 of the Knesset Elections Law, 5719-1959 [13 L.S.I. 121], which states as follows:

(a)  Where the Central Elections Committee has refused to confirm a candidate’ list…it shall, not later than the 29^th day before election day, notify the same to the representative of the list and his deputy, and they may, not later than the 25^th day before election day, appeal to the Supreme Court against such refusal.

(b)              The Supreme Court shall hear an appeal under this section by three Judges, and its judgment shall be final. The judgment shall be served on the Central Committee not later than the 20^th day before election day.

According to section 66A of the Law [13 L.S.I. 157], “In a year in which the elections to the Knesset take place on the first Tuesday in the month of Cheshvan” then in section 24(a)  the 35th day should be read instead of the 29th day, the 28th day should be read instead of the 25th day, and in section 24(b) the 21st should be read instead of the 20th day.

2. On the 3rd of Tishrei 5726 (September 29, 1965), the Chair of the Central Elections Committee wrote to the representative of the “Socialists’ List” as follows:

I hereby notify you that in its meeting today, the Central Elections Committee for the Sixth Knesset refused to confirm the Socialists’ List because this list of candidates is an unlawful association inasmuch as its initiators deny the integrity of the State of Israel and its very existence.

According to section 24(a) and 66A of the Knesset Elections Law, 5719-1959, you may appeal this refusal no later than the 28th day before election day, that is not later than October 5, 1965, to the Supreme Court.

3. In the sixth meeting of the Elections Committee, on September 16, 1965, the Committee Chair said the following about the “Socialists’ List” (hereinafter: the List) (among other things that are  not relevant to this appeal):

This list has ten candidates. As it turns out, five were members of an organization that was declared an unlawful association by the Minister of Defense. These candidates are: Salah Baransa and Habib Quagi, who are the first two candidates on the list; Ali Raffa, who is the fifth candidate on the list, and the last two are Muhammad Abd Al Hamid Muari and Mansur Kardosh. I think that the third one on the list, Sabri Elias Jerias, is also among them. These are people who were previously in the El Ard group. That group attempted to register as an association under the Ottoman Associations Law and the application was denied by the District Commissioner. They turned to the Supreme Court, and it, too, rejected their request and held that they were a group whose purposes harm the existence of the state and its territorial integrity. Thus, their request was denied by the Supreme Court as well (the decision was published in IsrSC 18 (4) 673). Additionally, a declaration by the Minister of Defense was published in the Official Gazette pursuant to Regulation 84(1)(b) of the Defense (Emergency) Regulations 1945, in which the Minister of Defense declared: “The association known as the El Ard Group or the El Ard Movement, and whatever its name may be from time to time, as well as an association incorporated as El Ard Ltd., including an association created by a common action of shareholders in the above company or any part thereof, are an unlawful organization.” Here I must add that prior to the request to associate under the Ottoman Association Law, there was another request to the Companies Registrar to register a stock corporation under the name of the El Ard Company Ltd., and the Companies Registrar refused to register it. They then turned to the Supreme Court, which ordered the registration of the company. The declaration by the Minister of Defense applies to this organization as  a limited liability corporation, as well.

These are the facts I wish to provide to you at this point. And as I understand it, the question will ultimately be whether this list must be confirmed or not. The purpose of today’s discussion, as far as I understand, is for you to consider these facts that I have presented today, and should it be decided that this list is expected to be rejected, I understand that it is the duty of plenum to invite this list’s representatives to appear before it so that they can voice their arguments against the rejection…” (p. 5-6).

In the course of discussing this notice, one of the committee’s members said that: “The group received encouragement from the broadcasts of Cairo radio. If it is possible, I would ask that we be supplied with copies of those broadcasts. One of the pieces of advice they received from Cairo radio was to secure diplomatic immunity so that they will not be harassed” (p. 14.) The Chair responded to this by saying he was willing to distribute the material among the committee members. He added as follows:

I believe that this committee has judicial authority. Basic Law: The Knesset has been mentioned. Basic Law: The Knesset includes section 6, which says that every Israeli citizen who, on the day of submitting a list of candidates which includes his name, is aged 21 years or older, shall have the right to be elected to the Knesset unless a court has deprived him of that right by virtue of law. I bring the matter to your attention and each of you may use it to the best of your understanding (ibid.)

At the end of the meeting it was decided to invite the list’s representatives to explain to the committee why the list should not be rejected (inter alia) by reason of the fact that “the list and the group of candidates should be deemed an unlawful organization and thus should not be confirmed” (p. 16).

4. On September 24, 1965, at the seventh meeting of the Elections Committee, the Petitioner appeared before the Election Committee as the list’s representative. The Committee Chair addressed him as follows:

…I would like to explain to you, sir… in general terms, what the issue is. The Committee believes that it has material that prima facie shows that the initiators of this list are members of El Ard, and an examination of the names reveals that six of the candidates were incorporators of the El Ard Company (reads the names.) We are aware of the declaration by the Minister of Defense, published in the Official Gazette 1134. In addition, the Committee was presented with the Supreme Court’s decision in the matter of El Ard v. District Commissioner in HCJ 253/64. I refer you, sir, to that section in the Ottoman Associations Law discussed in the decision, section 3, along with the definition of ‘Association’ in section 1 of the Law. This was the material that prompted the Committee to invite you, sir, to present your arguments (p. 27).

The Petitioner referred the Committee to section 6 of Basic Law: The Knesset, and claimed that “no law grants the Elections Committee the power to deny any citizen his right to be elected to the Knesset due to the list being an unlawful association… No court decision under section 6 of Basic Law: The Knesset has ever denied the right of any of the candidates on this list to be elected…” (p. 28.) The Petitioner went on to address the list’s purpose, stating:

This list wishes to eliminate the phenomenon of “goy shel shabbat”[1] in the Jewish parties, which support equality for the Arab people and granting full opportunity to the Arab people, and to express solidarity and partnership – including within the territory of the State of Israel – with the waves of national liberation in the Middle East to the same extent that the Jewish people in this land demanded and achieved this right, and all this to the benefit of the State. From a public perspective, rejecting the list means denying the Arab people who live in Israel the ability to voice its position on the matters most sensitive to it in the only forum that would permit it to express itself freely. Logic requires that Arabs be permitted to reach the Knesset through an independent Arab list, which would prevent irresponsible elements from improperly discussing such things as various kinds of undergrounds. I summarize and repeat that there is no significance, in terms of the laws that govern the activity of this esteemed Committee, to anything prior, to the character of any association. We are concerned here with the right to be elected, the right to nominate candidates, and this right was not revoked anywhere, by any declaration, by any judicial decision, and – with all due respect –  this Committee does not have the power to revoke any of these rights (ibid.).

5. In its eighth meeting, on September 9, 1965, the Elections Committee held a full, comprehensive discussion of this matter. After the committee members expressed their opinions, the Chair of the Committee expressed his opinion at length, and since the learned Attorney General adopted this position of the Committee Chair for the purposes of his arguments before us, I will present the excerpts of his speech that address the legal question in dispute, as they were recorded in the minutes, as follows:

Of course we consider this question within our judicial authority. The matter before us is by its nature a legal question… (p. 24).

We do not sit here as a court, and therefore we do not require evidence as a court would require according to the standards of evidence law. We may be satisfied with less that that which would meet the criteria of legal proceedings in court. And the Supreme Court, I believe, would put itself in the shoes of this Committee when it comes to consider the factual questions related to the legal decision. Indeed, the matter is very serious, because, as was rightly stated here – if we reject this list, we might ask, where does this end? However, our role is to set the boundary according to legal considerations, and determine where it ends. In my opinion this limit can and must be set… (ibid.).

… An association is not only a registered association or one that which wishes to register, but it is defined in the most broad terms in section 1 of that law (the Ottoman Associations Law) as a body composed of several people who join… their knowledge or activity in order to achieve a purpose that is not the division of profits. This is a very broad definition, and it applies to those people who wished to register the El Ard Association. And I say that in the absence of any evidence before us to the contrary, it applies to these people today as well… In my opinion, the association that we must view here is not the 750 signatories to the list, but they are the 10 candidates. After all, according to the law, each of the candidates must give written consent to being a candidate. It must be assumed that they consent to being a candidate after looking into whom they join on the list. Well, there is here that consent by these ten people, which is addressed in the first section of the Ottoman Associations Law. I myself am satisfied, according to the material before us, that the initiators of this list of candidates are the same El Ard Group that made previous attempts to organize… and later the Minister of Defense, in his declaration… turned the group of the incorporators of the stock corporation into an unlawful association under the Defense (Emergency) Regulations of 1945, along with any part of this group. However, the declaration is only an accessory tool in my conclusion. The foundation, in my view, is section 3 of the Associations Law. And here I have no  difficulty in setting the boundary between this list, whose purposes were defined in its memorandum, of which parts were cited by the Supreme Court in its opinion, and other groups who wish to change the internal constitutional regime in the country (p. 25).

I see a great difference, as the distance between east and west, between a group of people that seeks to undermine the very existence of the state, or in any event its territorial integrity, and a party that recognizes the political entity of the State but only wishes to change its internal regime. The question asked here was, what will tomorrow bring were we to apply this section against other parties. I do not know of another party in the state against which I could apply that section…. (p. 26).

… I would like to say that Basic Law: The Knesset does not at all address the issue with which we are concerned here. It addressed the individual ineligibility of a candidate, while we are talking about the barring of a list as an association. When we consider our legal regime as a whole, we are permitted to read both Basic Law: The Knesset, and certainly the Knesset Elections Law together with the Associations Law, and we may read into the Knesset Elections Law a general rule that an illegal association may not be approved as a list… (ibid.).

… I say that we must add to the conditions detailed in the Law an implied condition according to the same rule of contract law that asks what a bystander would say were he asked this question as to whether a condition should be read into a contract entered into by the parties although not detailed in the agreement, and  if his response would be that it is obvious, then it is permitted to read an implied condition into that contract. In the same way we must analogize here the interpretation of the Law. I now wish to remind you of a different idea, again from contract law: the idea that ex turpi causa non oritur actio – no cause of action can arise from unlawful or immoral conduct. This is also not written in any statute, but we read this into every contract, although we have statutory contract laws. I believe this Committee, in its judicial approach, must follow that same path and find that a list that is unlawful in the sense that it denies the very existence of the state must not be confirmed, for the same reasons explained in the Supreme Court’s decision, because a body that objects to the very existence of the State must not participate in the Knesset, which is the sovereign institution in the State – the institution that gives expression to the people’s will. As was said in the decision, democratic ideas must not be used in order to undermine that same democratic regime. These are fundamental ideas of our constitutional regime, which we are permitted to read into the provisions of the Knesset Election Law (p. 27).

6. I agree with the honorable Chair of the Elections Committee that the question before the Committee, and that is now before us, is an extremely serious, constitutional question, and the fact that the Law mandates that we hand down our decision within four days, including the Sabbath and a holiday, does not make our difficult task easier. I have been greatly assisted by the members of the Committee, whose statements in the course of the debate held by the Elections Committee shed light and clarify the problem in its many aspects, each one according to his approach and view – and particularly by the comprehensive, clear opinion by the honorable Chair, some of which I have presented above, and following which I will discuss all the questions arising here, according to the order that he set for himself. I will first say that from a factual standpoint, we will not examine the Committee’s finding that the candidates on this list are indeed the members of the El Ard group, which is an unlawful association, whether according to section 3 of the Ottoman Associations Law, or Regulation 84 of the Defense (Emergency) Regulations  1945, or the two statutes taken  together. And in this context it is irrelevant that not all the candidates on the list were active or known members of this group before, because – as the Committee Chair has said – once they decided to join one list and to cast their lot with the people of El Ard, they are presumed to have first examined with whom they were joining and for what purposes. Similarly, we shall not examine the finding of the Committee Chair that such illegality is, partially or fully, the result of the fact that the members of this group “undermine the very existence of the State, or in any event undermine its territorial integrity.”
7. The legal question before us is but this – does the Central Elections Committee have express or implicit legal authority to reject a list of candidates for the Knesset because it constitutes an “unlawful association”? But before I examine the law, I must say several things to clarify the question.

The Committee’s decision said, as we recall, that the list was rejected as an “unlawful association, because its initiators reject the integrity of the State of Israel and its very existence.” This means that merely being an unlawful association is insufficient. The “line” that the Committee Chair believes must be drawn is, it seems, the line that distinguishes between an unlawful association whose illegality is rooted in the undermining of the State or the integrity of its territory and an association that is illegal for other reasons. If indeed the provisions of section 3 of the Ottoman Associations Law must be read into the Knesset Elections Law, then we shall find that a list of candidates who object to “law and morality”, including a particular statue, or whose purpose is to “change the composition of the current government” or “influence the separation between the different races in the state” – are unlawful. And if indeed a list of candidates is an unlawful association in terms of the Ottoman Associations Law, I cannot see how the Elections Committee – assuming it is authorized to reject such a list for being an unlawful association – could approve such a list. But generally there is no dispute, and the honorable chair explained this to the Committee in no uncertain terms, that  lists of candidates who object to a particular statute and wish to repeal or amend it, or those who object to the composition of the current government and wish to change it, and the like – are fully eligible lists and rejecting them would be inconceivable.

Such is the case in regard to Regulation 84 of the Defense (Emergency) Regulations 1945. Under subsection 1(a), an association may be unlawful when it incites to violence against the government, for example. And under subsection 1(b) – the subsection according to which the members of this group were declared an unlawful association – the Minister of Defense is granted free discretion to declare a group of people as an unlawful association for any reason he sees fit.

As a result, the mere fact that a certain list of candidates is an unlawful association – be it under the Ottoman Associations Law or under the Defense (Emergency) Regulations 1945, is not deemed cause for rejection by the Elections Committee. The cause is that the unlawfulness is rooted in undermining the existence of the state or its integrity. However the cause that is at the basis of the Committee’s decision cannot in itself point to the authority of the Committee and the scope of such authority. It is possible that the Committee is authorized to reject a list for being an unlawful association, whatever the root of that unlawfulness may be, but that it does not choose to exercise this authority except in the case of a particular unlawfulness. Or it is possible that the Committee is not authorized to reject a list merely by reason of its being an unlawful association, but is authorized to reject the list when the relevant unlawfulness is undermining the existence of the state and its integrity. The honorable Chair of the Committee seems to have hinted at the first possibility when he proposed to read section 3 of the Ottoman Associations Law into the Knesset Elections Law. He seems to have hinted at the second option when he proposed that the Committee establish the mentioned distinction between lists whose candidates undermine the existence of the state and lists whose candidates only wish to change its internal regime.

I shall examine both options.

8. The authorities of the Elections Committee as to the approval or rejection of lists of candidates are set out in section 22 and 23 of the Knesset Elections Law. Section 22 establishes as follows:

Where a candidates’ list has been submitted otherwise than in accordance with the preceding sections, the Central Committee shall notify the representative of the list and his deputy of the defect not later than the 40^th day before election day, and such representative and deputy may correct the defect not later than the 34^th day before election day; where the signatories of a candidates list include a person who was not entitled to vote, this shall be considered a defect, but insufficiency of the number of signatories invalidates the list.

The “preceding sections” mentioned in this section are sections 18 through 21. Section 18 mandates that a list of candidates must be signed and submitted by 750 people who have the right to vote, or be submitted by an elected party of the departing Knesset. A list shall include the names, addresses and occupations of no more than 120 candidates who are “entitled to be elected” and whose consent to be elected was annexed to the list. A date for submitting the list to the Central Committee was also set. Section 19 establishes that any person may appear as a candidate on one list only. Section 20 requires those submitting the list to specify two people, one as the list’s representative and the other as the representative’s deputy. Section 20A requires depositing a sum of 5,000 Israeli Pounds, without which the Committee may not approve the list. And section 21 mandates that every list of candidates “bear a title and a letter, or two letters, of the Hebrew alphabet” in order to distinguish it from other lists.

      Should a list be submitted without complying with all of these instructions, then section 22 above applies. But what if a list has been submitted following all of these instructions correctly and in a timely manner? Then section 23 instructs as follows:

A candidates’ list duly submitted, or that was corrected in accordance with the previous section, shall be confirmed by the Central Committee, which shall notify the confirmation to the representative of the list and his deputy…

The arguments of the parties before us focused extensively on the interpretation of section 23 above. As one party’s argument goes “a list duly submitted,” means a list that was submitted “in accordance with the preceding sections”, as required by the legislative language of the previous section; whereas the other claims that “a list duly submitted” means a list that is not defective or ineligible under the rules, be it according to the preceding sections of the Knesset Elections Law or according to any other law. One party says “shall be confirmed” is the language of a categorical command, whereby the Elections Committee has no discretion as to the confirmation, and the other maintains that “shall be confirmed” means may confirm, and that this is not necessarily the imperative language.

I believe the Petitioner is in the right. Section 22 establishes what the Committee should do when a particular list was submitted improperly, that is, as it should have been submitted under the preceding sections, and section 23 establishes what the Committee should do with a particular list that was duly submitted, that is, as it should have been submitted according to the preceding sections. The emphasis is on the “submission”, both in section 22 and in section 23. The term “submission” points to the manner of making the list and submitting it, that is, to all the details in the said preceding sections. Should a list be found to be properly drafted and in accordance with all the provisions of the preceding sections as written, then the Law does not grant the Committee discretion to confirm or reject a list as it wishes. Rather, the Committee has only one path, and that is to confirm the list.

The learned Attorney General further argues that should section 23 not avail, there are additional, alternative sections in the Knesset Elections Law on which one may rely. Section 9(a) establishes that the Central Elections Committee is convened for the purposes of “conducting the elections” and conducting elections is like executing^[2] the law – it is a broad term that comprises all that concerns elections and includes all that is necessary and useful in preparing elections and executing them.  In support of this view, section 70 grants the Committee exclusive jurisdiction over “any complaints as to an act or omission under this Law”, and section 71 authorizes the Committee to issue directives “as to any matter relating to the preparation and conduct of the elections and the determination of their results”.

In my view, whatever the scope of these provisions – and I do not find it necessary to interpret them on this occasion – they cannot stand against the special provisions that treat of the submission and approval of candidates’ lists. They were drafted in plain language, and we must  interpret them as written.

This was, it seems, the opinion of the Committee Chair as well. He told the Committee as follows:

What is a list of candidates that was submitted properly? When I read this along with section 22, I believe that the answer I find within the framework of the Knesset Elections Law is: a list that meets the conditions detailed in the preceding sections. It does not say here, in the language of the Law, that the committee still has discretion. Rather, it says: will confirm it, after these conditions are met. Thus, here I see the seriousness of the legal problem… (Minutes from September 29, 1965, p. 26).

The emphasis, in Committee Chair’s statement is on the words “within the framework of the Knesset Elections Law”, and the question is whether there is some statute outside of the framework of the Knesset Election Law that authorizes the Elections Committee to reject a list of candidates.

9. If I correctly understand the position of the honorable Chair, he sees the Central Elections Committee as an authority with quasi-judicial authority (and certainly no one would dispute him on this), and just as a court, by the inherent authority vested in it by its very existence, would refuse to grant relief under an unlawful cause of action or for an unlawful purpose, so too, a competent quasi-judicial authority, by virtue of the inherent natural authority vested in it as well, may refuse to grant relief for such a cause  or purpose.

With all due respect, I fear that this is an over-generalization. Many administrative authorities hold quasi-judicial authority, and it is inconceivable that they may refuse to fulfill their lawful duties merely because they believe that a citizen’s request is tainted by illegality. The learned Attorney General presented us with precedents where the High Court of Justice declined to grant relief when the competent authority refused to issue a certain business license to those who conducted a business in violation of the law. Clearly, no support can be drawn from those cases. First, the High Court of Justice will not lend a hand to perpetrators of offenses; second, the authority of a particular agency to refuse to issue a license for an unlawful purpose does not prove the authority of another agency to refuse to fulfil its legal duty, even in similar circumstances, much less in different circumstances. 

The learned Attorney General adds that even if this rule does not apply to all the various agencies, it does in any event apply to the Central Elections Committee, which is not just any agency, but somewhat of a “mini-Knesset” in which all the parties in the outgoing Knesset are represented, and it is headed by a Supreme Court Justice. The unique composition of this Committee and its high stature call for the assumption that the legislature did not intend to grant it only ministerial authority, and if it was granted discretion and general freedom of action, then the said discretion  is primary.

I would be more sympathetic to this argument by the learned Attorney General were the Chair of the Committee granted any authority to determine, following his own discretion, matters such as these as they arise before the Elections Committee. But the Law does not grant the Chair any discretion or any privilege, and in the Committee’s decision making he is as any of the Committee members. And the Committee members, as I have already noted, all represent political parties, each with its own clear interests, both in preparing the elections and in conducting them. These interests are political interests, as legitimate as they may be, but when the decisions of a certain authority are, by its nature, a result of political considerations and motivations, it is reasonable to assume that the legislature would not rely upon its discretion when it comes to granting or revoking rights to participate in elections for the Knesset. Even in the absence of the explicit provision in Basic Law: The Knesset, the legislature must be presumed not to have intended to deny the right to vote for or be elected to the Knesset, except by an explicit law or a judicial decision by a competent court.

I believe that even if, as a general rule, an administrative agency holds inherent authority to refuse to act when the request or the requester is tainted by illegality, I would deny this power to the Knesset Elections Committee as long as the legislature did not explicitly grant it. Consider what dangerous outcomes might result from granting such discretion: a party or another political group that desires a change in the regime or the repeal of certain statutes would be considered an unlawful association as defined by the Ottoman Associations Law, as noted, and the parties in power, which of course hold a majority in the Central Elections Committee, might bar such party or group from submitting a list of candidates for election, inasmuch as it is an unlawful association and the Elections Committee is granted the authority to refuse such a list for being illegal! The same is true in regard to the declaration by the Minister of Defense under Regulation 84(1)(b) of the Defense (Emergency) Regulations 1945: a party or political group which the Minister or the coalition parties may not like would be declared an unlawful association and would thus be rejected by the Elections Committee for illegality, and all will be right with the coalition. As I said, these are dangerous consequences, and I could have said absurd consequences, and are intolerable.

10. However, I do not believe that the provisions of section 3 of the Ottoman Associations Law can be read into the Knesset Elections Law and be applied to lists of candidates. It is true that the definition of association in that law is broad enough as to include the initiators of a list of candidates to the Knesset or the candidates on one list as well. But the Knesset Elections Law is, in my view, a special piece of legislation in this regard, and its provisions as to the lists of candidates stand on their own, independent of and unrelated to other statutes concerning associations of people. Although under the broad, comprehensive definition of section 1 of the Ottoman Associations Law, neither the initiators of the candidates’ list nor the candidates themselves constitute an association under that law – not because the definition does not encompass them, but because their coming together is for the purpose stated in the Knesset Election Law and for that purpose alone, and in the manner and form established for such purpose by the Knesset Elections Law. They need not notify the District Commissioner of their association; they need no board or register; and they cannot sue or be sued in a court of law. But were the definition of section 1 to apply to them, then all the other provisions of the Law – and not just section 3 – would also apply to them.

Both the initiators of a list of candidates and the candidates composing a list are a sui generis association. They are unique, and no illegality may compromise or taint them other than an illegality that derives from an explicit provision in the Knesset Elections Law itself.

Therefore the illegality of the association of the initiators of the list at hand, or of its candidates, does not authorize the Committee to reject the list.

11. We are left with the second possibility, which is that the Committee is authorized to reject a list of candidates when such candidates undermine the existence of the state or its integrity. We are concerned with elections to the Knesset which in its sovereignty embodies the sovereignty of the State, and denying the sovereignty of the state while sitting in the Knesset are self-contradictory and irreconcilable. Therefore, it is appropriate – and perhaps necessary – that the Central Elections Committee have the authority to prevent the entry of those who deny the fundamentals of sovereignty.

I will immediately say that I wholeheartedly agree that it is necessary that some body – be it the Central Elections Committee, the Knesset itself or the Court – should have the authority to remove from the Knesset such dissidents who betray the state and assist its enemies. But this is not to say that such authority is indeed granted to any body, including the Central Elections Committee, under the existing law. In a state under the rule of law, one cannot be denied rights, even if he be the most dangerous criminal or the most despicable traitor, but by law alone. Neither the Central Elections Committee nor this Court legislate in this state. The Knesset is the legislative authority and it empowers its authorities, should it wish to do so, to do to one as his ways and deeds warrant. In the absence of such authorization from the legislature, not logic, necessity, love of country, nor any other consideration  whatsoever  can justify taking the law into one’s own hands and denying another’s rights.

12. The learned Attorney General argues that if the Law comprises no explicit authorization for the Central Elections Committee, there is implied or alluded authority. That allusion is sufficient for the Committee, especially in view of the fact that such allusion reveals the intent and wishes of the legislature. This argument relies on the provisions of sections 1 and 2 of the Law and Administration Ordinance, 5708-1948, and it impressed me when I first heard it. However, after careful study I found that this provision has no trace of allusion as to the legislature’s intent or its position in regard to the matter before us. This is the provision:

Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Council of State (in sec. 2: the Provisional Government), as may be decided by the Council.

As the argument goes – and for the purposes of interpreting the provision itself, it is a correct argument – expressio unius est exclusio alterius.  Arab residents of the State who recognize the State of Israel would be included as participants in the Council of State. Arabs, even if residents of Israel, who do not recognize the State of Israel will not be granted a place in the Council of State. This provision is consistent with the language of the Declaration of Independence of the State of Israel, which called upon the Arab inhabitants of the State of Israel to participate in building the state “on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions”. Should they wish to take part in building the state, then they are assured appropriate representation in the institutions of the state. This does not apply when they not do not take part in state building, but even intend to destroy it completely.

It is true that in the Knesset now takes the place of the Provisional Council of State, and thus the Attorney General argues that what was true for the Council of State is now true for the Knesset, and since the Socialists’ List is a list of Arabs, and while they are residents of Israel, they do not recognize the state and they do not wish to take part in building it, but to the contrary, they wish to destroy and abolish it – therefore the law is that they cannot find their place in the Knesset.

This argument ignores the political and legal background of the Declaration of Independence of the State of Israel and the adoption of the Law and Administration Ordinance. The vast majority of Arabs who were residents of the state at the time were suspected of being enemies of the State, if not actually, then potentially. As it soon became clear, many of them not only refused to acknowledge the state, but even fought against it and collaborated with its external enemies to annihilate it. On the other hand, there were Arabs who initially, or over time, recognized the existence of the State and decided to remain and prosper in it. Simply put, in the state of war at that time, it was necessary and lawful to distinguish and identify these and those, friend and foe, as well as enemies and  neutrals, not only in order to bar enemies from state institutions, but also in order to ensure that the supporters not be discriminated against on the basis of religion or nationality.

In the meantime, times have changed and laws have been enacted. The vast majority of enemies among the Arab residents of the country have since left the country, and the Arab residents who, from the day the state was founded to the day the Nationality Law, 5712-1952 took effect, did not leave the country, or who lawfully returned to it, became citizens of the State of Israel under section 3 of that law. This is also the case for Arabs who were born in Israel after the founding of the State, and we must assume that an additional number of Arab citizens acquired citizenship under section 5 of that law. There is no difference between all of these and the Jewish or other citizens of this state in terms of their right to vote for the Knesset, or their right to be elected to the Knesset or in any other legal matter. They are all equal before the law, the Knesset Elections Law is included, unless a specific law (such as the Law of Return or the Days of Rest Ordinance) explicitly provides otherwise.

Basic Law: The Knesset includes no provision, explicit or implicit, that permits any discrimination for any reason between Jewish citizens and citizens who are not Jewish. In any event there is no reason to distinguish or discriminate between Jewish citizens who are not loyal to the State or do not recognize it, and Arab citizens who are not loyal to the state or who do not recognize it. To our dismay, we also have a group of Jews who declare day and night, in speech and in action, that they do not recognize the state. But the learned Attorney General admitted, in response to my question, that no one would conceive of preventing them from submitting a list of candidates for election to the Knesset, should they wish to do so. The argument is that they are not comparable, as one group has links to our surrounding enemies while the other group is contained within their secured (in both senses of the term) walls. But we have already seen citizens of Israel, not Arabs, who served the enemy and paid the price for it – and no one has thought of revoking their rights as citizens – not because they were not potentially deserving of such, but because the prevailing law does not make this possible.

The statements of some of the Committee members who participated in the debate imply that there might be some basis for the concern that the members of El Ard – the people on the list at hand – are attempting to enter the Knesset under the instructions of the enemy with which they are in contact, and their success in this scheme would be somewhat of a victory for the enemy and somewhat of a defeat and disgrace for the state. I am willing to assume that on an informative level, this assumption is correct, and that on a political level, the consideration that relies upon it is certainly reasonable and legitimate. But legally, it would seem to me that this assumption and this concern are immaterial. It is certainly possible that the governments who wage war against Israel are very well aware of the details of Israel’s constitutional regime and have decided to exploit it for their contemptible goals. But in the absence of legislation, that is insufficient as justification or as a reason for our own denial of our constitutional regime as it is. On the contrary, we take pride in our freedom of conscience and freedom of association, and in the absence of discrimination in the State of Israel, and we have only contempt and disdain for regimes, such as those of our enemies, where only one party – the governing party – is permitted, or where all the power of government is concentrated in the hands a tyrant or a military junta. When the exigencies of war – which our enemies might compel upon us – may require, the Israeli legislature – including the subsidiary authorities authorized to promulgate emergency regulations – will know how to authorize anyone requiring such powers to take all measures of defense necessary, and not only on the battlefield. But the State of Israel is distinguished from its enemies because in its view, even the ends of war do not justify wrongful means, and any means that violate the law or that are employed without lawful authorization and that may deny the rights of citizens are wrong and a judge in Israel will not approve them.

Moreover, even where there was explicit statutory authorization to deny a citizen a certain right, and the right was a fundamental civil right, such as  freedom of conscience and freedom of speech, this Court did not allow the exercise of that legal authority unless the infringement was intended to prevent a real, clear and present danger (HCJ 73/53; 83/53 Kol Ha’am v. Minister of the Interior IsrSC 7, p. 871 [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]). But I cannot see the real, clear or present danger to the state or any of its institutions or  rights posed by the participation of this list of candidates in the Knesset elections. Were one to say that this danger may be unknown to the courts but known to government’s security services, I would respond that the material that was before the Central Elections Committee, and that was submitted to us as well, was insufficient to justify – let alone require – a finding that there is such danger, and no such real, purportedly impending danger was brought to the attention of the Committee members.

In the absence of decisive evidence of such danger, revoking such civil rights from a citizen may be perceived as a sanction for past behavior and opinions. The Central Elections Committee is certainly not empowered to impose such a sanction.

Therefore, the fact that the candidates on this list are Arabs who do not recognize the State of Israel and who sympathize with its enemies does not authorize the Central Elections Committee to withhold confirmation of their list.

13. There are countries in which state security, or the sanctity of religion, or the achievements of the revolution and the dangers of counterrevolution, and other such values  shroud any crime and cure any deed committed without authority and in violation of the law. Some have invented a “natural law” that  stands above any legislation and overrides it when need be. These are not the ways of the State of Israel. Its ways  are the ways of law, and the law is given by the Knesset or by virtue of its explicit authorization.

The right to vote and to be elected to the Knesset is one of the fundamental rights of the citizen, not just in the State of Israel (section 6 of Basic Law: The Knesset,) but in every enlightened state (see: section 21 of the United Nations’ Universal Declaration of Human Rights). Simply put, this right cannot be revoked or infringed by the government except by virtue of law. And so stipulates article 29(2) of the Universal Declaration of Human Rights:

 In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.

Although this Declaration is not binding international law, it in any event sets minimal standards for the legislative conduct of democratic states. We must not fall from these standards.

14.  Indeed, the problem that concerns us has been addressed in many states by explicit legislation.

In England, even before the rules of the Common Law, those who were  convicted of treason or felonies were barred from election to Parliament. In the words of Blackstone, those ineligible for election are “aliens born, or minors…any of the twelve judges, because they sit in the lords’ house; nor of the clergy, for they sit in the convocation; nor persons attainted of treason or felony, for they are unfit to sit anywhere.” (Vol. I, p. 175.) In the days of Queen Victoria, a statute was passed whereby anyone convicted of treason or a felony and was condemned to death or sentenced to hard labor or over a year’s incarceration was incapable of being elected or sitting as a member of either  House of Parliament until they had served their sentence or received a pardon (33+34 Vict. c. 23, sect. 2).

This statute applied in Ireland as well (see: Rogers on Elections, 20^th ed. p. 26). In Ireland, there was a case of a candidate for election to Parliament who was accused of treason and bound over for trial, and the supervisors of the elections barred his candidacy. The court there held that as long as he had not been convicted lawfully, he was as eligible as any other candidate (New Ross Case (1853), 2 Pow. R. & D. 188, see: 36 English and Empire Digest, p. 274 note c).

This is so a fortiori:   A statute bars traitors from being elected, it does not bar one accused of treason, even when the accused is already on trial. Therefore, a fortiori, when no statute bars traitors, as aforesaid, then all the more so when the candidate has yet to be accused of treason.

It should be further noted that in England (as well as in most states in the United States of America) it is the privilege of Parliament to remove a duly elected member when Parliament believes he is unworthy of sitting there (see: Rogers, ibid., p. 27).

The authority the Knesset Elections Law grants to the Elections Committee to prepare and oversee the elections are in England granted to the returning officer. It has been known to happen that such an officer purported to determine whether a particular candidate was eligible or not under the law, and the courts reversed such decisions for exceeding authority (Prichard v. Mayor of Bangor (1888); Harford v. Linskey (1899)). Although that English office is not similar to our Central Elections Committee, we must infer from these precedents not only that it is best to separate between the technical supervision over managing the elections and between establishing the eligibility or ineligibility of a particular candidate or a particular list of candidates, but also how much care must be taken specifically in matters of election law that the competent authorities empowered to run the election do not exceed their powers as established by law.

15. The second example I wish to give is from the United States of America.

Under article 3 of the Fourteenth Amendment of the United States Constitution, anyone who has ever taken an oath to support the Constitution of the United States and later participated in an insurrection or rebellion against it, or given aid to its enemies is ineligible for election to the House of Representatives or the Senate.

Because this is the only statutory ineligibility rule, it is impossible in the United States to add other or alternative eligibility rules except by further amendments to the Constitution (Willoughby, Constitution of the United States, 2 ed. Vol. 1, p. 602.) However, in effect, there has been no need to do so because under Article I 4.1 [sic][3] of the Constitution, each House of Congress is the exclusive judge of the elections of its members and the outcomes of such elections. And under Article I 5.2  of the Constitution, each house, may by a two-thirds majority expel a member who was lawfully elected. The two houses of Congress have employed these supplemental powers to determine the eligibility of an elected member and expel a member who had already served as such many times in order to prevent unworthy or disloyal people from serving in them.

16. Finally I shall mention the constitution (Grundgestz) of the Federal Republic of Germany which states in Article 21 as follows:

(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds..

(2) Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality..

(3) Details shall be regulated by federal laws.

Some have expressed the view that this provision is inconsistent with freedom of political opinion. However, the German Constitutional Court ruled that it reflects an expression of militant democracy whose goal is to prevent the undermining of a free democratic regime by undemocratic elements operating under the guise of legitimate parliamentary activity. This  is a preventative, defensive measure, rather than a sanction for acts already committed (Verf G E 5/142, cited   in Hamann, Grundgestz, 2 ed., p. 219.)

This is, in my view, a legislative path that may serve as an example for our legislature as well.

17. Section 6 of Basic Law: The Knesset, which ensures each citizen over the age of 21 the right to be elected to the Knesset, allows but one exception to this right: “unless a court has deprived him of that right by virtue of law.” The law that authorizes the court to revoke this right has yet to be legislated. There is no such authority even in regard to those lacking legal competence under the Capacity and Guardianship Law, 5722-1962, nor anywhere else.

If this matter that was before the Central Elections Committee and that is now before this Court, and the outcome that I am compelled to reach by law – or more precisely by the law’s silence and absence – motivate the legislature to act and pass legislation that may guard the state from internal subversives and destructors, then this discussion has not been for naught, and the serious problem before us will be resolved in the appropriate manner.

I would grant the appeal and reverse the decision by the Central Elections Committee not to confirm the Socialist’s List.

 

President Agranat:

I have carefully read the enlightening – and if I may add, courageous – opinion of my esteemed colleague Justice Cohn, but I cannot concur with his ultimate conclusion, inasmuch as, in my opinion, the appeal must be denied. Given the limited time at our disposal, I can only delineate the reasons that led me to disagree with my colleague’s conclusion in general terms.

The factual finding that must instruct the discussion of this appeal, and which cannot be disputed, is the finding that led the Central Elections Committee’s to refuse to confirm the Appellant list (“the Socialists’ List”), which is referred to in the Respondent’s letter to the list’s representative of September 29, 1965. The letter stated that the reason for this refusal was: “this list of candidates is unlawful because its initiators deny the territorial integrity of the State of Israel and its very existence”. And in greater detail: the material that was before the Committee clearly reveals that most of the candidates in the relevant list are people who are members of the “El Ard Group” whose purposes were defined in our judgment in HCJ 253/64 Sabri Jerias v. District Commissioner of Haifa, IsrSC 18 (4) 673, 677, as purposes that “completely and absolutely deny the existence of the State of Israel in general, and its existence within its borders in particular”. Moreover, I completely agree with my colleague in finding that it is immaterial that the rest of the candidates on the list were inactive or were not known as members of the above movement because, once they have decided to run with the people of El Ard in the same list, they are held to have first examined who they are joining and for what purposes. The relevant factual finding means, therefore, that before us is a list of candidates whose goal is to bring about the destruction of the State of Israel.

The  the common thread running throughout my respected colleague’s opinion is the idea that the Central Elections Committee’s refusal to confirm the Appellant list violates the principle of the rule of law inasmuch as section 23 of the Knesset Elections Law, 5719-1959 explicitly states: “A candidates’ list duly submitted, or that was corrected in accordance with the previous section, shall be confirmed”. In other words, if the submitted list fulfils the requirements detailed in the previous sections, including the requirements that the list’s signatories are citizens of Israel and aged 18 and over and thus hold the right to vote, and that the candidates are Israeli citizens aged 21 and over and thus entitled to be elected to the Knesset, then the Committee possesses only the ministerial function to approve the list, which does not include exercising any discretion. Therefore, the Committee is prohibited from basing its decision on any consideration for the political views of the list’s candidates, however contemptible, because the Committee is subject to the rule of law, and the law – that is section 23 above – obliges it to confirm the list.

Indeed, I do agree that the above generally reflects the scope of the Central Committee’s authority in deciding upon the confirmation of any list of candidates. However, my colleague, too, implicitly indicated that the problem at issue is not so simple. Moreover, he even emphasized that it was “a serious constitutional question”. If that is the case, then it is clear that in order to understand the scope of the Committee‘s said authority, we must first address the constitutional “factors” that pertain to this question. There can be no doubt -- as clearly attested by what was declared upon the proclamation of the founding of the state -- that not only is Israel a sovereign, independent, freedom-loving state that is characterized by a regime of rule by the people, but also that it was founded as “a Jewish state in the Land of Israel,” that the act of its founding was made, first and foremost, by virtue of “the natural right of the Jewish people to be masters of their own fate, like all other nations, in their own sovereign State”, which also constituted an expression of the realization of the age-old aspiration “for the redemption of Israel”.

It should be superfluous to note at this stage in the  life of the state that  the above expresses the nation’s vision and its credo, and that we must, therefore, bear these in mind “when we come to interpret and give meaning to the laws of the State” (HCJ 73/53, Kol Ha’Am v. Minister of Interior, IsrSC 7 871, 884). That “credo” means that the continuation – or if you prefer, “the eternity of the State of Israel is a fundamental constitutional fact”, which no authority of the State – whether administrative, judicial or  quasi-judicial – may deny in the exercise of any of its powers,  for to do otherwise would constitute a complete disregard for the two wars fought by the State of Israel since its founding in order to prevent its annihilation by hostile Arab states. It would constitute a complete denial of the history of the Jewish people and its yearnings, as well as a  repudiation of the fact of the Holocaust  of the People of Israel in the period before the state was founded, that same Holocaust in which millions of Jews were slaughtered in Europe, and that “was another clear demonstration” – in the language of the Declaration – “of the urgency of solving the problem of its homelessness by re-establishing in Eretz-Israel the Jewish State”.

In order to prevent misunderstanding, I must recall – and the Attorney General addressed this matter in his arguments – that the declaration of the founding of the state called upon “the Arab inhabitants of the State of Israel to preserve peace and participate in the upbuilding of the State on the basis of full and equal citizenship and due representation in all its provisional and permanent institutions”. The words “participate in the upbuilding of the State” speak for themselves. This invitation was given real legal expression in section 1(a) of the Law and Administration Ordinance, 5708-1948: “Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Council of State…”,  and in section 2(a): “Representatives of Arabs being residents of the State who recognize the State of Israel will be co-opted on the Provisional Government …”. Upon the enactment of the Nationality Law, 5712-1952, whereby Arab residents were permitted to acquire, under certain circumstances, Israeli citizenship, the two provisions above became redundant. However, it is clear that the status of Israeli citizenship comprises the duty of allegiance to the State of Israel (section 5(c) of the above law).

This should also be borne in mind: when the legislature enacted the offenses of treason in sections 7(a) and (b) of the Penal Law Revision (State Security) Law, 5717-1957 – the offenses of impairing the sovereignty of the state and its territorial integrity – its goal was to give practical emphasis to the principle that requires ensuring the existence of the State of Israel, its sovereignty and its continuation.

Therefore, if the constitutional factor that we must consider in interpreting the laws of the state – and in particular, laws of a constitutional nature – is the factor that the State of Israel is a permanent state whose continued existence and eternity must not be questioned, then clearly this rule extends to the interpretation that should be given to that provision that establishes the governing institution for which the relevant elections are held, i.e., the provision of section 1 of Basic Law: The Knesset that states: “The Knesset is the parliament of the State”. What does this phrase refer to other than to the institution that is composed of the representatives elected by the whole of the citizenry and whose function is to ensure, through the government that is answerable to it, the existence of the State of Israel and its integrity? In any event, the question whether or not to act towards the destruction of the state and the end of its sovereignty cannot be on its agenda at all, inasmuch as the very presenting of this question contradicts the will of the people residing in Zion, its vision and its credo.

The result is that a list of candidates who deny the said fundamentals cannot qua a list hold any right to participate in elections for the parliament. It should be emphasized that my words should not be taken to mean that I reject the right of the signatories of the Appellant list to vote for the Knesset, or that I deny the right of the candidates on this list, as individuals, to be elected to the Knesset, and therefore I also do not deny their right to have their names included in a particular list of candidates. But voting in the elections for the Knesset is not voting for individual candidates but rather for a list of candidates (section 4(a) of the Knesset Elections Law, 5719-1959). The implication of this is that voting in elections for the Knesset means voting for a group of people who support a particular political goal, such that the assumption must be that should that group be elected to the Knesset, its members will then operate there to formulate a popular will toward advancing that goal (see: Van den Bergh, Unity in Diversity, pp. 18, 38). Clearly, a group of people whose declared political goal is not merely, as the Chair of the Central Elections Committee stressed, to “change the internal constitutional regime of the State” but rather to “undermine its very existence” cannot, a priori, hold the right to participate in the process of formulating the will of the people and therefore cannot stand for election for the Knesset.

As noted, I agree that ordinarily the Central Elections Committee must not investigate the candidates or consider their political views. However this rule does not apply to our matter once the Committee’s attention has been directed to the fact that the Appellant list is identical to a group of people that the High Court of Justice found to be an unlawful association, since its purpose is to completely and absolutely deny the existence of the State of Israel in general, and it’s existence within its borders in particular, as well as the fact that pursuant to this finding that group was declared an unlawful association. In light of these facts, no discretion remained in the hands of the Central Committee and it had no choice but to decide not to confirm the Appellant list.

Lastly, I am not unaware that political science theory teaches that in a democracy the sovereign is the people themselves – that a democracy is, first and foremost, a regime of agreement under which the democratic process is thus a process of selecting the people’s common goals and the manner for realizing them through debate and the free exchange of ideas, and that this debate takes place, inter alia, through general elections and deliberations in the parliament. This would seem to require the view that it is not permissible to prevent a group of people – for the sole reason that its goal is to deny the existence of the state – from putting itself up for election to the Knesset in order to promote and realize its cause. However, this approach was decisively rebuffed by Justice Witkon in HCJ 253/64, at 679, when he wrote:

Freedom of association is one of the principles of a democracy and one of the fundamental rights of the citizen. We must not deny this right and prohibit an association merely because its goal or one of its purposes is the aspiration to change the current state of the law in the state. The current state of the law may warrant change in some way or another, and a movement that wishes to organize the people of the state to correct the situation may do so as a lawfully registered association. But no free regime would lend its hand and recognition to a movement that undermines that same regime.

And he added:

It has happened more than once in the history of states with a functioning democracy that various fascist and totalitarian movements arose against them and exploited all those rights of freedom of speech, of the press, and  of association that the state grants, in order to conduct their destructive activity under their aegis. Those who saw this happen in the days of the Weimar Republic shall never forget this lesson.

This is also the position expressed in 1942 by one of the great experts of political science (Ernest Barker, Reflections on Government, p. 405):

…the democratic State would seem false to itself if it adopted such a policy towards any body of men who could claim to represent some section of popular opinion. Yet a party owing a foreign allegiance, and only acting in the democratic system in order to overthrow the system, can hardly in justice claim the benefit of the system.

Indeed, the constitutional problem that concerned us in this appeal already arose – mutatis mutandis – in the United States in the middle of the last century. As may be recalled,  at that time the southern states declared their secession from the federal state. Following this event, President Abraham Lincoln sent his famous letter to Congress on July 4, 1861 in which he defined the question in terms that yield only one possible answer:

It forces us to ask: “Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?” (State Papers by Abraham Lincoln (1907), p. 9).

The response that great president gave in practice to this question is known to all.

My opinion, therefore, is that the Central Elections Committee acted properly, and that the appeal must thus be denied.

 

Justice Sussman:

1. All agree that this appeal raises a constitutional question of the utmost importance. No wonder, therefore, we did not render our decision immediately after hearing the arguments of the parties, but rather needed time to consider our judgment. That time, as determined by the legislature, is so short that I did not have adequate time to state my reasons in writing when, on October 12 of this year, we handed down our decision to deny the appeal. At the time, I also had not yet had the opportunity to review the reasons of the President.

                  In the interim, I have heard and read the opinions of my esteemed colleagues, and I can only add to the words of the President, with which I concur.

2. There is no doubt in my mind that the Knesset Elections Law did not authorize the Central Elections Committee to confirm or deny a list of candidates at its discretion. The contrary is implied by the provisions of section 23 of the above Law, and granting discretion is also inconsistent with the composition of the Committee, which is a body composed on purely political principles in accordance with the composition of the outgoing Knesset, with the exception of the Committee’s Chair, who is a justice of the Supreme Court. But this was not the question before us. Rather the question, as defined by the Committee’s Chair in its meeting from September 29, 1965 (on p. 27 of the Committee’s notes), was whether the Committee may examine the list’s eligibility according to a principle that is not written in the statute books. During the said meeting, the Chair of the Committee pointed out that despite the absence of any written provision in the statutes of contract law, the court does not enforce a contract that has an illegal purpose. In light of the President’s reasons, there is no need for me to reiterate that an “illegal purpose” for our purposes does not mean a purpose that seeks to alter the arrangements for the administration of government. These arrangements are not sacred and changes are not a punishable crime. Rather an “illegal purpose” in our case is a purpose that seeks to destroy the state, to bring catastrophe upon most of the citizens for whom it was founded, and to join forces with its enemies.
3. In our opinion in HCJ 253/64 Sabri Jerias v. District Commissioner of Haifa, IsrSC 18(4) 673, my esteemed colleague Justice Witkon noted the need to learn the lesson of the experience of the Weimar Republic. Perhaps it is no coincidence that the Supreme Court of the German Federal Republic that was founded after the end of the Second World War is, as far as I am aware, the first court to establish the principle that a judge must also decide based on legal principles that are not written in the statute books, and that stand above not only ordinary statutes but even above the constitution itself, as even the constitution yields to them when it is inconsistent with them. The opinion handed down by the German Supreme Court on September 6, 1953 (VRG 11/53 (Gutachten) 347 L (BGH Z 11, at 34, 40) cites with approval (on p. 40, ibid.) the following from the opinion of the Constitutional Court of the State of Bavaria:

The invalidity of a constitutional provision cannot be rejected merely because the provision itself is part of the Constitution. There are fundamental constitutional principles that are of so elementary a nature, and so much the expression of law that precedes the Constitution, that the maker of the Constitution himself is bound by them. Other constitutional norms, which do not occupy this rank and contradict these rules can be void because they conflict with them.

4. If this is so in a country with a written constitution, how much more so in a country that has no written constitution. Just as one need not consent to be killed, so a state need not agree to be annihilated and wiped off the map. Its judges may not sit idly by and despair of the absence of positive law when a party calls upon them for assistance to bring about the country’s end. Similarly, no other authority of the state may serve as a tool in the hands of those whose purpose is to destroy the state and that may have no other purpose but this.
5. I will allow myself to repeat the example I presented at the hearing of the appeal. A person wishes to throw a bomb in the Knesset in order to murder Knesset members, but this is cannot be accomplished from the guest gallery. He therefore he submits a list of candidates for election to the Knesset with the declared intent that as a Knesset member who enjoys immunity he may enter the chamber and carry out his scheme. This person submits a flawless list of candidates. Is the Central Elections Committee obligated, under section 23 above, to confirm the list and thereby assist him the commission of a crime? Or may the Committee find that this is not the purpose of a parliament in a democracy, and that the use this person wishes to make of the regime’s arrangements of governance is an abuse to which the Committee need not be reconciled? And if the Committee is permitted to deny confirmation to a list of candidates submitted to it in order to advance the crime of murder, is it not permitted to refuse to confirm a list submitted to advance treason against the state?
6. The above fundamental, supra-constitutional rules are, in the matter before us, nothing other than the right of the state’s organized society to defend itself. Whether we term these rules “natural law” to indicate that they are law by the nature of the existence of the state (see: Friedman, Legal Theory, 4th ed., pp. 44-45), or whether we term them differently, I share the opinion that life experience compels us not to repeat the same mistake we all witnessed. As my esteemed colleague Justice Cohn said, when considering the issue of a party’s legality, the German Constitutional Court spoke of a “militant democracy” that does not open its gates to acts of sabotage in the guise of legitimate parliamentary activity. As for myself, in regard to Israel, I am willing to suffice with a “defensive democracy” and tools to defend the existence of the state are at our disposal even if we did not find them explicitly stated in the Elections Law.

Therefore I concur in denying the appeal.

 

Decided by majority to deny the appeal.

                                                                 

 

 

In the Supreme Court

LCA 8127/15

LCA 8263/15

 

 

Before:                                                Justice Y. Danziger

                                                            Justice N. Hendel

                                                            Justice U. Shoham

 

Applicant in LCA 8127/15

and Respondent in LCA 8263/15:                              Manufacturers Association of Israel

 

                                   v.

 

Respondents in LCA 8127/15

and Applicants in LCA 8263/15         1.         Merck Sharp & Dohme Corp. f/k/a

                                                            2.         Merck & Co, Inc.

 

Applications for Leave to Appeal the Jerusalem District Court's decision dated November 10, 2015 in MApp 5707-11-14

 

Date of Session:                            3 Nissan, 5776 (April 11, 2016)

 

On behalf of the Applicant

in LCA 8127/15 and the

Respondent in LCA 8263/15:             Adv. Tal Band; Adv. Yair Ziv

 

On behalf of the Respondents

in LCA 8127/15 and the

Applicants in LCA 8263/15:               Adv. Liad Whatstein; Adv. Uri Fruchtman

 

On behalf of the Attorney General:    Adv. Shimrit Golan

 

 

J U D G M E N T

 

Justice N. Hendel:

 

1.         Israeli law, like the law in other countries, recognizes the protection of patents. Simply put, and perhaps over simplistically, the registration of a patent grants an individual entity ownership, quasi-ownership or at least a bundle of rights with respect to an invention. This law is not new. Patent laws were legislated centuries ago. The innovation of our times is that in this respect, as well, the world has become a global village, meaning that granting a patent in one country may affect the granting of a patent in another country, and vice-versa, its revocation in one country may lead to its revocation in another country. This is not merely an economic insight but rather part of substantive patent law.

 

An additional characteristic of patent law is that it grants legal protection for a limited period of time. Whatever the rights may be, they are not eternal. The customary patent protection period in Israel and around the world is twenty years (sec. 52 of the Patent Law, 5727-1967 (hereinafter: the Law)). This period is as the period of one generation. However, that is not the final word with respect to all types of inventions. In regard to pharmaceuticals, where registering a patent is not enough, and marketing them requires obtaining a license from the  Ministry of Health, it has been established that the twenty-year period may be extended for a certain period of time that shall not exceed five years. This mechanism is known as an "order of extension".

 

The two points that were mentioned – the patent's international aspect and the possibility of granting an order of extension – meet at the seam between space and time. As we shall see, the extension period that is granted in an order in one country can be dependent upon what occurs in another country. This is a sensitive matter. This meeting-point between time and space is the basis of the ruling in this case. It is for this reason that the Attorney General requested to join the proceeding and express his position.

 

Previous Proceedings and the Parties' Arguments

 

2.         Before us are two applications for leave to appeal that address an order extending the period of patents (hereinafter: "extension order"). One application addresses the constitutionality of shortening an extension order after it has been granted, while the other addresses the method of calculating the period of extension in certain circumstances. The applications were filed on the judgment of the Jerusalem District Court in MApp 5407-11-14 (Judge B. Greenberger), which partially granted an appeal on the decision of the Registrar of Patents, Designs and Trademarks, A. Kling (hereinafter: the "Registrar") (Application to change the period of an order of extension for patent no. 110956 (September 18, 2014)). The latter ruled that it is possible to shorten the extension order in the circumstances of the matter and that its period shall be the shorter of those that were being considered. The District Court upheld the ruling regarding the possibility of shortening the order but prescribed a different method of calculation, such that in the circumstances of the matter at hand, the order was extended beyond the period that had been set by the Registrar.

 

The sequence of events leading up to the Registrar's ruling and the judgment of the court of first instance is as follows: The various rights to Israeli Patent no. 110956, upon which the Ezetrol medical preparation, which reduces high cholesterol levels in the blood, is based, belong to the Respondents in LCA 8127/15, who are the Applicants in LCA 8263/15 (hereinafter, jointly, for the sake of convenience: "Merck"). According to Section 52 of the Law: "The period of a patent shall be twenty years from the application date". Merck's application was filed in 1994 and its patent was due to expire upon the lapse of twenty years, on September 13, 2104 to be precise. In 1998, the Law was amended and the option of granting an extension order was added, subject to the fulfillment of a number of conditions (Patent (Amendment no. 3) Law, 5758-1998) (hereinafter: Amendment 3 of the Law). Merck took advantage of this option and filed an application for an extension order, which was granted in 2005. The extension period was due to expire on June 23, 2017. In 2006, after the order had been granted, the Law was again amended (Patent (Amendment no. 7) Law, 5766-2006) (hereinafter: Amendment 7 of the Law). Inter alia, it was provided that the extension period provided in an extension order shall be equal to the shortest extension period granted to the patent in certain countries designated in the Law – subject to a number of conditions that will be specified below (see secs. 64I and 64J of the Law).

 

At the beginning of 2013, the Applicant in LCA 8127/15 and the Respondent in LCA 8263/15 (hereinafter: "The Manufacturers Association"), filed an application to shorten the extension order that had been granted to Merck, based on the argument that such shortening derives from the calculation method that was provided in Amendment 7 of the Law. The Registrar accepted the application and instructed that the period of the order be shortened such that it would expire on January 22, 2016, based on the period of the extension order that had been granted to the patent in the United States. Merck's appeal to the District Court on the shortening itself was denied, however the court ruled that the period of the extension order that had been granted in the United States should not be relied upon, since it was granted after the extension order had already been granted in Israel. Instead, the court instructed that the order remain in effect until October 17, 2016, based on the period of the extension order that had been granted to the patent in Germany. This led to these two applications for leave, in which each of the parties objects to the ruling against it on one of the issues. Merck claims that it was inappropriate to shorten the extension order that it had been granted. The Manufacturers Association emphasizes that the order should be shortened even more – such that it shall expire on January 22, 2016, and not on October 17, 2016.

 

3.         As noted, Merck's arguments are directed against the very shortening of the extension order that it was granted. According to Merck, this is an unconstitutional infringement of its right to property. It is argued that in light of this infringement, Amendment 7 of the Law should be interpreted in such manner that it shall not apply to orders that were granted prior to the amendment taking effect. According to this line of argument, if the proposed interpretation is rejected then the statutory provisions contradict the provisions of the Basic Law: Human Dignity and Liberty. The Manufacturers Association, on its part, relies in this matter on the judgment of the District Court. However, in another matter – that of the period of the extension order that was granted to Merck – it is of the opinion that the court erred. According to the Manufacturers Association, the judgment did not give sufficient attention to the language of the Law, its purpose and the indications that support that it was the legislative intent to provide that the period of the extension order also be examined on the basis of extension orders that were granted in other countries after the order was granted in Israel. Merck, on the other hand, relies in this matter on the rulings of court of first instance.

 

The Attorney General submitted notice that he would appear in the proceedings by virtue of his authority pursuant to sec. 1 of the Procedure (Appearance of the Attorney General) [New Version] Ordinance. The Attorney General’s position was submitted on the matter of the method of calculating the period of the extension order. According to him, and similar to the Manufacturers Association's position, the Registrar was correct in ruling that the period of the extension order could be shortened pursuant to an order that had been subsequently granted in another country.

 

Discussion and Ruling

 

The path I shall take in examining the applications will begin with examining the method of calculating the date of expiration of the order, since the specific arrangement at hand, including the details thereof, is the framework of the constitutional discussion. The interpretation of the Law will assist in understanding its purpose and implications, while delimiting Merck's arguments to the boundaries of the concrete case. This foundation will lead to the discussion in the second matter – the constitutionality of shortening an extension order after it has been granted. Consequently, one must first discuss LCA 8127/15, which was filed by the Manufacturers Association, and thereafter discuss LCA 8263/15, which was filed by Merck.

 

The Method of Calculating the Period of the Extension Order

 

4.         I have decided to address LCA 8127/15 as though leave were granted and an appeal had been filed pursuant thereto, in light of the general legal nature of the issue of the method of calculating the period of the extension that was determined in an order. The matter is relevant to additional patent cases, inasmuch as the same interpretational dispute could also emerge from the present wording of the Law. Merck's argument that a case such as the one before us is not actually expected to occur in the future in the exact same manner, did not go unnoticed. Merck relies on the European law which allegedly prevents this possibility due to uniformity of periods of extension in various countries. However, as we shall see below, the field of patent extensions is dynamic and is subject to frequent legislative changes. This is the case in Israel and in additional countries. Therefore, the fact that the wording of the Law that is in dispute between the parties is still in effect in Israel leads to granting leave to appeal. I shall further state that a sufficiently broad picture of the current European law was not presented, and it is not clear that there is no possibility that a similar dispute might emerge. In any event, the matter could emerge in one variation or another in Israeli law, and this is a central consideration in granting leave to appeal.

 

The Manufacturers Association's argument addresses the method by which the period of the extension order should be calculated pursuant to Amendment 7 of the Law. For the purpose of clarifying the foundation of the dispute, we shall briefly describe the calculation mechanism that was provided by the legislature, as per the wording of the Law at the time:

 

64I. (a) An extension order shall be in effect, subject to the provisions of section 64J, for a period equal to the shorter of the extension periods that were given to a reference patent in the recognized states.

(b) If a license was applied for only in Israel, then the extension order shall be in effect for a period that is equal to the period from the day on which the application for a license was submitted and until the license was given; provided that the application on the applicant’s behalf was submitted and handled in good faith and with due dispatch.

 

It is evident that the principle rule is that the period of the extension order shall be equal to the period of the extension that was granted to the similar patent (the "Reference Patent") in certain designated states listed in the Law (hereinafter: "Recognized States"). Incidentally, at the time Amendment 7 of the Law was enacted, in 2006, this list, in principle, comprised 21 countries (including countries such as Japan, Luxembourg, Australia and Switzerland), and at present, since Amendment 11 of the Law, in 2014, only six countries are included – The United States, Britain, Germany, Italy, Spain and France (see Schedule One of the Law). The Law further provides that when an extension order is granted in a number of Recognized States, the period of the order shall be that of the shortest extension period that was granted in any of the countries. This last rule changed the legal situation that existed prior to Amendment 7 of the Law, in the framework of which the period of extension in Israel was not linked to the period of the shortest extension that was granted in one of the Recognized States. To complete the picture, sec. 64J of the Law provides three limitations to this calculation mechanism. First, the period of the extension order shall not exceed five years. Second, the protection of the patent shall in any event expire 14 years after the date on which a permit to market medical equipment or preparations that are protected by the patent was granted in one of the Recognized States. Third, the order will in any event expire if the extension order that was granted in one of the Recognized States expired in that state, or if the patent that was registered there was cancelled.

 

            The question disputed by the parties is how one must act when an extension order is granted in any Recognized State after an extension order was granted in Israel, and the period in the Recognized State is shorter than the period of the Israeli order. The Manufacturers Association argues that the rule of "linking" the Israeli order to an order with the shortest period in a Recognized State also applies in such a case, and therefore, the period that is determined in the Israeli order should be shortened. The representative of the Attorney General also supports this position, in the opinion that was filed in this matter. We would note that procedurally speaking, the Law has a mechanism that allows filing an application to cancel or shorten an extension order that has already been granted, inter alia, on the grounds for which one can object to the period of an extension order that has not yet been granted (sec.  64K of the Law). This is what occurred in the case at hand. In contrast, Merck argues that after the period of the Israeli order has been determined, it cannot be shortened in light of an extension order subsequently granted in a Recognized State for a period that is shorter than that which was determined in the Israeli order. Each of the parties seeks to base its position on the language of the Law and its purposes. We shall now turn to examining these matters.

 

5.         The language of the Law does not explicitly provide that the period of an extension order that was granted in a Recognized State after the Israeli order was granted is not taken into consideration. The opposite is also not explicitly provided. Both options coincide with the language, and as the parties rightfully emphasized, indications for each of them can be found. For example, it was provided that "An extension order shall remain in effect… for the duration of the period that is equal to the period of the shortest extension among the periods of extension that were granted to the patent in the Recognized States" (sec. 64I(a) – emphasis added). It can be deduced from this that the period is determined in accordance with the extension orders that were granted in the past and not those that shall be granted after the order is granted. On the other hand, the statement "were granted" can be interpreted in the sense that the legislative intent was to take orders that were granted into consideration, regardless of when they were granted. Meaning, once an extension order is granted in a Recognized State – even after an order was granted in Israel – it is an order that has already "been granted", and the Israeli order can be shortened as a result thereof. Furthermore, the section even uses the language "shall remain in effect… for the duration of the period that is equal to the period of the shortest extension among the periods of extension that were granted to the patent…". It can be deduced from this that the period of the order is measured at all times – and not necessarily once – vis-à-vis orders that were granted in Recognized States. Through this prism, the language of the Law actually supports the Manufacturers Association's position that the period shall be shortened in accordance with the situation in other Recognized States.

 

An additional argument by Merck is that sec. 64J(3), which addresses the expiration of the patent in a Recognized State, provides that an extension order that is granted in Israel "shall expire no later than the first date on which the extension period of the reference patent expires in one of the Recognized States…". Had the legislature so desired, it could have worded sec.  64I(a) in a similar manner, so that it would be clear that the extension order is affected by extension orders subsequently granted in other states. On the other hand, the differences in the wording of the Law can be explained by the fact that sec. 64J addresses cases of the expiration of the extension order in Israel, and therefore the wording "no later than the date…" was applied. In contrast, sec. 64I addresses the means of determining the period, and therefore the legislature did not deem it necessary to explicitly state the date the extension order in a Recognized State was granted. As noted, the Law has a mechanism that allows changing the period of the order as per a person's request, and one of the causes is a cause "pursuant to which it is possible… to object to the matter of the period of [the order]". It thus emerges that the period of the order is dynamic and can also change after the order is granted.

 

It follows, as was also held by the District Court, that the Law's language does not explicitly rule either way. Hence, we move on to its purpose.

 

6.         Purposive interpretation is multifaceted and multihued. The beacon of the Law is composed of many rays that converge to create the beam that illuminates the citizen’s path – the path of the law. The light rays originate from different sources: the historical and material background of the amendment to the Law, the objective purpose of the Law and its subjective aspect – the legislature’s purpose, as it emerges from the statute's explanatory notes and from the discussions that preceded it, and other sources from which it is possible to learn about the purpose for which the Law was enacted and how it is meant to realize it (see: HCJ 9098/01 Ganis v. The Ministry of Building and Housing, IsrSC 59(4) 241, 261 (2004) [http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housing ). All of the above, including the content of the Law, will also illuminate our way in interpreting Amendment 7 of the Patent Law.

 

The District Court accepted Merck's argument that shortening the period of an extension order after it had already been determined, compromises the certainty and finality that are required in order for a company that was awarded an extension order to make plans. I am of the opinion that in the circumstances of the case, the analysis cannot end here. Since the certainty consideration was at the focus of the District Court's ruling, I shall somewhat elaborate and explain why I do not accept this position. It is true that when interpreting a statute, the concern of compromising certainty bears weight as an interpretational consideration (Aharon Barak Interpretation in Law – Statutory Interpretation, vol. II 583 (1993)). However, this is one interpretational consideration among many that can be of assistance when the language of the law, or other indications, do not explicitly contradict it. In the case at hand, it appears that the legislature did not consider the matter of the certainty of the date of expiration of an extension order to be a primary concern. We have already referred to sec. 64J(3) of the Law, which at the relevant time provided – and in principle continues to provide – that "an extension order shall expire not later than the first date on which the extension period of the reference patent expires in one of the Recognized States". It emerges that the expiration of the order depends, at any given time, on the status of the similar patent in the Recognized States. We also referred to sec. 64K, which allows filing an application to shorten the extension period and in fact, to reexamine it  even after the order was granted. The explanatory notes that accompanied this section of the bill, state as follows:

 

It shall be noted that one may request to cancel an extension order or change its period even when the cause of action arises after the extension order was granted, such as in the case in which after the extension order was granted, the period of a parallel patent was extended in a permitting state [a Recognized State], and the extension period in the permitting state is due to end before the expiration of the period of the extension order (sec. 10 of the Patent (Amendment no. 7) (Extension of Period of a Basic Patent) Bill, 5775-2005, Government Bills 187 (emphasis added)).

 

I will illustrate the matter through an example. But first it should be made clear that the period of the order and the date of its expiration are two separate matters. The legislature emphasized the fact that the period of the extension orders in the various countries, for example three years, will be identical. However, there may be differences as to the date of expiration of the protection of the patent, which could derive, for example, from the difference in the dates when the patent was due to expire to begin with, as a result of filing the application for its registration at different times in various countries. We will now present the example that will clarify what is stated in the explanatory notes that were cited.

 

Let us assume, theoretically, that an extension order is granted in Israel for a period of three years – from the date of the end of the patent's twenty-year protection – which was due to expire on December 31, 2017. After the order was granted in Israel, an extension order was granted in England for a period of three years. However, in England the period of patent protection was due to expire, had the extension orders not been granted, a year before the expiration of the protection of the patent registered in Israel. Therefore, the period of the extension in England is due to expire on December 31, 2016. According to the provisions of sec. 64J(3), the granting of the order in England will also lead to the expiration of the order that was granted in Israel on December 31, 2016, even though the English extension order was granted after its Israeli counterpart. Thus, when an order is granted in a Recognized State,  the legislature was willing to sacrifice certainty as to the date of expiration of the extension order in order to "link" the date of expiration of the patent's protection in the two countries. Merck is indeed attempting to distinguish between the example that is presented in the explanatory notes, which was illustrated by the English order example, and the case that is the subject of the rulings of the lower court. In the facts of the case before us, it is agreed that according to each of the scenarios, the Israeli order will expire first. The question is when. In the example that was presented above, the English order was due to expire first, and this is the reason the order in Israel was shortened. In response, and as shall be clarified below, it was stated that this is a distinction without a difference. In any event, the example that is presented in the explanatory notes is sufficient to determine, at the very least, that in the eyes of the legislature, the purpose of creating legal certainty with respect to the date upon which the extension order shall expire does not bear conclusive weight. This is in contrast to the position of the District Court which emphasized that purpose.

 

Furthermore, in the explanatory notes for the Patent (Amendment No. 13) (Extension of Period of Protection) Bill, 5772-2012, Government Bills 682, it was explicitly provided that the amendment is meant, inter alia, to enhance the degree of certainty required by the pharmaceutical companies (see the general part of the bill). The certainty consideration is not a foreign consideration in patent laws, but it does not stand alone. Alongside the emphasis on certainty, the explanatory notes explicitly state that the Registrar must take into consideration events that occurred after the order was granted in order to reexamine the period of the extension. There is even an explicit determination that in circumstances such as those before us, the period of the order should be shortened as per the shortest order that was granted thereafter (ibid, sec. 8). This is a statutory amendment that was subsequent to Amendment 7, which addressed other matters and did not in any way alter the controversial wording, but rather only referred to it in the explanatory notes. In any event, the matter is raised not in order to rule on the interpretational question, but rather, at the very least, to cast doubt on the logic that the legislature was of the view that certainty prevails over the need to choose the shortest extension order that was granted in a Recognized State.

 

The Attorney General's representative added that compared to other laws, patents are characterized by their very nature by a lack of finality and certainty, and referred to various provisions of law which, in the framework of various proceedings, allow discussing the validity of an existing patent based on causes of action pursuant to which it would have been possible to object to the granting of the patent to begin with (see, for example, secs. 73B and 182 of the Law). There is merit to Merck's argument in this regard that these sections are mainly applied when there should not have been patent protection to begin with, for example, when it is subsequently discovered that the patent owner did not comply with the threshold conditions, and not necessarily in cases in which the cause of action for cancellation was created after the patent was granted. However, it is important to note that in these sections – as in sec. 64K which addresses the application to shorten extension orders – the legislature provided that there is no statute of limitations. This testifies to that fact that in the special context of patent laws, finality and certainty are of less importance, in light of the heavy weight of the opposing public interest. Justice S. Netanyahu elaborated on this in CA 217/86 Mordechai Schechter v. Avmatz Ltd., IsrSC 44(2) 846, 864 (1990).

 

These all express the policy of the Patent Law, which imprints a stamp of temporariness on the patent and only grants the inventor conditional protection when the invention and the inventor fulfill those conditions which are based on the public's best interest that the invention is indeed patentable and that the patent owner is indeed its owner.

Blocking the option of challenging the patent due to limitation of actions would lead to the outcome that at the end of the period of limitation, the patent would become absolute. This is an outcome that is contrary to the policy and the spirit of the Patent Law… The conclusion that follows from the Patent Law is that the law rejects the approach of expiration of an application to cancel a patent due to limitation of actions, and does not coincide therewith.

 

This line of argument also emerges from the discussions at the Constitution, Law and Justice Committee (Minutes of the Meeting of the Constitution, Law and Justice Committee, the 16^th Knesset (October 11, 2005) (hereinafter: the Committee's Minutes)). For example, the Committee Chair, MK M. Eitan said:

 

The extension order it grants is flexible… If I take the countries that decided, the Registrar takes the smallest, afterwards, another country that extended less joins, and the Registrar reduces… With a reducing system, I take only the countries in which they were approved (ibid, page 20).

 

In other words, the question of adapting the extension order that was granted to orders that were subsequently granted in other countries was raised during the discussions. The discussion addressed the updating of the period of the order, without an explicit reservation being voiced regarding this arrangement due to compromising the certainty or finality of the order. Further on, the Committee Chair was even asked what happens when an additional country is added, and his answer was "until the shortest one" (ibid, page 21). The compromising of certainty was not the focus of the discussion, which concentrated on the issue of compatibility between the expiration date of the order in Israel and the expiration date in other countries, in terms of the relationship between the generic industry, the ethical industry and Israel's status in the global pharmaceutical market. Even a representative on behalf of Pharma – The Association of the Research-Based Pharmaceutical Companies in Israel – agreed that "we prefer to start from the top and go down. We set a number that decreases when there is new information" (ibid). Thus, certainty was not even an issue for the representatives of the industry with which Merck associates itself, who were concerned about other matters.

 

7.         Merck argues that the Law has an additional important purpose – to prevent the expiration of an extension order or a patent in a Recognized State when the patent owner would still be protected in Israel. According to Merck, this need for co-termination is the explanation for the legislature’s willingness to revoke the period of an extension order when the market opens to competition in one of the Recognized States. However, occasionally this consideration is irrelevant. This is the case in the matter at hand since both according to Merck's calculation method and according to the Manufacturers Association's calculation method, the Israeli order will allegedly expire first, since the cause of expiration in the case at hand does not derive from sec.  64J(3), which addresses the expiration of the patent in another state, but rather from sec. 64I(a). According to Merck, only in the case of co-termination can one justify compromising certainty. Such an explanation is indeed possible, however it has its shortcomings for several reasons.

 

First, in the explanatory notes to Amendment 7 of the Law, which were cited above, the example of the expiration of the patent in another country is presented only as an example – "such as" – of a cause of action that emerges after the order in Israel was granted and which results in the shortening of the Israeli extension order. “Such as” is indicative of the fact that this is not the only example. There are other examples. In fact, the most conspicuous additional example of secs. 64I and 64J, other than the example that the legislature presented, is a case such as the one before us. Second, even according to Merck's argument, the legislature was willing to compromise certainty for the sake of the purpose of co-termination of a patent in Israel and in another country. Why is it not possible that the legislature viewed other values as justifying compromising certainty? There is no indication in the Law or in the explanatory notes that the consideration of compromising certainty prevails over any other consideration. I would reiterate that the explanatory notes to the later amendment explicitly provide that one of the purposes of the amendment is to create certainty, while concurrently determining that an extension order should also be shortened in a case such as the one before us, even though this is not a case of co-termination. Third, Merck's argument does not offer any positive reference to any purpose that necessarily supports the interpretation that it proposes. What does the basic calculation method derive from? What is the purpose of considering the orders that were granted in other Recognized States, even when according to each of the scenarios the patent will first expire in the State of Israel? Merck did not offer an answer to this question, which has decisive importance in resolving the dispute.

 

I would incidentally note that the consideration of opening competition in Israel at the time it is opened in a Recognized State is certainly a central consideration that guided the legislature. The majority of the discussions in the Constitution, Law and Justice Committee prior to Amendment 7 of the Law focus on this international aspect and on the question whether and in what circumstances it is appropriate that a patent be protected in Israel when it has expired in another country – an outcome which would prejudice the ability of the generic industry in Israel to compete with its foreign competitors. It emerges from Merck's statement of claim that this matter also concerned various actors in the international arena, who examined the Israeli arrangement under Amendment 7 of the Law. However, this consideration, as important as it may be, does not indicate the opposite – a desire to avoid opening competition in Israel as a first country. It is indeed possible that the time of expiration in Israel will be first. Had the legislature desired a consistent rule of co-termination, all it had to do was provide that the protection of a patent would always expire along with the expiration of the extension order or the cancellation of the patent in a Recognized State. It did not do so, but rather prescribed a more complicated mechanism. According to Israeli law, an extension order will expire when the patent protection in another Recognized State expires. However, if according to the rules of Israeli law – a patent and extension order – the period of the extension of patent protection has ended, this situation will not be affected by the existence of an extension order that has not yet expired in another Recognized State. Prima facie, according to each of the options, and also according to Merck's above interpretation in the case at hand, the situation will be that of expiration in Israel before the other countries. Moreover, the dispute between the parties is fundamentally based on the fact that the U.S. order was granted after the Israeli order. Had the U.S. order been granted earlier, Merck would not have any claim, even though the period of the Israeli order would have been determined in accordance with the period of the U.S. order, and notwithstanding the expiration of the patent in Israel before its expiration in the United States.

 

8.         What, then, is the purpose that should guide the interpretation of sec. 64I(a) of the Law – a purpose that is neither the creating of certainty nor the equating of dates of expiration of the patents in Israel and in another Recognized State? In order to answer this question, we must revisit the various incarnations of the arrangements, examine the purpose of the extension orders and discover why the legislature chose the specific mechanism for calculating the extension period.

 

A theoretical key to understanding the purpose of the Law is recognizing the uniqueness of the mechanism of calculating the period. The rule for protecting patents is twenty years. Why does the legislature address various extensions and shortenings in the pharmaceutical field? Article B1 of Chapter D of the Law is entitled "Extending the Period of Protection". One can discern two main channels in sec. 64A, the definitions section. The first is the medical channel. There is a definition of a medical preparation, of what constitutes material – the active ingredient in a medical preparation – and stating that a marketing permit is a permit to market medical equipment or a preparation, and the like. The second is the global channel. The section distinguishes between Recognized European States and other Recognized States, refers to the difference between an extension order that is granted in the United States and an order that is granted in Europe, and defines a "reference patent", which is a patent that, inter alia, is registered in another Recognized State and corresponds to the Israeli patent. What is unique to the pharmaceutical field that warrants the option of an extension order? The answer is that marketing pharmaceuticals requires the involvement of an additional entity – the Ministry of Health. In this field, an examination of the innovation of the invention is not sufficient. An examination of the pharmaceutical’s potential benefit or harm is inherently required. Therefore, marketing pharmaceuticals is contingent upon an approval and licensing procedure. The licensing period takes time, and therefore there is a gap between the time of filing the patent application and the time it is made available for consumer use. This gap does not exist or is not significant in other fields, and this is the origin of extension orders.

 

The extension period is not meant to be determined in an arbitrary manner. Generally, the presumption is that the twenty-year period achieves the public objective of incentivizing inventors. This is the foundation for the basic rule provided in the Law. Thus, changes to the period are also meant to be derived from this objective, and at the very least, should give it significant weight. Obviously, each field has its own unique nature. The rules for the field of practical physics are not the same as for the field of agricultural developments, and neither are the same as for the pharmaceutical field. The arrangements for incentives, the market forces, the extent of global impact and additional characteristics are not necessarily identical. It should be noted that, at present, pharmaceuticals plays a central role in the economy. The industry requires significant investments and creates enormous revenues. This explains the public economic interest as well as the impact on the individual, who may, unfortunately, suffer  various diseases that may benefit from these pharmaceuticals. There is a connection between a plain and simple financial business of an impressive scope and a public service at the highest level. The outcome of this mix is that the path to an extension order traverses weighty  considerations, and the legislature, in its capacity as regulator, must keep an eye on the situation in Israel and abroad so the period of time will "be in line" with the patent's terms in other countries, while taking global developments into consideration. Before presenting the analysis, I will summarize in stating that the purpose of the extension order is to compensate the pharmaceutical developers in the form of a certain period of time, but not to over-compensate them. Uniformity among countries must be considered, and this consideration, which, as will be explained, prevails over stability and determining a period that is known in advance – although these also play an important role in the entire picture. In fact, the mere granting of an extension order creates an opening for a calculation that is not completely certain but is rather dynamic.

 

And from the general picture to the statutory development.

 

9.     Until Amendment 3 of the Law, in 1998, anyone who was not the patent owner was forbidden from performing actions for the purpose of licensing a patent-based product in fields in which such licensing was required, until the period of the patent's protection had lapsed. The main field in which licensing is required is the pharmaceutical industry. As a result, one could only begin the licensing procedures – which may take extended periods of time, and even years – after the expiration of the patent upon which the pharmaceutical was based (see the definition of "Utilizing an Invention" in sec. 1 of the Law prior to the amendment). This situation created a problem: pharmaceutical companies in the "generic industry" – that primarily engages in the manufacturing of pharmaceuticals that utilize existing patents – could not initiate the actions necessary to obtain a license for their products until the relevant patent had expired. Consequently, the approval of generic pharmaceuticals was delayed for an extended period. Concurrently, in other countries, it was possible to initiate the actions necessary for licensing of the competing pharmaceuticals during the period of the patent's protection. This created a situation in which one day after the patent expired, companies domiciled in one of those countries could file a licensing application, while the Israeli companies could only begin to take the required actions. This situation adversely affected Israeli manufacturers both  in the Israeli market and in the export market. Amendment 3 of the Law was intended to allow  the use of the patent during the period of its protection, subject to certain conditions, for the purpose of obtaining a marketing license – as opposed to actually marketing – from the Ministry of Health (see sec. (3) of the definition of "Utilizing an Invention" in sec. 1 of the current Law, along with sec. 54A; LCA 2826/04 Patents Registrar v. Recordati Ireland Limited, IsrSC 59(2) 85, 87-88 (October 28, 2004) (hereinafter: the Recordati case); Amir Friedman, Patents – Law, Case Law and Comparative Law 123-145, 688, 751-752 (2001) (Hebrew) (hereinafter: Friedman).

 

This amendment indeed solved the difficulties of the generic pharmaceutical manufacturing companies, but concurrently created a problem in terms of the patent protection granted to companies that primarily engage in research and development of new pharmaceuticals for the sake of registering patents (hereinafter: the ethical companies). According to the law prior to Amendment 3, these companies actually benefited from an additional period of protection for their registered patents, due to the period of time that was required for the generic companies to receive the Ministry of Health license. This period of time was not perceived as an unearned benefit to the ethical companies, inasmuch as they were themselves required to obtain a Ministry of Health license before they began marketing their pharmaceuticals, which meant that a period of time lapsed between registering the patent and marketing the pharmaceuticals. After the Law was amended, the period of time required for licensing the generic pharmaceuticals was significantly shortened, while the ethical companies still needed an extended period of time until they could begin to market their patent-based pharmaceuticals. In order to reinstate the equilibrium that existed before the amendment of the Law and to prevent harm to the ethical companies, an extension orders arrangement was introduced, similar to those of other countries around the world.

 

The combination of the possibility of initiating actions towards licensing a patent even before its expiration, along with the possibility of extending the period of the patent's protection beyond twenty years, was meant to address the difficulties of both the ethical and generic industries. On the one hand, the ethical industry was granted an additional period of protection, meant to compensate it for the "lost years". On the other hand, the Israeli generic industry was able to compete with its foreign colleagues, and like them, it could file an application for licensing a generic pharmaceutical immediately after the expiration of the patent (see secs. 54A, 64A-64P of the Law; the Patent (Amendment No. 3) Bill, 5758-1997, Government Bills 2651 (hereinafter: the Government Bill); the Patent (Amendment No. 4) Bill, 5758-1997, Bills 2664 (hereinafter: the Committee Bill); Friedman, pp. 135-136).

 

That is the background that leads us to the next stage – the method of calculating the period of the extension. If the objective is to compensate the ethical companies for the loss of the period of protection that was taken from them, then that is the period of time that should constitute the basis for calculating the period of the extension order. Indeed, the mechanism that was provided in the Law is directed towards that objective. Section 64I(b) refers to a situation in which licensing was requested only in Israel. In this situation, the extension is for the period of time that is equal to the period between filing a license application for the pharmaceutical and its approval – subject to everything being performed with due dispatch. Section 64I(a), as worded at the time, referred to a situation in which licensing was also requested in another Recognized State, and provided that the period of the order shall be the same as the period of the order that was granted in the other state. The assumption is that the extension period is also, to some degree, determined in the Recognized States based on the period of time between the registration of the patent and the receipt of the marketing permit. See, for example, the definition of an "Extension Order on a Reference Patent" in sec. 64A of the current wording of the Law. According to this section, the foreign extension order, pursuant to which the period of the extension in Israel is determined, should be based, inter alia, "in accordance with the term of review for the purpose of providing the first marketing license by the authority accredited to provide marketing licenses" in the United States, or on "the time passed since the filing date for the reference patent and up to the granting date of the first marketing license" in a Recognized European State.

 

We now reach the heart of the matter: The legislature decided that the period between the application to register the patent and the approval to market it, or the extension period that was granted in a Recognized State based on this figure, properly compensate the patent owner. It should be noted that in this context there is a certain difference between the explanatory notes of the two bills that led to Amendment 3 of the Law – the wording of which is identical, and similar wording was eventually adopted in Amendment 3. The government bill explains that the compensation is for the period of the "actual protection" that the patent owner lost due to the amendment of the Law. The assumption is that the period of the extension order is longer than such period, and therefore the compensation is even more than appropriate:

 

One cannot determine in advance how much time the licensing procedure of a generic product will take. One can also not foresee how much time will be needed until the patent owner will receive licensing in the State of Israel, although there is no doubt that the period that will be required for the patent owner will always be longer than the period that will be required for licensing the generic product.

The Committee has found that the period that has elapsed since the patent owner obtained the licensing from the Israeli Ministry of Health will be an appropriate period for compensating for the fact that a generic company will be able to enter the market immediately upon the expiration of the patent.

This period will be known when the patent owner submits its application to extend the period of the patent. This extension will always grant the patent owner a longer period of compensation than the period of the de-facto protection that it “will lose” as a result of the amendment of the law (The Government Bill, sec. 3).

 

Thus, the extension order's objective is to compensate the patent owner for the period of the de-facto protection that it lost as a result of the amendment of the Law. The duration of the extension considers the period of time until the patent owner – in Israel or in another state in which an extension order was granted – obtained the license, which is longer than the period of time the patent owner lost. In contrast, the Constitution, Law and Justice Committee’s bill noted that the compensation is for the period of time during which the patent was registered but the Ministry of Health’s marketing approval had not yet been granted, and therefore, the period of the extension is identical to this period (see the Committee Bill, page 148). In any event, granting the patent owner appropriate compensation is a central objective that the legislature sought to achieve. Even in the current framework, Merck's argument is not directed against the duration of the order that was granted in the United States, in and of itself. No argument was raised that the duration of the period is what infringes its property, but rather only that the order was granted after the Israeli order had been granted. Therefore, for the purpose of the continuation of the discussion, we can establish the following axiom – which was not challenged in any way by either of the parties: A period of protection that is based on an extension order that was granted in a Recognized State (which takes into consideration the period of time that is required for the patent owner to license the pharmaceutical), constitutes appropriate compensation for the patent owner for the period it "lost", either as a result of Amendment 3 of the Law, or as a result of the need for licensing.

 

After Amendment 3 of the Law, the question arose as to how to calculate the period of an extension order when a number of extension orders have been granted in Recognized States. The interpretation that was given to the Law in the Deputy Registrar’s decision in Application to Extend a Period of Protection for Patents no. 84601, 105264, 79336 (July 23, 2003) was that the patent owner may choose a specific state, and the period of extension and the rules of expiration of the patent would be in reference to that state. Amendment 7 of the Law, which explicitly clarified that the Patents Registrar must seek the state in which the extension period that was granted was the shortest, was amended, inter alia, following this decision of the Patents Registrar. The explanatory notes of the Law do not include any explicit reference to choosing this arrangement, however it can be understood in light of the purpose that Amendment 3 was meant to realize. It was possible to amend the Law in the spirit of the Deputy Registrar's decision, or to prescribe a different rule, such as linking the period of the extension order in Israel to the order that was granted first among the Recognized States. Why, then, did the legislature nevertheless chose to follow the state that granted the shortest period of time? It should be noted that the guiding rule that was presented was that the calculation mechanism provided in sec. 64I(a) grants appropriate compensation for the patent owner. Hence, there are grounds for finding that the legislature was of the opinion that there is no flaw in choosing the shortest extension order granted in one of the Recognized States. In any event, and what is the important is that the legislature provided that compensation that is calculated in accordance with the state in which the extension is shortest is appropriate and realizes the purpose of the Law.

 

10.       Similar conclusions emerge from the deliberations of the Constitution, Law and Justice Committee that preceded Amendment 7 of the Law. The vast majority of the deliberations addressed the co-termination consideration and not the question of the duration of the extension period in cases in which the patent protection expires in Israel before other states. However, there was some reference to this issue as well. At the beginning of the discussion, the background of Amendment 3 of the Law was clarified. As stated by the Committee Chair, MK Eitan: "What interests me is that there will be effective protection for a certain period of time during which I will be able to exhaust the patent". Later in the discussion, the Ministry of Justice representative stated that "in order to reach short periods, we decided to base the period in Israel on the periods abroad". Afterwards, the Committee Chair clarified the situation: "Almost 20 years have passed. I ask the Patents Registrar to give me 5 more years. He sees what is happening in a variety of states, you said. He takes the state in which the patent will expire in the shortest period of time after the lapse of the 20 years…" (Minutes of the Committee, at p. 7). Meaning, the objective is to compensate the patent owner for a certain period of time, and the assumption is that this is realized even by the shortest period of time for which an extension order was granted in another state. Of course, appropriate weight is to be given to the Committee’s deliberations. While they do not establish the purpose of the Law, together with the other components of the analysis, one cannot say that they do not bear any weight. It is appropriate here to mention that according to the Law, the purpose of compensating the patent owner also retreats before the co-termination consideration. This is in light of the importance that the legislature attributed to the ability of the Israeli generic industry to compete with foreign companies. However, this purpose, as mentioned, is not directly relevant to the interpretive question we are currently addressing in regard to the date of expiration of the order in a situation in which, in any event, it first expires in Israel.

 

11.       An additional, important component of purposive interpretation, alongside the language of the Law, the various arrangements therein, the explanatory notes and the statements made in the Knesset committees, is the objective purpose of the Law. Through this perspective, one must not forget that at issue is not only a competition between the ethical companies and the generic companies. The public is also part of the story. From the public perspective, the tension inherent in the patent laws is between the interest to the free use of an invention for the benefit of the public, and the desire to provide incentives for development and invention by way of the Law's protection against the copying of the patent:

 

The conflicting considerations and interests that underlie the patent law system are well reflected in the pharmaceutical arena. One the one hand, the pharmaceutical companies invest extensive funds and significant human resources in developing new pharmaceuticals, and expect to receive proprietary protection for their inventions, which are achieved through immense investment. Granting proprietary protection for an invention encourages developing new pharmaceuticals and completing the development of existing pharmaceuticals. On the other hand, there is the interest of freedom of competition and occupation of the public and the competitors, which encourages generic pharmaceutical companies to manufacture competing pharmaceuticals at affordable prices that are significantly less expensive than the price of the patent-protected pharmaceuticals. Promoting the interest of the generic companies to distribute competitive pharmaceuticals promotes not only the economic benefit of these companies, but also the interest of the consumer, by significantly reducing the prices of pharmaceuticals in the market (LCA 6025/05 Merck & Co Inc. v. Teva Pharmaceutical Industries Ltd., para. 21 (May 19, 2011), per Justice A. Procaccia (hereinafter: the Merck case).

 

It is doubtful whether the public interest in encouraging research and development is prejudiced by adopting the interpretation of the Manufacturers Association and the Attorney General. If sufficient incentive existed prior to Amendment 3 of the Law, the legislature was of the opinion that such incentive was not prejudiced as a result of Amendments 3 and 7, in light of the compensation that is granted to the patent owners. This is also the case if we consider the period of the shortest extension granted in a Recognized State. Reality and the development of the industry since the amendment of the Law do not contradict this position. On the other hand, if the patent owners are over-protected, beyond what is necessary to incentivize them, such protection will certainly be at the expense of the entire public, since the price of the pharmaceuticals significantly declines after the market opens to competition. It emerges that the public interest supports avoiding granting compensation that exceeds that which is necessary to maintain the incentive that the ethical companies enjoyed prior to the amendments to the Law.

 

12.       We will now implement the above in the dispute at hand. The question is whether the purposes that were described above are more consistent with Merck's interpretation – that the periods of extension orders that were granted after the Israeli order was granted should not be taken into consideration – or with the interpretation of the Manufacturers Association and the Attorney General – that these periods should be considered. In my opinion, the position of the latter is the one that corresponds more completely with what was stated above. It is the position of the legislature that the periods of extension orders granted in the Recognized States all meet the criterion of compensating the patent owners for the periods of time that they lost. If this is the case, the most appropriate compensation, in terms of striking a balance among all of the conflicting values and interests, is the shortest period of time that was granted in one of the Recognized States. It does not matter, in this respect, if the order in the Recognized State was granted before or after the order in Israel. Deviating from the shortest period of time would mean over-compensating the patent owner and prejudicing the generic companies and indirectly, the pharmaceuticals' consumer public. Indeed, changing the period of the order after it was granted can affect certainty and the patent owners' ability to rely on the order, however the legislature was willing to pay this price in the framework of striking a balance among all the conflicting interests, as detailed in the analysis above.

 

We should bear in mind how delicate is the balance that must be struck: encouraging research and development as opposed to distributing knowledge; the ethical companies as opposed to the generic companies; the situation in the Israeli market compared to the situation in the international market; the economic interest of the patent owner as opposed to the public health interest. It should be noted that the sensitivity to what is being done in the Recognized States does not derive from mutual respect for the internal decisions of any one state or another. It is rather that the determination of a period of time elsewhere inherently affects what happens here. One cannot ignore the economic reality. It thus follows that the significance of the shortest period of time is that it reflects an appropriate period of time for restricting competition. It should further be mentioned that the recognition of the inventors' bundle of rights also coincides with the interest of the individual who purchases the pharmaceuticals. The approach is that appropriate treatment of the inventor's profit will incentivize the market and expand the basket of pharmaceuticals available to those who need them.

 

The conclusion is that the interpretation that should be adopted is that when determining the period of the extension order one must also consider orders that were granted in Recognized States after the order was granted in Israel. This is the foundation, but the road to completion of the entire structure is still long. This is the interpretation of the Law, however one must continue to examine whether applying it to Merck unlawfully infringes its proprietary right. And on the other hand, even if there is no wrongful infringement of a proprietary right, the question emerges whether there was reliance upon a legal situation and whether this has significance. We shall now address these matters.

 

The Constitutionality of Shortening the Extension Order

 

13.       An additional question the parties disputed is the constitutionality of the transitional provisions of Amendment 7 of the Law, which prima facie, provide that the calculation mechanism under this amendment will also apply to extension orders that were already granted in the past. This is the issue at center stage in LCA 8263/15, which was filed by Merck. According to Merck, this is a constitutional infringement of its proprietary right, which cannot be justified. We shall begin by presenting the transitional provision:

 

The provisions of the main law, as worded in this law… shall also apply to applications for the granting of extension orders that were filed before its commencement and to extension orders that were granted before its commencement, provided that the validity of the basic patent for which the extension order was granted has not yet expired (sec. 22(a) of the Explanatory Notes to Amendment 7 of the Law – emphasis added).

 

Merck claims that this is a retrospective act of legislation, since it applies to orders that were already granted, and that it changes a legal situation upon which one could rely. The Manufacturers Association is of the opinion that this is prospective legislation, since the amendment does not infringe the assets that Merck has already accumulated, but rather, at most, infringes its future economic interest, inasmuch as the order should be viewed as though it is to enter into effect only upon the lapse of the twenty-year basic protection. I admit that I am not of the opinion that the dispute regarding the classification is decisive in the case at hand. There are four types of application: retroactive, retrospective, active and prospective (see HCJ 6971/11 Eitanit Construction Products Ltd. v. State of Israel, paragraphs 37-38 (April 2, 1013); PPA Orit Arbiv v. The State of Israel, IsrSC 46(2) 765, 778-784 (1992)). At times, the legal reality does not cooperate with archetypes. Not every law fits into neat, organized compartments. Even if I were to address the issue as it was presented, it would be incorrect to rule that the amendment is retrospective or retroactive. This being the case, Merck will not benefit from the claim that the current transitional provisions infringe its rights. I shall clarify.

 

Take, for example, a person who was involved in a work accident on January 1, 2000. In an ordinary situation, his claim would expire under the statute of limitations upon the lapse of seven years. This is the law at the time when his cause of action was established. Let us assume that in 2002 the legislature decides that a claim for work accidents can be filed up to ten years from the date of the accident. A year later, the legislature decides that the period of limitation of actions shall be eight years from the date of the accident. It is further established that all of the amendments also apply to accidents that occurred in the past and for which a cause of action has already arisen. We should take note of the fact that along the legislative axis, from the date of the injury, the person in the example was awarded a benefit in the sense that instead of a seven-year limitation period, the law establishes an eight-year limitation.

 

It would appear that this example is similar to the case at hand. Merck received a patent in 1994, for twenty years. At that time, the legal mechanism of extension orders, which was legislated in 1998, did not exist. An extension order was granted to Merck in 2005, and the relevant transitional provision shortened the period of extension but maintained the order itself. All of this was done during the twenty-year period. Indeed, alongside the granting of the extension order, generic companies were permitted to begin taking steps toward licensing their pharmaceuticals during the twenty-year period. However, there is an additional fact – in the beginning, the law allowed the ethical companies to look for reference states as they desired, including states that grant maximum extension periods, and this option was later cancelled. All in all, Merck's situation would appear to be better, and it is at least not worse than it was when it filed the patent application.

 

In my opinion, in both of these examples one cannot say that there is a retroactive or retrospective infringement. The infringement in the statutory provisions can be defined as active, since it applies to a right that exists in the present – a patent – and it operates in the future. It does not apply to an action that has already ended or to a right that has been exhausted. At most, one can say that it has certain retrospective characteristics (see and compare with para. 2 of the opinion of Justice U. Vogelman in HCJ 3734/11 Chaim Davidian v. Knesset (August 15, 2012) (hereinafter: the Davidian case)). However, even an active law can infringe property rights, and even retroactive application can comply with the requirements of the law (see and compare: HCJ 4562/92 Sandberg v. Broadcast Authority, IsrSC 50(2) 793, 817-819 (1996); HCJ 1149/95 Arco Electricity Industries Ltd. v. Mayor of Rishon Lezion, IsrSC 54(5) 547-574 (2000)). It emerges that the title – retrospective or active – is not decisive, nor even appropriate. The situation before us incorporates both retrospective elements and prospective elements. They are intertwined. Meaning that we are addressing an order that was granted in the past but an infringement of a future part thereof, and this is what the discussion should focus on. The title is not a self-sustaining, living being. It is meant only to assist in examining the fundamental question – whether or not we are dealing with a wrongful infringement of proprietary rights. I shall thus focus upon a substantive examination of the elements that are relevant to analyzing the matter, those that are retrospective and those that are prospective, and they shall decide how the constitutional law applies in the concrete circumstances.

 

1.According to Merck – and pursuant to the Recordati case (para. 22 of the judgment) – upon the granting of an extension order, a proprietary right is created. It is argued that if this is the case, then the shortening thereof constitutes an infringement of property that is contrary to Basic Law: Human Dignity and Liberty. On the other hand, the Attorney General's representative and the Manufacturers Association argue that the Recordati case  held that there is no proprietary right prior to the granting of the order, but it did not establish the opposite position, that the right is created upon the granting of the order,. According to them, the proprietary right crystallizes only upon the lapse of the period of the basic patent right, when the patent becomes protected by virtue of the extension order. According to them, until this stage, there is no vested right that the duration of the order not be shortened.

 

 This requires addressing a basic question. Basic Law: Human Dignity and Liberty explicitly mentions the right to property. The heading of sec, 3 of the Basic Law is "Protection of Property" and its language states: "There shall be no infringement of the property of a person." Section 8 of this law provides that "There shall be no infringement of rights under this Basic Law except…". The question when a person has a right to property and when an economic interest has not crystalized into such a right is a weighty question (see, for example, CA 6821/93 United Mizrachi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221, 327-331 (1995) (hereinafter: the Mizrachi Bank case); Yoseph Edrey, A Declarative and a Constructed Constitution - the Right for Property Under the Israeli Constitutional Law and its Location on the 'Constitutional Rights' Scale, 28 Mishpatim  461, 519-529 (5757) (Hebrew); Aharon Yoran, The Scope of the Constitutional Protection of Property and Judicial Intervention in Economic Legislation, 28 Mishpatim  443, 447-450 (5757) (Hebrew)). In various countries, such as Canada, the right to property is recognized as a protected right in a charter. This situation also derives from internal considerations of constitutional politics (see: David Johansen, Property Right and the Constitution, Library of Parliament (Canada), Law and Government Division, (October, 1999)). In any event, this outcome also derives from the difficulty in defining what property is, and in distinguishing between it and an economic interest that is not constitutionally protected. The concern is that a property right will be interpreted in an excessively broad manner, while limiting or frustrating various acts of legislation which have economic implications (see Joshua Weisman, Constitutional Protection of Property, 42 Hapraklit 258, 259-260 (5755) (Hebrew)). The distinction between an economic interest and a property right is a general issue, and it is implemented in each of the fields of law while striking a balance between the interests and values at issue. This is also the case in the field of intellectual property in general, and in the area of patent law, in particular.

 

At present, I do not need to set hard and fast rules as to whether granting an extension order creates a proprietary right in order to rule in the matter at hand. The case law has already held that, as a matter of principle, a patent is a proprietary right (see, for example, the Merck case, para. 17; HCJ 5379/00 Bristol-Myers Squibb Company v. Minister of Health, IsrSC 55(4) 447 (2001)). I am willing to assume for Merck's benefit that an order to extend the patent is included in this right. However, the case before us does not address the matter of the cancellation of an extension order. The question before us is different: What is the law that governs the shortening of an extension order? One can even pinpoint the issue: What is the law that governs shortening an extension order in the current circumstances, in which Merck's patent was registered before Amendment 3 of the Law, and before the institution of extension orders, along with its purposes, was established? Does such a right include a constitutional protection not to have its duration changed? This framing of the question is what leads to rejecting Merck's position that its proprietary right was unlawfully infringed. I shall clarify my position.

 

15.       Should all legislation that has economic implications be examined through the prism of the constitution? This question is at the heart of the discussion that surrounds the nature of the constitutional right to property. As early as the Mizrachi Bank case various positions were expressed regarding the nature of the right. As is well known, that case concerned a challenge to a provision of law that somehow infringed the possibility of collecting various types of debts. President (Emeritus) M. Shamgar ruled that for the purpose of the constitutional examination, an obligatory right should also be considered property (ibid, page 328). An apparently more expansive approach was expressed by President A. Barak. According to him, "property is any interest, which has an economic value". However, the question whether any governmental action that affects the value of an individual's property requires a constitutional examination remained to be further discussed. It was additionally ruled that de minimis infringements would not necessitate a constitutional examination (ibid, pages 431-432). From a different direction, Justice I. Zamir expressed a more cautious approach, pursuant to which it is not desirable to define any infringement of a person's financial income or the value of his property as an infringement of property. However, he assumed for the purpose of the ruling that the legislation that was the subject of the dispute did infringe a right to property since according to him, even under this assumption, the case concerned an infringement that passed constitutional review (ibid, pages 470-471). This pattern of deciding, and in fact of avoiding decision, repeated itself in various contexts in which economic legislation was subjected to review. The conspicuous example is that of tax legislation in which the Court has chosen to analyze the cases brought before it on the assumption that the legislation infringes a right to property, without ruling on this matter (see an example of this in the Davidian case, para. 29 of the opinion of President M. Naor, and the survey there).

 

I will already state that the case before us does not require an extensive discussion of whether the transitional provisions of Amendment 7 infringe Merck's right to property in a manner that requires a constitutional review. Even if that were the case, there is no unlawful infringement. In my opinion, this is not a borderline case, and there is no need for  an elaborate analysis of the elements of the Limitation Clause. This is a case of primary legislation for a proper purpose – encouraging one of the fields of industry and reducing the price of pharmaceuticals for the entire public. The extensive analysis that was performed above, in the framework of LCA 8127/15, leads to the conclusion that the proportionality condition is also met in all of its senses, including in its narrow sense. The compensation which Merck was awarded in the form of the new extension period that was determined in the order is appropriate and realizes the purpose for which the arrangement was enacted. Merck's complaint was not directed at the duration of the period itself, but to the very shortening thereof. That being the cases, in a broad examination, Merck's economic situation was not harmed. What was harmed was the possibility that it may be improved. The legislature is the one that granted it that possibility, and it is the one that subsequently took it away, without worsening Merck's overall situation (and we will already preempt and say that no reliance whatsoever of Merck on the legal situation prior to Amendment 7 of the Law was either argued or proven). We would note that at the time when Merck registered its patent, the arrangement of extension orders had not yet been enacted. Thus, the scales clearly tip toward realizing the purposes of Amendment 7 of the Law. In any event, Merck's arguments in this context – both interpretational and substantive – are to be rejected. It should further be noted that I did not find merit in its arguments that related to flaws in the legislative proceedings that preceded Amendment 7 of the Law, and I suffice in referring to our discussion above in LCA 8127/15.

 

16.       However, and in this sense, above and beyond that which is necessary, it is appropriate to refer briefly to the question whether we are addressing an infringement of the right to property that requires constitutional review. And the end of the last sentence should be emphasized. The important question when addressing legislation that has economic implications is not necessarily whether there is an infringement of a right to property, but rather if there is a constitutional infringement of a right to property. As already mentioned, in the Mizrachi Bank case President Barak already addressed the possibility that there could be an infringement of an individual's property that would not require a constitutional review of the law when only a de minimis infringement was involved. In HCJ 2442/11 Adv. Chaim Stanger v. Speaker of the Knesset (January 12, 2011), one can see an additional development of constitutional review. One of the issues addressed in the judgment was the constitutionality of a statute that revoked the possibility of filing a third-instance appeal as of right in various detention matters. Instead of a third-instance appeal as of right, the possibility of applying for leave to appeal was provided. President A. Grunis made an obiter dictum distinction between the "constitutional threshold", which is the lower threshold beneath which there will be a constitutional infringement, and the "legal status". I would prefer to define the distinction between a constitutional infringement and an infringement that is not constitutional. As President Grunis stated, there are laws that are above the constitutional threshold, where even if their amendment harms an individual, they are still not exposed to constitutional review:

 

There is no doubt that the amending law discussed in the petition adversely affects, to some degree, the state of suspects and defendants as compared to the previous legal situation. However, the mere adverse change does not necessarily lead to the conclusion that there is an infringement of a constitutional right… We must distinguish between the constitutional threshold and the legal status preceding the amendment to the Law… The fact that the Law was amended and lowered the legal threshold does not, in and of itself, lead to the conclusion that the constitutional threshold was infringed with the adoption of the amendment to the Law (para. 45). 

 

It is possible that in relation to the previous law, a right that was granted to a person is taken away, while in relation to the Basic Law, there is no infringement that justifies constitutional review. This holds true even with respect to the right to liberty – in matters of detention – and so with respect to the right to property.

 

HCJ 5998/12 Guy Ronen v. Knesset (August 25, 2013) addressed a statutory provision that changed the mechanism for calculating the pension allowance of some IDF retirees. The petitioners argued that the new calculating method would lead to giving allowances of amounts lower than they would have received in accordance with the previous calculation method. President Grunis reiterated his position, and in an even more precise manner:

 

The amendment of a law after the legislation of the Basic Law must be examined with respect to the constitutional threshold that is determined by the Basic Law, and not in relation to the legal state that preceded the amendment of the law. It should be noted that the cases that are prone to such confusion are cases in which the law that is being constitutionally reviewed changes an existing law or constitutes an amendment to an existing arrangement. It is clear that in a situation in which a new law is enacted in a matter that until such time was not regulated by statute, no concern arises that the amendment will be examined in relation to a preceding legal state (para. 14. My colleagues Justice Y. Danziger and Justice Z. Zylbertal concurred).

 

Thus, the examination is not whether a person's property (in the broad sense given this term in the Mizrachi Bank case) was infringed, but rather whether the constitutional threshold was crossed, in which event the infringement must be examined through the prism of the constitution.

 

In the framework of the discussion in LCA 8127/15 we saw that the calculation mechanism established in Amendment 7 of the Law, in and of itself, leads to an appropriate result. Merck does not argue that that the period of the extension order granted in the United States was too short, but rather that the legal situation changed. But it emerges from the above analysis that the situation that preceded Amendment 7 – in the framework of which a patent owner could choose the state that granted the longest extension period as the reference state – is one that benefited it in a manner that exceeded what is necessary. In other words, if the substantive provisions of Amendment 7 – which have not given rise to any objection – are above the constitutional threshold, then the legal situation that existed before them was certainly above this threshold. In the circumstances of the specific statutory development of the case before us, the constitutional threshold was not crossed.

 

17.       Incidental to the discussion, I shall address the issue of the significance of specific reliance on the part of the patent owner upon an extension period that was retroactively cancelled by a statutory amendment. The argument of reliance and adverse change is an argument that is independent and separate from the argument of unconstitutional infringement of property. It can be argued that if and to the extent specific reliance by Merck on the legal situation that was changed can be proven – it may be, without setting a hard and fast rule in the matter – then it is possible to initiate an appropriate proceeding, pursuant to the rules of administrative law, in the framework of which the relief that would be granted could also take the form of compensation for damages that were caused, and not necessarily the granting of a patent right (see and compare the Davidian case, paras. 21-26; Daphne Barak-Erez, Protecting Reliance in Administrative Law, 27 Mishpatim 17 (5766) (Hebrew)). In the current proceeding, Merck did not raise an argument of concrete reliance on the statutory situation, and therefore the question is theoretical. It should be noted that the Attorney General's representative argued that in light of the nature of the extension orders and their subjection to changes due to events that occur after they are granted, reliance on the period of the extension, at least before the order becomes operative upon the lapse of the basic patent period, is not protected. This is a fine question, but it can be left to be addressed in due course since, as noted, in the present circumstances and the current proceeding, reliance on a legal situation that was changed was neither argued nor proven.

 

18.       For the purpose of enriching the discussion, while addressing the essence of the economic aspect, it would be appropriate to add a comment focusing on the nature of Merck's rights. To be clear, the ruling in this judgment does not depend on the various remarks in the following paragraphs, however they would seem to reinforce the result I have reached.

 

In practice, no one disputes that Merck does not have a property right in the traditional sense. At most one can say that it has a right to intellectual property. This is the prism through which one must view the matter. Intellectual property laws are different, for example, from real estate laws or tax laws in terms of defining the property right. As opposed to a property right in a physical object, which prevents another person from taking the object from its owner, or tax laws that allow the authority to take funds that the citizen accumulated – an intellectual property right is no more than a prohibition forbidding another from performing a certain action, even when the performance thereof does not prevent the owner of the right from performing an identical action. The objective of the prohibition is not the preservation of the safety of the owner of the right or of his property, but rather of his ability to generate more profits in the future – if only to cover past investments. It is therefore interesting to ask what is the source of the justification to impose prohibitions upon the general public, even when no harm might be caused to another's negative freedom or to the property he has accumulated? The dispute between legal systems and philosophers regarding the status of intellectual property laws, including patent laws, is well known. One approach seeks to base them on a kind of natural right of the creator, who labored on his creation, to reap the fruits of his labor. Another approach focuses on general policy considerations, primarily incentivizing the development of patents, the creation of works, etc., for the sake of creating a more efficient, higher quality market (see, for example, Daphna Lewinsohn-Zamir, The 'Fair Use' Defense in Copyrights,16 Mishpatim  430, 430-431 (5746-5747) (Hebrew); Wendy Gordon, On Owning Information: Intellectual Property and the Restitutionary Impulse, 78 Va. L. Rev. 149 (1992); Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988)).

 

In any event, the intellectual property right is special. It is a challenging question whether the uniqueness derives from its relative novelty – a fact that may change; or from other special reasons whose persuasiveness will stand the test of time. The intellectual property right presently primarily focuses on loss of future profits and not on protecting against direct harm to existing property. There are those who are of the opinion that the interest of preventing loss of profits is less positively protected by the law, and there are those who have even attempted to justify this on a normative level (see Eyal Zamir, Loss Aversion and the Marginality of the Disgorgement Interest, Shlomo Levin Volume 323, 368-372 (Asher Grunis, Eliezer Rivlin & Michael Karayanni, eds., 2013) (hereinafter: Zamir, Loss Aversion) (Hebrew)). It has been explained that harm such as the expropriation or trespass of land, and the taking of property by a tax mechanism carries heavier psychological weight than the loss of profits (such as the removal of patent protection, which allows competition and causes a decline in profits from the sale of a product). This phenomenon is referred to as loss aversion (see, in a general manner, Eyal Zamir, Law, Psychology, and Morality: The Role of Loss Aversion (2015) hereinafter: Zamir, Law, Psychology and Morality)). The more we are in the realm of loss of profits, the harm to the potential profiter is of lesser magnitude than the harm to a person who suffered injury. Intuitively, and even without relying on research, the expropriation of an object by the authority is deemed more offensive than the denial of the option of receiving an object in the future. It is interesting, in this context, that Prof. Zamir wrote that it is possible that the loss aversion phenomenon does not necessarily reflect the objective value of objects and rights. It is possible that were we all rational people – as those theoretical creatures that perform transactions in the research of some economists – there should not be a principled difference between the realm of damages and the realm of loss of profits. However, since psychology is what it is, this is of considerable and significant weight (Zamir, Loss Aversion, pp. 370-372; Zamir, Law, Psychology and Morality, pp. 205-207).

 

19.       An additional aspect of intellectual property is the distinction between the core and the margins. We have mentioned the various approaches that justify the law's protection of intellectual property. Without delving into the thick of it, it is obvious that even those who support the "natural" approach leave considerable room for policy considerations. This is a fortiori the case when addressing the "margins" of intellectual property arrangements, which reflect policy considerations and not necessarily property rights that prevail over the policy considerations (see, for example, the Merck case, paras. 17-27; Daphna Lewinsohn-Zamir, Economic Considerations in Protecting Inventions, 19 Mishpatim 143 (1983) (Hebrew); and compare, Miguel Deutch, Commercial Torts and Trade Secrets 699 (2002) (Hebrew)). The question before us is whether the shortening of the protection period of an intellectual property right is an infringement of a right to property. In other words, the question does not relate to the mere existence of the right, but rather to outlining its boundaries. The right exists, but it is not clear what is included therein to begin with and how its exact limits are defined.

 

Take as an example a petition to expand the protection of the basic patent from twenty years to twenty-two years, on the grounds of a constitutional infringement of property. Obviously such a petition would be dismissed. Analytically speaking, how is this different from a claim due to the shortening of a period of a patent from twenty-two years to twenty years (assuming there is no specific reliance on the duration of the period)? The difficulty in defining the precise boundary stems from the fact that intellectual property is an idea and not an object. Therefore, the mere definition of the intellectual property right is not sharp and precise. Its boundaries can be changed by their very nature, as opposed to those of objects for which the physical reality prescribes their exact size. This question can emerge in various contexts that address abstract ideas. For example, in criminal law, does a statutory amendment that allows imposing longer imprisonment on the perpetrator of a certain offense require constitutional review? What are the boundaries of the right to freedom? The precise boundaries were, of course, prescribed based on the legislature's policy considerations, and they are more exposed to changes. This determination is particularly apparent when addressing patent laws, which are at the center of the technological stage. This requires that they react quickly to various events and developments – even more so than other intellectual property fields – such as the protection of trademarks or literary works. In the dynamic environment of technological developments, innovations and inventions – and especially in a global world in which competition crosses virtual and physical borders – the boundaries of the right must also be dynamic.

 

This is the foundation of the extension orders arrangement. It is not a "rigid" arrangement that creates a representation of an irreversible right, but it is rather a dynamic arrangement that is given to certain changes to begin with. The most conspicuous example of this appears in sec. 64J of the Law, which provides that an extension order can be cancelled due to a subsequent extension order being granted in a Recognized State. Indeed, the cause for expiration in this section is the expiration of the patent in another country, but ultimately, in the prism of exposure to change, Merck was aware, as early as at the time of receiving the order, that orders that may be granted in other countries could lead to the shortening of the period of the order that it was granted. At issue is an expansion of the possibility that the order may be shortened – a possibility that had already existed. To begin with, it was not an irreversible right that was granted, but rather a right dependent upon orders granted overseas. In the case at hand, the transitional provisions in Amendment 7 of the Law explicitly provide that the amendment will only apply to those whose basic patent period had not yet expired. Anyone who already received the patent's protection by virtue of the extension order was not harmed by the amendment.

 

A Comparative Perspective

 

20.       It would be informative to turn to Jewish law's approach to patent laws, and along the way we will also mention the pharmaceutical field. We shall begin with recognizing the inventor's proprietary status. Conceptual caution is necessary here. Rabbi Isaac Halevi Herzog (one of the two first chief rabbis of the State of Israel, along with Rabbi Ben-Zion Meir Hai Uziel, d. 1959) emphasized in his monumental book about property laws in Jewish law, that due to the nature of the Jewish law system – from the written Torah to the oral law, the Mishna and the Talmud, and up to the Responsa that continue to be written to the present day – the development of the law is based on concrete examples. It is difficult to find a direct definition in its sources for the right to property in general, and certainly for the right to intellectual property. However, Rabbi Herzog insisted that it is possible to find the intellectual nucleus that, at least in general terms, could guide the Halakha:

 

It should be made clear once more, that even the sources adduced above would furnish no firm legal ground for patent-right. They would merely supply the spirit and the trend which would have to be clothed with the body and substance of takkanoth, of legislative enactments… Had disputes about such matters been of relatively frequent occurrence, they would have found an echo in our juristic literature, and although, as already stated, there is no direct ruling or dictum in the Talmudim on patent right, there is in that ocean of Jewish law and lore enough of the basic moral idea and even of a legalistic nucleus to have supplied the authorities with material for dealing with the question from the halakhic standpoint. I have no doubt that under Jewish law had the question become actual, patent-rights would have been protected in some measure, at least by special enactments supported by certain Talmudic analogies (Isaac Herzog, The Main Institutions of Jewish Law 1: The Law of Property 132 (1939)).

 

            Indeed, the Sages labored and found rich, interesting sources and precedents. Rabbi Shimon Shkop (Head of the Grodno Yeshiva who lived in Europe and died in 1939), at the beginning of his commentary to the Talmud tractate Bava Kamma – which relates to damages – referred to one of the heads of damages in the Talmud, the pit. The question is on what grounds can a person who dug a pit in the public domain be found liable for the injuries of a person who was injured thereby. At first glance it would appear that the person did not cause harm by his body or property, since the pit is located in the public domain. Rabbi Shkop explains as follows:

 

And in the case of a pit, the Torah held him liable for the injury caused by his harmful thing, and that the pit is his is due to the digging and the opening. That is, he prepared the harmful thing and he is therefore called its owner, similar to that which concerns a person’s right: it is accepted under the laws of the Torah and the laws of the nations that whoever invents something new in the world is the owner of all rights thereto – similarly, the Torah called a person who prepares a harmful thing the owner of the pit and the owner of the fire, and held the owner of the harmful thing liable (Novellas of Rabbi Shimon Shkop, Bava Kamma 1. See also LCA 7337/12 Amir Cohen v. John Deere Water Ltd., para. 6 of my opinion (March 12, 2013)).

 

The principle that emerges is that "whoever invents something new in the world is its owner". This is the linkage between the owner of the invention and his invention. Rabbi Shkop repeats this principle elsewhere, when he addresses the possibility of gaining ownership by thought and invention: "Also a thing that was created by a person's wisdom belongs to such person… who also was awarded with the instrument of thought, to benefit from what he shall invent therewith… and since he has sold him his wisdom, meaning his body and limbs that invented this thing in the world – then immediately when such thing enters the world it belongs to the buyer (Novellas of Rabbi Shimon Shkop, Gittin part 4; see Rafi Reches and Michael Wigoda, Protecting Copyrights, Patents and Inventions in the Jewish Law, Ministry of Justice (2010)).

 

Rabbi Herzog was of the opinion that one can already find an anchor to the rights in a new invention – and in fact, a patent – in the Babylonian Talmud and its commentaries. One of the issues addresses a person who wants to cast a fishing net near a place where a trap had already been set by another person. It was ruled that he must distance it from that of the other: "Fishing nets must be kept away from the fish the full length of the fish's swim. And how much? Rabbah son of R. Huna: Up to a parasang?' (Bava Batra 21b). The Talmud commentators discussed the basis for prohibiting the competing fisherman from laying down his trap – since the fish have not yet been caught by the first fisherman, and therefore, prima facie, they have not yet become his property. One of the explanations is presented by the Tosafist Rabeinu Meir of Ramerupt (Ashkenaz, 11^th century).

 

Rabbi Meir, Rabeinu Tam’s father, says that this is a dead fish, since the fishermen would place a dead fish in their nets so the fish would gather around such fish. And since he was the first to cast his net, and due to his act the fish were gathering around – if the other were to cast his net, it would certainly be as though he was stealing from him (Kiddushin 59a).

 

According to Rabeinu Meir, the fact that casting the net requires prior thought and action entitles the person who cast the net to a proprietary right in the anticipated profit even though this profit has not yet been realized and the fish have not yet entered his possession. According to Rabbi Herzog, one can view this source as an anchor for the protection of patents: "Here at last we have some approach to the idea of patent-protection" (page 131).

 

Rabbi Asher Weiss (a contemporary Jerusalem scholar) also ruled on the matter of the halakhic validity of a registered patent: "It is my humble opinion that it is a simple position that a person also has a monetary right in the fruit of his spirit and creation, and what he conceived is not less than what he acquired, and just as the fruit of the palm belong to the owner of the palm, even though he did not acquire them through the routes of title, so the fruit of his spirit belong to him and there is no need for title." He therefore ruled as a matter of Halakha that "[in] a registered patent, it is clear that according to the law of the Torah, others are prohibited from doing as is set forth therein (Rabbi Asher Weiss, Darkhei Horaa 4, 100 (5766)).

 

21.       However, alongside the recognition of the proprietary, or quasi-proprietary right that a person has in his inventions, we find resonances in Jewish law to the fact that this right is not unlimited and that it must be balanced with the public interest of having knowledge resources available to all. The Mishna tractate Yoma gives a list of craftsman who did not agree to reveal the secret of their craft to others, while denouncing this:

 

And these they mentioned to their shame: those of the House of Garmu [who] did not want to teach about the act of the shewbread; those of the House of Avtinas [who] did not want to teach about the act of the incense; Hygros, son of Levi, knew a chapter in song but did not want to teach; Ben Kamtzar did not want teach the art of writing; … It was said about the above, the name of the wicked shall rot (mYoma 3, 11).

 

The Babylonian Talmud explains why the Sages required that the craftsmen reveal their secrets: "When the Sages heard that, they said: whatever God created was created in His honor. As it was said: 'Anyone that is called by my name, I have created in my honor" (TB Yoma, 38a). This is a religious approach that emphasizes the fact that the natural – material and corporeal – resources are universal because they were created by God. It is inappropriate to attribute them exclusively to any specific entity. This is the case with respect to all natural resources, and a fortiori, with respect to a resource that has the potential to heal. As told in the Babylonian Talmud in tractate Avoda Zara:

 

Rabbi Yochanan suffered from the tzefidna disease. Hhe went to a Roman matron who prepared a remedy on Thursday and on the eve of the Sabbath. Rabbi Yochanan asked her: What will I do on the Sabbath? She responded: You do not need a remedy on the Sabbath. He asked her: What will I do if I do, nevertheless, need a remedy? She responded: Swear to me that you will not reveal the recipe and I will give it to you. Rabbi Yochanan swore "to the gods of Israel that I will not reveal". Rabbi Yochanan left and gave a public sermon in which he revealed how the remedy is prepared.

 

Even though Rabbi Yochanan swore to the Roman matron that he would not reveal her secret, Rabbi Yochanan broke his vow due to the public interest in healing, and revealed the Roman matron's healing secret to the entire public (in the Talmud there is reference to the question whether this amounts to desecrating the name of God).

 

22.       It should be noted that we are dealing with patent laws. Even according to Israeli law, patent laws are characterized by their application to an invention "that is a process in any technological field, that is new, useful, can be used in industry and constitutes inventive progress" (sec. 3 of the Law). From the Jewish law sources it emerges that the justification for protecting the patent derives from the creation. In this sense, there were those who said that just as the works of a person's hands belong to him, so do the inventions of his imagination and the implementation thereof. According to this approach, a creation – either of the hand or of the head – entitles a status of "ownership" with respect to the invention and its fruits.

 

An example of an invention in the pharmaceutical field was cited. Rabbi Herzog emphasized that our Sages did look kindly on a person's wish to keep the invention to himself forever. This is due to the recognition that what is concerned is an invention that can save lives (ibid, page 128). The tension that was presented in the above analysis is expressed in the fact that the craftsman has a right to receive money, but is not entitled to keep the patent secret to himself, certainly not forever. One can say that patent rights do not override patients' rights (in the broad context, see Nimukei Yosef Al Harosh, Yevamoth 12a; Ritva (Rabbi Yom Tov Ben Avraham Asevilli) on the Babylonian Talmud, ibid; Rabbi Herzog's position, ibid, page 129).

 

It is interesting to note that the adjudicators that were cited – Rabbi Shkop, Rabbi Herzog and Rabbi Weiss – lived between the 19^th and 21^st centuries. During this period the field of patents has become much more sophisticated. The words of Prof. Edward Fram, an expert on history, halakha and its development, are relevant in the case at hand: “like rabbis in all periods, …rabbis had to address the needs of the marketplace in order to keep the halakhah relevant and maintain the integrity of Jewish life" (Edward Fram, Ideals Face Reality – Jewish Law and Life in Poland 162 (1997)). Indeed, the economic question directly relates to the Jewish community in general, and in the State of Israel in particular. Integrity is maintained by the fact that the Rabbis based their conclusions on the principles of halakha and on Talmudic sources. The theoretical foundation is not, essentially, economic, but rather the recognition of the person's abilities to create and the link between him and his creation, while considering the needs of society. It appears that the religious foundation is "and you shall walk in His ways" (Deuteronomy 28, 9) – What He (God) creates – you (man) also create. The justification for legal recognition is thus perceived as both moral and practical.

 

23.       We now proceed from a broad perspective to a narrower one focusing on American law with respect to the specific arrangement of extension orders, their background and the method of their calculation. The basic rule in the United States is also that a patent's protection is for twenty years from the date the application for the patent registration was filed (see 35 U.S.C § 154(a)(2)). However, an exception to this rule was provided in the form of the possibility of granting an extension order ("Patent Term Extension", see The Drug Price Competition and Patent Term Restoration Act of 1984, Public Law 98-417, 98 Stat. 1585 (codified at 21 U.S.C. § 355(b), (j), (l); 35 U.S.C. §§ 156, 271, 282) (hereinafter: the Hatch-Waxman Act).

 

The rationale behind this exception is similar to the process that led to the corresponding Israeli arrangement. The Hatch-Waxman Act was enacted against two backgrounds: On the one hand the Act addresses the problem of the generic industry. As in Israel, the American industry was also facing difficulty in competing in the free marketplace with other pharmaceutical companies immediately after the patent expiration since, according to the rulings of the courts at that time, it was not possible to perform various actions required by the regulator to license a patent-based product as long as the patent had not expired:

 

The second distortion occurred at the other end of the patent term. In 1984, the Court of Appeals for the Federal Circuit decided that the manufacture, use, or sale of a patented invention during the term of the patent constituted an act of infringement… even if it was for the sole purpose of conducting tests and developing information necessary to apply for regulatory approval... Since that activity could not be commenced by those who planned to compete with the patentee until expiration of the entire patent term, the patentee's de facto monopoly would continue for an often substantial period until regulatory approval was obtained" (Eli Lilly & Co. v. Medtronic Inc., 496 U.S. 661, 670 (1990) (hereinafter: the Eli Lilly case).

 

This problem was resolved by sec. 35 U.S.C § 271(e)(1) of the law that provides as follows:

 

It shall not be an act of infringement to make, use… or sale… solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological product"

 

On the other hand, the arrangement of extension orders was provided for patents for which the patent owner is required, as a condition for marketing, to perform various licensing actions that take a significant amount of time (see 35 U.S.C. § 156). In the United States, as in Israel, both of these arrangements were perceived as different sides of the same coin. On the one hand, the need to open the market to competition at the time of the patent expiration; on the other hand, compensating the patent owner for "lost" time”. A fine example of the tight connection between the two arrangements can be found in the Eli Lilly case. In that case, which was heard by the Supreme Court, a question emerged whether a certain medical device was covered by the section that allows performing licensing actions even before the patent's expiration. The federal court’s answer was negative, however this ruling was reversed by the Supreme Court in light of purposive interpretation of the law. The ruling was based on two facts. First, the device at issue was required to undergo various examinations as a condition for marketing. Second, it was possible to receive an extension order in that field. The Court held that as a rule, and since these are related arrangements, it would not be possible to benefit from both of them. If it is possible to receive an extension order, the competitors would be able to take actions toward licensing during the period of the patent, and vice versa, in light of the tight linkage between the two arrangements:

 

It seems most implausible to us that Congress, being demonstrably aware of the dual distorting effects of regulatory approval requirements in this entire area… - the disadvantage at the beginning of the term producing a more or less corresponding advantage at the end of the term - should choose to address both those distortions only for drug products; and for other products named in 201 should enact provisions which not only leave in place an anticompetitive restriction at the end of the monopoly term but simultaneously expand the monopoly term itself, thereby not only failing to eliminate but positively aggravating distortion of the 17-year patent protection. It would take strong evidence to persuade us that this is what Congress wrought, and there is no such evidence here (Eli Lilly, p. 672).

 

As can be seen, it is one earth. The difficulties in Israel and the United States are common, as are the solutions – both for the generic industry and for the ethical industry.

 

To conclude, we will turn our glance towards the method of calculating the period of the extension order in the United States. As noted, in Israel there is a distinction between a situation in which the licensing of the patent was requested only in Israel, and a situation in which licensing was requested in an additional Recognized State. In the first case, the period of the order is the time the licensing procedure lasted, from the date the application was filed until the license was granted. In the latter case, there is a linkage to the shortest extension order that was granted in one of the Recognized States. The calculation mechanism in the United States is also based on the period of the licensing process, although in a more complex manner. It is based on the duration of the testing phase and the approval phase. The testing phase is the period from the date when approval for experimenting on humans was received and until the date the new drug application form was filed. The approval phase starts at this stage and continues until the final approval of the pharmaceutical (see 35 U.S.C. § 156). There are a number of scenarios and calculations, and there is no need to specify all of them in the framework of this judgment. Suffice to say that the main rule is to grant an order for the period of half of the testing phase together with the entire approval phase (ibid). As in Israel, there are various restrictions that apply to the length of this period, and particularly that it be for no more than five years in total, and no more than 14 years from the day the marketing approval is granted.

 

This is the current calculation in principle, without addressing all of the legislative changes that have also occurred in the United States. One can now understand the legislature’s decision to view equating the period of the Israeli order with the U.S. order as appropriately compensating the patent owner. This, as noted, is the situation in Merck's specific case. This is what we have said in light of the global aspect of the use of pharmaceuticals. There are countries that legislate their laws on this matter with one eye looking inward and one eye examining what is occurring in other countries. That is the demand of the economic reality in striving to give proper weight to all of the factors involved in what occurs in this field, including the individual.

 

Conclusion

 

24.       The transitional provisions of the Israeli law do not amount to retroactive infringement. Even if the shortening of the period of the extension infringes a constitutional right, it clearly passes constitutional review under sec. 8 of the Basic Law. Finally, there are solid grounds for the conclusion that the infringement does not reach the constitutional threshold. As was explained above, not every infringement is necessarily a constitutional infringement. The legislature gave and the legislature took back its share. I am not saying that this conduct, or such legislation, is immune to constitutional review. However, it must be grounded. In the example of the third-instance appeal by right that was discussed above, had the legislature provided that there is a right of appeal in the Tel Aviv district but not in the Northern district, it could have been argued that we were concerned with a constitutional infringement. This is certainly so in the case of wrongful discrimination.

 

As noted, in this case the purpose is to grant appropriate compensation to the patent owner, in the form of a period of protection that exceeds twenty years, but in a manner that does not excessively prejudice other important interests and values, such as opening the market to competition. Viewed as a whole, the actual period of protection that Merck was awarded is longer than that to which it was entitled when the patent was registered. Not a hermetic twenty-year unit, but rather a longer cumulative period of time that includes the period of the extension order. The shortening of the extension order relies on a calculated, considerate policy of the legislature. This is true with respect to the ethical companies. This is true with respect to the generic companies. This is true with respect to the public. There is a proper dynamic between the situation in Israel and in the overseas markets.

 

25.       It is possible that had LCA 8263/15 stood on its own, it would not have been appropriate to grant leave to appeal. However, due to the material connection between the two applications, and once it was decided to hear LCA 8127/15 on its merits, I would recommend to my colleagues that leave to appeal be granted in both of the cases. I would further recommend that we hear LCA 8263/15 as though leave had been granted and an appeal filed pursuant thereto, and to deny the appeal on its merits, while accepting the appeal in LCA 8127/15 as follows:

 

In the dispute in LCA 8127/15 between the District Court and the Registrar, my opinion is as the opinion of the Registrar, that the extension order that was granted in the United States is the relevant reference patent extension order in the circumstances of the matter. Accordingly, I would recommend to my colleagues that we rule that the period of the extension order that was granted to Merck has expired. In the circumstances of the matter, Applicants 1 and 2 shall bear the Manufacturers Associations' expenses and legal fees in the amount of NIS 125,000.

 

Justice Y. Danziger

 

I concur.

 

 

Justice U. Shoham

 

I concur with the comprehensive, thorough opinion of my colleague Justice N. Hendel, and I agree to granting the appeal in LCA 8127/15 such that the period of the extension order that had been granted to Merck has expired.

                                                                                     

 

Decided in accordance with the opinion of Justice N. Hendel.

 

Given this 9^th  day of Sivan 5776 (June 15, 2016).

 

 

In the Supreme Court sitting as High Court of Justice

HCJ 8665/14

 

Before:                                    President M. Naor

                                    Justice S. Joubran

                                    Justice E. Hayut

                                    Justice H. Melcer

                                    Justice Y. Danziger

                                    Justice N. Hendel

                                    Justice U. Vogelman

                                    Justice I. Amit

                                    Justice Z. Zylbertal

 

Petitioners:                  1. Teshome Nega Desta

                                    2. Anwar Suliman Arbab Ismail

                                    3. Hotline for Refugees and Migrants

                                    4. Association for Civil Rights in Israel

                                    5. ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel

                                    6. Worker’s Hotline

                                    7. Physicians for Human Rights – Israel

                                    8. African Refugee Development Center

                                               

                                                                        v.

 

Respondents:              1. Knesset

                                    2. Minister of the Interior

                                    3. Minister of Defence

                                    4. Minister of Public Security

                                    5. Attorney General

 

Request to join as amici:                     1. Eitan - Israeli Immigration Policy Center

                                                            2. Kohelet Policy Forum

                                                            3. Legal Forum for Israel

4. Concord Research Center for Integration of International Law in Israel

 

Objection to granting an order nisi

Date of Hearing:                                 14 Shevat 5775 (Feb. 3, 2015)

 

Attorneys for the Petitioners: Adv. Oded Feller; Adv. Anat Ben-Dor; Adv. Asaf Weitzen; Adv. Osnat Cohen Lifshitz; Adv. Aelad Cahana; Adv. Rachel Friedman; Adv. Yonatan Berman

 

Attorney for Respondent 1: Adv. Gur Bligh

Attorney for Respondents 2-5: Adv. Yochi Gnessin; Adv. Ran Rozenberg; Adv. Moriah Freeman; Adv. Noam Mola

Attorney for Amicus 1: Adv. Guy Tsabari

Attorney for Amicus 2: Adv. Ariel Erlich

Attorney for Amicus 3: Adv. Idan Abuhav

Attorney for Amicus 4: Adv. Avinoam Cohen

 

 

Judgment

 

President M. Naor:

 

The petition before the Court challenges the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment). This chapter amends the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), and establishes provisions for the detention of infiltrators for a period of up to three months, and to order that they be held in a residency center for up to twenty months. The Amendment, which passed second and third readings in the Knesset on Dec. 8, 2014, was enacted after this Court held in two previous judgments that certain provisions that had been added to the Law by previous amendments were unconstitutional (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)).

 

General Background

1.         Over the last few years, tens of thousands of people, many of them nationals of African countries, entered Israel without passing through the border control stations. The Law defines these people as “infiltrators” because they did not enter Israel legally. This, as opposed to persons who entered Israel legally but who did not leave on the required date, thus continuing to remain in the country unlawfully. 

2.         The infiltration phenomenon presents Israel with complex challenges. While it must prevent illegal immigration, the state must also uphold its obligations to protect persecuted persons and ensure that they not face a situation that would threaten their lives or freedom if deported (HCJ 7302/07 Foreign Workers Hotline v. Minister of Defence, para. 13 (July 7, 2011) (hereinafter: the Hotline case)). In the Adam case and the Eitan case, we noted that these challenges are not unique to Israel, and that there has been a constant rise in the number of men and women wandering outside their countries for various reasons over the last decades.

3.         According to the current data of the Population and Immigration Authority, as of June 30, 2015, a total of 64,309 infiltrators have entered Israel, of whom 45,091 are currently present in the country. Until 2012, infiltration followed an upward trend, which has since reversed. While 17,258 infiltrators entered the country in 2011, only 45 entered in 2013, and 21 in 2014. In the first half of 2015, 39 infiltrators entered the country. In the years 2013-2014, there was an increase in the number of infiltrators leaving Israel. Despite the said changes in the scope of the infiltration phenomenon, the State of Israel must still contend with a large number of infiltrators living in its territory (and see: the Eitan case, para. 40 of the opinion of Justice U. Vogelman, further references in this judgment refer to the opinion of Justice Vogelman, unless otherwise noted). Most of the infiltrators currently present in Israel (some 92 percent) are nationals of Eritrea and the Republic of Sudan (hereinafter: North Sudan) (Population and Immigration Authority, Policy Planning Department, Data on Foreigners Policy in Israel – Publication no. 2/2015 (July 2015)).

4.         In the previous proceedings, the Court noted that the parties disagree as to the reasons that brought the infiltrators to Israel. That disagreement has also arisen in these proceedings. The State is of the opinion that the overwhelming majority of infiltrators are economic migrants who left their countries in order to improve their situations. Therefore, in addition to the legislative arrangements that are the subject of these proceedings, the Amendment also comprises Chapter B (which is not challenged in this petition), which amends the Foreign Workers Law, 5751-1991, by reference, and imposes various restrictions upon the employment of infiltrators. As opposed to this, the Petitioners are of the opinion that we are concerned with people who fled their countries of origin due to threats to their lives or liberty. The Petitioners note that Eritrea and Sudan – the countries of origin of most of the infiltrators – are countries that have suffered internal instability, and in which there have been crises and wars over the last years (the Adam case, para. 6 of the opinion of Justice E. Arbel, further references in this judgment refer to the opinion of Justice Arbel unless otherwise noted; the Eitan case, para. 31). Against this background, the Petitioners argue that many of the infiltrators are entitled to refugee status. According to the Petitioners, that status is not limited to a prohibition upon deportation to the country of origin, but grants additional rights in various areas (Convention Relating to the Status of Refugees of 1951, 5 Kitvei Amana 3 (opened for signature in 1951), and the Protocol Relating to the Status of Refugees of 1967, 21 Kitvei Amana 23 (opened for signature in 1967) (hereinafter referred to jointly as the Refugee Conventions); the Eitan case, paras. 32-36).

5.         As noted in the previous proceedings, “the true picture as to the identity of the infiltrators is certainly more complex than either side seeks to present. Alongside the economic motive that may be assumed to have driven many of the infiltrators to come to the State of Israel, we cannot casually deny the claims relating to fleeing the dangers that threatened them in their country” (ibid., para. 31). This is also true in the matter before us. In any case, at present Israel does not deport nationals of Eritrea and North Sudan directly to their countries. According to the information presented to us, nationals of North Sudan are not repatriated due to practical problems deriving from the lack of diplomatic relations with that country (for a more detailed discussion of this issue, see ibid., paras. 31-32; the Adam case, para. 8). As opposed to this, due to the situation in Eritrea, the State has adopted a policy of “temporary non-deportation”. This is in accordance with the customary international law principle that a person cannot be removed to a place that presents a danger to his life or liberty (the principle of non-refoulement; see, inter alia, para. 33 of the Refugee Convention). This Court addressed the non-deportation policy as implemented by Israel at some length in earlier judgments (the Adam case, paras. 8-9; AAA 8908/11 Asafu v. Ministry of the Interior (July 7, 2012) (hereinafter: the Asafu case)). At present, only “temporary non-deportation” is involved, without establishing any associated, specific arrangement treating of its practical implications and the nationality rights of those enjoying it (for a criticism of this normative situation, see ibid., the opinion of Justice E. Hayut).

6.         To complete the picture, we would note that the said policy does not currently prevent nationals of Eritrea and Sudan from submitting individual requests for recognition as refugees, although the State formerly limited this (see: the Eitan case, para 34; the Asafu case, para. 18 of the opinion of Justice Vogelman). Until a few years ago, requests for asylum were handled by the U.N. High Commission for Refugees, initially in their entirety and later in cooperation with it (see: AAA 8675/11 Tedesa v. Unit for Processing Asylum Seekers, para. 9-11 (May 14, 2012); Sharon Harel, The Israeli Asylum Mechanism: The Process for transferring the handling of Asylum Requests from the U.N. Commission for Refugees to the State of Israel, in Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy 43 (2015) (hereinafter: Levinsky Meets Asmara) (Hebrew)). Over the last few years, requests for asylum have been referred to the RSD (Refugee Status Determination) (hereinafter: RSD) department of the Population and Immigration Authority, which operates in accordance with the directives of the Ministry of the Interior (see: Ministry of the Interior, “Procedure for Handling Requests for Political Asylum in Israel” (Jan. 2, 2011)).

 

Previous Proceedings – the Adam and Eitan Cases

7.         In view of the difficulty in repatriating most of the infiltrators, the State of Israel had to find alternative solutions. Initially, Israel adopted a policy under which infiltrators who were apprehended were returned to Egypt. However, the implementation of that policy was stopped due to the geopolitical situation in Egypt (the Hotline case, paras. 11-12; for other arrangements implemented in the past, see: Yonatan Berman, Arrest of Refugees and Asylum Seekers in Israel, in Levinsky Meets Asmara 147; HCJ 10463/08 African Refugee Development Center v. Ministry of the Interior (Aug. 17, 2009); HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009)). Another policy adopted by Israel was that of detaining infiltrators under the Entry into Israel Law, 5712-19952 (hereinafter: the Entry into Israel Law). However, the infiltrators were released from detention after a relatively brief period, inter alia, because the Entry into Israel Law does not generally permit detaining a person or more than sixty days.

8.         In light of the increase in infiltrations, the state authorities implemented other means, among them the erection of a physical barrier along the land border with Egypt, and legislation intended to impose special legal arrangements upon infiltrators. These arrangements are more severe than those applying to persons unlawfully present in Israel under the Entry into Israel Law. This policy was first expressed in the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 3 and Temporary Order) Law, 5772-2012 (hereinafter: Amendment 3), which added sec. 30A to the Law. The main provision of sec. 30A – enacted as a temporary order – permitted detaining an infiltrator in legal custody for a period of up to three years, subject to grounds for supervised release that were established in the Law. In the Adam case, this Court – in an expanded panel of nine justices – held that Amendment 3 was unconstitutional due to its disproportionate violation of the constitutional right to liberty. By majority opinion, we annulled all the arrangements established in sec. 30A of the Law. We further ruled that in light of the annulment of sec. 30A, all the detention and deportation orders under which the infiltrators were detained would be viewed as if they had been issued by virtue of the Entry into Israel Law, and that an immediate, individual review of the cases of all those detained must be undertaken, along with their release, as necessary.

9.         Pursuant to the judgment in the Adam case, the Knesset enacted the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 4 and Temporary Order) Law, 5774-2013 (hereinafter: Amendment 4). That law – also enacted as a temporary order – reenacted sec. 30A, while shortening the maximum period of detention to one year. It also added Chapter D, which arranged for the establishment of a residency center for infiltrators (hereinafter: residency center), and authorized the Director of Border Control (hereinafter: the Director) to transfer any infiltrator to the center if there was any problem whatsoever in removing him from Israel. Chapter D also established various provisions in regard to the operation of the residency center. Inter alia, infiltrators residing in the residency center were required to report three times a day for registration of their presence in the center, and to remain in the center during the night. On Dec. 12, 2013, shortly after the enactment of Amendment 4, the Prevention of Infiltration (Offences and Jurisdiction) (Declaration of a Residency Center for Infiltrators) (Temporary Order), 5774-2013, was published in the Official Gazette. In that order, promulgated by virtue of sec. 32B of the Law, the Minister of Public Security declared the “Holot” installation in the Negev as a residency center for infiltrators under Chapter D of the law. On the following day, the Population and Immigration Authority began transferring infiltrators held in custody to the “Holot” installation.

10.       In the Eitan case, a majority of this Court held that the aforementioned two pillars of Amendment 4 were unconstitutional and ordered their annulment. The Court held that a person could not be ordered to be held in custody if there was no expectation of his removal from Israel, and a fortiori not for a period of one year. Although the State argued that one of the purposes of sec. 30A of the Law was the identification of the infiltrator and exhausting the possibilities for his deportation, it was held that there was a gap between the declared purpose of the Law and its language. It was therefore held that placing infiltrators in detention for an entire year in the absence of any foreseeable expectation of their deportation – and this not a punishment for their conduct, and in view of their inability to do anything to bring about their release – creates a disproportionate violation of their rights. It was further held that the residency center was also unconstitutional. This was first and foremost because no limits were set for the maximum period of custody in the center, nor were any criteria for release established. But it was also due to the specific arrangements that were established, such the obligation to report for registration and the obligation to remain in the center at night. The Court held that Chapter D, as a whole, presented a gloomy picture of an installation that shared many of the characteristics of a detention center, as opposed to an open or partly open residency facility. The Court therefore overturned both elements of the Law.

11.       In place of the arrangement established under sec. 30A, which was annulled, the Court held that the arrangement established under the Entry into Israel Law would be followed. In addition, the declaration as to the annulment of Chapter D of the Law was held in abeyance for ninety days, with the exception of a limited number of provisions regarding which the declaration would enter into force earlier, in accordance with the conditions set forth in the judgment.

 

The Law challenged by the Petition

12.       On Dec. 8, 2014 – about three months after the judgment in the Eitan case – the Knesset enacted the amendment that is the subject of these proceedings. It, too, was enacted as a temporary order. The main points of the amendment are as follows: First, sec. 30A of the Law was reenacted, while establishing a three-month maximum for detention. Second, Chapter D of the Law was reenacted to reestablish the residency center and regulate its operation. Like the earlier version of Chapter D, the new arrangement authorizes the Director to require that an infiltrator be present in the residency center. However, the maximum period for remaining in the residency center is limited to twenty months, and special populations – like minors and victims of certain crimes – will not be summoned to the center. As in the past, the infiltrators were required to report in the evening for registration, and were prohibited from leaving the center at night. However, the requirement that they report during the day was rescinded, and grounds for release from the residency center were established. Below, I will address all of the details of the arrangement established under Chapter D. I will already note that according to the explanatory notes, these arrangements were intended to change the scheme of incentives for infiltrators considering entering Israel other than through the border control stations; to permit the authorities to exhaust the identification procedures for infiltrators, as well as deportation procedures; to provide a response to the State of Israel’s right to protect its borders and sovereignty; and to prevent infiltrators from continuing to establish themselves in Israeli urban centers (Explanatory Notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904 (hereinafter: the Explanatory Notes)).

            The petition before the Court was filed shortly after the enactment of the Amendment.

 

Developments following the filing of the Petition

13.       On Dec. 30, 2014, President A. Grunis issued an order nisi instructing the Respondents to show cause why sec. 30A of Chapter D of the Law, as amended in the Amendment that is the subject of this petition, not be annulled. President Grunis further ordered that the case be heard before an expanded panel of nine justices.

14.       Oral arguments were heard on Feb. 3, 2015. In light of questions and arguments raised in the course of the hearing, we ordered that the Respondents submit a supplementary affidavit. The Respondents were asked to present various data in their affidavit, inter alia, in regard to the breakdown of the population currently in the Holot residency center; in regard to asylum requests submitted to the RSD; and in regard to asylum seekers who voluntary left Israel in the course of their stay in the residency center or while in detention. I will refer to the supplementary data submitted on Feb. 16, 2015 in due course.

 

The Petitioners’ Presentation and the Main Arguments of the Parties

15.       Petitioner 1 is a 34 year old Eritrean citizen. He claims that he served for a number of years in the Eritrean army, and was thereafter imprisoned without trial for over a year. In 2008, Petitioner 1 left Eritrea and infiltrated into Israel. Between the years 2008 and 2013, Petitioner 1 lived in Beer Sheva, Eilat and Tel Aviv, and worked in hotels. In January 2014, the Director ordered him to the Holot residency center, where he remained until the filing of the petition. Petitioner 1 filed a request for asylum that has not yet been decided. Petitioner 2 is a 35 year old citizen of North Sudan, born in the Darfur region. He claims that in the course of his university studies he was politically active in the Sons of Darfur movement, and as a result, was twice imprisoned without trial, beaten and held under inhuman conditions. In 2004, following his release from prison, Petitioner 2 fled from North Sudan to Libya. In 2008, when the Libyan authorities began to extradite members of the movement to North Africa, Petitioner 2 fled Libya, and on Nov. 17, 2008, infiltrated into Israel. Upon arrival, he was held in custody for five months. Following his release from custody, he lived in Jerusalem and in Tel Aviv, and worked in hotels. In February 2014, Petitioner 2 was ordered to the Holot installation, where he has been since March of that year. According to him, he was ordered to stay in Holot after he refused to leave Israel to a third country. Petitioner 2 also filed a request for asylum that has not yet been decided.

            The other petitioners are human rights organizations: The Hotline for Refugees and Migrants; The Association for Civil Rights in Israel; ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel; The Worker’s Hotline; Physicians for Human Rights – Israel; and The African Refugee Development Center.

16.       The petition challenges both elements of Chapter A of the Amendment. The first arrangement challenged is that of custody by virtue of sec. 30A of the Law. Although the period of custody has been shortened from one year to three months, the Petitioners are of the opinion that the section nevertheless remains unconstitutional. The Petitioners argue that, like Amendment 4, section 30A in its current form permits holding a person in custody even when there is no practical expectation of his removal form the country. Under these circumstances, they argue that this constitutes unlawful arrest.

            The second arrangement challenged by the Petitioners is the residency center that, as noted, was established under Chapter D of the Law. According to the Petitioners, Chapter D suffers from a number of constitutional defects that justify the annulling of the entire chapter. Their main argument is that the period of custody in the residency center – although limited to twenty months – is still extremely long in relation to what is accepted in the world, and significantly violates the rights of the infiltrators. The Petitioners are of the opinion that the purposes of Chapter D are also improper. Their primary argument in this regard is that the true purpose of the provisions of Chapter D is to encourage the infiltrators to leave the state “by means of breaking their spirit, deterrence, and separation of populations”. This, they argue, is not a proper purpose when deportation of the concerned group is prohibited. In any case, the Petitioners argue, the residency center does not achieve its purpose in view of the fact that after their release from the center, they will return to the urban centers and establish themselves there. The Petitioners also make numerous arguments in regard to the individual arrangements in Chapter D, and particularly in regard to the arrangement that authorizes the Director to order that an infiltrator staying in the residency center be transferred to detention if he be found to have violated various rules of the residency center.

            In light of the above, the Petitioners ask that this Court annul for a third time the provisions of the Law as amended in the Amendment that is the subject of the petition.

17.       The Knesset and the State are of the opinion that the petition should be denied. According to them, the purposes of the Law are proper, and the arrangements therein are proportionate. According to the Knesset, there are substantive differences between the arrangement that was overturned in the Eitan case and the arrangement enacted to replace it, which is challenged in this petition. The changes introduced by the Knesset in the legislative arrangement – among them a reduction of the maximum period of detention to three months; shortening the maximum period for being held in a residency center to twenty months; limiting the duty of reporting in the residency center; shortening the periods for transfer of an infiltrator from a residency center to detention, and instituting automatic judicial review of such a decision by the detention tribunal – resolved, it is argued, the constitutional defects found in the previous arrangement. Given the margin of legislative appreciation granted to the legislature, the Knesset is of the opinion that, in this petition, an interpretive solution should be preferred to Supreme Court intervention in legislation. This is particularly so in view of the fact that we are concerned with a third constitutional review of the same law, and in view of the fact that the Law touches upon the designing of immigration policy, which is a subject  at the core of the State’s sovereign authority.

            The State argues that although the provisions of Chapter D in regard to a residency center infringe the right to liberty, they do not deny it. It is argued that the changes introduced by the Knesset in this arrangement significantly limit the scope of the infringement, and they pass the criteria of the Limitation Clause. It is similarly argued that the provisions regarding placing a person in detention were enacted for a proper purpose and meet the criteria of proportionality.

 

Requests to join the Petition

 18.      Four associations and organizations asked to join the petition as amici curiae. The first, the Kohelet Policy Forum (hereinafter: the Forum), is a public association that acts “for the strengthening of Israeli democracy, the advancement of individual freedom and encouraging the implementation of free-market principles in Israel, and for the establishing of the permanent status of Israel as the nation state of the Jewish nation”. According to the Forum, the purposes of the Law – which are the stemming of the infiltration phenomenon and the prevention of future infiltration, along with preventing the permanency of the presence of infiltrators unlawfully present in Israel and ensuring their exit – are proper. It is further argued that in accordance with the accepted Israeli normative structure, domestic law takes precedence over the provisions of international law. The Forum therefore argues that recourse should not be made to the provisions of international law in the framework of constitutional review of the Law.

19.       The second association that requested to join the petition as an amicus is the Legal Forum for Israel, which acts “for good governance in general, and in the judiciary in particular, including in the area of the separation of powers and the balances among the three branches of government”. In brief, the association argues that the petition should be denied first and foremost in light of the broad margin of discretion granted to the legislature as a substantive element of the principle of separation of powers. It is argued that in the instant case the margin of discretion is particularly broad, given that the primary issue – the period of time that an infiltrator may be held in custody and in a residency center – is “quantitative” in nature.

20.       The third association, requesting to join the petition as a respondent or alternatively as an amicus is the Eitan - Israeli Immigration Policy Center, which acts “for the establishing of an orderly immigration policy for Israel”. Eitan’s main argument is that an examination of the constitutionality of the Law must also address the necessary balance between the rights of the infiltrators and the rights of the residents of the cities in general and those of south Tel Aviv in particular. In Eitan’s view, we are concerned with a “vertical balance” in which the interests of Israel’s citizens and residents must be shown preference. It is therefore argued that the Law’s arrangements are not only proportionate but necessary, inasmuch as there will otherwise be disproportionate harm to the rights of the city residents.

21.       The fourth organization requesting to join the petition is the Concord Research Center for Integration of International Law in Israel (hereinafter: the Concord Center). The Concord Center emphasizes that international law grants states the right and authority to enforce their immigration laws by means of removing aliens unlawfully present in their territory. It further notes that there is nothing wrong in principle with adopting detention as a means for ensuring the enforcement of decisions in regard to deportation and removal. However, it explains that the use of this means is subject to such fundamental principles as necessity, proportionality and reasonableness. According to the Concord Center, the Law’s provisions are not consistent with those principles. In its view, the Law lacks a clear connection between the authority to hold a person in custody or in a residency center and the practical possibility to deport a person defined as an infiltrator form Israel. It is argued that, in practice, the absence of such a connection allows for the arbitrary violation of the right to liberty, which is prohibited under international law.

 

Discussion and Decision

22.       As noted, the question before the Court concerns the constitutionality of two arrangements in the Law. The starting point for the constitutional examination is that the Court must act with restraint in reviewing laws enacted by the Knesset, which express the will of the people (see, for example: HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (Feb. 23, 2012) (hereinafter: the Nir case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). This is particularly true in this case in which we are concerned with the constitutional review of a law that was overturned by the Court, and reenacted by the Knesset for a third time. In the Eitan case, Justice Vogelman noted that examining the constitutionality of a law under such circumstances requires particular care (ibid., para. 23). However, that does not mean that the Law is immune to judicial review. I made a similar point in the Eitan case:

…there is a constitutional dialogue between the judiciary and the legislature: the Knesset enacts a law, which it believes meets the constitutional criteria; the Court examines the law under the lens of constitutional review. Occasionally, upon review, the Court arrives at the conclusion that the law, or some part thereof, is unconstitutional. That does not end the dialogue: if necessary, the Knesset legislates anew (see: Aharon Barak, The Judge in a Democracy, 383-384 (2004) (Hebrew), [236-238 (2006) (English)]). However, after the Court has determined that a piece of legislation is unconstitutional, the legislature must not reenact it unchanged, or with changes that do not resolve the contradiction of the Basic Laws that the Court pointed out, as such legislation “constitutes a violation of the Basic Laws themselves” (ibid., 388) [ibid., para. 3 of my opinion].

We are, therefore, required to examine the constitutionality of the said Law yet again. As is well known, constitutional review is not performed in a vacuum. It is performed against the background of the reality with which it was intended to contend (see: the Adam case, para. 1 of the opinion of Justice U. Vogelman). As described above, the provisions of the Law that are being challenged in these proceedings comprise means that the State employed as part of an attempt to contend with the infiltration phenomenon. According to the data before us, the magnitude of this phenomenon is in a downward trend. However, inasmuch as the number of infiltrators living in Israel is still large, the need to contend with the challenges that derive therefrom still remains. It is against this background that I will begin my constitutional examination.

23.       In principle, constitutional review is performed in stages. First, we must examine whether the law infringes a protected human right. If the answer is negative, then the constitutional examination comes to an end. If the answer is positive, then we must examine whether it is lawful in accordance with the criteria of the Limitation Clause (see, for example: HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 594 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: the Prison Privatization case)). These rules are based upon the constitutional view that constitutionally protected human rights are relative, and may be limited where justified.

24.       The Limitation Clause establishes four cumulative conditions that a violating law must meet in order for the infringement to be lawful. First, constitutional rights cannot be infringed except by a law that befits the values of the State of Israel as a Jewish and democratic state. Additionally, the law must serve a proper purpose. In brief, a purpose is proper if it is intended to realize important public interests (see, for example: HCJ 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2205); HCJ 6784/06 Major Schlitner v. IDF Director of Pension Payment, para. 78 of the opinion of Justice A. Procaccia (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of a statute is tested by means of three subtests.  The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r...(hereinafter: the Adalah case); HCJ 6133/14 Gurevitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gurevitz case); Aharon Barak Proportionality in Law –Constitutional Rights and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality). The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. The legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 24; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of the opinion of Justice E. Arbel (September 17, 2014)).  The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit derived from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based upon a balance between rights and interests. It calculates the social importance of the infringed right, the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of the opinion of Justice A. Procaccia (September 2, 2010); HCJ 6055/95 Tzemach v. Minister of Defence, IsrSC 53(1) 241, 273 (1999) (hereinafter: the Tzemach case) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]).

If the Court concludes that the statute does not meet the conditions of the Limitation Clause, then it is unconstitutional. In such a case, the Court must determine how to remedy the unconstitutionality (see, for example: HCJ 2334/02 Shtanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792, para. 5 of the opinion of President A. Barak (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

25.       I will now turn from general principles to the constitutional review of the Law that is the subject of these proceedings. First I will examine sec. 30A of the Law, by virtue of which infiltrators may be held in detention for three months. I will then examine Chapter D of the Law, which rearranges the operation of the residency center for infiltrators.

 

Section 30A of the Law – General

26.       The point of departure for the examination is sec. 30(a) of the Law, which authorizes the Minister of Defence to issue a deportation order to an infiltrator. The deportation order serves as legal grounds for holding the infiltrator in custody until his deportation, subject to various provisos (also see: the Eitan case, para. 42). Section 30A of the Law, which was reviewed in the Adam case, allowed for the custody of an infiltrator against whom a deportation order was issued for a maximum period of three years. Section 30A, as worded in Amendment 4, and which was reviewed in the Eitan case, established a shorter, one-year maximum period for detention. The section currently under review again shortened the maximum period of custody, setting it at three months. Section 30A states:

Bringing before the Director of Border Control and his Authorities (Temporary order) 5774-2013)

30(A)(a) An infiltrator located in detention will be brought before the Director of Border Control no later than five days from the beginning of his being taken in custody.

(b) The Director of Border Control may release an infiltrator with a monetary guarantee, with a bank guarantee, or another suitable guarantee, or on conditions that he shall deem appropriate (in this law – guarantee), if he is convinced of one of the following:

(1) Due to the infiltrator’s age or to his physical condition, including his mental health, his being held in custody is likely to harm his health as aforesaid, and there is no other way to prevent the aforesaid harm;

(2) There are other, special humanitarian grounds from those stated in paragraph (1) justifying the release of the infiltrator with a guarantee, including if as a result of his being held in custody, a minor will be left unsupervised;

(3) The infiltrator is a minor who is unaccompanied by his family members or a guardian;

(4) His release will assist in the infiltrator’s deportation proceedings;

(5) If 60 days have passed from the date when the infiltrator filed a request for a visa and permit for residence in Israel under the Entry into Israel Law and processing of the request has not yet begun.

(c) The Director of Border Control is authorized to release an infiltrator with guarantee if three months have passed from the beginning of the infiltrator’s being held in custody.

(d) Notwithstanding the provisions of subparagraph (b)(2) or (4) or (5), an infiltrator will not be released with guarantee if the Director of Border Control is convinced of the existence of one of the following:

(1) His deportation from Israel is prevented or delayed due to a lack of full cooperation on his part, including in regard to the matter of verifying his identity or arranging the proceedings for his deportation from Israel;

(2) His release would endanger national security, public order or public health. In this regard, the Director of Border Control may rely upon an opinion of the authorized security agencies that activity that may threaten the security of the State of Israel or its citizens is being carried out in the infiltrator’s country of origin or the area of his residence, unless the Director of Border Control is convinced that due to his age or his state of health, holding him in custody is likely to harm his health and there is no other way to prevent this aforesaid harm.

(e) His release with guarantee from detention will be contingent on conditions which the Director of Border Control shall determine in order to ensure the appearance of the infiltrator for deportation from Israel on the determined date, or for other proceedings according to law. The Director of Border Control may, at any time, review the guarantee conditions if new facts be discovered or if the circumstances have changed since the decision to release upon guarantee was rendered.

(f) In regard to an infiltrator released from detention with a guarantee according to this section, the decision regarding his release with a guarantee will be deemed a legal credential for his stay in Israel for the period of his release under guarantee. The validity of this decision regarding release upon guarantee is contingent upon meeting the conditions for release as aforesaid.

(g) Where a guarantor requests to cancel the guarantee that he provided, the Director of Border Control may grant the request or reject it, provided that his decision will ensure the reporting of the infiltrator by supplying a different guarantee. If it is not possible to ensure the appearance of the infiltrator by supplying a different guarantee, the infiltrator will be returned to custody.

(h) If an infiltrator is deported from Israel at the time determined, he and his guarantors will be released from their guarantee and the monetary guarantee will be returned, as may be the case.

(i) If the Director of Border Control discovers that the infiltrator released upon guarantee violated or was about to violate one of the conditions of his release upon guarantee, he is may instruct by order that the infiltrator be returned to custody, and he may order the confiscation or realization of the guarantee.

(j) No order will be given to confiscate or realize a guarantee as aforesaid in subsection (i) until after the infiltrator or guarantor, as the case may be, has been given an opportunity to present his arguments,  if it is reasonably possible to locate him.

(k) If the Director of Border Control ordered an infiltrator’s release upon guarantee in accordance with this section, and the conditions for granting an order for the infiltrator to stay under section 32D are met, the Director shall issue a residence order staying as stated in that section.

Like the arrangement under Amendment 4 that we reviewed, sec. 30A in its current form regulates the authorities of the Director in all that relates to holding in custody and release from custody. As in the past, the arrangement was enacted in the framework of a temporary order in force for three years, and its incidence is prospective (sec. 8(b) of the Amendment to the Law).

27.       As noted, sec. 30A authorizes the Director to hold an infiltrator in custody for a maximum period of three months (sec. 30A(c) of the Law), subject to the grounds for release upon guarantee, among them the age of the infiltrator, his state of health or other humanitarian considerations (sec. 30A(b) of the Law). In addition, if the infiltrator filed an application for an Israeli residency permit and the processing of the request has not yet begun sixty days following its submission, this will constitute additional grounds for release on guarantee. Along with this, sec. 30A permits holding an infiltrator in custody for a longer period if he does not cooperate in his deportation or if his release poses a threat. All of the above applies unless the Director is convinced that due to the individual circumstances of the infiltrator, holding him in custody is likely to harm his health (sec. 30A(d) of the Law). An infiltrator held in custody must be brought before the Detention Review Tribunal (hereinafter: the Tribunal) no later than ten days from the beginning of his being held (sec. 30E(1) of the Law). If the Tribunal approves holding the infiltrator in custody, he will be brought for periodic review of his matter within a period that will not exceed thirty days (sec. 30D of the Law). The Tribunal’s decision is subject to appeal before an administrative affairs court (sec. 30F of the Law).

28.       These, in brief, are the provisions concerning holding an infiltrator in detention and release therefrom. The main difference between these provisions and those that we examined in the Eitan case is the maximum period of time that an infiltrator may be held in detention. While, as noted, Amendment 4 permitted holding an infiltrator for a year, the current arrangement restricts the period of detention to three months. Similarly, the period until the supervised release of an infiltrator whose request for a residency permit has not begun to be processed was reduced from three months to sixty days. In addition, grounds for supervised release based upon the infiltrator’s state of mental health were added (sec. 30A(b)(1), and other grounds for supervised release, which concerned the period of time until the rendering of a decision on the residency request, were cancelled.

29.       The Petitioners argue that even in its present form, sec. 30A does not meet the criteria of the Limitation Clause. They argue that this arrangement – like that examined in the Eitan case – permits holding an infiltrator in detention without regard for whether there is any effective possibility of his removal. According to the Petitioners, this can be understood from the Knesset’s decision not to include an express provision in the Law that an infiltrator be released from detention if, at the conclusion of the identification process, there is no practical possibility of removing him from Israel within a reasonable period of time. They argue that this shows that the purpose of sec. 30A is not to determine the identity of the infiltrators and exhaust the existing avenues for their removal, but rather to deter potential infiltrators. The Petitioners are of the opinion that deterrence is not a proper purpose. They therefore argue that sec. 30A in its present form must also be annulled.

30.       In its response, the State argues that sec. 30A was enacted for a proper purpose, and that it does not infringe rights beyond what is necessary. According to the State, the main purpose of the section is the exhausting of procedures for the identification of the infiltrator, and providing the necessary time for establishing avenues for his removal from Israel. In view of this purpose, the State is of the opinion that the three-month period established in the Law is proportionate.

31.       In its response, the Knesset joined the position of the State that sec. 30 is constitutional. The Knesset notes that while the section is also premised upon the additional purpose of reducing incentives for potential infiltrators to reach Israel – regarding which the Court expressed doubt as to its constituting a proper purpose – inasmuch as the period of custody is consistent with achieving the purposes of identification and exhausting avenues for removal, it is of the opinion that the present arrangement’s infringement of rights does not exceed what is necessary. Finally, the Knesset argues that even though the present arrangement does not expressly include grounds for release in circumstances in which the process of identifying a particular infiltrator and the examination of avenues for his deportation have been exhausted, it would be better to interpret the arrangement in a manner that is consistent with the Basic Laws than to annul it.

            After considering the arguments of the parties, I have reached the conclusion that, subject to the interpretation that will be presented below as to the arrangement for custody, the petition should be denied in this regard.

 

Infringement of Constitutional Rights

32.       That sec. 30A infringes the infiltrators’ constitutional right to liberty is undisputed. Bearing in mind that in the previous proceedings the Court addressed the importance of the right to liberty at length (the Adam case, paras. 71-76; the Eitan case, para. 46), I will suffice with a summary. The right to personal liberty is established in sec. 5 of Basic Law: Human Dignity and Liberty, according to which: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. The right to liberty is granted to every person present in Israel, even if he entered its territory illegally. This right “[…] is one of the foundations of the democratic regime” (the Eitan case, para. 46; and see, for example: the Prison Privatization case, at pp. 597-598). Holding an infiltrator in detention violates his right to physical liberty, which also has consequences for other rights. Along with the violation of the right to liberty, holding an infiltrator in detention also violates his right to dignity (the Eitan case, para. 47). Of course, shortening the period of detention does not, itself, eliminate the said violation of the constitutional rights of the infiltrators.

33.       When constitutional rights are violated, we must ascertain whether the infringement is lawful. The first condition – that the infringement is effected by a law – is met. In the present proceedings – as in the previous proceedings – the parties did not expand upon the second condition, which concerns the Law’s consistency with the values of the State of Israel. Therefore, I will proceed upon the assumption that this condition is met, and I will turn to the additional criteria of the Limitation Clause – whether the provisions of the infringing law were intended for a proper purpose, and whether the infringement is not greater than necessary.

 

The Purpose of Detention

34.       In its response and in the course of the hearing, the State declared, as noted, that the primary purpose of sec. 30A is “to exhaust the procedures for identifying the infiltrator, and the allowing the necessary time for the State to arrange avenues for voluntary emigration or deportation from Israel” (para. 119). As held in the Eitan case, the purpose of removal, itself, is proper. “Who will be permitted to enter the territory of the state is a question of a purely sovereign character. The state enjoys a broad prerogative to decide who will enter its gates, for how long, and under what conditions, in a manner that will permit its proper conduct and the protection of the rights of its citizens and residents” (the Eitan case, para. 51). Holding an infiltrator in detention in order to determine his identity and for the purpose of exhausting avenues for his removal from Israel is consistent with the case law, according to which a person cannot be held in detention if it is not possible to deport him within a certain period of time. Indeed, “[…] the validity of an arrest by virtue of a deportation order does not persist in the absence of an effective removal proceeding” (the Adam case, para. 2 of my opinion; and see: HCJ 4702/94 Al Tai v. Minister of the Interior, IsrSC 49(3) 843, 851 (1995) (hereinafter: the Al Tai case)). This Court reiterated this rule in the Eitan case:

This is the rule that has been established in our case law and there is no other: holding a person in detention requires that there be an effective removal process. In order to deny a person’s liberty for the purpose of his removal, a general declaration that the state intends to do so is not sufficient. What is required is consistent activity whose purpose is to achieve an avenue for deportation in due course (para. 199).

It is therefore possible to hold infiltrators in detention if that is necessary in order to identify them and exhaust the avenues for their removal (and see: Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law 462 (3^rd ed.) (Oxford University Press, 2009) (hereinafter: Goodwin-Gill and McAdam, Refugee)).

35.       Another underlying purpose of the detention arrangement concerns creating a “normative barrier…that will reduce the motivation of potential infiltrators to reach Israel” (Explanatory Notes, p. 424). The meaning of this purpose is general deterrence (the Eitan case, para. 52). I referred to the purpose of deterrence in the Eitan case, noting that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). Nevertheless, there is nothing wrong with a purpose of deterrence when it is attendant to another legitimate purpose. As held in HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (20020 [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]:

The military commander may not, therefore, adopt a measure of assigned residence merely as a deterrent to others. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander’s taking into account considerations of deterring others [para. 27].

While this was stated in a different context, it is nevertheless appropriate to the matter before us. It was similarly held in the Eitan case that “there is nothing wrong with the fact that detention of an infiltrator, intended to advance the process of his deportation, has an accompanying deterrent effect…however, that should not be understood as meaning that an infiltrator can be held in detention for the purpose of deterring others even after his identity has been established, and even after it is found that there is no effective possibility of removing him from the country” (para. 52; and compare the opinion of Justice I. Amit, ibid.).

36.       Bearing in mind that sec. 30A is grounded upon two purposes, we must consider the relationship between them and focus upon the dominant of the two (the Adalah case, p. 319). Indeed, “[…] Knesset legislation may have more than one purpose. Our case law has previously held that that in a situation in which a law has several intertwined purposes, great weight will be given to its dominant purpose, and it will be the focus of the judicial review. Nevertheless, the other, secondary purposes of the law should not be ignored, and their consequences for human rights will also be examined” (HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 and the citations there (2002)).

37.       What, then, is the dominant purpose of sec. 30A? An examination of the legislative history of this section shows that the primary purpose is the identification of the infiltrator and the exhausting of avenues for his removal from Israel, while deterrence is at most a secondary, attendant purpose. Thus, the purpose of identification and exhausting avenues of removal is granted a central place in the Explanatory Notes to sec. 30A:

Establishing a three-month period of detention […] is necessary, inter alia, in order to exhaust the procedures for identifying and deporting the infiltrator, among them identifying his place of origin, arranging travel documents for him, and exhausting avenues for his emigration or removal from Israel (Explanatory Notes, p. 425; emphasis added – M.N.).

The importance of this purpose can also be seen in the statement by the Minister of the Interior in the course of the deliberations of the Internal Affairs and Environment Committee on the bill:

I think that the framework that we are presenting today, of 3 months of detention, we will argue here about what that means. With all due respect, the Knesset can define what it sees as the efficacy of the procedure for examining the removal. I don’t know that the Even-Shoshan Dictionary, Mr. Knesset Legal Advisor, precisely defines what is the efficacy of the examination of the removal […] we are very interested that the procedure be effective. We need time. It is very difficult when legal advisors define for us unscientific formulas for what constitutes the time for the effectiveness of a removal procedure. I thought that three months would not necessarily be enough for us (Protocol of Session No. 428 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 7 (Dec. 2, 2014)).

The Knesset also argued in its response that in examining the constitutionality of sec. 30A of the Law, it is sufficient to focus upon the purpose of identification and removal (para. 88). According to its approach, the need for a process of identification of infiltrators and the exhausting of avenues for their removal from Israel is therefore at the base of sec. 30A of the Law in its current language. In the hearing before us, the State also emphasized that according to its approach, this is the primary purpose of this arrangement.

38.       Locating the dominant purpose does not suffice with an examination of the legislative history of the law. The question whether a particular purpose is the dominant purpose of the law is also examined in light of the specific arrangements that it establishes (compare: the Adalah case, pp. 336-339). Can the primary purpose of sec. 30A be discerned from its arrangements? According to the Petitioners, the current Law – like the arrangement that we reviewed in the Eitan and Adam cases – does not make holding an infiltrator in custody contingent upon identification or removal proceedings. They argue that in the absence of a clear connection in the Law between detention and the reasonable possibility of removal, “the real purpose of this section [sec. 30A – M.N.]” is the improper purpose of deterrence. As opposed to this, the Respondents first argued in the context of this petition that the present arrangement can be interpreted in a manner that establishes a clear relationship between holding in custody and the identification of the infiltrator and the existence of an effective removal process. After considering the parties’ arguments, I am of the opinion that in view of the present legislative framework, we should accept the position of the Respondents.

39.       There is no dispute that there is a facial connection between holding the infiltrator in detention and the purpose of his identification and the exhaustion of avenues for his removal from Israel. We addressed this in the Eitan case:

No one disputes that holding an infiltrator in detention facilitates the possibility of his identification in an orderly, controlled procedure, which is a matter of great importance against the background of the special characteristics of the infiltrator population which did not enter by means of regular border crossings and official identity documents. It is also clear that detention aids in carrying out the procedures for deportation from Israel, in that it ensures that the person will not “disappear”, and it saves the possible pursuant problems of locating him (and compare: sec. 13F(a)(2) of the Entry into Israel Law) [ibid., para. 54].

Moreover, I believe that there are grounds for stating that under the present Law, holding a person in detention is subject to this purpose. The starting point is in the provision of sec. 30(a) of the Law, which empowers the Minister of Defence to order in writing that an infiltrator be deported, and establishes that a deportation order will serve as legal grounds for holding him in detention until his deportation. Authority to hold an infiltrator in detention is therefore contingent upon the existence of a deportation order. Similar authority – permitting the holding of a person who is not lawfully present in the country in detention, subject to the issuance of a deportation order – can also be found in the Entry into Israel Law. The time periods for detention are similar in the two laws (three months in the present Law and sixty days in the Entry into Israel Law). I accept the view of the Respondents that the difference in the time periods stems from the complexity of the process of ascertaining the identity of infiltrators who, as opposed to others unlawfully present in the country, did not enter through a border control station. Often, infiltrators carry no identification papers, and significant factual disputes arise as to their country of origin (see, for example: AAA 6694/13 Gidai v. Ministry of the Interior – State of Israel (Feb. 15, 2015); AP 37598-06-10 (Central District) Gebremaiam v. Ministry of the Interior (July 6, 2010)). In view of the arrest’s contingency upon the issuance of a deportation order, the case law has construed the arrest authority in the Entry into Israel Law as auxiliary to the deportation authority, the purpose of which is to ensure that the detainee will leave Israel (see: HCJ 1468/90 Ben Yisrael v. Minister of the Interior, IsrSC 44(4) 149, 151-152 (1990) (hereinafter: the Ben Yisrael case); LAA 696/06 Elkanov v. Detention Review Tribunal, para. 16 (Dec. 18, 2006)). This is so even though this Law does not comprise an express provision connecting the person’s arrest to the possibility of his deportation. In view of the similarity of the arrangement under review and that established under the Entry into Israel Law, I believe that we can apply that rule to this case by analogy. My conclusion is further supported by the provisions of secs. 30D and 30E of the present Law, which make holding an infiltrator in detention subject to periodic review within no more than thirty days. The requirement of periodic review of the detained person helps ensure that there are still grounds for holding him in detention, and supports the conclusion that the detention is intended to aid in the process of the infiltrator’s deportation. Deterrence is but ancillary thereto (see and compare: the Eitan case, para. 199).

40.       The said provisions were also included in the arrangement that was presented for our review in the Eitan case. Nonetheless, the Eitan case held that there was a gap between the arrangement under sec. 30A of the Law and the declared purpose of detention – identifying the infiltrator and arranging avenues for his exit from Israel. That finding was based upon the absence of relevant arrangements such as an express provision conditioning the continued detention of an infiltrator upon the existence of “a prospect of removal that is expected to be realized within a reasonable time” (the Eitan case, paras. 55, 199; and see the Adam case, para. 34 of the opinion of Justice U. Vogelman). The legislative arrangement now before us also lacks an express provision that makes detention of an infiltrator contingent upon the existence of a possibility of his removal. However, I believe that the shortening of the period of detention now – as opposed to in the Eitan case – makes it possible to construe the Law in the manner proposed by the Knesset. In the Eitan case, Justice U. Vogelman was willing to assume that an interpretive path could be adopted, but he did not see “how, in this matter, confronted by a legislative provision establishing a one-year period for detention…it is possible to refrain from invalidating it” (para. 202). He further held that “a section of the law that authorizes a person to hold someone in detention for an extended period for the purpose of his deportation (as opposed to the limited timeframe of the Entry into Israel Law) must express the connection between the removal process and the detention” (para. 199, emphasis added – M.N.). As opposed to the arrangement under review in the Eitan case, the new timeframe for detention is similar to the timeframe under the Entry into Israel Law. The period is also not exceptional in comparison to those found in other countries for the purpose of identifying the infiltrator and exhausting avenues for deportation. Most western countries limit the period for detaining illegal aliens awaiting deportation to a period of a few months. In the absence of special circumstances, the accepted time periods average between one and six months (for details: see the Eitan case, paras. 73-77; for an up-to-date survey of the average period of detention for illegal aliens in Europe, see: The Use of Detention and Alternatives to Detention in the Context of Immigration Policies, Synthesis Report for the EMN Focused Study (2014)). A maximum period of three months does not, therefore, deviate from what is acceptable in most countries in which the purpose of detention is similar to the declared purpose in the matter before us (compare: the Eitan case, para. 72).

41.       In view of all the above, my conclusion is that the provisions of the current Law – like the provisions of the Entry into Israel Law – can be understood as intended for the identification of the infiltrator and for exhausting avenues for his removal from Israel. Therefore, if it is found that the continued detention of an infiltrator cannot serve the purpose of identification and removal, then there will be no justification for his continued detention. That will be the case even if three months have not passed since the beginning of his detention, for otherwise it would be possible to hold a person under arrest arbitrarily. Such a result would not be consistent with the fundamental principles of our legal regime. We ruled similarly in regard to the Entry into Israel Law:

From an examination of this section [sec. 13 of the Entry into Israel Law as then worded – M.N.] it is manifest that the purpose of the detention mentioned in subpara. (3) of the section [establishing that a person in regard to whom a deportation order has been issued may be detained until he leaves Israel or is deported – M.N.] is to ensure the exit of a person against whom a deportation order from Israel has been issued, or until his deportation therefrom…the sole source of authority for the detention of the Petitioner, according to the Respondents before us, is the provision of sec. 13(c) of the law. Having found that the continued detention of the Petitioner cannot serve the purpose for which it was permitted under sec. 13(c), there is no further justification for holding him under detention. (The Ben Yisrael case, at pp. 151-152, emphasis added – M.N.).

In that case, the Court held that it is possible to continue to detain an illegal alien as long as the detention is intended to serve the purpose for which it was originally instituted. That holding – based upon the purpose grounding the detention authority – was made despite the fact that the Entry into Israel Law does not comprise a relevant cause for release from detention (CA 9656/08 State of Israel v. Saidi, para. 26 (Dec. 15, 2011); and see: the Al Tai case, at p. 851; HCJ 199/53 A. v. Minister of the Interior, IsrSC 8 243, 247 (1954)). This is appropriate here, as well.

42.       In addition, the choice of this interpretive possibility is consistent with one of the principles of our constitutional law according to which – to the extent possible – an interpretation that realizes the law is preferable to its voidance (see, for example: HCJ 5462/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793, 808, 812 (1996) (hereinafter: the Zandberg case); HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 49(4) 241, 257-258, 276 (2004) [http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housi... CA 6659/06 A. v. State of Israel, para. 8 (June 11, 2008)). It is also consistent with the principle cessante ratione legis cessat ipse lex – the rationale of a legal rule no longer being applicable, that rule itself no longer applies (Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (hereinafter: the Zadvydas case)).

43.       This approach is not unique to our system. The courts of other countries have also adopted a narrow construction of the authority to detain asylum seekers and illegal aliens. The most salient example – noted in both the Adam and Eitan cases – is the United States Supreme Court’s decision in the Zadvydas case. That case addressed the constitutionality of and American legal arrangement that permitted the detention of an illegal alien beyond the “regular” ninety-day period established by law in cases in which, for some reason, he was not deported. Inasmuch as the period of detention was not delimited, it appeared that detention could be indefinite. The Supreme Court (per Justice Breyer) interpreted the authority in accordance with its purpose – ensuring deportation – and held that a person could be detained only for the period of time necessary for his deportation, and only if there is an effective means for his removal (ibid., p. 699-700). Therefore, as a rule, supervised release of the alien should be ordered at the end of that period (ibid., p. 701). A similar ruling was made by the Australian Supreme Court (Plaintiff S4-2014 v. Minister for Immigration and Border Protection, paras. 21-35 [2014] HCA 34).

44.       The interpretive conclusion that I presented above is also consistent with the provisions of international law. Under secs. 9, 26 and 31 of the Refugee Convention, a state may – subject to demands of necessity and proportionality – impose restrictions upon the freedom of movement of asylum seekers (and see: The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Andreas Zimmerman, ed., 2011) 1243, 1268 (hereinafter: Commentary to the Refugees Convention); R. v. Uxbridge Magistrates Court & Another Ex Parte Adimi [1999] EWHC 765, para. 26; Goodwin-Gill and McAdam, Refugees, at 522; The UN Refugee Agency [UNHCR], Alternatives to Detention of Asylum Seekers and Refugees, April 2006, POLAS/2006/03, at 6, para. 18 (hereinafter: UNCHR, Alternatives to Detention)). Although these sections treat of restrictions upon freedom of movement, according to the accepted interpretation they also apply to the detention of persons who unlawfully entered the state in order to file an asylum application (see, for example: James Hathaway, The Rights of Refugees under International Law 414-418 (Cambridge University Press, 2005) (hereinafter: Hathaway)).

45.       The restriction of the movement of asylum seekers is permitted for achieving lawful purposes under international law (Commentary to the Refugees Convention, p. 1270). Among such lawful purposes, the directives of the UN Commission for Refugees mention, inter alia, preserving public order, including the sense of identifying an unlawfully present person; protecting public health; and protecting national security (The UN Refugee Agency [UNHCR], Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 15-19 (2012) available at http://www.unhcr.org/505b10ee9.html (hereinafter: the Directives); and see: the Adam case, para. 92). The Directives also note that a person may be held in detention in order to ensure his deportation when there is such a possibility, and that detention solely for general deterrence or as punishment is improper (ibid., p 19). In addition, the state is required to evaluate the need for detention on the basis of the individual circumstances of the particular infiltrator, and must not use this means in a sweeping manner (ibid., p. 15; and see: International Law Commission, Draft Articles on the Expulsion of Aliens, art. 19 (2004), http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_12_2014.pdf).

46.       Lastly, the interpretive conclusion in this matter is reinforced in view of the position of the State. In the oral hearing before the Court, the State declared, expressly for the first time, that despite the absence of a provision conditioning the continued detention of an infiltrator upon identification and removal proceedings, it recognizes that the detention authority is subject to a reasonable expectation of removal (Protocol of the Hearing of Feb. 3, 2015, pp. 4-5). This being the case as long as the infiltrator whose matter is being addressed cooperates in the proceedings for his removal from Israel (in this regard, see: sec. 30A(d) above, which permits the continued detention of an infiltrator if he does not cooperate in the proceedings for his deportation from Israel). This declaration by the State is of no insignificant weight in the matter before us.

47.       The Petitioners referred us to the position expressed by the Knesset legal adviser in response to the bill, that it would be appropriate to create a written connection between the detention period and its purpose (Opinion of the Legal Adviser to the Knesset; and see: Position of the legal adviser to the Internal Affairs and Environment Committee, as expressed in the committee’s deliberations on the bill (Protocol of Session No. 429 of the Internal Affairs and Environment Committee of the 19^th Knesset, at pp. 9-10 (Dec. 2, 2014)). The Petitioners complained that no express provision was ultimately included to establish that an infiltrator must be released if there was no reasonable expectation of his removal. I have considered this argument, but I see no reason to change my conclusion in the matter. Although including an express connection between detention and removal procedures would be desirable, my conclusion is, as aforesaid, that the present arrangement allows us to arrive at the same result through interpretation of the statute.

48.       To summarize, I am of the opinion that viewing the matter in its entirety – the purpose of the Law, the shortening of the maximum period of detention, and the declarations of the Respondents – it is possible to interpret the Law in a manner that establishes the missing connection. I am aware that this interpretive result differs from our decisions in previous proceedings. However, adopting this interpretive approach – which is reasonable and possible in the present case – was not possible in regard to the arrangement reviewed in the Eitan case (see, ibid., para. 200-201; and see: the Zandberg case, p. 813). This is so because the previous maximum detention period was not consistent with the declared purpose of the Law. Had this interpretation been applied in the Eitan case, it would have allowed a person to be held in detention for an unreasonably long period. As a result, Justice U. Vogelman noted in the Eitan case: “I agree with the view of my colleague [President A. Grunis – M.N.] according to which an interpretive effort must be made in order to refrain from voiding Knesset legislation. However, in this case in which we are confronted with a legislative provision that establishes a one-year period for detention (a period that is, in my view, disproportionate), I do not see how we can refrain from voiding it (ibid., para. 202; and see: para. 2 of my opinion in the Eitan case). As noted, the matter is different in the case before us. As explained in detail above, the maximum period established by the law now under review is a relatively shorter period that is consistent with and supports the purpose of the Law.

49.       Against this background, and in reliance upon the interpretation outlined for the Law, I will now turn to an examination based upon the proportionality tests.

 

The Proportionality Tests

50.       As I will explain, I am of the opinion that in view of the interpretation of the Law, sec. 30A passes the proportionality tests. In the Eitan case, we expressed doubt as to whether the legislative approach under review actually presented a rational connection between detention and realizing the legislative purpose. That was so in view of the absence of an express provision conditioning the continued detention of an infiltrator upon the reasonable expectation of his removal from Israel. This problem was resolved in this case. Given the relationship between detaining an infiltrator and the existence of an identification process and the exhausting of avenues for deportation, it is difficult to argue that the Law currently under review does not meet the rational connection test. The current Law also meets the second proportionality test – the less harmful means test. Although there are various possible alternatives to detention, foremost among them open or semi-open residency centers, those alternatives do not realize the purpose of the Law to a similar degree of effectiveness (the Eitan case, paras. 60-66). It therefore remains to examine the Law under the proportionality stricto sensu test, which is the primary test in the matter before us.

51.       As noted, the third proportionality test examines whether there is an appropriate relationship between the benefit that will accrue to the public from the legislation and the infringement of the constitutional right that will be caused by its implementation. In the Eitan case, we explained that even though the arrangement established under sec. 30A benefits the public, its benefit is limited. On that basis, we held that the Law as then worded infringed constitutional rights to a greater extent than was necessary. That conclusion was founded upon two primary pillars: First, the Law’s “default position” was that persons unlawfully present could be detained for a maximum period of one year when there was no possibility of their removal. Second, the holding that even on the assumption that the detention of an infiltrator was subject to the conducting of effective removal proceedings, a detention period of up to one year was disproportionately long. We therefore found (para. 71):

Such detention is permissible only in order to protect the state’s sovereignty, for the purpose of the removal of those who are unlawfully present from the country. It cannot be implemented as a punitive act that is not part of a criminal process. In accordance with the demands of the Limitation Clause, it must be implemented only when necessary, when there is no alternative means, and for a proportionate period of time.

Against the background of our holding in the Eitan case, I am of the opinion that the current Law also meets the third proportionality test. Shortening the maximum detention period, subject to the purpose I addressed above, significantly reduces the infringement of the rights of the infiltrators. As aforesaid, a three-month period is not exceptional, both in comparison to other arrangements in Israeli law of similar purpose, as well as in comparison to similar arrangements in various other western states. It would appear that no one would argue that detention, even for a short period, does not seriously infringe the rights of the detainee. However, when we are concerned with a maximum period of a few months – and bearing in mind that detaining the infiltrator serves a purpose recognized as proper by our legal system, by international law, and in comparative law – there are now, subject to this interpretation, no grounds for our intervention.

52.       We have twice held that the Law’s provision in regard to the detention of infiltrators does not pass the tests for constitutionality. The language now before us – interpreted in a manner agreeable, in practice, to the Petitioners – meets the requirements of the Limitations Clause and should not be voided.

 

Chapter D of the Law – General

53.       Chapter D was added to the Law in the framework of Amendment 4, and the “Holot” residency center was erected by virtue of this chapter. The voiding of Chapter 4 in the Eitan case marked this Court’s first intervention in the provisions of the Law regarding a residency center. The particular arrangements and practical operation of the “Holot” residency center prior to its voidance were described in detail in the Eitan case. The prior language of Chapter D authorized the Director to order that an infiltrator concerning whom there was difficulty in regard to deportation present himself at the residency center. As opposed to the provisions of sec. 30A of the Law, which are of prospective force, the above authority could also be exercised in regard to infiltrators who were already in Israel. In addition, the Director was not required to set a time limit for remaining in the residency center. Thus, an infiltrator ordered to a residency could have remained there until Amendment 4 – which was enacted as a temporary order for three years – lapsed. In theory, if the temporary order were to be extended, an infiltrator could remain in the center indefinitely (see: the Eitan case, paras. 149, 151). The prior law also did not establish grounds for release from the residency center, or any provision requiring that the Director exempt any special populations from residing in the residency center. Those residing in the center were required to report for registration three times a day – in the morning, afternoon, and evening. The center was closed at night. The center was operated by specially trained personnel from the Prisons Service who were granted broad enforcement powers, such as the power to detain, search and seize. Along with those powers, the Director was granted authority to transfer residents who violated various of the center’s rules to detention.

54.       After we ordered the voiding of Chapter 4 in the Eitan case, it was reenacted in the framework of the Law now under review. Like the prior law, the current language of Chapter D authorizes the Minister of Public Security to designate by order that a particular place serve as a residency center for infiltrators (sec. 32B of the Law), and arranges the manner of operation of the residency center and its rules. Most of the particular arrangements have remained unchanged. Thus, the Director may order residency in the residency center for any infiltrator regarding whom there is a problem “of any sort” in regard to deportation to his country of origin, including infiltrators already present in the state’s territory and infiltrators in detention by virtue of sec. 30A of the Law (secs. 32D and 30D(d) of the Law). In accordance with these provisions, the Director of the Population and Immigration Authority issued a directive under which Sudanese nationals who had infiltrated into Israel prior to May 31, 2011, and Eritrean nationals who had infiltrated into Israel prior to May 31, 2009 were to be relocated to the residency center (Appendix R/6 of the State’s response). In their request for an order nisi, filed on July 20, 2015, the Petitioners noted that updated criteria were published on July 14, 2015. According to those criteria, as of July 19, 2015, Sudanese nationals who had infiltrated Israel prior to Dec. 31, 2011, and Eritrean nationals who had infiltrated Israel prior to July 31, 2011 would be relocated to the residency center (http://www.piba.gov.il/ SpokesmanshipMessagess/ Documents/ holot_criteria_14072015.pdf). The residency center continues to be run by the Prisons Authority; the detention, search and seizure authority granted to the corrections officers remains the same; and the authority of the Director to order transfer to detention has not been entirely cancelled. As opposed to this, Chapter D in its current form differs from the prior format in several aspects: the period of residency in the center has been limited (up to twenty months); the requirement of presence in the center over the course of the day has been reduced; the Director’s authority to order the transfer of a person from the residency center to detention has been restricted; the Director has been authorized to release a person from the residency center in various situations; and certain populations, such as children, women, and victims of certain offenses, were excepted from its application.

55.       The maximum capacity of the Holot residency center is 3,360 people, as in the past. According to the supplementary affidavit, as of Feb. 9, 2015, there were 1,950 infiltrators in the center, of whom 76% were Sudanese nationals while the remaining 24% were Eritrean nationals. Also, as of that date, the maximum period during which infiltrators resided in Holot was twenty-four months. According to the affidavit, more than 60% of the residents of Holot infiltrated into Israel before 2008, and 1,521 filed applications for asylum with the RSD, of which about half were filed after the beginning of residency in the center. According to the Population and Immigration Authority, the asylum applications of the residents are given priority.

56.       The nature of the living conditions in the residency center is disputed by the parties. According to the Petitioners, the conditions in the center are very basic, the structure of the living quarters does not allow privacy and the employment possibilities are few and poor. Additionally, the Petitioners complain of the medical and welfare services in the residency center, of the quality of the food supplied, and of the amount of pocket money allotted to the residents. As opposed to this, the State argues that there are recreational activities and educational frameworks, and that medical and welfare services are provided. The State further notes that each wing of the residency center – which houses 140 residents – has a recreation center that operates all day, and the residency center has two libraries, an athletics field, a laundry and a grocery in which the price of goods is controlled. In addition, the State noted that sec. 32G of the Law, and the Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015, promulgated thereunder, arrange for the possibility of working in the area of the residency center for payment set in the regulations. There is an employment office in the residency center, and the residents are offered work, inter alia, in maintenance and cleaning of the center, in supply and in the laundry. However, the State claims that the rate of participation in the various activities offered to the residents and the rate of employment in the framework of the residency center are extremely low (see and compare: the Eitan case, paras. 91-96).

            Against this background, I will proceed to examine the claims of the parties in regard to the constitutionality of Chapter D in its present form. But first a few words of introduction.

57.       In my opinion in the Eitan case, I wrote: “The State faces a reality that it is compelled to confront. That confrontation poses problems and attendant challenges. These challenges require creative solutions. This can be the state’s finest hour, in which, facing a compelled reality, it will succeed in finding humane solutions, solutions that are not only consistent with international law, but also with Jewish values”. Inter alia, I suggested changing the residency facility into a voluntary, open residency center.

            I will not deny that the residency center erected in Holot is not what I had in mind when I wrote that. As a citizen, I would be happy to see my state show more compassion, even to those suspected of infiltrating into Israel to find sustenance. However, just as we do not examine the wisdom of the law, we do not place ourselves in the place of the legislature. Our role is to examine the constitutionality of the law. I will begin by stating that after examining the provisions of Chapter D, I have concluded that, with the exception of the maximum period of residence in the center, Chapter D meets – sometimes just barely – the criteria of the Limitation Clause.

 

The Infringement of Constitutional Rights

58.       There is no disputing that the arrangements established in Chapter D of the Law infringe constitutional rights. However, the parties disagree as to the type of infringement, its intensity, and its scope. According to the Petitioners, the various arrangements on Chapter D – that set out the obligation to remain in a residency center and its scope – constitute a harsh, independent infringement of the constitutional right to liberty. Despite the changes made in the Law, they argue that staying in a residency center means staying there. In other words, it is a facility whose characteristics are more like those of a detention facility than an “open” or “semi-open” residency center. For its part, the State does not dispute that Chapter D, by its current language, continues to restrict the constitutional right to liberty. However, it argues that the changes made in the Law reduce “the restriction imposed upon the resident’s ability to realize his liberty substantially, such that the obligation to stay there in a manner that infringes the right to liberty is only at night…”. The State further argues that “Chapter D does indeed restrict the right to liberty and thus infringes it. However…the Petitioners’ claim that staying in the residency constitutes a denial of the right to liberty should not be accepted” (para. 103 of the State’s response).

59.       Indeed, changes were introduced into the current language of Chapter D in comparison to its former language. However, while these changes reduce the infringement of the right to liberty, the infringement still exists. The obligation to remain in the residency center is still not given of the resident’s free choice. As such, it infringes the residents’ freedom of movement, as well as amounting to an infringement of their right to liberty. This infringement is reinforced in view of the requirement that the residents of the center report for registration in the evening, and remain there during the night, and in view of the prohibition upon their working outside of its confines. As was held in the Eitan case, every arrangement that forces a person to stay in a particular place, and that requires him to stay there even for part of the day, naturally comprises an infringement of his right to liberty:

Infringement of the right to liberty…is inherent to every facility in which one’s presence is not voluntary. Open residency centers that are not entered voluntarily as a matter of the resident’s free choice, and that require the resident’s presence even if only for part of the day – infringe the right to liberty by their very nature. In the matter before us, the State does not dispute that the residency center restricts the right to liberty, but rather, as noted, it distinguishes between denying the right to liberty and limiting it. I find no virtue in this distinction in regard to the infringement of the right. As A. Barak noted, “Limiting a constitutional right means violating it. Basic Law: Human Dignity and Liberty employs the term ‘violates’ (‘There shall be no violation of rights under this Basic Law…’). As opposed to this, the Canadian Charter and most other modern constitutions employ the term ‘limits’. In my opinion, there is no distinction between the two (Proportionality in Law, p. 135). And as Barak explains:

“The limitation or violation occurs in every situation in which a governmental authority prohibits or prevents the holder of a right from realizing it to its fullest. In this regard, the question of whether the violation is great or small is of no importance, whether it is at the core of the right or its dim edges, whether it is intentional or not, whether it is by action or by omission (where there is a positive duty to protect the right), every violation, regardless of its scope, is unconstitutional unless it is proportionate (ibid., at pp. 135-136)” (ibid., para. 117, emphasis added – M.N.).

So it is in the matter before us, as well. As a rule, the difference between a violation of freedom of movement and a violation of the right to liberty is in the extent of the violation and its force (Ophelia Field, U.N. High Commissioner for Refugees, Div. of Int’l Protection Servs., Alternatives to Detention of Asylum Seekers and Refugees 2, 11-2 U.N. DOC POLAS/2006/03 (April 2006); Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) at 23–25 (¶¶92–95) (1981) (hereinafter: the Guzzardi case); and see: Department of Economics and Social Affairs, Study of the right of everyone to be free from arbitrary arrest, detention and exile (United Nations publication, Sales No. 65.XIV. 2), ¶21)). The changes made in the Law – like the reduction of the requirement of presence, and the restriction upon the length of residency in the residency center – reduced the extent of the violation of constitutional rights. However, it cannot be said that the violation has been so reduced as to leave only the imposition of limits upon freedom of movement.

60.       To summarize this aspect, the current language of Chapter D still significantly infringes the rights of the residents of the residency center – particularly their liberty. That being the case, we must examine whether that infringement can meet the criteria of constitutional review, to which I will now proceed.

 

The Purposes of Chapter D

61.       From the explanatory notes of the Law and the responses of the Respondents we learn that the main purpose of Chapter D of the Law is to stop the permanent settling of the infiltrator population in the urban centers, and to prevent them from working in Israel. Alongside this, the Law is intended to provide an appropriate response to the needs of the infiltrators. Another declared purpose is the creation of a normative block to potential infiltrators.

62.       The Petitioners’ main argument is that the true primary purpose of the Chapter D of the Law is to “break the spirit” of the infiltrators and encourage them to leave Israel (and see: the Petitioners’ pleadings, paras. 4-6). This purpose, they argue, found expression in the deliberations on the bill. They argue that, in any case, reality demonstrates that, in practice, sending infiltrators to the Holot residency center breaks their spirit and leads to their leaving Israel. The Petitioners are of the opinion that the desire to encourage departure from Israel is not a proper purpose, particularly when the efforts are directed at a group of people who cannot be deported. The desire to prevent the infiltrators from settling in the urban centers is also not a proper purpose in their view. The purpose is improper whether it is intended to prevent long-term residence in Israel, or whether it is intended to distance these people from society. Lastly, the Petitioners argue that deterrence is also not a proper purpose.

63.       The Respondents – both the State and the Knesset – are of the opinion that these purposes are proper in that they are “intended…for the benefit of realizing clear societal interests concerning the sovereignty of the State of Israel and its ability to confront the consequences attendant to tens of thousands of infiltrators settling in its cities…” (para. 178 of the State’s response).

 

Preventing Settling

64.       The purpose of preventing infiltrators from settling was addressed in the Adam case, as well as in the Eitan case. In the Adam case, Justice E. Arbel was of the opinion (in the course of addressing the arrangement for detention) that this is a proper purpose. In her view, the state has the “right to decide its immigration policy, which derives from the sovereign character of the state”, from which “even its right to establish measures to confront illegal immigrants, assuming they have not been recognized as refugees” also derives. She was ready to “deem as an important societal objective, the state’s desire to prevent negative consequences…to thwart the possibility of infiltrators to freely establish themselves in any place in the State of Israel, integrate into the labor market, and force the local public to contend with the entry of infiltrators to its midst, with all that it implies” (ibid., para. 84). As opposed to this, in the same case, Justice U. Vogelman was of the opinion that “the question of whether the law’s purposes meet the proper-purpose test, as set out in the case law, raises difficulties”, but he left the matter to be addressed in due course (ibid., para. 19; and see: the Eitan case, para 103). The remaining justices concurred in the opinions of both Justice E. Arbel and Justice U. Vogelman. Therefore, the Adam case did not decide this issue, with the majority preferring to leave the question of whether the purpose was proper for future deliberation in due course.

65.       The question of whether preventing settling is a proper purpose was also left undecided in the Eitan case. Justice U. Vogelman again refrained from deciding the question of proper purpose “against the problem raised”, in his words, “by a purpose concerning the separation of one population from another” (para. 103). Most of the justices – both those who concurred in Justice Vogelman’s majority opinion, and those dissenting – did not address this purpose. Justice S. Joubran was of the opinion that this purpose “in and of itself, is not illegitimate”, noting “that the state’s desire to prevent the settling of infiltrators in the cities is one of the expressions of the immigration policy. This policy inherently involves restrictions of certain basic rights…but this restriction itself does not deny its being a proper purpose. Vital interest underlie this policy. The purpose of these interests expresses protection of society from the negative consequences that may result from the infiltration phenomenon. I view this purpose to be proper […]” (ibid., paras. 7-8). I also noted there (para. 5 of my opinion) that creative solutions are needed to solve the problem of the distress of the residents of south Tel Aviv, such as the orderly delineation of the areas of residence of infiltrators.

66.       Neither the Adam case nor the Eitan case unequivocally found that preventing settling in the urban centers is a proper purpose. It was expressly recognized as such by Justice (Emerita) E. Arbel and Justices N. Hendel and S. Joubran. I also expressed support for adopting means for realizing that purpose. I would propose to my colleagues that we now expressly hold that preventing settling in the urban centers is a proper purpose, for the reasons that I will now present.

67.       The Eitan case noted that many of the infiltrators live in the city of Tel Aviv-Jaffa (particularly in its southern neighborhoods), and that the rest live primarily in Eilat, Ashdod, Ashkelon, Beer Sheba, Petach Tikva, Rishon Lezion, and Ramle (para. 29). The situation created in those aforementioned cities raised – and continues to raise – not inconsequential problems. In my opinion, there if no defect in a law that seeks to reduce those problems by dispersing the infiltrator population. In the Eitan case, I noted, as aforesaid, that it is not wrong for the state to adopt means that would lead to the dispersal of the infiltrators and to easing the burden on Israel’s urban centers.

68.       International law recognizes the challenges posed by the arrival of aliens in a state, and as noted, permits it to adopt various measures – among them measures that restrict their freedom of movement and liberty – in the framework of confronting those challenges (secs. 26 and 31 of the Refugee Convention; also see sec. 9 of the Convention, which establishes a derogation clause that permits states to adopt various measures against asylum seekers in exceptional situations, among them measures that may limit their freedom of movement (Commentary to the Refugee Convention, p. 789)). As described above, the restriction of liberty must serve a lawful purpose, and it must be employed only when necessary.

69.       The purpose of preventing settling in the urban centers – which concerns easing the burden upon the urban center in which there is a significant concentration of aliens – is consistent with these criteria, and accords with the rules of international law. The interest in preventing the concentration of asylum seekers in certain cities stood at the base of various measures that restrict the freedom of movement of asylum seekers in Norway (see: UNHCR, Alternatives to Detention, p. 165), Switzerland (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Switzerland, at 52, AIDA Doc. (17.2.2015) (hereinafter: Switzerland)), Germany (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Germany, at 62, AIDA Doc. (January 2015)), and Kenya (see: Kitu Cha Sheria v. The Attorney General [2013] eKLR (H.C.K.) (Kenya) (hereinafter: Kitu Cha Sheria); Samow Mumin Mohamed v. Cabinet Secretary, Ministry of Interior Security and Co-ordination [2014] eKLR (H.C.K.) (Kenya) (hereinafter: Mohamed); Coalition for Reform and Democracy (CORD) v. Republic of Kenya [2015] eKLR, paras. 401-403 (H.C.K.) (Kenya)). Even the U.N. Commission for Refugees – in its comments upon the bill for the Law that is the subject of these proceedings – recognized that dispersal of the asylum-seeking population among various cities is necessary in order to ease the burden upon the cities in which the infiltrators have concentrated (see: Appendix P/10 of the petition).

70.       The European Union’s directive regarding the reception of asylum seekers (Council Directive 2003/9, 2003 O.J. (L31) 18 (EC)) adopts a similar approach. Despite the fact that, as a rule, asylum seekers are granted freedom of movement within the state in which they are staying, art. 7 of the directive establishes that states may establish geographic areas in which asylum may reside, and at times, even specific places of residence:

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.

4. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation.

5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 4 and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

6. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible. (Emphasis added – M.N.)

 

Adopting means for deciding the place of residence of asylum seekers is therefore proper, as long as it is related to public interests, public order, or the need for the swift and efficient processing of applications for asylum. A revision to this directive was recently published, in the framework of which similar provisions were applied to anyone submitting an application for international protection of any kind (Directive 2013/33, 2013 O.J. (L180) 96 (EU)).

71.       The European policy established under the directive and its revision has been the subject of criticism, inter alia, due to the broad discretion that it allows states in its implementation (Commentary to the Refugees Convention, pp. 1161-1163), and because it permits the imposition of restrictions upon freedom of movement for considerations of public order even if they do not meet a necessity test (UNCHR Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast) 14 (2015) (hereinafter: UNCHR Comments to EU 2013 Directive). However, the current commentary to the Refugee Convention noted that it is possible to justify the European policy if it is implemented in situations in which there is a pressing need to do so, such as circumstances of “mass influx”:

[Article 7] can, however, […] be regarded to be in accordance with Art. 26 of the 1951 Convention if it is restricted to situations of a mass influx, or to the procedural situation of investigating the identity of, and possible security threat poses by, an individual seeking recognition of refugee status. (ibid., p. 1164; emphasis added – M.N.)

In its response to the revision to the directive, the U.N. Commission for Refugees presented a similar stand (UNCHR Comments to EU 2013 Directive, p. 14):

UNHCR recognises that there are circumstances, however, in which the freedom of movement or choice of residence of applicants for international protection may be needed to be restricted, subject to relevant safeguards under international law.

72.       International law thus recognizes that measures that restrict the freedom of movement and at times, even the liberty of asylum seekers may be adopted in exceptional circumstances (compare: Commentary to the Refugees Convention, p. 790; UNCHR Comments to EU 2013 Directive, pp. 20-21). This is permitted for public purposes, among them alleviating the burden on urban centers in exceptional circumstances such as “mass influx” of asylum seekers (and see: Commentary to the Refugees Convention, pp. 789-790; Hathaway, p. 420); Goodwin-Gill and McAdam, p. 465; on the exceptionality of these circumstances, also compare the European directive in regard to temporary protection in the event of mass influx: Council Directive 2001/55, 2001 O.J. (L212) 12 (EC); for an analysis of the directive, see the Asafu case, para. 26).

73.       If we view the Israeli legislation through the lens of international law, we can distinguish a situation in which the state is confronted with a situation that, on its face, justifies adopting liberty-limiting measures. As presented above, over the last decade the State of Israel has been contending with a large number of people who entered its territory illegally, and who, at the present time, it is unable to remove. A significant part of them are concentrated in specific geographic areas, particularly south Tel Aviv. In my opinion, under these circumstances, there are no grounds for intervening in the State’s position that there is a vital need to prevent the infiltrators from settling in the urban centers. One can even say that such a situation constitutes “mass influx” that requires the implementation of appropriate measures. “Mass influx” is not only measured quantitatively, but also relatively, inter alia, giving consideration to the state’s resources, and specifically its asylum system and its capabilities (Goodwin-Gill and McAdam, Refugee, p. 335).

74.       The purpose of preventing settling in urban centers would also appear to be consistent with the state’s right to design its immigration policy and choose to whom to grant status in Israel. This right derives from the principle of state sovereignty (the Adam case, para. 84). However, that right is not absolute, and it is subject to the state’s obligation to aliens, among them refugees and asylum seekers. This view is also accepted in our constitutional system. As is well known, a person is not deprived of basic human rights even if he enters the country illegally. Therefore, not every legislative arrangement intended to serve the immigration policy will be consistent with constitutional criteria (see and compare: the Al Tai case, p. 848). Nevertheless, this does not mean that such an arrangement will necessarily be annulled due to its purpose (see and compare: the Adalah case, p. 412).

75.       In conclusion, it is my view that under the present circumstances, preventing settling in the urban centers is a proper purpose.

 

Preventing the Infiltrators from Earning in Israel

76.       The Respondents argued that erecting the residency center is also intended to serve the purpose of preventing the infiltrators from earning income in Israel. However, although the residents of the center are not permitted to work, it would seem that this purpose is, at most, attendant to the primary purpose of preventing the infiltrators from settling in the urban centers. This conclusion is reinforced by the fact that the provisions regarding work and earning by infiltrators are primarily found in Chapter B of the Amendment, which was not challenged in the petition before us. The Petitioners themselves did not specifically address this purpose and did not present concrete arguments as to the constitutionality of the provision prohibiting residents of the residency center to work outside of the center. This being the case, I see no reason to decide the complex question (compare, inter alia, the response of the U.N. Commission for Refugees to the bill, Appendix P/10 of the petition) of whether this purpose is proper.

 

Preventing a Resurgence of Infiltration to Israel

77.       According to the State, another purpose of the Law is the creation of a “normative block” to the arrival of potential infiltrators to Israel. The State is of the opinion that this purpose, in and of itself, is proper. I addressed the purpose of deterrence in the framework of my discussion of sec. 30A of the Law. I found, as I noted in the Eitan case, that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). However, as I noted, when there is a proper purpose for restricting or infringing individual rights, there is no flaw in the legislature’s considering a subsidiary, attendant purpose of deterrence. This is the case before us. Having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect.

 

Responding to the Needs of the Infiltrators

78.       According to the State, another purpose grounding the Law is providing a response to the needs of the infiltrators. This purpose was acknowledged to be proper in the Eitan case, which held: “A law whose purpose is the erecting of an open residency center intended to meet the needs of the infiltrators is a law intended for a proper purpose” (ibid., para. 104). I am in complete agreement with that conclusion, and I see no need to say more. There can be no doubt that such a social purpose is proper. Similarly, other countries have established residency centers intended to provide shelter and basic rights for asylum seekers who cannot provide for themselves (for a detailed discussion, see ibid., paras. 133-134). However, we should not ignore the fact that, in practice, the infiltrators do not consider the Holot residency center to be meeting their needs. I will address this below.

 

A “Hidden” Purpose – Encouraging Voluntary Emigration

79.       The Petitioners’ main argument is, as noted, that the true purpose of the residency center is to “break the spirit” of the infiltrators and encourage them to leave Israel “voluntarily”, so to speak. This claim was also raised in the Eitan case, and Justice U. Vogelman left it to be decided in due course. The claim was denied before the Court in the responses of both the State and the Knesset. The matter also finds no mention in the Law or the explanatory notes. More importantly, in the oral arguments before the Court, the State’s attorney Adv. Yochi Genessin expressly declared that no actions have or will be taken for the purpose of encouraging the infiltrators to leave Israel:

President Naor: This is a motif that is nevertheless repeated in the petition. Are you willing to clearly state that no actions have or will be taken to break the spirit?

Adv. Genessin: Certainly, most certainly (emphasis added – M.N.).

80.       The Respondents pointed out that not every policy whose purpose is not “inclusion and absorption” is a policy intended to break the spirit of those people who have infiltrated into Israel. I accept that legal position. In this matter, it is not possible to determine that breaking the infiltrators spirit is one of the purposes of the Law. Infiltrators who cannot be deported have the right to remain in the territory of the state after completing their stay [in the residency center]. In its response and in the hearing before us, the State argued that the residency center provides a response to the needs of many of the infiltrators, above and beyond their basic needs, and that, inter alia, recreational activities, employment opportunities, professional training courses and more are offered. While the Petitioners presented a number of claims and criticisms in regard to the character of the residency center and the possibilities it afforded, they stressed that this subject is not the focus of their petition. Even assuming that there is room for improving the living conditions in the residency center – upon which I am not making a determination – it cannot be found, at present, that the current conditions actually cause infiltrators to leave Israel by breaking their spirit.

81.       I have, therefore, not found that the current Law is intended to break the spirit of the infiltrators. If this were the purpose of the Law, it would present a great difficulty. On its face, such a purpose would be improper in view of the fact that it would appear to undermine the principle of non-refoulement that prohibits deporting a person to a state in which there is a threat to his life of liberty. This is not to say that the state cannot remove infiltrators to a safe country. Removal of infiltrators to such a country is subject to various conditions intended to ensure that it is indeed a safe country, and that that country will not transfer the infiltrators to another country that is not safe (the Al Tai case, pp. 848-850; the Adam case; for foreign case law in this regard, see for example: Plaintiff M70/2011 v. Minister for Immigration and Citizenship [2011] H.C.A. 32; EM (Eritrea) v. Secretary of State for the Home Department [2012] EWCA Civ. 1336). Determining that the country is indeed safe is a complex question that does not arise in the matter before us.

82.       Along with the possibility of transferring any person – even against his will – to a safe country, a person is, of course, entitled to choose to leave Israel of his own free will, and even go to a country that presents a danger (the Eitan case, para. 109; sec. 1(c)4 of the Refugee Convention, according to which the Convention will cease to apply to a person who “[…] has voluntarily re-established himself in the country which he left or outside which he remained […]”; and see art. 12 of the International Covenant on Civil and Political Rights; Hathaway, pp. 953-961). A person’s free will is premised upon the principle of freedom of choice. This principle is expressed in sec. 1(c)(4) of the Refugee Convention in the “voluntariness” requirement (see: Hathaway, p. 960; UNCHR, Handbook: Voluntary Repatriation: International Protection (1996)). A free, voluntary decision to leave the country is one made “without external inducement and certainly without coercion of any kind” (Hathaway, p. 960). Voluntary repatriation that does not meet these requirements may expose the infiltrators to persecution in their country and constitute “constructive removal” in violation of the non-refoulement principle (for a discussion of constructive removal in the Israeli context, see: Christian Mommers, Between Voluntary Repatriation and Constructive Removal, or: The Activities of Israel to Promote the Return of South Sudanese Asylum Seekers, in Where Levinsky Meets Asmara 386 (2015) (Hebrew); for a discussion in regard to other countries, see Hathaway, pp. 319, 959-961; and compare the Mahmoud case, para. 26).

83.       The outcome of the above is that the state may not employ sanctions or any other means that might deny free will against groups of people subject to the non-refoulement principle in order to break their spirit. As quoted, the State’s attorney, Adv. Genessin, declared that no actions intended to break the spirit of the infiltrators would be employed in the residency center. The state is therefore obligated – as also arises from the declaration – to refrain from tying staying in the residency center to the issue of voluntarily leaving the country. Accordingly, no actions intended to bring about voluntarily departure from the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner. In particular, no such actions may be taken in the course of contacts between the infiltrators and administrative entities in the residency center, for example, when they seek medical attention, welfare assistance, an exemption from reporting in the residency center, and so forth.

84.       In summary, the result of this chapter is my conclusion that preventing infiltrators from settling in the urban centers, in the senses that I addressed, is a proper purpose. As noted, this conclusion is also consistent with the principles of international law. In view of this conclusion, I will now turn to an examination of the proportionality of the means adopted by the Law for realizing the said purpose.

 

Chapter D: Proportionality

85.       As is well known, an infringement of a right must be to an extent no greater than is required. “Proper purposes do not sanctify all means” (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, 694 (2006); HCJ 5100/94 Public Committee against Torture v. Government, IsrSC 53(4) 817, 845 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In the Eitan case, the majority held that Chapter D comprised a number of individual arrangements – such as the scope of the requirement to remain in the residency center and the length of the stay – that suffered from constitutional defects that affected the entire chapter (see, for example, ibid., para. 4 of my opinion). Here, too, I will first examine the primary individual arrangements established by the Law. In doing so, the reciprocal relationships between these arrangements will also be examined.

86.       I will state my conclusion in advance: I have not found any grounds for intervention in the Director’s authority to order an infiltrator to the residency center. I also find no defect in the Law’s provisions arranging the method of operating the residency center and the daily life of the infiltrators staying there. The only arrangement that, in my view, is tainted by a constitutional defect is that establishing a twenty-month maximum period for holding a person in the residency center. In my opinion, this period of time violates the constitutional rights of the infiltrators to an extent that is greater than required.

 

The Director’s Authority to order that an Infiltrator stay in the Residency Center and its Scope

87.       Like Amendment 4, the Law now under review authorizes the Director to order that an infiltrator stay in the residency center. The current language of the Law limits this authority in two ways. First, it establishes that the Director can issue such an order for a period that shall not exceed twenty months. Second, it establishes that the Director is not permitted to issue such an order to vulnerable populations, such as minors, victims of human trafficking, or people with families (sec. 32D(b) of the Law). In addition, the Law establishes grounds for release, among them a change of circumstances or medical reasons (secs. 32D(g) and 32E(c) of the Law). The previous law did not expressly restrict the Director’s authority in these ways. The question before us is whether – in light of the changes introduced in regard to the scope of the Director’s authority – this authority passes the tests for constitutionality.

 

A.The Rational Connection Test

88.       The first test is the rational connection test, which examines whether the chosen means are appropriate to achieving the law’s purpose and rationally lead to its realization (see: the Nir case, para. 23; Barak-Proportionality, pp. 373-374). Do the arrangements under review meet this test? The Petitioners’ main argument is that the period of up to twenty months does not realize the legislative purposes. As opposed to this, the State is of the opinion that while staying in the residency center may only prevent settling for a limited period, the purpose is effectively achieved during that period.

89.       In the Eitan case we held that issuing an order to stay in the residency center that is not limited in time meets the rational connection test. We noted that the order permanently disengages the infiltrator from the area in which he established himself, and makes it difficult for him to continue his employment (ibid., para. 158). The question that must be asked is whether an analogy should be drawn from that holding to the matter before us in which the period of the stay in the residency center is, as noted, limited to a defined period. In my opinion, the answer is yes. First, there can be no doubt that while staying in the residency center, the infiltrator is unable to establish himself in the urban centers, inasmuch as his habitual residence is in the residency center. Thus, during the period of the stay, the Law’s purpose is fully realized. Moreover, disengaging the infiltrator – even for a defined period – can influence his ability to return and reestablish himself in the urban centers. Even disengagement for a limited period has not-inconsequential effect on way of life (see and compare the data submitted by the Petitioners themselves in this regard: paras. 138-140 of the petition, and the affidavits appended as Appendix 13). In addition, Eitan - Israeli Immigration Policy Center – which sought to join the petition – appended to is request a number of affidavits by residents of Tel Aviv’s southern neighborhoods who state that the effect of the means adopted by the State can be seen on the ground. According to them, since the implementation of the new policy, the situation has significantly improved (p. 2 of the affidavit of Ms. Shefi Paz, a social activist who is a resident of the Shapira neighborhood, and see: the affidavit of Mr. Oved Hugi, Chair of the Tel-Haim Council; the affidavit of Mr. Haim Meir Goren, a resident of the Shapira neighborhood).

90.       In any case, even if a limited stay does not fully achieve the Law’s purpose, it is not necessary that the chosen means fully achieve the Law’s purpose (see and compare: the Nir case, para. 24; Barak-Proportionality, pp. 376-382; the Adalah case, p. 323). We should bear in mind that underlying Chapter D was the desire to ease the burden borne by a number of Israeli cities that are a magnet for infiltrators. Under these circumstances – and upon the reasonable assumption that after infiltrators are released from the residency center, other infiltrators will enter to replace them – I am of the opinion that limiting the stay of a particular infiltrator to a particular period of time is consistent with the purpose of the Law.

91.       Inasmuch as according to the Petitioners the maximum number of infiltrators that can be held in the residency center constitutes a marginal percentage of the total infiltrator population, the petition casts doubt whether the residency center will have a real influence over their settling as a group. However, this argument ignores the fact that the Law allows for increasing the capacity of the Holot residency center and for establishing additional residency centers. Accordingly, the State declared that the existing center serves as a “pilot”. Against this background, we can state that the provision under review meets the first proportionality test. This Court expressed a similar view in the prior proceedings (see: the Eitan case, para. 128; and see: the Adam case, para. 97). However, it is not impossible that with time or changes in circumstances, it will be possible to revisit this issue. “[…] the rational connection must continue throughout the entire life of the law. The question of constitutionality accompanies the law through its entire life. It is examined at all times in accordance with its results (Barak-Proportionality, p. 385; HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, para. 60 of the opinion of Justice E. Arbel (June 4, 2013) [http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-... HCJ 9333/03 Kaniel v. Government, IsrSC 60(1) 277, 293 (2005)). Therefore, for the present, the said means achieve the primary purpose of Chapter D.

92.       To a certain extent, staying in the residency center also achieves the attendant purpose of deterring potential infiltrators. It may, of course, be assumed that infiltrators fleeing for their lives will not refrain from entering Israel, despite the possibility of being placed in the residency center. However, it is reasonable to assume that those infiltrators who have set themselves the objective of settling in the intended state and earn a living there will take the period of residence in the residency center into account among their considerations (see and compare: the Eitan case, para. 58; the Adam case, para. 98; and see: UNCHR, Legal and Protection Policy Research Series, Back to Basics: The Right to Liberty and Security of Person and “Alternatives to Detention” of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, p. 2, PPLA/2011/01.Rev. 1 (April 2011) (prepared by Alice Edwards)).

93.       The purpose of providing a response to the needs of the infiltrators is a desirable purpose. But, as noted, I am not convinced that it is realized by the means chosen by the legislature. As is well known, staying in the residency center is imposed upon those residing there, without any certainty that they actually require assistance (see and compare: the Eitan case, paras. 105-106; Kitu Cha Sheria, para. 82). In any case, there is no need to expand upon this inasmuch as, as noted, the residency center realizes the main purpose for which is was erected.

 

2. The Less Restrictive Means Test

94.       In my opinion, the means under review – requiring that an infiltrator stay in the residency center for up to twenty months – also meets the less restrictive means test. In the Eitan case the Court held that a residency order for an indeterminate time (or a period limited to three years) constitutes a less restrictive means inasmuch as no other means would realize the Law’s purposes as effectively (ibid., para. 159). That conclusion also applies to this case, in which we are concerned with a residency order limited to twenty months. Other means proposed by the Petitioners – like a voluntary residence center – would not achieve the Law’s purpose as effectively. It may be assumed that a person who has already established himself in a particular place in Israel will not voluntarily choose to leave it and move to the residency center (see and compare: ibid., paras. 129, 181). Indeed, the legislature is not required to adopt the means that is the very least restrictive when adopting that means would lessen the possibility of achieving the purpose (Barak-Proportionality, p. 500; the Eitan case, para. 130).

 

The Proportionality Stricto Sensu Test

95.       The third proportionality test – proportionality stricto sensu – examines whether the legal provision strikes a proper balance between the social benefit produced by the law and the harm resulting from its infringement of constitutional rights (Barak-Proportionality, p. 413; the Gurevitz case, para. 58). In the Eitan case, the Court held that the absence of a limit upon the length of residence and the lack of grounds for release lead to the conclusion that Chapter D was entirely void (para. 195). As described above, these requirements received some response in the current Law. Does that alter the harm-benefit relationship?

96.       As described above, the changes in the Law reduced the harm to constitutional rights. Clearly, the twenty-month period established under the current Law infringes the rights of the infiltrators to a lesser degree in comparison to the longer period established in the prior law. Similarly, keeping a person in the residency center for a limited period – as opposed to an indeterminate period (or a period that can be extended for an indeterminate time) – lessens the intensity of the infringement of his rights, inasmuch as it creates certainty as to the release date. In addition, the Law includes a number of provisions that limit the Director’s authority to issue a residency order and set its length, and which outline an administrative apparatus through which he must make his decision. First, under the Law, the Director must make two separate decisions. He must first decide whether a residency order should be issued in regard to a specific infiltrator. If he decides that an order should be issued, he must – at the second stage – decide upon the period of time that the infiltrator will reside in the center. Second, the twenty-month period is not a default position, but rather the upper limit of the Director’s authority. This derives from the express language of the Law, which establishes that the residency period will be “[…] no more than the 20 months stated in sec. 32U (emphasis added – M.N.). We are therefore concerned with a system that requires an individual examination of each infiltrator. This system is appropriate and should be maintained. Third, the Director must grant the infiltrator a hearing in which he can present his arguments prior to the issuance of a residency order and before the setting of the period of residency (sec. 32D(d) of the Law; and see: AAA 2863/14 Ali v. Ministry of the Interior – Population and Immigration Authority (Aug. 10, 2014 and Oct. 2, 2014)). Lastly, the procedure for issuing the residency order and setting its time is individual. The Director must exercise his authority and his discretion in accordance with the personal circumstances of each infiltrator (compare: Kitu Cha Sheria, paras. 62 and 87; and see Mohamed, para. 24). In this framework, he must consider relevant information, bearing in mind the purpose of the Law and the scope of the expected harm to the infiltrator (see and compare: AAA 1758/10 Israel Bar Assoc. v. Sagi, para. 12 (Aug. 15, 2011); the Al Tai case, p. 848; Itzhak Zamir, The Administrative Authority, vol. II, 119-130 (2^nd ed., 2011)). Against this background, the statement made by the State’s attorney in the hearing before us – according to which, at present, all infiltrators are issued a twenty-month residency order – is not consistent with the Law and is contrary to its purpose.

97.       While it is hard to disagree – particularly in light of the above – that Chapter D’s current infringement of the constitutional rights of the infiltrators to liberty is of lesser intensity than it was under its prior language, that is not the end of the road. Even when the legislature adopts a less harmful arrangement than the previous one – a situation referred to as a “benefitting statute” – the Court is not relieved of its duty to examine the constitutionality of such a law that infringes constitutional rights. As held in the Tzemach case:

… the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw. Sometimes, an amending statute combines beneficial provisions with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do not may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits [at p. 260; and see: the Eitan case].

Indeed, we are concerned with an arrangement that the legislature adopted after the Court annulled a previous arrangement for unconstitutionality. However, that does not exempt the Court from examining the new Law in accordance with the accepted constitutional criteria. That is what this Court did in the Eitan case in regard to sec. 30A of the Law, and that is what we must do now in regard to the provisions of Chapter D of the Law. I will begin by stating that despite the appropriate changes made in Chapter D – as a result of which most of the provisions now pass the constitutional tests – I am of the opinion that the maximum period established for staying in the center is unconstitutional. It does not appropriately balance the benefit of the Law and the serious harm to the rights of those staying in the residency center. As a result, it does not meet the third proportionality test. I will now explain in detail.

98.       As noted, this Court held that even holding an infiltrator in the residency center for a limited period of time constitutes an infringement of his right to liberty. “An infringement of the right to liberty…is inherent to any facility in which a person’s presence is not voluntary. Open residency centers that one does not enter voluntarily in accordance with the resident’s free choice, and which requires the resident’s presence even if only for part of the day, inherently infringe the right to liberty” (the Eitan case, para. 117). An infiltrator who is the subject of a residency order must abandon his lifestyle, his work, his place of residence, and his family and acquaintances. His day is organized in accordance with the rules of the residency center, and he is not free to live his life in an independent, autonomous manner. “[…] and all of this, not as punishment for his infiltration, or for the purpose of realizing his deportation, but for the purpose of ‘preventing him from settling in the urban centers and integrating himself into the labor market” (ibid., para. 150). This infringement is intensified in regard to some of the infiltrators in view of the trials and travails they experienced in their countries of origin and on their way to Israel (the Adam case, para. 112). This Court added that the longer the period of time during which a person is deprived of liberty, the greater the intensity of its infringement, “[…] such that a person is required to increasingly relinquish more of his desires and hopes. His personal identity and his unique voice are submerged in a regimented, grinding daily routine” (the Eitan case, para. 154).

99.       Against this background, it was held that setting an upper limit for being held in a residency center is insufficient. That limit must also be proportionate (see: ibid., para. 162). Liberty is the basic foundation of a person’s life and existence. Denying it, even for a day, significantly infringes his rights (compare: ibid., paras. 152-153). Weighing the serious infringement of the infiltrator’s rights against the benefit deriving from the Law has led me to the conclusion that a period of twenty months is too long a period for holding infiltrators under liberty-limiting conditions of the type under examination. We should bear in mind that we are speaking of infiltrators who cannot be deported from Israel, and who do not present a concrete threat to the security of the state or the lives of its citizens. Their only sin is illegally crossing our borders, for which the state may not punish them (see and compare: sec. 31(1) of the Refugee Convention). While infiltration is an unwanted phenomenon, and solutions should be found for the residents of Israel’s cities, these are not the only considerations. A solution that involves denying people’s rights for such long periods of time is disproportionate.

100.     At this point, on the basis of all the above, I will return to the main purpose of the Law – preventing settling in urban centers. This purpose does not focus upon an individual infiltrator or a threat that he poses to society. It concerns the need to ease the burden upon the urban centers and their residents, in general. I am of the opinion that realizing this purpose does not require holding any particular infiltrator in the residency center. It is sufficient that a group of various infiltrators be held in the residency center. Indeed, it is to be assumed that when one infiltrator is released from the residency center, another infiltrator will take his place. I am of the opinion that this turnover between the infiltrators staying in the residence center and others from outside realizes the purpose of the Law. It is sufficient that at any given time, part of the infiltrator population – according to the capacity of the Holot facility and other facilities that the state intends to erect – is removed from the urban centers. This “revolving door” approach infringes the constitutional rights of the infiltrators placed in the residency center to a lesser extent, while achieving the legislative purpose. It is therefore possible to suffice with a significantly shorter period for staying in the residency center while still realizing the Law’s purpose.

101.     The lengthy period established by the Law has no parallel in comparative law. A comparative examination must, of course, be conducted cautiously in view of the cultural and social differences that may influence the comparison (see: the Eitan case, para. 72 and the references there). Nevertheless, “we should bear in mind that democratic states share common basic values. One can learn from another. Comparative law allows us to broaden our horizons and acquire interpretive inspiration […]” (ibid.). A comparative survey reveals that staying in residency centers of various types is voluntary in most countries. In certain countries, asylum seekers are required to stay in a residency center as an alternative to detention, but this is only for periods of a few months. It is also important to note that in some countries there is a trend toward shortening the periods for imposed residence in residency facilities of various kinds, and of reducing the restrictions upon freedom of movement. Thus, for example, while asylum seekers in Germany and Switzerland are required to stay in a reception center upon arrival in the country, the period of that stay is only three months (Asylverfahrensgesets [Asylum Procedure Act] Nov. 22, 2011, BGBI. I S 2258, Art. 47) (hereinafter: Germany, Asylum Procedure Act); Art. 16 al. 2 Ordonnance 1 sur l’asile relative à la procedure).

102.     After that period, remaining in the reception center is not required, but in Germany it constitutes a condition for obtaining social benefits (Germany, Asylum Procedure Act, Art. 47, Art. 60 para 2 Nr. 1, Art. 85 para 3 Act; Oberverwaltungsgericht [OVG] Freie Hansestadt Bremen [Higher Administrative Court of Bremen], 01.10.1993 - 1 B 120/93, beck-online). In the Netherlands, an asylum seeker is permitted to stay in an open residency center on the basis of economic need for as long as his request is being processed. An asylum seeker staying in such a center is free to leave the facility, but he must report to the authorities weekly (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, the Netherlands, at 43-46, AIDA Doc. (16.1.2015)). There are open residency centers intended for social needs in Belgium and Finland, as well. Asylum seekers residing in them enjoy full freedom of movement (see: European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Belgium, at 68, AIDA Doc. (28.2.2015) ; MAAHANMUUTTOVIRASTO: The Finnish Immigration Service, http://www.migri.fi/asylum_in_finland/reception_activities/ reception_centers). There is no requirement to remain in a reception center in Hungary, Poland or Ireland, but staying in a residency center is a condition for receiving social benefits (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Hungary, at 14, AIDA Doc. (17.2.2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Poland, at 5, AIDA Doc. (January 2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Ireland, at 50-51, AIDA Doc. (1.2.2015)). There is also no requirement for remaining in residency centers while asylum requests are processed in France, but more than a five-day absence may lead to a denial of eligibility for pocket money (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, France, at 57, AIDA Doc. (26.1.2015); L348-2 Code de l'action sociale et des familles).

103.     In Italy, staying in the facilities – for a maximum period of twelve months – is viewed as a benefit (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Italy, at 15, 53, AIDA Doc. (January 2015) (hereinafter: Italy)). Not reporting to the facility without permission will lead to the resident’s loss of his place in the facility (ibid., p. 66). In Malta, as well, staying in the open facilities – limited up to the issuance of a decision on the person’s asylum request, unless extended – is voluntary (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Malta, at 40, AIDA Doc. (February 2015) (hereinafter: Malta)). Although residents there enjoy freedom of movement, they are required to confirm residence by signing in order to continue to remain in the facility and receive the attendant social benefits (ibid., p.44). Staying in the residency centers in Croatia is voluntary, and is intended to provide the social welfare needs of the asylum seekers. Asylum seekers enjoy freedom of movement, but they are required to return to the center every day by 11:00 PM unless they have obtained permission for absence from the director of the center (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report,Croatia, at 44, AIDA Doc. (5.3.2015) (hereinafter: Croatia)). And also compare the situation in Lithuania, where asylum seekers may be held in reception centers as long as the processing of their asylum request continues (EMN Focussed Study 2013, The Organisation of Reception Facilities for Asylum Seekers in different Member States, National Contribution from Lithuania; The UN Refugee Agency [UNHCR], Integration of refugees in Lithuania: Participation and Empowerment (Oct. – Nov. 2013)).

104.     To complete the picture, we would note that even in countries in which it is possible, under certain circumstances, to hold asylum seekers in closed detention facilities, the period of restricting liberty does not generally exceed a few days, or at most, a period of a few months (see: the Eitan case, paras. 73-74; The Global Detention Project [GDP], The detention of Asylum Seekers in the Mediterranean Region, Global Detention Project Backgrounder (April 2015)). Some countries permit detaining asylum seekers in closed detention facilities or longer periods. In Malta, for example, most asylum seekers are placed in detention for a maximum period of twelve months (Malta, p. 47). Severe criticism has been expressed in this regard (see, for example: Daniela DeBono, ‘Not Our Problem’: Why the Detention of Irregular Migrants is Not Considered a Human Right Issue in Malta, in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, 146 (Marie-Benedicte Dembour & Tobias Kelly, eds., 2011). In Bulgaria, illegal migrants can be detained for a maximum of eighteen months. While, in general, Bulgarian law requires that asylum seekers not be held in detention, in practice, a person who does not manage to file an asylum request at the border will be arrested (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 34-35, AIDA Doc. (31.1.2015); recently, a bill was introduced to permit a general detention regime in closed facilities for all asylum seekers (ibid., p. 48)). Similarly, Cyprus permits the detention of an asylum seeker for a maximum period of eighteen months, which can be extended in certain cases (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 64, AIDA Doc. (February 2015)). However, there is a trend toward shortening the periods of detention even in some of these countries. Thus, while Greece permits detention for the relatively long period of eighteen months, the government recently announced that the period would be reduced to six months (for the Greek government’s announcement of Feb. 17, 2015, see: http://www.mopocp.gov.gr/index.php?option=ozo_content&lang=&perform=view... (in Greek); Asylum Information Database [AIDA], An end to indefinite immigration detention in Greece?, http://www.asylumineurope.org/news/16-02-2015/end-indefinite-immigration... for the criticism of detention in Greece by the U.N. Commission on Refugees, see The UN Refugee Agency [UNHCR], Greece As A Country Of Asylum – UNHCR'S Recommendations (April 2015)). Similarly, until recently, Italian law permitted a maximum detention period of eighteen months, but in November 2014 that period was shortened to four months (Italy, pp. 72-73). In Croatia, where aliens could be held for a period of up to eighteen months, it has been established that aliens who have submitted a request for asylum may be detained for a period of only three months, which can be extended for an additional three months under certain circumstances (Croatia, p. 53).

105.     Moreover, the reception centers in various countries are generally intended for such purposes as initial identification of those entering the territory, assessing asylum requests or exhausting avenues for deportation (for a broad discussion of this subject, see: the Eitan case, para. 163; STEPS Consulting Social study for European Parliament, The conditions in centers for third country national (detention camps, open centers as well as transit centers and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states, IP/C/LIBE/IC/2006-181, 193). To the best of my knowledge, no western country maintains residency centers that are not voluntary for asylum seekers of other migrants with the purpose of population dispersal. That objective is generally achieved by other means (see, for example, what is done in Norway, Switzerland and Turkey: UNHCR, Alternatives to Detention, at p. 165; Switzerland, at p. 71; Asylum European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Turkey, AIDA Doc. (18.5.2015); it should be noted that Turkey recently adopted regulations that arrange the status of aliens who enjoy temporary protection from deportation, see ibid., pp. 65-74). In addition, many countries distinguish among different groups of infiltrators that cannot be deported in regard to the restrictions upon their liberty (see, for example: Eur. Comm’n, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries 75, E.U. Doc. HOME/2010/RFXX/PR/1001 (Mar. 11, 2013)). As a rule, the distinctions are based upon the reasons for why a particular infiltrator cannot be deported from the country. As a result, there are differences in the scope and type of restrictions imposed upon the liberty of asylum seekers and those who are entitled to international protection as opposed to other aliens. The arrangement under our review does not comprise such distinctions, but rather relates inclusively to all infiltrators for whom there is a problem in regard to deportation. I would emphasize that this is not to say that infiltrators cannot be held in residency centers for the purpose of easing the burden upon the cities. As already stated, my opinion is that this may be done. However, the above does hold implications for the reasonable, proportionate period of time that they may be held.

106.     Undeniably, the conditions for residence in the residency center have been improved, but not sufficiently. As was held in the Eitan case: “…a proportionate normative arrangement must preserve a proper relationship between the extent of the limitation of rights in the facility and the length of the maximum stay there, such that the more severe the limitation upon basic rights, the shorter the imposed stay in the facility” (ibid., para. 162). In the matter before us, the maximum period for holding a person in the residency center does not take into account the scope of the limitations imposed by the current language of the Law on the liberty of the infiltrators staying in the center. Those staying in the center are still subject to a strict disciplinary regime and to the authority of the employees of the Prisons Service (sec. 32C of the Law). In the Eitan case we held that while the administration of the center by employees of the Prisons Service does not constitute an independent infringement of the right to liberty and the right to dignity, it reinforces the infringement of the rights of the infiltrators (ibid., paras. 138-146). To that we must add the enforcement powers granted to the employees of the Prisons Service – among them the power to detain, search and seize. The administration of the residency center by employees of the Prisons Service who are granted police enforcement powers thus increases the infringement of the right to liberty of those staying there. It amplifies the imbalance between the severe infringement of the rights of the individual and the benefit provided by the Law. Along with that, the Law expressly forbids those staying in the center from working outside of its precincts. Although the residents are given the opportunity to work the center, in practice the Law is implemented in a manner that significantly limits that possibility both in terms of the maximum scope of monthly employment hours and in terms of the salary paid for that work (see: Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015; Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2015). In its response, the State itself notes that the employment opportunities are limited and that there are not enough jobs for all of the infiltrators staying in the center (paras. 77-78). As a result of the imposition of these restrictions, the infringement of the liberty of the residents is intensified. Although the residents are currently permitted to remain outside of the center all day, in the absence of employment or a reasonable ability to earn a living, their ability to shape their existence is severely impaired. This is all the more so in view of the location of the residency center, which remains far removed from any populated area (see the Eitan case, para. 126).

            The net result of all of the above further supports the conclusion that the maximum period for holding infiltrators in the center is greater than necessary.

107.     As noted, the State argues that part of the constitutional defects in the previous version of the Law in regard to the residency center has been remedied in the present version. Two subsidiary arguments can be derived from this: One is that the Court should not intervene in these arrangements, while the other is that the Court should examine the proportionality of the maximum period for holding a person in the residency center under the amended arrangements. I will now address these arguments.

 

The Constitutionality of Additional Individual Arrangements and their Consequences

108.     The first arrangement that was amended concerns release from the residency center. Under the law that came under review in the Eitan case, the Director did not have the authority to release a person from the residency center. The Law now establishes grounds for release. Another arrangement concerns the requirement of reporting in to the residency center. While the previous law required that infiltrators staying in the center register three times a day, they are now required to do so only once. Due to the cancellation of the obligation to register in the afternoon, a resident of the center can now move about relatively freely throughout the day (see and compare: the Eitan case, para. 127). The cancellation of the requirement of registering in the morning saves the resident valuable time and allows him to leave the residency center without unnecessary delays. In my opinion, these changes make the reporting requirement proportionate.

109.     Another amended arrangement grants the Director authority – if one of the grounds specified in the Law is met – to order the transfer of an infiltrator to a detention facility. These grounds largely remain as they were in the previous law, primary among them the commission of disciplinary infractions – which concern the violation of the residency center’s disciplinary rules – as detailed in the Law. The Director is authorized to decide the length of the detention period imposed upon the resident of the center, subject to maximum periods prescribed by the legislature. Like the previous law, the periods of detention are set in relation to the number of infractions, their severity and the length of their continuation. However, the maximum periods for detention were significantly shortened. Thus, the shortest period is now set at fifteen days (as opposed to thirty days under the previous law), and the longest period is set at 120 days (as opposed to a year under the previous law).

110.     Unlike the previous law, the current version of the Law establishes an express mechanism for judicial review of the Director’s decision. In accordance with this mechanism, the detention order must be approved by the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of the resident’s detention (sec. 32T(g) of the Law). The Tribunal is required to examine whether there were grounds for transferring the resident to detention, and it may approve the order with or without changes or not approve it (sec. 32T(h) of the Law). This review is self-executing and automatic. It constitutes an inseparable part of the process of transferring a resident to detention, and validates it (see and compare: HCJ 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria, IsrSC 52(3) 346, 360-362; AAA 8788/03 Federman v. Minister of Defence, para. 12 (Nov. 5, 2003) (hereinafter: the Federman case); Yitzhak Hans Klinghoffer, Preventive Detention for Reasons of Security: AAA 1/80 Ben-Yosef (Green) v. Minister of Defence, 11 Mishpatim 286, 291 (1981) (Hebrew) (hereinafter: Klinghoffer)). This interpretive conclusion is supported by the Law’s provisions and their purpose, as well as by the position expressed by the Respondents, who made it clear in the hearing before us that, in their view, the judicial review exercised by the Tribunal is de novo review (and see: paras. 61-63, 168, 229-247 of the State’s response). Along with this, by virtue of sec. 4 of the Administrative Courts Law, 5752-1992 (hereinafter: the Administrative Courts Law), together with art. 22 of the Addendum to that law, the Tribunal’s exercise of its review power it subject to the provisions of that law. The Administrative Courts Law establishes, inter alia, that the court is an independent body that, in matters of judging, is subject to no authority other than the law (sec. 3). That law also establishes provisions in regard to procedures and rules of evidence (secs. 20-21). The law further establishes that hearings before the court will be public, that the parties are entitled to legal representation, and that they may submit evidence and ask that the court subpoena witnesses and order the disclosure of documents (secs. 25, 27, 28).

111.     The main hurdle that sec. 32T of the Law must clear is the third proportionality test – proportionality stricto sensu. I am of the opinion that the current version passes this test. As noted, the enforcement mechanism established under sec. 32T of the Law grants effective means for the administration of the residency center, without which its rules of conduct would be a sham (see and compare: the Eitan case, para. 180). As opposed to the benefit of the arrangement, it undeniably infringes the rights of the residents. However, in view of the procedural guarantees established in the current Law, we are concerned with a lesser infringement than in the previous law. After weighing the benefit deriving from the arrangement against the infringement of the rights of the residents, I am of the opinion that the infringement under the current version of the Law maintains a proper balance with the benefit. Although the Director’s authority to order a transfer to detention remains, it has, in practice, been made conditional upon a decision composed of two elements: the Director, who is part of the executive authority, and the Tribunal that is of a judicial character (the Federman case, para. 12; Klinghoffer, p. 287). In this manner, “the deprival of personal liberty, which is a direct result of the issuing of the detention order, [loses] its pure administrative character and to some degree, the great principle of the rule of law that a person shall not be derived of his personal liberty unless a judge has so ruled is satisfied” (ibid., p. 286). In addition, the review process is accompanied by other procedural guarantees that, as noted, apply to the operation of the Tribunal by virtue of the Administrative Courts Law. These procedural guarantees bring the disciplinary regime under review as close as possible to a regular judicial process without detracting from its purpose (also see: Dalia Dorner, Constitutional Aspects of Disciplinary Procedures, 16 IDF Law Review 463, 468 (2002-2003) (Hebrew) (hereinafter: Dorner); Assaf Porat, On the Right to Legal Representation in Military Disciplinary Proceedings, 17 Mishpat V’asakim 469 (2014) (Hebrew)).

112.     The Petitioners are indeed correct in arguing that the detention periods established by the Law – among them periods of 85, 90 and even 120 days – are long. For the sake of comparison, under military disciplinary rules, a junior disciplinary officer is authorized to sentence a soldier to up to seven days imprisonment, and a senior disciplinary office is authorized to impose up to thirty-five days imprisonment (secs. 152(5) and 153(a)(6) of the Military Justice Law, 5716-1955). In the case of multiple offenses, it is possible to impose imprisonment for no more that seventy consecutive days (sec. 162A of the Military Justice Law; Dorner, p. 464; and see: Emanuel Gross, The Constitutional Dimensions of Arrest Law in the Army, 5 Mispat Umimshal 437, 449-453 (2000) (Hebrew)). However, although the detention periods in the current Law are, in my opinion, at the border of legality, they do not justify our intervention in the discretion of the legislature. We should bear in mind that we are concerned with maximum periods that need not necessarily be fully “exploited”. The Director must exercise his discretion in an individual manner in regard to each infiltrator and each disciplinary violation. He is not empowered to put infiltrators in detention for the maximum periods automatically. Moreover, the maximum period of 120 days applies only to one disciplinary violation concerning absence from the residency center for over ninety days. The other periods are dependent upon the severity of the conduct, and there is a clear punishment scale in regard to repeated violations. In addition, in view of the severity of placing a person in detention, it is clear that the violations that permit the adoption of this measure must be narrowly construed. The state recognizes this, as well (see: paras. 244-245 of the State’s response). Moreover, the Law provides another “scale” in regard to the enforcement means that should be adopted. The scale begins with other means of enforcement established under sec. 32S of the Law (warning, reprimand, denial of pocket money, etc.), and concludes with transfer to detention. As a result, the Director and the Tribunal are expected to consider imposing the lesser sanctions before arriving at a decision to transfer a resident to detention. This interpretive conclusion is also required in view of the purpose of the enforcement powers in the current Law. This purpose seeks to balance the need for maintaining the rules for staying in the center with the desire to protect the basic rights of its residents. Lastly, it should be noted that both the finding that a violation has occurred and the decision in regard to the appropriate sanction under the circumstances are subject to the judicial review of the Tribunal. Therefore, although the maximum periods for detention are long, I believe that sec. 32T does not infringe the rights of the infiltrators to a greater extent than required.

113.     There are, therefore, a number of individual arrangements that now meet the tests of the Limitation Clause. Thus, I find no grounds for annulling them. However, we cannot ignore the fact that a central defect remains in regard to the length of the stay in the residency center. Although the lives of the residents of the center have improved, and they have been given broader freedom of action, the provision permitting compelled residency in the center for a very long period continues to stand out. While the infiltrator would appear to enjoy a greater degree of freedom of movement during this period, he is still required to move his habitual residence to the residency center. For a significant part of the day, he is not his own master. He must spend his nights and part of his days with others, in violation of his constitutional rights. In the course of the hearing, the attorney for the Petitioners described the intensity of the violation and the sense of degradation a person incurs when forced to reside in a residency center against his will. I accept the accuracy of these observations in regard to the law that was annulled in the Eitan case, and they remain correct today in regard to the Law under review. I will not deny that the current arrangement benefits the public interest to a certain degree. Placing the infiltrators in a residency center may limit the negative phenomena associated with broad-scale unregulated immigration and ease the burden upon the residents of the major cities (see the Eitan case, paras. 131, 160 and 186). However, we cannot condone restricting the liberty of the infiltrators staying in the residency center for such a long period, even if it is based upon a proper purpose.

 

Conclusion

114.     This petition is the third in a series of petitions in which this Court has addressed the constitutionality of liberty-limiting means adopted against infiltrators. As opposed to the previous judgments, I am not of the opinion that the issues involved in the Law before us should be left for examination in due course, even if deciding them is not entirely necessary in the present matter. In general – and subject to the interpretation presented in my opinion – I am of the opinion that the current Law passes the tests for constitutionality, with the exception of the maximum period for holding a person in the residency center. I will, therefore, recommend to my colleagues that we find that this upper limit is disproportionate and must be voided.

115.     In the previous judgments we established a three-month transition period in the framework of the constitutional relief granted. Experience has shown that that period is insufficient. The legislative process was hasty, and the legislature was unable to conduct an in-depth examination before adopting the new Law. I would therefore propose to my colleagues that we now permit the legislature a longer period – of six months – before the annulment of the maximum period for holding a person in the residency center comes into force. During that period – or until the enactment of a new maximum period for staying in the residency center, whichever is sooner – secs. 32D(a) and 32U of the Law, which establish the authority for ordering that an infiltrator remain in the residency center, will remain in force. However, they will be understood as permitting the Director to order an infiltrator to the residency center for a period not to exceed twelve months. To remove all doubt, the Director is still required to exercise his authority in an individual manner, and decide whether it is proper to issue a residency order to an infiltrator, and if so, for what period. Those currently staying in the residency center upon the issuance of this judgment will be released at the end of twelve months in the center or at the end of the period set for them by the Director, according to the shorter of the two periods. Residents of the residency center who are currently residing in the center for twelve months or more on the day of this judgment – among them Petitioners 1 and 2 – will be released immediately, and no later than fifteen days from the date of this judgment. We would emphasize that in the absence of new legislation at the end of the six-month period, the authority to issue a residency order to infiltrators will lapse.

116.     The petition is therefore partially granted in regard to the maximum period for holding a person in the residency center, in the sense that secs. 32D(a) and 32U of the Law are annulled. As for sec. 32A of the Law and the other individual arrangements established under Chapter D of the Law, subject to the interpretation of the Law that I explained above, the petition is denied. The Respondents will bear the costs of the Petitioners in the amount of NIS 30,000.

 

Justice U. Vogelman:

This Court twice nullified amendments to the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law or the Prevention of Infiltration Law). Now before the Court are additional amendments to the Law made under Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. In her comprehensive opinion, my colleague President M. Naor presented an instructive constitutional examination in which – as this Court is required – she examined for a third time the detention arrangement for infiltrators who arrived in Israel through unregulated immigration, and again addressed the normative provisions establishing the residency center for infiltrators (hereinafter: the center or the facility) – the Holot center. To begin with the end: it is possible that this amendment is not a benefitting statute. In our case law, we have taken note of many other legislative possibilities. But, as usual, the question is not what the ideal legislative arrangement is. The question is whether the arrangement adopted meets the constitutional tests. As I will explain, my opinion, like that of the President, is that sec. 30A of the Law is constitutional, and that the provisions establishing the twenty-month maximum length for residing in the residency center should be nullified. In addition, I have found that the arrangement permitting the transfer of an infiltrator from the residency center to detention should be declared void, as I will explain.

 

Preface to the Constitutional Examination – The Factual Basis for the Decision

1.         Like other countries, Israel is also required to contend with the global refugee and migrant crises that is the worst since the Second World War (U.N. High Commissioner for refugees, Global Trends: Forced Displacement in 2014 (2015) (http://www.unhcr.org/556725e69.html)). Israel is the only western country accessible by land from Africa (see the opinion of Justice I. Amit in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government, para. 15 (Sept. 22, 2014) (hereinafter: the Eitan case). The fence erected on the Israeli-Egyptian border does not absolutely stop unregulated immigration (as the continuing trickle of infiltration into Israel testifies). Before that, tens of thousands infiltrators crossed our borders, and the burden that presents is significant and sadly, would appear to be borne primarily by the weaker more vulnerable segments of the state’s population. In an attempt to contend with this phenomenon, the Knesset made changes to various provisions in the Prevention of Infiltration Law. First it established that an infiltrator entering the borders of Israel, and against whom a deportation order was issued, could be held in detention for a period of up to three months. In the Adam case (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case) a unanimous Court of nine justices held that the maximum period of detention (established in sec. 30A of the Law at that time) was unconstitutional. A majority of eight justices – against the dissent of Justice N. Hendel who was of the opinion that only sec. 30A(c) should be annulled – ordered the nullification of sec. 30A of the Prevention of Infiltration Law. Following that decision, the Law was amended again (hereinafter: Amendment 4) – as a temporary order for three years – establishing that an infiltrator against whom a deportation order was issued could be held in detention for one year (sec. 30A of the law). Along with that, the Law established a “residency center” for infiltrators. Chapter D, which was added to the Law, established that infiltrators could be ordered to the residency center for an unlimited time (and at the very least, for the three-year term of the temporary order). In the Eitan case, the Court majority found that sec. 30A and Chapter D of the Law were unconstitutional and must be annulled. In the two previous cases, I noted that the background of the constitutional analysis must present a picture of the situation that can serve as a foundation for the examination and sharpen the legal questions that must be decided (the Adam case, para. 1; the Eitan case, para. 37). The time that has passed since our last judgment requires that we now do so again.

2.         First, the makeup of the infiltrator population in Israel (on the problematic nature of the term “infiltrator”, see the Adam case, para. 10 of my opinion; the Eitan case, para. 5). The data regarding the identities of the infiltrators were addressed at length in the previous decisions, and in the absence of any significant change in this regard since the decision in the Eitan case, there is no need to address this in detail. It is sufficient to state that the countries of origin of 92% of the infiltrators currently in Israel are Eritrea and the Republic of Sudan (hereinafter: Sudan). The situation in both countries is not easy, to put it mildly. According to the up-to-date reports that I cited in the Eitan case, the Eritrean government systematically violates human rights on a broad scale (see ibid., para. 31). In Sudan, a country with a history of military coups and internal struggles, most of the residents suffer from significant poverty (ibid.). The nationals of those two countries are not directly repatriated to their countries of origin. Eritrean nationals are not currently removed in accordance with a temporary non-removal policy and in accordance with the principle of non-refoulement. Sudanese nationals are not repatriated due to the absence of diplomatic relations with Sudan (the Eitan case, para. 32). I will not repeat what I stated in regard to the reasons that brought these infiltrators to our country, but I will merely note that among them – in my view – are some who sought to improve their economic situation, but there are also those who sought to flee dangers that threatened them in their country. The state is not making haste to decide upon the applications for asylum that have been submitted (see the data in this regard in the Eitan case, para. 35), and it is therefore difficult to reach clear conclusions in this regard.

3.         The matter is different in regard to the number of infiltrators in Israel, which has seen many changes over the last years. In her opinion, the President addressed the current data (para. 3 of her opinion). It was noted that – based upon a publication by the Population and Immigration Authority – there were 47,711 infiltrators in Israel as of March 31, 2015, as opposed to some 50,000 staying in Israel as of the date of our judgment in the Eitan case (at the end of September 2014). From the data provided by the President, read together with the data presented in the Eitan case, it is clear that the decreasing trend in the number of infiltrators in Israel, which began in 2012, is continuing. This is also clear from comparing the number leaving Israel against the number entering. As noted in the President’s opinion, since the beginning of 2014 and until the end of the second quarter of 2015, a total of 104 infiltrators have entered Israel. As opposed to this, 6,414 infiltrators left the country in 2014, and 1,382 left in the second quarter of this year alone (see: Population and Immigration Authority, Policy Planning Department, Data on Foreigners in Israel (July 2015) (hereinafter: July Data of the Population and Immigration Authority)).

            This, therefore, is the basis for the discussion, and against this background we will embark upon the constitutional examination. Inasmuch as the subject has been addressed twice by this Court, and in view of the President’s broad discussion, I see no need to start the examination from the beginning, and in my following remarks I will seek to emphasize and elucidate several points.

 

Section 30A of the Law

4.         Section 30A establishes the law in regard to an infiltrator to whom a deportation order has been issued. The section makes it possible to hold an infiltrator in detention for a maximum period of three months, as opposed to the three-year period that was the situation when the Adam case was adjudicated, and the one-year period we addressed in the Eitan case. Along with this, several changes were made in the section that are not at the core of the matter. There would seem to be no disagreement that this section infringes the constitutional rights of liberty and dignity to which the infiltrators – and all persons – are entitled (see the President’s opinion, para. 32; the Eitan case, paras. 46-47; the Adam case, paras. 71-72). In view of this infringement, we must address the criteria established under the Limitation Clause, and first examine whether the section is intended to serve a proper purpose.

 

“For a Proper Purpose”

5.         In its response (p.35), the State argued that the primary purpose of the section is to exhaust the process of identifying the infiltrator and providing the necessary time for arranging avenues for voluntary emigration or deportation. The Knesset added that the legal arrangement has an additional purpose, as arises from the explanatory notes, of reducing the incentives for potential infiltrators to come to Israel (p. 20 of the Knesset’s response; and see the explanatory notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904, p. 424). My colleague the President found that the dominant of the two purposes of sec. 30A of the Law is that argued by the State. I agree for the same reasons as those presented by the President (without, at this stage of the discussion, addressing the purpose argued by the Knesset, which is actually “deterrence”, to put it euphemistically (see the Eitan case, para. 52)). As I pointed out in the Eitan case, the purpose of identification and exhausting avenues of departure and deportation is a proper purpose (ibid., para. 51). The state has the right to remove a person who entered its territory in an unregulated manner, subject to domestic Israeli law and international law, to which Israel is obligated. However, I emphasized there that the state is permitted to hold a person in detention for that purpose – identification and removal – alone: “Holding a person against whom a deportation order has been issued in detention is legitimate when it is intended to ensure the process of his removal from the country. It is permitted as long as its purpose is deportation, but forbidden when there is no effective removal process, or when the possibility of deportation from the country is not on the visible horizon” (ibid.,).

6.         Unfortunately, despite the findings in the Adam and Eitan cases, the legislature did not include a direct connection between detention and the removal process in the amended version of sec. 30A (on the need for this connection, also see the Adam case, para. 5 of my opinion). There can be no denying that had the legislature adopted a legislative arrangement that included such a connection, along with a periodic review of the situation of the detainee focused upon this question, and appropriate grounds for release when there is no expectation of removal (and see the Eitan case, para. 19) our task would be easier, and the arrangement would pass constitutional review in this regard without difficulty.  I would think that after this had been stated twice by expanded panels of this Court, it would even have been appropriate to do so (see and compare: para. 48 of the opinion of the President). However, I agree that what the legislature left undone, we can add by way of judicial interpretation that will realize the language of the Law and its purpose. In this sense, I concur with the view of my colleague the President that we need not declare the section void, inasmuch as I am also of the opinion that in this matter it is possible to interpret the Law’s provisions in a manner that is consistent with constitutional criteria.

7.         In her opinion, my colleague the President explained in detail why this night is different from other nights, and why we can now refrain from declaring the nullification of sec. 30A of the Law. In brief, the President pointed out the similarity between this arrangement and the arrangement established under the Entry into Israel Law, which our case law has interpreted as requiring an expectation of deportation from Israel (ibid., paras. 39-40), and how this conclusion is consistent with international law (ibid., paras. 44-45). The President further emphasized that the State – for the first time in these proceedings -- agrees with this interpretation (para. 46 of her opinion; see and compare the Eitan case, para. 200). I would like to add to what the President explained that, in my opinion, the period of detention established under sec. 30A of the Law – three months – also supports this view. The maximum period of detention established by the legislature is not long. As noted, it is a period that is only one month longer than that established under the Entry into Israel Law (compare to sec. 13(f) of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry into Israel Law)). This short extension of the period permitted under the Entry into Israel Law derives from the fact that infiltration into Israel is characterized by an absence of any orderly documentation and does not go through a border control point, which makes identification more difficult (see the Eitan case, para. 54). While we are concerned with a longer period of time than that permitted under the Entry into Israel Law, it is a relatively short period that can itself motivate the authorities to take effective steps to identify the infiltrator and examine the possibility of his deportation in accordance with provisions of the law, inasmuch as at the end of this period it is more difficult to ensure that the infiltrator will not “disappear” (see and compare: the Eitan case, para. 54). Thus, while in the Eitan case it was possible to question whether the one-year period of detention was a possible normative expression of the claimed purpose – identification and exhaustion of avenues for deportation (this, even though no one denies the relative complexity of the identification process in the case of unregulated immigration) – in the matter before us it appropriate to take the opposite view. Just as under the previous version of the Law it was difficult to conclude that the purpose was identification and exhaustion of avenues for deportation, shortening the period of detention to three months can serve to demonstrate – even without express language to this effect – the inherent connection between the period of detention and an effective removal process. In this sense, the “quantity” – the maximum detention period – “speaks”, and affects the interpretation of the “quality” (a connection to the existence of an effective removal process).

8.         This change in the quantitative aspect also permits a validating interpretive approach in another sense. In the Eitan case, a careful, respectful approach required resolving the constitutional problem that arose specifically in regard to nullifying the section (as we were confronted head on with a legislative provision that established a one-year period of detention, which is itself disproportionate. Had we sought to establish an alternative period, we would have found ourselves involved in judicial lawmaking (also see: ibid., para 201)), whereas the detention period at present does not raise constitutional problems, as I shall explain. We are therefore left only with the need to ensure that the detainment of the infiltrator – like any case of detention – will not be arbitrary, but rather intended to serve the purpose grounding it. In the matter before us, that purpose is, as noted, ensuring an effective deportation process. While this purpose is not directly expressed by the language of the Law, this time the Law’s provisions can be reconciled with the need to realize it by a judicial interpretative approach that is consistent with the State’s position (although it would be possible to arrive at this interpretation even if the State did not agree with it), and refrain from declaring them void. The provisions of sec. 30A will, therefore, be understood such that an infiltrator who has been identified and who cannot be deported will be released immediately (subject to the grounds stated in sec. 30A(d) of the Law). Given the aforesaid, I conclude that sec. 30A of the Law meets the test of a proper purpose.

Proportionality

9.         In this case, no dispute arose between the parties as to whether the Law’s infringement of rights was intended for a purpose befitting the values of the State of Israel as a Jewish and democratic state (neither in regard to this section, not in regard to Chapter D, which will be addressed below). That being the case, we will now proceed with an examination of proportionality. I will state at the outset that in my opinion, this section also meets the requirements of the three subtests for proportionality. We begin with the question whether the section maintains a rational connection with the Law’s purpose. Our basic assumption for the purpose of this examination is that – in view of the interpretive approach set forth above – we are now concerned with legislation that permits detaining only those regarding whom there is an ongoing identification and deportation process. In the Eitan case I noted that while no one disputes that holding an infiltrator in detention makes it easier to conduct an orderly, controlled identification process and remove the fear that he may flee and thus frustrate the process of identification and removal from the country, it is not clear that there is an effective avenue for removal in regard to most of the infiltrators held in detention under sec. 30A of the Law (ibid., paras. 54-55 and 62). That is so, given the fact that most of the infiltrators are, as noted, from Eritrea and Sudan, to which there is no present possibility of removal. Although as noted above, there has been no change in the identity of the infiltrators, the State now contends that it can deport the infiltrators to “safe third countries” rather than to their countries of origin (and according to its submission, some 1,093 infiltrators have been so removed from Israel). An examination of the arrangements that the state has arrived at with those other countries is beyond the present procedural scope, and I will not make any definitive findings in this regard (as well as in regard to the additional question raised by the State in this regard concerning what might be deemed a lack of cooperation). However, this is sufficient for the purpose of meeting the first subtest.

10.       This brings us to the second proportionality test – the less harmful means test – which was already addressed in the previous cases. In the Eitan case, I noted that even if there are alternatives to detention that other countries have seen fit to adopt, their actual effectiveness is not comparable to that of custodial detention. The legislature enjoys a broad margin of appreciation in this regard, and in the absence of an alternative that can achieve the Law’s purpose to the same or a similar degree of effectiveness, the conclusion is that sec. 30A also meets this test (also see: the Eitan case, paras. 60-66)). The current detention arrangement also meets the third proportionality test – proportionality stricto sensu – as opposed to what was held in regard to this section in its previous version in the Adam and Eitan cases. As may be recalled, those cases addressed a maximum detention period of three years and of one year respectively. As I noted in the Eitan case, the period of time during which liberty is denied affects the intensity of the infringement of the right. The longer the denial of liberty, the greater its infringement (ibid., para. 153). The mirror image of that is that reducing the period of detention lessens the infringement of the right. Indeed, detention for three months is no trivial matter. However, setting the ceiling for detention at three months (instead of a year) significantly reduces the infringement of the right to liberty and the right to dignity. As for the scope of the infringement of the right, weight should be given to the State’s position that the grounds for release of an infiltrator for “other special humanitarian reasons” (sec. 30A(b)(2) of the Law) should be interpreted broadly as a dynamic valve-concept that will allow those responsible for implementing this general ground “to show the necessary sensitivity for limiting the infringement of the right to liberty” (and I would add, in regard to other rights, as may be the case) (see p. 43 of the State’s response). In striking the balance between the infringement of a right and the benefit, I no longer find it necessary to state that it is constitutionally prohibited to hold a person who has immigrated to the country in an unregulated manner for this period of time for the purpose of identification and removal.  This is accepted throughout the world (see: the Eitan case, paras. 73-77), and this may also be done under our domestic constitutional law and the basic principles upon which it is founded.

            In summary, there are no grounds for declaring sec. 30A of the Law void given the agreed interpretation that we have pronounced here. I will now proceed to Chapter D of the Law.

 

Chapter D of the Law

11.       In the framework of this petition, the Petitioners also challenged the provisions of Chapter D of the Law, which permits establishing a “residency center” for infiltrators. In the Eitan case we concluded that the arrangement established under Chapter D of the Law disproportionately infringed the right to liberty and the right to dignity and was, therefore, void (ibid., para. 98). Changes have since been made in this chapter. The President addressed these changes (paras. 53-54 of her opinion), which are primarily as follows: the length of the stay in the center has been limited to a maximum of 20 months; the obligation to register has been set at once a day; the authority of the Director of Border Control to order the transfer of a resident from the residency center to detention has been limited; a resident may be released from the center on a number of grounds; and special groups, such as women and children, will not be sent to the residency center. Despite these changes, Chapter D of the Law continues to infringe protected constitutional rights. I will now address this.

 

The Infringement of Constitutional Rights

12.       I addressed the issue of the infringement of rights in Chapter D at length in the Eitan case (ibid., paras. 117-127). The State recognizes the fact that Chapter D can indeed limit and infringe the right to liberty, but it reiterates its previous argument that infringing a right is not the same as denying it. The State is further of the opinion that the infringement of the right to liberty “is only at night (between 10 PM and 6 AM)” (p. 31 of its response), when the facility is closed and entry and exit are prohibited. I cannot accept this argument. First, although precisely defining the scope of the infringement of the right is of importance at the later stages of the constitutional examination, every infringement – whether minor or severe – is sufficient to require an examination under the Limitation Clause. At this point, the question of whether we are concerned with a “limitation” of the right or its “denial” is of no consequence, as “every limitation, regardless of its scope, is unconstitutional unless it is proportional” (Aharon Barak, Proportionality – Constitutional Rights and their Limitations, 136 (2010) (Hebrew); see: the Eitan case, para. 117; also see above, para. 59 of the opinion of the President).

13.       Second, and most importantly, I am not of the opinion that the infringement of the right to liberty is “only at night”. A person’s liberty is not infringed by walls alone. Section 5 of Basic Law: Human Dignity and Liberty states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. How shall we interpret “or otherwise”? Does it apply only to a physical restriction upon liberty, or might it also extend to the individual’s right to autonomy (also see: the Eitan case, para. 171)? The State proposes the most limited interpretation: in any other manner that restricts a person’s physical liberty. In my opinion, that is not an appropriate interpretation. “Personal liberty is not confined to a person’s physical liberty” (Aharon Barak, Human Dignity – The Constitutional Right and the Constitutional Right, vol. I, 344 (2014) (Hebrew) (hereinafter: Barak, Human Dignity)). Of course, not every infringement of free will and of the autonomy of will constitutes an infringement of the right to liberty (see: ibid.). But in my view, an extreme denial of an individual’s choices constitutes an infringement of the right to liberty. An infiltrator residing – under coercion, let us not forget – in a residency center is not a free person even during those hours of the day when he is not enclosed within its walls. We must bear in mind that even though the requirement of reporting three times a day was rescinded in the new Law, and even though the center is sealed off only at night, it is questionable whether many of the residents have an effective possibility of leaving or travelling far from the facility. This is so in view of the “pocket money” given to the residents, which stands at NIS 14 per day (reg. 2 of the Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2014 (the regulations were not challenged in the petition); the prohibition upon persons staying in the residency center to work in Israel (sec. 32F of the Law); and the geographic location of the Holot facility. Under these circumstances, I am not convinced that a resident is able to routinely stray from the facility and provide for himself over the course of the day. This normative situation greatly limits the personal autonomy enjoyed by the infiltrators – who are subject to conduct and disciplinary rules that accompany them when they exit the gates of the residency center – and this restriction also affects their right to liberty. In this regard, the words of Justice E. Goldberg are apt:

As Thomas Hobbes said: “A free man is he that… is not hindered to do what he has a will to” (Hobbes, Leviathan, ch. 21). The scholar Isaiah Berlin discussed the positive meaning of this concept in his essay Two Concepts of Liberty:

“The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside” (I. Berlin, Two Concepts of Liberty, 1958).

Indeed, there is a strong connection between the right of liberty, and its derivative the autonomy of the will, and human dignity (FH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661, 723 (1996) [http://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0]).

            Our case law has also recognized an infringement of the right to liberty in other contexts that are not restricted only to “sealed gates” (see and compare: HCJ 4542/02 Kav LaOved v. Government of Israel, IsrSC 61(1) 346, 378 (2006) [http://versa.cardozo.yu.edu/opinions/kav-laoved-worker%E2%80%99s-hotline... (“The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty” (Justice E. E. Levy); “The arrangement has violated the autonomy of the workers as human beings, and it has de facto taken away their liberty” (Deputy President M. Cheshin, ibid., p. 403); LCA 10520/03 Ben Gvir v. Dankner (Nov. 12, 2006) (“The right to a good name also derives from a person’s right to liberty, which is not exhausted in the protection of his body, but also of his spirit” (para. 12 of the opinion of Justice A. Procaccia); HCJ 2123/08 A. v. B., IsrSC 62(4) 678, 696 (2008) (“The phenomenon of get refusal […] involves severe, painful harm to a woman who is left chained to a marriage in which she is no longer interested: her liberty is infringed, her dignity and emotions are infringed […]”) (Justice E. Arbel); HCJ 3368/10 Ministry of Palestinian Prisoners v. Minister of Defence, para. 52 (April 6, 2014) [http://versa.cardozo.yu.edu/opinions/ministry-palestinian-prisoners-v-mi... (“The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty” (Justice E. Arbel); HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 603-604 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (“But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison […] and complies with the rules of conduct in the prison, which also restrict his personal liberty” (President D. Beinisch). See additional references in Barak, Human Dignity, 343-344, and compare to his approach according to which “the proper interpretation of the term ‘otherwise’ is in any other way that physically limits a person’s liberty, or any other liberty of similar force” (ibid., p. 345).

14.       If we find that the right to liberty of the center’s residents is infringed even when they are not required to be there, in view of the requirement that they reside in the center to which they have moved their habitual residence, it is self-evident that staying in the residency center also infringes the right to dignity – their ability to choose how to conduct themselves and narrate their life story. I discussed this at length in the Eitan case (ibid., paras. 120-127).

15.       What is the extent of the infringement of rights under Chapter D in its current formulation? Indeed, increasing the openness of the residency center (by means of registering once a day); granting the Director authority to exempt an infiltrator from registering for four days (instead of the prior two days); establishing a twenty-month maximum period of residence; excepting special populations; and certain changes in the Director’s authority to order the transfer of a resident to detention have all somewhat reduced the infringement of rights. However, the Holot facility still remains isolated in the desert. We are still concerned with a facility in which a person torn from his life is forced to stay for a long period. His privacy is infringed – surrounded by jailers. The infringement of rights thus remains.

 

For a Proper Purpose

16.       Having found an infringement of rights, we are obligated to examine whether the legislation meets the tests of the Limitation Clause. In her opinion, the President noted that the main purpose of Chapter D of the Law is “to stop the permanent settling of the infiltrator population in the urban centers, and prevent them from working in Israel”, while providing an appropriate response to their needs (ibid., para. 61). The President further took note of the Petitioners’ argument, also voiced in the Eitan case, that this chapter of the Law has a hidden purpose that is its true purpose: “breaking the spirit” of the infiltrators so that they will leave Israel. I addressed all of these purposes in the Eitan case (for a discussion of the purpose of preventing settling, see ibid., para. 103; on the purpose of responding to the needs of the infiltrators, see ibid., paras 104-106; on the claimed purpose of “encouraging voluntary emigration”, see ibid., paras. 107-113). I will, therefore, only briefly address these matters.

 

Preventing Settling

17.       We will begin with the purpose concerning the prevention of settling (or “stopping settling”) that I left to be addressed in due course in the Eitan case (ibid., para. 103). I explained there that in any case, in my opinion, the provisions of Amendment 4 – the amendment under review in that case, and which introduced Chapter D – did not pass the constitutional tests, and therefore there was no need to address the question whether the purpose was proper (also see my position in the Adam case, para. 19 of my opinion). However, I was willing to assume, for the sake of argument, that it was a proper purpose. The President has now proposed that we expressly find that this purpose is proper (para. 66 of her opinion). I will therefore address this question.

18.       “Preventing settling” – of whom? In the Eitan case, I addressed the problematic nature of separating one population from another (see: ibid,. para. 103 of my opinion). The reason for this is clear: the infiltrator population – as a matter of fact – has been with us for some time. Despite the fog surrounding the matter form a normative perspective (see: AAA 8908/11 Asafu v. Ministry of the Interior, the opinion of my colleague Justice E. Hayut (July 7, 2012); the Eitan case, para. 104) – which is no cause for celebration – there is no dispute that those infiltrators who are not in the Holot facility (which is the majority of the infiltrator population; see para. 55 of the President’s opinion) are living substantial lives in Israel’s cities. The State does not wish to reconcile with this situation. It is permitted to do so. In this regard, the State informed us that it has established and continues to work on establishing arrangements that will, in its view, facilitate the departure of infiltrators from Israel. These arrangements are not under review in the context of this petition, but in any case it is clear – and no contrary argument was made – that there is no concrete expectation for the mass removal of tens of thousands in the near future. That being the case, and inasmuch as we cannot order these people to return to their countries of origin, is it proper for us to seek to “prevent them from settling”?

19.       At the end of the day, I have reached the conclusion that, in one sense, it can be assumed that while the matter is not problem free, we are concerned with a proper purpose. In this regard, I am referring to the interpretation of this purpose as “alleviating the burden” on the cities in which most of the infiltrators are concentrated – particularly south Tel Aviv. We need not waste words on the fact that the number of infiltrators who cannot be removed is large. In the years 2009-2011, thousands and more infiltrators entered Israel each year (see: the Eitan case, para. 38). Most of the infiltrators are concentrated in one geographical area. This concentration imposes a very heavy burden on the local population. The situation of infiltrators settling in the southern part of the city has changed the area’s character, increased crowding, and contributed to the problems of daily life of the local residents. I addressed this at length in the Eitan case (ibid., para. 210). This burden – in terms of a small country with a small population, like Israel – is exceptional. Under the existing circumstances, we cannot deny that we are witnessing a “mass influx” of infiltrators. Given such a mass influx, I do not see reason to contradict the view that legislation seeking to prevent infiltrators from settling is, at present, intended for a proper purpose.  This, as noted, is subject to our understanding of “prevention of settling” as intending to achieve a temporary division of the burden (with emphasis on the fact that we are concerned with a “temporary order”). Together with this, we should bear in mind that thousands of infiltrators left Israel since 2014, with only a few entering. The number of infiltrators is thus going down, and as I have already noted, “different factual data may […] lead to a different legal result (the Eitan case, para. 37). It is possible that in the future – perhaps the near future – the pressing social need for a strict normative arrangement for the infiltration phenomenon will assume a different character (see and compare: the Eitan case, para. 69), and if the downward trend of infiltration to Israel continues, and to the extent that the temporary order may be extended, the question of whether we are concerned with a “proper purpose” may arise for reconsideration.

20.       In conclusion, at present I see no reason to reject the State’s position in regard to this purpose. Along with this, like my colleague the President, I am also of the opinion that there is no present need to address the purpose of preventing the infiltrators from earning a livelihood in Israel, in view of the parts of the Law upon which the Petitioners focused their challenge (para. 76 of the opinion of the President).

 

Preventing the Resurgence of the Infiltration Phenomenon

21.       Despite the title given to this purpose, we would make it clear that we are concerned with a deterrent purpose, with all the difficulties that were expressed in this regard in the Adam case and the Eitan case (ibid., para. 52 of my opinion), inasmuch as the State clearly informed us that this purpose means the reduction of the economic motivation of potential infiltrators – now in Africa – to immigrate to Israel (para. 52 of the State’s response). In the Adam and Eitan cases, I refrained from making any decisive statement in regard to the deterrent purpose (argued in regard to sec. 30A of the Law), inasmuch as in any case that section did not meet the proportionality tests (see: the Adam case, para. 19 of my opinion; the Eitan case, para. 52). I believe that we now must expressly decide the question whether this purpose meets the proper-purpose test. In my opinion, except in particularly exceptional cases – which are not present in the current circumstances – this purpose is improper. My colleague the President (para. 77 of her opinion) states that since we have already recognized that “having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect”. I agree with that. As I pointed out in the Eitan case, I, too, am of the opinion that “there is nothing wrong with the detention of an infiltrator, intended to advance the process of his deportation, having an attendant deterrent effect” (ibid., para. 52), and that is true not only in regard to custody, but also in regard to the residency center. But the State’s argument shows that it thinks that deterrence is not an attendant purpose appended to the other, proper, purpose but rather a separate and distinct purpose that it believes is also proper. It even refers to it as “the second purpose” (alongside “the first purpose” that concerns preventing the infiltrator population from striking roots, and “the third purpose”, which concerns providing an appropriate response to the needs of that population). I cannot agree to this separate existence. In my view, this purpose cannot stand on its own – and standing on its own, it is improper. Justice E. Arbel addressed this at length in the Adam case, and I see no need to revisit it (ibid., paras. 85-93; but compare the position of Justice I. Amit in the Eitan case, according to which changing the incentives in regard to potential infiltrators is a proper social purpose that derives from the principle of state sovereignty, paras. 9-10 of his opinion).

22.       Moreover, the State notes that changing the array of incentives for potential infiltrators is rooted in the integration of the provisions of sec. 30A (concerning detention) and the provisions of Chapter D (which addresses the establishing of a residency center). The relationship between the two is established by sec. 30A(k) of the Law, according to which an infiltrator will be ordered to the residency center upon release from custody. According to the State, these two change the array of incentives and encourage potential infiltrators to refrain from trying to reach Israel. I read and reread the State’s argument, and it is not clear – even were I willing to accept that we were concerned with a proper purpose (which is not the case) – why “changing the array of incentives for the potential infiltrator”, or deterring him from coming to Israel, would not be achieved by making the provisions of the Law, in regard to Chapter D as well, of prospective effect. To the extent that the State seeks to deter someone from arriving in Israel, it should in any case suffice that the said normative arrangement apply only to that potential infiltrator who is currently somewhere else and considering whether to make his way to Israel. That is not what was done in the legislation we are examining.

23.       As opposed to this, the Knesset’s view is that the purpose of reducing the economic incentive is also relevant in regard to existing infiltrators wishing to remain in Israel (p. 13 of the Knesset’s response). This framing of the matter raises questions in regard to the possibility of encouraging “voluntary emigration” by such means (see the Eitan case, paras. 107-113 of my opinion), and I will address this below. It remains to address two matters – the purpose of providing a response to the needs of infiltrators and the additionally claimed purpose of “encouraging voluntary emigration”. I will briefly state, as I already stated in the Eitan case, that the purpose of “providing a response to the needs of the infiltrators” is proper (ibid., para. 104 of my opinion). I indeed continue to doubt whether the residency center actually realizes this purpose in practice, but I do not believe that the constitutional framework is the appropriate one for addressing the dispute as to the manner of operation of the Holot center, on which the parties to these proceedings continue to disagree.

            I will now turn to the issue of the claimed purpose of “encouraging voluntary emigration”.

 

Encouraging Voluntary Emigration

24.       The starting point for examining this purpose is that a person cannot be compelled to go to a country that presents a danger to his life or liberty. But what of a person who does so of his own will? In the Eitan case I noted that leaving the country might be deemed prohibited deportation or “constructive removal” (and not leaving of “free will”) not only in situations in which the state officially orders a person’s deportation, but also when the state adopts particularly severe, harmful means intended to exert pressure that will lead to a person to leave the country “willingly”. The decision to leave the country – which is a choice that should not be influenced – must be free of unreasonable pressures (ibid., paras. 110-112). In the Eitan case I addressed the question whether the purpose of Chapter D of Amendment 4 was to deny such free will – a question which, in my view, was not easy to decide nor free of doubts. This is what I said then:

It would appear that no one would disagree that the residency center established by virtue of Chapter D of the Law presents a serious hardship for the lives of the infiltrators, and such hardship may certainly serve as an incentive for a person to leave the country. However, certain hardships are the lot of every person who chooses to immigrate to another country in an unorderly manner. It is not possible – and even, in some senses, undesirable – to eliminate them entirely. There is a fine line between legitimate incentives (such as financial incentives) to leave the country and applying significant, unfair pressure that, in practice, deprives the illegal aliens of their ability to choose not to leave the country. Does Chapter D cross that line in view of its the inherent, indeterminate denial of liberty, and other matters that will be addressed below? While I do not believe that the Petitioners’ arguments in this regard can be dismissed out of hand, I do not find it necessary to decide the matter inasmuch as I believe that in any case, Chapter D of the Law must be annulled because it does not meet the requirements of proportionality (ibid., para. 113).

25.       As opposed to this, in the present case the President expressed her view that the current Law is not intended to break the spirit of the infiltrators (paras. 80-81 of her opinion). In this regard, the President relied, inter alia, on the fact that the claim that here is a “hidden” purpose of this type was denied in the hearing before us by the State’s attorney as well as in the responses of the Knesset and the State to the petition (para. 79 of her opinion). She also noted that the residency center offers activities and employment (ibid., para. 80). I have considered this, but I do not believe that it is sufficient to remove the doubts that I expressed in the Eitan case. It should first be noted that in the course of the deliberations that preceded the enactment of Amendment 4, representatives of the governmental agencies expressed themselves in a manner that showed that the possibility of encouraging “voluntary emigration” loomed in the background of the legislation (see the Eitan case, para. 113). On the day our judgment in the Eitan case was handed down, the then Minister of the Interior announced that “the second amendment of the law has made a significant contribution to the process of voluntary emigration” (his announcement was appended to the petition and marked P/20). This matter was not forgotten in the deliberations on the Law that is the subject of these proceedings. Thus, for example, in a meeting of the Knesset Internal Affairs and Environment Committee on Oct. 6, 2014, the committee chair noted: “[…] by means of the law we have succeeded in voluntarily returning […] many infiltrators”, and the Minister of the Interior added: “I set a goal of removing infiltrators […] we had a tremendous upswing in the voluntary emigration of infiltrators […]” (Protocol of meeting 384 of the Internal Affairs and Environment Committee of the 19^th Knesset, pp. 4 & 6 (Oct. 6, 2014)). On Nov. 11, 2013, the Director of the Enforcement and Aliens Department of the Population and Immigration Authority noted in a meeting of that committee that “Whomever it is decided to send to a residency center will be given a referral that very moment, the residency permit he now holds in his hand will be revoked and his employment will be massively enforced. The moment he enters the facility, we will continue all of the procedures for encouraging voluntary emigration” (Protocol of meeting 117 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 14 (Nov. 11, 2013)). In a meeting of that committee on Dec. 8, 2014, Knesset member David Tzur noted: “Holot must not be closed. We have to create a situation that amplifies the incentive for infiltrators to leave here. That’s what I say” (Protocol of meeting 435 of the Internal Affairs and Environment Committee of the 19^th Knesset, p. 6 (Dec. 8, 2014)).

26.       If that were not enough, despite the declaration by the State’s attorney in the hearing before this Court that “Certainly, most certainly” no actions were or would be taken to “break spirits”, and although my colleague the President emphasized in language that could not be clearer that “[…] no actions intended to bring about voluntarily leaving the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner” (para. 83 of her opinion), the State did not reply to the concrete claims of the Petitioners in these proceedings – which were supported by affidavits – that they were indeed heavily pressured in the residency center to leave the country. Thus, for example, Petitioner 2 stated:

Every meeting with prison guards and clerks, and even with the clinic staff, is always accompanied by one question: “Why don’t you leave?” The fact that my asylum request has not been examined for over a year doesn’t interest anyone. All the people in Holot care about is that I leave, and the pressure in this regard is really unbearable (para. 23 of the affidavit of Petitioner 2, appended to the Petition and marked P/3).

The Petitioners further claimed that when the center’s residents meet with representatives of the Population and Immigration Authority to submit requests for “leave”, they are pressured to “depart voluntarily” (p. 55 of the petition). They argued on and on, and even presented additional examples, but no real answer was forthcoming from the Respondents.

27.       Lastly, the question of the identity of the people sent to the Holot facility and the criteria established by the administrative agency in this regard continues to accompany us since the Eitan case (see: ibid., paras. 90-91). I will also address this issue briefly further on. At this point I would only point out that the result of the implementation of these criteria is that 76% of the Holot residents are Sudanese and 24% are Eritrean. This is almost the reverse of their relative proportions. According to the July data of the Population and Immigration Authority, 19% of the infiltrators into Israel are Sudanese and 73% are Eritrean. According to the Petitioners – and I do not intend to rule on this argument in these proceedings – “in the Respondents estimation, there is a better chance of breaking the spirts of the Sudanese nationals and forcing them to “agree” to leave the country” (p. 48 of the petition). Indeed, certain aspects concerning the implementation of the Law are not, at least directly, of constitutional import. However, questions regarding the implementation of the Law may influence the decision of whether it meets the proportionality tests (HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (para. 33 (May 28, 2012) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-i... (hereinafter: the Association for Civil Rights case)), and in my opinion, these aspects may even aid in the examination of the purpose of the Law in seeking to understand the difference – if there be one – between the declared purpose of the Law and its true purpose.

28.       On this occasion, as well, I do not wish to place exclamation points after these question marks and decide as to the existence or absence of this claimed purpose, and I do not take lightly the State’s declarations before us in this regard. Nevertheless, it would appear to me that even if we are unable to determine that the purpose of Chapter D of the Law is to “pressure” the infiltrators to agree to leave Israel, the above suffices for us to refrain from making a positive finding in the matter. In conclusion, we can, at present, suffice in finding that the main purpose of Chapter D of the Law is to prevent the infiltrator population from settling in the urban centers. In the present time and circumstances, we cannot say that this is not a proper purpose. We will, therefore, proceed to an examination of the proportionality of the Law’s provisions.

 

Proportionality

29.       The legislature introduced several changes into the arrangement currently before us, which were presented in detail by the President, but it remains fundamentally similar to its predecessor. Under these circumstances, I see no need for a comprehensive examination of the details of the various arrangements that I reviewed in at length in the Eitan case, so I will suffice with a summary. I will focus my examination on two specific arrangements that require special attention: the authority to issue a residence order to an infiltrator for a maximum period of twenty months, as prescribed by the legislature, and the arrangement permitting the detention of an infiltrator for various disciplinary offenses. As for the former I agree with the relief proposed by the President. As for the latter, I would propose that we declare it void and issue appropriate transitional instructions.

 

The Authority to Order Residency and the Length of Residency in the Center

30.       If the Director of Border Control finds any problem in regard to deporting an infiltrator to his country of origin, “he may order that the infiltrator stay in a residency center until his deportation from Israel or his removal therefrom, or until another date as shall be decided” for a period of twenty months in total (sec. 32D and 32U of the Law). Residency orders will not be issued to such defined populations as minors and women, as will be explained below. This is the core of Chapter D of the Law, in that – subject to criteria established by the administrative agency – it authorizes holding an infiltrator in a residency center, and establishes the maximum period of such a stay. As my colleague the President noted, examining the proportionality of this arrangement requires that we address its reciprocal relationship with other particular arrangements in the Law (para. 85 of her opinion), as I will now proceed to do.

 

The Rational Connection Test

31.       The rational connection test requires that the chosen means be suitable for realizing the Law’s purpose. I earlier noted several possible purposes, and I will focus my examination of proportionality upon the purpose of “preventing settling”, which is the most important of the purposes of Chapter D of the Law. Is there a rational connection between the authority granted to the Director and this purpose? Answering this question became more complex after a twenty-month limit was established for residency in the center. I noted in the Etan case that the absence of a limit upon the period of residency ensures the realization of the Law’s purpose in manner that meets the rational connection test (para. 158). I added there that any limitation of the residency period would mean that the infiltrator could return to the labor market after a certain period of time (inasmuch as the State undertook not to enforce the work prohibition in regard to those not being held in the residency center). Indeed, the very setting of a time limit for staying in the center creates a “revolving door” in and out of the center in a manner that does not make it possible to prevent setting down roots, but at most delays it until such time as the infiltrator returns to his place of residence and his work. Even were one to say that such settling is prevented, but only for a limited period (which is the State’s contention – se p. 67 of its response; and also see its statement that the Law is not “an exclusive means solely responsible for achieving the proper purpose of preventing 48,000 infiltrators from settling in Israel”, ibid.), we are concerned with a law that only partially achieves its purpose, inasmuch as an infiltrator – regarding whom there is no concrete expectation of removal – will return to the urban centers. We would add that, at present, the maximum occupancy of the Holot center is 3,360 residents (according to the State’s submission at p. 66 of its response), which is but a small part of the infiltrator population. Thus, only a minority of the infiltrator population is “prevented” (or delayed) from settling. However, it should be noted that the Law does not set a limit upon the size of the residency center, nor upon the number of residency centers that may be established. In practice, the State’s contention is that the Holot center serves as a sort of “pilot” (the Eitan case, para. 128).

32.       Ultimately, I believe that the rational connection in this case is not entirely clear. Despite my doubts, I would not say that there is no such connection. As the President noted, the chosen means need not fully realize the Law’s purpose (para. 90 of her opinion), and I am willing to assume that this arrangement meets the first proportionality test. In any case, this matter can be revisited in the future (see para. 91 of the President’s opinion).

 

The Less Harmful Means Test

33.       An infiltrator ordered to report to the residency center cannot “establish himself” in the urban centers. During the period of his required residency in the center, his life is primarily in the center. In this sense, the residency center realizes the Law’s primary purpose – preventing the infiltrators from settling – with relatively high effectiveness. Indeed, one might think of other means that might serve to achieve this purpose, like geographic dispersion or various grants that might serve as an incentive – a “carrot” rather than a “stick” – for living and working in various places other than the urban centers. However, presence in the residency center is compelled. It is not subject to the infiltrator’s free choice. A person who chooses not to report to the center is subject to the severe sanction of detention, which I will address in detail below. I therefore tend to the view that it is doubtful whether there is a less harmful means with the potential for achieving the Law’s purpose to a similar degree of effectiveness (the Eitan case, para. 159).

 

Proportionality Stricto Sensu

34.       Thus far, the arrangement has passed the proportionality tests. However, in my opinion, this arrangement fails the last and most important value-based test inasmuch as the provisions that permit holding a person in a residency center for a maximum period of twenty months do not maintain a direct relationship with the benefit they achieve. In assessing the balance between the benefit and harm of the infringement of constitutional rights, I will begin with an examination of the benefit. In the Eitan case I emphasized that “there is some truth to the opinion that Israeli society benefits from its members not being required as a matter of course to bear the burden of absorbing tens of thousands of infiltrators, and that the negative phenomena associated with mass, unregulated immigration – which cannot be ignored – are substantially reduced when they are placed in a residency center” (ibid., para. 160). But the benefit provided by this arrangement does not outweigh its infringement of rights. I explained this in detail in the Eitan case, and I see no need to repeat what I stated there. I will therefore focus upon the changes introduced into Chapter D of the Law and their consequences. I will first point out that under Amendment 4, Chapter D did not except special, particularly vulnerable groups from its compass. That is not the case in the present version of Chapter D, in which sec. 32D(2) prohibits issuing a residency order to minors, women, persons over the age of sixty, the parent of a dependent minor, “a person whom the Director of Border Control is convinced might be harmed by residing in the residency center due to his age or state of health, including his mental health, and there is no other way to prevent such harm”, and so forth. I pointed out in the Eitan case that “individual infiltrators not referred to the residency center due to their personal status, or who may later be released therefor, would not detract from achieving the purpose grounding the legislation, and would, at most, detract to an insignificant extent”, and that the absence of exceptions “forcefully emphasizes the lack of proportion (in the narrow sense) of the comprehensive prohibition” (ibid., para. 187). The amendment of the Law has resolved this problem to a great extent.

35.       Another change introduced by the legislature concerns the center’s registration requirement. Amendment 4 required that during the daylight hours – when the center is “open” and the residents may leave and enter freely – they must report three times. As I pointed out in the Eitan case, the need to report for registration at noon severely detracts from the practical possibility of leaving the facility for any uninterrupted activity (ibid., para 118), as “a person needs an appropriate window of time in order to fill his life with real content. Short, fixed periods are insufficient for that” (ibid., para 127). The Law now provides that the residency center will be closed at night (between 10:00 PM and 6:00 AM), and that a resident must report for registration once a day, between 8:00 PM and 10:00 PM (sec. 32H of the Law). This change somewhat blunts the intensity of the infringement of the right to liberty and the right to dignity. It allows the infiltrator greater freedom of action, inasmuch as he may leave the residency early in the morning and return in the evening. However, as I noted earlier, we should not overestimate the importance of this change in terms of lessening the infringement of the right. “May” is not necessarily “can”. The center of life of an infiltrator required to report to the residency center transfers to that center. He is not a free man, inasmuch as he conducts his daily life in the shadow of the demand to return to the center at night, and his ability to realize his autonomy is dictated by the Law’s provisions that forbid him to work, the small amount of “pocket money” that he receives, and the location of the Holot center. Clearly, while there have been changes, the arrangement continues to infringe his rights (see paras 12-15, above).

36.       The arrangement that I addressed in the Eitan case in regard to the administration of the residency center by the Prisons Service has barely been changed. The operation of the facility is entrusted to the Prisons Service under sec. 32C of the Law, which requires that when the Minister of Public Security proclaims the establishment of a residency center, he must appoint a senior warden as its director, and the Commissioner will appoint corrections officers who will work for the center (after appropriate training). I noted in the Eitan case that placing the operation of the residency center in the hands of the Prisons Service – which is also granted the broad powers required for operating the center – amplifies the infringement of the infiltrators’ rights (ibid., para, 138), as the entity operating and administering the open residency center is in daily contact with the residents of the center, has substantial control over the entire scope of their lives, and therefore has decisive influence over how the center is perceived by its residents – whether an open facility with a civilian character, or a prison or detention facility with a criminal character (ibid., para. 144). However, I stressed that “it is possible that another normative approach for arranging the facility’s operation would pass the constitutional test even if the entity entrusted with its operation were the Prisons Service” (ibid., para. 146). The arrangement has essentially remained unchanged, and corrections officers continue to operate the residency center.

37.       What is the upshot of all this? It would seem that although there has been some mitigation of the infringement of human rights that was found in the prior version of Chapter D following Amendment 4, in view of the provisions regulating the lives of the residents of the residency center – including those in regard to when one must report to the center and when one may leave, who operates it and the authority granted him – the infringement of rights remains, and it is severe. As I noted in the Eitan case, “a proportionate normative arrangement must maintain a proper relationship between the extent of the limitation of rights in the facility and the maximum length of the stay therein, such that the more severe the limitation of basic rights, the shorter the period of imposed residence in the facility” (ibid., para. 162). The reason for this is that Chapter D is built as an equation. “One arrangement (like the rigid registration requirement) may be balanced by another arrangement (like fixing the period of residency for a shorter period)” (the Eitan case, para. 100). The twenty-month period established in the Law is a very long time (in fact, there is no parallel to such a period of residency in a residency center anywhere in the world, see: the comprehensive survey in the President’s opinion, paras. 101-105; and see: the Eitan case, para. 163). The time dimension substantially affects the infringement of the dignity of the person deprived of liberty. Depriving liberty for a short period allows a person to return quickly to his normal life. That is not so in the case of a very long period (the Eitan case, para. 154). Because the infringement of rights of imposed residence in the facility and the maximum term of that residence are inextricably tied, and in view of the extent of infringement of rights inherent in Chapter D, I am of the opinion that the maximum period of residence established by the Law does not maintain that proper relationship, despite the benefit it provides. The result is that secs. 32D(a) and 32U of the Law are disproportionate and therefore unconstitutional. Subject to the aforesaid, I concur in the opinion of the President and the relief she proposes.

            I will now proceed to an examination of an additional arrangement – that permitting the transfer of an infiltrator to detention.

 

Transferring an Infiltrator to Detention

38.       The State seeks to compel reporting to the residency center. It seeks to operate it in accordance with defined rules of conduct. To that end, it must hold “coercive power” that will deter infiltrators from perpetrating infractions (the Eitan case, para. 183). The State chose the means of detention of an infiltrator who perpetrates various infractions. The length of detention depends upon the type of infraction and the number of orders issued in regard to infractions committed. In the Eitan case, the periods of detention ranged from thirty days of detention for a minor infraction to a year for the repeated perpetration of certain infractions (ibid., para. 166). As I noted in the Eitan case, transferring a person to detention from the residency center (and even persons not in the residency center) infringes his constitutional right to liberty. This is so because “transfer from the residency center to a detention facility involves the limitation of various aspects of the right to liberty that are not limited merely to an amplified infringement of physical liberty […] [it] prevents the possibility granted to an infiltrator in the residency center to leave its confines at the permitted times; it limits the possibility of creating social relationships; it disrupts the routine that the infiltrator has adopted in the course of his stay in the center” (ibid., para. 168).

39.       In the Eitan case, I was of the view that sec. 32T – in its former version – also infringed the right of the infiltrators to due process, in addition to the infringement of their liberty. This section granted the Director authority to order the transfer of an infiltrator to detention without that decision being subject to automatic judicial review by any judicial or quasi-judicial body, other than for the grounds for release under sec 30A(b) of the Law, and did not comprise the appropriate “procedural guarantees” that are a precondition of the constitutional right to due process (the Eitan case, paras. 167, 179). The infringement of the right to due process was found to be disproportionate in the Eitan case. That conclusion obviated the need to examine whether the section passed the other constitutional criteria of the Limitation Clause due to its infringement of the constitutional right to liberty (ibid., paras. 183-184). I also noted that the issue of the independent infringement of the right to liberty was worthy of a separate examination in view of the periods of detention, inasmuch as placing a person in detention for extended periods “crosses the border between a ‘disciplinary’ sanction that is primarily deterrent and a ‘penal’ sanction that is of a retributive nature”. I took particular note of the fact that an overly long period of detention “may also be disproportionate (in and of itself) in view of its severe infringement of the right to liberty, even if the Director’s decision were subject to automatic judicial review” (ibid., para. 184).

40.       The current Law also authorizes the administrative agency – more precisely: the Director of Border Control – to impose punishment in the form of deprivation or restriction of a person’s liberty as part of the disciplinary arrangement. Before making such a decision, the Director is required to permit the infiltrator to “present his arguments to him” (sec. 32T(e) of the Law). To what extent is the Director able to make an informed decision in the matter before him? Needless to say, in making such a decision the Director is subject to the rules of administrative law, and he must observe them with utmost strictness. Inter alia, the infiltrator must be informed of the nature of the charge or claim against him, he must be given a fair opportunity to respond to the information provided in his matter, and appropriate arrangements must be made in view of the fact that some of the infiltrators do not know the language (see and compare, e.g: AAA 7201/11 Rahmani Ltd. v. Airports Authority, paras. 43-45 (Jan. 7, 2014) (hereinafter: the Rahmani case); AAA 1038/08 State of Israel v. Gaevitz (Aug. 11, 2009); LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697 (1998); HCJ 656/80 Abu Rumi v. Minister of Health, IsrSC 35(3) 185 (1981); Daphne Barak-Erez, Administrative Law, vol. I, 498-529 (2010)). The Director’s decision must also be grounded upon an appropriate factual foundation directly corresponding to the infringement of basic rights inherent in a decision to place a person in detention (see and compare: HCJ 394/99 Maximov v. Ministry of the Interior, IsrSC 58(1) 919, 928-931 (2003); HCJ 3615/98 Nimoshin v. Ministry of the Interior, IsrSC 54(5) 780, 787 (2000); and see: HCJ 7015/12 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 372 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]). However, the Law does not grant the Director such powers as the power to summon or subpoena witnesses. Such powers could serve to increase the probability that the proceedings will achieve a correct result and increase the chances that they will be fair from the perspective of the person charged, such that it will be easier for him to accept the result (see and compare: the Eitan case, para. 174). This is problematic in view of the degree of the infringement of rights.

41.       However, as opposed to the situation in Eitan case, under the current legislation the Director’s discretion is subject to the review of the Detention Review Tribunal (hereinafter: the Tribunal). The Director’s decision is examined de novo by the Tribunal, which can approve or reject the Director’s order (sec. 32T(h) of the Law). The Tribunal is not restricted to the grounds for termination of detention under secs. 30A(b)(1)-(3) of the Law, and it is also required to examine the lawfulness and reasonableness of the Director’s decision. To that end, the Director’s decision must be properly reasoned so that the considerations leading to the decision can be examined, and so that the decision can be subjected to judicial review (see and compare: the Rahmani case, para. 9 of the opinion of Justice Joubran). In my opinion, the Tribunal must address the Director’s findings in their entirety, in a manner similar to the “double instance” model. In other words, it must permit the resident of the center to present his arguments and submit supporting evidence (see and compare: Chemi Ben-Noon, The Civil Appeal, 13 (3^rd ed., 2012)). To that end, the Tribunal, as opposed to the Director, holds broad powers by virtue of the fact that it exercises its review in accordance with the Administrative Courts Law, 5752-1992 (see the opinion of the President, para. 110). It should be stressed that the current procedure establishes self-initiated review by the Tribunal, with no need for the infiltrator to “start” the procedure himself. This represents an improvement over the situation prior to the Eitan case. However, as can be understood from the language of the section, the Tribunal is required to examine the Director’s discretion only after he has decided upon a transfer to detention. Although the infiltrator must be brought before the Tribunal “as soon as possible”, his first appearance before it may take place only 96 hours after his confinement in detention (sec. 32T(g) of the Law). This is no insignificant amount of time (see: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case); sec. 237A of the Military Justice Law, 5715-1955 (hereinafter: the Military Justice Law); sec. 29(a) of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996; but see: sec. 13N(a) of the Entry into Israel Law, which establishes that “a person held in detention will be brought before the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of his custody”).

42.       In any case, and even assuming the sufficiency of the judicial review established by the Law, granting such authority to an administrative agency is exceptional. In the Eitan case I noted that “the authority to limit and supervise liberty is at the core of the role of the judiciary” (ibid., para. 179). It is the judiciary that administers the criminal law. In order to ensure the constitutional protection of the right to liberty, criminal law establishes strict rules of procedure and evidence that govern the judicial supervision of interrogation and the manner in which a person’s guilt will subsequently be decided (Ron Shapira, An Administrative Procedure establishing the Boundaries and Scope of Criminal Punishment, 12 HaMishpat – Adi Azar Volume, 485, 488 (2007) (hereinafter: Shapira)). Nevertheless, Israeli law provides several examples in which an administrative agency is granted authority to restrict a person’s liberty. First, in hierarchic organizations that by nature require the observance of strict disciplinary rules, the legislature granted authority to an administrative organ to deprive a person’s liberty as punishment for breaches of disciplinary rules. Such rules – found in the armed forces, the Prisons Service and the police – permit judicial officers or disciplinary tribunals to impose penalties of confinement or detention a person who has committed disciplinary offenses under the relevant rules (see: secs. 152-153 of the Military Justice Law; secs. 110(30) and 100(44) of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance); secs. 37 and 51 of the Police Law, 5766-2006 (hereinafter: the Police Law)). Second, in situations concerning the enforcement of discipline in prisons and detention centers, the authority administering the prison or detention facility is authorized to order that a prisoner or arrestee be held in solitary confinement or – in the case of prisoners – to order a reduction of days of administrative or early release (see: sec. 58 of the Prisons Ordinance; sec. 10(b) of the Arrests Law).

43.       As we see, the legislature recognizes that in certain hierarchic systems the administrative agency is authorized to impose punishment that includes the denial of liberty for disciplinary purposes (see: Shimon Shetreet, Administrative Fines: Criminal Punishment by the Administration, 2 Mishpatim 577, 579-581 (1970)). Nevertheless, these arrangements should not be understood as indicating that the task of criminal punishment can be taken out of the hands the judiciary. We must, therefore, carefully consider the delicate distinction between disciplinary punishment and criminal punishment: in appropriate circumstances, disciplinary punishment can be entrusted to an administrative agency (but see: Shapira on the importance of judicial review over the decisions of the administrative body, in the case addressed there, the Prisons Service, ibid., pp. 488-493). However, if the Director of Border Control be granted authority to impose criminal punishment upon an infiltrator, that will not stand. It would constitute an overly severe infringement of rights – the right to liberty and to due process, which are interrelated. Seemingly disciplinary deprivation of liberty that crosses the Rubicon to the “criminal” coast requires a criminal process in a court of law that will ensure due process. Criminal punishment is permitted to the court and only the court, not retroactively and after the fact, not as “judicial review”, and not even by rehearing. What is required is a criminal process in a court, in accordance with all its rules and regulations.

44.       The question of the location of the border between punishment that serves essentially retributive objectives (criminal punishment) and punishment intended for deterrent, disciplinary purposes is difficult to resolve. It would seem that here, too, “there is great confusion and uncertainty”, and “it may be that the said theoretical issue has not yet been adequately developed” (CrimA 758/80 Yesh Li Ltd. v. State of Israel, IsrSC 35(4) 625, 629 (1981) (hereinafter: the Yesh Li case) (on the question of whether a particular fine constitutes criminal punishment); and see: LCA 4096/04 Boteach v. State of Israel, IsrSC 59(1) 913, 917-920 (2004) (hereinafter: the Boteach case)). This matter requires an interpretive solution. “Through interpretation we must locate the ‘genetic code’ of the principle under examination – in other words, its substance and character, and whether it is indeed ‘criminal’ or not” (HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, para. 6 of the opinion of Justice M. Naor (June 15, 2011) (hereinafter: the Passport Regulations case); and see: the Yesh Li case, p. 629; LA 277/82 Nirosta Ltd. v. State of Israel, IsrSC 37(1) 826, 830 (1983); CrimA 474/65 Miromit Metal Works v. Attorney General, IsrSC 20(1) 374, 376-377 (1966)). This classification depends upon the circumstances of the matter and the language of the authorizing legislation (and see the example in the Passport Regulations case, para. 10).

45.       This is the crux of the matter: the Director of Border Control is authorized to issue orders to transfer a person to detention for periods that may reach 75, 90, or 120 days. In other words, for various disciplinary violations – like absence from the residency center or not reporting on time to renew a temporary visitor’s permit under sec. 2(a)(5) of the Entry into Israel Law – the Director of Border Control may “sentence” an infiltrator to prison-like punishment for a period of three or even four months. Is this “criminal” as opposed to “disciplinary” punishment? We will begin with the interpretation of the provision. In my opinion, we can be aided in this by examining the character of the disciplinary “offense” and whether or not it is part of the criminal corpus (the existence of a parallel criminal norm may support the view that we are not concerned with a disciplinary means, but rather an attempt to create a “by-pass” of the criminal process, and see the decision of the European Court of Human Rights in Campbell v. United Kingdom, 7 E.H.R.R. 165 ¶ 68 (1984) (hereinafter: the Campbell case)); the severity of the offense (the greater the severity with which the offense attributed to the person is viewed, the greater the tendency to view its punishment as criminal); the maximum term of deprivation of liberty (a longer period brings the punishment closer to criminal punishment, while a shorter period is more indicative of disciplinary punishment); and the manner for implementing the punishment (the greater the punishment infringes liberty, the more the scales tip towards a criminal classification) (see and compare the case law of the European Court of Human Rights that addressed the question of when a person subjected to a disciplinary penalty is entitled to the defenses under Art. 6 of the European Convention on Human Rights that establish procedural safeguards for a criminal defendant: Engel v. The Netherlands, 1 E.H.R.R. 647 ¶ 82 (1976); the Campbell case, paras. 69-73; Ezeh v. United Kingdom, 39 E.H.R.R. 1 ¶ 82-86 (2003). In the latter case, the European Court noted that the criteria are not cumulative conditions, and that there may be instances in which the presence of one of them may suffice to show that the penalty under examination belongs to the criminal “sphere”, ibid., para. 86).

46.       We will now apply these tests to the arrangement under review. First, in regard to the existence of a parallel criminal norm, we find that an examination of sec. 32T of the Law shows that there is no parallel criminal offense for some of the violations enumerated there, whereas in regard to so some of them – “Causing substantial damage to property” (sec. 32T(a)(3) of the Law) and “Inflicting bodily injury” (sec. 32T(a)(4) of the Law – one can think of criminal offenses that might be applied when needed. This test does not, therefore, tilt the scale to one side or the other. This is also true in regard to the severity of the offenses, some of which relate to obeying the conduct rules of the residency center (like the registration requirement), while others, as noted, relate to more severe harm to property or person. Thus, neither of these two subtests yields an unequivocal result. However, the two other subtests do, in my opinion, point to the view that we are concerned with essentially criminal punishment. In regard to the manner of implementing the punishment, we are concerned with transferring a person to detention in conditions similar to imprisonment. This is, of course, a very severe sanction in terms of its infringement of liberty (and see: the Eitan case, para. 47). The length of the deprivation of liberty also supports this conclusion. Some of the periods of detention established in this section are unquestionably long, reaching 120 days – or four months – of deprivation of liberty. My colleague the President emphasized that these are “maximum” periods that need not be fully “exploited” (para. 112 of her opinion). In my opinion, that does not put the matter to rest. In the Eitan case, in response to the opinion of President A. Grunis, I addressed the question of the weight that should be given to the fact that the law authorized the Director of Border Control to order that an infiltrator remain in the residency center “until the date that shall be established”. I pointed out that in accordance with my approach, the discretion granted to the Director did not change the fundamental principle, inasmuch as while the Director was authorized to set a date, the beginning of the section concurrently granted him the authority not to set any date. The Director may indeed properly exercise his discretion and refrain from placing an infiltrator in detention for the long periods stated by the Law. But we cannot hang our hopes solely on the grace of the administrative authority’s discretion and on its choice to set punishment at the lower end of the scale permitted by the Law. We must look the Law in the eye. The legislature entrusted the administrative agency with the possibility of imposing prison-like punishment for months. The authority was thus granted, and it – rather than the individual discretion – is now under our review.

47.       Lastly, I would propose that we examine the balances achieved by the legislature in similar situations, as “in our legal tradition, we accept that a statement in one text may be interpreted by examining the meaning of a similar statement in another text” (Aharon Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, 243 (1995) (hereinafter: Barak, Interpretation)). Parallel disciplinary arrangements in Israeli law limit the deprivation of liberty to much shorter periods than those established under sec. 32T of the Law. In the armed forces, as my colleague the President noted, a senior judicial officer can sentence a soldier to detention for a maximum of 35 days. If an additional punishment is imposed before the soldier has served the entire sentence, the soldier will serve both sentences, but with the proviso that the maximum period of consecutive detention not exceed 70 days (see sec. 153(a)(6) and sec. 162A of the Military Justice Law; para. 112 of the President’s opinion). In the case of a corrections officer, a disciplinary tribunal can impose a maximum of 45 days detention for a conviction for a disciplinary offense. If the corrections officer is sentenced to an additional term of detention before serving the prior sentence, he will serve the longer of the two, but the panel may order that the sentences be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 110(44)(5) and sec. 110(61) of the Prisons Ordinance). A disciplinary tribunal can sentence a police officer convicted of a disciplinary offense to a maximum of 45 days detention (sec. 51(a)(5) of the Police Law). Here too, if the police officer is sentence to an additional term of detention while still serving another sentence, he will serve the longer of the two, but the panel may order that the terms be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 66 of the Police Law). It would not be superfluous to note that the authority to impose such maximum sentences upon police and corrections officers is granted to a three-judge panel, and two of the judges must be jurists (see sec. 110(37) of the Prisons Ordinance and sec. 44 of the Police Law). It thus appears that where Israeli law sets time limits upon the authority it grants to an administrative entity to deprive a person of his liberty for disciplinary purposes, the accepted time limit is 45 days for a single disciplinary offense, and no more than 70 consecutive days for several offenses.

48.       Note well that sec. 32T of the Law establishes a “scale of severity” for punishment that is contingent upon the question of how many times an order for detention has been issued “for the same cause”. Thus, for example, if such a detention order has been issued twice for an offense under sec. 32T(a)(5) of the Law (working in contravention of sec. 32F of the Law), such that the infiltrator has twice been placed in detention for the offenses he was “found” to have committed, he can be sentenced to detention for a period of 60 days for the third offense (sec. 32T(b)(3)(c) of the Law). But this is not like the provisions in regard to an “additional” detention sentence I referred to above. Those provisions treat of a situation in which the person was sentenced to an additional term while serving the first. In such cases, the relevant legislation establishes that even in the case of consecutive terms, the total cannot exceed 70 days. None of the disciplinary arrangements that I addressed permit a similar term of punishment for one disciplinary offense (even if preceded by additional offenses for which the term of punishment has been served). As opposed to this, in the matter before us the Director is authorized to order detention for such a period – and even longer – for one infraction (even if it is the third infraction). From a comparative perspective, as my colleague Justice H. Melcer notes in his opinion, a breach of the restrictions applying to “persons who infiltrated into Germany who are asylum seekers” leads to the criminal track (see para 10 of his opinion). That is not the case here.

49.       It would appear from the above that the provisions established under sec. 32T of the Law cross the boundary between disciplinary and criminal punishment. That being the case, such authority cannot be entrusted to the Director or to any other administrative entity. Of course, the legislature enjoys broad discretion in regard to the length of administrative punishment. It need not precisely adopt the periods established in other arrangements that apply to soldiers, police or corrections officers. However, the periods established in the Prevention of Infiltration Law are very far from those – too far. They do not meet the test of proportionality stricto sensu, which as the President noted, is the primary test in this matter (para. 111 of her opinion). Operating a facility in which residence is imposed requires rules. Those rules require enforcement or they will be futile. But not anything goes. We should emphasize that when appropriate, the state can, of course, institute criminal proceedings “that by nature allow for the imposition of severe punishment” (the Eitan case, para. 184). But such authority cannot be granted to an administrative body, even if its decisions are subject to self-initiating judicial review. As I noted in the Eitan case, “such a sanction cannot stand, regardless of whether or not it is followed by judicial review” (ibid., para. 184). My conclusion is, therefore, that such authority is not proportionate relative to its inherent harm.

 

The Relief

50.       I have reached the conclusion that sec. 32T of the Law is unconstitutional. This constitutional defect cannot be remedied by interpretation, and there is no recourse but to declare the section void. In the Eitan case, I proposed to my colleagues that we read the section such that the Director would be authorized to order the detention of an infiltrator for no more than thirty days for each of the causes set out in the section, and that those in detention on the date of the judgment be released thirty days after the beginning of their detention, or on the date set by the Director, whichever be shorter (ibid., para. 191). This time – in view of the automatic judicial review of the Director’s decisions that was added to the Law – I would propose that the declaration of voidance be held in abeyance for six months. During that period, or until an alternative arrangement be adopted, sec. 32T will remain in force but will be read such that no detention order will be issued for a period exceeding forty-five days for any of the causes under the section (in accordance with the rule for disciplinary punishment for one infraction). Those held in custody on the day of this judgment by virtue of an order issued by the Director will be released forty-five days from the beginning of their detention or at the conclusion of the term set by the Director, whichever is shorter.

 

Approaching the End – Comments on the Future

51.       The result I have ultimately reached at the conclusion of the legal examination is as follows: Sections 30D(a) and 32U of the Law are void. Section 32T is void. What shall the Knesset do now? The dialogue will continue. The same legislation cannot be restored as if nothing has happened (see the opinion of then Deputy President M. Naor in the Eitan case, para. 3). The Knesset can enact a legislative arrangement that will meet constitutional criteria. The long detention periods established under sec. 32T of the Law can be replaced with shorter periods. The Knesset can replace the section that I propose be declared void – setting the maximum period of residency in the residency center – with one that establishes a different, significantly shorter period that would pass constitutional review. The legislature can also consider other, new possibilities. In this regard, I would like to add a further comment.

52.       As earlier noted, the Prevention of Infiltration Law permits the Director to issue a residency order to any infiltrator regarding whom there is a problem “of any sort” in regard to his deportation (sec. 32D of the Law). The administrative agency set criteria for itself in this regard. Under those criteria, which were published on the website of the Population and Immigration Authority and dated July 14, 2015, the infiltrators who can be issued a residency order are “Sudanese nationals who infiltrated into Israel before Dec. 31, 2011” and “Eritrean nationals who infiltrated into Israel before July 31, 2011, including those who received a B/1 residency permit until now”. In other words, the administrative agency chose to apply the arrangement established by the Prevention of Infiltration Law to “old” infiltrators – those who arrived in Israel nearly four years ago. I do not intend to decide the various question these criteria raise. As I have already noted, inasmuch as these criteria involve an infringement of the right to liberty and the right to dignity, the question arises as to whether they should have been established in primary legislation (the Eitan case, para. 91). I would now like to emphasize only that in my opinion the scope of the infringement of rights, as well as the effectiveness of the residency center, differs in regard to two populations -- the first, “old” infiltrators, and the second, “new” infiltrators. The infringement of the rights caused by Chapter D of the Law is far greater for the first group. Most of the “old” infiltrators – the ones being sent to Holot under the criteria established in this regard – have established themselves in the urban centers. Severing them from the lives they have already built, “yanks” them from their jobs, housing, social environment and so on in one fell swoop. This is a more severe infringement of their right to dignity and liberty, and the benefit achieved in terms of preventing them from settling is limited. That is certainly the case in regard to the purpose of “responding to the needs”. As opposed to this, in regard to the second group – the group of “new” infiltrators – it would appear that the infringement posed by Chapter D is less severe. In their regard one might even say that we are not concerned with retroactively “changing the rules of the game” (as Justice I. Amit noted in para. 1 of his opinion in the Eitan case). Even after we found that the deterrent purpose is improper, we can say that the infringement of the rights is inestimably less in regard to a person who knows that he is going with opened eyes to a state where these normative arrangements are in place, as opposed to a person who is torn from his daily life and then returned to it after no insignificant time. Thus, the harm to these “new infiltrators” in the residency center is at a lower level than the harm incurred by the “old” infiltrators”. As opposed to this, the benefit achieved in relation to the purpose of preventing settling is greater, as they have not managed to situate themselves. The upshot of the above is that nothing prevents establishing different “ceilings” for the two groups. Such an approach would also allow the state to respond to a situation in which the trend of compelled immigration to Israel changes (for example, as a result of the closure of immigration routes to Europe), in accordance with its position – with which one must agree – that a fence alone is insufficient to stop the infiltration phenomenon (see p. 58 of the response; I also noted that a fence alone is inadequate in the Adam case, para. 25 of my opinion; and in the Eitan case, para. 64). Of course in any case, as the President pointed out, residency orders must be issued on an individual basis, and it would be unacceptable to issue residency orders in accordance with a “uniform outline”, i.e., for a fixed period in regard to each population group (para. 96 of the President’s opinion).

53.       Lastly, we should stop to consider a question that arose in the Eitan case, and that arises again here in regard to the relationship between the constitutional examination and the administrative examination. The questions that arise in regard to who will be sent to the residency center, what conditions will be provided for the resident of the center, and where the center will be located are primarily administrative, and are addressed in regulations and decisions made by virtue of the Law. The State and the Petitioners disagreed on these matters, and I am of the opinion – as was my opinion in the Eitan case – that this proceeding is not the appropriate forum for their examination. However, before concluding I would note that a different implementation of the Law could also have affected the examination of its proportionality. If those held in the residency center enjoyed better conditions, if the “pocket money” would afford them greater autonomy, if the residency center were not so far removed from populated areas, it would have influenced the margin of proportionality, and thus the question of constitutionality.

 

Conclusion

54.       It is well known that “constitutional democracy is a delicate balance between majority rule and fundamental values that control that majority” (Barak, Proportionality, p. 113). This balance was upset in the matter before us. If my opinion were heard, we would declare the annulment of secs. 32D(a) and 32U of the Law, and the annulment of sec. 32T of the Law. Indeed, special care is required when we are confronted with a second constitutional review of the same legislative provision (see the Eitan case, para. 23), and all the more so in the case of a third review. But we must not hesitate to declare the nullity of an unconstitutionality law. We nay not hesitate is such cases. This is true a fortiori when the matter before us concerns the core human rights of a vulnerable population. This is the raison d'être of constitutional review. Although this is always the last resort, there is but one result for unconstitutional legislation – annulment.

 

Justice I. Amit:

1.         The productive dialogue between the legislature and the judiciary continues as we now enter the third round in regard to the constitutionality of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), which is unprecedented in our constitutional law.

Once again we are concerned with two primary pillars of that Law: detention under sec. 30A of Chapter C of the Law, and the erection of a residency center and the modes of its operation under Chapter D of the Law.

2.         As in the Eitan case (HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)), I remain of the view that insofar as the Law’s purpose and proportionality, we must view its two main pillars as a dichotomy. In my opinion, the state is permitted to adopt a strict external policy in regard to immigration, with a view to the future and in addressing potential infiltrators. In contrast to that strictness, the state should show compassion and humanity internally in regard to the past, i.e., in regard to those who have already entered the country years ago, before the legislature changed the “rules of the game”.

            I will say a few words about the current version of Law against the background of this dichotomy.

3.         Section 30A of the Law: In the Eitan case, I pointed out that the section is directed to the future, outside the fence and over the border, and to a non-particular population of potential infiltrators. I was of the minority opinion that there was no flaw in establishing a one-year period of detention, and I noted that putting a stop to the infiltration phenomenon was a proper purpose:

…intended to protect a broad range of substantive interests of the state and of Israeli society – preservation of the state’s sovereignty, character, national identity, and socio-cultural atmosphere, along with such other aspects as population density, welfare and economy, internal security and public order. Just as the state was entitled to erect a physical border barrier against those seeking entry, so it is entitled to erect a normative barrier as a complementary means of defense.

            In view of these interests, I am of the opinion that there is nothing wrong with reducing the incentives for potential infiltrators to come to Israel, and for the reasons I gave in the Eitan case, I do not believe that the deterrent purpose changes a potential infiltrator from an end to a means.

            That is what I thought in the Eitan case, and all the more so following the current amendment that reduces the detention period and sets it at three months. I can thus easily concur with the President’s conclusion that the amendment to sec. 30A of the Law passes the tests of the Limitation Clause.

4.         Chapter D of the Law: I will repeat what I said in the Eitan case. Chapter D of the Law “turns its glance inward, and imposes severe restrictions upon a particular population composed of people who have been in the country for a number of years…the residency centers created by the Israeli legislature entirely deviate from the character and purpose of the residency centers in various European countries”. Indeed, as time passes, the clearer it becomes that this was not what we envisioned, as the President stated in her opinion (para. 57).

5.         Look how many purposes the parties have piled upon the narrow shoulders of Chapter D of the Law:  stopping the infiltration phenomenon and preventing future infiltration in terms of a normative block to potential infiltrators; preventing settling in the urban centers; providing an appropriate response to the needs of the infiltrators; ensuring the departure of infiltrators; preventing infiltrators from earning and reducing the economic incentive for staying in Israel; breaking the spirit of infiltrators and encouraging them to leave Israel.

            As the President noted (para. 105 of her opinion), it would appear that no western country maintains residency centers that are not voluntary, for such long periods of time, and whose purpose is population distribution. The Israeli model is unique, and in practice, it is not intended for population dispersion, as argued, but rather to concentrate the population in one facility that is remote from any settled area.

            The current Law adopts a system of “centrifugal circulation” by means of removing the infiltrators from the urban centers, spinning them out to the edge of the desert for twenty months, and then back to the urban centers, while removing others from the urban centers “to take their place” in the residency center. This twisted path of constant turnover of infiltrators – described by Justice Vogelman as “a revolving door” – raises the suspicion that behind the declared purpose of preventing the infiltrators from settling in the urban centers hides a purpose of subjecting the infiltrators to a “run around” intended to break their spirit, as claimed by the Petitioners. I therefore join Justice Vogelman in regard to the questions he raised as to the gap between the declared purpose and the hidden purpose of the Law in his discussion of the purpose of encouraging voluntary emigration.

            At the end of the day, I took the State at its word, and I can but join in the position of my colleague Justice Vogelman that the purpose of preventing settling should be interpreted as “alleviating the burden” on the cities, particularly south Tel Aviv. This is a proper purpose, and there are, therefore, no grounds for annulling Chapter D on the basis of its purpose. I would note that the term “settling” normally refers to a person’s dwelling. In this regard, to the extent that the Law is intended to reduce the scope of infiltrators living in the cities, as opposed to working and staying there, it is a proper purpose that could also be achieved by erecting residency centers outside or on the outskirts of the cities, and not necessarily in a place as remote as Holot. It would therefore be more correct to examine the constitutionality of the Law in terms of proportionality rather than purpose, as the President did in her opinion. In this regard, I would say that the question of the location of the residency center is critical, inasmuch as the Law’s proportionality is not examined in a vacuum, but rather in the context of a particular reality. The current residency center is remote and isolated from any population center, and the daily pocket money given to its residents is insufficient for even one trip to the closest city.

            True to my approach that preventing a renewal of the infiltration phenomenon is a proper purpose, I believe that it is also proper in the framework of Chapter D as a purpose in and of itself and not merely as an attendant purpose. I am therefore of the opinion that there is no reason not to apply the provisions of Chapter D, as written, prospectively to potential infiltrators in the future, even for a period of twenty months. In other words, an infiltrator who entered Israel after the enactment of the Law is subject to the provisions of sec. 30A(k) of the Law, and the provisions of Chapter D, including the twenty-month period as stated in secs. 32D and 32U. That is not the case in regard to infiltrators already living in the country, regarding whom the twenty-month period fails the third subtest of proportionality, and I concur with the opinion of President M. Naor on this point.

            The claimed purpose of “providing a response to the needs of the infiltrators” is unquestionably a proper purpose. However, the “translation” of this purpose against the background of Chapter D of the Law as currently implemented leaves this purpose devoid of any content, and it therefore fails the very first test of proportionality.

6.         In the Eitan case, we addressed several parameters that, taken together, presented a less-than-heartwarming picture of the character of a residency center, and we annulled various specific arrangements related to Chapter D of the Law. We will now continue down that path, without entirely uprooting Chapter D.

            The bottom line is that in view of Chapter D’s severe, inherent infringement if liberty, I concur with the opinion of the President according to which a period of twenty months in regard to “old” infiltrators is disproportionate. I also concur with the relief that she proposes.

            In addition, in order to blunt the infringement of liberty to the extent possible, I concur with the view of my colleague Justice U. Vogelman in regard to the annulment of sec. 32T of the Law. There may be reason to revisit this matter, should severe disciplinary problems arise in the residency center in the future.

 

Justice S. Joubran:

1.         The law under review – the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) – comes before this Court for the third time. My colleagues have addressed the constitutional issues raised by this case in great depth, and it would appear that deciding this petition boils down to three central questions: first, whether or not the arrangement currently established under sec. 30A of the Law, concerning the possibility of holding an infiltrator against whom a deportation order has been issued in detention for a period of three months, is proportionate; second, whether or not the arrangement currently established under secs. 32D and 32U of the Law, concerning the length of an infiltrator’s stay in a residency center, is proportionate; and third, whether or not the arrangement currently established under sec. 32T of the Law, concerning the authority of the Director of Border Control (hereinafter: the Director) to transfer an infiltrator from a residency center to detention for disciplinary infractions, is proportionate.

2.         My colleagues President M. Naor and Justice U. Vogelman agree that the answer to the first question is that the arrangement is proportionate and therefore constitutional, while the answer to the second question is that the arrangement is not proportionate and therefore unconstitutional. However, they disagree as to the answer to the third question.

3.         Like my colleagues, I am also of the opinion that sec. 30A of the Law should remain in force, subject to the interpretation set out in the opinion of my colleague the President (the first question above), whereas the maximum period established under secs. 32D and 32U of the Law for remaining in a residency center must be annulled (the second question above). I see no need to set out my reasons in detail, in view of the comprehensive opinions of my colleagues. In short, I would note that I, too, am of the opinion that the current version of sec. 30A of the Law meets the criteria of the Limitation Clause, primarily in view of the shortening of the maximum period for holding a person in custody. To clarify this point, as I explained in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)), and as my colleague the President explained in her opinion, the purpose of preventing infiltrators from settling is a proper purpose. This conclusion is based upon the state’s right to establish an immigration policy, inter alia, to limit undesirable demographic changes that are an unavoidable consequence of illegal immigration, and of infiltration in particular. I addressed this in para. 7 of my opinion in the Eitan case:

In Israel, these changes have resulted in undesirable consequences such as a rise in crime, a burden upon the state budget and the health and welfare systems in certain areas, problems in enforcing civil obligations such as tax payment, and more (see: paras. 6-11 of the State’s response of March 11, 2014).

            As I believed in the past, and as I continue to believe, although the immigration policy, by its very nature, restricts certain basic rights, that is insufficient to deny that its purpose is proper. The comparison to principles of international presented by my colleague the President in paras. 68-73 of her opinion reinforces that view. In accordance with those principles, means that restrict freedom of movement, and at times, the infiltrators’ right to liberty, may be adopted in exceptional circumstances. Therefore, in my view, the purpose is proper, and sec. 30A of the Law meets the other criteria of the Limitation Clause, as my colleagues explained in detail.

4.         Notwithstanding the finding that the Law’s primary purpose is proper, I, too, am of the opinion that secs. 32D(a) and 32U do not meet the test of proportionality stricto sensu, in view of the  twenty-month period in which an illegal alien may be held in a residency center. As my colleagues explained, the time period influences the extent of the infringement of the rights of the infiltrators in a manner that does not maintain a proper relationship between the cost and the benefit. Therefore, I, too, see the maximum period for holding a person in a residency center as disproportionate, and it must be annulled.

5.         However, in regard to the disagreement between my colleagues in regard to the third question – whether or not the arrangement granting authority to the Director to transfer an infiltrator from a residency center to detention for disciplinary offences is proportionate – my view is as that of President M. Naor. I, too, believe that there is significance to the marked shortening of the maximum periods for detention, the fact that transferring an infiltrator is subject to the causes set out in the Law, and the fact that the Director’s decision is subject to an automatic judicial review process within 96 hours of the beginning of detention. I find that in terms of proportionality stricto sensu, the arrangement established under sec. 32T of the Law is proportionate in maintaining the proper relationship between its cost and benefit, and therefore, as my colleague the President demonstrated, it is constitutional.

6.         As opposed to that, my colleague Justice U. Vogelman is of the view that the arrangement is unconstitutional, primarily due to the fact that the arrangement’s provisions cross the line between disciplinary and criminal punishment. My colleague Justice Vogelman notes, in para. 42 of his opinion, that granting such authority to an administrative agency is exceptional, and further suggests comparing the administrative organ in the matter before us (the Director) to hierarchic organizations in which an administrative organ is granted the authority to deny a person’s liberty as a punishment for violating disciplinary rules (para. 47 of his opinion). Thus, Justice Vogelman points to the disciplinary arrangements under Israeli law that apply to the armed forces, the Prisons Service, and the police, and finds that those arrangements deny liberty for shorter periods than those established under sec. 32T of the Law.

7.         As for myself, I do not believe that an analogy should be drawn between the infiltrator population and soldiers, corrections officers and police. Indeed, from the perspective of the holder of authority, we are concerned with an administrative organ in both cases. However, from the perspective of those punished, we are concerned with groups that are essentially different. The infiltrators constitute a group that is, a priori, in violation of the law by reason of illegally entering or living in the country. As opposed to this, the group comprising soldiers, corrections officer, and police is one of professionals in the service of the state. When an infiltrator commits a disciplinary offense, that offense is additional to the offense that he has already committed (without entering into the question of why he may have entered the country illegally). As opposed to that, when a soldier, corrections officer or police officer commits a disciplinary offense, he does so in the course of the performance of his duty. The right to liberty is important in both situations, and the need to refrain from infringing it should not be taken lightly. But I believe that we should draw a distinction between a group of people that is subject to the authority due to a violation of the law, and one subject to the authority in the framework of the performance of its duty in the state’s service. I am, therefore, willing to accept an arrangement that grants an administrative organ the authority to deny liberty for a longer period when we are concerned with the former group.

8.         I would add that unlike Justice Vogelman, who believes that “we cannot hang our hopes solely on the grace of the administrative authority’s discretion and on its choice to set punishment at the lower end of the scale permitted by the Law” (para. 46 of his opinion), I agree with my colleague the President (para. 112 of her opinion) that we need not fear that the Director will choose to “exploit” the maximum periods established by the Law to their full extent.

            As a rule, I do not think that we should cast a priori doubt upon the ability of an administrative or judicial organ to exercise appropriate discretion in a particular case before it. The Law establishes that the Director may order the detention of an infiltrator who committed one of the acts listed in sec. 32T(a) of the Law for a period not exceeding the periods set out in sec. 32T(b) of the Law. In this regard there would seem to be no difference between the maximum periods of detention established under sec. 32T(b) of the Law and, for example, the maximum penalties established in the criminal law. Just as criminal offenders are sometimes sentenced to only a few months of imprisonment, and sometimes to the maximum years of imprisonment established by law (or nearly so), so it is with regard to the transfer of infiltrators from a residency center to detention – sometimes they will be sent for the shorter periods established in the Law, and sometimes for the maximum.

            It should further be emphasized that if a suspicion of defective exercise of the Director’s discretion arise, his decision is subject to automatic judicial review of the Detention Review Tribunal for Infiltrators (sec. 30T(g) of the Law; and see: para. 110 of the opinion of my colleague the President). I have therefore reached the conclusion that the arrangement established under sec. 32T of the Law is proportionate.

9.         In light of all the above, I concur in the opinion of my colleague President M. Naor.

 

Justice N. Hendel:

1.         This is the third incarnation of petitions challenging the constitutionality of amendments to the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law). In practice, we are concerned with a single cluster and a dynamic of amendments to amendments against a background of significant changes in the infiltration phenomenon over the last few years. On three occasions, including this one, the Court has granted the petitions. It was held that the Law, as amended, was tainted by unconstitutionality. In brief, HCJ 7146/12 Adam v. Knesset (Sept, 16, 2013) held that an infiltrator could not be held in custody for three years; HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) held that twelve-months custody was unconstitutional, as was the residency center in Holot in the format then established by the Law. The current case does not intervene in the amended period of custody, but found flaw in in the twenty-month maximum for being held in the residency center. The state was therefore granted an extension to amend the Law, and it was held that in the interim it would only be permissible to hold infiltrators in a residency center for no more than twelve months.

2.         There have been developments in the field over the course of the relevant period. In 2009, 5,235 infiltrators entered Israel; in 2010 – 14,702; and in 2011 – 17,312. The Israeli government, which is responsible for immigration policy and the borders, contended with the phenomenon. Over the last three years, the upward trend was halted. In 2012, 10,441 infiltrators entered Israel. In 2013 – 45 infiltrators; in 2014 – 21 infiltrators; and in the first quarter of 2015 – only 4 infiltrators. It would seem that two primary elements contributed to the decrease: a physical barrier in the form of a border fence on the Israel-Egypt border, and a normative barrier – the provisions of the Infiltrators Law. The contribution of each element is the subject of debate, but in my view, there is no denying that the combination left its mark.

            Other changes concern the number of infiltrators who left the country. 6,414 infiltrators departed Israel in 2014, and 747 departed in the first quarter of 2015.  As of the end of this year, there are 45,711 infiltrators living in Israel, as opposed to some 50,000 who were living in Israel when the Eitan case was decided at the end of September 2014. In this regard we should take note of the principle of non-refoulement, which establishes that a person cannot be removed to a place in which he would be in danger. This principle is especially relevant to Eritrean nationals. There are also various problems in regard to citizens of North Sudan, due to a lack of diplomatic relations. Therefore, the infiltrators left to a “third state”. The current picture is that while there is a reduction in the number of infiltrators entering Israel, that is not so in in the case of the number of infiltrators already in Israel.

3.         I have carefully read the opinion of President M. Naor. Her conclusion is that the period that a person may be held in a residency center – twenty months – is too long and must be annulled. The opinion is clearly set out and comprehensive. It emphasizes that the Court is again of the opinion – for the third time – that there is an unconstitutional, disproportionate infringement of human rights, and the Court must intervene. I do not disagree with this principle, as such. However, I have a different perspective of the case before us. Just as it is the Court’s duty to intervene when such a defect is found, it is a judge’s duty to present his position and reasoning when he concludes that the Court should not intervene.

            In my view, the result that the law be changed three times – even if possible – is far from desirable. As a matter of constructive criticism, and so that this situation not repeat itself, all of the parties – the Knesset in legislating and the Court in constitutional review – must consider whether it was possible to prevent this situation.

            Before addressing the core of the decision and its reasoning, I will note that in the Adam case I – like my colleagues – was of the opinion that holding a person in custody for a period of three years, whatever the intention, requires the conclusion that the provision be annulled, inasmuch as it constituted punishment. In my dissenting opinion in the Eitan case, I – and my colleague President (Emeritus) A. Grunis – took the view that a twelve-month period of custody fell within the margin of constitutionality, and a residency center for a period of three years (under the Temporary Order) meets the constitutional test of sec. 8 of Basic Law: Human Dignity and Liberty. Against this background, it should come as no surprise that in the present case, as well, I am of the opinion that the petition should be denied. However, in view of the result reached by the majority in this case, I believe that I should present additional, new reasons that justify not annulling the amendment to the Law, in addition to what I and President (Emeritus) Grunis wrote in the Eitan case, to which I will add several matters required in this petition.

            I find it appropriate to emphasize three levels. The first concerns the relationship between this Court and the legislature. The second concerns the justification for the type of intervention proposed. The third focuses upon examining the issue of annulment on the merits. Each level provides a different perspective grounding the result that we should not intervene constitutionally.

 

A. The Constitutional Discourse between the Court and the Legislature

4.         An important principle is that the Court must not order the revocation of a law for constitutional reasons unless there is no recourse. This power of the Court has been described as a “non-conventional weapon”. Its use must be measured and careful. Each branch has its function. So it is in regard to the first amendment to the Law, a fortiori in regard to the second, and all the more so in regard to the third.

            It can be said that the residency center was “born” as a result of our comments in the Adam case. In the Eitan case, in the framework of the constitutional review pertaining to a residency center, this Court emphasized the restrictive conditions of staying in a residency center, primarily the requirement to register three times a day – morning, noon, and evening; the absence of grounds for release from the center; and the fact that the period of residency in the center had not, in practice, been limited. My opinion was that the arrangement could be understood as limited to three years. However, the majority opinion emphasized that the individual infiltrator was left uncertain as to the end of his stay at the residency center. According to this approach, it was not possible to rule out the possibility of an extension of the Temporary Order even beyond three years.

            My colleague Justice Vogelman, who wrote the opinion of the court in the Eitan case, noted:

The constitutional examination does not end with the question whether each particular provision – standing on its own – satisfies the constitutional criteria… “An individual arrangement may be proportionate, while cumulatively they may not be proportionate” ((HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 401 (1997) (emphasis added – U.V.)). Such an accumulation may affect several provisions of Chapter D of the Law which, standing alone, would have passed constitutional review inasmuch as they do not independently infringe protected constitutional rights. This is the case inasmuch as the relationship between the various provisions also exerts influence upon the provisions that pass constitutional review (para. 100).

Staying in the residency center for three years not only infringes the liberty of the “infiltrators” but also their right to dignity. The time dimension substantially affects the infringement of the dignity of a person whose liberty is deprived. Deprivation of liberty for a short period of time allows a person to return to his life quickly. The longer the deprivation of liberty, the more a person must relinquish his desires and hopes. His personal identity and unique voice are drowned in a regulated, wearying daily routine. A person who leaves a residency center after three whole years is no longer who he was (para. 154).

As we have already explained, given that the Temporary Order may possibly be extended, an “infiltrator” sent to a residency center is in a state of inherent uncertainty in regard to his release. This uncertainty is not part of the infringement on dignity inherent to any stay in a liberty-depriving facility. It is a unique, independent infringement of the right to liberty that derives from the manner in which the uncertainty reinforces the suffering already associated with the deprivation of liberty. Indeed, psychological research has shown that uncertainty is a significant stress factor in a person’s life, and is often linked to anxiety and depression (para. 155).

Thus, a normative arrangement that deprives a person’s liberty for a period of three years (at least), without definitively fixing the length of this period in advance, constitutes an arrangement that inflicts a very powerful infringement of the right to liberty and the right to dignity (para. 157).

How should the period of residency be determined? In my opinion, a proportionate normative arrangement must preserve the proper relationship between the degree of the restriction of rights in the facility and the maximum period of residency therein, such that the greater the restriction of basic rights, the shorter the imposed residency in the facility (para. 162).

This is how the length of the period was emphasized against the background of the requirement of reporting for registration three times a day.

            The above was brought to show one thing: to my understanding, the above does not lead to the conclusion that a period shorter than three years, such as twenty months, taken together with grounds for release and an easing of the registration requirement to once a day does not meet the proportionality test. The Eitan case noted the infringement of freedom of movement that results from being required to live in the residency center. But the emphasis was on the aggregate: the combined effect of the long period – at least three years, the uncertainty as to its end, the lack of grounds for release, the requirement to register three times a day, and all in an isolated place. Thus the current petition has focused the spotlight on a defect in the Law that did not previously enjoy such principal status – setting the maximum period at twenty months rather than some shorter period (e.g. twelve months; see below).

            There is indeed a kind of constitutional discourse between the Court and the Knesset. But it is not a discourse between partners to an endeavor. Each body has a different purpose and authority. In my view, were there a constitutional problem even with a maximum period that was only half of the three-year period, we should have said so in our prior judgment. It is not proper that the discourse include upgrading demands and introducing new problems in the second and third round that could have been pointed out in the previous round.

            Indeed, an amendment, even the third one, is not immune to constitutional review. The Eitan judgment noted problems, but the Court did not establish a maximum period for a stay in the residency center, even in general terms. That is deficient. If that was the intention or the position, it should have been stated then. We are also not concerned with a situation in which the Knesset ignored the judgment’s comments. For example, while the minority in the Eitan case (President Grunis and I) supported rescinding one of the three registration requirements, the Knesset chose to rescind two out of three, and left only the requirement to report at night. Similarly, the shortening of the maximum period was not a symbolic reduction like thirty months instead of three years. We are concerned with a significant reduction – twenty months at most. Even the other opinions of the majority in the Eitan case did not recommend an alternative number.

            My questions can be answered in saying that it is not the role of this Court to draft the particulars of the Law. But an absence of direction, at least along general lines, may give the impression that this is not the main problem, and I believe the discourse between the Court and the Knesset suffers. That is also said in view of the many iterations of the amendment to the Infiltration Law. In my opinion, the constitutional correction in its current form could have been avoided.

 

B. The Limitations of a “Numerical” Constitutional Correction

Another aspect that I see as problematic concerns the manner of the correction. The majority view is that the twenty-month stay in a residency center must be annulled. In its place, the majority temporarily establishes a period of twelve months. The majority, per President Naor (para. 69) and Justice Vogelman (para. 19), concurrently recognizes the purpose of preventing settling in the urban centers. This purpose translates into alleviating the burden upon the cities in which there are large concentrations of infiltrators. It would seem that this purpose cannot be achieved in a period of only one year.

The comparative law survey shows that detention for a period of six months – if not more – is acceptable and passes the constitutional hurdle in the relevant countries (see para. 4 of my opinion and paras. 72-78 of the opinion of Justice Vogelman in the Eitan case). If that is true for custody – and given the difference in the magnitude of the infringement of rights presented by custody as opposed to a residency center, and the different purposes of these provisions – a significant distinction would seem to be required in regard to the maximum periods. For example, it would not be reasonable for the maximum period of custody to be half a year, while the maximum stay in a residency center is, for example, ten months.

Of course, the maximum period cannot be quantified with surgical precision. It would appear to be difficult to distinguish between a year and fourteen months of even sixteen months. From this perspective, it is hard to justify intervention merely because a twenty-month period was established. Even were we to accept the assumption that the period is long, which is not my view as I explained in the Eitan case, the numerical review does not justify a finding that the period deviates from the constitutional margin. Incidentally, this is why courts, both in Israel and abroad, tend not to intervene from a constitutional perspective in maximum sentencing in criminal contexts (see: Cliff Robertson, Constitutional Law and Criminal Justice, chap. 8 (2009)). We do not have the tools necessary for precise measurement. There may be exceptions in which numerical constitutional review would be possible, for example, in regard to not bringing an arrestee before a judge, and in comparing juveniles to adults. But when we are concerned with holding a person in a residency center that, as noted, permits the residents freedom of movement over the course of the day, I am hard pressed to understand the result of annulling the maximum twenty-month period.

Moreover, a residency order does not establish an automatic twenty-month period, but rather that an infiltrator may be held in a residency center “no longer than the 20 month period established under sec. 32U” (sec. 32D(a)). Section 32U further establishes: “An infiltrator shall not remain in a residency center by virtue of a residency order for more than 20 months”. We thus see that the Law establishes twenty months as a maximum period. Therefore, if one is of the opinion that this period is too long from a constitutional perspective, he could, by way of interpretation, find that the maximum period should be exhausted only in exceptional cases. In other words, in many cases it would be possible to shorten the actual period by means of interpretation, without any need for declaring the section void. As is well known, this Court’s rule for constitutional review is that interpretation is preferable to annulment (HCJ 5239/11 Avneri v. Knesset, para. 56 of the opinion of Justice H. Melcer (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

6.         Comparative law is another consideration deemed relevant by my colleagues the President and Justice Vogelman. According to the survey presented by the President, a twenty-month period is long when compared to other legal systems. In my opinion, the matter should be viewed differently.

First, some of the countries surveyed permit living in a defined area for a very short period measured in days, weeks or a few months. If that is the case, then clearly the primary purpose of residency centers in those countries is not the prevention of settling, but rather, for example, initial investigation (see para. 105 of the President’s opinion). Similarly, in some countries, staying in a defined area is, in practice, a benefit granted to asylum seekers at their request (ibid., paras. 102-103). This, too, serves a purpose of a different kind. At the same time, my colleagues believe that preventing settling is a proper purpose. I accepted this view in the Eitan case, and this was also the view of my colleagues Justice S. Joubran (ibid., para. 7) and Justice Arbel (para. 84 of her opinion in the Adam case). If that is the case, then a comparison with other countries in which staying in a residency center serves a different purpose is of no significance. Choosing a legitimate purpose is within the bounds of the state’s authority.

Second, if the maximum period of a legislative enactment is somewhat higher than its parallels in other countries, that alone is insufficient to show unconstitutionality. Comparative law is not meant to make all countries toe the same line in every field. The balancing of the constitutional infringement and the proper purpose does not demand uniformity. The balancing formula is not a mathematical calculation. Recognizing the constitutional margin is a central part of judicial review. Of course, if the difference is significant, the matter is different. But as noted, this is not the case here. Moreover, as I will explain, the State of Israel faces special difficulties that may themselves justify a somewhat longer period.

Third, even if there is a trend toward limiting the period of stays in residency centers in comparative law, a distinction should be drawn between a legislative trend and judicial review. The situation in Germany in particular, against the background of the European Union in general, serves to bring this matter into sharp focus. The starting point is the European Union’s 2003 Directive, and its updated version from 2013 (Directive of the European Union 2003/9/EC; Directive 2013/33/EU). Article 7 concerns “Residence and freedom of movement”. Article 7(1), which was preserved in 2013, states: “Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive”. A state may restrict freedom of residence, and not just freedom of movement: “Member States may decide on the residence of the applicant for reasons of public interest” (Art. 7(2)). For our purposes, it is important to note that neither the new nor the old Directive mention any time limitation for these provisions. It is also worth noting that the UN High Commissioner on Refugees expressed concern in regard to the exemptions and wide measure of interpretation that this article permits the member states of the EU. However, there is no criticism of the policy of restricting freedom of movement itself, or of the absence of a time limit (UNHCR annotated comments on COUNCIL DIRECTIVE 2003/9/EC, Article 7).

We will now turn to German law. Indeed, the current law sets a maximum of three months for the restriction of residence (Residenzpflicht) for an asylum seeker. However, this was only adopted in December 2014, and entered into force in January 2015. Prior to the amendment, asylum seekers in Germany were subject to restriction of their place of residence, and were required to apply to the authorities before leaving the area (secs. 55-58 of the Asylum Procedure Act). As for the length of time during which the residence restriction applied in practice, the following data can be of assistance: in the first half of 2014, the review of an asylum request took an average of eleven months, but there were significant differences based upon country of origin. Thus, for example, reviewing the requests of asylum seekers from Afghanistan took an average of twenty-two months (Asylum Information Database - http://www.asylumineurope.org/reports/country/germany/asylum-procedure/ procedures/ regular-procedure).

It should be noted that the change in the German legal situation was instigated by the legislature and not by the court. Prior to the last few months, there was no time limit on the restriction of the freedom of movement of asylum seekers. Of course, even in the fields of constitutional law and comparative law, facts carry significant weight. To illustrate the point, let us assume that the twenty-month period were to remain in force in Israel, and fifty people a year would enter Israel on an annual average (similar to the recent data). It is quite possible that under such circumstances the state would find it appropriate to limit or even revoke staying in a residency center. Just as constitutional courts need not reach the same conclusions at the same time in regard to a complex issue, the same is true for different legislatures.

Another aspect of the matter is that the restriction of freedom of movement in German law was subjected to the review of the European Court for Human Rights (ECHR) in the matter of Omwenyeke v. Germany, App. No. 44294/04 (2007). The petitioner filed a request for asylum in Germany. In October 1998, he was required to live in the city of Wolfsburg. In April 2000, the petitioner left the city without permission, and did so again in May 2001. Due to these violations, he was fined. It should be noted that the restriction of movement was revoked in July 2001, after the petitioner married a German resident. Thus, the petitioner was subjected to the restriction for a period of some thirty-three months.

The petitioner demanded that the European Court revoke the fine on the basis of the claim that his liberty of movement was infringed (pursuant to art. 2 of the Fourth Protocol to the European Convention on Human Rights). The court denied the petition. The court explained that the said article granted liberty of movement to a person “lawfully within the territory of a State”. However, having violated the restriction of movement, he was not lawfully in Germany: “it is for the domestic law and organs to lay down the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’”. In accordance with this rationale, the petitioner’s departure from the city deprived him of the right to claim that he was lawfully in Germany, and consequently of his ability to argue that his freedom of movement was infringed. The petitioner’s claim that restricting his freedom of movement disproportionately infringed his right to privacy, freedom of expression, assembly and association was dismissed in limine. While it is true that the court denied the petition on narrow grounds, a critique of the case noted that in view of the decision, the result would have been the same even if the restriction of residence had been challenged on other grounds: “The ECtHR's reasoning – that obedience to residence restrictions imposed by national law is a necessary precondition to lawful presence under the ECHR – leaves little reason to believe that the same court would hear the merits of any case challenging the Residenzpflicht’s basic rules” (Paul McDonough, Revisiting Germany's Residenzpflicht in Light of Modern E.U. Asylum Law, 30 Mich. J. Int’l L. 515, 531 (2009).

It would appear from the above that in the circumstances of this case, comparing the amendment to the Israeli Law to the current German law does not necessarily reflect the whole picture in regard to constitutional review by the courts. Even were one to propose that the Law is undesirable – on which I am expressing no opinion – there is a gap between taking a stand on the desirable law and legally justifying the annulment of the existing law on the basis of the provisions of Basic Law: Human Dignity and Liberty.

To this I would add that the situation of the State of Israel is exceptional in comparison to that of other states, as I noted in the Eitan case:

Israel is the only western country that can be reached by land from Africa. Likewise, there are no other “alluring” destination countries in proximity to Israel to which infiltrators can proceed. At the same time, Israel – as noted by my colleague Justice I. Amit (para.15) – is “surrounded by a ring of hostility” that does not permit it to reach arrangements and agreements with neighboring countries. It should be noted that many of the infiltrators originate from Northern Sudan, a country hostile to Israel. Thus, Israel is distinct from all the other western countries that are also contending with the infiltration phenomenon. This combination of factors places the government, and the legislature, at an extremely difficult starting point. Clearly the situation of the State of Israel is not similar to that of European countries, where one country may share a common border with a number of countries with which it is organized under one political umbrella, and that are prepared to cooperate in a regional solution of the issue of absorbing infiltrators. There are countries that are at the forefront, and their constitutional balances may be more delicate (ibid., para. 9).

To the above factors we should add the fact that Israel’s population is relatively smaller than that of Germany, for example. An addition of two-thousand people to a village or neighborhood numbering twenty-thousand people is far more significant than such an addition to much larger cities. It would therefore appear that there is an array of factual circumstances that permit, at least to some extent, striking a different balance in regard to the period of time for staying in a residency center in comparisons to other countries. Therefore, a comparative survey does not lead to the conclusion that we should order the annulment of the maximum residency period.

            Up to this point, I have placed my emphasis on two perspectives that I believe militate against the conclusion that the amendment should be voided. The first is the division of labor between the Court and the legislature under the circumstances of this case, and the restraint required when the Court considers intervening for a third time in the work of the legislature. The second concerns the character of the amendment. It would appear that a twenty-month period is legitimate. That is what arises from an examination of the purpose, from comparative law in accordance with the factual circumstances, and in view of the transitional provisions established by the majority – twelve months. We should now address the third point, which is that the amendment should not be annulled on the merits.

 

C. Examining the Twenty-Month Residence Period on the Merits

7.         The title of Chapter D of the Law is: “Residency Center for Infiltrators – Temporary Order”. It comprises twenty-two sections, and is constructed level upon level.

            The current version incorporates many changes in comparison to the former version of the Law. In my opinion, it is impossible to examine the twenty-month maximum period divorced from the other sections and from the changes introduced by the Knesset. These are the main points: a residency order may not be issued to certain groups – primarily minors, persons over the age of sixty, a parent with a dependent child in Israel, or a person whose health might suffer as a result of staying in the center (sec. 32D(b)). The Law also establishes grounds for release from the center, for example, a change in circumstances or medical reasons (secs. 32D(g) and 32E(c)). A residency order can be issued only after the infiltrator has been granted an opportunity to present his arguments to the Director of Border Control (sec. 32D(d)). A person living in the center is entitled to health and welfare services, as well as to pocket money (secs. 32E(a) and 32K). A resident of the center may be employed – with his consent – in maintenance and services in the center (sec. 32G(a)). A resident of the center must report for registration between the hours of 8 PM and 10 PM, and must be present in the center during the hours when it is closed – 10 PM to 6 AM. A temporary exemption from reporting can be obtained for a 36 hour period (sec. 32H).

            Therefore, truth be told, the picture is very different from the prior legal situation that was examined in the Eitan case. There is real freedom of movement. The Law grants the Director discretion in regard to issuing a residency order and as to its length. As noted, the upper limit is twenty-months. A hearing must be granted, and the particulars of the individual infiltrator must be examined. Having been granted discretion, the Director must exercise it. Limiting the registration requirement to once a day means that an infiltrator can remain outside of the facility all day. Special bus lines have been provided for the center’s residents, and it is even possible to pursue leisure and cultural activities in the center. Thus, the sum total places the maximum period in a different light.

            In the background of all this stands the purpose of preventing settling, in order to ease the burden of the residents of the cities. Experience shows, as is but natural, that most of the infiltrators choose to live in certain areas of a few specific cities, and not in other places. The purpose of preventing settling and integrating into the labor market accords with the state’s right to establish an immigration policy. It is a clearly sovereign role of the state. A heavy burden should not suddenly be thrust upon a few neighborhoods as the result of a large concentration of infiltrators. This is a legitimate public interest that the Knesset and the government may address. And I would again emphasize that we are concerned with a fixed, limited period that occurs at the first stage of an infiltrator’s arrival in Israel. Incidentally, the President also referred positively to another purpose noted by the State – providing for the needs of the infiltrators (para. 78). It is true that deciding that an infiltrator must stay in the center deprives him of the right to choose. It is possible that if he were asked, he would choose to do without it. But the state is entitled – particularly at the initial stage – to make certain that the infiltrator’s basic needs are provided, a sort of “5 Ws” – such as food, medical care, a place to sleep, pocket money, cultural and leisure activities, and vocational training courses. This, along with freedom of movement during the day.

            The President agreed that the Law meets all the constitutional tests except for the third and last subtest of proportionality – proportionality stricto sensu. I therefore see no need to address all of the tests of the Limitation Clause. As for the last test, which balances benefit against harm, care is called for. This test should not be turned into the kind of judicial discretion that is characteristic of legal decisions in the civil and criminal fields. As noted, the constitutional review focused upon the gap between the period established in the Law and the possibility of establishing a shorter period. To my mind, I find no basis for such a distinction or gap, and certainly not to the extent that would justify annulling the section. There is a restriction of freedom of movement, but it is limited. In practice, the infiltrator must sleep in a particular area that the Law itself does not define geographically. The restriction does not apply during daylight hours. It is even possible to obtain a four-day exemption from registration. In view of the proper purpose, I have doubts as whether this should be seen as an unconstitutional infringement of human dignity and liberty. In my opinion, Chapter D in its present form, including the twenty-month period, passes the constitutional test.

            The matter can be portrayed as follows: The question is whether the residency center is open or closed. In the framework of the previous law, which was up for review in the Eitan case, the residency center could be viewed as a closed facility. That was the case in view of the overall circumstances, including a requirement to report three times a day, the geographical location and the lack of a definite path to release. That is why I expressed the opinion in the Eitan case that part of the registration requirement should be annulled in order to allow actual freedom of movement. However, in the current case, in which freedom of movement outside of the facility is possible all day long, together the other new conditions, it would appear that the residency center easily crosses the line and can now be defined as an open facility. This holds many consequences for the amendment’s constitutionality. Viewed in total, I do not think that establishing a twenty-month period negatively influences the result.

8.         The considerations of the relationship between the Court and the Knesset, the twenty-month maximum period as opposed to a period that is not significantly different, and the examination of the amendment on the merits are interrelated. I will make three comments in this regard.

            First, one cannot ignore the fact that the Knesset indeed “internalized” the need for the amendment as expressed in the majority opinion in the Eitan case. In the matter of detention, although it was possible to set a maximum period in excess of three months, and certainly up to six months, the Knesset sufficed with the shorter period. As for the residency center, the registration requirement was limited to once a day. Presence in the facility is only required between 10 PM and 6 AM. Broad exemptions were established for various populations, as well as grounds for individual release. The maximum period was reduced to twenty months, as opposed to the previous period of at least thirty-six months. When the Knesset acts seriously and with discretion, the Court should not intervene unless there is no recourse. Of course, the Knesset must respect the Court’s instructions, and even the amended law is not immune to review. However, the Court should accord great weight to Knesset legislation carried out as a result of internalizing the constitutional review. It is not proper to “recalculate the route” and refocus the constitutional flaw. Of course, it is the Court’s job to correct clear, profound, fundamental constitutional infringements. But not every possible difference of opinion as to the preferred law fits this category. In this sense, the Court should view “from above”.

            The second comment concerns the practical aspect. According to the State’s supplementary affidavit, there were 1,950 infiltrators in the Holot residency center as of February 2015, and the maximum period stood at fourteen months (also see para. 55 of the President’s opinion). Thus, from a practical perspective, the infiltrators will be released close to the date of this judgment under the existing law. It would seem that, for the time being, it would be better not to change the situation dramatically. The experience accrued from the release of the first residents may help the Director acquire a complete picture and ensure optimally efficient release. This is another reason, which does not stand alone, for why I believe that it would not be proper, at present, to amend the Law as proposed.

            The third comment concerns Justice Vogelman’s position that sec. 32T should also be annulled. That is the section that permits transferring an infiltrator from the residency center to detention for a disciplinary infraction. Examining the section reveals that different periods – ranging from 15 to 120 days – for various disciplinary infractions. The maximum period is relevant when an infiltrator is absent for more than 90 days from his assigned reporting date. There is a distinction between a first and second violation. It is further emphasized that a detention order may not be issued prior to a hearing, and that once the order is issued, the resident must be brought before the Detention Review Tribunal within four days at most. In the Eitan case, my colleague addressed the problem of granting “transfer authority” to the Director, primarily in view of the one-year maximum period that was established there, and due to the absence of procedural safeguards – first and foremost, the absence of automatic judicial review. As noted, these defects have essentially been remedied. The current procedures include a hearing and automatic judicial review, and the maximum period is 120 days. There would seem to be a clear interest in enforcing discipline in the residency center. The periods of detention are short, graduated, and adapted to the nature of the infraction. I find no constitutional defect in this section. I agree with the reasoning set out in the opinion of my colleague Justice Joubran in this regard, which reinforces my conclusion.

            In conclusion, in my opinion there are no grounds for annulling the Law from a legal perspective, from a principled perspective, in terms of the relationship between the Court and the Knesset, nor even for practical reasons.

 

The Opposing Humanitarian Interest

9.         In reaching my conclusion, I am not ignoring the complex, difficult situation of the infiltrators. The vast majority of them suffered a bitter fate in their countries of origin, which – in general – lack the living conditions that are taken for granted in our society and other progressive societies. The infiltrators are a group, but their suffering and harsh conditions are not merely the lot of the group, but of each and every individual. We must protect the rights of disadvantaged groups, and of their individual members.

            But that is but one side of the coin. The petition presented the basis for the suffering and the impositions in the lives of another disadvantaged group – the residents of the neighborhoods in which large concentrations of infiltrators developed, such as south Tel Aviv. The clear impression is that they are not crying in vain. The call for this Court to strike a balance does not derive from a rejection of the other, but rather from the seriously deteriorating living conditions of the residents. As I noted in the Adam case, “the primary, even if not the only victims of the sudden, massive illegal immigration are the members of the weakest socio-economic strata…public welfare in the broadest sense, and the sense of public safety have all suffered serious harm” (para. 2). Here too, the group is a collection of individuals. Many of them do not enjoy the freedom to change their place of residence at the drop of a hat, if at all. The material shows that the suffering of this group is real and harsh.

            Of course, it is no easy matter to compare suffering to suffering, group to group, and individual to individual. Moral questions loom in the background. However, it is the job of the Court to decide disputes. The importance of the factual examination in every proceeding shows that a judgments must not be theoretical or divorced from life. On the contrary, we rule in the field of reality. What weight should we therefore give to the conflict that has arisen, and to the two sides of the coin?

            The matter depends upon the nature of the injury. As I have said in the past, the time has come for a constitutional system based upon Basic law: Human Dignity and Liberty, enacted more than twenty years ago, to rank rights (see, e.g., para. 4 of my opinion in HCJ 466/07 Gal-On v. Attorney General (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary, (para.3)]). In this manner, the system will develop and the proportionality test stricto sensu will accrue more objective content. The consequence of our matter is this: where, as in the case before us, we are concerned with a serious infringement of human dignity, such as detention, there is no room for considering the consequences of release of an infiltrator for the residents. Thus, for example, in the Adam case we explained that the three-year period was, in practice, a punitive measure that inflicted severe constitutional harm to the infiltrator, and that it could not be vindicated by the suffering of another group. In the Eitan case, I expressed the opinion that a one-year period met the constitutional test. However, I agree that if another judge is of the opinion that the period of detention is too long, the consideration of the residents’ suffering is not decisive.

            In the matter before us, the decision rules are different. First, the intensity of the infringement caused by being held in a residency center is certainly less than that resulting from being held in detention. We are concerned with a restriction of freedom of movement of a different sort. Moreover, even according to the majority, the disagreement concerns the length of the period. Alongside this, the current constitutional review is premised upon the purpose of preventing settling. It is agreed that this is a proper purpose. Its concern is alleviating the burden upon the residents. It is also agreed that the reality that has been created in the relevant cities raises not inconsiderable problems (para. 67 of the President’s opinion). That being the case, it is clear that weight should be attributed to the harm caused to the residents as a result of the annulment of various arrangements in regard to the residency center. While this consideration is less relevant in regard to detention, it is very relevant in regard to the residency center. This point requires striking a balance between two disadvantaged communities.

            It should be clear that it is not my intention to equate the two harmed groups and decide which suffers more. At first glance, the answer is clear. But there is an additional consideration: citizens of the state as opposed to infiltrators who came here illegally and not through the border crossings, regardless of what the circumstances may be. Let us not forget that in view of problematic situations in various countries, every state must establish an immigration policy. That is legitimate. As I noted in the Adam case, Jewish law and history are particularly sensitive to the two competing sides: on one hand, the command to love the stranger and care for him, and sensitivity to the refugee against the background of our people’s wanderings throughout history; on the other hand, the principle that “the poor of your city take precedence” [TB Bava Metzia 71a – ed.]. Poverty is not only measured in monetary terms (see para. 2 of my opinion, ibid.).

            Indeed, there are situations in which an infiltrator must not be deported. But we are not speaking of deportation, but rather of delineating the conditions for the first period of staying in the country. The humanitarian interests of the residents must be part of the equation. Together with the other reasons detailed above, it argues for denying the petition.

10.       In conclusion, in my opinion, the petition should be denied in its entirety.

 

Justice E. Hayut:

1.         For a third time, this Court is called upon to annul provisions of the very same law – the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), which is no common occurrence. However, and despite the complexity involved, it would appear that the dialogue between the Knesset and this Court as a result of the two prior petitions (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)) made a not insignificant contribution to reducing the infringement of human rights under that Law. This was made possible because following what was stated in these two previous petitions, the Knesset was willing, time and again, to make an effort to amend the Law and find appropriate constitutional solutions.

2.         The amended provisions in Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment under review) now establishes, inter alia, that the period during which infiltrators may be held in custody will not exceed three months, in which regard I concur with the position of my colleague the President that these provisions pass the tests for constitutionality, and that the third petition before the Court should be denied to the extent that it concerns them. As opposed to that, further dialogue with the Knesset is required so that it will reconsider the arrangement concerning the maximum period for holding a person in the residency center. As my colleague the President pointed out, coercively holding a person in a residency center for a maximum period of twenty months has no parallel elsewhere in the world (paras. 101-105 of her opinion), and it is unconstitutional. This is the case, given the infringement of the constitutional rights of those held in the center for such a lengthy period, which is not directly proportional to the benefit derived from achieving the purposes for which the amendment to the Law was enacted (in regard to the purposes of the amendment, I concur with what is stated in the opinion of my colleague Justice Vogelman in paras. 16-28, and I see no need to add to what is stated there).

3.         The disproportionate harm to those held in the residency center is brought into sharper view in light of the very slow pace at which the State processes asylum requests submitted to the RSD, and in view of the negligible percentage of requests approved by the State to date.

            In the Eitan case, my colleague Justice Vogelman pointed out:

A comparative view shows that the world-wide percentage of approval for asylum requests submitted by Eritrean and Sudanese nationals – the countries of origin of majority of the infiltrators in Israel – are significantly greater than the percentage in Israel. In 2012 (the last year with updated figures), the worldwide percentage for the recognition of Eritreans as refugees was 81.9%, and 68.2% for Sudanese (see the current Statistical Yearbook of the United Nations High Commissioner for Refugees, pp. 102, 104). According to the figures provided by the State, which are current as of March 3, 2014, it appears that less than 1% of asylum requests submitted in Israel by Eritrean nationals were approved, and not even one requests from Sudanese nationals was approved […] (para. 35).

From the supplementary affidavit submitted by Respondents 2-5 on Feb. 16, 2015 it appears that there has been no change in the rate of processing asylum requests since the judgment in the Eitan case, and the affidavit shows that the number of approved requests remains negligible. Thus, from July 2009 until Feb. 5, 2015, a total of nine asylum requests submitted by Sudanese and Eritrean nationals were approved, and 1,037 requests were denied. This data puts the rate of approval for asylum requests submitted in that period by Sudanese and Eritrean nationals in Israel at about 0.9%. When this figure is compared to the percentage of asylum requests of these nationals worldwide, the comparison itself raises questions as to the manner in which the state examines and decides upon such requests, as what comes out is a product of what goes in (compare: HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister, paras. 18-20 of the opinion of President Barak (Feb. 17, 2006) [http://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-a... AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, paras. 45-47 (Sept. 14, 2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je...). This is further reinforced by the data provided in the supplementary affidavit in regard to the rate of the state’s processing of asylum requests. The supplementary affidavit states that “[…] the order of priorities in processing asylum requests of infiltrators originating from Eritrea and Sudan will be such that priority will be given to examining requests of those staying in the residency center”. However, an examination of the data provided in the affidavit shows that, in practice, the rate of processing those requests is far from satisfactory. Thus, as of the day of the submission of the affidavit, of 3,165 asylum requests submitted from July 2009 to Feb. 5, 2015 by infiltrators originating from Sudan, 2,184 requests (some 70%) remained pending, and of 2,408 requests submitted by infiltrators originating in Eritrea, 1,335 (some 55%) remained pending. An important figure worth mentioning in this regard is that 1,521 of the 1,940 infiltrators held in the residency center as of Feb. 9, 2015 have submitted asylum requests, and most (862 infiltrators) did so while being held in the residency center.

4.         In light of this conduct by the state in regard to Sudanese and Eritrean nationals, it would appear that they are trapped in an continuing, impossible state of normative fog in regard to their status, along with all its severe ramifications for their rights (see and compare: my opinion in AAA 8908/11 Asafu v. Minister of the Interior (July 17, 2012)). This is so because, on the one hand, they are not repatriated directly to their countries as a result of practical problems (North Sudan) or the situation in that country and the non-refoulement principle (Eritrea), but on the other hand, the state does not decide upon their asylum requests within a reasonable period of time, and when it does consider them, it only approves a negligible number, which itself raises questions in view of the approval rates in regard to asylum requests of comparable nationals in other parts of the world.

5.         Lastly, in regard to the disagreement between my colleagues the President and Justice Vogelman in the matter of the Director’s authority under sec. 32T to order the transfer of an infiltrator to detention, I am of the opinion that although the arrangement is not problem free, we should not adopt the drastic step of nullifying the legal provision. This is so for the reasons presented by the President, and in this regard I also concur with the opinion of my colleague Justice Joubran that we should not assume that the Director will “exploit” the maximum periods established in the Law to their fullest extent (para. 8 of the opinion of Justice Joubran).

 

Justice Z. Zylbertal:

            I concur in the opinion and conclusion of my colleague President M. Naor in regard to all the issues raised in this petition.

            Because I was bothered by the question of the relationship between constitutional and administrative review of the core issue in regard to the provisions of Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended in the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amended Law), I have chosen to add a few parenthetical comments.

            My colleague the President found that the maximum period of time established by the Amended Law for holding infiltrators in the residency center (twenty months) exceeds what is necessary and is disproportionate. This is so, inter alia, in view of the primary purpose undergirding the possibility of ordering that an infiltrator stay in the residency center – preventing infiltrators from settling in the urban centers. The President found this purpose to be proper, and I agree. As my colleague explained, in view, inter alia, of the limited number of places in the residency center, advancing the said purpose does not focus upon removing a specific infiltrator to the center, but rather to alleviating the burden upon the residents of the urban centers by means of directing part of the infiltrators to the residency center at any given time (and for our purpose, it makes no difference which infiltrator the Director orders to the center). In this situation, and in order to advance the said purpose of moving the place of residence (as opposed, for example, to the purpose of preventing the possibility of working in Israel, regarding which my colleague the President refrained from deciding whether it is a proper purpose, and which, in my view, is doubtfully proper), a maximum period of twenty months residence in the center is disproportionate.

            However, we should also turn our attention to another factor noted by my colleague the President – as well as by my colleagues Justices U. Vogelman and I. Amit – in reaching the said conclusion in regard to the lack of proportionality of the maximum residence period established by the Law. I am referring to the location of the Holot residency center.

            The Law does not establish the location of the residency center. Section 32B of the Law instructs that the Minister of Public Security may declare in an order that a particular place will serve as a residency center for infiltrators. The location, which was chosen prior to the amendment of the Law under review, is in the Holot facility located some seventy kilometers southwest of Beer Sheba, near the Israel-Egypt border. We are thus concerned with a location that is very significantly removed from populated areas in which the infiltrators might find work or conduct proper, reasonable, routine life. As Justice U. Vogelman noted in the Eitan case (HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014)), at para 126 of his opinion: “Holot [“sands” – ed.] is just what it is named – surrounded by sand and more sand. It is far from any populated area”.

            Choosing the location of the residency center is not part of the primary legislation under constitutional review, but rather was accomplished by means of an administrative decision made by the authorized agency. It may be assumed, as would appear from the opinions of my colleagues the President, and Justices Vogelman and Amit, that had a different location been chosen, one not “at the edge of the desert” but at the “outskirts of the cities”, which would make it possible to leave the center in the morning and return in the evening, while making it possible for the center resident to find work and lead a life of basic liberty such that we would indeed be concerned with a truly “open” center, then it is possible that the conclusion as to the disproportionality of the maximum period for staying in the center may have been different.

            Thus, the conclusion as to the proportionality of the established maximum period is coupled with the manner in which the Law was implemented by virtue of an administrative decision. Justice Vogelman addressed this incidentally to his opinion in finding that this constitutional petition is not the proper forum for examining questions that are administrative in principle. However, Justice Vogelman saw fit to add that “a different implementation of the Law could also have affected the examination of its proportionality”. Justice Amit added that “…the Law’s proportionality is not examined in a vacuum, but rather in the context of a particular reality”.

            Thus, from the perspective of the length of the period of residency in the center, the Law before us may not necessarily be unconstitutional by reason of its provisions, but perhaps only due to the manner of the implementation of its provisions. In this regard, for example, the situation in the matter before us differs from the issue addressed by this Court in the petition challenging the possibility of privatizing a prison (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (Nov. 19, 2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-...). In the Prison Privatization case, Justice E.E. Levy, dissenting, noted that according to the approach of the majority “the violation of rights resulting from the privatization is so serious that nothing can mitigate it. By way of analogy, even if the private prison were to promise a seven-day feast for everyone in it, this would not mitigate the degradation and loss of liberty that is the lot of those imprisoned in it, because they are at the mercy of a private concessionaire” (para. 9 of the opinion of Justice E.E. Levy). That is not the case in the matter before us, having found that the very possibility of ordering that an infiltrator stay in a residency center is not, itself, unconstitutional.

            The above would seem to lead to the possible conclusion that there is no need to annul the provision concerning the maximum length for staying in the residency center, and that our focus should be upon the reasonableness and legality of the administrative decision as to its location.

            However, I am of the opinion that the circumstances taken in their totality can only lead to the conclusion reached by my colleague the President.

            First, the amendment was enacted in view of the residency center already existing in Holot, and with this reality and no other in the legislature’s mind. Indeed, the concrete implementation of a Law as carried out in practice can constitute part of the reality in which the Law was “born”, and in appropriate circumstances may be incorporated into the examination of the law’s proportionality, as if it were part of the law itself. As noted, that can be the case where the “primary arrangement” is not found to be manifestly unconstitutional, but rather the lack of proportionality lay in the secondary arrangement of one of the aspects of the “primary arrangements”.

            Second, the case law of this Court has long recognized the relationship between examining the constitutionality of a law and the concrete manner of its implementation by the executive, for example in regard to the question of when a constitutional challenge is “ripe” (see: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014)). Just as a lack of factual data concerning the concrete implementation of a law may sometimes prevent the possibility of its constitutional review, so the existence of such data may influence the results of its constitutional review, for were it not so, then there would be no logic in waiting for their accrual as a condition for “ripeness”. Justice E. Hayut addressed this in the above case, stating: “…there may be cases in which the law appears constitutional on its face, and only the manner of its implementation reveals its unconstitutionality.”

            In my opinion, the concrete implementation of the provisions of Chapter D of the Law in regard to the maximum period for staying in the center, when it is established that the residency center will be in Holot, highlights their unconstitutionality, which might have been much more “mitigated”, or even non-existent, had the implementation been different and more humane, and had appropriate weight been given to the basic rights of the infiltrator population that is subject to the policy of non-removal (at least temporarily) from Israel. While the state is entitled to decide where the infiltrators may live in order to ease the distress of the residents of the cities, it may not do so by trampling their dignity. “The stranger who sojourns with you shall be to you as the native among you, and you shall love him as yourself; for you were strangers in the land of Egypt” (Lev. 19:34).

 

Justice Y. Danziger:

            Yet again, for a third time, we are addressing a petition challenging the provisions of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954.

            Inasmuch as we have already addressed this law and the issues a hand at length in the framework of the two prior petitions, I believe that it would be best that I suffice in concurring in one of the two primary opinions written by my colleagues President M. Naor and Justice U. Vogelman.

            I concur in the opinion of the President and with her conclusion in regard to all the issues raised by the petition before the Court.

 

Justice H. Melcer:

1.         I agree with the main points of the learned, comprehensive opinion of my colleague President M. Naor, and concur without reservation with that part in which she addresses sec. 30A of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law or the Prevention of Infiltration Law) that was introduced into the Law by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the 2014 Amendment).

            I therefore concur with the President’s reasoning and her conclusion that the provisions of the said section, including the maximum three-month custody period for an infiltrator (who entered the country after the publication of the 2014 Amendment) as defined by the Law, passes the constitutionality test. At this point it should be noted that in my opinion, the executive and the legislature properly and respectfully internalized this Court’s comments, and took into account  what was decided in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case).

2.         The matter of Chapter D of the Law – which was also enacted in the framework of the 2014 Amendment – is much more complex, and consequently my proposed solution will be so, as well. This solution rests upon certain elements deriving from the reasons presented here in the various opinions of my colleagues. It was fashioned with due respect for the basic rights of the citizens of Israel and the residents of the neighborhoods in which the infiltrators have settled, while providing the required protection of the rights of the infiltrators as human beings, along with consideration of the interests of the state, as such, and the desired dialogue that should be maintained between the Knesset and the Court.

            I will therefore proceed by presenting first things first, and last things last.

3.         This is the third time that this Court is required to address the constitutionality of the statutory amendments to the Prevention of Infiltration Law to contend with the problem of infiltration from Africa, as described in the opinion of the President. In both prior cases (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case), and the Eitan case), the Court annulled certain provisions of the Law, and pursuant to the Eitan case, the Knesset enacted the 2014 Amendment, which the Petitioners challenge on constitutional grounds.

            Admittedly, the provisions of the 2014 Amendment, enacted as a temporary order for three years, are an improvement over the previous amendments of the Law. However, the case law provides that even when a legislative change comprises only ameliorating provisions, it is proper to reexamine the balances struck by the law when it is brought before the Court for judicial review (see and compare: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]; my opinion in HCJ 6784/06 Major Schlitner v. Director of IDF Pension Payment, Jan. 12, 2011)). This rule also applies to temporary orders (see: HCJ 466/07 Gal-On v. Attorney General (Jan. 11, 2012) (hereinafter: the Second Family Unification case) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). In the Second Family Unification case, the High Court of Justice reexamined the constitutionality of the Nationality and Entry into Israel (Temporary Order) Law, 5763-2003, in view of changes that had been introduced. The Court majority approved the constitutionality of that temporary order.

4.         Even elsewhere in the world, the constitutionality of a law may occasionally be reexamined upon a claim that the legislature did not properly respect fundamental constitutional rights as interpreted by the court, or ignored other relevant constitutional provisions (see, for example: in the United States: Shaw v. Reno 509 U.S 630 (1993); Shaw v. Hunt 517 U.S 899 (1996); in Germany: the Constitutional Court’s decision of July 2008, 2 BvC 1/07 2008, and its decision of July 2012, 2 BvE 9/11 2012; in France: the Constitutional Court’s HADOPI 1 decision of June 10, 2009, and its HADOPI 2 decision of Sept. 22, 2009. For a description of the proceedings and issues addressed there, see my opinion in CA 9183/09 The Football Association Premier League Limited v. A., para. 6 (May 13, 2012)).

5.         The comparative law to which I refer demonstrates that the second time the legislature – and thereafter the court – address a law whose constitutionality will be scrutinized, both of the relevant branches display a maximum of care and consideration due to the need for mutual respect. That is all the more so when we are concerned with a third instance of judicial review of legislation, which is very unusual, although possible and justified in circumstances in which the parliament, in enacting a law, substantially deviates from fundamental constitutional rights as interpreted by the court (see, for example: in Germany: the proceedings of the Constitutional Court in regard to the Inheritance and Gift Tax Law (a) judgment of June 22, 1995 in  BVerfG, 1995 2 BvR 552/91; (b) judgment of Nov. 7, 2006 in BVerfG, 2006 1 BvL 10/02; (c) judgment of Dec. 17, 2014 in BVerfG, 2014 1 BvL 21/12; in Italy: the proceedings in the Constitutional Court in regard to the Parliamentary and Ministerial Immunity Law (against the background of the prosecution of Prime Minister Silvio Berlusconi): (a) judgment of Jan. 2004 (Law 140/2003); (b) judgment of Oct. 2009 (Law 124/2008); (c) judgment of Jan. 13, 2011 (Law 51/2010)).

6.         Beyond the description of comparative law on these issues, presented in paras. 4-5 above, there is an additional question in this regard as to whether a reviewing court annulling a law should instruct the legislature as to how to act in the future so as to enact a law that will be immune, so to speak, to constitutional scrutiny, or whether the court should suffice with a constitutional examination of the law brought before it after the legislature has had its say.

            There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance To Judicial Review Of The Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. V. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

8.         Now, having presented the current comparative law on the subject and the theoretical streams that indicate the possible approaches for treating it, I will presently return to the subject matter before us. However, before proceeding to the specifics, I would make two, further prefatory comments:

(a)        Our consideration of Chapter D of the Law is a second instance of judicial review (and not the third) of the arrangement, inasmuch as the institution of a residency center for infiltrators was not part of the law examined in the Adam case.

(b)        On its face, it would seem that the move from a “judicial advice” approach to one telling the legislature precisely how it should fix the Law (limiting a stay in the residency center to no more than one year) is too extreme, and almost entirely removes the “legislative margin of appreciation”. For this reason, I concur with part of the criticism expressed in the opinion of my colleague Justice N. Hendel. But while according to his basic approach, this should lead to the denial of the entire petition, I am of the opinion that there is room for an intermediate solution. This solution will preserve both the proper “margin of appreciation” and the boundaries of judicial review, and will even lead to greater proportionality in the treatment of infiltrators and their rights, while preserving the interests of the state and of the residents of the neighborhoods in which the infiltrators have settled, as I will explain in detail below.

9.         My colleague the President concludes that under the present circumstances, preventing settling in the urban centers is a proper purpose. I am also of the opinion that it can serve to lessen the hardships of the residents of the communities in which the infiltrators have chosen to live.

            What then is the primary proportionate means (the least infringing of the rights of the infiltrators) for achieving the prevention of settling in the urban centers?

            In Europe (as well as in Israel in 2009), the solution adopted was that of “population dispersal” by way of “designating” areas for the residence of infiltrators (whose number in Israel is now some 45,000 men, women and children, which can be viewed as “mass influx” in Israeli terms). Indeed, at the time, the Minister of the Interior made a decision that asylum seekers would not be permitted to stay and work in the geographical region between Hadera and Gedera. Various human rights organizations (some of which are petitioners in this petition) immediately petitioned to challenge that decision (which, perhaps should have been established in an express statue, as was done in Germany, for example) – see: HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009). In response to that petition, the respondents informed the Court that the minister had decided to retract the said decision and the petitioners withdrew their petition, with all the parties reserving their rights and arguments should the restriction be reinstituted.

            Retrospectively, it may be unfortunate that the idea of “population dispersal” (not necessarily restricting residence and work in the Hadera-Gedera area, but rather by proportional distribution throughout the country) was not tried and was not judicially scrutinized, as there can be no doubt that the solution would be preferable from the perspective of the Petitioners to that of a remote residency center surrounded only by sand and desert. It would therefore appear that the rights organizations should draw conclusions from their haste to petition at the time, as “if you have seized too much, you have seized nothing” [TB Rosh HaShana 4b; Yoma 80a – ed.].

10.       In addition, the German Asylum Procedure Act (AsylVfG), which permitted “attaching” infiltrators into Germany to specific geographical areas, was subjected to constitutional review and withstood the challenge. Moreover, the said law also established, inter alia, two provisions stating that a person who violated the law’s provisions would be arrested and criminally prosecuted, and that the examination of his asylum request would cease. This provisions were also approved by the German constitutional court (see: the German judgment of April 10, 1997, BVerfG 2 BvL 45/92). A petition to the European Court of Human Rights was also denied (see: Omwenyeke v. Germany, App. No. 44294/04 (2007)). For details in regard to the said judgment of the European Court of Human Rights, see the opinion of my colleague Justice Hendel.

            We should note that Germany recently limited even the provisions permitting “geographical restriction” of infiltrators, as well as the term of their incidence.

11.       To return to Israel, now that we have approved the purpose of preventing settling in the urban centers, and in view of the fact that a very significant number of infiltrators still lives in Israel, it would seem to me that the legislature should reconsider the possibility of implementing the decision in regard to dispersal of the infiltrator population, inasmuch as it is a much more moderate solution than transferring infiltrators to residency centers, and it would achieve the same purpose, perhaps even more efficiently (if this is actually the true purpose, and not the coerced departure of the infiltrators from Israel). Moreover, a person who violates the geographical restriction can be subjected to an “additional level of restriction” (in accordance with the “ladder model” of proportionality), i.e., placement in a residency center (Germany and the European Union have even recognized the constitutionality of transfer to the criminal path in such situations). In such a case, it would seem that even a maximum period of twenty months would not lead to nullification.

            Such an approach, which was already recommended by the President in the Eitan case (after noting in the Adam case that finding humane solutions for the infiltrators already living among us could be the state’s finest hour), has now become a legal imperative in the framework of the proportionality requirement in order to realize the purpose that we have recognized. It even has some grounding in the provisions of sec. 32T(d) of the Law.

            It might even be argued that not adopting this path might lead to viewing the Law as incompatible with the values of the State of Israel as a Jewish and democratic state, particularly in view of the European standard and the German practice.

            It is not yet too late to attempt to implement this model.

12.       Support for my approach, which seeks to achieve the permitted purpose without undesirable side effects, can be derived – indirectly – from the Israeli authorities’ action (actually inaction) in regard to requests to recognize infiltrators as refugees, to the extent that such have been submitted prior to the issuance of a residence order. Petitioners 1 and 2 are sad, living examples of this, particularly in view of the fact that the brother of Petitioner 1, who also fled Eritrea and whose circumstances would appear similar to those of Petitioner 1, was granted such recognition by Switzerland some time ago.

            In her opinion, my colleague Justice E. Hayut presented edifying data in this regard, deriving from the supplementary affidavit submitted by the State on Feb. 16, 2015, which reveal shocking incompetence, if not deliberate negligence, in the treatment of such requests (even those submitted to the competent authorities before the applicants were called to the residency center).

            Moreover, of the requests that were nevertheless examined, only an insignificant number (some 0.9% of those submitted by Sudanese and Eritrean nationals) were granted, which is negligible in comparison to the rate of approval for asylum requests of similar nationals in other western countries.

            I will now address the consequences of the above for the matter before us.

13.       My colleague Justice E. Hayut directs us to HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister (Feb. 17, 2006) [http://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-a..., and to AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality (Sept. 14, 2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je... (hereinafter: the Open House case). Those petitions were primarily based upon the principles of administrative law, and the “foot dragging” of the authorities in those cases ultimately led to the granting of the petitions.

                        Moreover, such inaction also bears constitutional significance (see the comments of my colleague Justice E. Hayut on this subject in the Open House case), as I shall now explain:

            First, it would appear that the inaction primarily harms minorities or disadvantaged communities.

            Second, in our context, inaction may testify that the declared proper purpose (preventing settling in the urban centers), which we accepted, is not the main purpose, and that it is accompanied by other, hidden purposes of no less importance, in regard to which the state is – prima facie – acting contrary to the obligations of its agencies in the framework of Basic Law: Human Dignity and Liberty (sec. 11), and in apparent contravention of the international obligations that the state undertook in ratifying the Convention Relating to the Status of Refugees (1951), of which Israel and various Jewish organizations were among the initiators and drafters (see: Tally Kritzman-Amir’s Preface to Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy, 12-14 (2015)).

            The obligations that are seemingly contravened here are the obligation to examine asylum applications as soon as possible, and not to take any steps that might frustrate the possibility of their approval, see and compare: Directive 2013/32/EU of the European Parliament and of the Council, Article 31; and see: James C. Hathaway, The Rights of Refugees under International Law, pp. 180-181 (2014).

            At this point we should take not of sec. 32D(1) of the Law, which establishes as follows:

Notwithstanding the provisions of section 2(a)(5) of the Entry into Israel Law, an infiltrator who is subject to a residency order will not be granted a visa and permit for residency in Israel under the Entry into Israel Law.

            The provisions of this section would seem to show that in the case of a person issued a residency order, the possibility that his request for recognition as a refugee will be approved is, in practice, frustrated if it was submitted prior to the issuance of the residency order.

            This would constitute the state’s renunciation of its above obligations, and in such circumstances the state might be deemed as estopped by virtue of the good-faith principle from raising arguments to ground the residency order, or even to justify the relevant legislation. This principle is established in sec. 43(a) of the Contracts (General Part) Law, 5733-1973, and it applies by virtue of sec. 61(b) of that law “to legal acts other than contracts and to obligations that do not arise out of a contract” (see and compare: AAA 1659/09 Ministry of Construction and Housing v. Malka, para. 18 (Nov. 17, 2013) and the references cited there).

            It would therefore appear that the geographical restriction solution for infiltrators (and here it would be proper to consider proportional allocation among all the various parts of the country, as noted) would provide a balanced response to the problem, and in my opinion, it should therefore be considered. The reasoning in regard to the purposes of the 2014 Amendment concerning the residency center are appropriate here as well, and in this regard I concur with the comprehensive opinion of my colleague Justice U. Vogelman and his comments on enforcement, which – in the absence of clear, controlled criteria –  appears selective in terms of who is issued a residency order.

14.       The consequence of all the above is that without reconsidering the alternative of geographical restriction – which is less harmful and should therefore be established by law prior to implementing the alternative of placement in a residency center – the period of a stay in the residency center cannot reach twenty months. Moreover, without such an alternative, it is possible that in the future, depending on the manner of implementation, it may be argued that the law is not what it purports to be (compare HCJ 121/68 Electra (Israel) Ltd. v. Minister of Industry and Trade, IsrSC 22(2) 552 (1968) in regard to subsidiary legislation). Therefore, only if the geographical restriction alternative is approved will it be possible to accept the current restriction of the residency arrangement (residency in the center for up to twenty months), subject to the additional assumption that even then the said authority will be exercised with restraint, and that it will generally not be implemented to its fullest extent (compare: HCJ 2442/11 Shtanger v. Speaker of the Knesset (June 26, 2013) [http://versa.cardozo.yu.edu/opinions/shtanger-v-speaker-knesset] (hereinafter: the Shtanger case)).

            The solution that I am proposing thus involves returning the Law to the Knesset so that it can adopt one of the two paths outlined above, or a hierarchic combination of them, or some other proportionate solution that it may deem suitable in light of our comments. In this manner, the “margin of legislative appreciation” (also called the “margin of proportionality”) will also be appropriately maintained, see: the Shtanger case, and the majority opinion in the Boycott case (HCJ 5239/11 Avneri v. Knesset (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

15.       Before concluding, I would add that I also agree with the approach of the President and the other concurring justices in regard to the validity of sec. 32T of the Law, which in my opinion, should also be exercised with restraint and in proportion (again compare: the Shtanger case).

            In addition to the reasons presented by the President, I also agree with the my colleague Justice S. Joubran’s distinction in regard to the punishment of soldiers, corrections officer and police as opposed to infiltrators (and those authorized to order it). Grounds for this distinction can also be found in sec. 9 of Basic Law: Human Dignity and Liberty. On the interpretation of this section, see: Hanan Melcer, The IDF as the Army of a Jewish and Democratic State, Rubinstein Volume 347, 370-389 (2012).

16.       Having arrived at this point, a question remains as to my view of the transitional provision required as a result of this decision. I agree with holding the declaration of voidance in abeyance, as proposed by the President in para. 115 of her opinion. However, I do not think that the exception to the said suspension should apply to all of those currently in the residency center, as proposed by the President, but only to those among them who submitted requests for recognition as refugees prior to their being issued residency orders and who have not yet received a decision (Petitioners 1 and 2 among them).

            This approach is justified both by theoretical and practical reasons (the latter were explained in the opinion of my colleague Justice Hendel). This result is required, inter alia, by the obligation of mutual respect mentioned earlier, so that the Knesset (which will have to address the entire matter for a third time), the government and the public will be able to prepare properly for the new situation (see: Yigal Mersel, Suspension of a Declaration of Invalidity, 9 Mishpat U'Mimshal 39 (2006)). This is also the accepted approach in Canada under similar circumstances (see and compare: Kent Roach, Constitutional Remedies in Canada 14-82 to 14-92.2). In such matters, it is preferable to grant some period of time for arriving at a more comprehensive solution over the medium term (along with the necessary implementation required immediately) rather than achieving a limited immediate result.

17.       In summation, I would say that the intermediate solution that I have proposed for consideration strikes a reasonable balance among the needs of all in these difficult circumstances, in the sense of achieving the lesser evil where a greater good cannot be attained.

            Moreover, as the descendants of ancient ancestors who were foreign workers in a country that was not their own, and of more recent forebears who pounded on the gates of various countries in their flight from the Nazis, and were turned away, we must apply the relevant legal principles with compassion and sensitivity toward all involved. This is demanded by our being a Jewish and democratic state.

 

The result is therefore as follows:

1.         Decided by majority in accordance with the opinion of President M. Naor, Justices S. Joubran, E. Hayut, Y. Danziger and Z. Zylbertal concurring, that subject to the proposed interpretation, the provisions of the Law pass constitutional scrutiny, with the exception of the provisions of secs. 32D(a) and 32U, which establish the maximum period for being held in the residency center, and are void. In accordance with the majority decision, the declaration of the invalidity of these sections will be held in abeyance for a period of six months. During that period, the maximum period for holding a person in the residency center under those sections will be twelve months. Those who have been held in the residency center for twelve months or more on the date of this decision will be released immediately, and no later than fifty days from the date of this decision, as stated in para. 115 of the opinion of President M. Naor.

(a)        Justices U. Vogelman and I. Amit concurred with the majority, but were of the opinion that sec. 32T should also be declared void.

(b)        Justice H. Melcer joined the opinion of the majority subject to the proviso that the alternative of geographical restriction be considered, and with the exception of the transitional provision, as stated in paras. 11, 14 and 16 (respectively) of his opinion.

(c)        Justice N. Hendel, dissenting, was of the opinion that the petition should be denied in its entirety.

2.         The Respondents shall bear the costs of the Petitioners in the total amount of NIS 30,000.

 

Given this 26^th day of Av 5775 (Aug. 11, 2015).

 

 

In the Supreme Court sitting as High Court of Justice

 

HCJ 2383/04

 

Before:                                   Deputy President E. Mazza

                                              Justice A. Procaccia

                                              Justice E.E. Levy

 

Petitioners:                             1. Leora Milo

                                              2. Daniel Shabtai Milo

 

                                                v.

 

Respondents:                          1. Minister of Defence

                                              2. Committee on Conscience-Based Exemptions under section 39 of the Defence Service Law

                                              3. Appeals Committee

 

Petition for Order Nisi and Interlocutory Order

 

Date of session:                       22 Nissan 5764 (13 April 2004)

 

On behalf of Petitioner 1:         Adv. Gaby Lasky; Adv. Smadar Ben Natan

On behalf of Petitioner 2:         Pro Se

 

On behalf of Respondents:        Adv. Yuval Roitman

 

 

 

JUDGMENT

 

Justice A. Procaccia:

 

Introduction

1.       The time has come once again to revisit the question of refusal to serve in the IDF for reasons of conscience, and how it stands in relation to the law and the prevailing social order; the issue of the gap between the dictates of the individual's conscience and the imperatives of the law — whether it can be bridged, what are its limits, and what is the proper middle ground between the individual's inner moral obligation and the fundamental principles of democracy and the rule of law; what are the boundaries within which a human society is capable of acknowledging the legitimacy of disobeying the law on grounds of personal conscience while at the same time safeguarding itself from doom; how it might be possible to reconcile the constitutional value whereby freedom of conscience is recognized as a fundamental value with the democratic value predicated on majority rule, and which requires that the minority and the individual respect the law, as well; how one can reconcile the internal contradiction that might arise between a form of government based on majority rule and individual conscience in a liberal pluralistic state, which recognizes this set of values and attributes considerable weight to each of them within the overall social order.

 

Background

 

2.       The Petitioner reached the age of conscription to the IDF. Close to her date of induction into the army, she submitted a request to the military authorities for an exemption from military service for reasons of conscience, in view of her objection to the IDF's policy in the Administered Territories, which contravened her humanistic, moral ideology. The military authorities rejected the exemption request, and the Petitioner's obligation to serve her compulsory military service stood. Refusing to accept the decision, the Petitioner was tried and given a prison sentence. She is currently due to serve another prison sentence, which has been stayed pending the decision in the present petition. The petition seeks to have the decision of the competent military authority not to exempt the petitioner from compulsory service reviewed and, in so doing, raises questions of principle regarding the phenomenon of refusal to serve in the army, both in the legal and social contexts, among them the questions of the circumstances and conditions under which refusal might constitute grounds for exemption from military service, and whether a distinction might be warranted for this purpose between women and men of military age.

 

Facts

 

3.       The Petitioner is a "person of military age" as defined in sec. 1 of the Defence Service Law (Consolidated Version), 5746-1986 (hereinafter: "the Law"). Close to her date of induction, scheduled for  September 30, 2003, she approached the army's conscription authorities requesting to be exempted from defence service for reasons of conscience. She based her request on sec. 39 of the Law, claiming that her conscience did not allow her to serve in an army of occupation, as this went against her moral and social obligation. The reasons for the request were set forth in a letter she had sent to the army's exemption committee (Appendix P3/A):

 

I cannot cooperate with the occupation army of the State of Israel… I object to the occupation. I object to it not because it harms us directly, but mainly on ideological grounds. The occupation contravenes my humanistic, moral ideology… The Israeli government implements a policy of daily humiliation in the occupied territories, which is chiefly expressed in the presence of IDF soldiers. I will not be part of an entity that carries out morally wrong policies… Regretfully, instead of setting an example of morality and justice for the whole world, the State of Israel chooses to raise the blackest banner of them all — a banner stained by evident wrongdoings against innocent Palestinians, and stained in particular by its control over their everyday life… As far as personal conscience goes, my conscience clearly tells me that the IDF is an immoral entity, and that this is not the right way for me to contribute to my country… I have no intention of giving up easily — this is my country! It is my democratic right to shape it in line with my values, which are supposed, moreover, to be those of Judaism in general…

 

          The Petitioner was summoned before the Committee on Conscience-Based Exemptions (hereinafter: "the Exemption Committee"), where she stated that she was not a pacifist, and that if the IDF were to pull out of the territories of Judea, Samaria and the Gaza Strip, she would be willing to serve within its ranks. Among other things, she told the committee: "If the army were to pull out of the territories, I would have no problem enlisting. Had I lived in the Czech Republic, I would have enlisted. I believe a country should have an army" (R/1).

 

          On August 28, 2003, the Exemption Committee denied the Petitioner's request for an exemption, explaining:

 

The committee was not satisfied that reasons of conscience prevented her from serving in the IDF. The reason is the IDF's presence in the territories.

 

          On September 15, 2003, the Petitioner filed an appeal contesting the decision of the Exemption Committee, in which she wrote, among other things:

 

I insist that this is my conscience — the strict prohibition against serving in an occupation army which, in protecting the settlement "enterprise", violates international law and the Ten Commandments every day and every hour; this is incompatible with my basic values. I persist in my demand to contribute to Israeli society in a way that is right for me, i.e. to go on to serve within the framework of the National Service…

 

          The Appeals Committee heard the Petitioner and her witnesses, and decided to reject the appeal. In its decision, it stated as follows:

 

The committee was not satisfied that reasons of conscience prevented the candidate for military service from carrying out her military service. The arguments put forward by the candidate and her witnesses focused primarily on social reasons and the candidate's desire to contribute to society outside the army.

 

          On February 22, 2004, after her request for an earlier enlistment date was granted by the military authorities, the Petitioner reported for the start of her military service but refused to go through the induction process. As a result, she was tried in a disciplinary hearing, and was sentenced to 14 days in jail, which ended on March 5, 2004. After serving her sentence, she presented herself once again at the induction base, on March 7, 2004, and was once again sentenced for disobeying a similar order. At her request, the start of the prison sentence was deferred to March 11, 2004. On March 8, 2004, the Petitioner and her father, Mr. Daniel Shabtai Milo, filed the petition now before us, in the course of which an interlocutory order was issued delaying execution of the Petitioner’s additional prison sentence pending a decision on the petition.

 

The Parties' Arguments:

The Petitioner's Arguments

 

4.       The Petitioner contends that her reasons for seeking exemption from compulsory service in the IDF are conscientious, and are not reasons of another kind as was determined by the Exemption Committees in their decisions. As such, the matter falls within the scope of sec. 39 of the Law, which grants a female person of military age a statutory exemption from military service by reasons of conscience, or reasons connected with her family's religious way of life, preventing her from serving in defence service. It is argued that once such reasons of conscience have been proven, a woman is granted exemption from service by virtue of the Law, with no discretion given to the military authorities in the matter. In this, a female person of military age differs from a male person of military age, who is subject in this matter to sec. 36 of the Law, under which the Minister of Defence is vested with discretionary authority to determine when and under what circumstances it is possible and appropriate to exempt a person of military age from compulsory service, inter alia, for reasons of conscientious objection. The Petitioner claims to have satisfied the burden of proof that rests with her to show that her objection to serving in the army was motivated by true reasons of conscience, and that consequently, under the provisions of sec. 39 of the Law, the Exemption Committees must recognize her reasons and her statutory right to the exemption sought.

 

Respondents' Position

 

5.       The Respondents' position is that the petition must be dismissed in limine for laches. Speaking to the merits of the case, they claim that the army's Exemption Committees acted within their authority, and that there should be no intervention in their decisions. First, they argue, there should be no intervention in the factual findings according to which the Petitioner's objection to military service should not  be classified as conscientious objection, but rather as objection premised upon social reasons and a desire to contribute of her personal capabilities to extra-military frameworks. Second, reasons of conscience that warrant granting a female person of military age exemption by virtue of sec. 39 of the Law are, by nature, such that preclude a woman from military service as such. What this means is that only reasons that by nature rule out military service as such should fall within the scope of the statutory exemption granted to women. These reasons differ in substance from reasons of selective refusal, which are characterized by ideological, social or political motives, and which make refusal to serve in the army conditional upon the nature and character of the service, its location, or the kind of actions required of the soldier during the service, etc. The Exemption Committees found the Petitioner's refusal to serve in the army to be distinctly socio-political, thus amounting to contingent selective refusal. As such grounds for refusal do not entitle one to exemption, there is no occasion to intervene in the decision made by the competent military authority that rejected the Petitioner's exemption request, and the petition must be dismissed on the merits.

 

Definition of the question to be decided

 

6.       In a society erected upon the pillars of democracy, the will of the majority is the bedrock of social order. The law and the arrangements derived therefrom, adopted as per the will of the majority, must be obeyed by virtue of the very nature of the democratic process, failing which a civilized society cannot endure. Obeying the law is both a legal and a moral obligation. Its fulfillment underlies our life together in society, and is the basis for the mutual respect of human rights and the protection of universal values, among them human equality and liberty (Y. Zamir, The Boundary of Obeying the Law, Festschrift in Honor of the 80^th Birthday of Shimon Agranat, 1987, p. 119 (Hebrew)). With that said, since ancient times, human society has contended with the possible conflict between the demands of the law and of social order, and the dictates of the individual's conscience when it calls upon the individual to disobey the law. This conflict raises profound moral and ethical questions. It raises juridical questions. Under what circumstances can or should society recognize the phenomenon of refusal to respect the law; when and how is it fitting to reconcile the individual's internal moral compass and the will of the majority in a democratic regime?

 

          The margins afforded by society for acknowledging the necessity and feasibility of reconciling the dictates of personal conscience with those of the law have always been very narrow. Such narrowness is necessitated by the existential needs of a human society seeking to conduct itself within an agreed order in which the rule of law must be respected, and a set of rights and duties is equally applicable to all citizens. Yet even within the confines of the existential need to enforce respect of the law as a universal obligation, various judicial authorities recognize the existence of circumstances constituting exceptions to this rule, within which the individual's right to disobey the law is acknowledged under certain conditions. Such circumstances are very few and far between, and they, too, fall within the law rather than outside it. Thus, for example, exemption from criminal responsibility is recognized in the case of a person who has disobeyed a manifestly unlawful order (sec. 24(a) of the Penal Law, 5737-1977). An order is manifestly unlawful when it is extremely immoral and its illegality is glaring (CrimA 336/61 Eichmann v. Attorney General, IsrSC 16 2033; CMA 279-283/58 Ofer v. Chief Military Prosecutor, IsrDC 44 362; CM MR 3/57 Military Persecutor v. Major Malinki, IsrDC 17 90).

 

          The law itself sometimes recognizes, within definite narrow bounds, reasons of conscience as grounds for making an exception and treating a person, a conscientious objector, differently from all the others. Such exception is made within the framework of and as prescribed by the law. This is the case in Israel. The readiness to recognize conscientious objection within narrow limits stems, first and foremost, from the fact that freedom of conscience is a recognized constitutional value in Israeli law. This value stems from the Declaration of Independence, derives from human dignity and liberty, and is tied to the value of tolerance towards the opinions and views of others in a pluralistic society (HCJ 7622/02 Zonshein v. Military Advocate General, IsrSC 57(1) 726, 734). It comes from recognizing conscientious objection as a human phenomenon. The legal arrangement that recognizes reasons of conscience as grounds for making an exception for one individual among all others reflects the outcome of striking a balance that seeks to reconcile between the needs of social order and equal sharing of rights and duties by all members of society, on the one hand, and the consideration given to the individual exception who removes himself from the collective, on the other hand. It tolerates the exceptionality of the individual where this poses no immediate, real danger to the public order, whether because of the content and nature of the exception or in terms of the phenomenon's scope. Striking this balance is all the more difficult and delicate in a society engaged in a struggle for its life and security, and facing a constant challenge to its existence. The possible margin for recognizing the individual exception from the public at large in a society living and acting in times of emergency is naturally very narrow. Were this not the case, social order and the rule of law might weaken, and the democratic process might be supplanted by anarchy. Recognizing the individual's conscientious reasons as grounds for exemption from compulsory service in the IDF is likewise defined within the law, as a product of balances struck between the public interest and respect for the individual's consciousness.

 

          Military service in Israel is a civil duty that falls to any person of military age. It is a legal duty applicable by virtue of the law. It is also a moral duty in view of the country's basic, immediate survival needs. It is a duty equally imposed, for all civilians to bear. Nevertheless, the Defence Service Law recognizes exceptions to the duty of military service for various considerations and purposes. Inter alia, it also recognizes — within definite narrow boundaries — the possibility of granting an exemption from military service for reasons of conscience. The boundaries within which this exception is recognized are the subject this hearing.

 

          The focus of the question to be decided is this: What kind of refusal might justify granting exemption from compulsory military service in the IDF under the Law? Derived from it are the following questions: Is the distinction between absolute refusal to serve in the army and selective refusal that is conditional relevant for the purpose of exemption from compulsory service? How does conscientious objection stand in relation to refusal that essentially amounts to civil disobedience? Is there a distinction between men and women of military age as regards exemption for reasons of conscience, and how does the general power to grant exemption from service under sec. 36 of the Law stand in relation to the exemption provisions specific to women of military age under sec. 39 of the Law? What is the interrelationship between these two sources of exemption provided under the Law? When, and under what circumstances, is the competent authority given discretion in granting exemptions, and what discretionary guidelines should it exercise? And does proving certain facts and conditions suffice, under certain circumstances, to confer a statutory right to exemption?

 

Legislative framework

 

7.       The Law addresses exemption from military service in two contexts. Section 36 of the Law provides for a general power given to the Minister of Defence to exempt a person of military age from compulsory service, as follows:

 

Power to exempt from or defer service

36. The Minister of Defence may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces of the Israel Defence Forces or for reasons connected with the requirements of education, security settlement or the national economy or for family or other reasons (1)  exempt a person of military age from the duty of regular service or reduce the period of his service; (2)  exempt a person of military age from the duty of reserve service for a specific period or absolutely…

Exemption from military service for reasons of conscience falls within the term "other reasons" in the opening paragraph of sec. 36, which authorizes the Minister, where appropriate, to exempt a person of military age from regular or reserve service for reasons of conscience (the Zonshein case, ibid., p. 732; HCJ 1380/02 Ben-Artzi v. Minister of Defence, IsrSC 56(4), 476, 477) (hereinafter: "General Power of Exemption").

 

          Alongside the General Power of Exemption under sec. 36, applicable to all persons of military age, is a special exemption provision in sec. 39(c) of the Law, which relates to a female person of military age, granting her statutory exemption under certain conditions. This is worded as follows:

 

Statutory exemption from service

39 (c) A female person of military age who has proved, in such manner and to such authority as shall be prescribed by regulations, that reasons of conscience or reasons connected with her family's religious way of life prevent her from serving in defence service shall be exempt from the duty of that service. (hereinafter: "Special Exemption")

 

The question of conscientious objection has occupied the legal world for years in connection with exemption requests by men of military age under sec. 36 of the Law. Examining the nature of the Special Exemption for reasons of conscience as it relates to women of military age is another link in the chain of proceedings and rulings on the issue of refusal to enlist for reasons of conscience, and it raises, first and foremost, questions regarding the criteria for implementing the Special Exemption for women under sec. 39. Beyond that, it raises questions regarding the possible applicability of the General Power of Exemption in sec. 36 to women, and regarding the relationship between the General Power of Exemption and the Special Exemption in this context.

 

The Special Exemption: Reasons of conscience as grounds for exempting a female person of military age

 

8.       The Special Exemption provision in sec. 39(c) suggests that a female person of military age, who has proved that reasons of conscience prevent her from serving in defence service, shall be exempt from that duty of service. This provision comprises it two principal conditions:

 

One, the existence of reasons of conscience pertaining to military service; the second, that such reasons prevent her from doing military service. The first condition is about factually proving that the woman liable for conscription has reasons of conscience pertaining to her service. The second condition, of a legal-normative character, examines whether the reasons of conscience proved are indeed of a nature that duly prevents her service in the army from the normative perspective. When this criterion is met for a female person of military age, she is exempt from compulsory service by virtue of the Law, and this is not subject to the discretion of the military authorities. 

 

          The first condition has to do with the impression formed by the army's Exemption Committees, based on the testimony of the exemption-seeker, regarding the substance of her claimed reasons, and the credibility of hear claim. This process bears some resemblance to the process of assessing testimony in court in order to assess witness reliability and establish findings of fact based upon them. The difficulty inherent in assessing the reliability of claims alleging reasons of conscience in connection with draft refusal have been described by the Court in the Ben-Artzi case (ibid., p. 478) (per Justice Cheshin), as follows:

 

Conscientious objection is a purely subjective affair — a matter of the heart — and we have long known that only the Lord looks on the heart, but man looks only on the outward appearance. Indeed, concluding that so-and-so is requesting an exemption from regular service because military service runs counter to his conscience is no easy task by any reckoning. In a sense, this is akin to a trial court determining that it believes such-and-such a witness, but not another. In fact, the conclusion that so-and-so is a conscientious objector, or not, is not merely a question of trust. It is a question of understanding the body of evidence presented to the committee, and it is, in any case, a decision open to review by a court. However, the burden of proving that the committee erred in its decision — and not only erred, but erred so much as to have the court overturn its decision — is a burden that lies with the petitioner".

 

(and cf. HCJ 4062/95 Epstein v. Minister of Defence, Dinim Elyon 41, 794).

 

In the first stage of examining the claim of objection, the Exemption Committee must therefore examine how sincere the applicant's arguments are and how credible she is. The question is whether she speaks the truth in asserting the existence of conscientious reasons preventing her from serving in the army, or whether her claim is a cover-up for other motives, such as convenience or a desire to evade the draft, wrapped up in an artificial shroud of conscientious scruples. If the exemption-seeker's reasons are judged genuine, the Exemption Committee is required, within the framework of the initial inquiry stage, to classify their nature by their content, and determine whether these are indeed conscientious reasons or rather reasons of a different character. This classification relates to the content of the reasons and to an evaluation of whether they have to do with reasons of conscience or reasons of a different hue, whether social, political or other. The classification issue can get trickier when the rationale for refusal consists of different, intertwined reasons, some conscientious and others not. If the reasons for objection are classified in such a way as to fall completely outside the scope of conscience in the sense of the Law, the competent authority's examination is concluded at the close of the first stage, and the exemption request is rejected. If, on the other hand, the straightforward classification of the reasons for objection indicates that they are conscientious motives, be they uniquely so or intermixed with other reasons, the examination then moves on to its second stage, namely a normative investigation of the question whether any reason of conscience can lead to exempting a female person of military age from her duty to serve, or whether only specific types of conscientious reasons might bring about this outcome.

 

Reasons of conscience: Conscientious objection versus civil disobedience

 

9.       Freedom of conscience is recognized in Israel as a constitutional value derived from the Declaration of Independence and the state's democratic character. It is intertwined with the values of freedom of religion and belief (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner, IsrSC 38(2) 449, 454; Berenson, Freedom of Religion and Conscience in the State of Israel, 3 Tel Aviv University Law Review, 1973-1974, p. 405 (Hebrew)). Freedom of conscience, as a general constitutional value, could cover the entire spectrum of an individual's opinions, ideas and beliefs in all areas of life. However, its specific content and scope may vary depending on context. In the context of the issue of disobeying the law, the concept of "reasons of conscience" takes on a specific, narrow meaning appropriate to the particular nature of the matter.

 

          In analyzing the various ideological reasons for disobeying the law, philosophic writings recognize the distinction between civil disobedience and conscientious objection (J. Rawls, A Theory of Justice, p. 369; D. Heyd, Objection — Political or Conscientious, On Democracy and Obedience (1990), pp. 87, 88-89 (Hebrew); J. Raz, The Authority of Law, 1979, pp. 263, 276; L. Sheleff, The Voice of Dignity: Conscientious Objection out of Civic Loyalty, 1989, pp. 5-84, 159 (Hebrew)). The distinction is important not only because of its conceptual, theoretical categorization of different types of ideological disobedience. It has practical implications in implementing the Law and applying the exemption from military service to persons of military age in the IDF.

 

          "Civil disobedience" is defined as disobedience whose motives, mainly ideological and political, are driven by a desire to effect a change in law, policy or social order, which are deemed essentially just. What characterizes civil disobedience is that, in order to realize the change it has set out to achieve, the disobedience usually takes place in public, takes on a proactive yet non-violent demonstrative form, and is mostly carried out in collaboration with others. The disobedient act is meant to send a message to the governing institutions regarding the need for a change in policy or law, and it seeks to impress this message on the general public. Civil disobedience does not revolve around the individual. It revolves around the need for a change of policy in matters relating to society and state.

 

          "Conscientious objection" differs in nature from civil disobedience in that it is a distinctively individual affair, personal and idiosyncratic in both its characteristics and motives. "The objector refuses to follow an order that is not in keeping with his religious, moral or personal values" (Heyd, ibid., p. 89). Conscientious objection does not seek to change the world order, but to keep the individual's purity of belief and moral integrity intact. "Objection is not some action taken at the individual's initiative, but a passive reaction to circumstances" (Heyd, ibid., p. 89). A hallmark of conscientious objection is thus its individual dimension, and the objector is not usually interested in influencing others into behaving like him. As such, this kind of objection often takes place out of sight, deep inside the objector's heart. It is unique and particular to a person as an individual, within himself. Whereas civil disobedience faces outward, toward the public at large, conscientious objection faces inwards, toward one's personal moral sense, and is deeply embedded within the individual.

 

          The distinction between objection for reasons of civil disobedience and objection for conscientious reasons is not always an easy one to make. Political-ideological disobedience is sometimes inseparably bound with conscientious, personal objection. At times, the drive to change the way things are may go hand in hand with a personal conscientious, moral inability to be part of the executive apparatus implementing the policy criticized. It is also possible for objection originating in the dictates of one's personal conscience to breed objection of the civil-disobedience kind, fueled by ideological-political reasons. Thus, the various roots of refusal to obey the law — the political-ideological and the moral-personal ones —might be inextricably intertwined (Raz, ibid., p. 263; Rawls, ibid., p. 371; the Zonshein case, ibid.). The theoretical distinction between objection through civil disobedience and conscientious objection is reflected in the phenomenon of objection to fulfilling one's compulsory military service.

 

Selective versus general objection

 

10.     The distinction between conscientious objection and ideological-political objection may have some bearing upon the character and extent of refusal to serve in the army. These are not accurate definitions or hard-and-fast lines marking off the various types of objection, but general lines pointing to the existence of a tendency in the following directions: Overall objection to serving in the army, which makes no condition, and essentially objects to any use of force at any time or any place, is typically grounded in the individual's conscience. It stems from the individual's internal conscientious, moral objection to taking part in any form of military service as such, without any necessary regard to the nature of the service, to army policy, to the timing of service or its place. Circumstances, place or time are immaterial. This differs from selective objection, which is contingent by nature. It does not categorically rule out military service, but makes it contingent on the fulfilment of certain conditions. It might be rooted in objection to army policy on political, ideological or notional grounds. It remains in effect as long as the policy remains unchanged. The condition underlying the objection may take on different forms — objection to serving in a particular area, at a particular time, or to performing certain acts as part of the service (HCJ 734/83 Schein v. Minister of Defence, IsrSC 38(3) 393; Zonshein case, ibid.). Selective objection bears the fundamental marks of civil disobedience, but might also combine interwoven reasons of conscience and personal morality. The difficulty in distinguishing between political-ideological objection and conscientious objection, especially the selective kind, was underscored by President Barak in the Zonshein case (ibid., pp. 737-8):

 

The ability to distinguish between one who invokes conscientious objection in good faith and one opposed to government or Knesset policy is diminished when it comes to selective objection, as the line between objecting to some state policy or other and conscientious objection to carrying out this policy is thin, sometimes razor-thin.

 

Distinction between general conscientious objection and selective objection within the policy on exemption from military service under sec. 36 of the Law

 

11.     For decades now, in exercising its power of exemption from military service under sec. 36 of the Law, the competent authority has implemented a distinction between general conscientious objection and selective objection to service. The test it applies is this: What is the nature and view of the service objector on the use of force and on war in general, as against the service objector's view on military service at the ideological-notional level based in political-social outlook. The competent authority's exemption policy, as of now, allows for the possibility of exempting a person from service on grounds of general conscientious objection. It does not grant exemption from service in situations involving selective objection. Even the willingness to concede an exemption on grounds of general conscientious objection is a policy given to change, and inextricably linked to circumstances and current needs (the Schein case, ibid; HCJ 4062/95 Epstein v. Minister of Defence).

 

          In the Zonshein case, this policy of the competent authority came under judicial scrutiny. President Barak, delivering the opinion of the Court, weighed freedom of conscience as a constitutional value against the needs of the state in defending its security and the importance of upholding the value of equal sharing of the security burden by all citizens of the state. He pointed to the social danger inherent in broadening the recognition of conscientious objection as grounds for exemption from service, to its harmful effect on security needs, to the unfairness and the discrimination between citizens that it entails. He noted the difference in nature between general objection and selective objection, the scope of the phenomenon, and the set of balances that narrows the possibility of recognizing partial objection while allowing recognition of general objection under certain conditions. The conclusion was that the public authority's policy, which allows exemption for reasons of general conscientious objection, in appropriate circumstances, and that currently denies exemption to selective objection, satisfies the test of public law, by striking a proper balance between the conflicting values. President Barak explains the reasoning behind this as follows (ibid., p. 737):

 

Refusal to serve in the army for “comprehensive” reasons of conscience is not the same as refusal to do so for selective reasons of conscience. Indeed, when the scales are tipped against recognizing conscientious objection, they are much more heavily tipped against recognizing selective conscientious objection than “comprehensive” conscientious objection. The gravity of granting an exemption from a universally binding duty is obvious. Selective conscientious objection is, by nature, a wider phenomenon than the “comprehensive” kind, and it expresses, in full force, the feeling of discrimination between “blood and blood”. But beyond that, it bears upon the very issue of security considerations, since the group in question has a tendency to grow. Moreover, in a pluralistic society like ours, recognizing selective conscientious objection might weaken the hoops that bind us together as a people. Yesterday, it was objection to serving in southern of Lebanon. Today, the objection is to serving in Judea and Samaria. Tomorrow, the objection will be to removing certain settlement outposts in the region. The people's army might become an army of tribes composed of different units, where each unit has areas in which it is permitted to act conscientiously and others where it is conscientiously forbidden to operate. In a polarized society like our own, this is a hefty consideration.

 

The balance struck by the Minister of Defence, whereby granting exemption from military service to selective conscientious objectors is currently unacceptable, is one that satisfies the test of reasonableness and proportionality (HCJ 470/80 Algazi v. Minister of Defence; the Schein case, ibid., pp. 399, 403; HCJ 630/89 Machness v. Chief of Staff).

 

          For a similar conception of the distinction between general conscientious objection and selective objection, see, in the U.S., the War and National Defense, Military Selective Service Act,  1967, 50 U.S.C. App. § 456(J); and the rulings in Gillette v. U.S., 401 U.S. 437 (1971); U.S. v. Seeger, 380 U.S. 163, 173 (1965).

 

Applicability of the General Power of Exemption by virtue of sec. 36 of the Law to men and women

 

12.     The power accorded to the Minister of Defence by virtue of sec. 36 of the Law to exempt a person from the duty to serve in the IDF does not distinguish between men and women. It applies to "a person of military age" as defined in the Law, and the definition in question applies equally to men and women. The Power of Exemption, which also extends to exemption for reasons of conscience, thus applies to men and women of military age, and it stands to reason that the policy implemented in exercising the Power of Exemption for reasons of conscience would be similar, if not identical, in both situations, without there being a substantial distinction between them. Reasons of conscience in this context are founded on "a serious moral decision — not based on religious reasons — on right and wrong as seen by the individual, who considers himself bound to act in accordance with it, such that acting against it would be greatly injurious to his conscience" (the Zonshein case, ibid., p. 733).

 

          There is likewise nothing in the exemption policy adopted by the Minister of Defence, which distinguishes between general conscientious objection and selective objection to military service, that would constitute a basis for a distinction between men and women of military age. The main consideration for ruling out recognition of selective objection as grounds for exemption from service rests on the assumption that this kind of objection is generally rooted in political-ideological reasons that are not to be recognized within the confines of the army, which is founded and functions upon a broad national conception. Introducing a political element into the IDF's conscription policy might negatively affect the fundamental conception of the defence service. It might give rise to discrimination between individuals, and eventually undermine the normal democratic process, which is predicated on equal sharing of the burden of social duties.

 

          The stance that a government and military apparatus cannot tolerate a situation where persons of military age can dictate if and when they will serve in the army, where they will serve, what actions they will carry out, what orders they will deign to follow and which ones they will refuse, holds equally true for male and female persons of military age. The danger inherent in selective objection for national morale and the value of unity characterizing the army as the people's army is no different whether women or men are involved. In this respect, the same holds true to both.

 

          It is likewise hard to accept the argument that a distinction should be drawn between men and women in terms of the extent of the exemption granted on grounds of conscientious objection on account of women's inherently lesser contribution to the defence service as compared to men, so that in weighing personal freedom of conscience against the public interest, the first value is to be preferred. This should be answered as follows: First, there is no doubting the substantial contribution of women to service in the IDF. Their involvement in the army is as old as the state itself (see F. Raday, The Army: Feminism and Citizenship, Dafna Barak-Erez (ed.), Army, Society and Law, 2002, pp. 185, 190ff. (Hebrew)). Ingrained from the very early days of the state's existence was the notion that there should be no discrimination between men and women in regard to the right and duty to serve in the army, so as to strengthen the army in might and spirit (Knesset Proceedings, session of September 8, 1948, Divrei HaKnesset, Vol. 2, 1949, pp. 1624-5 (Hebrew)). This trend grew stronger over the years with the normative changes that have contributed to greater integration of women in army combat units. Thus, in HCJ 4541/94 Alice Miller v. Minister of Defence (IsrSC 49(4) 94) (http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence) we ruled that women could participate in the Air Force pilot training course. This trend was bolstered with the enactment of section 16A of the Defence Service Law (Consolidated Version), 5746-1986, as amended in 2000 to read:

 

16A. Equality in Service

 

(a) Any female person of military age has an equal right as a male person of military age to fill any role within the military service.

 

(b)  The right of a female person of military age to fill any role shall not be deemed to have been infringed if the nature and character of the role demand it.

 

(c)  A female person of military age who serves, by choice, in one of the roles determined by the Minister of Defence with the approval of the Knesset's Foreign Affairs and Defence Committee is subject to the same rules as a male person of military age.

 

          An amendment in the same vein was introduced into the Equal Rights for Women Law, 5711-1951, in that same period, as follows:

 

6D. Service in the Defence Forces

 

(1)  Any woman who is a candidate for service in the Defence Forces, or who serves in them, has a right equal to the right of any man to fill any role or be assigned to any position; this right shall not be deemed to have been infringed if that is required by the nature or character of the role.

 

(2)  In this section, "Defence Forces" – the Israel Defence Forces, the Israel Police, the Israel Prison Service and the State's other security organizations.

 

          (See also Defence Service Regulations (Determining Volunteer Roles for Women's Service), 5761-2001, which followed later).

 

          Moreover, given modern methods of warfare, contribution to security is not limited to the combatant's physical effort on the battlefield. The needs of the armed forces are numerous and varied, and the human contribution required to ensure security outside the battlefield does not fall short of that required on the battlefield itself. Furthermore, the serious security threats the country faces require different means of dealing with the dangers, including sophisticated means of information, skills, and operating state of the art systems far from the battlefield. As regards many of these tools, there is no real difference between men and women in terms of their ability to handle the task and share the burden.

 

          The absence of any direct relationship between the gender identity of recruits and their contribution to the army has occasioned extensive writing on the existing distinctions regarding the duty of combat service and the burden of reserve service in connection to questions of wrongful discrimination between men and women within the armed forces (see Raday, ibid., p. 204 ff.; S. Almog, On Women, Army and Equality, Following HCJ 4541/94 Miller v. Minister of Defense et al., Mishpat Umimshal 3 (1995-1996) (Hebrew), p. 631; D. Friedmann, Women's Service in Combat Professions and Equal Sharing of the Burden, Hamishpat 4 (1998), p. 27 (Hebrew); Y. Nechushtan, Discrimination of Men in the IDF, Hamishpat 4 (1998), p. 115 (Hebrew); K. Shalev, On Equality, Difference and Sexual Discrimination, Essays in Honor of Moshe Landau, vol. 2, 1995, p. 893, at pp. 900-902 (Hebrew); N. Chazan, Women's Service in the IDF, Women in Israel, 1998 (Hebrew). And in the US, see Dean, Women in Combat—The Duty of the Citizen-Soldier, 1994, 2 San Diego Justice J., p. 429). Thus, facts and values come together to counter the view that women's army service contributes less overall than that of men. By the look of things, we seem to be headed toward essential equality between men and women of military age in the pertinent areas, while making proper, balanced allowance for differentiating features (Shalev, ibid. p. 893; HCJ 260, 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35(1) 4, pp. 7-8; F.H. Boronovski v. Chief Rabbis of Israel, IsrSC 25(1) 7, p. 35).

 

          The potential negative impact of such selective objection — whether of a male or female person of military age — on the public interest is not limited to its effect on the army's manpower. It might have an adverse morale effect on social cohesion within army ranks, and impinge on the necessary principle of separating between the duty to shoulder the burden of military service and obey orders, on the one hand, and, on the other hand, the political debate and the contrasting ideas, opinions and beliefs that characterize Israel's pluralistic society. Making military service dependent on the extent to which a male or female soldier identifies ideologically with the actions of the political and military echelon could dangerously erode the democratic process, which requires submitting to the authority of the majority and an equal sharing of the burden of economic, social and security duties, which is essential to the existence and proper functioning of society and the state. Undermining this conception by more broadly recognizing an exemption for women on grounds of selective objection might affect the army's cohesion and deal a hard blow to motivation to serve in the army, to the point of seriously and concretely affecting the way it functions (Justice Beinisch in the Zonshein case; HCJ 1532/00 De Bremaeker v. Minister of Defence, IsrSC 54(2) 297, 302). This might also have a devastating effect on the overall fabric of society beyond the ranks of the army, by upsetting society's internal balances, and particularly, by impairing the implementation of the value of the equal sharing of burdens and opportunities vital to the functioning of a sound society.

 

          The value of substantive equality thus justifies an egalitarian approach to men and women in exercising the Minister of Defence's power under sec. 36 of the Law to exempt a person of military age from service for reasons of conscience. This holds true in applying the exemption to general conscientious objection, as it does to not applying the exemption to selective objection. This seems to be the competent authority's actual modus operandi. (For the application of similar criteria to the discharge of a woman in active military service who was not under obligation to enlist, and the discharge of a man from service on conscientious grounds, see the U.S. case of Allison v. U.S. Army (1992) U.S. Dist. Lexis 12429).

 

Special statutory exemption from service for women by virtue of sec. 39 of the Law  

 

13.     Against the background of the nature of the General Power of Exemption given to the Minister of Defence under sec. 36 of the Law, the question arises concerning the implications of the Special Exemption provision accorded to a female person of military age by virtue of sec. 39(c) of the Law, where she has proven in the manner prescribed by the regulations "that reasons of conscience or reasons connected with her family's religious way of life prevent her from serving in defence service". What are those reasons of conscience that, once established, grant a woman a statutory right to be exempt from military service? How does the Power of Exemption under sec. 36, which applies to women as well, stand in relation to the Special Exemption applicable to women under sec. 39?

 

The content of the Special Exemption for women under sec. 39 can be learned in two ways, as follows: first, by examining the General Power of Exemption under sec. 36, equally applicable to women and men, in relation to the statutory exemption provision under sec. 39, applicable to women alone; second, by examining the special exemption for women in light of its purpose, and in light of the legislative history that led to its enactment. Analysis along these lines yields the following conclusions:

 

          First, the reasons elaborated above lead one to conclude that the General Power of Exemption given to the Minister of Defence under sec. 36 of the Law applies to men and women alike, including the policy distinguishing between general conscientious objection and selective objection. Hence, it stands to reason that "reasons of conscience" that warrant exemption from service for women under sec. 39 differ in nature from those over which the Power of Exemption under sec. 36 extends, unless we admit of an overlap between the provisions, which the legislature is unlikely to have intended. It can therefore be assumed that the statutory exemption for women is concerned with matters of a different character to those falling within the Minister's General Power of Exemption. This conclusion is, indeed, reinforced when one examines the purpose of the Special Exemption for women in light of the historical background that led to its enactment.

 

          The exemption from military service accorded to a woman under sec. 39 for reasons of conscience or a religious family life is essentially meant to recognize and honor the preclusion of women from army service based on the religious beliefs, customs and traditions of the religious community to which they belong. Exemption "for reasons of conscience" within the special context of this provision is closely related to reasons of religious, traditional or customary communal convictions preventing a woman from defence service as such. This is clear from David Ben-Gurion's presentation of the Defence Service Bill (Divrei HaKnesset, 1949, Vol. 2, p. 1339), in stating:

 

As regards women, we have exempted four types from this duty: married women, women who have a child, pregnant women or religiously-observant women, whether Jewish, Christian or Muslim, whose religious conviction prevents them from serving in defence service. These shall be relieved of this service. But I wish to express my hope that not all religious women in Israel will exercise this right of exemption (see also his statement, ibid., p. 1626).

 

          The statutory exemption on grounds of conscience granted to women was meant to protect the status of women in traditionally observant subgroups within the population, whose service in the army, according to the group's perceptions, is incompatible with preserving their dignity and modesty, and sometimes even contrary to explicit imperatives applicable to them as decreed by their religion. Thus, when the Knesset debated the Defence Service Bill, the representatives of religious Judaism voiced reservations over women's service in the army, seeing it as a moral and religious question of the utmost importance. Some particularly emphasized concern that values of family morals, family honor and family integrity would be seriously corrupted (speeches by MKs Kahana, Rabbi Levin, Unna, Shag, Minister of Religion Maimon, and MK Zerach Warhaftig, ibid., pp. 1445 and 1446-7, 1522, 1524, 1556, and 1559). Others emphasized the religious imperatives expressly forbidding women from carrying weapons of war and taking part in war (Responsa Igrot Moshe, Orach Hayim part IV, 75; Responsa Yabi'a Omer, part VIII,  Orach Hayim 54; for a discussion, see also R. S. Min-Hahar, Involving Women in War, 4 Tehumin 68; R. Y. Shaviv, Women in an Obligatory War: 4 Tehumin  79. See, also, the speech by MK Kahana, Divrei HaKnesst, ibid., p. 1445). Also worthy of mention in this context is the declaration issued by the Chief Rabbinate of Israel on 21 Adar 1951, which strictly prohibited the enlistment of women, even if single, into a military unit, in whatever form. This declaration was signed by Rabbis Herzog and Uziel, who served as Israel's Chief Rabbis at the time. The special exemption for reasons of conscience specific to women was indeed interpreted in view of prohibitions based on religion and tradition (see HCJ 456/71 Barzani v. Minister of Defence, IsrSC 26(2) 543):

 

When the Rabbinate issues a Halachic ruling that a given act is forbidden under Jewish Law, a secular authority does not have the power to determine that it is allowed under Jewish Law. The state's secular authorities do not lay down religious norms and, on the other hand, religious norms, as such, are not binding upon the secular authority unless there is some reason for it.

 

          Opposition to women's service in the IDF on grounds of tradition was not restricted to religious Judaism alone. Similar opposition was voiced by representatives of the Arab-Muslim community, who expressed reservations about the induction of Muslim women into the army on account of it being contradictory to the customs, tradition and religion of the Muslim community (MKs E-Zoubi and Jarjora, Divrei HaKnesset, ibid., p. 1525, p. 1528).

 

          Exemption from military service for women for reasons related to religion and tradition was for years an object of legislative action. Section 11(d) of the Defence Service Law, 5709-1949, originally established an exemption for a woman for reasons of conscience or religious conviction, subject to a declaration to that effect on her part. This arrangement was amended in 1952 such that a declaration alone was no longer sufficient, and proof was required of said religious or conscientious reasons (Defence Service Law (Amendment), 5712-1952; and Divrei HaKnesset, Vol. 9, pp. 1558ff.). This section, which became sec. 30(c) in the 1959 consolidated version of the Law, was amended in 1978 to read reasons connected with the family's religious way of life instead of reasons of religious conviction, with the addition of sec. 30A that allowed women seeking exemption on grounds of religious conviction to be exempted on the sole basis of a declaration, subject to meeting certain conditions (these provisions became secs. 39(c) and 40 in the 1986 consolidated version). This amendment was introduced on the strength of a political consensus born of coalition agreements with the religious parties, preceded by considerable public debate (Divrei HaKnesset, Vol. 82, pp. 2136-2139; 2369-2400 (first reading), and Vol. 83, pp. 3583-3665 (2^nd and 3^rd readings)). The question underlying these discussions throughout was that of imposing a duty of alternative national service on religious women.

 

          The above reveals that the exemption for women for reasons of religious conviction based on their own declaration (sec. 40), and the exemption for reasons of conscience or the family's religious way of life based on proof (sec. 39) are primarily meant to reflect social tolerance toward religious groups and traditional communities that, in accordance with their value system, see a fundamental difference between men and women, and according to which a woman's status as such is inconsistent with military service. What distinguishes these exemptions is that, first, they relate to a woman as such. Second, they originate in conceptions of morality, religion and customs prevailing in different communities. Third, these conceptions preclude women from military service as such. Therefore, grounds for exemption that are not directly related to reasons of conscience rooted in tradition and customs, a religious family life or religious conviction have no relevance to the special statutory exemption from service under sec. 39 of the Law. They might be considered within the General Power of Exemption under sec. 36 of the Law. Thus, for example, in HCJ 269/51 Horowitz v. General Shimon Mazeh (IsrSC 5, 1656), the Court ruled that a woman's claim for exemption on the grounds that, being married, she was obligated to maintain her family and hence instructed by her conscience to avoid serving in the army, was not controlled by the Special Exemption provision available to women. According to the Court:

 

The exemption provided in that section refers to women whose very participation in defence service goes against their conscience or religious conviction. The idea is by no means to exempt women who object to defence service for family reasons. In fact, the Petitioner is not at all opposed to defence service, but rather claims that, given her own situation, i.e. her being married to a man, her conscience instructs and tells her that she should not serve. The question here is not one of conscience, but of convenience and preference. It is the Petitioner's opinion, as we understand her words, that a married woman's duty to her husband takes precedence over her duty to serve the country. This was not the kind of conscience that the legislature had in mind. If her objection truly rests on reasons of family ties, she may request her exemption under sec. 12. Section 11 has no relevance to this case.

 

On the idea behind having a Special Exemption provision for women, see also CrimA 5/51 Steinberg v. Attorney General (IsrSC 5, 1061).

 

          The conclusion from the above is that the statutory exemption from service granted to women by reason of conscience differs in origin, substance and content from the General Power of Exemption given to the Minister of Defence with respect to any person of military age, whether man or woman. While the General Power of Exemption under sec. 36 of the Law covers situations of absolute or selective objection for reasons common to men and women without distinction, characterized by ideological, political, or social elements, or reasons of personal moral obligation, the statutory exemption for women under sec. 39 is characterized by being specific to women as such. It is concerned with reasons related to religious tradition, customs, beliefs, and the religious way of life specific to different communities. It stems from recognition of the need to understand and respect the religious and traditional conceptions of different communities in Israeli society as regards the status of women within the community and the family. This Special Exemption is therefore concerned with reasons of conscience of specific, defined content. This Special Exemption therefore concerns reasons of conscience of a particular content. This special content is not consistent, as a rule, with selective objection. It concerns preclusion from defence service in general, which also clearly transpires from the language of sec. 39(c) of the Law, that speaks of reasons of conscience "that… prevent her from serving in defence service", i.e. defence service in toto, as opposed to defence service based on certain conditions. The different conception of the nature of the exemptions given under secs. 36 and 39 of the Law also explains the difference in how they are granted. The General Power of Exemption by virtue of sec. 36, which applies equally to women and men, consists of the discretion given to the Minister of Defence, who is authorized to weigh various considerations of public interest and the individual's interest in making the exemption decision. On the other hand, exemption on grounds of conscience given to a woman as a woman under sec. 39 is granted by law to whomever has discharged the burden of proof placed upon her, and is not subject to the authority's discretion (cf. Regs. 10 and 15 of the Defence Service Regulations (Exemption of Women from Defence Service for Reasons of Conscience or Reasons connected with their Family's Religious Way of Life), 5738-1978). This is a necessary outcome of recognizing the conscientious imperative dictated by tradition and customs, which seldom admits of compromises, conditions or restrictions. This likewise flows from the nature of this objection, devoid as it is of a political-ideological dimension, which means that recognizing it does not entail the same risks to the army's proper functioning as might arise from recognizing selective objection as grounds for exemption.

 

Conclusion

 

14.     Conscientious objection is a real human phenomenon. It reflects internal dissent from the majority's doings — be it in law or in social policy. It expresses a different position of a minority or an individual. While individual freedom of conscience is a fundamental value of democracy, in order to be respected it must be weighed against other fundamental values, first and foremost the rule of law, without which normal social order cannot prevail. The margin of legal recognition granted to the individual's freedom of conscience, as an exception to the general order, is, by nature, extremely narrow, and depends on the boundaries within which the law allows it. This holds particularly true in a country that has been engaged for many years in a struggle for its life and security, every hour of every day. This holds particularly true when the conscientious conviction of the individual, the one that makes that individual an exception, pertains to service in the army and implies unwillingness to take part in a universal national duty falling to all citizens. Objection to military service harbors a seed that could endanger the integrity of the military system and sow dissent within its ranks. Recognizing it might import the political debate into the military, and in so doing undermine its internal discipline, dedication, and ability to carry out difficult military tasks meant to protect human life. It might undermine the status of the national leadership and its ability to lead the military forces. It might affect social cohesion and general social morale, whose strength depends, inter alia, on equal bearing of the burden of social duties and equal enjoyment of civil rights.

 

          As an exception to the general order, conscientious objection thus depends on the margin of recognition and legitimacy afforded it by the Law, and on strict compliance with the restrictions imposed for this purpose by the Law. Such recognition is inherently narrow and limited. It is also liable to changes in accordance with changing circumstances and needs. It is a recognized phenomenon solely within that framework and in those boundaries that do not pose real harm to the fabric of society and the army.

 

          In the framework of the balances required between the underpinnings of the democratic process, the needs of society and the army, and recognition of the value of individual autonomy, sec. 36 of the Law gives the Minister of Defence broad power to exempt persons of military age — male or female — from military service, a power that might extend, inter alia, to reasons of conscience. Currently, under the Minister's policy, these reasons have been limited to exceptional cases involving all-inclusive reasons of conscience, as opposed to selective reasons based, for the most part, on political opinion and political, social ideology. Alongside this power, sec. 39 of the Law grants statutory exemption from service to women prevented from serving in the army by proven reasons of conscience grounded in tradition, religion and community custom. Such reasons relate to women as such, and are inapplicable to male persons of military age. Neither do they extend to reasons of conscience common to men and women that are rooted in socio-political ideology, or in personal moral views unrelated to religion and community custom. The latter cluster of reasons falls within the General Power of Exemption under sec. 36 of the Law. To conclude otherwise would be to create a state of unjustified inequality and discrimination between women and men facing conscription, and would violate the principle of equality as a distinct characteristic of military service (HCJ 585/01 Klachman v. Chief of Staff; HCJ 1532/00 De Braemeker v. Minister of Defence, IsrSC 54(2) 297). Concluding otherwise might be inappropriately harmful to the interest of state security, as well as to general public, social values. Thus, applying the General Power of Exemption to both men and women for reasons common to both, while granting special status to a woman's reasons of conscience rooted in considerations of tradition, religion and customs, promotes the notion of substantive equality between male and female persons of military age in those areas where no relevant difference exists between them.

 

From the general to the individual

 

15.     The Petitioner argues that reasons of conscience justify granting her an exemption from military service. She attributes her objection to military service to the IDF's wrongful policy as an occupation army, claiming that the occupation contravenes her moral and conscientious belief. She criticizes government policy in the territories and says that, for reasons of conscience, she will not be part of an entity that carries out a wrongful policy (copy of her letter P/3A). When she appeared before the Exemption Committee, the Petitioner argued that she was not a pacifist, and that if the IDF were to leave the regions of Judea, Samaria and the Gaza Strip, she would be ready to serve within it (protocol of the hearing before the Exemption Committee, R/1).

 

          Judging by their nature, the Petitioner's reasons for objection are grounded in socio-political ideology, which predicates her military service on the fulfilment of certain conditions — withdrawal from the Administered Territories and a change in government policy in this regard. These reasons for objection carry distinct marks of civil disobedience in their public message as regards the change of policy and the implementation of change in the nature of the army's activity. And, indeed, the Exemption Committee and the statutory Appeals Committee were not convinced that the Petitioner's refusal to serve in the IDF was motivated by reasons of personal conscience.

 

          Still, the Petitioner claims that reasons of personal conscience and inner moral obligation also prevent her from serving in the army. It might be possible to say that the Petitioner’s ideological objection is accompanied by reasons of conscience and personal morality that intertwine with her ideological objection, ordering her, as a matter of personal moral necessity, to refrain from serving in the army. But even then, given the circumstances of the case, there are no grounds for intervening in the competent authority's conclusion not to recognize her right to an exemption from military service. Even if we classify the Petitioner's objection as one motivated, among other things, by reasons of personal conscience, it still remains outside the purview of both the statutory exemption accorded to women under sec. 39 of the Law and the exemption policy exercised by virtue of the power vested in the Minister of Defence under sec. 36 of the Law. As for the statutory exemption, it is evident that the reasons underlying the Petitioner's objection are not reasons of conscience grounded in tradition, religion, or community lifestyle and customs specific to a woman as such, as addressed by sec. 39 of the Law. As for the General Power of Exemption exercised by virtue of sec. 36 of the Law, the Petitioner's objection is essentially of the selective kind, one that is not recognized by the competent authority at this time as grounds for exemption from service. This policy of the public authority has been deemed proper over the years, and there is no reason to intervene in it.

 

          Given these circumstances, it is not possible to accept the petition, and there are no grounds for intervening in the decisions of the Exemption Committees acting under law, that there are no grounds for exempting the Petitioner from military service.

 

Epilogue

 

16.     It has been our assumption that the Petitioner's beliefs and political, social views are sincere and true. The moral, personal conscientious imperative bound together with her general ideological outlook is likewise an expression of freedom of conscience that should be respected, appreciated, and accorded weight. With that said, given the conditions of Israeli society in view of the country's security needs, and considering the fundamental principles of equality, a shared fate and equal sharing in the burden of the duty of military service underlying the operation of the army, we cannot intervene in a policy that denies the selective conscientious objector exemption from military service. This policy is consistent with the conceptions of governance in a democratic society, with the obligation to honor the decisions of the majority as established through proper governance procedures, and with each citizen's duty to bear the burden of economic, social and security duties together with the equal enjoyment of civil rights. The duty to serve in the army is among the basic national civic duties. Disagreement with government policies and military actions derived therefrom, and even conscientious objection to participation therein, are not grounds for exemption from military service. The Petitioner must contribute her share to the overall security effort, despite her critique and her ideological view of what constitutes proper national policy. Her integration into the army and the contribution of her obvious capabilities toward achieving important goals and objectives would express recognition of the democratic values upon which the state is founded, and by virtue of and in accordance with which the army, too, operates. These values primarily rest on the rule of law as it applies to the majority, the minority and the individual.

 

          I propose that the petition be denied, and that the interlocutory order be revoked hereby.

 

 

 

Deputy President E. Mazza:

 

I concur.

 

 

 

Justice E. E. Levy:

 

I concur.

 

 

 

Decided as stated in the opinion of Justice Procaccia.

 

Given this day, 22 Av 5764 (August 9, 2004).

 

 

 

The Supreme Court sitting as a High Court of Justice

HCJ 8091/14

 

 

The Petitioners:           1.         HaMoked: Center for the Defense of the Individual

                                    2.         Bimkom – Planners for Planning Rights

                                    3.         B'Tselem – The Israeli Information Center for Human Rights

                                    4.         The Public Committee against Torture in Israel

                                    5.         Yesh Din – Volunteers for Human Rights Organization

                                    6.         Adalah – The Legal Center for Arab Minority Rights

                                    7.         Physicians for Human Rights

                                    8.         Shomrei Mishpat – Rabbis for Human Rights

 

v.

 

The Respondents:       1.         Minister of Defense

                                    2.         Commander of Military Forces in the West Bank

 

 

Petition for an order nisi

 

 

Hearing Date:              11 Kislev 5775 (December 3, 2014)

 

For the Petitioners:      Adv. Michael Sfard; Adv. Noa Amrami; Adv. Roni Pelli

 

For the Respondents:  Adv. Aner Hellman

 

 

Before: Justice E. Rubinstein, Justice E. Hayut, and Justice N. Sohlberg

 

Judgment

Justice E. Rubinstein:

1.         This Petition concerns the Respondents’ power to employ Regulation 119 of the Defense (Emergency) Regulations, 1945 (Regulation 119, or the Regulation) in a manner that permits the confiscation, demolition and sealing of the houses of persons suspected of involvement in hostile activity against the State of Israel (the Regulation was originally promulgated during the British Mandate). The Petitioners ask that this Court issue a declaratory order whereby the exercise of Regulation 119 in this manner and for such purposes is unlawful since, in their opinion, it is repugnant to international law and to Israeli constitutional and administrative law.

The Parties’ Arguments

2.         As aforesaid, this Petition focuses upon Regulation 119 (in its current language) which reads as follows:

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.

3.         The Petitioners are eight organizations that act for the protection of human rights in Israel and in the Administered Territories. They do not dispute that the central arguments raised in this Petition regarding the lawfulness of the exercise of the said Regulation 119 have been raised and rejected in this Court in the past. However, they argue that this Court’s rulings in this regard were issued many years ago, in the context of only two judgments and with laconic reasoning – HCJ 434/79 Sahwil v. Commander of the Judea and Samaria Region, IsrSC 34 464 (hereinafter: the Sahwil case) and HCJ 897/86 Ramzi Hanna Jaber v. GOC Central Command et al. IsrSC 41(2) 522 (hereinafter: the Jaber case) – and it is time to revisit the normative justification which, at the time, grounded those judgments. It was further argued that since the time these issues were addressed, there have been significant developments in international law, including the establishment of the various war-crime tribunals throughout the world, and it is therefore necessary to revisit the various issues. Note that the vast majority of the Petitioners’ arguments concern the State’s authority to employ Regulation 119 in the Administered Territories, and not within the borders of the State of Israel.

4.         On the merits, it was primarily argued that Regulation 119 is subject to the provisions of international law, which prohibit the demolition of houses as constituting collective punishment and therefore, as aforesaid, the demolition of houses should not be permitted by virtue of the Regulation. The Petitioners’ arguments are supported by opinions of legal experts: Prof. Yuval Shani, Prof. Mordechai Kremnitzer, Prof. Orna Ben Naftali and Prof. Guy Harpaz.

5.         With respect to the normative hierarchy, it was argued that, contrary to this Court’s ruling in the Sahwil case and in the Jaber case, Regulation 119 is subject to the norms and prohibitions of international law. This is particularly so when it pertains to the application of the Regulation in the Administered Territories, inasmuch as the argument that domestic law, including Regulation 119, prevails over international law, is not applicable. It is argued that Regulation 119 constitutes foreign law that Israel “inherited” from the previous regime, and therefore the rationales for respecting domestic law, even when it conflicts with international law, do not apply. It was further argued in this context that in accordance with the presumption of compatibility,  which was adopted by our legal system as well, Regulation 119 ought to be interpreted, insofar as possible, in accordance with the provisions of international law, i.e., such that the demolition of houses by virtue thereof is impermissible as currently carried out.

6.         Regarding the provisions of international law, it was argued that there is a consensus in legal academia that the demolition of houses contravenes the customary international prohibition on collective punishment, both with respect to the prohibition on demolition of the property of a protected person without an operational need, and with regard to disproportionate use of force, and is therefore unlawful. This is especially so when the subject matter is the law of occupation which applies, so it is claimed, to the Administered Territories, even if the declared purpose of the Respondents in our case is solely deterrence. Thus – as argued – the question is not the underlying intention, but the result, i.e. the demolition of houses of innocent persons due to the activity of others who are related to them. The prohibition on collective punishment was initially established in Article 50 of the Annex to the Hague Convention: Regulations Respecting the Laws and Customs of War on Land, and is currently established in Article 33 of the Fourth Geneva Convention, which states as follows:

                        No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited. Pillage is prohibited. Reprisals against protected persons and their property are prohibited [Geneva Convention Relative to the Protection of Civilians During War, 1949 Kitvei Amana 1, p. 559].

In addition, the Petitioners refer to the Red Cross Commentary of 1987 on Protocol I of 1977 to the Fourth Geneva Convention, which determines the following:

                        The concept of collective punishment must be understood in the broadcast sense: it covers not only legal sentences but sanctions and harassment of any sort, administrative, by police action or otherwise [Commentary on Additional Protocol I of 1977 to the Geneva Conventions of 1949, p. 874, para. 3055 (1987),       available at:

https://www.icrc.org/ihl/COM/470-750096?OpenDocument].

7.         In addition, it was argued that the Regulation also violates basic principles of Jewish law. In this context, the Petitioners refer to the affair of the destruction of the city of Sodom in the book of Genesis, in which Abraham says to God: “Far be it from You to do a thing such as this, to put to death the righteous with the wicked so that the righteous should be like the wicked. Far be it from You! Will the Judge of the entire earth not perform justice?” (Genesis 18:25); and to the affair of Korach, in which Moses and Aaron claim before God: “If one man sins, shall You be angry with the whole congregation?” (Numbers 16:22). Rashi comments there: “The Holy One, Blessed Be He said: You have spoken well. I know and will make known who sinned and who did not sin”.

8.         It was further argued that the demolition of houses is also forbidden by virtue of the prohibition on arbitrary destruction of property, which is established, inter alia, in Article 53 of the Fourth Geneva Convention, and which – it is argued –  is deemed part of customary international law:

                        Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

Because the demolition of the houses cannot be said to amount to “military operations [where] such destruction is rendered absolutely necessary”, it was argued that Regulation 119 should not be interpreted as permitting such demolitions.

9.         The Petitioners also refer to the position of international criminal law on the issue. It is argued that although Israel has not ratified the Rome Statute of the International Criminal Court of 1998 (the “Rome Statute”), the war crimes defined therein amount to severe violations of humanitarian international law, and therefore, the provisions therein are binding on Israel. So for example, Article 8(2)(a)(4) of the Rome Statute prohibits extensive destruction of property not justified by military necessity, and accordingly, the International Criminal Tribunal for the former Yugoslavia – ICTY – ruled that such destruction is only permitted when “such destruction is made absolutely necessary by military operations” (The Prosecutor v. Blaskic, IT-95-14-T, par. 157 (2000)), which is not the case here, where the purpose of the destruction is, at most, deterrence.

10.       It was further argued that the exercise of Regulation 119 for the purpose of the demolition of houses violates the principle of proportionality in international law and Israeli law. This is the case since the harm caused to innocent civilians by the demolition of their houses is tremendous, while the benefit from the demolition of the houses – ostensibly deterrence – is not achieved. In this context, the Petitioners refer to a presentation assembled by a committee headed by Major General Ehud Shani, which examined the issue of house demolitions in the years 2004-2005. The presentation stated that the demolition of houses “intensifies the historic homelessness trauma” (Slide No. 14), and leads to “illegitimacy; absurdly” (Slide No. 27), and hence the conclusion – “the act is no longer legitimate and is borderline legal!!!” (Slide No. 28).

11.       Peripherally, it was argued that Regulation 119 is exercised in a discriminatory manner. This is the case since the Regulation has been exercised only against the Arab population, although Jewish terrorists have been caught in the past who were suspected, indicted or convicted of crimes no less severe that those of the Arabs. It was further claimed in this regard that the argument previously made by the security forces that deterrence is not necessary among the Jewish population but only among the Arab population, lacks factual foundation and should be rejected.

12.       Conversely, the State claims that the Petition ought to be summarily dismissed. First, it is argued that it is a theoretical, academic petition that is not based on a concrete case, which is sufficient for dismissal. Second, it is argued that all of the claims that are made by the Petitioners were raised and rejected in the past in this Court, the Petitioners in this case were even a party to some of these petitions, and there is no reason to reexamine the issue. The State further noted that the power to demolish houses by virtue of Regulation 119 was exercised only in isolated and particularly severe cases in the last decade, and recently, in view of the wave of terrorism in Jerusalem, the Commander of the Home Front Command issued six demolition orders for buildings in which terrorists who are residents of East Jerusalem lived. One order was carried out, while the case of five others is still pending before this Court in the context of separate petitions that were filed: HCJ 8066/14 and HCJ 8070/14 – the murderous terrorist attack at the synagogue in Har Nof, in which four persons were murdered and others injured; HCJ 8025/14 – a hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which two persons were murdered and others injured; HCJ 7823/14 – another hit-and-run terrorist attack close to Rabbi Moshe Sachs Street in Jerusalem, in which one person was murdered and others injured; HCJ 8024/14 – the stabbing of a person close to the Menachem Begin Heritage Center in Jerusalem, critically wounding him.

13.       On the merits, it was argued that this does not constitute collective punishment and harm to innocent persons. This is so because in many cases of denial of petitions concerning the exercise of Regulation 119 for the purpose of demolishing houses, the Court ruled that the petitioners had not acted in good faith, and were to a certain extent aware of the terrorist’s activity. It was further noted that, in any event, primary legislation prevails over general principles of international law, and therefore, it is not necessary to examine Regulation 119 under the provisions of customary international law. It was also noted that many petitions which pertain to Regulation 119 – including all of the individual petitions that are currently pending before this Court – contemplate the exercise of the Regulation vis-à-vis residents of the State of Israel, and therefore the claims pertaining to the applicability of the law of occupation in the Territories are irrelevant.

 

 

The Hearing before the Court

14.       In the hearing before us, counsel for the Petitioners emphasized their argument that even if the purpose underlying the demolition of the houses is deterrence, this does not mitigate the disproportionate harm to innocent persons as a result of the demolition. It was further argued, as aforesaid, that even if deterrence is achieved – which was not proven as argued by the State – international law prohibits collective punishment as a means of deterrence, and therefore the exercise of Regulation 119 for the aforesaid purpose is wrongful ab initio. It was further claimed that in contradiction to the claims in the State’s response, the issues at bar have not yet been thoroughly deliberated by this Court, and therefore it is proper that the issue be deliberated now, and before an expanded panel.

15.       Counsel for the State responded that it was only several months ago that this Court denied a similar petition which sought to revisit issues of international law, on the grounds that there was no reason to revisit arguments that were previously raised and rejected. As for the collective punishment argument, it was claimed that because the subject matter is that of demolishing the house in which the specific terrorist lived, we are not concerned with collective punishment, but only deterrence. On the merits, it was argued that in a conflict between international law and explicit Israeli law, Israeli law prevails, and therefore the power conferred on the military commander by virtue of Regulation 119 prevails over the customary international law on that issue. As for the discrimination argument, counsel for the State answered that, as aforesaid, we are dealing with deterrence, which is not necessary among the Jewish population, and therefore this is not discrimination but rather a relevant distinction.

Decision

16.       Undeniably, this Petition, by its nature, raises difficult questions. As I noted in the courtroom, it may be easier and more convenient to take the side of the Petitioners over that of the Respondents, and there are certain instances which unquestionably raise a moral dilemma. As I sit to write this judgement, I am like that Talmudic judge mentioned in Jewish law sources, the amora Rav, who said, as he set out to court (Babylonian Talmud, Sanhedrin 7b) “He goes out to perish at his own will” (meaning that should he err, he will be liable for the transgression); and it was further stated that “a judge must always see himself as if a sword rests between his thighs and hell is gaping beneath him”… (Babylonian Talmud, Yevamot 109b), and we judges are also subject to the warning to witnesses (Mishna, Sanhedrin 4:2) “and perhaps you will say, what have we to do with this trouble…”, which Rashi (Sanhedrin 37b) explains to mean “to become involved in this trouble, even for sake of the truth”. However, like the witness, we are under the obligation that: “he who fails to say it, shall bear his iniquity” (Leviticus 5:1), as interpreted by Rashi to mean: “you bear the duty and the liability for the transgression should you fail to speak of what you have witnessed”. This is also the task of the judge, who has no choice but to render judgment. In a similar case, (HCJ 6288/03 Sa’ada v. GOC Home Front Command, IsrSC 58(2) 289, 294 (2003) (hereinafter: the Sa’ada case), Justice Turkel stated that “the idea that the terrorist’s family members are to bear his transgression is morally burdensome... But the prospect that demolishing or sealing the house will prevent future bloodshed compels us to harden the heart and have mercy on the living, who may be the victims of terrorist horror, more than it is appropriate to spare the house’s tenants. There is no avoiding this”.

            The problem is exacerbated by the fact that the Petition is supported by expert opinions, although the law does not require an expert opinion, while the position of the State mainly relies on threshold arguments. However, we shall note from the outset that we do not deem it necessary to reopen questions that were decided by this Court, even if the reasons provided did not satisfy the Petitioners, since similar claims were raised and dismissed but a few months ago in HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (hereinafter: the Awawdeh case); and in HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (hereinafter: the Qawasmeh case). We will address the matters concisely, and will first state that limited use should be made of Regulation 119, and indeed, it was not used for several years, also due to the recommendation of the aforesaid Shani Committee. However, it has been argued before us that the circumstances recently emerging – of merciless, repeated killings of innocent victims – require the utilization of the Regulation, and we shall address this matter. Furthermore, the issue should be viewed within the broad context of the war on terror of the State of Israel and the entire world. This war, “for many are the dead that it has felled, and numerous are all its victims (Proverbs 7:26), compels Israel and other nations to exercise measures that were never sought in the first place.

17.       We will begin with a review of the judicial history of Regulation 119 in this Court. It has been held that the purpose of Regulation 119 is deterrence and not punishment; its goal is to provide the military commander with tools for effective deterrence, a purpose the importance of which is undisputable in itself (see HCJ 698/85 Daghlas v. Military Commander of the Judea and Samaria Area, IsrSC 40(2) 42, 44 (1986) (hereinafter: the Daghlas case), HCJ 4772/91 Khizran et al. v. IDF Commander, IsrSC 46(2) 150 (1992), and see the dissenting opinion of Justice Cheshin; HCJ 8084/02 Abbasi et al. v. GOC Home Front Command, IsrSC 57(2) 55,60 (2003) (hereinafter: the Abbasi case); the Sa’ada case, paragraph 19; the Qawasmeh case, paragraph 23). As to the question of whether the demolition of a specific building will create effective deterrence, it was held that this Court does not step into the shoes of the security forces, which are vested with the discretion to determine which measure is effective and should be used for the purpose of achieving deterrence (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 653-654 (1997); HCJ 9353/08 Hisham Abu Dheim et al. v. GOC Home Front Command, paragraph 5 (2009) (hereinafter: the Hisham case); the Awawdeh case, paragraph 20; the Qawasmeh case, paragraph 25). The State’s response in the individual petitions was supported by an affidavit of the Home Front Commander, Major-General A. Eisenberg. It is important to bear in mind, as problematic as this matter may be, that demolitions were only recently approved in the Awawdeh case, and the Qawasmeh case.

18.       Moreover, the damage caused to the property of the inhabitants of the house, to the extent that they were not involved in the offence for which the demolition was prescribed, cannot be disputed. It was further held that although the Regulation’s validity is not subject to the provisions of Basic Law: Human Dignity and Liberty since they are deemed “law that was in force prior to the taking of effect of the Basic Law” (section 10 of the Basic Law), they are to be construed according to the Basic Law, and the power thereunder is to be exercised proportionately (HCJ 5510/92 Turkeman v. GOC Central Command, IsrSC 48(1) 217; the Abbasi case, at p. 59; the Sa’ada case, at pp. 291-292; the Hisham case, paragraph 5; the Awawdeh case, paragraph 17; the Qawasmeh case, paragraph 22). I wish to stress this issue forcefully, and will return to the matter below.

            As a consequence of this approach, the following criteria, inter alia, were prescribed, defining the boundaries of the authority of the military commander when seeking to exercise the power vested in him under Regulation 119, and ordering the demolition of the house of a suspect of terrorist acts:

The severity of the acts that are attributed to the suspect; the number and characteristics of the parties who may be harmed as a result of the exercise of the authority; the strength of the evidence and the scope of involvement, if any, of the other inhabitants of the house. The military commander is also required to examine whether the authority may be exercised only against that part of the house in which the suspect lived; whether the demolition may be executed without jeopardizing adjacent buildings, and whether it is sufficient to seal the house or parts thereof as a less injurious means as compared to demolition [the Qawasmeh case, paragraph 22 of the opinion of Justice Danziger; see also: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip (1992) (hereinafter: the Alamarin case); Salem v. Major General Ilan Biran, Commander of IDF Forces, IsrSC 50(1) 353, 359 (hereinafter: the Salem case); the Hisham case, paragraph 5].

            Indeed, according to the case law this is an open list, and the parameters are to be considered as a whole. In other words, the choice to demolish the entire house, in lieu of sealing a room or demolishing a certain part of the house, does not necessarily indicate that the measure that was chosen is disproportionate and justifies the intervention of this Court in the discretion granted, as aforesaid, to the security forces (the Abassi case, pp. 60-61; the Qawasmeh case, paragraph 7). Similarly, it is not necessary to show that the inhabitants of the house were aware of the suspect’s terrorist activity (the Alamarin case, paragraph 9; the Salem case, p. 359; the Hisham case, paragraph 7). As aforesaid, proportionality is examined, first and foremost, in relation to the severity of the act that is attributed to the suspect, from which the required degree of deterrence is derived, and I hereby stress and reiterate the aforesaid criteria, and the meticulous discretion required.

19.       It should be further noted that although this Petition primarily challenges the exercise of Regulation 119 in the Administered Territories, this Court has ruled that the Regulation applies to the residents of the Territories as well as to the residents of the State of Israel (the Hisham case, paragraph 5; the Abassi case, p. 60).

And now to the Petitioners’ arguments.

20.       I will begin by noting that the question of the authority to use Regulation 119 and the discretion as to the manner of its application, i.e. reasonableness, are to be distinguished. As shall be presented below, we shall see – with all due respect – that the authority exists, and that the main question is that of reasonableness and discretion. Referring to the comprehensive discussion held by the Major General Shani Committee at the time, in the previous decade – a Committee that included a senior jurist, the head of the IDF International Law Department – the major points of which are included in the presentation that was submitted, it reveals that use of such a measure is legal under both international and domestic law. As to reasonableness, it was found that “there is a consensus among intelligence agencies about the relation between the demolition of terrorists’ homes and deterrence. In view of the sensitivity, the Central Command conducts a balanced, orderly procedure with respect to the demolition of homes of terrorists… however, deterrence is to be weighed only as a part of the considerations” (from the Committee’s presentation, the emphasis appears in the original). It is noted, however, that according to international and domestic public tests, the act is no longer legitimate and is borderline legal. And yet, after a period of several years during which the Regulation was not used in Jerusalem (2008-2009), and for an even longer period in the Judea and Samaria Area (2005-2014) – see paragraph 23 of the opinion of the Deputy Chief Justice in the Awawdeh case – use of the Regulation has now been renewed due to the frequent and heinous events of intentional harm to innocent people in Jerusalem, murder and attempted murder, as specified above.

21.       As to the authority, the arguments themselves are not new, but have rather been concentrated together, and as noted by the State, some of them were already raised in the past by some or all of Petitioners. In a nutshell, we would note that from a “purely” legal perspective, the territory of the State of Israel and Jerusalem should be distinguished from the Judea and Samaria Area, a distinction which was not made in the Petition. Within the State of Israel itself, Regulation 119 constitutes, as aforesaid, the law – primary legislation – the validity of which is preserved under Section 10 of Basic Law: Human Dignity and Liberty, which treats of the preservation of laws. I would parenthetically note that the Defense (Emergency) Regulations, 1945 – originally promulgated under the British Mandate, as aforesaid, which was the object of the struggle of the Jewish community at the time – are not favored by Israeli jurists, and the replacement thereof was contemplated in the past, albeit not implemented, perhaps due to the chronic security situation and its hardships. However, this is not the place to deliberate the matter. On the merits, it is clear that the validity of the Regulation and the authority to use it within the State of Israel cannot be challenged. Nevertheless, our substantive judicial approach, as distinct from the formal analysis, does not distinguish between the use of the Regulation in Israeli territory and in the Judea and Samaria Area and the reasonableness thereof, and it has already been stated that where officials of an Israeli authority exercise powers in the Judea and Samaria Area, it is to be regarded as based on the same fundamental principles of Israeli law -- in the words of (then) Justice Barak: “Every Israeli soldier carries with him, in his backpack, the rules of customary international public law concerning the laws of war and the fundamental principles of Israeli administrative law” (HCJ 393/82 Jam'iat Iscan Al-Ma’almoun Al-Taounieh Al-Mahdudeh Al-Masauliyeh v. IDF Commander in the Judea and Samaria Area, IsrSc 37(4), 785, 810 (1983); and see also HCJ 591/88 Taha v. Minister of Defense, IsrSC 45(2) 45, 52 (1991)).

As for the application of international law, as far as the Judea and Samaria Area is concerned, and as the Petitioners have noted themselves, this Court has ruled in several cases that the provisions of Regulation 119 are compatible with the law that applies in the Administered Territories (the Sahvil case, paragraph 4; the Jaber case, pp. 525-526; HCJ 358/88 Association for Civil Rights in Israel v. Central District Commander, IsrSC 43(2) 529, 532-533 (1989) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-central-...). The authority vested in the military commander by virtue of Regulation 119, which he “inherited” from the administration that governed the region prior to Israeli rule, constitutes, after all, one of the tools available to him for the purpose of accomplishing his main duty, as directed by Article 43 of the Hague Regulations: “to take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”. Further, as stated by Prof. Dinstein, “The choice of means deemed necessary to contend with the problems of control and security is left to the Occupying Power” (Yoram Dinstein The International Law of Belligerent Occupation, 93 (2009). It should be noted, that the author criticizes the demolition and sealing of houses in a considerable number of cases (e.g., at pp. 156 and 159). See also: Article 27 of Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949; J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian. Persons in Time of War, 207 (Geneva, 1958). And as stated by Stone in respect of such matters: “[i]t would thus be very strange indeed to hold that the occupant was forbidden to maintain the existing law when this was necessary for his security” (Julius Stone No Peace, No War in the Middle East, 15 (1969)).

22.       In addition, the 1949 Geneva Conventions, and the preceding 1907 Hague Regulations, were designed and signed at a period that is different to our own. The terrorism with which the world must contend, the State of Israel being no exception, presents complicated challenges since the terrorist organizations do not abide by these or other conventions (see, for example, Hans-Peter Gasser, Acts of Terror, ”Terrorism” and International Humanitarian Law, 847 International Review of the Red Cross, 547 (2002); Glenn M. Sulmasy, The Law of Armed Conflict in the Global War on Terror: International Lawyers fighting; the Last War, 19 Notre Dame J.L. Ethics & Pub. Pol'y 309, 311 (2005); The Battle of the 21^st Century – Democracy fighting Terror (Forum Iyun, Dan Meridor, Chairman, Haim Fass (ed.), , The Israel Democracy Institute, 5767-2006). The matter at bar should be considered within the context of the war on terrorism, which was recently referred to by the Pope as a “Piecemeal World War III” (September 2014). It seems that the cases depicted in the aforesaid individual petitions speak for themselves. Thus, the humanitarian provisions of the Hague Convention (IV), which were assumed by Israel despite the fact that it did not recognize the application of the Convention from a legal perspective (H. Adler, Laws of Occupation, R. Sabel, (ed.), International Law 590-591 (2010) (Hebrew); Meir Shamgar, Legal Concepts and Problems of the Israeli Military Government – The Initial Stage, M. Shamgar (ed.), Military Government in the Territories Administered by Israel 1967-1980 – The Legal Aspects, Volume I, 32 (1982) (Hebrew)), are to be construed in a manner that will preserve their spirit and realize their underlying purposes, while concurrently permitting the State of Israel to protect the security of its residents in the most basic sense of the word. As I have had occasion to state in the past:

                        The relationship between human rights issues and the security needs and challenges will remain on the agendas of Israeli society and the Israeli courts for years to come… The inherent tension between security and human rights issues will, therefore, persist. The Court will seek a balance between security and rights such that security is neither falsely used nor abandoned (E. Rubinstein, On Basic Law: Human Dignity and Liberty and the Security Establishment, 21 Iyunei Mishpat 21, 22 (5758) (Hebrew); see also, E. Rubinstein On Security and Human Rights at Times of Fighting Terrorism, 16 IDF Military Law Review, 765, 766-771 (5762-5763) (Hebrew), and E. Rubinstein, Paths of Governance and Law, 15-40 (5763-2003) (Hebrew); HCJ 1265/11 Public Committee Against Torture in Israel v. Attorney General, paragraphs 17-19 (2012)).

23.       Further, the Petitioners’ claim that any demolition whatsoever, no matter the size and independent of the specific circumstances, necessarily constitutes collective punishment that is prohibited, as aforesaid, under Section 33 of the Fourth Geneva Convention, cannot be accepted (see on this matter – E. Gross, The Struggle of Democracy against Terrorism - The Legal and Moral Aspects, 224 (5764-2004) (Hebrew) (hereinafter: Gross)). I will refrain from bringing examples of the brutal use of house demolition made by “civilized” nations, collectively and not individually, in the distant and near past; see examples in Dan Simon, The Demolition of Homes in the Israeli Occupied Territories, 19 Y.J.I.L 1, 8 (1994). This also holds true for the prohibition on house demolition appearing, as aforesaid, in Article 53 of the Fourth Geneva Convention. That prohibition carves out certain cases, namely, it is not precluded under the Article where the action is necessary on military grounds. As stated by Gross in this regard, “military needs are to be understood at times of combat or armed activity. In that sense, systematic acts of terror that form part of a strategy or armed struggle meet such definition… demolition of a house to the end that it will not be used again for terror purposes… should be deemed a ‘military need’” (Gross, 227-228). The question is, as aforesaid, one of proportionality, and we already clarified that the disproportionate use of said authority by the military commander, which amounts to collective punishment that is prohibited under international law, is precluded (the Daghlas case, p. 44, paragraph 23, and see also see, the Awawdeh case, paragraph 16 and the references there).

24.       Moreover, as this Court has held, “The law of belligerent occupation… imposes conditions on the use of this authority [to maintain order and public life – E.R.]. This authority must be properly balanced against the rights, needs, and interests of the local population” HCJ 2056/04 Beit Sourik Village Council v. Government of Israel, IsrSC 58(5) 807, para. 34 at p. 833, per President Barak (2004) [http://elyon1.court.gov.il/files_eng/04/560/020/A28/04020560.a28.pdf] (the Beit Sourik case); and see also HCJ 10356/02 Haas v. IDF Commander in the West Bank, IsrSC 58(3) 443, 455-456 (2004) [http://versa.cardozo.yu.edu/opinions/hass-v-idf-commander-west-bank] (the Haas case); HCJ 7957/04 Mara’abe v. Prime Minister of Israel, IsrSC 60(2) 477, 506-507 (2005) [http://versa.cardozo.yu.edu/opinions/mara%E2%80%99abe-v-prime-minister-i... (the Mara’abe case); and Y. Dinstein, Legislative Authority in the Occupied Territories,” 2 Iyunei Mishpat 505, 507 (5732-5733) (Hebrew)). In addition, as stated above, the authority of the GOC Home Front Command and the military commander in the Judea and Samaria Area – and in the context of reasonableness, as distinct of the formal authority, every effort should be exerted so that there be no difference between Israel and the Judea and Samaria Area, even if the commander in the Judea and Samaria Area is bound by a different set of laws – should be interpreted according to the principle of proportionality, which applies by virtue of both international and Israeli law, and according to the criteria addressed above (the Beit Sourik case, pp. 840-841; the Haas case, pp. 460-461). As we know, one of the subtests in examining proportionality is that the means employed by the governmental authority rationally leads to the realization of the purpose of the legislation or action (the “rational connection test”). An additional subtest provides that if the means selected by the government disproportionately infringes the individual right relative to the benefit derived therefrom, it is deemed invalid (the “proportionality test stricto sensu”) (HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51(4) 1, 53-54 (1997) [http://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation]; the Mara’abe case, p. 507; A. Barak, Principled Constitutional Balancing and Proportionality: The Theoretical Aspect, Studies of the Jurisprudence of Aharon Barak, 39, 41-42 (5769) (Hebrew)). In the case at bar, house demolition under Regulation 119 may meet the proportionality test if an examination reveals that, in general, it is indeed effective and fulfils the purpose of deterrence, and moreover, that the damage suffered due to the house demolition does not disproportionately violate the right of the injured parties to their property relative to the effectiveness of deterrence. As noted, proportionality refers, in our opinion, also to the question of whether the means was exercised collectively – such as, God forbid, the demolition of an entire neighborhood, which is inconceivable in the context of Regulation 119 – relative to the demolition of the home of a proven terrorist, where the injury, which must not be taken lightly, is caused to the property of the inhabitants of house, but not to the property of others nor to human life. This holds true, as aforesaid, whether the authority is exercised within the State of Israel or the Administered Territories.

25.       As for the claim of discriminatory enforcement, Justice Danziger ruled in the Qawasmeh case that “the burden to present an adequate factual basis which can refute the presumption of administrative validity, lies with the party who argues that discriminatory or ‘selective’ enforcement is implemented. Even if the arguing party surmounted this hurdle, the authority can still show that the ostensibly selective enforcement is, in fact, based on pertinent considerations”. Against this backdrop, and as noted by Justice I. Zamir in HCJ 6396/96 Zakin v. Mayor of Beer Sheva, IsrSC 53(3) 289 (1999), “the burden to prove selective enforcement is particularly heavy” (ibid, paragraph 30; and see also M. Tamir, Selective Enforcement 397-399 (5767)). This holds true in the case at bar verbatim, and where the Petitioners have failed to meet that burden, their claim of discriminatory enforcement cannot be accepted.

26.       The Petitioners referred to Jewish law, as presented above. Indeed, in the Ghanimat case, Justice Cheshin quoted (p. 654-655) the words of the prophet Ezekiel (18:20), “the soul that sins, it shall perish. The son shall not bear the inequity of the father, neither shall the father bear the iniquity of the son; the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him”; and further quoted the principle (II Kings 14:6) “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin”. The Petitioners also refer to the story of the “Idolatrous City” (Deuteronomy 13:16-17), which contemplates the city’s destruction due to the worship of other gods, and the narrow interpretation given by the Sages (Babylonian Talmud, Sanhedrin 111a and 113a). However, we should bear in mind and stress: in substantial opposition to everything referenced by the Petitioners and by us herein, we are not concerned with killing, and we should make it absolutely clear that were killing being discussed, the act would be patently illegal. Our case involves the demolition or sealing of a house, which does indeed entail a financial loss for its residents, but cannot be compared to all of the aforesaid biblical examples, or to the actions taken by certain nations in our world. Thus, indeed, the question at bar is a difficult one, but it is far from the intensity discussed by the Torah and Prophets. (For related dilemmas, see also Rabbi Shaul Yisraeli, Acts of Retribution in Halacha, 3 Crossroads of Torah and State, 253 (5751-1991), in the chapter entitled Incidental Injury to Innocent People Incidental to Eradicating Gangs of Assassins” (p. 271) (Hebrew); and further see Izhak Englard, Law and Ethics in Jewish Tradition, 28 Dinei Yisrael 1 (5771); on the difficult dilemmas, see in particular pp. 54-60. The author quotes (at pp. 58-59) Rabbi Shlomo Zalman Pines (Russia-Switzerland, 20th century, regarding whom see: Rabbi Yechiel Yaacov Weinberg, Lifrakim (5763-2003), at p. 551, and especially pp. 559ff), Biblical and Talmudic Morality 191 (5737) (Hebrew), as follows: “But sometimes the decision among virtues rests with a man, and depends on the judgment of his mind and conscience.  A moral man who seeks his path stands at a crossroads of the paths of virtues. He hesitates, searches, explores and wonders which is the righteous path to be chosen? There are arguments supporting both sides, and the decision is difficult and fraught. Of such a man, a midrash (Baylonian Talmud, Mo’ed Katan 5a) expounds on the verse in Psalms [50:23]  ‘And to he who sets [ve-sam] a path I shall show the salvation of God’ as follows: ‘Read it not ve-sam [“sets”] but ve-sham [“appraises”], in other words: a person who appraises his paths and evaluates and assesses them in his mind and in the depths of his conscience, he shall be promised the salvation of God that his paths will be righteous and he will not stray from the path of virtue.” Rabbi Wienberg stresses the sanctity of life present in the teachings of Rabbi Pines – “human life is sacred – this is a great principle of Judaism. The value of life is greater than all other elements” (p. 561). Such words are applicable in the case at bar, together with the statement of Rabbi Aharon Lichtenstein (The War Ethics of Abraham, Har Ezion Yeshiva website, Lech-Lecha), that “we must continue to walk on the same path outlined by Abraham – to be sensitive to morality and justice, also at times of war and combat that are just and true on their own merits”.

27.       And after all of the foregoing, and looking to the future, as extensive as the discretion of the military commander may be, as we have explained above, I believe that the principle of proportionality does not allow us to continue to assume forever that choosing the drastic option of house demolition, or even of house sealing, achieves the desired purpose of deterrence, unless all of the data that properly confirms that hypothesis is presented to us for our review. We accept the premise that it is hard to assess this matter, and this Court has frequently addressed this problem (HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 655 (1997); the Awawdeh case, paragraph 24; the Qawasmeh case, paragraph 25). However, as aforesaid, I believe that using means that have considerable consequences on a person’s property justifies an ongoing review of the question of whether or not it bears fruit, especially in view of the fact that claims have been raised in this regard even among IDF officials, and see, for example, the presentation of the Major General Shani Committee, which, on the one hand, presents a consensus among intelligence agencies regarding the benefits thereof, and on the other hand states, under the title “Major Insights” that “within the context of deterrence, the measure of demolition is ‘eroded’” (slide no. 20). Thus, I believe that State authorities must examine the measure and its utility from time to time,  including conducting follow-up research on the matter, and insofar as possible, should, as may be necessary in the future, present this Court with the data demonstrating the effectiveness of house demolition as a means of deterrence that justifies the infliction of damage to parties who are not suspected nor accused (in this regard see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in A. Gil, Y. Tuval and I. Levy (supervised by M. Kremnitzer and Y. Shani), Exceptional Measures in the Struggle against Terrorism: Administrative Detention, House Demolitions, Deportation and “Assigned Residence” 189 (IDI, 5771) (Hebrew); A. Cohen and T. Mimran, Cost without Benefit in House Demolition Policy – Following HCJ 4597/14 Muhamed Hassan Halil Awawdeh v. West Bank Military Commander, 31 Mivzakei He’arot Pesika 5, 21-24 (website of the College of Management Academic Studies, September 2014) (Hebrew)), and conversely, see the sources collected by my colleague Justice Noam Sohlberg in his opinion, some of which refer to situations encountered by other nations faced with the terrorist chaos that has befallen the world. In my opinion, the requested effort would be appropriate in order to meet the basic requirements of  Basic Law: Human Dignity and Liberty, the importance of which in the Israeli democratic system requires no elaboration. We are not setting hard-and-fast rules as to the nature of the research and the data required. That will be clarified, to the extent necessary, at the appropriate time. At present, of course, the engineering issue should be thoroughly examined in respect of each specific demolition or sealing, in order to ensure that the goal is achieved within its boundaries, and without deviation.

28.       Subject to Paragraph 27, we cannot grant the Petition.

 

Justice Noam Sohlberg:

1. I concur in the judgement of my colleague Justice E. Rubinstein – little holding much. I shall add several incidental comments.
2.  The Petitioners have challenged Regulation 119. Indeed, the power of the military commander thereunder is tremendous – to confiscate and demolish. We are concerned with draconian authority. The Petitioners attacked it as such, and against that backdrop, the harsh criticism is understandable and reasonable. The criticism further intensifies through the presentation of the extreme sanction as punitive, and as amounting to collective punishment. Indeed, the injury to a family member – who has not sinned nor transgressed – when he loses his home and shelter, contrary to first principles, is burdensome.
3. The state of affairs is sufficiently bleak and onerous as described by my colleague Justice E. Rubinstein, but the manner in which it was presented in the Petition is too extreme. I shall explain. The Regulation, as written, does not reflect the actual situation on the ground. First, in a number of judgements, this Court has outlined criteria for the implementation of the Regulation, and has restricted and reduced the scope of its application. Second, in practice, the military command currently exercises moderation, restraint and control in implementing the authority. The Petitioners claim that “house demolitions under Regulation 119 have accompanied the Israeli occupation since its very beginning” (Section 22 of the Petition), and according to them, “the authority has caused hundreds of families and thousands of people to lose their homes, due to the deeds of the individual” (section 221 of the Petition). However, according to the Respondents, in the last decade, since 2005, the military commander has exercised the contemplated authority only several times: in 2008-2009, following a wave of terror in Jerusalem, the authority was exercised twice against residential buildings in East Jerusalem. A third use of Regulation 119 at that time was ultimately not realized. In the summer of 2014, the authority under Regulation 119 was exercised against four buildings (the home of the assassin of Police Commander Baruch Mizrahi OBM, and the homes of the three cell-members who abducted and murdered the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM). A considerable deterioration in the security situation required this. Now we are discussing 5 orders against buildings inhabited by terrorists residing in East Jerusalem, who were the instigators of horrendous terror attacks in the context of the recent wave of terror. An additional order has been implemented. Thus, a small number of cases is concerned, and we are not dealing with “collective punishment” as shall be further elaborated below, although, of course, every home holds the story and strife of its dwellers.
4. Hence, the focus herein is not the formal envelope of Regulation 119, nor its broad language, or factual data from the distant past, but the narrow interpretation of the Regulation and its actual implementation in a small number of cases, in the course of a serious wave of terror. Furthermore, the following should be recalled and noted to disabuse those who may wonder or be confused: we are concerned with deterrence, and not punishment. The classification of the demolition of a family home as “punishment” or “deterrence” indeed makes no difference when it comes to the outcome suffered by the members of that family. The outcome is the anguish involved in losing one’s home and shelter. However, we have been convinced that when the criteria set forth in law and case law are met, it is an inevitable necessity. The mere injury to the members of the terrorist’s family does not render a house demolition illegal, even according to the rules of international law, as demonstrated by my colleague. Indeed, in criminal punishment, as distinct from deterrence under Regulation 119, the focus is on the person convicted of the crime, and not his family members. However, as I stated in the Qawasmeh case referenced above – “even in criminal proceedings the purpose of which is punitive… innocent family members are injured. The imprisonment of a person for a criminal offense committed by him, necessarily injures his spouse, children and other relatives, both in terms of their physical needs and emotionally. There is no need to elaborate on the deprivations arising from a person's incarceration, which are suffered by his family members”. The language of the Regulation explicitly testifies to the deterrent purpose underlying the confiscation and demolition or sealing of a residential home. This inherently involves an injury to innocent parties. Otherwise, how can deterrence from suicide attacks and the like be achieved? These are the bitter fruit of murderous terrorism, and we are obligated to promote deterrence against horrendous acts of the kind described in the individual petitions, even at the cost of injuring the terrorists’ families. And note, the matter involves property damage and not bodily injury. While house demolition is placed on one side of the scales, the other weighs the saving of lives.
5. The Petitioners deny the deterrent benefit of Regulation 119. However, such claim was repeatedly dismissed in case law: “…A study that can conclusively show just how many terrorist attacks have been prevented and how many lives have been saved as a result of house sealing and demolitions has never been nor could be conducted. However, as far as I am concerned, it is sufficient that we cannot rule out the view that this measure has some deterrent effect to prevent me from intervening in the discretion of the Military Commander” (per Justice E, Goldberg in HCJ 2006/97 Ghanimat v. OC Central Command, (March 30, 1997); see also HCJ 6288/03 Sa’ada v. GOC Home Front Command (November 27, 2003)).
6. Researchers who have recently addressed the issue have described the methodological difficulties encountered in measuring the influence of deterrent steps against terror. Wilner notes (in reliance on Richard Ned Lebow and Janice Gross Stein, Deterrence: The Elusive Dependent Variable, 42(3) World Politics 336 (1990)) that successes of deterrent acts leave few, if any, “behavioral tracks”. It is hard to prove that the deterring party had influence on an event that did not occur (Alex S. Wilner, Deterring the Undeterrable: Coercion, Denial, and Delegitimization in Counterterrorism, 34(1) Journal of Strategic Studies 3 (2011)). Nevertheless, the existing empirical research, specific indications from past experience, together with new research in the field of the psychology of terrorism and the theory of deterrence, cumulatively and satisfactorily support the deterrent potential of the demolition of terrorists’ homes.
7. Benmelech, Berrebi and Klor empirically examined whether house demolition is an effective tactic in counterterrorism. Data about house demolitions were crosschecked with data about suicide attacks during the Second Intifada. It was found that the demolition of houses of suicide bombers and of other parties involved in terrorist attacks led to an immediate and substantial decrease in the number of suicide attacks by terrorists residing in the area of the demolition. However, it was found that the deterrent effect was short lived, the influence fading within a month, and that it was limited to the geographic area of the demolition. The researchers’ hypothesis is that, in addition to house demolition, the security forces implement additional counterterrorism measures, and it is possible that the latter may be responsible for the waning of the deterrence. Their conclusion is unambiguous:

The results indicate that, when targeted correctly, counterterrorism measures such as house demolitions provide the desired deterrent effect… (Efraim Benmelech, Claude Berrebi and Esteban Klor, Counter-Suicide-Terrorism: Evidence from House Demolitions, NBER Working Paper Series, available at: http://www.nber.org/papers/w16493 (2010)).

8. The empirical findings are supported by data obtained from people in the field regarding the states of mind, or efforts of relatives to implore family members to refrain from involvement in terrorism that will endanger their homes (see for example: Doron Almog, Cumulative Deterrence and the War on Terrorism, 34(4) Parameters 5 (2004/5). Such pin-pointed data reveal that the deterrence permeates into the awareness of the target population. Similar statements were made by the Respondents’ counsel during the Petition’s hearing, in response to my question.
9. Current insights in the field of the terror-deterrence theory should also be considered. Rascoff proposes a multi-layered approach to counterterrorism (layering), from two perspectives – an interaction among various measures and the accumulation thereof. In his words:

… there is the possibility of synchronic layering, in which various instruments of power operating in concert may "exceed an adversary's threshold for deterrence.”…Synchronic layering argues for measuring deterrence's effectiveness in the context of a complex system… Second, diachronic layering (sometimes referred to as "cumulative deterrence") argues that the overall benefit conferred by a sustained deterrence posture may exceed the sum of interventions taken over time (Samuel J. Rascoff,., Counterterrorism and New Deterrence, 89 N.Y.U. L. Rev. 830, 840 (2014)).

            It emerges from the foregoing, that, in the case at bar, an attempt to isolate and assess the deterrence achieved through a certain measure – house demolition – on its merits, could lead to an erroneous conclusion. It is possible that taken cumulatively, together with additional coordinated steps, house demolition will make that certain contribution that may sometimes be crucial to the manner by which terrorist organizations conduct themselves, even if on its own it is insufficient.

10. Research in the field of the psychology of terrorism thoroughly analyzes statements made by terrorists, alongside the mode of conduct undertaken by terrorist organizations. It was found, that terrorist organizations, including those characterized by religious extremism, respond to rational, utilitarian reasoning. Thus, they can be deterred through measures that influence the cost-benefit considerations of the terrorist action. The centrality of family in the eyes of those involved in terrorism clearly emerges from such studies, supporting the deterrent value inhering in the demolition of terrorists’ homes. This is Wilner’s take on the matter:

… post- 9/11 deterrence skepticism is misplaced. While it is true that deterring terrorism will be more difficult to do than deterring the Soviet Union, targeting what terrorists value, desire, and believe will influence the type and ferocity of the violence they organize (ibid, at p. 31, emphasis added, and also see pp. 7, 13-14; For additional material on the “rational” conduct of terrorists see: Jocelyn J. Belanger, Keren Sharvit, Julie Caouette and Michelle Dugas, The Psychology of Martyrdom: Making the Ultimate Sacrifice in the Name of a Cause, 58(7) Journal of Conflict Resolution 494, 496 (2014)).

11. Perry and Hasisi show in greater detail that despite propaganda-directed declarations, which seek to present suicide attacks as deriving from altruistic motivations, they are mainly the result of a “rational” choice. That choice is founded, on the one hand, on the expected costs, and on the other hand on the expectation of reward (personal, religious and social). The terrorist organizations put an emphasis on promises pertaining to the expected improvement in the situation of the terrorist’s family members after his suicide:

…The martyr's family's status upgrade…both socially and monetarily. …Financial reward can be given to the family by rebuilding their homes. …or in direct sums of money… at least 60… martyrs… whose families, in exchange for the martyr's death, were given new homes adorned with the martyr's picture and name…. The recruiting terror groups embellish this incentive, reassuring the suicide bombers that “their families will be better taken care of in their absence”. …It is often this familial assistance alone that drives the suicide bomber to commit an attack… (Simon Perry and Badi Hasisi, Rational Choice Rewards and the Jihadist Suicide Bomber, 27 Terrorism and Political Violence 53, 55, 61, 65-66 (2015)).

12. Suicide bombers have stressed, in their recorded farewells from this world, the benefits that their families will be awarded, as a certain compensation for their departure, and even described the extent to which the thought of the good that will come to their families was on their minds virtually up to the act itself (ibid). In putting special emphasis on the house of the terrorist’s family, the terrorist organizations themselves mark the “soft underbelly” in which deterrence may be effective.
13. From the aforesaid it emerges that the demolition of terrorists’ homes will add the knowledge that his relatives will pay the price for his actions to the cost-benefit calculation made by a potential terrorist. This aspect of deterrence was referred to by Justice S. Netanyahu in HCJ 4772/91 Hizran et al. v. Commander of IDF Forces in the Judea and Samaria Area, IsrSC 46(2) 150, 155, as follows: “… I do not ignore the fact that the demolition of entire buildings will injure not only the Petitioners themselves but also their family members. But this is the result of the necessity to deter the many, such that they will see and know that their despicable acts not only harm individuals, risk public safety and inflict severe punishment upon themselves, but that they also cause grief to their families…”.
14. However, deterrence is not only intended to directly influence the state of mind of the terrorist, but also to dissuade him from his actions through the intervention of his family. Familial influence is a well-known factor in the literature (Emanuel Gross, The Struggle of Democracy against Suicide Terrorism – Is the Free World Equipped with Moral and Legal Answers for this Struggle? Dalia Dorner Book, 219, 246 (2009) (Hebrew)): “In the traditional Palestinian society, family takes a central place in the life of the suicide bomber, making a decisive contribution to the shaping of his personality and the extent of his willingness to sacrifice his own life in the name of his religion or for his people…”. Gross provides examples and points out that family support, and its public displays, serve the terrorist organizations “in widening the circle of the organization’s supporters within Palestinian society, thus increasing its ability to recruit additional suicide bombers in the future” (and see: Emily Camins, War against Terrorism: Fighting the Military Battle, Losing the Psychological War, 15 Current Issues Crim. Just. 95, 101 (2003-2004)). The familial factor as a terrorism enhancer needs to be defused, and the family must be given incentives to act to minimize terrorism. Fear of the demolition of its home should encourage the family of the potential terrorist to influence him in the desired direction, and dissuade it from providing him a tight circle of support, thus discouraging him from joining or carrying out terrorist attacks. Thus, deterrence contributes, even if to a small extent. Such a small extent, in the circumstances of time and place, may sometimes be the decisive factor, for better or worse.
15. The Petitioners’ claim of discrimination between Palestinians and Jews in the implementation of Regulation 119 is unfounded. The reason that Regulation 119 has not been used against Jews stems from the fact that there is no need for such environmental deterrence within the Jewish sector. We do not deny that there are assaults initiated by Jews against Arabs. Indeed, criminal law should be enforced to its fullest extent, and appropriate punishment should be inflicted. Tragically, we have even reached the point of the heinous murder of Mohamed Abu Khdeir. But the differences exceed the similarities. The gap is huge in the nature and quantity of attacks, and primarily, for the purpose of the case at bar, in the manner by which it is treated by society: a firm, unambiguous, wall-to-wall denunciation by the Jewish sector, which is unmet by a similar stride on the other side, and there is no need to further elaborate on the matter.
16. The Plaintiffs have dedicated a chapter in their Petition to the subject of  “The Prohibition on Collective Punishment in Jewish Law”, and appropriately so. This is a difficult, fundamental matter of values and morality, and it should be discussed in light of the values of the State of Israel as a Jewish and democratic state. Initially, the Petitioners quoted the words of Abraham, who stood firmly before God and categorically argued against the collective obliteration of Sodom and Gomorrah, including “all those living in the cities, and also the vegetation in the land” (Genesis 19:25):

Then Abraham approached and said will you sweep away the righteous with the wicked? ... Far be it from you to do such a thing to kill the righteous with the wicked, treating the righteous and the wicked alike, far be it from you! Will not the judge of all the earth do right? (ibid. 18:23-25).

Abraham began his negotiation with “the judge of all the earth” with fifty righteous people, and ended with ten. If such number of men be found, God promised Abraham not to destroy the city: “For the sake of ten, I will not destroy it” (ibid. 18:32). Abraham did not ask for less than ten. He may have reasoned that this is the watershed – a minyan of righteous people – and not less; a matter of proportionality (see the interpretations of Rashi and Or Hachayim ad loc. (verses 32-33)).

17. However, this collective punishment embodied in the destruction of Sodom is to be viewed as distinct of its pecuniary outcomes. As recalled, Lot was spared such punishment, but “left with his hands over his head and did not rescue any of his assets” (Jerusalem Talmud, Sanhedrin 10, 8).
18. The Petitioners also referred to the story of Korach: “O God, the God who gives breath to all living things, will you be angry with the entire assembly when only one man sins?” (Numbers 16:22) etc. In this context it is appropriate that we repeat the words of Justice M. Cheshin, which were also referenced by the Petitioners, regarding the basic principle in Jewish Law, whereby “every man must pay for his own crimes”:

On many occasions, I have pointed out the difficulties inherent in exercising the powers granted by Regulation 119 of the Defence Regulations… I rooted myself in a basic legal principle, and from it I will not be swayed. This is the basic principle that our people have always recognized and reiterated: every man must pay for his own crimes. In the words of the Prophet: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him (Ezekiel 18:20). One should punish only after caution is provided, and one should strike the sinner alone. This is the Jewish way as prescribed in the Law of Moses: “The fathers shall not be put to death for the children, nor the children be put to death for the fathers; but every man shall be put to death for his own sin (II Kings 14:6) [HCJ 2006/97 Ghanimat v. OC Central Command, IsrSC 51(2) 651, 654-655 (1997); and also see: HCJ 2722/92 Alamarin v. Commander of IDF Forces in the Gaza Strip, IsrSC 46(3) 693 (1992)].

19. These are fundamental maxims, the law of nature – a value that is both democratic and Jewish. Rabbi Samson Raphael Hirsch accurately interpreted this principle of natural justice as follows:

Our scripture is not aimed at preventing the legal abomination whereby a court will punish sons for the crimes of their fathers… inasmuch as it is inconceivable that any legal authority would do so. Rather, Scripture teaches us that from a political and social perspective, a person is not to be punished for the sins of his relative (Hirsch Commentary on the Torah, Deuteronomy 24:16).

20. Throughout the generations, the Sages have perceived this principle in a persistent, consistent manner, whereby in practice, a man who did not participate in the wrongdoing is not to be punished (see the survey by Rabbi Meir Batiste, Collective Punishment, 12 Tehumin 229, 230-231 (5751) (Hebrew) (hereinafter: Batiste); Aviad Hacohen, Shall One Man Sin, and Will You be Wroth with all the Congregation? Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Vayishlach, 5761) (Hebrew) (hereinafter: Hacohen)).
21. Nevertheless, the voice of ethics and justice notwithstanding, it seems that the rule prescribing that “every man must pay for his own crimes” is not the be-all and end-all, it does not stand alone, contrary to the approach of the Petitioners who assert its exclusive application. As aforesaid, collective corporal punishment is to be viewed as distinct from property damage. The approach of Jewish law is not one-dimensional, but rather considers additional rights and principles, which are important as well, by way of balancing and completion.
22. Imposing punishment on the family members of a person who did wrong is rare, but can be found in Jewish law in various contexts. Thus, for example, Rabbi Paltoi Gaon ruled that a child may be taken out of school as a sanction against his father, in order to compel the father to fulfill a Court order, and for the purpose of protecting the principle of the rule of law and its enforcement (Teshuvot HaGeonim, Shaarei Tzedek 4, 5, Title 14; Yuval Sinai, Implementation of Jewish Law in Israeli Courts, 444 (2009); Rabbi Abraham Issac Kook justified collective sanctions against a community that decided to appoint one of its members to public office despite the fact that he had desecrated Yom Kippur, in order to prevent public desecration (Daat Kohen, 193, Batiste, 234-235)). The Sages have allowed the imposition of sanctions on members of the family of a recalcitrant husband in order to release a woman who is denied a divorce. These sanctions were imposed on the grounds that they serve as punishment for “aiding and abetting a transgression”, as well as being measures of deterrence. The underlying premise is that the recalcitrant husband does not act in a void, but rather  receives the psychological, moral, financial and practical support of his close family. Such support, after an order has already been issued by the Rabbinical Court instructing the recalcitrant husband to divorce his wife, actually aides and abets the commission of an offence, thus justifying the imposition of sanctions against the family members, as well. It is obvious, however, that such sanctions require clear proof that assistance and support were provided by the family, and in any event must be enforced proportionately (Aviad Hacohen, If You Will It, She shall not be an Agunah: Imposing Sanctions on a “Recalcitrant Husband” and his Family, Gilyonot Parashat Hashavua (Ministry of Justice) (Nitzavim-Vayelech, 5769) (Hebrew)).
23. Such an approach is also dictated by a true view of reality, since a person cannot be viewed as detached from his environment and family. The responsibility of the environment and family for a person’s actions – to a certain extent – is repeatedly mentioned in various contexts in Jewish law. Thus, for example, a midrashic interpretation of the justification for punishing the family of a person “who sacrifices any of his children to Molech” (Leviticus, 20:1): “I myself will set my face against him and his family and will cut them off from their people together with all who follow him in prostituting themselves to Molech” (ibid., 5) states:

Rabbi Shimon said: What has the family sinned? This serves to teach that when a family member is an illegal customs collector, all of its members are deemed illegal customs collectors; when a family member is a thief, all of its member are deemed thieves – since they cover for him (Torat Kohanim, ibid.).

24. It is should be noted, that regarding such matters, the power to punish is vested in the Heavenly Court and not an earthly court (Hacohen, Batiste, 234-235). Nevertheless, Rabbi Naftali Zvi Yehuda Berlin explains that the closeness of a person to his family may create an identification, which is initially conceptual, and later becomes practical as well, and thus, from a forward-looking perspective, deterrence is sometimes required for the sake of prevention:

They could no longer find it in their hearts to commit this abomination. Thus, they try to save this man, who endangered himself at first, and slowly they and others will also reach this abomination. And if they were willfully blind therefor, his family will also perish” (Haamek Davar, Leviticus 20 (Hebrew)).

25. An additional expression of the responsibility of the family and community is brought in the Talmud:

Anyone who is able to rebuke his household, but does not – he will be liable for his household; his  townsmen – he will liable for his townsmen; the entire world – he will be liable for the entire world” (Babylonian Talmud, Shabbat 54b).

As we can see, the sinner does not stand alone. His friends and family cannot wash their hands clean of him. Maimonides ruled that: “a person who sees that his friend has sinned or is following an improper path is required to correct his behavior and inform him that he is sinning by his evil deeds… and whoever is able to rebuke and fails to do so is considered responsible for such sins, for he had the opportunity to rebuke in regard to them” (, Hilchot De’ot 6:7).

26. An additional matter related to the responsibility of the community for the deeds of an offender can be found in the discussion of the matter of “house leprosy”. According to the Torah, when leprosy spreads in the walls of a house and is not cured, the entire house is to be demolished, even if all of the inhabitants will suffer, as well as the neighbors whose house wall is incidentally demolished. Such neighbor will also be forced to rebuild his damaged home:

From here they said, woe to the evil person, woe to his neighbor. Both remove, both scrape and both bring the stones (Mishnah, Nega’im, 12:6).

This matter may be understood “technically”, since one cannot tear down a wall from one side only. However, the Sages viewed the matter as justification for collective punishment of the culprit and his surroundings, which maintain a mutual and reciprocal relationship among them (see Babylonian Talmud, Sukkah 56b; Batiste 236; Michal Tikochinsky, Woe to the Evil Person, Woe to his Neighbor ,http://www.bmj.org.il/show_article/984 (Hebrew); Yehuda Shaviv, House Leprosy as distinct of other Leprosies, 15 Megadim  (2003) (Hebrew)).

27. We should note that these examples should not be understood as consistently advocating punishment of the community for the misdeeds of one deviant member. On the contrary, the rule still holds: “The soul that sins, it shall perish. The son shall not bear the iniquity of the father, neither the father bear the iniquity of the son, the righteousness of the righteous shall be upon him and the wickedness of the wicked shall be upon him” (Ezekiel 18:20). However, there are exceptions in which uprooting evil requires a punitive-deterrent response that also inflicts harm upon the surrounding environment: “The cabbage is damaged with the thorn” (Babylonian Talmud, Bava Kama 92a). Rashi explains ad loc: “When a thorn grows near the cabbage, uprooting the thorn sometimes results in the cabbage being uprooted with it and sustaining harm due to it – in other words, the neighbors of an evil person suffer with him”.
28. We should reiterate that a pecuniary matter is not equivalent to collective corporal punishment. Maimonides ruled (Mishneh Torah, Hilkhot Melachim Umilchamot 5:3) that a king “may break through to make a road and no one can take issue with him”. This is all the more applicable when rescue from danger is concerned, and a fortiori in the case of serial, murderous terrorism.
29. Unfortunately, we do not live in quietness and confidence. Peace is our heart’s desire, but it has yet to come. The IDF, police and other security forces are compelled to confront heinous, murderous terrorism that does not sanctify life, but rather worships death. The atrocities of terrorists have radicalized to the extent that they are willing to die the “death of martyrs”, as long as they drag Jews with them into the abyss. The law that applies in times of war is not the same as law that applies in times of peace (Batiste 237-238; Yaron Unger, “Fear Not Abram” – On the  Ethics of Warfare in Israel, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Lech Lecha, 5766) (Hebrew) (hereinafter: Unger)). This is not the proper venue to discuss the matter of injury to civilians in the course of such complex combat (see the discussion and references in the articles of Rabbi Shaul Yisraeli, Acts of Retribution in Light of the Halacha, 3 Crossroads of Torah and State 267-273 (1991) (Hebrew); Rabbi Haim David HaLevi, The Principle of “Kill or be Killed” in Public Life, 1 Tehumin 1 343 (5740 (Hebrew); Abraham Israel Sharir, Military Ethics according to the Halacha, 21 Tehumin  426, 431-434 (5765) (Hebrew); Unger, 2-3)). In such a context, we must caution ourselves not to draw hasty conclusions from the Halacha, inter alia due to “thousands of years of exile from land, country and state” (Guttel 18-19), resulting in “a dilution of Halacha sources” (ibid.), and due to the difference between the reality emerging from the Talmudic sources and the present reality , as well as the inherent danger of drawing anachronistic analogies (Aviad Hacohen, Law and Ethics at Times of War, Parshyiot Umishpatim – Jewish Law in the Weekly Torah Portion, 457-462 (5771) (Hebrew) (hereinafter: Parshyiot Umishpatim). Moreover, there have also been important developments in regard to what is permitted and prohibited in wars among nations. Such rules of international law have been recognized in Jewish law, under the principle of “the law of the land is the law” (Guttel 38-40, and the reference there; Unger 4).
30. As aforesaid, with all due care and caution, it is clear that there are special laws intended for times of danger and war, and their application does not entirely preclude collateral damage. Nevertheless, times of war are a moral challenge. The weapons used by combat soldiers on the battle field, and which are necessary for the success of their missions, are tools of death and destruction that would normally be seen as contradicting moral values and human rights. It is not without reason that the Torah warned warriors participating in a battle as follows: “you shall keep away from everything evil” (Deuteronomy 23:10). Special commandments are intended for times of war, in order to contend with moral and spiritual crises: “Scripture speaks only against the evil inclination” (Rashi’s commentary on Deuteronomy 21:11; Avraham Sherman, Halachic Principles in War Ethics, 9 Tehumin 231, 231-232 (5748) (Hebrew) (hereinafter: Sherman); Aviad Hacohen, “As God is Compassionate and Gracious, You too are Compassionate and Gracious!”: On Cruelty and Compassion in Jewish Tradition, in Yoel Elizur (ed.),“The Blot of a Light Cloud”? Israeli Soldiers, Army, and Society in the Intifada, 325-347 (5772) (Hebrew)). One such commandment relevant to the case at bar is the prohibition on cutting down trees around a city:

When you besiege a city for many days to wage war against it to capture it, you shall not destroy its trees by wielding an ax against them, for you may eat from them, but you shall not cut them down. Is the tree of the field a man, to go into the siege before you? However, you may destroy and cut down a tree that you know is not a food tree, and you shall build bulwarks against the city that makes war with you, until its submission (Deuteronomy 20:19-20).

31. This prohibition on collective, wanton destruction designed to hurt the enemy for no military advantage was applied to anything of value and not only to trees. This is the moral lesson of “do not destroy” (bal tashchit) at times of war, which sets a boundary and prescribes rules for self-restraint, even when permission has been granted to the destroyer to inflict harm (Moshe Drori, “When you besiege a city… you shall not destroy its trees” – the Prohibition of Do Not Destroy, Gilyonot Parashat Hashavua (Ministry of Justice) (Parashat Shoftim, 5767) (Hebrew); Sherman 233-234). Jewish law permits the destruction of valuable property at times of war, provided that there is clear awareness of the purpose, and even then – one must act proportionately and carry out such acts to the least destructive extent (Sherman 235 and the references there). Such destruction, in the course of war, solely for an advantage, and performed in a proportionate manner, teaches us a thing or two about the matter of demolition and sealing contemplated in this case: even in war we must not lose sight of human values or our moral compass (Parshiyot Umishpatim, ibid., 457).
32. This difficult and distressing topic could be discussed endlessly, in Jewish law and in general, but this is not the place to discuss it further. The crux of the matter is the basic guiding principle that of which we have been warned: “A governor is cautioned not to punish the sons for the sin of the father” (Novellae Ran, Sanhedrin 27b). At the same time, we must recognize the existence of exceptions – rare, irregular, but sometimes inevitable. These can be applied when the danger is great, when the community carries a certain responsibility, even if it is only passive, or when it covers up for a crime, or when the rule of law is trampled upon, to deter, to distance the innocent from a criminal environment, to promote the social and educational value underlying punishment, and more. In the individual petitions that were dismissed, we were indeed convinced that the governor did not seek to punish the family members for the sin of the terrorist, but to deter, at times of emergency, as a lesson for all to see, and for the purpose of saving lives. This is the governor’s role – an inevitable necessity, even at the price paid by the terrorist’s family – in order to protect the living.
33. On the one hand, we are to remember and preserve morality, human rights and a measure of compassion even in war and quasi-war: “as God is compassionate, you too must be compassionate" (Midrash Sifri, Eikev 49). On the other hand, we must also bear in mind that: “He who is compassionate to the cruel will ultimately be cruel to the compassionate” (Yalkut Shimoni, I Samuel 121). We must deliberate and decide between these extremes. While the demolition of the house of a terrorist and the injury to his family is placed on one end of the scales -- the other weighs the saving of lives. This was done by my colleague Justice E. Rubinstein, and his reasoning is clear and convincing. I concur in his opinion.

 

Justice E. Hayut:

1. I concur with the conclusion reached by my colleague Justice E. Rubinstein whereby this Petition should be denied. The main reason leading me to this conclusion stems from the fact that the principle questions raised by the Petitioners were only recently heard and decided by this Court in the context of individual petitions. The first, on July 1, 2014, regarding the demolition of the home of the man accused of the assassination of Police Commander Baruch Mizrahi OBM (HCJ 4597/15 Awawdeh v. Military Commander of the West Bank Area (July 1, 2014) (the Awawdeh case); and the others on August 11, 2014, regarding the demolition of the homes of the abductors and murderers of the three teenagers Gil-Ad Shaar, Naftali Fraenkel and Eyal Yifrach OBM, and of an additional person who was involved (HCJ 5290/14 Qawasmeh v. Military Commander of the West Bank Area (August 11, 2014) (the Qawasmeh case). Indeed, this Court is not constrained by its own precedents, as prescribed by section 20(b) of Basic Law: The Judiciary, which establishes that: “Case law laid down by the Supreme Court shall bind any court other than the Supreme Court”. However, the words of Justice Silberg in FH 23/60 Balan v. Executors of the Litvinsky Will, IsrSC 15(1) 71, 75, in reference to the previous version of that provision, in section 33(b) of the Courts Law, 5717-1957, are applicable in the case at bar, stressing as follows:

This provision does not render the pages on which the previous judgments of the Supreme Court were written into a “tabula rasa”… The Israeli legislator did not wish to completely release the Supreme Court from the burden of the precedent such that each one of its Justices would act as he pleases… This is not the path that we must take! Should we take this path, over time this judicial institution will turn from a “House of Law” into a ”House of Judges” in which the number of opinions will equal the number of its members.

This important statement should always be borne in mind. In the case at bar, the Petitioners again raise matters of principle concerning house demolition that have already been heard and resolved in the Awawdeh and Qawasmeh cases, such that they are actually seeking to overturn those judgments. I cannot agree to this without the risk of turning this court into a "House of Judges". This is particularly true given the fact that said judgments were issued by five of the Justices of this court only a few months ago. Nevertheless, it should be stated honestly that the issues raised in the Petition are difficult and vexing, and I do not deny that taking the path outlined by case law in this matter is not easy.

2. For years, Israel has contended with the spread of terror and its horrifying eruptions aimed even against innocent civilians. In recent years, the world has been exposed to global terrorism, and this reality compels the law, both locally and internationally, to confront complicated questions as to the legitimate measures that a state may employ in its struggle against terrorism, as it fulfils its obligation to protect itself and its citizens. Such complicated questions have often confronted the Israeli Supreme Court over the years, and it would be sufficient to mention several notable judgments issued in that context: the use of interrogation measures that included the exertion of physical pressure (HCJ 5100/94 Public Committee against Torture in Israel v. Government of Israel, IsrSC 53(4) 817 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...); administrative detention of individuals for the purpose of using them as "bargaining chips" in negotiations (HCJ 7048/97 Does v. Minister of Defense, IsrSC 54(1) 721 (2000) [http://versa.cardozo.yu.edu/opinions/does-v-ministry-defense]); “assigned residence” orders (HCJ 7015/02 Ajuri v. IDF Commander in the West Bank (September 3, 2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank); and the "targeted killing" policy (HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (December 14, 2006) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In addition, this court also conducted judicial review of statutes that were enacted for counterterrorism purposes (CrimA. 6659/06 A. v. State of Israel, IsrSC 62(4) 329 (2008) [http://versa.cardozo.yu.edu/opinions/v-state-israel-1]; HCJ 7052/03 Adalah - The Legal Center for Arab Minority Rights in Israel v. Ministry of the Interior, IsrSC 61(2) 202 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zehava Gal-On Meretz-Yachad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). However, it seems that in the area of counterterrorism, both international law and domestic Israeli law have yet to catch up with reality, and have yet to establish a comprehensive, detailed code of legal measures that a state may employ in fulfillment of its aforesaid obligation to protect itself and its citizens. Needless to say, this area desperately requires regulation. since the known law by which the nations of the world act is largely adapted to the traditional, familiar model of war between armies, whereas the new, horrific reality created by terrorist organizations and individuals who carry out terror attacks in Israel and around the world, disregards territorial borders and draws no distinction between times of war and times of peace. Thus, any time is the right time to spread destruction, violence and fear, usually without discriminating between soldiers and civilians. In fact, terrorism does not respect any of the rules of the game established by the old world in the laws of war, and this reality also requires that  jurists, and not only the security forces, rethink the subject in order to update these laws and adapt them to the new reality. Currently, in the absence of such an updated legal code, Israeli law must cope, on a case by case basis, with questions related to counterterrorism, while constantly aspiring and striving to maintain the fragile balance between the needs of security and human rights and the values of the State of Israel as a Jewish and democratic state.
3. Under the case law, Regulation 119 of the Defence (Emergency) Regulations, 1945 (hereinafter: Regulation 119) currently forms part of Israel’s positive law, and its validity is maintained by virtue of the Preservation of Laws clause under section 10 of Basic Law: Human Dignity and Liberty, even if it is inconsistent with the provisions of the Basic Law. However, as this Court has often stated in its decisions, and as mentioned by my colleague Justice Rubinstein, in interpreting the power granted an authority under the Regulations, we must draw interpretive inspiration from the Basic Law. This interpretive inspiration informs us that when examining and reviewing the exercise of power granted the authority under Regulation 119, the conditions of the Limitation Clause should guide us, and we must ensure that the act is undertaken for a proper purpose and that it satisfies the proportionality tests (HCJFH 2161/96 Sharif v. GOC Home Front Command, IsrSC 50(4) 485, 488 (1996); the Awawdeh case, paragraphs 16-18; the Qawasmeh case, paragraph 22).
4. In their arguments, the Respondents emphasized that the underlying purpose of the demolition policy of terrorists’ homes is not collective punishment but rather deterrence, and that the said measure was exercised in a limited manner, while examining the engineering consequences involved, and while considering less injurious measures, such as sealing, in appropriate cases. This Court adopted its position as to the purpose of this measure in a number of judgments. In the Sharif case, denying a request for a further hearing concerning the partial demolition of a building that was the residence of a person who had provided  a suicide bomber with an explosive device that was detonated on a bus in Jerusalem, President A. Barak stated as follows: “The purpose that guided the Respondent is a proper one… this is no innovation against the background of the extensive case law of this Court. The purpose is not punitive but rather deterrent” (ibid, p. 488; and also see: the Awawdeh case, paragraph 19). In their article Cost without Benefit in the House Demolition Policy: Following HCJ 4597/14 Muhammad Hassan Khalil Awawdeh v. Military Commander of the West Bank, 31 Hamishpat BaReshet Mivzakei He’arot Psika  5, 21-24 (website of the College of Management Academic Studies, September 2014) Amichai Cohen and Tal Mimran state that the consideration of deterrence as a proper purpose is controversial, and they supported this argument in reliance on the opinion of Justice Arbel in HCJ 7146/12 Serge Adam v. The Knesset (September 16, 2013) [http://versa.cardozo.yu.edu/opinions/adam-v-knesset-summary] in which she noted that the deterrence of immigrants and asylum seekers was a desired social interest, but that the legislation that was reviewed in that case did not display the required sensitivity for human rights required to  meet the proper purpose test, since it fails to treat the individual as an objective rather than a means, which constitutes another violation of his dignity as a human being. I believe that their view raises a certain analytic difficulty, given the fact that the starting point was that deterrence – in that case, of immigrants and asylum seekers, and in our case, of terrorists and their supporters – serves an important, proper social interest. That being the premise, criticism should actually be directed against the measures exercised and the proportionality tests they must satisfy, rather than against the purpose, which is itself proper, unless we are willing to determine categorically that deterrence – any deterrence – is not a proper purpose, a proposition that I would find hard to accept, and certainly not when the protection of national security and the deterrence of potential terrorists from committing terror attacks are concerned.

The Petitioners' counsel argues that even if we accept the position that the underlying purpose of house demolition is deterrence, the outcome is collectively punitive, and therefore, wrongful (on this issue see also: Y. Tuval, House Demolition: A Legitimate Means for Fighting Terror or Collective Punishment? in 189 (The Israel Democracy Institute, 2010) (Hebrew)). It seems to me that it is difficult to classify the demolition of a terrorist's home as collective punishment in the customary sense, even taking into account that his family members who live with him in that house are also injured by the demolition of the house, since one of the considerations that must be weighed by the military commander in respect of house demolitions is the extent to which the other inhabitants of the house were involved in the terrorist activity of the perpetrator (see: the Awawdeh case, paragraph 18 of the opinion of Deputy President M. Naor; the Qawasmeh case, paragraph 22 of the judgment of Justice Y. Danziger). However, the Deputy President further noted in this context that “the absence of evidence concerning awareness or involvement on the part of the relatives does not prevent, in and of itself, the exercise of the power. Nevertheless, such a factor may influence the scope of the order issued by the Respondent, as aforesaid”. In my opinion, that consideration, although it does not stand alone, should be afforded considerable weight when deciding on the demolition of a building and its scope. In the past, this court has emphasized this more than once as a concern that should be afforded such weight (see for example: the Sharif case; HCJ 6026/94 Nazal v. IDF Commander in the Judea and Samaria Area, IsrSC 48(5) 339, 349-350 (1994); the Awawdeh case, paragraph 28 of the opinion of Deputy President M. Naor). I would add, without exhausting the possibilities pertaining to this consideration, that I believe that if, indeed, the family members whose home is about to be demolished can convince, by means of sufficient administrative evidence, that prior to the terrorist attack they tried to dissuade the terrorist from carrying it out, that factor should be given very significant weight, which may, in suitable cases, rule out a decision to demolish the house of those family members.

5. An additional argument that was extensively discussed by the Petitioners pertains to the matter of the effectiveness of house demolition as a deterrent of terrorism. The Petitioners supported their arguments regarding the ineffectiveness of that measure with an expert opinion that referred to various articles, including the article of Prof. Ariel Merari (Ariel Merari, Israel Facing Terrorism, 11 Israel Affairs (2005) (hereinafter: Merari), and the article of Benmelech, Klor and Berrebi (Efraim Benmelech, Esteban F. Klor and Claude Berrebi, Counter-Suicide-Terrorism: Evidence from House Demolitions, 16493 NBER Working Paper Series (2010)), which was referenced by my colleague Justice N. Sohlberg in his opinion. According to the Petitioners, these articles refute the rationale of deterrence, but a thorough review reveals that those researchers did not reach such an unequivocal conclusion. Thus, for instance, the empirical study of Benmelech, Esteban, Klor and Berrebi points to a positive correlation between house demolitions and a decline in the number of suicide attacks that they investigated, although they qualified their conclusion by noting that the correlation was found in the period that immediately followed the demolition, and emphasized that house demolition may result in an increase of other types of terrorism, which they did not investigate (ibid., page 16). Prof. Merari also referred to the effectiveness of house demolitions as a deterring factor, and summarized his comments on this issue by saying:

In general, collective anti-terrorism measures are likely to have two opposing effects on the population from which the insurgents emerge: on the one hand, they breed fear and, on the other hand, hatred to the government. The actual behavior of the affected public, as a result of the infliction of collective punishment, depends on whether fear is stronger than anger, or vice versa. Persons who are willing to kill themselves in order to kill others are, obviously, very hard to deter by the threat of punishment to themselves, but they may still care about the well- being of their families (Merari, page 230).

This conclusion is far from a decisive rejection of the rationale of deterrence. It presents two opposing effects of demolition, and states that the deterring power of demolition largely depends on the question of whether fear overcomes hate in any given case. The last sentence of the quoted paragraph also emphasizes that it is hard to deter a suicide bomber, but it is possible that such a terrorist will still consider and take account of the wellbeing of his family, and this at least implies that it may be the only way by which he may be deterred. The scholar Cheryl V. Reicin also posits that house demolitions may deter people who consider committing terror attacks, as well as people who consider supporting the terrorists, and who offer them the hospitality of their homes. In addition, according to Reicin, house demolition may cause family members to make efforts to dissuade their children or brothers from committing terror attacks, home owners may interfere and vacate individuals suspected of terrorism from their homes, and eventually, the community that is exposed to this sanction may intervene, and inform the security forces about individuals suspected of involvement in terrorism (Cheryl Reicin, Preventive Detention, Curfews, Demolition of Houses and Deportations: An Analysis of Measures Employed by Israel in the Administered Territories, 8 515, 547 (1987)). These conclusions are also far from disproving the rationale of deterrence. In this context, it is important to emphasize that in order to satisfy the first subtest of the proportionality tests, the rational connection test, it is not necessary to show that the “means that were chosen will fulfill the objective in its entirety, and partial fulfillment which is neither marginal nor negligible will suffice to satisfy the rational connection test” (HCJ 1213/10 Nir v. Chairman of the Knesset, paragraph 23 of the opinion of President D. Beinisch (February 23, 2012).  In other words, it is sufficient to be able to point to a potential of realizing the said purpose that cannot be ruled out (HCJ 9353/08 Abu Dheim v. GOC Home Front Command, paragraph 8 of the opinion of (then) Justice M. Naor (December 17, 2008) and the references there (hereinafter: the Abu Dheim case).

6. Finally, I wish to note that I see great importance in the comment made by my colleague Justice Rubinstein concerning the future need to conduct, from time to time and to the extent possible, follow-up and research concerning the house demolition measure and its effectiveness (paragraph 27 of his opinion). In this context, it is noteworthy that this issue was also examined in the past by the Shani Committee, mentioned by my colleague, which engaged in a process of “rethinking the issue of house demolition”, and reached a conclusion that was adopted by the security community at the time (2005) whereby systematic demolition of terrorists' homes for deterrence purposes in the Judea and Samaria Area should be stopped and should be reserved for extreme cases (slide 30 of the Shani Committee presentation, Exhibit 1 of the Petition). According to the security agencies, the terrorist attack at the Merkaz Harav Yeshiva in the center of Jerusalem constituted an extreme case, and recourse was made to demolition in that matter after a pause of several years. A petition that was filed with this Court regarding that matter was denied (the Abu Dheim case). The recent wave of terror that began with the abduction and murder of the three teenagers, and continued with the frequent killings and massacres of innocent civilians, passers-by and congregation members at a synagogue, also marked an extreme change, characterized by terrorists from East Jerusalem, required a renewed application of this measure. However, these extreme cases should not dissipate the need that was addressed by my colleague to re-examine from time to time, and raise doubts and questions concerning the constitutional validity of house demolition under the tests of the Limitation Clause. In his poem “The Place where We are Right", the poet Yehuda Amichai praises the doubts that should always trouble even the hearts of the righteous:

But doubts and loves

Dig up the world

Like a mole, a plow.

 

And a whisper will be heard in the place

Where the ruined

House once stood.

For these reasons, I concur in the conclusion of my colleague Justice E. Rubinstein, according to which the Petition should be denied.

Decided in accordance with the opinion of Justice E. Rubinstein.

Given this day, 9 Tevet, 5765 (December 31, 2014).

 

 

H.C.J  153/83

 

 

ALAN LEVI AND YAHELI AMIT

v.

SOUTHERN DISTRICT POLICE COMMANDER

 

 

In the Supreme Court sitting as the High Court of Justice

[May 13, 1984]

Before: Barak J., D. Levin J. and Netanyahu J.

 

 

Police Ordinance (New Version), 1971, sections 83, 84

Press Ordinance, Laws of Palestine (Drayton), vol. II, p. 1214

 

 

            The Petition centred on the Respondent's refusal to permit the Petitioners - who petitioned the Court on behalf of the "Committee Against the War in Lebanon" - to hold a demonstration and procession to mark the thirtieth day of the death of the late Emil Greenzweig, who had been killed in the course of a demonstration held by the "Peace Now" movement. The Police Commissioner's reasons for his refusal were his apprehension, that what had happened before in the demonstration held by "Peace Now" was likely to happen again, and that if it did, the police would be unable to provide the demonstrators with absolute protection against a hostile crowd.

           

Held by the court:

A (1) The right of demonstration and procession is a fundamental human right in Israel. It is recognized along with free speech, or emanating therefrom - as belonging to the freedoms that characterize Israel as a democratic state.

(2) The basic freedoms - among them assembly and procession - constitute rules of law which, on the one hand, serve to guide us in the absence of statutory law, and, on the other hand, rules of interpretation according to which every statutory provision is to be construed. The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

B (1) The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private ownership of property and freedom of movement. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights.

(2) The balancing process must find expression on two levels: One is the concrete level, where the actual circumstances of the controversial event are taken into account; the other is the level of principle, where the typical interests are taken into account and general criteria are determined for balancing conflicting interests and rights.

(3) The need for a principled balancing calls for a judicial determination which in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement is required as to "the limits of sufferance" of the various rights.

(4) In seeking the point of equilibrium, there is, on the one hand, the consideration that a situation should not be allowed to arise in which hostile bystanders would be able to prevent people from demonstrating, and it is the task of the police, in this situation, to keep the crowd from disturbing the demonstrators rather than prevent the demonstrators from exercising their right. At the other hand of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life.

(5) Both considerations are worthy of protection, but they cannot both be upheld at one and the same time. The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), 1971, to safeguard the public security or the public order. The balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in the demonstration and procession. At the second level the concern is with the normative measures to be adopted by the police with respect to the grant or denial of a permit for holding the demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt.

 

C (1) At the first level of balancing it will be the duty of the police to take all reasonable steps towards preventing any threats to or disturbance of the procession or demonstration. Enjoinder of the demonstration or procession is to be imposed as the last, not the first step. Only after the police have exhausted all the physical means at their disposal, consonantly with the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with.

(2) The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police. Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and their forces have to be allocated in a manner that will ensure reasonable discharge of all police duties.

 

D (1) At the second level of balancing the "rational principle" by which to balance between free speech and the public security, is the "probability" test. This test or formula is applicable also in construing the District Commander's authority under sections 83 and 84 of the police Ordinance (New Version).

(2) The "probability" test does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. Substantial evidence is required. Conjectures, speculations and apprehensions are not enough.

(3) The ideology which the demonstration or procession seeks to express, is not per se of concern to the authorities, but how the message is conveyed, the possibilities of it influencing the spectators, and the measure of hostility it is calculated to arouse in the crowd, are all considerations to be duly weighed, for they have a direct bearing on the probability that public security will be breached.

 

E (1) If, after the adoption of all reasonable police measures, there is still a substantial probability of harm to public security, the District Commander has the power to forbid the demonstration or procession. Before this power is exercised, the use of less drastic measures must be considered. These may enable the procession or demonstration to be held, even if not as originally planned, but with changes as regards its place, time and scope.

 

F (1) When exercising judicial review the court will not assume the role of a super police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevance of considerations and the like factors.

(2) The court will ask itself whether the facts as known to the District police Commander, would entitle a reasonable police commander to infer the existence of a probable danger to public security. This examination is no different from any other made by the court using the test of reasonableness.

(3) In the present case the only facts advanced by the respondent as a reason for not permitting the demonstration, were the events of the past. These create an apprehension, but no more; they do not establish any probability. Upon a reasonable evaluation made with prudent foresight those facts cannot be said to establish any substantial likelihood of danger, and they do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred on the facts as they were known to him, that there existed any substantial possibility or probability of harm to public security.

 

            Petition for an order nisi. The petition, which was heard as if the order had already been given, was granted and the order made absolute.

 

 

Israel cases referred to:

                           

[1]   H. C. 148/79, Sa'ar et al. v. Minister of interior and police, 34(2) P.D. 169.

[2]   H. C. 243/62, Israel Film Studios Ltd. v. Levi Geri et al., 16(4) P.D. 2407; S.J. vol. IV, 208.

[3]   H. C. - 73,87/53, "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871; 13 P.E. 422; S.J. vol. I, 90.

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

[5]   Cr.A. 126/62, Dissenchick et al. v. Attorney-General, 17 P.D. 169; S.J. vol. V, 152.

[6]   Cr.A. 696/81, Azulai v. State of Israel, 37(2) P.D. 565.

[7]   Cr.A. 100/51, Dershovitz v. Attorney-General, 6 P.D. 278.

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

[9]   H. C. 253/64, Jeris v. Haifa District Officer, 18(4) P. D. 673.

[10] Election Appeal 1/65, Yeridor v. Chairman of Central Committee for Elections to the Sixth Knesset, 19(3) P.D. 365.

[11] H. C. 243/82, Zichroni v. Broadcast Authority Managing Committee, 37(1) P.D. 757.

[12] H. C. 166/71, Helon v. Usefiah Local Council, 25(2) P. D. 591.

[13] H. C. 230/73, S.Z.M. Ltd. v. Mayor of Jerusalem, 28(2) P. D. 113.

[14] H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511.

[15] H. C. 531/77, Baruch et al. v. Tel Aviv Traffic Superintendent, 32(2) P.D. 160.

[16] H. C. 222/68, Hugim Leumiyim et al. v. Minister of Police, 24(2) P.D. 141.

[17] H. C. 807/78, Ein Gal v. Film and Theatre Censorship Board, 33(1) P.D. 274.

[18] H.C. 644/81, Omar International Inc. New York v. Minister of Interior et al., 36(1) P.D. 227.

[19] H.C. 329/81, (S.P. 217/82; 376,670/83) Nof v. Attorney-General et al., 37(4) P.D. 326.

[20] H. C. 389/80, Golden Pages Ltd. v. Broadcast Authority, 35(1) P.D. 421.

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

 

English cases referred to:

 

[22] Harrison v. Duke of Ruthland (1893) 1 Q.B. 142; 68 L.T. 35.

[23] Hubbard v. Pitt (1975) 3 W.L.R. 201 (C.A.).

[24] Beatty v. Gillbanks (1882) 9 Q.B. 308.

 

Irish case referred to:

 

[25]      R. v. Londonderry (1891) 28 L.R. Ir. 440.

 

American cases referred to:

 

[26]      De Jonge v. State of Oregon 299 U.S. 353; 57 S.Ct. 255 (1937).

[27]      Bachellar v. Maryland 397 U.S. 564; 90 S.Ct. 1312 (1970).

[28]      Watson v. City of Memphis, Tenn. 373 U.S. 526; 83 S.Ct. 1314 (1963).

[29]      Hague v. Committee for Industrial Organization 307 U. S. 496; 59 S.Ct. 954 (1939).

[30]      Feiner v. People of the State of New York 340 U.S. 315; 71 S.Ct. 303 (1950).

[31]      Schenck v. United States 249 U.S. 47; 39 S.Ct. 247 (1919).

[32]      Whitney v. People of the State of California 274 U.S. 357; 47 S.Ct. 641 (1927).

[33]      Dennis v. United States 341 U. S. 494; 71 S.Ct. 857 (1951).

[34]      Terminiello v. City of Chicago 337 U.S. 1; 69 S.Ct. 894 (1949).

 

D. Cheshin for the Petitioners.

R. Jarach, Director of High Court Matters, State Attorney's Office, for the Respondent.

 

Barak J., giving the judgment of the Court.

 

The Facts:

1. On 10.2.83, in the afternoon, the "Peace Now" movement held a demonstration and procession in Jerusalem. Starting at Zion Square, the procession passed along the Ben Yehuda Mall, Bezalel Street, Ben Zvi Boulevard and Ruppin Street to Kiryat Ben Gurion. In the course of the procession the demonstrators encountered hostility. The procession ended with a demonstration at the square facing the Prime Minister's office. The end was a bitter one, since a hand-grenade was thrown which led to the injury and subsequent death of a demonstrator, Emil Greenzweig.

 

To mark the thirtieth day of the death of the late Emil Greenzweig, the "Committee Against the War in Lebanon" sought to hold a procession on 10.3.83. This procession was scheduled to follow the very same route taken on the previous occasion, at the end of which Emil Greenzweig met his death. The purpose of the procession was to protest against "the violence and the lack of freedom of expression." On 2.3.83, the petitioners applied on behalf of the "Committee Against the War in Lebanon" for a licence to hold the procession and demonstration, but the application was refused by the respondent on 6.3.83. Giving reasons for his refusal, the respondent wrote: "The proximity of the events to each other and the atmosphere created after the holding of Peace Now's demonstration, give rise to serious apprehension that the holding of the demonstration which forms the subject of this application, its projected timing, routing and size will create a grave threat to the public order and security." The respondent noted that he was prepared to approve a meeting at the Rose Garden opposite the Prime Minister's office. On 7.3.83 the petition was lodged against the respondent, calling upon the latter to show cause why he should not accede to the application. On 9.3.83 we convened to hear arguments, Mr. Jarach having been invited to appear as a representative of the Attorney-General. Due to the urgency of the matter, Mr. Jarach had insufficient time to prepare a written reply, but it was agreed that he should put forward verbally representations of the respondent as to the facts, and that we would treat the petition as if an order nisi had already been issued in the matter. It was further agreed that we should accept Mr. Jarach's representations as a substitute for a replying affidavit. In his reply Mr. Jarach noted the respondent's awareness of the symbolism attaching to the date of the proposed procession and its route. Nevertheless, the respondent also had to reckon with the public safety; and while he agreed that the demonstrators themselves would not jeopardize the public safety, it was to be feared that members of the crowd might do the demonstrators violent injury. The respondent hardly advocated a reward for hooliganism, but feared the recurrence, in the course of the procession and demonstration, of incidents of violence similar to or even graver than those that had taken place thirty days earlier. We inquired of Mr. Jarach as to the grounds for the fear, and whether it was founded on any specific information about what was likely to transpire. He replied that the respondent had no special information and that his apprehension was founded on the belief that the events of the past were likely to repeat themselves at this time as well. We went on to inquire whether, having regard to the general duties of the police, they had at their disposal sufficient manpower to safeguard the demonstration and procession. Mr. Jarach's reply was that, despite the difficulties involved, the police would be able to muster the required forces, that the respondent was motivated not by the lack of man-power but by his inability to afford the demonstrators "hermetical protection" - hence his apprehension. Much of our time was devoted to seeking a compromise acceptable to the parties, but to no avail. At the conclusion of the hearing we decided to make the order nisi absolute. Our reasons for so doing are given below.

 

The Right of Assembly and Demonstration

 

2. The right of assembly and demonstration is a fundamental human right in Israel (H.C. 148/77[1]). It is recognized - along with free speech, or emanating therefrom - as belonging to the freedoms that shape the democratic character of Israel. Some hold the ideological basis for this freedom to be the wish to ensure freedom of expression, which for its part contributes to the discovery of truth. Others believe that underlying the stated right is the maintenance and proper functioning of democratic government, which for its part is founded on freedom of information and freedom of protest. A further opinion is that the freedom to demonstrate and form a procession is a vital component in man's general right of self-expression and autonomous thought (See F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge, 1982) 3). It seems that the right of demonstration and assembly has a broad ideological foundation, at the centre of which is a recognition of the value and dignity of man, of the freedom granted him to develop his personality, and of the wish to maintain a democratic form of government. By virtue of this freedom, means of expression are afforded to those to whom the national and commercial media of expression are not available. Hence it is accepted in our law, as in the law of other enlightened democratic countries, that the right of demonstration and assembly be ensured a place of honour in the citadel of fundamental human rights. In the words of Hughes J. in De Jonge v. State of Oregon (1937) [26], at 364:

 

"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."

 

            (See also: V. Blasi, "Prior Restraints on Demonstrations,"68 Mich. L. Rev. 1969-70 (1481) 1483; D.G. Barnum, "Freedom of Assembly and Hostile Audience in Anglo-American Law,"29 Am. J. Comp. L. (1981) 59).

           

3. In Israel this right has yet to find formal expression in a Basic Law. Yet the decisions of this court have effectively transformed it into one of those fundamental but unwritten rights which derive directly from the democratic, freedom-loving character of our State (per Landau J. in H.C. 243/62 [2], at 2415). The result is that "in its decisions these fundamental rights serve this court as a guiding light in construing the law and reviewing the acts of the state authorities. Clearly the Executive too must conduct itself with a proper concern for these rights" (ibid., based on H.C. 73,87/53, [3], at p. 884). "The recognition of the fundamental freedoms as a substantive part of the law in Israel also entails the conclusion that these freedoms form a part of the law, in word and in deed, i.e., as basic rules serving to guide and fashion patterns of legal thinking and interpretation, which these freedoms influence by their spirit and their goal" (per Shamgar J. in F.H. 9/77 [4], at 359). We find that the basic freedoms - among them assembly and procession - constitute on the one hand rules of law which serve as guidelines in the absence of statutory law, and on the other hand, rules of interpretation according to which every statutory provision is to be construed.

The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

 

The Balance between the Right to Demonstrate and Conflicting Rights and Interests.

4. The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private property and freedom of movement or passage. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights. Thus Lord Scarman remarked in his Report on the Red Lion Square Disorders (Cmnd. 5919), 1-2:

 

"Amongst our fundamental human rights there are, without doubt, the rights of peaceful assembly and public protest, and the right to public order and tranquillity... but the problem is more complex than a choice between the two extremes - one, a right to protest whenever and wherever you will and the other, a right to continuous calm upon our streets unruffled by the noise and obstructive pressure of protesting procession. A balance has to be struck, a compromise to be found that will accommodate the exercise of the right to protest within a framework of public order which enables ordinary citizens who are not protesting, to go about their business and pleasure without obstruction or inconvenience."

 

            In discussing the need to create a balance between the various rights, we stated as follows in H.C. 148/79 [1] at 172, 178:

           

"The freedoms of assembly and procession are not unlimited. They are relative and not absolute freedoms. My right to hold an assembly and procession does not mean that I have the right to enter my neighbor's property without his consent, or that I may cause violence and a disturbance of the public peace. As with other freedoms, here too it is necessary to balance the desire of the individual - and the desires of individuals - to express their views by way of an assembly and procession, against the desire of the individual to protect his welfare and property and the desire of the public to preserve public order and security. Without order, there is no liberty. The freedom of assembly does not mean a throwing-off of all public order, nor does the freedom of procession mean freedom to riot... In organized social life, there is no 'all or nothing,' but there is 'give and take,' and a balancing of the different interests."

 

            It is necessary that this balancing process find expression on two levels: one is the concrete level, where the actual circumstances of the controversial event are taken into account, the other is the level of principle, where the typical interests are taken into account, and general criteria are determined for balancing conflicting interests and rights. The concrete examination is essential, but is not sufficient in itself. It is not enough for the courts to state that the various interests must be balanced against each other. But the court - in the absence of statutory guidance - has to determine the balancing formula, the relative weight to be attached to the conflicting interests, and the criteria for ascertaining the point of equilibrium. This aspect was touched upon by Agranat J. in the Kol Ha'am case [3], in the following terms (at p. 881):

 

"... The question must necessarily arise - particularly because that approach does not embody any precise and narrow formula - as to what is the rational principle that must serve the executive authority when it is engaged in the stated process, in order to determine the issue in favor of one or the other of the two stated interests."

 

            This "rational principle" is needed in order to guide the public as to what is permitted and what is forbidden. Its existence is vital in order that the governmental authority be armed with the criteria and yardsticks necessary for its decision-making. This "rational principle" serves as an important guide for the judiciary, which ought not to give expression to its subjective perception but should fashion its interpretation according to objective criteria. The significance of this "rational principle" was elucidated by Shamgar J. in A.H. 9/77 [4], (at 361):

           

"The process of weighing competing values denotes the interpretative starting point, but it cannot act to establish standards or a graded value scale according to which the interpretative function is to be discharged. I suspect, moreover, that the result of setting up values one alongside the other, without at the same time formulating also guidelines for assessment of their relative weight, can only be that for lack of legal criteria the court will in each case employ according to its best understanding of what is most expedient - whatever criterion seems proper to it in the circumstances. In other words a criterion embodying a guiding value standard, and tending towards the upholding of a fundamental freedom, is converted into and exchanged for a casual paternalistic criterion, the direction and nature of which will be incapable of advance assessment. With all due respect, this is quite unsatisfactory and it will not, I am sure, contribute to the clarity of the law or to its uniformity."

 

            This need for a principled balancing calls for a judicial determination which, in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights - if I may borrow a term employed by Mr. Justice Witkon [see A. Witkon, "Reflection and some Youthful Memories of Freedom of the Press," Human Rights in Israel (Human Rights Association in Israel, ed. R. Gabison, 1942, in Hebrew), 153, 160].

 

5. The right of demonstration and procession may clash with other rights and interests of various kinds. It may clash, for instance, with an individual's proprietary right, as may happen when it is sought to hold a demonstration and procession on his property. Exercise of the right of demonstration and procession may likewise conflict with a public property right, as when the procession is sought to be held in a city street. Public and private property alike have a vested ownership, yet a desirable balance between the right of demonstration and procession and a private proprietary right is by no means the same as the desirable balance when a "public" ownership right is at stake. The right of demonstration and procession may clash with the freedom of movement, since my neighbour's right to demonstrate in a city main street inhibits my right to use this street for my own purposes. These two interests have to be balanced against each other in a manner giving recognition to one without negating the other. The right of demonstration may clash with a person's right to personal security and bodily integrity, and also with the public interest in maintaining security and democratic administrative procedures. This clash may well occur since demonstration may bring with it violence, whether on the part of the demonstrators or on the part of a hostile crowd, and a balance must be struck between the right to demonstrate and the public security. The right of demonstration and procession may conflict with the public interest in the integrity of the judicial process, as may happen when a demonstration or procession is likely to influence the outcome of a judicial matter which is pending - and a balance has to be found between these two conflicting interests.

 

The Need for Diverse Criteria

6. The centrality of the right of demonstration and procession inevitably brings it into conflict with various other rights and interests, and this renders imperative a determination of standards wherewith to gauge the desirable point of balance in each case. The diversity of the different possible situations requires a matching diversity of points of balance. No single criterion will avail to solve all the problems, since the conflicting interests are not always on the same normative level, while the problematics of the conflict may be of different kinds. For instance, in case of conflict between the right of demonstration and a property right, the conflict when the latter is that of an individual is not the same as when it vests in the public. When vested in an individual the property right takes precedence, and an act of trespass cannot be justified by the right of demonstration (see Harrison v. Duke of Ruthland (1893) [22]). In the second case the property right takes no precedence, since public property - and I refer here to highways, squares and streets (and not, for example, to government offices) - is meant also for processions, parades and funerals (H. C. 148/79 [1], at 178; Lord Denning, in Hubbard v. Pitt [23]; see also S.A. de Smith, Constitutional and Administrative Law, (London, 4th ed. by Street and R. Brazaier, 1981) 497). Here, unlike the private property situation, the right has to be balanced against other interests, in a process of reciprocal waiver and tolerance. As we have seen, the possibility of conflict may arise also between the right of demonstration and procession and the freedom of movement or, between the former and maintaining the integrity of the judicial process. These conflicts may raise problems of a varying character. The conflict between the freedom of demonstration and procession and the freedom of movement is between two rights of equal normative value, and what is needed, therefore, is to balance them in a manner enabling substantial realization of the one without substantial infringement of the other: "The inhabitants of a city ... have to take upon themselves the inconvenience resulting from national and public events, and these cannot serve to restrict the citizen's right to demonstrate. In organized social life there is no 'all or nothing' " (H.C. 148/79 [1], 178), and once the desirable point of equilibrium has been established, it will regulate the conduct of the public and of the authorities. The apprehension, or possibility or even certainty of impairment of one interest or another may not be relevant at all. On the contrary: the envisaged equilibrium entails the certainty of an impairment of some kind, yet the entailed risk has to be undertaken for the sake of maintaining a desirable balance between the competing interests. The second conflict, between the freedom of demonstration and procession and the integrity of the judicial process, raises a different problem. Here the question generally is the degree of likelihood that the exercise of the one right (demonstration and procession) will prejudice the other interest (integrity of the judicial process). If this likelihood is high, the interest of the integrity of the judicial process will have the upper hand, whereas the freedom of demonstration and procession will prevail when there is little such likelihood. The purpose of a principled balance in this type of situation is to establish guidelines for evaluating the prejudicial likelihood. Thus, for instance, it has been laid down in our case law that the desirable guideline is neither a "probable" nor a "remote" danger, but one of "a reasonable possibility." "The risk of a remote effect on the judicial process will not suffice, but a possible effect will, since it is much the same whether the publication did in fact operate to influence the trial, or it merely was capable of so doing. This possibility of influencing the outcome of the trial suffices if it be a reasonable possibility, and there is no need that it be probable or imminent" (per Sussman J. in Cr.A. 126/62 [5] at 181).

 

7. As we have seen, the desirable point of equilibrium is sometimes found in a determination of the demarcation line between two rights pressing for recognition on the same normative level (the right of demonstration and procession as opposed to the right of passage). At other times, finding the point of equilibrium entails the establishment of a criterion for evaluating the likelihood of a breach of right. Just as the point of balance in the first case varies according to the substance of the rights concerned, so by the same token will it vary in the latter case. In neither case is a general and universal standard to be established. This question arose in connection with the relationship between the freedom of expression and the integrity of the judicial process. The argument that the proper point of balance between the two interests coincided with the point where the interests of free expression and public security were properly balanced against each other (i. e., a situation of "clear and present danger"), was rejected by the Supreme Court, Sussman J. holding as follows:

 

"I am of the opinion that this test is inappropriate in the instant case. There the question was the restriction of a right in deference to the public need, here the issue is the reconciliation with each other of two worthy but conflicting public interests. An encroachment upon the freedom of speech because of the danger of a breach of the public peace - a sore evil, for the prevention of which the freedom of speech should be curtailed only as far as essential - is not the same as delimiting that freedom for the sake of doing justice. For the public interest in the doing of justice is no less a value than the public interest in the maintenance of free speech, and in balancing the two against each other it would be as wrong to neglect the one as it would the other." (Cr.A. 126/62 [5], at 177).

 

Accordingly, we held that

 

"The Supreme Court was not prepared to follow the American case law, nor to adopt the test of a clear and imminent danger. It was also not ready to adhere to the 'probability' test laid down by the Supreme Court in the Kol Haam case (H.C. 73/53 [3], 87). In rejecting these tests Sussman J. noted that 'the doing of justice is of no less importance than the freedom of expression...' In place of these tests the Supreme Court established another, putting the point of balance elsewhere on the spectrum of possibilities, namely, the test of a 'reasonable possibility' of a forbidden influence." (Cr.A. 696/81 [6], at 575).

 

8. In the petition before us no question of the freedom of movement or of the integrity of the judicial process was at stake. The consideration by which the District Commander was guided was "a serious apprehension of a grave threat to the public order and safety." The issue was deliberated by this Court in H. C. 148/ 79 [1], where it was held that the right of assembly, procession and demonstration was not an absolute but a relative one, which could be restricted because of considerations of public safety. In the above case danger to the public safety was feared because of violent behaviour on the part of the demonstrators themselves, whereas in the case before us the apprehension was linked to possible violence coming from a hostile crowd. The Police Ordinance (New Version), 1971, provides for denial or restriction of the right of demonstration and procession on grounds of public security (sec. 84). Hence, if the risk of harm to life or body threatened by a hostile crowd is a matter of certainty, there is no doubt that the right of demonstration and procession must bow to these individual and public interests. However, does the occurrence of the harm have to be an absolute certainty for the instant purpose? To answer, it is necessary to establish a standard for gauging the likelihood that a disturbance of the public security as a result of the reaction of a hostile crowd to the demonstrators will erupt. What is the appropriate point of balance?

 

The Freedom of Demonstration and Procession and the need for Public Security in the Face of a Hostile Crowd.

9. This question requires us to analyze the different considerations that have to be taken into account. One is that a situation should not be allowed to arise in which hostile bystanders will be able to prevent people from demonstrating. It was so held by the U.S. Supreme Court in Bachellar v. Maryland (1970) [27], at 567:

 

" 'The public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers'... or simply because bystanders object to peaceful and orderly demonstrations."

 

            A person's freedom is not to be infringed merely because of violent objection to its exercise (see Watson v. City of Memphis, Tenn. (1963) [28]). It is the task of the police, in this situation, to keep the crowd from disturbing demonstrators, and not to prevent the demonstrators from exercising their right (Cr.A. 100/51 [7], at 280; see also E. C. S. Wade, "The Law of Public Meeting," 2 Modern L. Rev. (1938), 177). This was clearly stated by the court in R. v. Londonderry (1891) [25] as follows (at 449):

           

"If danger arises from the exercise of lawful rights resulting in the breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights."

 

            Showing deference to crowd hostility is like entrusting the key to exercise of the right of demonstration and procession to those who oppose it. This has to be avoided and the mob is not to be given a power of veto, nor violence a reward. The danger of such deference is noted by Kalvin:

           

"If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve" (Kalvin, The Negro and the First Amendment (1965) 140).

 

            Indeed, we should be careful not to convert the mob's power of veto into a constitutional principle that would permit denial of the right of demonstration and procession. "Every act done outside the framework of law and calculated to prejudice another's freedom of expression - an act of violence all the more so - strikes at the very heart of democracy" (Agranat J., in Cr.A. 255/68 [8], at 435). The heart of democracy has to be protected by all the means at democracy's disposal.

 

10. At the other end of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life. The supreme value we attach to human life compels us to reckon with its endangerment, from whatever quarter the threat may come. The freedom of demonstration must not be permitted to degenerate into a blood-bath. Moreover, a violent disruption of the public order may unravel the social fabric and the very institutions of democratic government. It is not unknown for the enemies of democracy to have availed themselves of its legal processes in order to bring about its downfall. "More than once in the history of democratic countries has it happened that an orderly democratic administration was overcome by fascist and totalitarian movements of one kind or another, these making use of all the rights of free speech, freedom of association and of a free press, accorded them by the state, in order to conduct their destructive activities. Those who saw this happen at the time of the Weimar Republic will not forget the lesson" (Witkon J. , in H.C. 253/ 64 [9], at 679; see also E.A. 1/65 [10]), nor, indeed, will those who lived through the events of the Third Reich (see Witkon's above-mentioned article, at p. 161). The freedom of procession must not be allowed to escort the state to the "abyss" (a phrase used by my learned brother, Levin J., in H.C. 243/82 [11], at 770).

 

 

11. These, then, are the two considerations to be taken into account and to be balanced against each other. Both are worthy of protection, but they cannot both be upheld at one and the same time. Mr. Justice Fortas depicted the situation thus:

 

"The Constitution seems to accommodate two conflicting values, each of which is fundamental; the need for freedom to speak freely, to protest effectively, to organize, and to demonstrate, and the necessity of maintaining order so that other people's rights and the peace and security of the State, will not be impaired" (A. Fortas, Concerning Dissent and Civil Disobedience (New York, 1968) 30).

 

            The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), to safeguard the public security or the public order. It seems to me that the balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in demonstrations and processions. At the second level, the concern is with the normative measures to be adopted by the police with respect to the grant or denial of permission for the holding of a demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt. I shall deal with each of these levels in turn.

 

 

Balance Level One: Police Action to Prevent a Disturbance.

12. We have seen that our point of departure is the principle that an individual has a recognized right to take part in a demonstration or procession. Anyone threatening the exercise of this right and forcefully interfering with its enjoyment is acting unlawfully. There is a constitutional right to demonstrate and a constitutional duty to refrain from disturbing the demonstration by the use of threats and violence (see "Protecting Demonstrators from Hostile Audiences," 19 Kan. L. Rev. 524). Hence, the police must use all reasonable means at their disposal in order to prevent these threats and to protect the demonstrators from harm. This duty of protection is stated by Professor Chafee thus:

 

"The sound constitutional doctrine is that the public authorities have the obligation to provide police protection against threatened disorder at lawful public meetings in all reasonable circumstances" (Z. Chafee, Free Speech in the United States (New York, 1969) 245).

 

            The initial police action should be directed not against the demonstrators , but those threatening them with acts of violence. In the words of U.S. Supreme Court Justice Roberts:

           

"Uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right" (Hague v. Committee for Industrial Organization (1939) [29], at 516).

 

            This principle has been adopted in our law too. For instance, the Supreme Court has held as follows:

           

"The maintenance of order does not mean surrendering to those who threaten its disturbance, but the contrary: giving shelter and protection to the victims of such" (per Berinson J. in H.C. 166/71 [12], at 594; see also H.C. 230/73 [13]; H.C. 155/60 [14], at 1512).

 

            In the same spirit it was held that "the response to the unlawful resort to violence must be firm initial police action and subsequent enforcement of the criminal law" (Landau J. in H.C. 531/77 [15], at 165). It is therefore the duty of the police to take all reasonable steps towards preventing any threats to, or disturbance of, the procession or demonstration (Cf. H.C. 222/68 [16], at 166). The enjoinder of the demonstration or the procession is to be imposed as the last, not the first step. Only after exhausting all the physical means at the disposal of the police, in whatever manner required to meet the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with. If, in the name of preserving order, the police "ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him" (Black J., in Feiner v. People of the State of New York, (1950) [30], at 326).

            The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police (see H.C. 222/68, [15], at 167). Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and they have to allocate their forces in a manner that will ensure reasonable discharge of all their duties (see Note, "Hostile Audience Confrontations: Police Conduct and First Amendment Rights," 5 Mich. L. Rev. (1976-77), 180)

           

Balance Level Two: Police Action to Prevent a Demonstration.

13. It is possible that the reasonable efforts made by the police to prevent interference with a demonstration will succeed in eliminating the danger threatened by a hostile crowd, but it may also happen that the danger remains. The police may not have sufficient forces available, or those available may not be adequately trained or equipped, or the surrounding physical circumstances may perhaps preclude effective control of the situation. For these and other reasons, a threat to public safety may persist even after the envisaged police action. In this predicament the second question poses itself, namely: does the risk of harm to body and life justify repression of the right of demonstration and procession? Should the police efforts be directed solely against the hostile crowd, or are there also circumstances which justify police action against the demonstrators themselves? Shall the procession march at any price? We have already discussed the relevant considerations at this level of inquiry, noting that here too a balance must be struck. An infringement of the right of demonstration and procession has to be justified when its exercise entails a risk of bodily injury and loss of life. A democratic society which is anxious to preserve human dignity, life and bodily integrity, which is concerned with maintaining democratic government procedures, must sometimes deny or curtail the freedom of expression and the freedom of demonstration and procession, even if the practical implication of so doing is to grant a hostile audience de facto veto power. In this connection Professor Barnum writes as follows:

 

"It is doubtful that constitutional policy can prevent a hostile audience from abridging the freedom of speech when public disorder is either so unexpected or so persistent that it threatens to overwhelm the law enforcement resources of the society... when violent clashes between opposing groups become a regular occurrence, the law enforcement capacity of the society may be worn so thin that general restrictions on the right to demonstrate will have to be imposed. Under these circumstances, the constitutional right of freedom of speech may have to be subordinated, at least temporarily, to the imperatives of law enforcement and the need to restore public order" (Barnum, supra, at 94).

 

            But the real question that underlies this petition is this: what is the measure of likelihood of loss of life or bodily harm resulting from the holding of a demonstration that would justify the ultimate step of enjoining exercise of the stated right. This is a matter for prior and not retrospective assessment. The procession has yet to march, the demonstration yet to be held and the events yet to unfold. But the danger exists, the threat is there. By what standard shall the situation be gauged? As we have seen, certainty is by no means to be required. One does not await the patient's death before calling the doctor. What then is the requisite degree of likelihood - short of certainty - in this context? Does apprehension suffice? Is reasonable apprehension required, or perhaps a possibility, proximate or remote, suffices? Perhaps a substantial danger has to be shown, or shall the test be one of probability or of a clear and present danger? These and other tests we shall now examine in seeking the proper criterion to be applied when balancing the right of procession and demonstration against individual and public safety.

 

The Proper Standard: The "Probability" Test.

14. Determination of the proper standard was the central issue in the Kol Ha'am case ([3] 87). Charged with determining the "rational principle" by which to find the balance between free speech and the public security, the Court decided on "probability" of danger as the balancing formula or "test." This test will ensure that:

 

"On the one hand the viewpoints of others are not suppressed merely because they are opposed to those held by the people in authority and, on the other hand, that there is also attained the legislator's objective of preventing danger to the public peace" (ibid. at 888).

 

            Justice Agranat arrived at this test on the basis of the fundamental perception of the State of Israel as a country built on democratic foundations, within which prior restraints on the freedom of expression ought not to be imposed save in situations where the occurrence of a harmful result is a "substantial probability." It seems to me that the stated test is appropriate also in the matter now before us. We might also therefore properly apply the "probability" test in construing the District Commander's authority under sections 83 and 84 of the Police Ordinance (New Version). This can be justified on four grounds: First, the issues in this case and in Kol Ha'am [3] are very closely related. In both cases the principle of free speech (in its wide sense) clashes with the public security interest, and the need arises for a standard by which to gauge the likelihood of harm occurring. The general considerations pertaining to the democratic nature of the state and the need to confine "preventive measures" to situations in which there is a substantial probability that danger will erupt, apply in both cases. Second, the decision in Kol Ha'am has come to be accepted by the courts as establishing a general guideline for the balancing of freedom of speech with public safety. The ruling in Kol Ha'am is not limited in application to the specific provision of the Press Ordinance in issue there, but "was formulated on a broad theoretical basis" (per Landau J. in H.C. 243/62 [2] at 2411).

            The ruling in Kol Ha'am "has become a cornerstone in our legal edifice, and the principles embodied in it have been accepted by all and are beyond challenge today" (Levin J., in H.C. 243/82 [11], at 765). Our courts have in the past applied the stated test in all situations requiring a balance of freedom of speech with public safety (see e.g. H.C. 243/63 [2]; H.C. 807/78 [17] at 278; H.C. 148/79 [1]; H.C. 644/81 [18]; H.C. 243/82 [11]; see also P. Lahav, "Freedom of Expression in the Decisions of the Supreme Court, " 7 Mishpatim (1977) p. 375). It is fitting that we continue following this route, along which processions and demonstrations shall be free to march as long as there is no probability of prejudice to public security.

            A third reason for following the Kol Ha'am guideline is that it puts us in the company of modern democratic states which also face similar predicaments and, despite differences in constitutional structure, arrive at solutions similar to our own (see D. G. Barnum, The Constitutional Status of Public Protest Activity in Britain and the United States (1977) Pub. L. 310). Thus, a similar approach is taken in the United States (see L. H. Tribe, American Constitutional Law (Mineola, New York)), and likewise in West Germany. The latter country's constitution ensures freedom of assembly, with provision made for lawful restriction of the same. A special law empowers the police to prohibit demonstrations, provided that the circumstances known at the time of the decision constitute "an immediate danger to public order or public security" (see Gesetz uber Versammlungen und Aufzuge (Versammlungsgesetz) of 24 July, [Dietel and Kintzel, Demonstrations und Versammlungsfreiheit (1935), 120]).

            Fourth, the stated test strikes a proper balance among the various considerations which are competing for primacy. The test, on the one side, pays full regard to the need to ensure freedom of demonstration and procession, and also fully recognizes that only exceptional circumstances indicating a causal connection which is clear and manifest, justifies the infringement of this freedom. On the other side, the test pays full regard to the need for protecting life and limb, acknowledging that the maintenance of democratic administrative procedures and the public safety justify infringement of the freedom of demonstration and procession. It is accordingly a rational and principled test, and provides a proper and flexible guideline for the resolution of difficult and exceptional situations.

           

15. Already in Kol Ha'am Agranat J. pointed out ([3] at p. 888) that the "probability" test was "not a precise formula that could be adapted easily or certainly to every single case." The use of kindred expressions, such as "a proximate possibility" (Agranat J., ibid.), "a tangible danger" (Sa'ar decision [1]), "a natural consequence" (see Beatty v. Gillibanks [24]), throw little additional light on the content of this elusive test. It may be noted that in the United States the standard of a "clear and a present danger" is sometimes applied in the present context. This test was enunciated by Justice Holmes in Schenck v. United States [31]:

 

"The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (at p. 52).

 

            It was further shaped by Justice Brandeis, with the concurrence of Justice Holmes, in Whitney v. People of the State of California [32]:

           

"... 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 the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression" (at p. 377).

 

            Some reservations about the test were expressed in later decisions (see Strong, "Fifty Years of 'CIear and Present Danger': From Schenck to Brandenbrug and Beyond," Free Speech and Association (ed. Kurland, 1975) 302; Dennis v. United States [33]).

            Justice Agranat himself rejected this test in Kol Ha'am ([3] at 891), mainly because the element of immediacy demands proximity in time. In later Supreme Court decisions no clear distinction was maintained between the "probability" test enunciated by Justice Agranat and the "clear and present danger" test rejected by him, the two being treated as identical (see e.g. Sussman J. in Cr.A. 126/62 [5] at 171; Cohn J. in E.A. 1/61 [10] and Bach J. in H.C. 243/82 [11], at 779). Indeed, there appears to be no great difference between these two tests (see Lahav's above-mentioned article at 420), and some regard them as being but different versions of one and the same test (see T. L. Emerson, The System of Freedom of Expression (N.Y.. 1970) 113). In the Dennis case [33], in which the American Supreme Court expressed reservations concerning the "clear and present danger" test, Jackson J. nevertheless felt that there was room for its continued use in procession and demonstration cases (ibid. at 568).

           

16. The test of "probability" does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. What is required is "substantial" evidence (D. Libai, "The Right to Assemble and Demonstrate in Israel, "Iyunei Mishpat. Vol. B (1972/73) 54, 65). The estimation must be based on known facts, including past experience. Conjectures, speculations and apprehensions are not enough, nor is a plea of a substantial possibility of harm to public security. The actual circumstances must point to a substantial likelihood of danger, leaving a possibility of "setting off" the degree of likelihood against the measure of gravity of the apprehended harm. In this respect one should not seek to be wise after the event and judge according to ex post facto knowledge of the facts and events, but rather according to the reality confronting the authority at the time of making its decision. Nevertheless, not to be wise after the event is no justification for folly before the event. Since we are concerned here with the evaluation of a future happening, relevance attaches to the circumstances surrounding the holding of the demonstration and procession, to the message it is intended to convey, the manner of its conveyance, and to the possible reaction of the crowd. A demonstration is not something detached from reality, it is rather a phenomenon of life taking place at a particular place and time. It is true that the ideology which the demonstration or procession seeks to express is not per se of concern to the authorities "the police are not in charge of ideology" (H.C. 148/79 (1) at 179). But how the message is conveyed, the possibilities of its influencing the spectators and the measure of hostility it is calculated to arouse in the crowd are all considerations to be duly weighed, for they have a direct bearing on the threat to public-security. Accordingly, the views of the demonstrators are not in themselves of interest to the authorities, but are important only for estimating the probability of the danger erupting.

            Freedom of expression or demonstration does not mean freedom merely to say only what others want to hear. Freedom of procession is not the preserve of flower-garlanded children marching along a city street, but it also confers the right on people who do not hold the accepted views to march, and whose very marching arouses irritation and anger (see Terminiello v. City of Chicago (1949) [34], at 4). The right is available to marchers in both categories, and is not tied to the measure of approval or anger aroused. Yet importance does attach to such responses when one is evaluating the likelihood that the procession and demonstration will result in a breach of the public security.

           

17. If, despite the adoption of all reasonable police measures, there is still a "probability" of harm to public security, the District Commander has the authority to forbid the demonstration or procession. It is to be noted, however, that the enjoinder of a demonstration or procession is a measure of last resort, to be adopted in the face of anticipated danger. Before its adoption, the use of less drastic measures has to be considered. These may enable the demonstration or procession to be held, even if not as originally planned but with changes as regards its place, time and scope. In this manner it will be possible to maintain, if only in limited measure, the freedom of demonstration and procession, while at the same time protecting the public security interest. Indeed, when the lawful denial or curtailment of a basic human right is at stake, it is incumbent on the Executive to choose - from the range of means available for the protection of public security - such restrictive measures that least impair the basic right. Among the drastic measures, that which is the least drastic should be chosen. (See note: "Less Drastic Means and the First Amendment, "78 Yale L.J. (1969) 464). It is possible, of course, that any measure less than a total enjoinder may be ineffective in the face of a probable threat to public security. In such event there is no alternative but to adopt this stringent measure. But where other means may prove effective, they must be employed.

 

Judicial Review

18. I have so far confined myself to the normative framework within which the District Commander's discretion may be exercised. It is now necessary to examine the normative discretionary framework for the exercise of judicial review. This framework is not peculiar to the law of demonstration and procession, but is rather the regular framework set by the doctrine of judicial review. This doctrine holds that "the court, when exercising judicial review, does not assume the identity of the functionary the lawfulness of whose conduct is being challenged, but each retains its own identity, and the court examines whether the functionary acted as one in his position should properly have done." (H.C. 329/81 [19], at 334). Accordingly, the court will not assume the role of a super-police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevancy of considerations and the like. Thus we have ruled as follows in the context of the Police Commander's discretion under sections 83 and 84 of the Police Ordinance (New Version): "If the second respondent's considerations are affected by lack of good faith, by arbitrariness, discrimination or unreasonableness - we shall not hesitate to intervene" (H.C. 148/79 [1], at 178).

 

19. In exercising judicial review, the court will examine the lawfulness of the police commander's decision in relation to the existence of a "probable" danger to the public security (see Kol Ha'am [3] at 823). The court will ask itself - as it has in other similar cases (cf. H.C. 389/80 [20]; H.C. 1/81 [21]; H.C. 243/82 [11] - whether the facts as known to the District Police Commander, would entitle a reasonable police commander to infer the existence of a "probable danger" to public security. This examination is no different from any other made by the court using the test of reasonableness. In this way, for instance in H.C. 644/81 [18], this court examined whether various articles published in a daily newspaper posed a probable danger to public security. A similar examination was made by this court in H.C. 243/82 [11], in the context of prohibiting the telecasting of certain material. The same test has to be used when ascertaining the "probability" of harm to public security in the context of the police commander's exercise of his discretion.

 

From the General to the Specific

20. The District Police Commander concluded, in the matter before us, that there was "serious apprehension over a grave threat to public order and security." This threat, in his opinion, would continue to exist even after allocation of the forces necessary for safeguarding the demonstration and procession.

            We enquired as to the grounds for such concern, and were informed that it resulted from an evaluation of the events that had transpired on the occasion of the first demonstration and procession, held a month earlier. Here the District Commander erred, in our opinion. Apprehension and estimations are not enough - unless they are founded on facts and point to a "probability." In the matter before us the only facts adduced were the events of the past. These create an apprehension, but no more, and do not establish any probability. Upon a reasonable evaluation made with prudent foresight, the above facts cannot be said to establish any substantial likelihood of danger, and do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred, on the factual constellation known to him, that there existed any probability or substantial likelihood of harm to public security. Once we have reached this conclusion there is no longer need for us to consider whether the police commander had properly discharged his duty when he offered to licence a meeting at the Rose Garden, opposite the Prime Minister's office. That inquiry would only have been necessary had we thought that holding the procession along the original route entailed a probability of harm to public security. In any event, the need to consider alternative routes of procession falls away, once we have concluded that the planned procession poses no danger warranting its enjoinder. Yet I must add with regret that a number of suggestions which we made in the course of the hearing - relating to alternative routes promising a more effective deployment of the public forces and thus reducing the fear of possible violence on the part of the crowd - were not acceptable to the Respondent, despite the willingness of the Petitioners to accept them. It is difficult to fathom the Respondent's rejection of these alternative proposals, which could have reduced the risk of possible danger significantly, even on the premises and assumptions of the police themselves.

            For the above reasons we have decided to make the order absolute in the sense that the Respondent is to give the Petitioners a licence to hold a demonstration as requested by them.

           

Judgment given on May 13, 1984.