HCJ 5319/97

HCJ 5706/97

HCJ 5707/97

HCJ 5319/97

1. Roman Kogen
2. Victor Raviv

v.

The Chief Military Prosecutor                        

                                   HCJ 5706/97

1. Private Alexei Zamotovski
2. Private Yaacov Smailov
3. Alexei Kaisek

v.

1. The State of Israel
2. The Chief Military Prosecutor
3. The General Staff Prosecutor
4. Chief Military Police Officer
5. The Military Tribunal, Dep't of the General Staff              

HCJ 5707/97

1. Sergei Kaufman
2. Golan Kzamal
3. Vitali Novikov
4. Alexei Kaisek                             

v.

1. Chief Military Prosecutor
2. General Staff Prosecutor
3. Deputy Commander of the Military Police
4. Commander of Prison Facility Number 396
5. Northern Command Prosecutor, Lieutenant Colonel Anat Ziso
6. Deputy Commander Shmuel Zoltek, Israeli Police
7. District Military Tribunal, Dep't of the General Staff 

The Supreme Court Sitting as the High Court of Justice

[November 24, 2003]

Before Justices  T. Or, D. Dorner, Y. Turkel

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

Facts: Petitioners, prisoners in a military prison, participated in a prison uprising allegedly motivated by deficient prison conditions. The military authorities negotiated with the inmates, who demanded improvements in prison conditions and a commitment from the authorities not to prosecute them. The military authorities agreed to this last condition. Despite this agreement, however, the inmates were prosecuted. Petitioners here contest this latter decision.

Held: The Court noted that precedents allow for the government to repudiate an agreement if such a step is dictated by the public interest. Such a decision must take all the relevant interests into account, including the fundamental principles of contracting, as well as the responsibilities and obligations of the government. The Court weighed the various interests, including the interest in maintaining the credibility of the government, the expectation and reliance interests of the petitioners, and the interest in prosecuting criminal offenses. The Court held, after weighing these interests, that the decision of the authorities to repudiate the agreement was reasonable, and that there was no room for intervention by the Court.

Petition Denied.

Israeli Supreme Court Cases Cited:

[1]HCJ 311/60 Miller, Engineer (Import Co.) Ltd. v. Minister of Transportation, IsrSC 15 1989.

[2]F.H. 20/82 Adres Building Materials Ltd. v. Harlow & Jones G.M.B.E., IsrSC 42(1) 221.

[3]HCJ 1635/90 Zarzevski v. The Prime Minister, IsrSC 45(1) 749.

[4]HCJ 218/85 Arbiv v. Tel-Aviv District Prosecutor, IsrSC 40(2) 393.

[5]CA 64/80 Eretz-Yisrael—Britania Bank v. The State of Israel—Ministry of Housing, IsrSC 38(3) 589.

[6]Crim. App. 2910/94 Yeffet v. The State of Israel, IsrSC 50(2) 221.

[7]HCJ 428/86 Barzilai v. The Government of Israel, IsrSC 40(3) 505.

[8]Motion Crim. App.  537/95 Ganimat v. The Government of Israel, IsrSC 49(3) 355.

[9]HCJ 6781/96 M.K. Olmert v. The Attorney General, IsrSC 50(4) 793.

[10]HCJ 935/89 Ganor v. The Attorney-General, IsrSC 44(2) 485.

[11]HCJ 676/82 The Histadrut General Workers’ Union in Israel v. The Chief of Staff, IsrSC 37(4) 105.

[12]CA 4463/94 Golan v. Prisons Authority, IsrSC 50(4) 136.

[13]HCJ 546/84 Yosef v. Central Prison Warden in Judea and Samaria, IsrSC 40(1) 567.

[14]Motion Crim. App.3734/92 The State of Israel v. Azami, IsrSC 46(5) 72.

[15]HCJ 5133/97 Bitton v. The Chief Military Police Commander (unreported case)

[16]HCJ 5018/91 Gadot Petrochemical Industries Ltd. v. The Government of Israel, IsrSC 47(2) 773.

[17]HCJ 636/86 The Jabotinsky Estate, Workers’ Cooperative v. The Minister of Agriculture, IsrSC 41(2) 701.

[18]HCJ 4330/93 Gans v. The District Committee of the Tel-Aviv Bar Association, 50(4) 221.

[19]HCJ 3477/95 Ben-Attiyah v. The Minister of Education, Culture, and Sport, IsrSC 49(5) 1.

[20]HCJ 1563/96 Katz v. The Attorney General, IsrSC 55(1) 529

District Court Cases Cited:

[21]D.C. 3/57 Military Prosecutor v. Melinki, IsrDC 17 90.

English Cases Cited

[22]R. v. Latif, [1996] 1 All E.R. 353 (H.L.).

[23]R. v. Croydon Justice ex. p. Dean, [1993] 3 All E.R. 129 (Q.B.).

[24]Attorney-General of Trinidad and Tobago v. Phillip, [1995] 1 All E.R. 93 (P.C.).

[25]Bennet v. Horseferry Road Magistrate Court, [1993] 3 All E.R. 138 (H.L.).

Israeli Books Cited:

[26]G. Shalev, Government Contracts in Israel (1985).

[27]D. Barak-Erez, The Contractual Responsibility of Administrative Authorities (1991).

[28]2 I Zamir, The Administrative Authority (1996).

[29]1 D. Friedman & N. Cohen, Contracts (1991).

[30]A. Mudrik, Court Martial (1993).

Israeli Articles Cited:

[31]Y. Karp, The Criminal Law – Forcing Human Rights: Constitutionalization in light of the Basic Law: Human Dignity and Liberty, 42 HaPraklit 64 (1996).

Foreign Books Cited:

[32]Y. Dinstein, The Defense of “Obedience of Superior Orders” in International Law (1965).

Miscellaneous:

[33]Findings of the Commission Examining the Exercise of Judicial Discretion in Sentencing (1998)

[34]Dr. Alkushi, A Wealth of Latin Terms and Expressions (1982)

Jewish Law Sources:

[35]Midrash Mechilta, Beshalach, 15

[36]Babylonian Talmud, Tractate Shabbat 31a

[37]Babylonian Talmud, Tractate Baba Metzia 44a, 48b

For petitioner 1 in HCJ 5319/97—Aryeh Licht

For petitioner 2 in HCJ 5319/97—Avigdor Feldman

For petitioners 1 & 2 in HCJ 5706/97—Avraham Nantal

For petitioner 3 in HCJ 5706/97—Yoav Tzach-Vaks, Beni Shaked

For petitioner 1 & 2 in HCJ 5707/97—Amirah Amiram

For petitioner 1 in HCJ 5707/97—Amit Mor

For respondents—Uzi Fogelman, Office of the State Attorney

JUDGMENT

Justice T. Or:

The Issue

1. A riot took place in a military prison facility, involving a number of the inmates.  The inmates gained control of an area of the facility and blockaded themselves inside. They held several members of the prison staff. The riot involved the commission of various criminal offenses, which, prima facie, infringe the Penal Law-1977 and the Military Jurisdiction Law-1955. Following the takeover of the facility, negotiations ensued between the inmates and military authorities. These negotiations ended with an agreement between the rioting inmates and the authorities, which provided for an end to the rioting in exchange for the authorities’ promise not to prosecute the rioters for the offences allegedly committed during the riot.

Despite this agreement, the rioting inmates were arrested immediately after the uprising had ended and charged with various criminal offenses. Was the prosecution’s decision to lay charges legal? This is the issue before the Court.

The Facts and Proceedings

2. The events leading up to this petition began on the morning of Saturday, August 9, 1997, in compound three of prison facility number 396 under the command of Military Company C. At the time, the compound in question housed approximately one hundred inmates. At approximately 10:30 am, a group of approximately twenty inmates took over the compound and detained nine members of the prison staff. It is alleged that the riot was violent, that a number of guards were beaten, locked in prison cells, with their arms and legs tied and mouths gagged.

3. The riot was motivated by several grievances of the inmates, including anger at their treatment. It is alleged that the prison staff subjected the inmates to degrading treatment, including physical abuse and beatings. It is claimed that the prison staff presented false disciplinary complaints against the inmates, resulting in a number of the inmates’ sentences being lengthened. Additionally, it is alleged that the prison drills lasted for many hours, beyond that permitted by the regulations, past work hours, and even after the inmates had showered.

Moreover, petitioners claim that the guards would prevent the inmates from going to the bathroom, to the point of causing them serious discomfort. An inmate who violated these instructions would be denied various rights. Specific arguments were raised concerning the solitary confinement area of Military Company C. These inmates were confined to their cells 23 hours a day. Their cells are not equipped with toilets, and they relieve themselves in a bucket. Petitioners argued that this arrangement is improper, as it causes humiliation and severe discomfort.

The rioting inmates allegedly approached the Base Commander in writing two seeks prior to the riot, asking him to address their complaints. The petitioners claim that this request went unanswered.

4. After word of the rebellion at the prison spread, various military and police forces began arriving to the prison area. Among them were the Police Special Forces, a police negotiation team and senior army officers. General Gabi Ashkenazi, an assistant in the General Staff, was among these officers. He arrived Saturday evening and supervised the forces operating in the area.

Negotiations were conducted between the representatives of the rioting inmates and the negotiation team. During these negotiations, which lasted until Sunday morning, six of the prison staff members held were released, leaving three guards in the rioters’ hands. The rioters raised the following list of demands during the negotiation process (emphasis added):

1. First and foremost, we demand that nothing be done to any of the participant. They are not to be investigated, beaten, no sections, no time served.
2. Soldiers sentenced to lengthy sentences shall not be transferred to civilian prisons (as we were soldiers when we committed the offences in question). This includes all future soldiers.
3. No days shall be added beyond 385, only onto 630 and with a very justified reason.
4. Change the "Ascot" cigarettes to a different brand.
5. Stop beating the soldiers in the division.
6. Soldiers who have a lengthy sentence to serve should be transferred to rehabilitation or to officer’s custody
7. We are requesting an in-depth examination of the files of the past two-three months, as it is impossible that a soldier who amassed ten complaints against him during a six month period should be denied parole.
8. Drills cannot be held after showers or meals.
9. We demand an on-duty doctor—not a medic—on Saturday.
10. The drills didn’t stop until someone fainted—why?
11. Every inmate will have the right to a daily phone-call.
12. They do not allow us to drink when we need to—the same goes for bathroom access.
13. A soldier who is not fit for incarceration should not be incarcerated .

The rioting inmates requested that the riot not be investigated and that they not be harmed. They threatened to injure themselves if their demands were not met. Moreover, throughout the negotiation process, the rioting inmates threatened, if their demands went unanswered or if force was used against them, to harm the guards in their custody and the other inmates who did not take part in the riot. 

The rioters presented the following document to the authorities during the night hours of Saturday August 9, 1997:

We demand a contract by tomorrow afternoon signed by a person who can accept responsibility. If we receive this paper, we will immediately open all the doors, clean the compound and line up in an orderly fashion as required. If prior to this, someone tries to break into the compound we will commit collective suicide.

We also note that the evidence before us reveals that the prison commanders and army officials were given the impression that the rioting inmates were armed with weapons such as Japanese knives, clubs, hatchets, kitchen knives, fire extinguishers, tear gas, screwdrivers, handcuffs and firebombs. 

5. Those conducting the negotiations with the rioting inmates estimated that there was a real danger to the lives of the detained guards, the lives of the other inmates, and the lives of the rioting inmates themselves, in the event of an attempt to take the compound by force. They further believed that the rioting inmates were prepared to take extreme measures, in light of the fact that some of them had prior convictions for violent crimes. The negotiators also feared that, as the rioters grew tired, the likelihood that they would take extreme action would increase. As such, military personnel and police on site concluded that signing an agreement with the rioting inmates was the only way to end the incident without casualties.

6. The agreement which put an end to the riot was signed on Sunday, August 10, 1997, approximately 24 hours after the riot began. The agreement was signed by two inmate representatives, Victor Raviv and Gideon Martin. The agreement was also signed by the Deputy Chief of the Military Police, Colonel Yoram Tzahor, by the head of the Police Negotiation Unit, Deputy Commander Shmuel Zoltek, and by Northern Command Prosecutor, Lieutenant Colonel Anat Ziso. The prison warden also signed the agreement. The agreement provided:

The guards shall be immediately released, unharmed.

The weapons, including the hatchets, knives, and gas canisters shall be immediately turned over to the prison authorities/ security personnel.

The inmates shall return to their cells at once.

An inquiry into the demands raised by the inmates regarding prison conditions shall be conducted.

No harm will come to the inmates and they will not stand trial for the incident.

The inmates shall not be transferred to civilian prison facilities against their will, as punishment for the incident.

This document’s validity is contingent on the release of the guards and the immediate return to prison routine.

7. The signing of the agreement put an end to the riot. The inmates returned to their cells, turned over their weapons to the prison authorities, and all the staff members were released. The investigation of the military police [hereinafter IMP] began a day after the incident. On the same day, the inmates who participated in the riot, including the petitioners, were arrested. The petitioners were detained until September 8, 1997, at which point charges were filed with the District Military Tribunal, Dep't of the General Staff.

Eighteen inmates were indicted on charges related to the riot. All the accused are charged with the offence of rioting, as per section 46 of the Military Jurisdiction Law, in conjunction with article 29 (b) of the Penal Law. They are also charged with blackmail and uttering threats, as per article 428 of the Penal Law, in conjunction with article 29 (b) of the Penal Law. The indictment also charges several inmates with the commission of various crimes against on-duty officers, under article 60 of the Military Jurisdiction Law, and the offence of uttering threats against on-duty officers, under article 63 of the Military Jurisdiction. With the filing of the indictment, the military prosecution requested that the military tribunal instruct that the accused inmates be detained until the end of the proceedings.

8. The three petitions before us (HCJ 5319/97, HCJ 5706/97 and 5307/97), attack the decision to prosecute the accused inmates despite section five of the agreement, which provided that the inmates would not stand trial for the incident. These petitions were filed with the High Court of Justice following the indictment.  In each of the three petitions, orders nisi were issued against the military tribunal, instructing it to refrain from conducting any hearings on the merits of the charges against the petitioners. It was held, however, that the orders nisi would not prevent hearings on the issue of the petitioner's detention.

9. In its decision of October 1, 1997, the military tribunal granted the prosecution’s request to detain the petitioners until the end of the proceedings. In his decision, the Honourable Judge D. Piles of the tribunal noted that there exists prima facie evidence against the petitioners. The tribunal emphasized that there are grounds for detaining the rioting inmates, in light of the fact that there were serious breaches of military discipline. In its decision, the tribunal explicitly stated that it did not address the agreement concluded between the military authorities and the petitioners, in light of the petitions filed with this Court.

10. We now turn to the petitions here. In their response briefs, the respondents requested that we uphold the decision to prosecute the petitioners. They argued that it is doubtful whether the parties' agreement can be deemed binding under the circumstances, absent the authorities’ intention to create a legally binding instrument. According to this contention, the agreement was merely “an instrument aimed at putting an end to the incident without casualties….An act to save lives” in a situation where no other alternative to end the incident without casualties existed.  Respondents also contend that the agreement should be voided, as it is the product of coercion and force. In this context, respondents note that the agreement was concluded following the threats made by the rioters to harm themselves and the prison staff members if their demands were not met.

The state invokes section 17 of the Contracts Law (General Part)-1973 in support of its submission. That section provides that a contract formed by coercion may be voided. Respondents further argue that the agreement is against public policy and is therefore void under section 30 of the Contracts Law.

These arguments raise complex issues, including the issue of whether, and to what extent, the provisions of the Contracts Law (General Part) apply to the type of agreement at issue here. I see no need to address these issues, however, as I have concluded that, even if the provisions found in section five of the agreement are valid, there is no room for judicial intervention in the decision of the prosecuting authority to repudiate the agreement.

Contracts of Public Authorities

11. The agreement here was reached between government authorities and a group of individuals. The agreement touches on the exercise of powers—powers in the hands of government authorities—to press criminal charges against those subject to the Military Jurisdiction Law. Under the agreement, the authorities undertook to refrain from exercising these powers. The rule is that agreements of this nature are deemed valid and binding. See HCJ 311/60 Miller, Engineer (Import Agency) Ltd. v. Minister of Transportation [1].  Indeed, it is incumbent upon government authorities to respect the agreements that they enter into. It has already been held that “our lives as a society and as a nation are premised on keeping promises.” FH 20/82 Adres Building Materials. v. Harlow and Jones [2], at 278 (Barak, J.) The authorities’ duty to abide by its obligations is supported by public policy. See G. Shalev, Government Contracts in Israel 101 (1985) [26]. This duty is also derived from the authorities’ general obligation to act fairly and reasonably. “A government authority which denies its obligation is deemed not to have acted fairly and reasonably.” HCJ 1635/90 Zarzevski v. The Prime Minister [3], at 841 (Barak, J.) 

Our case law has recognized the validity of agreements dealing with the exercise of the power to initiate legal proceedings. See HCJ 218/85 Arbiv v. Tel-Aviv District Prosecutor [4], at 401-02. This having been said, the issue of what normative arrangement is applicable to such agreements has not yet been decided. This in light of the problems inherent in contractual relations where one of the parties is a government authority and where the agreement touches on the manner in which that authority is to exercise its powers. See Shalev, supra. [26], at 39; D. Barak-Erez, The Contractual Responsibility of Administrative Authorities [27], at 56-57; see also Arbiv [4], at 399-400. Whether the ordinary rules set out in the Contracts Law (General Part)-1973 apply to the agreement here is subject to doubt.  Do these ordinary rules apply? Do they apply in conjunction with provisions of administrative law? Perhaps a contract of this nature is subject to a special scheme drawn from administrative law. These issues have not yet been resolved.

12. There is no need for us to rule on these issues, as all agree that an authority may free itself of the obligations it undertook under certain circumstances. The rule is that, in making that decision, it is incumbent on the authority to pay proper attention to all the considerations touching on the matter, including the basic principle of respect for contractual obligations, on the one hand, and the government authority’s duty to fulfill its mandate and realize the interests and values for which it is legally responsible. See CA 64/80 Bank Eretz Yisrael—Britania v. The State of Israel [5], at 599-600.  Indeed, the authorities may deviate from a promise “if the public interest so demands. This interest shall be ascertained by balancing between the various interests struggling for primacy.” See Arbiv supra [4], at 401.

The principle concerning the government’s ability to repudiate obligations it undertook is anchored in these same considerations.  In this spirit, it was decided that “the principles of fairness and reasonableness, which lie at the basis of the rule that promises must be kept, also underlie the limits of this rule and the exceptions to it.” Zarzevski supra. [3], at 841 (Barak, J.). Similarly, the government’s status as the public trustee gives rise not only to its duty to act fairly and to keep its promises, but to act effectively in order to promote the public good and realize the social values that it is responsible for. See D. Barak-Erez  supra. [27], at 170; 2 I. Zamir, The Administrative Authority [28], at 674-75. These principles give rise to the government’s right—and, indeed, its duty—to repudiate an agreement if the public interest so requires. See 1 D. Friedman & N. Cohen, Contracts 357 (1991) [29].

In the general context of the public interest, what are the interests in the case here? In Arbiv supra. [4], the Court enumerated three interests in determining the legality of the authorities’ decision to repudiate a plea bargain: the integrity of the government authorities, enforcement of the criminal law, and the reliance and expectations of the accused. These interests are also relevant to the case before us, which, like a plea bargain, involves an agreement dealing with the exercise of the government’s power to enforce the criminal law. We shall, therefore, address the respective weight of these interests.

13. The Public Interest in The Integrity of the Government

As noted in Arbiv supra. [4], at 402-03:

A government that keeps its promises is a credible one. Repudiating its promises is liable to harm the government’s integrity in the public’s eyes, thereby tarnishing the fabric of the state’s public life…. A government that fails to keep its promises in the realm of the criminal law harms the integrity of the system of criminal law. Preserving this integrity constitutes an important public interest … indeed, a government that fails to keep the promises may find it difficult to make promises in the future, as members of the public shall refuse to believe these promises.

See also Crim. App. 2910/94 Yeffet v. The State of Israel [6], at 336.

Aside from this utilitarian perspective, there is additional facet to the public interest in its government’s integrity—the government’s fairness. We are not referring here to the individual’s interest that the government treat him fairly and respect its obligations towards him. That interest shall be addressed below. Here we are dealing with the interest in the legality of the government's actions. This interest demands that the government’s actions in imposing the law and enforcing it correspond to the principle of the rule of law. See HCJ 428/86 Barzilai v. The Government of Israel [7], at 622 (Barak, J.). There is a public interest in not conveying the impression that there are no limits to the government’s power. To this end, in R v. Latif [1996] 1 All. E.R. 353, 361[22], Lord Steyn noted the "public interest in not conveying the impression that the court will adopt the approach that the end justifies any means."

The application of these statements to this case is obvious. The government seeks to be released from an agreement which led to the release of the hostages unharmed and put an end to the riot in the military prison—a riot which may have otherwise deteriorated into a violent confrontation. We cannot ignore the fear that if a similar event was to occur, the authorities would find it most difficult to resolve the incident without casualties, as any promises they would offer not to press criminal charges would be met with distrust. This is liable to deprive the authorities of any practical option, save for the use of force, to put an end to such incidents. Such an option is liable to result in casualties, both injuries and fatalities, as was feared in this instance. As such, there is clearly a weighty public interest in the state keeping its promise under section 5 of its agreement.

14. A. Additionally, the interest of the individual that contracted with the authorities must be taken into account. This interest concerns the fulfillment of the reasonable expectation interest of the individual that his agreement be respected. At times, the individual has changed his position for the worse, in reasonable reliance on the agreement. Thus, releasing the state from its obligations under the agreement is liable to violate the individual’s expectation and reliance interests. This being the case, it is incumbent upon the authority to consider these interests. This interest was described in Arbiv supra. [4], at 403:

The expectation interest refers to the miscarriage of justice caused an accused who expected that the promises made to him be kept, and the authorities not deny him that promise.

The reliance interest refers to an accused who relied on the authorities’ promise, provided information, admitted to the charges, or otherwise changed his position. This requires that the accused be treated fairly—that his interests be protected. Allowing the authorities to be released from their obligations under the plea bargain agreement is liable to infringe these.

Today, following the enactment of the Basic Law: Human Dignity and Liberty, the degree of protection offered these interests has been heightened. The right to liberty is now constitutional. This directly affects the criminal justice system, which “is so intimately related to an individual’s personal freedom, so that it is only natural that the new balance struck between individual and society—reflected in the constitutional status granted human rights—influence criminal procedure.” Crim. Motion 537/95 Ganimat v. The State of Israel [8], at 421 (Barak, J.). As such, the Court recently recognized its authority to delay proceedings in criminal trials, when the matter contravenes our sense of justice and fairness. See Yeffet supra [6], at 370. The Court recognized its authority in this matter, having concluded that the Basic Law: Human Dignity and Liberty “redraws the boundaries of what is deemed due process, within the system … the human rights enshrined in the Basic Law also serve to influence the provisions of criminal procedure.” Id. at 368-69; see also HCJ 6781/96 M.K. Olmert v. The Attorney General [9], at 811.

Indeed, a decision to press criminal charges against an individual, despite an agreement not to prosecute that person, is liable to constitute a severe infringement of the right to due process, and this Court will exercise its authority to delay proceedings. Such authority has been exercised where a confession was provided in exchange for a promise, even when the promise was made by an agent who lacked the proper authority. R. v. Croydon Justices, ex parte Dean (1993) 3 All. E.R. 129 (Q.B.) [23]. Another case held that breaking a promise or a pardon proposal, made in exchange for the release of hostages held by a religious cult that sought to carry out a coup d’etat, may result in the exercise of this authority, if the promise in question was broken without justification. Attorney-General of Trinidad and Tobago v. Phillip (1995) 1 All. E.R. 93, 108 (P.C.) [24].

Were the interests of the petitioners infringed and, if so, to what extent?

B. All agree that the petitioners’ expectation interest was violated. The petitioners reasonably expected that the agreement would be respected. Releasing the prosecution from its obligations violates this expectation. This having been said, it should be noted that the petitioners were arrested one day after the agreement was reached. During the investigation, a number of the petitioners chose to avail themselves of the right against self-incrimination. This being the case, the circumstances suggest that, in practice, their expectation that the authorities would respect their obligation under section five lasted only briefly.

C. Let us proceed to the reliance interest. Petitioner number three in HCJ 5707/97, Vitali Novikov, argues that the investigation was conducted subsequent to the signing of the agreement but prior to the decision to prosecute. During this period, the authorities “extracted various statements from the inmates and some of them incriminated themselves and others.” The decision to prosecute was allegedly made after securing these confessions. This suggests that some of the inmates relied on the authority's promise to their detriment. In response, respondents maintain that all interrogations were conducted under a warning, and that most of the suspects invoked their right to silence.

This answer is insufficient in light of the fact that the interrogations were conducted under circumstances where the petitioners assumed that the agreement would be respected. This suggests a real possibility that the subjects of the investigation who cooperated were denied the right against self-incrimination, seeing as how the commitment not to prosecute caused them to believe that they had nothing to fear from the investigation. In this situation, it is doubtful that a standard warning—as distinguished from a clear warning that their agreement may not be respected—was sufficient to alert petitioners to the danger that their statements would be used as evidence against them. There is a real danger that these individuals’ right against self-incrimination was violated.

Under the circumstances, it appears that it would have been appropriate for the investigation to have been conducted after a clear decision to repudiate the agreement was made. At the very least, the subjects of the interrogation should have been made aware of the risk of prosecution despite the authorities’ commitment to the contrary. In this manner, it would have been possible to ensure the effectiveness of the right against self-incrimination. It should be noted that the Court handed down a similar ruling in Yeffet supra [6]. There, a police investigation took place after a Commission of Inquiry, under the Commission of Inquiry Law-1968, had investigated the same matter. Section 14 of that statute provides immunity for witnesses testifying before Commissions of Inquiry, so that testimony given before such commissions cannot be used in legal proceedings. In Yeffet [6], the Court held that the subjects of the police investigation should have been informed of their immunity under section 14. The reason was due to doubt whether “a subject who did not invoke his immunity and answered the police’s questions renounced the immunity of his own free will and in good faith.” Id. at 309. Likewise, unawareness of the risk of incrimination is liable to produce a situation where one inadvertently renounces to the right against self-incrimination.

The state’s response does not suggest that those interrogated were informed of the risk of prosecution despite the agreement. Even so, in and of itself, this is insufficient to allow us to conclude that there was a severe infringement on the reliance interest of those who cooperated with the investigation. No facts were supplied to indicate the extent of the damage caused by the absence of warning, and to which charges and petitioners such a claim would relate. Under these circumstances, we lack a basis for a finding of detrimental reliance, which would have required us to conclude that the state’s repudiation of its agreement was illegal.

15 A. These interests are confronted with the interest of pursuing criminal charges. “The public interest in having the accused stand trial is a central one and ordered modern life depends on its realization.” Arbiv [4], at 403; see also Yeffet supra. [6], at 369. As Y. Karp notes in her article The Criminal Law—Janus of Human Rights: Constitutionalization in Light of the Basic Law: Human Dignity and Liberty, 42 HaPraklit 64, 67-68 (1996) [31]:

Criminal law is an essential component of a properly functioning civilized society and its struggle to preserve its values. Criminal law reflects the degree to which a given society is committed and determined to protect its values. These values include the rule of law, public welfare, public order, security and social justice and morality, in addition to the individual’s peaceful existence and his ability to realize his human rights through peaceful means, as these constitute a basic value in a democratic state.

In light of the criminal law’s function in protecting social values and interests, it has been established that, when criminal behavior is involved, there is a presumption in favor of the public interest in prosecution. See HCJ 935, 940, 935/89 Ganor v. Attorney-General [10] at 509 (Barak, J.). Moreover, “the graver the charge, the greater the public interest in the accused standing trial.” Id. at 510. The severity of the crime may be reflected in its elements and in the punishment that the law provides. See Findings of the Commission Examining the Exercise of Judicial Discretion in Sentencing 12 (1998) [33]. At times, the very fact that a particular act or behavior is criminal indicates that its commission involves a severe breach of important social values, whose protection demands a social response in the form of criminal prosecution. The severity of the offence may be expressed in the concrete circumstances of its commission, such as premeditation, the substance of the offence, the intent to obstruct justice and the use of weapons. Id at 22-24. The crime’s severity may also be assessed by “how widespread the criminal behavior is. In addition, the destructive influence of a given act on a society and orderly government also points to the offence’s severity.” Ganor [10], at 510 (Barak, J.)

In light of this, we now discuss the severity of the offences attributed to the petitioners.

B. First, we turn to the normative aspect of the alleged offenses. The indictment attributes serious crimes to the petitioners, involving the breach of army discipline and rioting, the uttering of threats, and the use of violence against superiors. While we do not take the other crimes that the petitioners are charged with lightly, particular importance attaches to the offense of rioting. Few are the offences in the Military Jurisdiction Law that are deemed graver than this offence. The gravity of the offence is reflected in the harsh maximum sentence set out for this offence—fifteen years in prison. Under certain circumstances, when this offence is committed with arms or while uttering threats, the maximum punishment provided is a life sentence. Military Jurisdiction Law, § 46(A).

The elements of the offence also attest to its severity. “Rebellion” is defined under article 46(B)(1) of the Military Jurisdiction Law as a situation in which at least three soldiers armed with weapons, or using force against their superiors, disobey orders. We are dealing with a combination of several elements—the use of force, including potentially deadly force, against a commanding officer, in the context of the commission of an act, which must be coordinated collectively, by a number of individuals. Each of the enumerated elements constitutes an aggravating element, involving a severe breach of military discipline. The combination of these aggravating elements suggests the severity of the crime.

C. The severity of the offences attributed to the petitioners is further amplified by the particularly significant weight attached to the criminal prohibition against the violation of military discipline.

In relation to military service, the term “discipline” is defined as “deep-seated awareness of the authority of the commanding authority and the readiness to obey orders unconditionally—even under difficult and dangerous circumstances.” A. Mudrik, Court Martial 62 (1993) [30]. True, this value is not absolute. Indeed, under particular circumstances—when an order is blatantly illegal—the law sets out a duty not to obey. See Penal Law, § 34(13)(2); see also Military Jurisdiction Law, § 125. Nevertheless, no one disputes the fact that the observance of discipline is crucial to the military, which is judged by its ability to deal with extreme situations, where individuals risk their lives. Y. Dinstein stated the crucial nature of this interest in his book entitled The Defense of "Obedience to Superior Orders" in International Law 5 (1965) [32]:

An army by its very nature is founded on the basis of discipline. Discipline means that every subordinate must obey the orders of his superiors. And, when we deal with army, ordinary discipline is not enough. Military discipline is designed, ultimately, to conduct men to battle, to lead them under fire to victory, and, if and when necessary, to impel them to sacrifice their lives for their country…The success of the military objective, to wit, victory in battle, as well as the lives of many soldiers, and, above all, the security of the nation, seem, therefore, to compel "total and unqualified obedience without any hesitation or doubt" to orders in time of war and emergency, and complementary training and instruction in time of peace.

For similar statements, see the words of Justice B. HaLevy in HCJ 3/57 Military Prosecutor v. Milinky [21], at 213; see also HCJ 676/82 The Histadrut v. The Chief of Staff  [11], at 112).

This interest finds expression in the laws governing soldiers serving in the Israel Defense Forces ("IDF"). Thus, article 3 of the Israel Defense Forces Ordinance-1948, provides that it is incumbent on every soldier serving in the IDF to take an oath of allegiance to the State of Israel, to its laws and authorized government. The oath states the following: “I take upon myself, without conditions or qualification, to accept all instructions and directives given by the authorized superiors.”

Alongside the oath, the Military Jurisdiction Law sets out prohibitions, which include sanctions against those breaching army discipline. These include the prohibition against behavior disruptive to military operations, Military Jurisdiction Law, § 45, the prohibition against mutiny, Id., §§ 48-50, and prohibitions against refusing to obey orders and disobeying orders, Id., §§ 122-124. Some of these offences are severe, and are accompanied by long prison terms—in certain circumstances even life imprisonment. It should be noted that the petitioners are subject to these statutory norms since the Military Jurisdiction Law also governs those in military custody, Id., § 8(1), and those deemed to be “soldiers” for the purpose of the law, Id., § 16.

These prohibitions, whose purpose it is to protect army discipline, encompass a broad spectrum of offences, from relatively light offences to those that are grave and severe. The offence of rioting is found at the most severe end of this spectrum. A situation involving a number of soldiers using force against their superior, while collectively disobeying binding orders, is, for the military, intolerable. It reflects the breakdown of all discipline a complete repudiation of the basic values of the military. There is a clear public interest in using the criminal law to punish such an offence—particularly when it is accompanied by violent offences and threats against superiors.

D. One may question whether these values of army discipline apply in full force to military prison facilities, as they do to army units on active duty. One may argue that considerations underlying the duty of discipline, such as a soldier’s ability to deal with life-threatening situations, do not apply to inmates in military prison facilities, some of whom will not continue to serve in the military after serving their sentence. Indeed, the petitions reveal that at least some of the petitioners were discharged from army service and will not return to duty upon completion of their sentence.

This argument may be answered in two ways. First, military prisons are an integral part of the army. It would be artificial and dangerous to try to separate these facilities from the army in general. Sending the message that there are "islands" in the army that are not subject to the basic values of military service is liable to weaken these values. This may lead to repeated attempts to test the boundaries of various military frameworks, including combat units. We cannot draw distinctions between various army units, linking a unit’s “combat capabilities” to the value of discipline in it. The risks of such an approach are difficult to dismiss. As such, no distinctions should be made between military prison facilities and any other army unit for the purpose of imposing discipline.

Second, the value of discipline is important, not only because the petitioners are subject to the Military Jurisdiction Law, but also because we are discussing a prison riot. “Order and discipline are at the foundation of the prison system. In the absence of order and discipline—in the broad sense of these terms—no longer shall prisons be able to exist and the entire system will fall apart.” CA 4463/94 Golan v. Prisons Authority [12], at 173 (Cheshin, J.). In comparing prisons to other organizations in which discipline is a basic value, Justice Cheshin noted:

Prisons are similar to the army or the police, and the demands of order and discipline in a prison are necessarily more restrictive, if only due to of the nature of its population. Prisons house those who have broken the law, including dangerous and hardened criminals, many of whom are embittered and convinced that society has mistreated and wronged them, quarrelsome individuals, with a low threshold for incitement to violence, easily fired-up and lacking any motivation to help and be helped.

Id. See also Id., at 154-61 (Mazza, J.)

This interest finds expression in the special provisions set out in the army disciplinary code, alongside the penal guidelines found in the Military Jurisdiction Law. We are referring to the arrangement set out in the Military Jurisdiction Law (Military Prison Facilities)-1997, by which various punishments may be meted out by prison authorities in the event of a breach of prison discipline. Id, at §§ 59, 60. The regulations set out disciplinary punishments, such as the denial of rights to visits, letters, and cigarettes, solitary confinement, and even restricting parole eligibility by as much as twenty-eight days. It shall be noted that an inmate may also be tried for an offence under article 133 of the Military Jurisdiction Law (Failure to abide by Military Instructions) for certain disciplinary offences, including insulting a staff member or visitor, hitting a fellow inmate, or breaching a prison order or any other breach of instructions given by a superior or other prison staff member.

It therefore follows that the value of preserving discipline also applies in full force to prisons—particularly military prisons.

E. The gravity of the offence in question is further aggravated by the circumstances of the matter. The petitioners are charged with participating in a riot, committed by violent means against superiors. The rioting involved the taking of hostages, some of whom were tied and gagged. The riot was premeditated and coordinated by a large group of participants, using various weapons. All this in a military prison facility.

These serious circumstances serve to heighten the severity of the offence. Moreover, the use of violence and threats against prison staff and military superiors in itself constitutes a severe breach of prison discipline—even aside from the offense of rioting. Consequently, it is difficult to dismiss the severity of the deeds attributed to the petitioners and the public interest in their standing trial.

F. In their petition, the petitioners dwell on the motivating circumstances for their takeover of Company C. Do these offer any justification for their actions, which may serve to weaken or overcome the public interest in bringing the petitioners to trial?       

First, I will note that the framework of the hearing before the High Court of Justice makes it rather difficult to make factual findings regarding issues such as this, particularly when the parties do not agree on the facts. Without deciding the matter, it is my opinion that, to the extent that the motivating circumstances of the uprising can provide a defense for the petitioners—and to the extent that they may serve to lighten the punishment—they should be raised and the necessary facts should be presented to the military tribunal hearing the case.

To begin with, it is plain to see that the prison, and particularly Company C, was far more crowded than permitted. On several occasions it housed twice the number of inmates allowed in such a facility. It also appears that such a situation posed a threat to the inmates’ health. All agree that the physical conditions in the prison—an old structure, built during the British mandate—are difficult. On the face of it, this state of affairs is irreconcilable with the inmates’ right to dignity, enshrined in the Basic Law: Human Dignity and Liberty. See HCJ 540-546/84 Yosef v. Central Prison Warden of Judea and Samaria [13], at 573; Motion Crim. App 3734/92 The State of Israel v. Azami [14], at 84-85.

I find it highly doubtful that the minimum standards of prison conditions were indeed met in this instance. The possibility that these conditions contributed to the incidents at issue here should not be denied. At the same time, however, it should not be forgotten that the demands of the petitioners after taking over the facility did not even raise the issue of overcrowding. The rioter's demands touched on other aspects of their lives in prison. Regarding those claims, the IMP found some truth in the claim regarding the drills. It did not, however, find any basis in the other claims.

Furthermore, the evidence before this Court fails to indicate that the petitioners took advantage of the opportunities that the law afforded them to legally raise their grievances, prior to taking extreme measures. The petitioners assert that they sent a written request to the warden two months before the incident. However, even if such a request was in fact made—we note that a copy of the request was not attached to the petition—and even if this request did go unanswered—as the petitioners contend—this does not serve to justify the petitioners’ choice to resort to extreme measures. The petitioners could have turned to the courts, including the High Court of Justice, with their grievances regarding prison conditions. See HCJ 5133/97 Bitton v. The Chief Military Police Commander [15] (dealing with prison conditions in Compound 6, submitted on August 25, 1997, after the rioting). Indeed, all agree that, at the time of the incident, the inmates had access to the free services of the Military Public Defender, free of charge, had they chosen to bring their grievances to the courts.   

The petitioners, however, did not pursue this course of action. Instead, they chose to try to advance their cause by breaking all the rules, and through the use of violence. Bearing in mind the circumstances behind the riot—as far as this is possible through the evidence before us—I believe that the magnitude of the public interest in trying the petitioners stands firm.

G. Another factor in deciding whether the authorities can repudiate the agreement would be a change in circumstances after the time of the signing of the agreement. See Arbiv [4], at 403-05. Clearly, such a change may cause an agreement previously seen as serving the public interest to no longer be considered as such. Consequently, such a change may serve as an additional consideration in justifying the authorities’ release from their obligations. This having been said, it is important to emphasize that a change in circumstances does not constitute a decisive ground for releasing the authorities from their obligations. In the final analysis, the issue is the public interest that the authorities are charged with. Even absent a change in circumstance, the decision to repudiate an agreement may be deemed reasonable, when the agreement severely harms a significant public interest. HCJ 5018/91 Gadot Petrochemical Industries. v. The Government of Israel [16], at 784 (Netanyahu, J.). Similarly, it is said that the authorities may repudiate an agreement even if “the contracting was preceded by administrative negligence,” provided that a weighty public interest is at stake. Barak-Erez, supra. [27], at 183; see also HCJ 636/86 Jabotinsky Estate Workers Cooperative v. Minister of Agriculture [17], at 710.  Therefore, even in the absence of a change in circumstances, the authorities may still retain the prerogative to repudiate section 5 of the agreement.

To this we should add that, in this instance, a change in circumstances did occur between the time that the agreement was signed and the decision to repudiate it. The evidence before us reveals that at the time that the authorities decided to enter the agreement in question, those conducting the negotiations truly feared for the lives and safety of those besieged in Company C. This fear was based on the fact that the siege was a violent one, accompanied by the use of force and threats, the fact that the rioters were armed with various weapons, the determination they showed, and the fear that their judgment would be affected the longer the incident was drawn out. These circumstances, alongside the desire to prevent injuries and the loss of life, to a significant extent, compelled the army authorities to sign the agreement. These circumstances were no longer in force when they decided to repudiate it.

Given this, I am convinced that the analogy that petitioners sought to draw between this agreement, and between plea bargains and immunity agreements, is inappropriate. We are not dealing with an agreement concluded under circumstances allowing for reflection and consideration of the circumstances. Instead, the negotiation team was forced to make their decisions under severe pressure and concrete threats to human lives and safety. This did not allow for sufficient consideration of the options available to the negotiations team —whether to commit to refrain from pressing charges against the rioters and, if so, whether to qualify this commitment. The position was justifiably premised on the desire to protect the lives and physical integrity of those in the besieged compound.

A substantive change took place after the riot ended. At that stage, it became possible to examine the significance of the provision that provided that the rioting inmates would not be made to stand trial. The evidence before us suggests that such consideration and deliberation did indeed take place. It is therefore my opinion that, under exceptional circumstances the likes of those before us—in which an agreement was signed for fear of the loss of lives—it should be said that, after the moment of truth has passed, the circumstances have changed so as to justify a careful reassessment of the public interest.

H. These statements also answer another contention of the petitioners. Petitioners argue that an agreement with the rioters could have been reached even without a commitment to refrain from pressing charges. From this, petitioners ask the Court to conclude that the authorities committed to this obligation out of their own free will and not under the pressure of the circumstances at the time.

I do not agree. As noted, the circumstances of the incident gave rise to a concrete fear for the lives and safety of both the hostages and the rioters themselves. This is the only way to understand the circumstances and this is the way the military negotiation team understood them. Plainly put, the army authorities had no interest in promising not to prosecute the rioters unless making such a commitment was crucial to prevent the loss of life. As such, this claim of the petitioners does not reflect the concerns and considerations at the time, and should be rejected.

I. To summarize, the offences attributed to the petitioners involve a breach of the basic principles of the military and of prison discipline. Pressing criminal charges in response to such deeds is essential to prevent the dissemination of a dangerous message regarding the weakness of army discipline. The failure to press criminal charges in response to the riot—particularly when these acts involved the use of violence—is liable to encourage similar behavior in other prison facilities.

It shall be noted that there is evidence pointing to the fact that this fear is not negligible. The petitioners’ responses indicate that several serious breaches of discipline, which may be deemed riots, occurred in military prisons this past year. These incidents, organized by groups of inmates, involved violence and the destruction of property. Indeed, respondents make a point of stating that a riot attempt in another military prison occurred shortly after the riot in Compound 6 and was inspired by it. As such, we are dealing with a pattern of criminal behavior, liable to cause severe harm to ordered social life and good government. There is therefore a significant public interest in criminally prosecuting such behavior.

The Ruling

16. We have addressed aspects of the public interest which may justify allowing the authorities to repudiate section 5 of the agreement. We have also addressed the petitioners’ reliance and expectation interests. The issue that must now be decided is whether the authorities’ decision is reasonable. To this end, we are guided by the rule that the Court will not substitute its judgment for that of the authorities. Hence, the issue is not whether, under the circumstances of the incident, the Court would have opted for a different course of action, but rather whether the course of action chosen by the authorities is legal—this is to say whether it is within the parameters of reasonable options available to the authority in question.

To my mind the authorities’ course of action should not be deemed unreasonable—a finding that would require judicial remedy— notwithstanding the fact that a different solution may have been reached to end the riot. On the one hand, the case here involves a significant public interest in the authorities’ credibility, in addition to the interest that the promise made to the petitioners, that they would not be made to stand trial, be kept. On the other hand, there is a significant public interest in releasing the authorities from this commitment, given the severity of the offences attributed to the petitioners and in light of the circumstances surrounding their commission. Attaching the proper relative weight to each of the relevant factors is by no means an easy task. We are dealing with a multi-faceted case, involving complex facts. There are considerations and arguments pointing in opposite directions. The prosecution's difficult deliberations in deciding whether to repudiate the agreement are, as such, quite understandable. We must, however, reiterate and reemphasize that the power to make this decision—and the responsibility of shouldering its consequences—rests with the authorities, and only a decision that lies out of the parameters of reasonableness can justify the Court’s intervention in this matter.

I have considered the totality of the circumstances and concluded that the Court should not interfere with the decision not to respect the fifth provision of the agreement. In so deciding, it is not my intention to deny that the authorities could have very well reached a different decision, which the Court would presumably also not have interfered with. However, the mere existence of another reasonable option does not, in and of itself, constitute cause for interfering with the decision of the authorities which, as noted, also stands the test of reasonableness.

17. I note that my decision stands regardless of the argument raised in HCJ 5319/97, according to which the authorities’ decision fails to meet the tests of proportionality set out in our case law. See HCJ 4330/93 Gans v. The District Committee of the Tel-Aviv Bar Association [18]; HCJ 3477/95 Ben-Attiyah v. Minister of Education, Culture, and Sport [19]. According to this argument, the authorities are allowed to repudiate obligations that touch on violent offences attributed to the petitioners. They cannot, however, be released from their obligations relating to the offence of the takeover itself and the offences of extortion and the making of threats.

In my opinion, such a distinction lacks any basis. I noted above that there is a clear public interest in pressing charges for the offense of rioting, in light of its severity under the circumstances. Indeed, the distinction presented in HCJ 5319/97 is based on the understanding that the riot contained an element of a legitimate “outcry,” given the prison conditions. I dealt with this argument above, noting that the petitioners failed to factually back up this contention.

Fairness

18. Petitioner number 1 in HCJ 5319/97 argues that the failure to keep the promise of section five of the agreement supplies him with the fairness defense under the circumstances. This refers to the Court’s inherent power not to hear particular charges, when it cannot, as per Justice D. Levin in Yeffet supra. [6], at 370:

give the accused a fair trial or when hearing the case would offend our sense of justice and fairness, as the Court understands it. The determining test is the whether the authorities behaved intolerably. This refers to arbitrary behavior, involving persecution, oppression and abuse of the accused.

First, I point out that the place of this argument is in the trial court and not before the High Court of Justice. It has been held that for the High Court of Justice to grant such a petition

requires a clear and unequivocal factual basis revealing an extreme degree of arbitrariness in the exercise of the said power….In general, the "fairness defense" argument shall be considered as a "defense" during the criminal hearing before the court of first instance.

HCJ 1563/96 Katz v. The Attorney General [20], at para. 8. This standard has not been met here. 

HCJ 4542/02

Kav LaOved Worker’s Hotline

and others

v.

1.     Government of Israel

2.     Minister of the Interior

3.     Minister of Labour and Social Affairs

4.     Association of Contractors and Builders in Israel

5. Association of Flower Growers Agricultural Cooperative Society Ltd

The Supreme Court sitting as the High Court of Justice

[30 March 2006]

Before President A. Barak, Vice-President Emeritus M. Cheshin
and Justice E.E. Levy

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

Facts: The government of Israel adopted a policy of allowing foreign workers to come to work in Israel. The residence permits given to the foreign workers are conditional upon the foreign workers working for a specific employer (‘the restrictive employment arrangement’). Consequently, if the worker leaves his employer, he automatically becomes an illegal alien, and is liable to be arrested and deported. The petitioners attacked this policy, on the grounds that it violates the dignity and liberty of the foreign workers. It also undermines the bargaining power of the foreign workers in the employment market. The respondents replied that the restrictive employment arrangement is needed in order to ensure supervision of foreign workers in Israel and to make sure they leave Israel when their period of work ends. The respondents also argued that they have introduced a procedure for changing employers, but the petitioners claimed that this does not amount to a real change in the system.

Held: The restrictive employment arrangement violates the dignity and liberty of the foreign workers. This violation does not satisfy the requirement of proportionality in the limitations clause in the Basic Law: Human Dignity and Liberty. There is no rational connection between the restrictive employment arrangement and its declared purpose of supervising the foreign workers in Israel, as can be seen from the ever increasing number of foreign workers that remain illegally in Israel. The restrictive employment arrangement is not the least harmful measure that can be adopted. It is also disproportionate in the narrow sense, because the sweeping violation of the rights of the foreign workers is not proportionate in any degree to the benefit that is derived from the restrictive employment arrangement.

Petition granted.

Legislation cited:

Basic Law: Freedom of Occupation.

Basic Law: Human Dignity and Liberty, ss. 1, 2, 6(b).

Contracts (Remedies for Breach of Contract) Law, 5731-1970, s. 3(2).

Entry into Israel Law, 5712-1952, ss. 1, 2, 6, 6(1), 6(2), 15(a).

Entry into Israel Regulations, 5734-1974, rr. 5(e), 10(a)(4), 11(a)(4).

Foreign Workers Law, 5751-1991, ss. 1K, 1M(a), 1M(b).

Israeli Supreme Court cases cited:

[1]        LCrimA 10255/05 Hanana v. State of Israel (not yet reported).

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

[3]        CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[4]        CA 2781/93 Daaka v. Carmel Hospital [1999] IsrSC 53(4) 526; [1998-9] IsrLR 409.

[5]        HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [2004] IsrSC 58(6) 481.

[6]        HCJ 2587/04 Bucharis v. Hadera Assessment Officer (not yet reported).

[7]        HCJ 785/87 Afu v. IDF Commander in Gaza Strip [1988] IsrSC 42(2) 4.

[8]        CrimA 131/67 Kamiar v. State of Israel [1968] IsrSC 22(2) 85.

[9]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 54(1) 721.

[10]     HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[11]     CrimFH 6008/93 State of Israel v. A [1994] IsrSC 48(5) 845.

[12]     HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[13]     HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

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

[15]     HCJ 758/88 Kendall v. Minister of Interior [1992] IsrSC 46(4) 505.

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

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

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

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

[20]     HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[21]     HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2005] (2) IsrLR 335.

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

[23]     HCJ 6845/00 Niv v. National Labour Court [2002] IsrSC 56(3) 663.

Israel District Court cases cited:

[24]     AP (TA) 2036/04 Quijan v. Minister of Interior (unreported).

Israel National Labour Court cases cited:

[25]     LabC 1064/00 Kinianjoi v. Olitziki Earth Works [2004] IsrLC 35 625.

Israel Regional Labour Court cases cited:

[26]     LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment (not yet reported).

[27]     CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd (not yet reported).

[28]     LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd (not yet reported).

American cases cited:

[29]     Lochner v. New York, 25 S.Ct. 539 (1905).

Jewish law sources cited:

[30]     Leviticus 19, 33-34.

[31]     Exodus 23, 9.

[32]     Exodus 22, 20.

[33]     Rabbi Shelomo Yitzhaki (Rashi) on Exodus 22, 20.

[34]     Rabbi Shelomo Yitzhaki (Rashi) on Exodus 23, 9.

For the petitioners — E. Albin.

For respondent 1-3 — A. Helman, O. Koren.

For the fourth respondent — G. Seligson.

For the fifth respondent — Mr D. Avraham.

JUDGMENT

Justice E.E. Levy

An Israeli employer who wishes to employ in his business workers who are not Israeli citizens or residents is required to obtain a permit for this from the Foreign Workers Department at the Ministry of Industry, Trade and Employment. The workers that come to Israel, pursuant to a permit that is given to the employer, receive a permit to live here. The Minister of the Interior, by virtue of the power given to him under the Entry into Israel Law, 5712-1952, usually makes the residence permit given to foreign workers conditional upon the worker who comes to Israel being employed by the specific employer who applied to employ him. The employer also undertakes, for his part, to ensure that the worker leaves Israel when the employment relations are terminated. The name of the employer is stamped in the passport of the worker, and he is prohibited from working for another employer or from doing additional work. A breach of these conditions in the permit results in its expiry and consequently the foreign worker because an illegal alien (hereafter — ‘the restrictive employment arrangement’). Is this arrangement lawful? That is the main question that we are required to decide within the framework of this petition.

The petition

1.    The petitioners are human rights organizations. Their petition was brought before this court in 2002. The background to filing it was government decision no. 1458 of 17 February 2002, in which it allowed six thousand foreign workers from Thailand to be brought to Israel to be employed in the agricultural industry, notwithstanding the ‘closed skies’ policy that had been decided upon by the government, in which it determined that no more foreign workers would be allowed to enter Israel. The petitioners asked us to order the respondents in an interim order to refrain from bringing in additional workers as long as the restrictive employment arrangement remained in force, on the ground that this arrangement seriously violates the rights of foreign workers.

In his decision of 29 May 2002, Justice Rivlin held that there was no basis for making such an interim order, and the petition was heard before a panel. On 22 May 2003 an order nisi was made in the petition. From the filing of the petition until the present, when the time to decide it has arrived, the respondents made various changes to the restrictive employment arrangement. These changes were contained in internal guidelines of the Ministry of the Interior, and subsequently in government decisions. According to the petitioners, these changes are not satisfactory. The changes that they purport to make to the restrictive employment arrangement are not real changes, and they leave unchanged many of the problems that arise from it. We will therefore turn to examine the petitioners’ arguments and the respondents’ position on them, and then go on to examine the changes that were made to the restrictive employment arrangement.

The petitioners’ arguments

2.    According to the petitioners, the policy adopted by the respondents with regard to the employment of foreign workers in Israel is unreasonable in the extreme. It leads to a serious violation of the human rights of foreign workers — their dignity, liberty and their rights under employment law — and it makes them the property of their employers. It negates the right to freedom of occupation in its most basic and fundamental sense. It leads to the creation of a class of inferior workers, which is tantamount to a form of modern slavery. It is based on the outlook that the worker is merely the property of his employer and not an autonomous entity with an inherent right to human dignity.

A preliminary argument raised by the petitioners is that the restrictive employment arrangement is ultra vires. This is because s. 6 of the Entry into Israel Law, which provides that the Minister of the Interior is entitled ‘to make conditions for giving a visa or a residence permit’ and also ‘to stipulate in a visa or a residence permit conditions that should be observed in order that the visa or the residence permit will be valid,’ does not allow the Minister of the Interior to make entry visas and residence permits given to foreign workers in Israel conditional upon working for a specific employer only. The serious violation of the basic rights of foreign workers caused by the restrictive employment arrangement leads, according to the petitioners, to the conclusion that express and unambiguous statutory authorization is required in order to implement it, and the general authorization given to the Minister of the Interior in the Entry into Israel Law is insufficient.

3.    As we have said, the main argument of the petitioners concerns the violation caused by the restrictive employment arrangement to the dignity and liberty of the foreign worker, and its serious consequences concerning the weakening of his bargaining power in the Israeli employment market. The creation of a connection between the legality of the residence of the foreign worker in Israel and his working for a specific employer, according to the petitioners, gives the employer the ability — by means of the simple act of dismissing the worker — to make the residence permit that he holds expire, and to turn him into an illegal alien who is liable to be arrested and deported from Israel. This makes the dependence of the foreign worker on his employer absolute, and the disparity of forces that in any event characterizes employment contracts to which foreign workers and Israeli employers are the parties is increased.

Foreign workers who come to Israel in search of work, according to the petitioners, are usually normative persons who are in serious economic distress. They are able to come, in the vast majority of cases, by virtue of the assistance provided by manpower companies and other agents. Within the framework of this assistance, the worker is frequently required to pay large sums of money, which he undertakes to repay from his work in Israel, and this sometimes requires the mortgaging of his property in his country of origin. Against this background, it is clear that to lose the permit to reside in Israel — a consequence that can easily be brought about by any employer — has very serious consequences. It can cause the foreign worker complete economic destruction. It can result in the loss of his property and a life in the shadow of a huge debt that he will never be able to repay.

According to the petitioners, this excessive power wielded by the employer provides fertile ground for grave phenomena such as taking passports away from workers, imprisonment, non-payment of wages, violence, exploitation and treating workers inhumanely — phenomena to which many foreign workers are compelled to become accustomed, since they cannot object because of their desire not to lose the permit to reside in Israel. On the other hand, workers who choose to leave their employers against a background of these grave phenomena find themselves imprisoned and deported. This creates an unreasonable situation, in which workers who seek to realize their inherent freedom to be released from an employment contract — especially in circumstances of exploitation and abuse on the part of the employer — become criminals who are liable to be arrested at any time. In this way the basic right to be released from an employment contract — a right given to every worker — is violated. The petitioners claim that this serious employment reality also has a significant effect on the conditions of work of Israeli employees in those industries where foreign workers are employed.

The petitioners further argue that the restrictive employment arrangement violates the freedom to enter into contracts — a right that applies particularly with regard to an employment contract, which guarantees the basic social rights of the worker. It negates the economic bargaining power of the foreign worker in the Israeli employment market, which is in any case weak, and therefore the employment contracts made in view of this are clearly contrary to public policy and involve prohibited economic duress.

4.    The petitioners also argue that in many cases the worker does not know that by working for a specific employer he can be in breach of the terms of his permit. This mainly occurs in situations where the worker (particularly in the construction industry) is ‘moved’ from one project to another on the instructions of his employer or the manpower company — sometimes to an employer who never received a permit to employ foreign workers. In this manner the foreign worker becomes a criminal without his knowledge and without doing any voluntary act.

It is also alleged that the restrictive employment arrangement violates the right of the foreign worker to medical insurance, a violation that is caused as a result of the termination of the employment for the employer, whether voluntarily or under duress, which means the loss of medical insurance that the employer is liable to pay for the worker; the worker’s right of access to the courts is also violated, since it is reasonable to assume that a worker who wishes to sue his employer will do so only after he has resigned from working for that employer. The significance of leaving his work for that employer is that he loses his permit to reside in Israel, so the restrictive employment arrangement should be regarded as depriving foreign workers of any real possibility of bringing their cases before the courts.

5.    According to the petitioners, the employment of foreign workers in Israel should be effected by means of employment permits for a whole industry, so that the residence permit will be given to the foreign worker (and not to the employer) and it will be conditional upon him working in a specific industry and not for a specific employer. In consequence, the employers in that industry will be compelled to offer the workers wages and social benefits that will compete with other employers. This will allow market competition, and the workers will be given a basic bargaining power. At the same time, this arrangement will allow employers to employ other workers in place of those who have left, whereas the state’s interest in supervising and monitoring the employment of foreign workers in Israel will be realized by means of setting up a registry to which the foreign workers will report their place of work. This arrangement, according to the petitioners, properly balances the various considerations and interests, and is similar to the arrangements practised in many countries.

The position of respondents 1-3

6.    The position of respondents 1-3, who are the government, the Minister of the Interior and the Minister of Industry, Trade and Employment[1] (hereafter — ‘the respondents’) is that the policy adopted by them with regard to the manner in which Israeli employers employ foreign workers is reasonable and reveals no ground for intervention.

In their reply, the respondents described the constraints facing the state in its attempt to contend with the phenomenon of illegal migration into Israel. In recent years, it is alleged, many foreign nationals who were allowed to enter Israel for a limited period, and for the purposes of certain work only, settled here without a permit, while leaving the work for which they were originally given a residence permit. Against this background, the respondents argue, the need to supervise the entry of foreign workers into Israel and their residence in Israel becomes acute.

Even the very employment of foreign workers in Israel, according to the respondents, irrespective of the question of the legality of their residence, is a policy that involves a heavy price. Employment of this kind admittedly involves immediate economic advantages for employers and the economy, but from a broad and long-term perspective it is argued that it has negative and harmful ramifications. Thus, for example, the employment of foreign workers is likely to result in a change in the structure of employment and wages, harm to the weaker sectors of the population that compete with foreign workers for places of work, the loss of foreign currency, the creation of a dependence on ‘importing’ cheap manpower and various social problems. In view of these negative ramifications and in view of the dimensions of the phenomenon of illegal residence in Israel, the respondents argue that it is clear that restrictions and supervision are required both for the actual permits for foreign workers to enter Israel and also for the specific work with particular employers. In addition the respondents argue that measures need to be adopted in order to ensure that the workers leave Israel when their residence permit expires.

7.    The respondents reject the petitioners’ claim that making the residence permit given to the foreign worker conditional upon working for a specific employer frustrates the possibility of leaving the employer. In the initial reply to the petition, which was filed on 28 November 2002, they told us that the Population Director at the Ministry of the Interior issued a new procedure that regulates the change of employer by foreign workers. It was argued that this procedure — the ‘change of employer procedure’ — does indeed allow workers to leave the employer whose name is mentioned in their permit and to look for another employer, subject to the conditions and requirements stated therein. In their reply, the respondents also said that the aforesaid procedure was distributed to the Population Administration offices around Israel, and that it is going to be translated into the languages spoken by foreign workers. They say that when the translation work is completed, the procedure will also be distributed to the foreign workers themselves. The respondents further argued that the state is taking steps to find an alternative arrangement in the field of employing foreign workers in Israel that will not be based on restricting the workers to their direct employers. Notwithstanding, until this alternative arrangement is formulated — a professional committee set up by a government decision is working on this — there is no possibility of changing the existing arrangement, in view of the necessity of supervising the residence and work of foreign workers in Israel.

The respondents claim that the change of employer procedure undermines the argument that foreign workers are prevented from changing employers and that as a result their rights to dignity and liberty are violated. With regard to the violation of the freedom of occupation of foreign workers, it is argued that this right is only given to citizens and residents of the State of Israel. However the respondents emphasize that even if it is found that restricting the change of employer violates basic rights of the foreign worker to dignity and liberty, this violation is constitutional. It is done pursuant to statute, since the duty to obtain the approval of the Ministry of the Interior to change an employer is duly enshrined in the Entry into Israel Law; its purpose — supervision of the employment of the foreign workers — is a proper one; similarly, the change of employer procedure sufficiently takes into account the ‘human and public interest’ not to restrict a person to his employer and it reflects a proper balance between this and between competing interests. The respondents also emphasize, in this respect, the conflicting interest of the employers in ‘restricting’ their workers to them, since frequently — especially in the nursing industry — they too are numbered among the weaker sectors of society, in a manner that justifies preventing their foreign workers from ‘leaving them arbitrarily.’

8.    The respondents reject the argument of the petitioners that the restrictive employment arrangement was enacted ultra vires. The clear language of s. 6 of the Entry into Israel Law, it is argued, does not leave room for doubt that the Minister of the Interior is entitled, on the face of the matter, to make conditions for giving a visa or a permit. In any case, the respondents argue, it is well-known that the discretion of the Minister of the Interior under the Entry into Israel Law is very broad, and this is inconsistent with the restrictive interpretation argued by the petitioners.

The change of employer procedure and the positions of the parties with regard thereto

9.    In the decision of this court on 1 December 2002, it was held that in view of the introduction of the change of employer procedure, which was formulated, as aforesaid, after the petition was filed before us, it was desirable to ascertain how it was being implemented de facto. The hearing of the petition was postponed by four months, and the parties were asked to file supplementary statements with regard to the manner in which the aforesaid procedure was being implemented.

In a very general manner it can be said that the procedure enshrines the possibility of changing an employer, and it directs the officials of the Population Administration office with regard to the manner of handling requests of this kind. The procedure makes the granting of a request of a worker to move from one employer to another conditional upon various requirements, and it imposes certain exceptions. The following are the main conditions, which are enshrined in paras. 2 and 3 of this procedure:

‘b. Conditions and requirements

b.1 The person filing the request should file a request before he leaves the current employer.

b.2 If a worker is dismissed or his former employer has died or he has been compelled to leave his former employer, without a possibility of applying before he left to the Population Administration office, his request may be accepted provided that he comes to the office immediately after leaving the former employer.

     It should be emphasized that this procedure does not apply to a worker who is caught when he is not working for his registered employer and/or as an illegal alien and only after he is arrested does he request to move to another employer.

b.3 The person filing the request should file a request for a residence permit of the b/2 type. If the worker already has a new employer, who satisfies all the conditions required in order to employ workers and the office sees fit to approve the move immediately, the worker can directly file a request for a residence permit of the b/1 type.

…

b.5 The person filing the request should present a foreign passport that is in force for six months more than the required period of the permit (assuming that a b/2 type permit is given).

…

b.7 The worker should be asked for an explanation of why he is interested in stopping his work for the current employer…

…

b.8 If the worker also has a letter from the employer, it should be received. If the worker does not have such a letter, the information should be received directly from the worker and where necessary a telephone call may be made to the manpower company through which the worker was employed and/or to the former employer.

…

c.  A worker who satisfies all of the aforesaid conditions shall receive a residence permit of the b/2 type for a month, unless one or more of the following exceptions applies to him:

c.1 His residence is capable of endangering public safety or public health.

c.2 He has committed an offence against the laws of the State of Israel and for this reason the application should not be approved.

c.3 The case is one of a worker who has worked in Israel with a permit for a period of four years or more and therefore his request for a change should not be approved (it is possible to allow him to complete the period of his employment with his current employer).

c.4 The case is one of a worker who has changed employers several times and therefore there is no basis for approving his request for a further change, all of which while exercising discretion and subject to the circumstances of each case.

c.5 There is a certain restriction on providing the service in the Aviv (foreign worker) system.

c.6 His first degree family members — a spouse, mother, father, son, daughter — are present in Israel.

c.7 Another reason because of which the worker’s request to extend his residence permit for his current employer should be refused.’

In a supplementary statement of 4 May 2003, the petitioners argued that the implementation of the change of employer procedure had encountered substantial difficulties. This statement was supported by the affidavits of seventeen foreign nationals who worked in Israel in the nursing, manufacturing and construction industries. According to what was argued in the supplementary statement, the change of employer procedure was not published, translated or distributed among the various Population Administration offices, and consequently it is not being implemented by them de facto.

10. On the merits the petitioners argue that even if the change of employer procedure were to be implemented de facto, it still would not be capable of remedying the defects that lie at the heart of the restrictive employment arrangement. According to their approach, the rule that applies to the employment of foreign workers is still that they are attached to a specific employer, and the change of employer procedure is no more than a narrow and ineffective escape channel. The procedure burdens the  workers with bureaucratic difficulties and insurmountable obstacles, and in practice there is no possibility of the worker changing employer by means of his own efforts, but only with the help of outside parties and human rights organizations; the process of ‘freeing’ the worker from the employer involves the employer himself and the manpower companies, and these are parties who have no interest in helping the worker to change his employer; it is not designed to deal with the phenomenon of the ‘moving’ of foreign workers by their employers and manpower companies, which means that the worker becomes an illegal alien against his will and without his knowledge. The arrangement still leave the employer with an incentive to confiscate the passports of the workers employed by him, since he is obliged to ensure that they leave Israel as a condition for employing new workers in their stead, in a manner that prevents them from acting on their own in order to arrange the change of employer legally. The procedure cannot therefore solve the problem of turning the foreign workers into illegal aliens against their will. In addition, the procedure increases the dependence, which in any case is considerable, of the foreign workers on the manpower companies with whom they are connected in so far as finding an alternative place of work is concerned, especially in the nursing industry. But the problem is that the manpower company — which has already been paid the agent’s fee with regard to the foreign worker coming to Israel and receiving an entry visa and residence permit — has no interest in finding alternative employment for the worker or in improving his conditions of work, and it may, for various reasons, even refer workers to work in places in which they are not allowed to work according to the permit in their possession, and thus these workers become illegal aliens without their knowledge, sometimes even from their first day in Israel. It is not surprising therefore that the manpower companies do not inform the workers of the procedure nor do they act in accordance with it. Moreover, the arrangement still leaves the employer with considerable power, since the initial linkage between the legality of the residence of the worker in Israel and the identity of the employer remains unchanged. It is argued that this linkage is exploited by many employers. Thus, for example, from the affidavits that were attached to the supplementary notice of the petitioners it transpires that in certain cases workers who came to Israel were asked to pay their employer a large sum in order to be employed by him, so that the employer could repay the amount that he paid to the manpower company.

11. The respondents reject these arguments of the petitioners. According to them, most of the difficulties of which the petitioners complain derive from the relationship between the foreign workers and the manpower companies, and they do not indicate any inherent problem as alleged in the change of employer procedure. The respondents are aware of the complex nature of the relationship between the foreign workers and the manpower companies, and they confirm the claims of the petitioners with regard to their charging the workers large amounts of money for coming to Israel. But according to the respondents, the linkage that is created de facto between the foreign worker on the one hand and the manpower company and the employer on the other as a result of those financial arrangements is of greater strength than the linkage created between the parties as a result of the change of employer procedure. Finally the respondents argue that the mere fact that the manpower companies do not act lawfully — such as when they refer a worker to an employer who does not have a permit to employ a foreign worker — has no relevance to the reasonableness of the procedure itself.

With regard to the question of the foreign workers’ knowledge of the existence and content of the procedure, the respondents claim that the procedure was distributed in February 2003 and although there might have been some ‘teething problems’ in implementing it, it is now properly implemented — with great flexibility — by the officials of the Population Administration offices.

Additional respondents

12. Additional respondents in the petition are the Association of Contractors and Builders in Israel and the Association of Flower Growers Agricultural Cooperative Society Ltd, which are organizations that incorporate employers in industries where foreign workers are employed. The position of the Association of Contractors and Builders with regard to the restrictive employment arrangement is that there is no inherent fault in it, and that most of the harm caused to the rights of the foreign workers derives from the relationship between the workers and the manpower companies. According to the Association of Contractors and Builders, the fact there are a few employers who violate the rights of their workers — and these should be brought to trial and subjected to the norms prescribed in the protective legislation — does not imply anything with regard to employers as a whole. A changeover to a restrictive industry arrangement will not, according to the Association of Contractors and Builders, result in an improvement of the employment conditions of the foreign workers, and it will upset the delicate balance between the needs of the economy, the needs of the employers and the needs of the workers in such a way that it will caused serious harm to the construction industry. According to the Association of Contractors and Builders, there is a deliberate shortage of foreign workers in the construction industry, a shortage that is intended to encourage Israeli workers to work in this industry, and therefore the introduction of competition between employers for the employment of foreign workers will harm employers who cannot offer conditions that are as good as the conditions offered by other employers. Admittedly, they explain that it may lead to an improvement in the status and conditions of work of the foreign workers, but the government’s decision to allow foreign workers to come to Israel was not intended, according to its purpose, to benefit these workers, but rather to prevent the collapse of the construction industry. Moreover, the restrictive industry arrangement will not provide a solution for employers whose workers ‘abandon’ them, and therefore a proper solution to the problems raised in the petition is to ensure the enforcement of the protective legislation against employers who act in violation thereof.

13. The Association of Flower Growers also presented its position on the questions raised by the petition, and especially with regard to the arrangement of employing foreign workers through corporations, an arrangement that was recently adopted in a government decision with regard to the building industry. When we consider this procedure below, we will also comment on the position of the Association of Flower Growers concerning it.

The restrictive employment arrangement — the normative framework

14. The question of the entry of foreign workers into Israel for the purpose of employment is governed by the Foreign Workers Law, 5751-1991, and the Entry into Israel Law. Section 1M(a) of the Foreign Workers Law provides that the employment of a foreign worker requires a written permit from the supervisor (a civil servant who is appointed as the manager of the government department that was formed pursuant to government decision no. 2327 on 30 July 2002, which is the Foreign Workers Department at the Ministry of Industry, Trade and Employment), and s. 1M(b) provides that permits for employment as aforesaid should be given after taking into account factors concerning the work market in the various work sectors and employment areas.

15. Under the Entry into Israel Law, the entry into Israel of someone who is not an Israeli citizen is effected by means of a visa, and his residence in Israel is in accordance with a residence visa (s. 1 of the Entry into Israel Law). The Minister of the Interior, who is the minister responsible for implementing the Entry into Israel Law (s. 15(a) of the Entry into Israel Law), is competent to give visas and permits as aforesaid (s. 2 of the Entry into Israel Law). The minister is also competent to make these conditional. Section 6 of the Entry into Israel Law, which is the main provision of statute around which this case revolves, provides the following:

As stated, by virtue of the general power to make visas and residence permits conditional, the Minister of the Interior is accustomed to making the visas and the permits (hereafter, for short — ‘the permit’) that are given to foreign workers conditional upon working for a specific employer whose name is stamped in the permit, so that the worker who receives a permit may work for this employer only. The worker is not entitled to take on any additional work, and if he wishes to leave his employer, he must turn to the Population Administration Office and apply to change his employer and amend the licence accordingly. The employer is required, for his part, to sign a written undertaking in which he undertakes, inter alia, that the foreign worker will be employed only in the work for which he received the permit and that he will not be employed by another employer without the approval of the Minister of the Interior. The employer is also liable to ensure the worker leaves Israel when he finishing working for him (r. 5(e) of the Entry into Israel Regulations, 5734-1974). A breach of the condition with regard to working for the employer whose name is stated in the permit — such as by resigning or going to work for another employer — results in the expiry of the validity of the residence permit (rr. 10(a)(4), 11(a)(4) of the Entry into Israel Regulations).

16. Applications of workers to change employer and amend the permit are governed by the ‘change of employer procedure,’ which has been formulated by the Ministry of the Interior as discussed above. For the purpose of completing the picture, it should be noted that the change of employer procedure is supplemented by another procedure, which is the ‘closed skies procedure,’ which was determined as a result of the government decision not to allow any more foreign workers to come to Israel. The closed skies procedure allows, in certain cases, workers who have been arrested for unlawful residence to be released from arrest and to obtain work with another employer, provided that they have been in Israel since no earlier than 1 January 2001, and provided that they have not ‘absconded’ from their former employers (i.e., left their work without giving prior notice of this or obtaining the approval of the Ministry of the Interior for this), which has the purpose of providing a ‘solution for employers that have a shortage of workers because of the new policy.’

The arrangement of employing foreign workers through licensed manpower corporations and the positions of the parties with regard thereto

17. On 30 April 2002 the Minister of Finance appointed an inter-ministerial team whose task was to determine principles for a new arrangement in the sphere of employing foreign workers in Israel. The inter-ministerial team submitted its recommendations on 15 August 2004 (hereafter — ‘the recommendations of the inter-ministerial team’), and they were adopted by government decision no. 2446 that was adopted on the same day, with regard to the construction industry only.

The recommendations of the inter-ministerial team are that the method of employing foreign workers in Israel should be based on a new employment model through licensed manpower corporations. According to this model — which it was recommended to implement with regard to the construction and agricultural industries only — permits to employ foreign workers would no longer be given to employers on an individual basis. Instead, the foreign workers that would be allowed to work in Israel would be employed by corporations that are licensed to employ foreign workers in a specific industry. The number of these corporations would be limited, and they would be licensed to employ a defined number of foreign workers, which would vary between 500 and 2,000. Giving the licence to the corporation would be made conditional upon the payment of a licensing fee to the state treasury, in an amount that will reflect the difference between the cost of employing a foreign worker and the cost of employing an Israeli worker. The licensed corporations will be the party liable to pay the workers their wages and to give them the social benefits to which they are entitled under the law. With regard to the latter issue, it was proposed that a duty should be imposed to pay a minimum wage to the foreign worker on a scale of 236 hours of work per month (which includes 50 hours overtime according to a calculation of a minimum wage). At the same time, it was decided that the employer should have the obligation of keeping records of the hours worked by the worker, and to the extent that the worker actually works more hours, the employer should be obliged to pay him wages that are not less than the minimum wage for the actual amount of work.

18. It was also recommended that the corporation should be liable to make a provision each month in an amount equal to the maximum amount that can be deposited in a fund for foreign workers, under the provisions of s. 1K of the Foreign Workers Law, while allowing the corporation to deduct a part of that amount from the worker’s wages. The amount that would be accumulated in this fund would be given to the worker when he leaves Israel at the end of the period of his lawful work here, and this would serve as an incentive for foreign workers to leave Israel. It was also recommended that the workers would be given the right to change the actual employer and also to change the licensed corporations, as long as the work is in the industry in which the worker was permitted to work, in such a manner that would cancel the restriction of the worker to his employer. The committee further said that after debate it did not see fit to recommend the absolute cancellation of the restrictive employment arrangement:

‘The committee held a thorough debate on the possibility of cancelling the “restrictive” arrangement entirely and allowing the workers to work directly for the actual employers and not for licensed corporations. The committee was of the opinion that giving absolute freedom to the foreign workers would not result in a sufficient increase in the cost of employing the foreign workers and a reduction in their exploitation, since the foreign worker, as a worker that is not organized and that is operating in an environment that is not his natural environment, cannot demand a high price in return for his work potential. It is also clear that it will not be possible to maintain effective supervision so that the rights of foreign workers are maintained, as well as supervision of the number of workers and the payments of fees and charges for them, when there will be thousands of employers of foreign workers in Israel and there will be an unceasing movement of workers from one employer to another. The free movement of foreign workers between employers will also prevent any practical possibility of accumulating for the foreign worker amounts that will be given to him only when he is about to leave Israel, and this will prevent the use of one of the effective incentives for removing foreign workers from Israel (p. 36 of the recommendations of the inter-ministerial team).

It should be noted in this context that with regard to the licensing of manpower corporations the inter-ministerial team also recommended that the licence that would be given to the corporation would be made conditional upon the following:

‘1. The corporation shall allow free movement of every foreign worker registered with it between actual employers in the industry for which the licence was given, as the foreign worker wishes, provided that the actual employer whom the worker wishes to move to is indeed actually prepared to employ the worker.

2.  The corporation shall not prevent movement of a foreign worker whom it employs to another licensed corporation in the same industry, if the worker wishes this and the other corporation agrees to it…

3.  The corporation shall pay each of the workers his wages and every ancillary payment on time…

4.  The corporation shall pay each of the workers the benefits that it is obliged to provide under any law…

5.  The corporation shall provide every new worker who is employed by it with information concerning the rights of the worker, in a language that the worker understands.

6.  The corporation shall undertake not to take any unlawful measures against foreign workers, such as violence, false imprisonment or holding back a passport, nor to ask the actual employer to adopt any such measures or to cause the actual employer to do this in any other way.

7.  The corporation will locate for the foreign worker places of work that it wishes to offer him; the corporation will offer the worker the places of work that were located, including information on the identity of the actual employer, the place of the work, the type of the work, the worker’s wages, the work conditions, the period of the work and the place where he will live; after the worker is presented with the places of work as stated, the worker shall choose where he is actually interested in working and he will be referred to that place of work…’ (p. 39 of the recommendations of the inter-ministerial team).

Notwithstanding, the inter-ministerial committee saw fit to decide — with regard to a worker changing his employer — that since such a change involves an accounting with regard to the licence fee and additional bureaucratic procedures, a change of employer ‘cannot be done with unlimited frequency, but a reasonable time shall be determined, in coordination with the attorney-general, from the date of the foreign worker starting to work for that licensed corporation, and only at the end of that time will the worker be able to change over to work for another licensed corporation’ (p. 47 of the recommendations of the inter-ministerial team). Later it was decided, within the framework of the agreement reached between the Ministry of Industry, Trade and Employment and the Ministry of Finance on the one hand and the Association of Contractors and Builders in Israel on the other, that a change of licensed corporations would be possible once every three months (revised statement of respondents 1-3 of 21 February 2005).

19. With regard to the obligations for which the actual employer is liable to the worker, the inter-ministerial committee recommended the adoption of the model provided in the Minimum Wage Law, 5747-1987, which imposed on the actual employer of the worker an obligation to give the worker the employment conditions to which he is entitled. It was also recommended that the government policy with regard to the prohibition of bringing additional foreign workers to work in Israel (the ‘closed skies’ policy) would be left unchanged, and that the department at the Ministry of Industry, Trade and Employment would appoint a complaints commissioner for foreign workers, to whom foreign workers could turn with complaints concerning a violation of their rights.

20. The petitioners are not happy with the employment arrangement through manpower corporations (hereafter — ‘the corporations arrangement’). According to them, this arrangement will create a new form of restriction, whose ramifications may be worse than those of its predecessor. First, the petitioners argue, the corporations arrangement does not apply to workers in the nursing industry, who will continue to be employed in accordance with the previous arrangement, whereas its success depends on the continuation of the ‘closed skies’ policy, since the bargaining power of the foreign worker will decrease significantly if the entry of additional foreign workers into Israel is allowed. On the merits, the petitioners argue that the corporations arrangement purports to create an artificial work market for workers of the manpower corporations, according to which the foreign worker will be bound to the manpower company instead of being bound to the actual employer. Since the manpower companies are companies whose purpose is to make a profit, the petitioners argue, it can be expected that they will make it difficult for workers to move from one corporation to another by means such as refusing to provide information of this possibility, taking the worker’s passport, and the like. In addition, in view of the fact that the wages of the workers are paid by the corporation and not by the actual employer, there is no meaning to offers of higher wages from actual employers, and it can be expected that any additional wages that may be offered will not find their way into the worker’s pocket. In addition, licensing a limited number of manpower companies raises a concern that a cartel will be created, with the result that manpower companies will coordinate among themselves the amount of the workers’ wages and their conditions of employment. Coordination of this kind will make the possibility of changing manpower companies a meaningless fiction, and the same is true of the rationale behind increasing competition in the foreign worker employment market.

 The petitioners complain also of the high amount of the licensing fees that the corporation is required to pay for employing each worker. This high amount, it is argued, creates an incentive for the workers and the actual employers to enter into a contract outside the corporations arrangement, in such a way that it will be difficult to enforce compliance with the protective legislation by employers of foreign workers in an effective manner. In addition, the amount of the licensing fees raises a concern that these will be ‘passed on’ to the workers and the actual employers.

21. The Association of Flower Growers, which is the fifth respondent in the petition, also sought to present its position with regard to this new arrangement. According to the position of the Association of Flower Growers, as it was presented in an affidavit that was filed in this court on 29 January 2004, the corporations arrangement cannot solve the problems raised by the petition. The Association of Flower Growers said that it supports the petitioners’ position that there should only be a restriction to a particular industry, so that the worker will not be restricted to his specific employer and workers will be able to change employers. Adopting the corporations arrangement, according to the Association of Flower Growers, will make the workers dependent on the corporations — instead of cancelling their dependence on the employers — in a manner that is likely to make the position of the foreign workers worse in comparison to their current position. It argues that a permit should not be given exclusively to several corporations, while preventing the employers from receiving one, since this will force the agency of the manpower companies upon the work market. This arrangement gives the manpower companies great power, which is likely to be abused; it increases the dependence of the foreign workers on the corporations and reduces even further their bargaining power; it distorts the employment relationship by creating an artificial distance between the worker and his direct employer.

22. The respondents reject these arguments. With regard to the petitioners’ arguments concerning the nursing industry, the consistent position of the respondents is that the nursing industry is different from the other industries in which foreign workers are employed. First, it is argued, there is no possibility of having a ‘free market’ in the nursing industry, because of the need to examine the specific entitlement of each patient that requires nursing. Second, as aforesaid, the position of the respondents is that there is great difficulty in cancelling the connection between the worker and the employer in the nursing industry, in view of the fact that the result of this will be that certain persons who require nursing services will not be able to employ a foreign worker. On the merits of the corporations arrangement the respondents make it clear that the department that deals with foreign workers will be very careful to ensure that workers can move freely from one licensed corporation to another, and that corporations that do not allow their workers to move as aforesaid will be liable to major sanctions, including the loss of their licence. The respondents also say that they do not entirely agree with the petitioners’ assessment that the proposed arrangement does not create an incentive for transferring the profits of the manpower corporation to the foreign worker, since it can be expected that the free movement between the licensed corporations will result in an increase in the wages of the worker. In any case, the respondents emphasize that the purpose of the arrangement is not to enrich the foreign worker but to increase the cost of his work.

With regard to the petitioners’ concern that a cartel of corporations will be created, the respondents say that in their estimation approximately thirty licensed corporations will operate initially. This number reduces the concern that a cartel will be created. In addition the General Director of the Israel Antitrust Authority has been asked to monitor the activity of the manpower corporations in order to prevent the creation of a cartel. The respondents also say that the licensing fees that were originally fixed have been reduced, and that in view of the risks facing the workers and the corporations that wish to enter into enter into contracts outside the corporations arrangement, there is no major concern of employment outside the arrangement.

Immigration for work purposes around the world and in Israel

23. We shall not understand the petition properly unless we discuss the complex nature of the circumstances underlying it. We will therefore say a few words about these, after which we will turn to examine the case before us.

The migration of people for work purposes is a worldwide phenomenon that is continually increasing. It is estimated that each year millions of men and women migrate to another country in search of employment and personal and economic security (see International Labour Organization (ILO), ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ International Labour Conference, 92nd Session, 2004, at p. 3; R. Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment (1997), at p. 17). The factors that cause the migration of people from country to country for work purposes are many and complex. They included circumstances such as widespread poverty, civil wars, natural disasters, differences between countries in wages and standards of living, increasing industrialization, the reduction in the costs of transport and communications, etc. (ILO, ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ supra, at pp. 3, 8; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at pp. 13-14, 18-21). A significant part of this movement of work migration is made up by non-professional and semi-professional workers, who are invited to work in developed countries in areas where local unemployed persons refuse to work (R. Ben-Israel, ‘Social Justice in the Post-Work Age: Distributive Justice in Distributing Work in the Twenty-First Century,’ Distributive Justice in Israel (M. Mautner ed., 2000), at p. 322; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 19). The economic necessity that is the impetus for the migration of these workers, who usually originate in developing countries where the standard of life is very low, has led several scholars to argue for a relaxation of the category of ‘refugee’ in international law, so that it is adapted to the changing international reality (see P.H. Schuck, ‘Citizens, Strangers and In-Between: Essays on Immigration and Citizenship’ (1998), at p. 287; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 14 and the text referred to by footnote 3; S. Sivakumaran, ‘The Rights of Migrant Workers One Year On: Transformation or Consolidation?’ 36 Geo. J. Int’l L. 113, at p. 114).

24. When they reach the destination country, work migrants tend to congregate at the bottom of the work scale, and they are employed mainly in jobs that are considered very difficult and dangerous, jobs that are known as the ‘3D jobs’ — Dirty, Dangerous and Difficult. Once these become the jobs for migrants, they tend to remain as such (ILO, ‘Towards a Fair Deal for Migrant Workers in the Global Economy,’ supra, at p. 10). A large number of the migrants suffer from low living and work conditions, which are frequently considerably lower than the usual work conditions in the destination country, and sometimes also from negative labelling and social hostility (see Schuck, ‘Citizens, Strangers and In-Between: Essays on Immigration and Citizenship,’ supra, at p. 4).

25. Israel has also played its part in the world map of work-related migration. For more than two decades workers from foreign countries have been employed in Israel in various sectors of the economy, and particularly in agriculture, construction, nursing and manufacturing. Until the beginning of the 1990s, these workers (without taking into account Palestinian workers from Judaea, Samaria and the Gaza Strip) were a marginal factor in the Israeli work force. By contrast, since the early 1990s — in view of the growing pressure from various interested parties to increase the quotas of foreign workers in the construction and agricultural industries — the government, in a series of decisions, has increase the quotas for giving permits to employ foreign workers in these industries (see State Comptroller, Annual Report no. 46 for 1995 and Accounts for the 1994 Fiscal Year (hereafter — State Comptroller’s Annual Report for 1995), at pp. 478-479; H. Fisher, ‘Foreign Workers: Overview, Formal Framework and Government Policy,’ The New Workers — Employees from Foreign Countries in Israel (R. Nathanson, L. Achdut eds., 1999), at p. 15).

26. Beginning in 1996, the government decided to take action to reduce the number of foreign workers in Israel. In a government decision of 16 June 1997, it was decided that ‘the number of foreign workers in the economy will be reduced by means of a multi-year plan, with the overall strategic approach that regards the large number of foreign workers as undesirable from social, economic and security viewpoints’ (State Comptroller, Annual Report no. 49 for 1998 and Accounts for the 1997 Fiscal Year (hereafter — State Comptroller’s Annual Report for 1998), at p. 273), and in a later series of decisions several operational policies were adopted in order to achieve this goal. Thus, for example, it was decided to reduce the number of work permits that would be given for employing foreign workers. Finally, it was decided not to allow the entry into Israel for work purposes of anyone who is not a ‘foreign expert,’ which is the ‘closed skies’ policy (government decision no. 2328 of 30 July 2002). In addition, it was decided to adopt economic measures that increase the cost of employing a foreign worker, and to extend the scope of the enforcement activity against persons employing foreign workers unlawfully (government decision no. 2327; government decision no. 1784 of 4 April 2004). The decisions of the inter-ministerial committee on the question of foreign workers and the immigration authority were adopted. These included the recommendation that an immigration authority should be established to focus all the powers of government ministries with regard to all aspects of immigration, as well as a department for dealing with foreign workers at the Ministry of Industry, Trade and Employment (government decision no. 642 of 2 September 2001; government decision no. 2327; see also State Comptroller, Annual Report no. 55b for 2004 and Accounts for the 2003 Fiscal Year (hereafter — State Comptroller’s Annual Report for 2004), at p. 376). A decision was also made to set up a temporary immigration administration that would act to arrest and deport foreign workers who were in Israel unlawfully, according to target quotas.

27. A consideration of the reality of employing foreign workers in Israel during these years reveals a problematic and troublesome picture. It transpires that workers from foreign countries are able to come to Israel ab initio only after paying large amounts of money — sometimes involving the mortgaging of their property and taking out loans — to manpower providers and agencies. These amounts of money are shared between the manpower company in the country of origin and the manpower providers in Israel (State Comptroller, Annual Report no. 53b for 2002, at pp. 655-656; LabC (Hf) 1565/05 Rosner v. Ministry of Industry, Trade and Employment [26]). In this manner:

‘The profit involved in actually bringing the foreign workers from abroad (which arises from payments that the foreign workers are prepared to pay in their country of origin in return for the right to work in Israel) induces various manpower providers to bring foreign workers to Israel in as large a number as possible, whether there is work for them in Israel… or not’ (Recommendations of the Inter-ministerial Committee, at p. 11).

The wages paid to foreign workers are in most cases low, and frequently even lower than the minimum wage. The State Comptroller’s Annual Report for 1999 found that:

‘The main economic incentive for employing foreign workers is that they cost less than the Israeli worker, and that they are prepared to work without social benefits and on terms that are unacceptable to the Israeli worker… Foreign workers are the most vulnerable sector, from the viewpoint of breaching the Minimum Wage Law. Exploitation of foreign workers by employers can also be seen from a survey conducted by the Manpower Planning Authority in 1998 with regard to foreign workers in Israel without a permit. Approximately 70% of those interviewed earned less than the minimum hourly wage…’ (State Comptroller’s Annual Report for 1999, at pp. 278-279).

Even the work and subsistence conditions offered to foreign workers are poor, and many of them find themselves living in crowded accommodation and unpleasant living conditions (see State Comptroller’s Annual Report for 1995, at pp. 476, 493; CrimC (Jer) 106/03 State of Israel v. Mordechai Aviv Construction Enterprises Ltd [27]). They do not benefit from the effective protection of protective legislation (see O. Yadlin, ‘Foreign Work in Israel,’ Menachem Goldberg Book (A. Barak et al. eds., 2001), at p. 350 and the references cited there; LabC (BS) 1347/03 Atzova v. Sansara Health Club Management Ltd [28]); they are exposed to abuse, exploitation and oppression (see LCrimA 10255/05 Hanana v. State of Israel [1]; see also the Report of the Ministry of Justice, Ministry of Labour and Social Affairs and the Ministry of Foreign Affairs, Implementation of the International Covenant on Economic, Social and Cultural Rights (1997), at p. 27), and they find it difficult, inter alia because of a lack of the knowledge and the funds that are required in order to pursue a legal recourse, and because of their great dependence on their employers, in bringing their cases to the courts (see LabA 1064/00 Kinianjoi v. Olitziki Earth Works [25], at p. 638).

Deliberation

Violation of basic rights

28. Our journey begins with the question whether the restrictive employment arrangement violates basic rights, in view of the dispute between the petitioners and the respondents on this preliminary question. The deliberations below will principally address the arrangement that prevails in the nursing, agriculture and manufacturing industries, which are employment sectors that are governed by the restrictive employment arrangement in its earlier form.

Before we consider the matter in depth, I think it appropriate to mention the following. The question whether the restrictive employment arrangement violates the rights of the employee to dignity and liberty cannot be considered in a vacuum. It should be considered in view of the reality of the employment of foreign workers in Israel. It should be sensitive to the complex circumstances that led to the possibility of foreign workers coming to Israel in the first place. It should take into account the special status of the group of foreign workers in the Israeli work market — a group that is composed of weak, ‘temporary,’ poor and unorganized workers. It should take into account the huge disparity in forces between the foreign worker and the state that is allowing them to enter its work market on its terms, and the manpower agencies and companies that operate in this work market. As stated — and we have discussed these questions extensively — foreign workers that come to Israel to work here do so against a background of economic distress and their desire to provide for their families. In the process of coming here, they are charged, not infrequently, large sums of money, which in terms of what is customary in their countries of origin are sometimes enormous, in return for arranging their coming and staying in Israel. For these reasons, deporting them from Israel before the worker has the opportunity of earning an amount of money that is at least sufficient to ‘cover’ his debt is an action that deals a mortal economic blow to the worker and his dependents.

29. Against the background of this reality, is it indeed possible to hold, as the respondents argue, that the restrictive employment arrangement does not violate the basic rights of foreign workers to dignity and liberty? My answer to this question is no. The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty. It violates human freedom of action. It denies the autonomy of the free will. It tramples the basic right to be released from a work contract. It takes away a basic economic bargaining power from a party to employment relations who is already weak. By doing all this, the restrictive employment arrangement violates his human dignity and liberty in the most basic sense.

30. Human dignity is the central value that stands at the centre of our constitutional law. The rights that derive from it ‘are based on the recognition of the value of man, the sanctity of his life and the fact that he is entitled to liberty’ (s. 1 of the Basic Law: Human Dignity and Liberty). It is given to every person in as much as he is a human being (s. 2 of the Basic Law: Human Dignity and Liberty). The essence of the recognition of human dignity as a constitutional right is based on the outlook that the human being — every human being — is an autonomous and free creature, who develops his body and spirit as he wishes, and who writes the story of his life as he chooses (HCJ 5688/92 Wechselbaum v. Minister of Defence [2], at p. 827; CrimA 115/00 Taiev v. State of Israel [3], at p. 329). This was discussed by Professor Barak, who said:

‘Human dignity is the freedom of each person to shape his personality. Human dignity is the autonomy of the will of the individual, and the freedom of choice. Human dignity is the value of the human being, the sanctity of his life and the fact that he is entitled to liberty. Human dignity regards the human being as an end and not as a means to achieve the purposes of others. What underlies all of these is the freedom of decision of the human being, which is not a means but an end in itself. From this outlook of human dignity and liberty, which connects it with the autonomy of the will of the individual, we can conclude that human dignity is the freedom of action (both physical and legal) of the individual (A. Barak, Constitutional Interpretation (1994), at p. 421).

This was also well expressed by Justice Or:

‘… Every human being has a basic right to autonomy. This right has been defined as the right of every individual to decide his actions and desires in accordance with his choices, and to act in accordance with these choices… this right of a human being to shape his life and his fate includes all the central aspects of his life: where he will live, what occupation he will choose, with whom he will live, what he will believe. It is central to the life of each and every individual in society. It involves an expression of a recognition of the value of each individual as a world in himself. It is essential for the self-definition of each individual, in the sense that all the choices of each individual define the personality and the life of the individual…’ (CA 2781/93 Daaka v. Carmel Hospital [4], at p. 570 {460-461}).

31. The right to autonomy, freedom of action and freedom to enter into contracts are therefore central aspects of the human right to dignity. Their realization is dependent on the ability given to him, the human being, to make decisions concerning his life and path, and the possibilities that are available to him to act in accordance with them. The restrictive employment arrangement deals a mortal blow to these rights. As we have said, according to the restrictive employment arrangement the residence permit given to the foreign worker who comes to Israel is conditional upon him working for a specific employer whose name is stipulated in the residence permit. A termination of the work for this employer, whatever the reason for it may be, means that the permit to reside in Israel expires. In view of the money and the effort that the foreign worker invests in ‘acquiring’ the possibility of working in Israel for a fixed period, it is clear that this connection between the validity of the residence permit and the work for a single employer seriously violates the autonomy of his will. It weakens, and possible even negates, his bargaining power. It leaves him with no real choice between being compelled to continue working in the service of an employer who may have violated his rights, delayed paying his wages and abused him, on the one hand, and resignation on the other, a choice that means losing the permit to reside in Israel. Thus the restrictive employment arrangement limits the freedom of operation given to the worker to a single choice between a bad alternative and a worse one. The scholar Raz discussed the ‘acceptability’ of the alternatives between which a person may choose as a basic condition for realizing the right to personal autonomy:

‘If having an autonomous life is an ultimate value, then having a sufficient range of acceptable options is of intrinsic value, for it is constitutive of an autonomous life that is lived in circumstances where acceptable alternatives are present… a person whose every major decision was coerced, extracted from him by threats of his life, or by threats that would make the life he has or has embarked upon impossible, has not led an autonomous life… the ideal of personal autonomy… requires not merely the presence of options but of acceptable ones’ (J. Raz, The Morality of Freedom (1986), at p. 205).

32. The restrictive employment arrangement therefore associates the act of resignation — a legitimate act and a basic right given to every employee — with a serious sanction. There can be no justification for this. Imposing a sanction in the form of the loss of the permit to reside in Israel on a person who wishes to terminate an employment relationship is tantamount to an effective denial of the freedom to resign. Associating the act of resignation with a serious resulting harm is equivalent to denying the individual of the possibility of choosing with whom to enter into a contract of employment, and compelling a person to work in the service of another against his will. This not only violates the right to liberty, but it creates a unique legal arrangement that is by its very nature foreign to the basic principle of employment law, the moral value of the employment contract and the basic purpose of the employment contract in guaranteeing the economic survival, dignity and liberty of the worker. It gives the employer of the foreign worker an enforcement tool that is unrecognized in our legal system, which has freed itself of the idea of enforcing employment contracts (see s. 3(2) of the Contracts (Remedies for Breach of Contract) Law, 5731-1970). It deprives the worker of the basic ability to negotiate for the remuneration that he will receive for his work potential, and for the terms of his employment and his social benefits. The moral defect in depriving the foreign worker of his bargaining ability was discussed by G. Mundlak, who says:

‘When the employee loses his ability to operate in the market as a free person, the morality of the market itself is undermined… The moral defect that underlies the restrictive arrangement is made starker in view of the ramifications of this arrangement on the employment patterns and the search of foreign workers for employment in Israel. From the viewpoint of employment patterns, the restrictive arrangement allows a violation of the rights of the foreign workers, since the employer is aware that the employee cannot work for another employer or that changing over to do this will be difficult and cumbersome… Moreover, employers, and particularly manpower companies, charge the assets of workers in order to ensure that the worker does not leave his employer. Methods such as these are used in addition to the demand of the manpower companies that the foreign workers pay large amounts in their country of origin for receiving a residence visa in Israel and a work permit… The cumulative result of these methods is that the foreign worker is compelled to continue to work for his employer, even if his conditions of work are inferior to the ones required by law, until he can at least repay the debts that he has incurred. In such circumstances, the loss of a place of work and the residence permit that accompanies it are a more severe sanction than the one imposed on the local worker who loses his place of work. This difference is not only a quantitative one. The accumulated debt creates a serious dependence of the worker beyond what is usually implied by the mere contractual relationship between a worker and an employer, and there are those who regard this as creating a quasi-property relationship between the employer and the worker’ (G. Mundlak, ‘Neither Insiders nor Outsiders: The contractual construction of migrant workers’ rights and the democratic deficit,’ 27 Tel-Aviv University Law Review (Iyyunei Mishpat) (2003) 423, at p. 442).

33. In HCJ 8111/96 New Federation of Workers v. Israel Aerospace Industries Ltd [5] this court considered the question of the status and rights of workers when the plant in which they work is sold to another employer. In that case, Israel Aerospace Industries Ltd wanted to transfer one of its plants into the ownership of another company, Ramta Ltd, as a part of a change of the organizational structural of the company and as a preparatory step for privatization. The question that arose before this court is whether in this situation a worker has the right to remain the employee of the original employer, notwithstanding the change in the identity of the employer, in a manner that gives the employer the choice of terminating the employment contract with him in accordance with the provisions of the employment agreement to which it is a party, continuing to employ him or reaching an agreement with him, or whether he becomes the employee of the new employer, in a manner that leaves the employee the choice of resigning from his place of work.

In answering this question, the justices on the panel were of different opinions. The issues that they considered in their opinions are not of the same kind as in the case before us, but at the same time, from a study of the opinions of the justices on the panel, there is no doubt that the fundamental question that concerned the liberty of the worker and his natural right not to be compelled, or restricted, in an employment contract to an employer against his will was not the subject of any real dispute. The remarks of Vice-President Emeritus Or were as follows:

‘The employer’s management prerogative… grants him freedom of operation in managing his business and in carrying out various actions that concern it… but it is superfluous to say that the workers are not the “property” of the employer… The workers have a right to choose the identity of the party that enters into a contract with them. This right is a basic constitutional right… and it is enshrined today in the Basic Law: Human Dignity and Liberty. This basic right also includes the freedom of the worker to choose his employer. The special character of the personal service that the worker provides for the employer requires extra protection for the autonomy of the worker and his right to choose, in a real choice, with whom he will enter into a contract, including a work contract, and with whom he will not enter into a contract’ (ibid. [5], at p. 541; emphasis supplied).

Similar remarks were made by my colleague Justice Cheshin:

‘It seems to me that it is not possible to dispute the conclusion of my colleague Justice Or that under the general law — the basic principles, doctrines and specific rules — an employer is not entitled or competent to “transfer” his workers to another employer. This is the case under the law of contract, it is the case under the law of assigning obligations — both statute and case law — and it is also implied by the basic rights of the individual… An inanimate object, or an animal, may be moved by its owner as he wishes from place to place, from person to person, and no one will make any complaint. This is not the position with regard to a human being, who may not be dealt with or transferred between employers without his consent. Upon this, I think, everyone will agree without exception’ (ibid. [5], at p. 574).

Justice Rivlin added to this:

‘The liberty of the worker to choose the employer does not originate in the freedom of occupation in its narrow sense. It originates in the freedom and dignity of the human being. Admittedly, the right to property is a basic right, and there is no dispute concerning the employer’s property rights. But this important right should not include the power to hold onto a worker, even only as a premise. I said as a premise, because no one disputes that the worker always has the power to leave his new employer, just as he had the power to leave his previous employer. But a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative. There can only be one premise, the former one, if we agree that the employer’s property rights will never also include control of the worker’s liberty. Moreover, even the property right of selling a business as a “going concern” does not include the right to transfer the living and breathing workers who are employed by it. The liberty of the worker to choose his employer is derived from the right to liberty, which is enshrined in the Basic Law: Human Dignity and Liberty, and from the value of human dignity, which is the foundation of the aforesaid Basic Law.

…

This liberty of the worker is derived directly from the outlook that the human being is an end and not a means. It constitutes a basis for the worker’s freedom of choice, his autonomy of will and his liberty to shape his life and develop his character as he wishes… Compelling the worker to change over to the new employer — even as a working premise — is inconsistent with the basic right of the worker to choose his employer and not to be employed by an employer whom he did not choose freely… Indeed, whether we adopt the approach that extends the “radiation boundaries” of human dignity or whether we restrict them, the liberty of the human being not to be treated like property that is passed from hand to hand lies in the nucleus of this value. Even if we were of the opinion that this liberty detracts somewhat from the employer’s property rights — and we are very doubtful whether this is the case — in the conflict between these two rights liberty should prevail.

…

Liberty lies in this case “closer” to the nucleus of the value of human dignity and realizes it to a greater degree. Therefore it should be given preference. Any other premise will not be consistent with the constitutional position in the State of Israel’ (ibid. [5], at pp. 595-597).

Can it therefore be seriously argued that making the residence permit held by the foreign worker conditional upon working for only one employer, in such a way that it links resignation from working for him with the loss of the permit to reside in Israel, does not violate the right to the worker to dignity and liberty? How can it be said that such a flagrant denial of the contractual autonomy of a human being, particularly with regard to a matter so important as employment relations — the identity of the employer — does not involve a violation of the worker’s right to autonomy and freedom of action?

34. I think it appropriate to point out, in this context, that Vice-President Emeritus Or, whose opinion was determined to be the majority opinion in New Federation of Workers v. Israel Aerospace Industries Ltd [5], addressed in his remarks the inability to choose, in the circumstances of the case, the alternative of resigning, and the remarks that he uttered are apt, very apt, in our case as well:

‘… I have difficulty in accepting the position of my colleague the vice-president, Justice Mazza, according to which the possibility given to the worker to resign negates the argument that, in practice, the result of the majority opinion forces on the worker a new employment contract with an employer whom he did not choose. It seems to me that the alternative of resigning, which severs the worker’s source of livelihood, cannot be considered as allowing him a real choice… The right to freedom of occupation allows a person to choose where he will invest his human capital. This choice is affected by a variety of considerations, which also include the identity of the employer… Compelling a worker to choose between changing over to a new employer and resigning (even if this is regarded as a dismissal), when there is an option of remaining the employee of the original employer, involves a violation of his freedom of occupation. A violation of freedom of occupation occurs not only when the worker is deprived completely of the right to choose his employer but also when his right of choice is harmed, even indirectly’ (ibid. [5], at p. 542).

If this is the case with regard to the constraints inherent in choosing between resignation (which is regarded as dismissal) and changing over to work for a new employer, in circumstances in which the worker’s place of work is transferred into the ownership of another employer, then it is certainly the case where the resignation not only severs the source of the worker’s livelihood but leads to a result that is far worse: the loss of the permit to reside in a country, when coming to that country involved the payment of a large amount of money, and when working in that country is the result of harsh economic constraints.

35. It is not superfluous to point out that the right of the individual to take on work freely and willingly is also enshrined in international law. Thus article 6 of the International Covenant on Economic, Social and Cultural Rights that was signed and ratified by Israel on 3 October 1991 provides the following:

‘Article 6

1.  The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

…’

On the right to chose work ‘freely’ see also: the Universal Declaration of Human Rights, article 23(1); the International Covenant on Civil and Political Rights, article 8; the European Social Charter, part 1, article 1; the American Declaration of the Rights and Duties of Man, article 14. The significance of the right to obtain work ‘freely’ was discussed by Ben-Israel, who said:

‘The freedom to choose an occupation has three meanings: a first meaning is expressed in the fact that everyone has a right to choose his occupation freely. This meaning of the freedom to choose an occupation supplements what is implied by the freedom from forced labour. A second meaning is reflected in the requirement that a person should not be prevented from engaging in any occupation or profession when he has the qualifications required for engaging in it… A third meaning is enshrined in the right of every human being to receive an equal opportunity in employment’ (Ben-Israel, ‘Social Justice in the Post-Work Age: Distributive Justice in Distributing Work in the Twenty-First Century,’ supra, at p. 329).

Article 7 of the International Covenant on Economic, Social and Cultural Rights further provides the following:

‘Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind…

(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays.’

In addition to this, Convention (no. 97) concerning Migration for Employment of the International Labour Organization, which was signed and ratified by Israel on 30 March, 1953, provides in article 6 the following:

‘Article 6

1. Each Member for which this Convention is in force undertakes to apply, without discrimination in respect of nationality, race, religion or sex, to immigrants lawfully within its territory, treatment no less favourable than that which it applies to its own nationals in respect of the following matters:

(a) in so far as such matters are regulated by law or regulations, or are subject to the control of administrative authorities —

(i) remuneration, including family allowances where these form part of remuneration, hours of work, overtime arrangements, holidays with pay, restrictions on home work, minimum age for employment, apprenticeship and training, women's work and the work of young persons;

(ii) membership of trade unions and enjoyment of the benefits of collective bargaining;

…’

36. These conventions have not been adopted in Israeli internal law by means of legislation. Prima facie, therefore, they do not create any obligation in this sphere. But it is possible that obligations in these conventions have taken on a customary character (see. Y. Shani, ‘Social, Economic and Cultural Rights in International Law: What Use can the Israeli Courts Make of Them,’ Economic, Social and Cultural Rights in Israel (Y. Rabin, Y. Shani eds., 2004) 297, at p. 342, and the references there; HCJ 2587/04 Bucharis v. Hadera Assessment Officer [6], at para. 15 of the judgment, where my colleague the president leaves the question of the customary status of the Convention concerning Migration for Employment undecided), and that they therefore constitute ‘a part of Israeli law, subject to any Israeli legislation that stipulates a conflicting provision’ (HCJ 785/87 Afu v. IDF Commander in Gaza Strip [7], at p. 35). But since the petitioners did not focus their arguments on international law and the extent to which it should be applied to the question that is required for our decision, and since we have not been asked to decide the status of these obligations, we shall not make any firm determination on this issue (for the status of foreign workers in the countries admitting them under international law, see L.M. Hammer, ‘Migrant Workers in Israel: Towards Proposing a Framework of Enforceable Customary International Human Rights,’ Netherlands Quarterly of Human Rights, vol. 17, no. 1, 10; Cholewinski, Migrant Workers in International Human Rights Law: Their Protection in Countries of Employment, supra, at p. 47; Sivakumaran, ‘The Rights of Migrant Workers One Year On: Transformation or Consolidation?’ supra, at p. 119).

37. Whatever the position is, everyone agrees that by virtue of the ‘presumption of conformity’ of Israeli internal law to the provisions of international law, we are required to interpret legislation — like a power given to a government authority — in a manner that is consistent with the provisions of international law (see CrimA 131/67 Kamiar v. State of Israel [8], at p. 112; CrimFH 7048/97 A v. Minister of Defence [9], at p. 742, and the references there; HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [10], at p. 846). It follows that the power of the Minister of the Interior ‘to determine conditions for giving a visa or a residence permit’ is limited and restricted, inter alia, by the right given to every person ‘to earn his living by means of work that he chooses, or obtains, freely,’ by the right given to every individual to enjoy ‘just and fair work conditions,’ and by the principle of non-discrimination between workers who are citizens and workers from foreign countries, which is enshrined in the Convention concerning Migration for Employment (for the principle of non-discrimination with regard to restrictions on the employment of migrants, see also recommendation 86 of the International Labour Organization that is attached to the Convention concerning Migration for Employment (Migration for Employment Recommendation (Revised) 1949, article 16).

38. To the ‘theoretical principles and rules of doctrine’ (in the words of my colleague, Justice Cheshin, in CrimFH 6008/93 State of Israel v. A [11], at p. 870), I would like add a few remarks also with regard to the realities of the matter and practical principles. I think that there is nothing like the findings contained in the most recent State Comptroller’s Report to emphasize how bad is the harm caused by the restrictive employment arrangement to the basic rights of foreign workers in Israel. The State Comptroller confirms the petitioners’ claims with regard to the ‘transfer’ of workers without their knowledge by their employers, an act that leads to the immediate expiry of their residence permit:

‘… The state determined that the foreign worker is bound to a certain employer, i.e., the employer is prohibited from transferring him to another employer or to another place of work contrary to the terms of the permit. Notwithstanding, because of economic considerations, employers transfer their foreign workers to another employer, and thus they become illegal foreign workers that can be deported. In other words, most of the foreign workers who are moved by their employers become illegal for reasons that are not dependent on them: the ability of the foreign worker to stand up to his employer who is moving him is small, and it can be assumed that sometimes he is not even aware that he is being moved contrary to the law. The review has shown that these foreign workers were imprisoned, but the immigration administration in many cases took no action against the employers’ (State Comptroller’s Annual Report for 2004, at p. 379).

Later in his remarks, the State Comptroller describes a concrete example of the manner in which this practice operates on an everyday basis:

‘In March 2004, for example, eleven foreign workers from China were arrested at one building site. Seven of them were arrested approximately three weeks after they came to Israel, one worker was arrested after being approximately five weeks in Israel and three workers were arrested after approximately seven weeks in Israel. Two of the workers said to the border control authorities that they paid ten thousand dollars in order to come to work in Israel. These workers came to Israel with employment permits that were given by the State of Israel to their employers for a period of a year for work in the manufacturing industry. According to the testimony of the workers before the border control authorities, their employers violated the terms of the permit and moved them to other employers in another industry, the building industry, and they worked in floor tiling. In practice, four of the eleven workers stayed in the prison facility for 78 days until an employer was found who wished to employ them. The other workers — the remaining seven — were deported from Israel, four of them after staying 32 days in the prison facility, two of them after staying 17 days in the prison facility and one worker immediately after being imprisoned. In this case too the workers paid by losing their liberty and by being deported from Israel for offences committed by the employers. The employers, by contrast, were not punished at all’ (ibid., at p. 380).

The State Comptroller also spoke of the ease with which workers lose their status in Israel as a result of complaints of their employer, and the similar ease with which they lose their liberty as a result of these complaints:

‘… According to the “restrictive arrangement,” a foreign worker must work for his employer for the duration of the permit. A foreign worker who leaves his employer becomes an illegal worker, and he is classified by the Ministry of the Interior as an “absconder” who is designated for deportation. At the end of August 2004, approximately 1850 foreign workers who were classified as “absconders”… were registered in the computerized system of the Ministry of the Interior. The review found that a letter from the employer informing the authorities that the foreign worker left his place of work was sufficient for the Ministry of the Interior to classify the foreign worker as an “absconder.” It can be seen from the documents that there were cases in which the employer reported that the worker was an “absconder,” and from the investigation made by the immigration administration afterwards it transpired that the worker had not left his employer at all. Even in these cases the employers were not punished… Sometimes employers report that workers are “absconders” and turn them in to the immigration administration, after the workers complain (mainly to human rights organizations) that the employers are exploiting them. The employer’s assumption in this case is that if the foreign workers are deported from Israel or moved to another employer with the consent of the Ministry of the Interior, the employment permit quota given to him (the employer who filed the complaint) will be credited and he will be able to employ another foreign worker instead of the “absconder” ’ (ibid.; emphasis in the original).

See also AP (TA) 2036/04 Quijan v. Minister of Interior [24].

The violations of basic rights that result from the restrictive employment arrangement were also discussed by the Advisory Committee for Examining the Immigration Policy of the State of Israel, which saw fit to recommend its cancellation:

‘Currently the worker is “attached” to a certain employer. When his work with that employer is termination, the visa for entering Israel and the permit to work here expire, and the worker is required to leave Israel. This is the position even if the worker has not completed the period of time during which he was supposed to work in Israel, but is dismissed before this by the employer. This arrangement is not fair, and very often it is cruel, because many of the workers invest all their limited property and even take loans in order to pay the agents who make the connection between them and the employers and who arrange for the issue of the visas and the permits required in order to work in Israel. The significance of compelling a worker who was dismissed early to leave Israel before he has had time to cover the expenses that he incurred in order to obtain the work permit is therefore very serious. The current arrangement also gives the employers huge power and is often abused. The worker frequently becomes enslaved to the employer. It is proposed that the entry visa into Israel and the work permit given to the worker should be for a period that is not less than three years (even if the worker stops working for the original employer)…’ (Advisory Committee for Examining the Immigration Policy of the State of Israel, Interim Report — February 2006, at p. 13).

39. My conclusion is therefore that the restrictive employment arrangement violates the human right to dignity and the human right to liberty, which are enshrined in the Basic Law. Human dignity is not satisfied because the restrictive employment arrangement violates the freedom of action of the individual and his autonomy of will. The right to liberty, for its part, is violated because the individual is denied the possibility of choosing the identity of the party that enters into an employment contract with him, and because he is compelled — by the connection between the act of resignation and the serious harm that accompanies it — to work for another against his will. These serious results are utterly foreign to the basic principles underlying our legal system.

40. It should be noted that even if the relationship between the workers and the manpower companies reveals many problematic aspects, as the respondents claim, this still cannot eliminate the problematic nature of the restrictive employment arrangement or the independent violation of the basic rights of the foreign workers that results from it. I should point out, in this context, that it would appear that even the respondents are not comfortable with the restrictive employment arrangement, and it is clear that even they agree with some of the petitioners’ complaints concerning it (see the letter of the assistant director of budgets of 19 December 2003, appendix 3 of the respondents’ statement of reply dated 1 January 2004; Recommendations of the Inter-ministerial Committee, at pp. 5, 11).

41. Since it has been found that the restrictive employment arrangement violates the rights of the foreign workers to dignity and liberty, I see no need to consider the abandoned dispute between the petitioners and the respondents on the question of the right of foreign workers in Israel to freedom of occupation, which is enshrined in the Basic Law: Freedom of Occupation. I think it appropriate to point out, nonetheless, that the laconic and sweeping position of the respondents, on the face of it, that foreign workers in Israel do not enjoy the constitutional right to freedom of occupation, in view of the language of the Basic Law: Freedom of Occupation, is in my opinion problematic, in view of the case law recognition of the right to freedom of occupation as a right enjoyed by ‘everyone,’ a case law recognition that preceded the Basic Laws (see HCJ 1/49 Bajerno v. Minister of Police [12]; HCJ 337/81 Miterani v. Minister of Transport [13]; see also the position of Prof. Barak on freedom of occupation as a ‘constitutional’ right as opposed to freedom of occupation as a ‘case law’ right, and the connection between freedom of occupation and human dignity: Barak, Constitutional Interpretation, at pp. 585, 598), in view of the status of the right in international law, and especially in view of the nature of the alleged violation to the right to freedom of occupation in the case before us — a violation that is directed at the most basic core values that the right to freedom of occupation seeks to protect.

Can the ‘change of employer procedure’ negate the violation of basic rights caused by the restrictive employment arrangement?

42. My conclusion with regard to the violation of basic rights caused by the restrictive employment arrangement requires us to examine whether, as the respondents claim, the ‘change of employer procedure’ — a procedure that aims to allow workers to change from one employer to another, in certain circumstances — cannot negate this violation. My firm opinion is that this procedure cannot negate the violation of basic rights caused by the restrictive employment arrangement. There are two reasons for this. The first reason is that the change of employer procedure does not significantly change the excessive power held by the employer. The initial link between the legality of the residence of the foreign worker in Israel and the identity of the employer is likely to lead to a situation in which the worker, even though he came to Israel lawfully, will become an illegal resident as early as his first day in Israel in circumstances that are beyond his control, and often without his knowledge. Such is the case, for example, where the employer takes advantage of this initial link and makes the commencement of the worker’s employment conditional upon his fulfilling certain conditions, such as the payment of additional amounts of money, or where the employer tells the worker to work for another employer, or on another project. Moreover, an application to change employer involves, according to the procedure, the loss of the permit to work in Israel for an unknown period: the procedure states that in the interim period between finishing work for the original employer and changing over to the new employer, the worker will receive a B/2 residence permit. This permit is a temporary residence permit (which is usually given for visits of tourists), and it does not allow a person to work lawfully. It is not clear, therefore, how the worker is supposed to support himself in this interim period, and especially why his legitimate request to change employers should result in the loss of the permit to work in Israel for an unknown period (since the procedure does not stipulate a binding time limit for processing the request to change employers). It does not appear that a procedure that allows a worker’s request to change his employer to be rejected for the reason that ‘the case is one of a worker who has changed employers several times and therefore there is no basis for approving his request for a further change’ or that ‘there is a certain restriction on providing the service in the Aviv (foreign worker) system’ (paragraphs c4 and c5 of the change of employer procedure) takes sufficiently into account — if at all — the inherent right given to every person to terminate an employment contract that he made.

43. The second reason, which in my opinion is the main one, is that the change of employer procedure assumes, as a premise, the power to hold onto a worker. The premise underlying the normative structure created by the restrictive employment arrangement — a normative structure that is not changed by the procedure — is that the employer is entitled to hold onto his worker, whereas the worker is entitled, only in certain circumstances, to be released lawfully from the employment contract with the employer. A normative structure of this kind is inconsistent with the constitutional status of the right to liberty, human dignity, autonomy and freedom of action. Indeed, ‘a right to leave an employer that is based on the premise of the liberty of the worker is not the same as a right to leave an employer that is based on the premise of the employer’s prerogative’ (per Justice Rivlin in New Federation of Workers v. Israel Aerospace Industries Ltd [5], at p. 595). A legal system that provides constitutional protection to human rights cannot accept a normative premise that assumes the absence of basic rights as a fundamental rule. It is impossible to accept that in a legal system that has established human dignity as a protected constitutional value the individual will be allowed to enforce his basic rights only in ‘exceptional’ cases. The change of employer procedure seeks to make basic rights that the individual — every individual — possesses into a mere ‘administrative’ matter that can be dealt with by officials. This is the essence of the matter. And since the procedure purports to do what cannot be done — at least, in a constitutional legal system that exalts the rights of the individual — we must conclude that it cannot, contrary to the respondent’s argument, negate the violation of basic rights caused by the restrictive employment arrangement.

Administrative discretion and the principle of proportionality

44. The restrictive employment arrangement links the employment of foreign workers in Israel to their residence here, and it is therefore created by combining the sources of authority from these spheres. The authority concerning the employment of foreign workers is the authority given to the foreign workers’ department at the Ministry of Industry, Trade and Employment to give permits for employing foreign workers to employers who request one, pursuant to the Foreign Workers Law, whereas the authority concerning the residence of foreign workers in Israel is the authority given to the Minister of the Interior to stipulate conditions for the residence permit given to foreign workers, pursuant to the Entry into Israel Law. Limiting the possibility of changing employers is possible by virtue of the latter authority which is given to the Minister of the Interior. Naturally, our scrutiny will focus on the manner in which this authority is exercised.

45. Section 6 of the Entry into Israel Law expressly authorizes the Minister of the Interior to make a residence permit that is given to someone who enters the borders of Israel conditional, by providing that ‘The Minister of the Interior may stipulate conditions for giving a visa or a residence permit.’ I therefore have difficulty in accepting the petitioners’ argument that the Minister of the Interior has ‘no authority’ to stipulate conditions for the residence permits of foreign workers who come to Israel. Notwithstanding, I think I should point out that a large degree of discomfort arises from the fact that all the serious violations caused by the restrictive employment arrangement to basic rights are based on that authority given to the Minister of the Interior under the Entry into Israel Law, which is an authority that was intended, according to its purpose, to be exercised in specific cases, and not to serve as a basis for making general arrangements. A general policy of this kind, in my opinion, should be based upon a primary arrangement, especially in view of its violation of basic rights (see and cf. HCJ 3267/97 Rubinstein v. Minister of Defence [14], at p. 515 {182}).

46. It is a well-established rule in Israel that the Minister of the Interior has broad discretion in exercising powers that are given to him under the Entry into Israel Law. This is especially the case where the empowering legislation — in our case the Entry into Israel Law — does not contain criteria and guidelines concerning the manner of exercising the executive discretion. But the breadth of the discretion given to the Minister of the Interior and the absence of criteria and guidelines do not mean that the Minister of the Interior has absolute discretion (HCJ 758/88 Kendall v. Minister of Interior [15], in the opinion of Justice Cheshin). The significance of this is not that the discretion exercised by the Minister of the Interior when exercising powers that are given to him under the Entry into Israel Law is exempt from the scrutiny of the High Court of Justice. Quite the contrary; the breadth of the discretion is precisely what necessitates caution and special care when exercising it; the absence of criteria and guidelines in the empowering law for exercising the executive power requires special attention to the general principles that limit and restrict administrative authority.

47. The requirement that the Minister of the Interior operates within the scope of the authority given to him under the Entry into Israel Law is of course insufficient. The legality of the executive discretion is examined from the viewpoint of the principle of proportionality (HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [16], at p. 11). This principle states that an executive action that is intended to realize a proper purpose — in our case, supervision of the residence and employment of foreign workers in Israel — should be carried out in an appropriate manner, and not excessively (ibid. [16]). It is made up of three subtests. The first subtest requires the existence of a rational connection between the purpose and the executive measure chosen to achieve it. The second subtest requires that the harm caused by the executive measure to the individual should be as small as possible. The third subtest requires that the violation of the right caused by the chosen measure should be proportionate to the benefit arising from it (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [17], at p. 436; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [18], at p. 385).

48. My opinion is that the means chosen by the respondents — making the residence permit given to the foreign worker conditional upon working for a single employer — does not exhibit a rational connection to the purpose of supervising the residence and employment of foreign workers in Israel. The harm caused by this measure to the individual is not as small as possible. It is also not proportionate to the benefit arising from it. I will explain my remarks below.

The connection between the means and the end

49. As stated above, the respondents’ approach is that because of the negative ramifications arising from the employment of foreign workers in Israel, ‘it is necessary to impose restrictions on the very permission to enter Israel, to ensure that the foreign workers can only work for those employers who, in the respondents’ opinion, should be allowed to employ foreign workers to a limited degree, and to create various mechanisms for the purpose of ensuring the workers leave Israel when the period of their residence permit expires.’ Does the measure adopted by the respondents lead, rationally, to the achievement of these purposes?

50. We should remember that the restrictive employment arrangement has been in force in Israel for more than a decade, from the time when it was decided to allow workers from foreign countries to enter Israel. According to the estimates of the Manpower Planning Authority at the Ministry of Industry, Trade and Employment (which is, as stated above, the third respondent), the number of foreign workers residing in Israel in 1996 reached 161,000, of whom only 89,000 were residing in Israel with a permit. At the beginning of 1998, the number of foreign workers reached approximately 170,000, of whom 90,000 were residing in Israel without a permit. In 2001, the number of foreign workers residing in Israel jumped up to 243,000. Most of these, so it appears, were residing in Israel without a permit. From these estimates it also transpires — and nothing is more indicative than numbers — that the number of foreign workers with permits is decreasing whereas the number of foreign workers without permits is increasing (State Comptroller’s Annual Report for 1998, at pp. 274-275; State Comptroller’s Annual Report for 2004, at p. 373). Thus we see that even though the policy adopted by the respondents has been in force for several years, since the actual time when it was decided to allow the employment of foreign workers in Israel, it has not been proved at all that it allows the existence of proper supervision of the residence and employment of foreign workers in Israel, which, it will be remembered, is its main goal. The opposite is the case: during these years, the number of the workers who reside in Israel unlawfully has continually increased. How, then, can it be argued that the restrictive employment arrangement exhibits a rational connection with the purpose of supervising the residence and employment of foreign workers in Israel?

51. These figures are accompanied by other figures, which also originate in research conducted for the Ministry of Industry, Trade and Employment. This research sought to examine, inter alia, the effect of the restrictive employment arrangement on the changeover of foreign workers to unlawful employment (Y. Ida, The Factors Affecting the Changeover of Foreign Workers to Unlawful Employment (State of Israel, Ministry of Industry, Trade and Employment, Planning, Research and Economics Administration, 2004). The conclusions of the research were that the restrictive employment arrangement encourages illegal work and makes it difficult to supervise the employment of foreign workers in Israel, and the harsh work conditions created as a result also harm Israeli workers:

‘…The background to the restrictive employment arrangement was a concern of the policy makers that the workers would settle in Israel… and in order to protect local workers against competition from foreign workers for places of work. But has the “restrictive employment arrangement” really achieved these goals? With regard to preventing the foreign workers from settling in Israel, it does not appear that the arrangement prevents them settling in Israel. On the contrary, it encourages working in a manner that is not organized, increases the number of illegal foreign workers and makes it even more difficult to supervise the employment of foreigners. With regard to protecting the population of local unskilled workers against competition from the foreign workers, it is almost certain that the low wage level paid to the legal foreign workers in the restrictive employment arrangement has had an effect on the whole market of unskilled workers, including local ones, who are compelled to satisfy themselves with low wages or to be pushed out into the ranks of the unemployed… The actual beneficiaries of the arrangement are precisely the employers, who pay lower wages both to the foreign workers and to the local workers. In other words, it is reasonable to assume that the restrictive employment arrangement has actually harmed the local unskilled workers rather than protecting them’ (ibid., at pp. 67-68).

It has for a long time been a rule of ours that ‘before an authority makes a decision that affects the rights of the individual — whether it is a decision in a specific case or a general policy decision — it should compile figures on the matter, separate what is relevant from what is irrelevant, analyze the figures, consider them, discuss the significance of the proposed decision and its estimated results, and only then should it act’ (HCJ 3648/97 Stamka v. Minister of Interior [19], at p. 776). Thus the figures compiled by the respondents themselves show that the policy adopted by them not only does not further the purpose for which it was intended, but even undermines it. The only possible conclusion in these circumstances is that it cannot be held that the restrictive employment arrangement satisfies the requirement of a rational connection to the purpose underlying it.

The least harmful measure

52. My outlook is that the restrictive employment arrangement is not the least harmful measure. It follows that it does not satisfy the second subtest of the requirements of proportionality. Of course, the tests of proportionality are applied ‘while taking into account the nature of the right under discussion, the reasons underlying it and the values and interests that are harmed in the specific case… When speaking of an especially important basic right, greater care should be taken to choose a measure that violates it to the smallest degree possible, even if this means a measure that involves a substantial cost’ (Israel Investment Managers Association v. Minister of Finance [18], at p. 418; see also HCJ 6055/95 Tzemah v. Minister of Defence [20], at p. 282 {684}).

53. I discussed in detail the supreme status of the rights that are violated by the restrictive employment arrangement and the seriousness of these violations in my remarks above (see paras. 28-39). I see no need to add to those remarks. The status of the rights and the severity of the violation thereof almost automatically require the choice of an alternative measure which is less harmful but which is faithful to the purpose that the respondents wish to promote. I have difficulty in accepting that compelling a person to work for a single employer is the only way of realizing the purpose of supervising the work and residence of foreign workers in Israel. It is possible that it is the simplest way, since by ‘delegating’ the duty of supervision to the employers, who are required to ensure that their workers leave Israel when the period of the permit expires, it removes the duty of supervision from the state. It is possible, for this reason, that it is also the cheapest method. But it is not the method that is least harmful, and in any case these facts in themselves cannot justify adopting the serious measure of the restrictive employment arrangement (cf. Stamka v. Minister of Interior [19], at p. 782).

54. Less harmful measure might be found in the form of measures such as the increased enforcement of the prohibition against unlawful residence in Israel or increased supervision of the employers of foreign workers. The possibility of other methods of operation with regard to the employment of foreign workers can also be seen from the report of the inter-ministerial team, which saw fit to recommend the implementation of a new employment model for foreign workers, a model that was implemented not long ago in the construction industry. It can also be seen from the report of the inter-ministerial team that an alternative arrangement to the restrictive employment arrangement can be made also in other industries. But these recommendations have not been implemented. The qualified tone of the remarks of counsel for the respondents in the hearing that took place before us also did not leave an impression that there is any plan, within a reasonable timeframe, to implement these recommendations or to adopt any other measure to reduce the harm. In these circumstances, my conclusion is that the restrictive employment arrangement does not constitute the least harmful measure.

Proportionality in the narrow sense

55. The restrictive employment arrangement also does not satisfy the test of proportionality in the narrow sense. The harm caused by it is out of all due proportion to the benefit that is believed to arise from it. I say ‘is believed’ because, as I said above, this arrangement is far from bringing about the consequences which it was intended to realize. Consequently, the ‘benefit’ that arises from the violation is nothing more than a ‘speculative and unproven’ benefit (Stamka v. Minister of Interior [19], at p. 783). But even if this were not the case, and we found that the restrictive employment arrangement resulted in a benefit in the form of easier supervision of the residence and work of foreign workers in Israel, I have great doubt as to whether the serious violation caused by this arrangement to basic rights could be regarded as being in due proportion to the benefit — any benefit — that can be derived from it.

56. It should be noted that no one disputes the fact that the rights to which the foreign worker is entitled and the obligations that the state has towards him, which are their mirror image, are not exactly the same in content and scope as the rights to which an Israeli citizen is entitled or the obligations that the state has towards a citizen (thus, for example, an Israeli citizen has the right to vote and stand for public office, he has immunity against being deported from Israel, and he has other similar rights that are not possessed by someone who is not a citizen); that the individual who is not an Israeli citizen does not have a right to enter the state (s. 6(b) of the Basic Law: Human Dignity and Liberty) or to receive a work permit in Israel; and that the state is entitled and obliged to control the work market and supervise the employment of foreigners in it, in accordance with the changing needs of the economy. We know that the state has a very broad prerogative in these areas, and it may decide who will be allowed in, and on what conditions, and who will be kept out. But these arguments only work up to a certain point, since it is clear that one cannot deduce from the entry permit given by the state to the foreign worker for the purpose of employment an unlimited authority to violate his rights. The foreign worker does not lose his humanity and his basic rights when he enters Israel. Even the fact that the state does not have a duty to allow foreign workers in does not mean that once it has decided to do so it may do so upon any conditions. Therefore, even if we accept that the rights of the foreign worker are not the same as those of the citizen, this is of little significance in our case, since the rights that are being violated as a result of the restrictive employment arrangement derive from the humanity of the individual, and they are not rights that belong to the state which it may give or withhold. This is certainly the case where this is done in a sweeping and disproportionate manner as it is in our case.

57. On the basis of the aforesaid, my conclusion is that the restrictive employment arrangement — an arrangement that is reflected in making the residence permit given to the foreign worker conditional upon his working for a single employer — does not satisfy the test of proportionality.

The nursing industry

58. The conclusion that I have reached with regard to the disproportionality that characterizes the restrictive employment arrangement applies to all the employment sectors to which this arrangement applies, which are the agriculture, manufacturing and nursing industries. I do not think that the nursing industry is different from the other industries in which foreign workers are employed. But since the respondents argue that employment in this industry has a special character, I will add a few remarks with regard to this matter.

59. As stated above, in so far as the nursing industry is concerned, the position of the respondents is that the employers have a significant interest in ‘binding’ their workers to them, in view of the vulnerability that is characteristic of this special sector of employers. The vulnerability of the employers, according to the respondents, justifies placing certain obstacles in the path of person working for them to stop them resigning from their work with them. This is what the respondents said in their reply:

‘Particularly in the field of nursing… there is a real difficulty in cancelling the connection between the foreign worker and the specific employer who requires his services and in implementing an industry-wide restriction as proposed by the petitioners. Adopting this measure is likely to lead to certain persons who need nursing services — who are also as aforesaid a weak sector of the population — not being able to employ a foreign worker, either because of the special difficulty in looking after them relative to other persons in need of nursing care, because of a shortage of funds or because of the place where they live in Israel’ (para. 16 of the supplementary statement of the respondents of 21 May 2003).

I accept the approach that in this field of nursing the ‘point of balance’ between the conflicting interests of the employer, on the one side, and the foreign worker, on the other, is different from other fields in which foreign workers are employed. Notwithstanding, I am of the opinion that the reasoning advanced by the respondents is no reasoning at all. Let me explain my position.

It is true that the relationship between the nursing worker and his employer who requires nursing is not an ordinary relationship between a worker and an employer. The personal nature of the service that is provided, the intensity of the work for the employer and the dependence that exists between the employer and the worker in his service create work relations of a special character. I also accept — and how could I not do so — that persons who require nursing services, including the elderly and the disabled, are sectors of the population that are characterized by a special vulnerability, and the formulation of a government plan of operation that may affect their lives and welfare should be made while taking into account these potential factors.

It is well known that the purpose of nursing services is to help persons who need them to carry out basic actions, and to allow them — in so far as possible — to lead normal lives. Nursing services also allow supervision of the person who needs them during the hours of the day, where constant supervision of this kind is required. We can easily understand that the importance of the nursing services for those who receive them is great. They can facilitate the movement of the person who requires nursing and allow him a reasonable quality of life. They can allow him to be involved in his environment and to enjoy, as a result, reasonable social functioning in the society in which he lives. The connection between these abilities and human dignity is a close one (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [21]). No one will therefore deny that the respondents have a duty to ensure that the elderly and the disabled in Israel enjoy conditions in which their humanity is not humiliated and their dignity as human beings is maintained.

60. However, there is a great gulf between this and the conclusion that realizing this obligation justifies restricting a person to his employer by forcing him, in practice, to provide a personal service under duress. In theory, the respondents approach is that we must guarantee that every person who needs nursing as such can employ a foreign worker, irrespective of the question of wages and the conditions of work that he wishes and is able to give to his employee, by linking the resignation of the caregiver from his employment with the person in need with a harsh sanction of losing his status in Israel. This approach, as stated above, does not stand up to constitutional scrutiny, since it does not satisfy the principle of proportionality. It also does not stand up to moral scrutiny, since human beings always are an end and a value in themselves. They should not be regarded merely as a means to an end or as a product to be traded, no matter how exalted the purpose (cf. HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel [22], at p. 783).

The purpose that the respondents set for themselves — guaranteeing the welfare and the dignity of the elderly and the disabled who require nursing services — is a proper purpose. The law has a role in realizing it. But the right of one person to dignity does not mean the absolute denial of this right to another. It is not the right to employ another person under duress, with low wages and without social benefits. It is not an unlimited authority to violate the liberty of another. Its realization does not require another person to be compelled to provide a personal service — and what service is of more ‘personal’ a nature than nursing care — under duress.

The relief

62. We have found that the restrictive employment arrangement, which makes the residence permit given to the foreign worker who comes to Israel conditional upon working for a specific employer and which applies — in the form currently practised – in the agriculture, nursing and manufacturing industries, violates basic rights. The harm caused by the arrangement is not proportionate. The operative ramification of this conclusion is that the Minister of the Interior is not entitled to make the residence permit given to foreign workers subject to the aforesaid condition. The respondents are consequently obliged to formulate a new employment arrangement, which is balanced and proportionate, with regard to foreign workers in these industries. This should not be based on the restriction of the worker who comes to Israel to a single employer, and it should refrain from linking the act of resigning with any sanction, including the loss of the status in Israel.

 In view of the seriousness of the violation of the rights of foreign workers and in view of the period of time during which this has occurred, I propose to my colleagues that we determine that the respondents shall be liable to finish formulating a new arrangement within six months of the date of giving judgment.

63. One of the heads of the relief sought by the petitioners is that we order the respondents to introduce a ‘restrictive industry’ arrangement instead of the existing restrictive arrangement. We cannot grant this request. The court does not determine the executive plan of action. It is not for the court to decide what is the desirable employment policy with regard to foreign workers in Israel. Formulating the new employment arrangement and determining its details is not a relief that we can grant. All that the court can decide is whether the executive action — in our case, the restrictive employment arrangement — is legal. Does it satisfy, as an executive action, the terms of the limitations clause, and in particular the principle of proportionality? This is what we sought to do, and this is what we have done. We have found that the policy of employing foreign workers by restricting the worker to his employer disproportionately violates basic rights, and as such it is prohibited. Now the formulation of a new employment policy is a matter for the respondents to determine. They have the duty — after considering all the relevant considerations – of formulating a reasonable and balanced arrangement, which will be capable of guaranteeing the purpose of supervising the residence and employment of foreign workers in Israel on the one hand, and the purpose of protecting their basic rights on the other. These purposes do not contradict one another. They should be consistent with one another. The respondents should formulate an arrangement that will incorporate both of them.

Conclusion

‘And if a stranger dwells with you in your land, do not oppress him. The stranger who lives with you shall be like one of your citizens, and you shall love him like yourself, for you were strangers in the land of Egypt’ (Leviticus 19, 33-34 [30]).

64. The individuals whose interests are addressed in the petition before us — the foreign workers — were invited by the respondents to come to Israel to work here, in those industries in the economy in which they thought their employment was required. Everyone knows the reason why they came here — the fact that they are prepared to engage in hard labour which has been abandoned by the local work force, for low wages, without social benefits, and sometimes in work conditions that are really harmful. This is the main ‘attraction’ in employing them. But the distress of these workers must not become something that we exploit. We must not make their poverty a tool for uncontrolled and disproportionate violations of basic rights. We in particular — for whom the bitter taste of living in a foreign land is all too familiar — we know the feelings of the stranger, for we were strangers in the land of Egypt (Exodus 23, 9 [31]).

I propose to my colleagues that we grant the petition and make an absolute order in the manner set out in para. 62 of my opinion.

Vice-President Emeritus M. Cheshin

I have read the opinion of my colleague Justice Levy — I will take the liberty of adding that it is a fine and sensitive opinion — and I agree with the remarks that he wrote. If I wish to add a few remarks of my own, it is only because the human predicament that presented itself before us and the opinion of my colleague raised in me strong feelings and emotions to which I wish to give expression.

2.    The starting point for our journey is found in the provisions of s. 6 of the Entry into Israel Law, 5712-1952, according to which the Minister of the Interior may ‘determine conditions for giving a visa or a residence permit and for extending or replacing a residence permit…’ (s. 6(1)) and he may also ‘determine in a visa or a residence permit conditions that are to be fulfilled as a condition for the validity of the visa or of the residence permit’ (s. 6(2)). The Minister of the Interior made use of these powers in the case of foreign workers, and he made their residence in Israel conditional upon an arrangement that bound them to a particular employer. My colleague gives this arrangement the name of a restrictive employment arrangement (or a restrictive arrangement) and I will follow him. Later the minister relaxed the position by means of an arrangement whereby foreign workers can change employer, but as my colleague has shown this arrangement did not significantly reduce or decrease the restrictive arrangement, nor did it really allow the foreign workers to change employer.

3.    The aforesaid power of the Minister of the Interior in s. 6 of the Entry into Israel Law appears on the face of it to be a power of an absolute nature: an unbounded power, a power that extends in all directions without any limit. But as the court held in Kendall v. Minister of Interior [15], at p. 527 et seq.), there is no such thing in Israeli law as ‘absolute’ discretion, and even discretion that is called ‘absolute’ is not absolute discretion at all. The same is true of the discretion of the Minister of the Interior under s. 6 of the Entry into Israel Law: it is hedged in by legal restrictions that are inherent in every power wielded by the government; it yields to all the basic principles and doctrines of the legal system; and the basic rights of the individual, including first and foremost those rights enshrined in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, are an integral part of the fabric of its genetic code.

4.    A study of the restrictive arrangement that the state created and applied to foreign workers — unfortunate persons who are separated from their families for months, and even years — gives rise to astonishment mingled with anger: how can persons in authority in our country think that they can treat in this way women and men who only want to provide for their families? We do not deny that the persons in authority were required to consider important conflicting factors — considerations of proper administration and of the need to prevent abuse of the permit to reside in Israel — but how did they fail to see that the arrangement that they made seriously violated the dignity of the foreign workers as human beings? Every human being — even if he is a foreigner in our midst — is entitled to his dignity as a human being. Money is divisible. Dignity is not divisible. This is true of both the dignity and the liberty of the workers.

Indeed, we cannot avoid the conclusion — a painful and shameful conclusion — that the foreign worker has become his employer’s serf, that the restrictive arrangement with all its implications has hedged the foreign worker in from every side and that the restrictive arrangement has created a modern form of slavery. In the restrictive arrangement that the state itself determined and applied, it has pierced the ears of the foreign workers to the doorposts of their employers and bound their hands and feet with bonds and fetter to the employer who ‘imported’ them into Israel. It is nothing less than this. The foreign worker has changed from being a subject of the law — a human being to whom the law gives rights and on whom it imposes obligations — into an object of the law, as if he were a kind of chattel. The arrangement has violated the autonomy of the workers as human beings, and it has de facto taken away their liberty. According to the restrictive arrangement, the foreign workers have become work machines — especially in view of the fact that the employers have allowed themselves, unlawfully, to transfer them from one employer to another — and they have become likes slaves of old, like those human beings who built the pyramids or pulled oars to row the ships of the Roman Empire into battle.

What has happened to us that we are treating the foreign workers, those human beings who leave their homes and their families in order to provide for themselves and their families, in this way? We are overcome with shame when we see all this, and we cannot remain silent. How have we forgotten the law of the stranger that has been enshrined in the humanism of Judaism throughout the generations: ‘And you shall not oppress a stranger, nor shall you pressurize him, for you were strangers in the land of Egypt’ (Exodus 22, 20 [32]). Rabbi Shelomo Yitzhaki (Rashi) comments on this: ‘Every use of the word “stranger” means a person who was not born in that country but came from another country to live there’ (Rabbi Shelomo Yitzhaki (Rashi) on Exodus 22, 20 [33]). Was Rashi speaking of our case? As E.S. Artom says in his commentary: ‘ “And… a stranger” — a gentile who lives among the Jewish people and who has no friends or relative who can come to his aid at a time of need.’ Could these remarks refer to foreign workers? The Torah has also told us: ‘And you shall not pressurize a stranger, for you know the feelings of the stranger, because you were strangers in the land of Egypt (Exodus 23, 9 [31]). The Torah tells us ‘for you know the feelings of the stranger.’ Rashi comments: ‘The feelings of the stranger — how difficult it is for him when people pressurize him’ (Rabbi Shelomo Yitzhaki (Rashi) on Exodus 23, 9 [34]). Do we really know how the stranger feels? I doubt it.

5.    I am prepared to assume that the foreign workers — most of them — are prepared to suffer the violation of their dignity and liberty; even if they are not happy with this violation, they accept it with the submission that comes from their having no other choice. It is even possible that this lifestyle is the accepted norm in their countries; in any case, they accept their fate as long as they can send the monthly amount to their families to support them. But even if the foreign workers are prepared to accept their fate, we cannot allow the phenomenon of the restrictive arrangement to continue to exist in our community. Indeed, the foreign workers, the weak and vulnerable among us, have had the good fortune that good people have voluntary come to their aid. These are the petitioners before us. By virtue of the merit of these compassionate people, we have been given the good fortune and the merit of protecting the human image of those workers. And we will protect them, the foreign workers, even though they have not asked this of us.

6.    I saw what was being done in our country and I remembered a ruling that was made abroad. This was in the famous judgment given in the United States in Lochner v. New York [29]. In that case the State of New York limited the hours of work in bakeries to sixty hours a week and ten hours a day. But this was, apparently, social legislation that was ahead of its time. The court struck down the law by a majority (Justice Holmes and three of his colleagues were in the minority), on the grounds that by limiting the number of hours of work the legislator was interfering arbitrarily in the freedom of contract protected in the Fourteenth Amendment of the Constitution, i.e., in the right of human beings to work as they see fit (‘the right to sell labor’). Later this decision was reversed, and rightly so. There are rights that were intended to protect a worker, and even if he wishes to do so, a worker may not and cannot waive them. Public policy prohibits us from recognizing the waiver. And in the same way that a person cannot, voluntarily, sell himself into slavery, so too we cannot recognize arrangements that, even though they are not slavery in the classic sense, nonetheless have certain aspects that were characteristic of slavery when it existed. See also HCJ 6845/00 Niv v. National Labour Court [23], at p. 695. We will not allow arrangements that involve a violation of human dignity, of the human image of a person, even if prima facie they were originally created — at least in part — for the benefit of that person. This is true as a rule, and it is also true in our case. A person is entitled to live a proper life.

7.    In conclusion, I would like to point out that my colleague Justice Levy speaks in his opinion, time and again, of employers who have taken the liberty — contrary to the law — of ‘moving’ workers who were attached to them to other employers, and in this way they deprived the workers of their right to continue to reside in Israel. I can only express my amazement at how one person can act unlawfully, while another pays the penalty. The authorities should adopt a strict line with employers who act in this way, and the sanction that should be imposed on them is very simple: they should be deprived of the right to have foreign workers working for them. This is what should be done to lawbreakers, and when it becomes known that the authorities are acting in this way, it can be assumed that employers will conduct themselves properly.

President A. Barak

I agree with the opinion of my colleague Justice E.E. Levy and with the remarks of my colleague the vice-president, Justice M. Cheshin.

HCJ 2390/96

HCJ   360/97

 HCJ 1947/97

1. Yehudit Karsik

2. Miriam Itzkovitz

3. Emma Marriot

4. Aharon Hoter-Yishai

v.

1. State of Israel, Israel Lands Authority

2. Municipality of Hadera

3. Local Planning and Construction Committee near the Municipality of Hadera

4. Committee for Housing and Industry, Haifa Region

HCJ 2390/96

1. Michael Samuel

2. Vardina Simon

v.

1. Minister of Finance

2. Israel Lands Authority

3. Ministry of Building and Housing

4. Committee for Housing and Industry, Haifa Region

                                                         HCJ 360/97

1. Shaul Rothman

2. Malka Arel

3. Pnina Goren

v.

1. Minister of Finance

2. Ministry of Building and Housing

3. Committee for Housing and Industry, Haifa Region

                                                        HCJ 1947/97

The Supreme Court sitting as the High Court of Justice

[13 February 2001]

Before President A. Barak, Vice President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, I. Zamir, T. Strasberg-Cohen, D. Dorner, D. Beinisch

Answer to Order nisi.  It was decided that the parties would argue as to the matter of the applicability of the law for the future or retroactively and whether it is appropriate to apply it to the expropriations which are the subject of the petitions.

Facts: In the late 1950’s the army needed training area and for this purpose the authorities worked to expropriate a range of about 137 dunam of land in the region of Hadera in accordance with the Lands Ordinance (Purchase for Public Purposes) 1943.  After a number of years – on 24 March 1966 – and according to his authority in section 19 of the Expropriations Ordinance, the Minister of Finance published a notice as to the granting of the land to the State and the land was registered in the land registration books in the name of the State.

The petitioners before us – in the three petitions that were heard as one are the heirs of the land owners of land in the area of the expropriation prior to the expropriations.  The same owners acquired the lands that they purchased in the mid 1940’s.  From the time of the expropriation and until the date of the petition the petitioners and their successors refused to accept compensation from the State in exchange for the lands that were expropriated from them

The expropriated land has served its designation as to the expropriation for about three decades, from when the land was expropriated until 1996.

In a meeting from August 31, 1993, finding that there was demand in the area for residential construction, the government decided to clear out of army from the area.  For this purpose an agreement was signed between the army and the Israel Lands Authority to clear this land and (additional land). 

The appellants claim that once the public need for which the land was expropriated has ended it is incumbent upon the State to return the property to its owners, contact those from whom the asset was taken, him and their heirs.  The property right of the owners obligates the expropriating authority to limit the harm to the property of the individual only for the public purpose for which the land was expropriated.  Once that public purpose is accomplished, the property is to be returned to its original owners.  In our matter: the land was expropriated for use for army training; now, when that public purpose no longer exists, the land is to be returned.  As for the new designation of the land for residential building the petitioners have two arguments: one that this purpose is not a public purpose at all and second, even if residential building is a public purpose, there is nothing to prevent the petitioners from accomplishing it and themselves implementing the construction project.  The petitioners therefore sought for the State to return the land to their possession, or at the very least, to compensate them at the present value of the land and not at its value when it was expropriated.

The State responded to the arguments of the petitioners, by arguing that all that has occurred was the replacement of one public purpose with another public purpose and the land did not need to be returned to its original owners.  The State also made the claim that the petition should be delayed due to delay in its filing. 

Held: The judges while varying in their approaches which led to the result were in agreement that if the public purpose which served as the basis for expropriation of lands according to the Lands Ordinance (Purchase for Public Purposes), 1943, ceased to exist, as a rule, the expropriation is to be cancelled, and the owner of the expropriated lands is entitled to the return of the lands subject to exceptions and rules that are to be formulated.   Some of the differences between the judges revolved around the role of the Basic Law: Human Dignity and Liberty in bringing about this legal rule.  The judges also called on the legislator to regulate the matter of expropriation of lands against the background of what has been said in this judgment.  Finally, the Court did not decide the question of the applicability of the new legal rule to the present matter, but decided to take a break and ask the parties to argue before the Court as to the applicability of the new legal rule in the present petitions, leaving this to be decided after the parties’ arguments are heard.  The claim of delay was rejected.

Basic laws cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8, 10

Legislation cited:

Lands Ordinance (Purchase for Public Purposes), 1943, ss. 2, 3, 5, 5(1), 5(2), 7, 19, 19(2), 22.

Planning and Construction Law 5725-1965, ss. 121-128, 188, 188(b), 188-196, 195, 195(2), 196(a), ch. 8.

Statute of Limitations Law

Orders of Government and Justice Ordinance 5707-1948.

Journalism Ordinance 1930

Emergency Powers (Detentions) Law 5739-1979, s. 2.

Law for Treatment of the Mentally Ill 5751-1991, s. 11.

Lands Law 5769-1969.

Emergency Powers (Detentions) Law 5739-1979

Regulations cited:

Defense Regulation, 1939.

Defense (Emergency) Regulations, 1945, r. 119.

Israeli Supreme Court cases cited:

[1]        Mot 33/53 Salomon v. Attorney General IsrSC 7 1023.

[2]        HCJ 30/55 Committee to Protect Expropriated Nazereth Lands v. Minister of finance IsrSC 9 1261.

[3]        HCJ 307/82 Lubianker v. Minister of Finance IsrSC 37(2) 141.

[4]        HCJ 67/79 Shmuelson v. State of Israel IsrSC 34(1) 281.

[5]        HCJ 2739/95 Mahol v. Minister of Finance IsrSC 50(1) 309.

[6]        HCJ 5091/91 Nuseiba v. Minister of Finance (unreported).

[7]        HCJ 465/93 Tridat S.A. Foreign Corporation v. Local Planning and Construction Committee, Herzeliyah IsrSC 58(2) 622.

[8]        HCJ 3956/92 Makor Hanfakot v. Prime Minister (unreported).

[9]        HCJFH 4466/94 Nuseiba v. Minister of Finance IsrSC 59(4) 68.

[10]     HCJ 3028/94 Mehadrin Ltd. v. Minister of Finance IsrSC 51(3) 85.

[11]     HCJ 5224/97 Yachimovitz v. Authorized Authority for Defense Regulations 1939, 1945 IsrSC 2 198.

[12]     HCJ 70/53 M’SH Company v. Bergman IsrSC 7 590.

[13]     HCJ 142/97 Avivim in Parcel 3947 Ltd. v. Minister of Finance IsrSC 24 (2) 397.

[14]     HCJ 282/71 Binyan v. Minister of Finance IsrSC 25 (2) 466.

[15]     HCJ 224/72 Geulat Hakerech Ltd. v. Minister of Finance IsrSC 26(2) 155.

[16]     LCA 6339/97 Roker v. Salomon IsrSC 55(1) 199.

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

[18]     HCJ 174/88 Amitai v. Local Planning and Construction Committee, the Center IsrSC 42(4) 89.

[19]     HCJ 262/62 Peretz v. Local Council K’far Shmaryahu IsrSC 17 2101.

[20]     CrimMA 537/95 Ganimat v. State of Israel IsrSC 39(4) 197.

[21]     CrimFH 2316/95 Ganimat v. State of Israel IsrSC 49(4) 589.

[22]     HCJ 2722/92 Elamrin v. Commander of IDF Forces in Gaza Strip IsrSC 46(3) 393.

[23]     HCJ 4772/91 Hizran v. Commander of IDF Forces in Judea Samaria IsrSC 46(2) 150.

[24]     HCJ 2313/95 Contact Linsen (Israel) Ltd. v. Minister of Health IsrSC 50(4) 397.

[25]     HCJ 4809/93 Local Planning and Construction Committee, Jerusalem v. Kehati IsrSC 58(2) 190.

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

[27]     FHC 7325/95 Yediot Ahronot v. Kraus IsrSC 52(3) 1.

[28]     HCJ 147/74 Sapolinsky v. Minister of Finance IsrSC 29(1) 421.

[29]     HCJ 63/52 Neiman v. Minister of Finance IsrSC 6 680.

[30]     HCJ 334/63 Galinovitz v. Minister of Finance IsrSC 48(2) 833.

[31]     HCJ 73/53 Kol Ha’am v. Minister of Interior IsrSC7 781.

[32]     HCJ 1188/92 Local Planning and Construction Committee Jerusalem v. Bareli IsrSC 49(1) 463.

[33]     LCA 5222/93 Lot 1992 Building Ltd. v.  Parcel 168 in Lot 6181 Ltd. (unreported).

[34]     CA 148/52 Kasprios v. Kasprios IsrSC 8 1289.

[35]     HCJ 40/80 Kenig v. Cohen IsrSC 36(3) 701.

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

[37]     HCJ 680/88 Schnitzer v. Head Military Censor IsrSC 42(4) 617.

[38]     HCJ 2000/97 Lindorn v. Karnit, Fund for Compensation of Victims of Road Accidents IsrSC 55(1) 12.

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

Israeli District Court cases cited:

[40]     CrimMot (TA) 1015/96 State of Israel-Minister of Finance v. ‘Paz’ Oil Company Ltd.  (unreported).

[41]     CrimMot (J-m) 51/94 Arad v. State of Israel (unreported).

American cases cited:

[42]     Higginson v. United States 384 F. 2d 504 (1967).

[43]     Wood v. City of East Providence 811 F. 2d 677 (1987).

[44]     Federal Farm Mortg. Corporation v. Smith 89 P. 2d 838 (1939).

[45]     Isley v. Bogart 338 F. 2d 33 (1964).

[46]     Crouch v. State 218 N.Y.S. 173 (1926).

[47]     People v. Helinski 634 N.Y.S. 2d 837 (1995).

German cases cited:

[48]     BVerfGE 38, 175 (1974).

Canadian cases cited:

[49]     Pineridge Property Ltd. v. Board of School Trustees of School District No. 57 (1982) 40 B.C.L.R. 221.

Israeli books cited:

[50]     I. Zamir, Administrative Power (vol. A, 5756, 1996).

[51]     I.H. Klinghoffer, Administrative Law (5717, 1957).

[52]     A. Kamar, Laws of Land Expropriation (5th edition, 5755, 1995).

[53]     Y. Weisman, Property Laws-General Part (1993).

[54]     A. Barak, The Essence of a Note (1973).

[55]     Y. Weisman, Property Laws-Ownership and Partnership (1997)

[56]     A. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993).

Israeli articles cited:

[57]     H. Dagan ‘The Laws of Governmental Taking and Laws of Competition – Toward a New Property Discussion’ Annual Book of Law in Israel-5756 (A. Rosen-Zvi editor, 1997) 673.

[58]     A. Hacohen, ‘’Is the Public Thieves’ On the Expropriation of Land Rights in Jewish Law’ Sha’arei Mishpat A (5757-5758) 39.

[59]     I.H. Klinghoffer, ‘The Attachment of Expropriated Land to its Designation’ Iyunei Mishpat B (5732-5733) 874.

[60]     H. Dagan ‘Distributive Considerations in the Laws of Governmental Taking of Lands’ Iyunei Mishpat 21 (5758-1998) 491.

[61]     Y.M. Edri ‘On a Declarative Constitution and a Constitutive Constitution – the Status of the Constitutional Property Right in the Human Right Ranking’ Mishpatim 28 (5757-1997) 461.

[62]     A. Gross ‘Property Right as a Constitutional Right and the Basic Law: Human Dignity and Liberty’ Iyunei Mishpat 21 (1998) 404.

[63]     A. Haviv-Segel ‘Problems of Adaptation and the Question of Public Purpose in Land Expropriation’ Iyunei Mishpat 21 (1998) 449.

Foreign books cited:

[64]     D.P. Currie The Constitution of the Federal Republic of Germany (Chicago, 1994).

[65]     H.D. Jarras, B. Pieroth Grundgesetz fr die Bundesrepublik Deutschland: Kommentar (Mnchen, 3 Aufl., 1995).

[66]     O.W. Holmes The Common Law (Boston, 1881).

Foreign articles cited:

[67]     M.J. Radin ‘Property and Personhood’ 34 Stan. L. Rev. (1981-82) 957.

[68]     F.I. Michelman ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law’ 80 Harv. L. Rev. (1967) 1165.

Other:

[69]     27 Am. Jur. 2d (Rochester, 1996).

Jewish law sources cited:

[70]     Mishlei 30, 19.

[71]     Kings I, 21, 2-3.

For the appellants in HCJ 2390/96 – Zvi Har Nevo, Tal Har Nevo

For the appellants in HCJ 360/97 – Amnon Evron, Alon Samuel

For the appellants in HCJ 1947/97 – Aryeh Feigenbaum, Ya’acov Lasri

For the respondents in HCJ 2390/96, HCJ 360/97, HCJ 1947/97 – Osnat Mendel

JUDGMENT

Justice M. Cheshin

A given area of land is expropriated by the authority for a given public purpose.  True to its word the authority makes use of that land for the purpose specified by the expropriation.  Years pass and that public purpose passes on from this world, and the authority seeks to make use of the land for another purpose, a public purpose or a non-public purpose.  Is the authority authorized to do what it seeks to do?  Those are the parameters of the field which we will plough in this opinion.

Background to the Petition

2.    In the late 1950’s the army needed a training area – primarily for shooting ranges  –  and for this purpose the authorities acted to expropriate an area of about 137 dunam of land in the region of Hadera.  The expropriation proceeding was properly conducted: as required by law, notices were published in the official register that all of the land in that area is needed by the Minister of Finance for public purposes and that the Minister of Finance intends to acquire immediate possession of it.  See notices according to sections 5 and 7 of the Lands Ordinance (Purchase for Public Purposes) 1943 (hereinafter we will title this ordinance – ’the Ordinance’ or ‘the Expropriations Ordinance’), which were published in Yalkut Pirsumim 5719 (from 25 December, 1958) and Yalkut Pirsumim 5719 757 (from 27 February 1959).  After a number of years – on 24 March 1966 – and according to his authority per section 19 of the Expropriations Ordinance, the Minister of Finance published a notice as to the transfer of the land to the State (Yalkut Pirsumim 5726 (1966) 1368).  The land was registered in the land registration books in the name of the State.

3.    The petitioners before us – in the three petitions that were heard as one – are the heirs of those who were owners – prior to the expropriations – of parcels of land in the area of the expropriation.  These owners had acquired the lands that they purchased – each on his own – in the mid 1940’s.  The petitioners and the original owners refused to accept compensation from the State in exchange for the lands that were expropriated from them; this was so at the time of the expropriation and until this very day.

4.    The expropriated land has served its purpose as per the expropriation; a training area for IDF soldiers.  Indeed, reserves soldiers and regular service soldiers will well remember ‘the sands of Olga’ near Hadera (Olga, for the interested, was the wife of Joshua Henkin, who is well remembered, and out of respect for Henkin the area was named for her).  This is how it was for about three decades, since the land was expropriated until 1996.

5.    In its meeting on August 31, 1993, and finding that there was demand in the area for residential construction, the government decided to remove the army from the area.  For this purpose an agreement was signed between the army and the Israel Lands Authority to clear the land (and additional land).  In consideration for this the army was to receive about twelve million NIS to build alternate shooting ranges.

6.    Several words about city zoning plans which apply to the land.  In the early 1980’s a plan was initiated according to which the majority of the land was designated for residential area A and an educational and sport complex (HD/450).  This plan was filed but it did not come into effect.  In accordance with HD/761 which was published to come into effect on 15 September 1985 (Yalkut Pirsumim 5745 3358), the area of the expropriations was designated for the building of a neighborhood of townhouses, and recreation and public areas.  In 1989 an amendment to the previous plan was filed (plan HD/761A), but it was not approved.  After the government decision of 1993 the Ministry of Construction and Housing prepared an alternative  plan – its neighborhood  plan – HD/VM 944 – according to which an area of about 160 dunam, including the petitioners’ lands, was designated for multi-story building (592 residential units), for public structures, for a commercial area and for open public spaces.  The petitioners in HCJ 360/97 (the Samuel family) filed an objection to the plan.  The objection of the Samuel family was dismissed and the plan was approved by the Committee for Building for Residences and Industry on November 17, 1996.  The approval of the plan was published in the Reshumot on 21 July 1997 (Yalkut Pirsumim 5757 4479).

7.    The Ministry of Construction and Housing began work on preparing the land for infrastructure and roads, and then on 24 October 1997 the notice of the Chairperson of the Committee for Building for Construction and Industry in the Haifa region was published as to the cancellation of the approval of plan – HD/VM 944) (Yalkut Pirsumim 5758 96, from October 24 1997).

Differences of opinion between the parties

8.    The petitioners claim and state:  when the public need for which the land was expropriated ceases, it is incumbent upon the State to return the asset to its owners, i.e. the one from whom the asset was taken, him or his heirs.  The property right of the owner – to the extent it was a property right – obligates the expropriating authority to limit the injury to the property of the individual only to the public purpose for which the land was expropriated.  When that public purpose is accomplished, the property returns to its home, its original owners.  In our matter: the land was expropriated for use for army training; now, when that public purpose no longer exists, the land is to be returned to its owners.  As for the new designation of the land – residential building – the petitioners have two arguments: one, this purpose is not a public purpose at all and therefore the ‘public’ use of the land has ended.  Alternatively, even if we were to say that residential building is a public purpose, there is nothing to prevent the petitioners from accomplishing it and themselves implementing the construction project.  There is no need that specifically the State perform the construction (construction which will be carried out, as is common, by private contractors).  The petitioners summarize their arguments as follows: it is a duty placed on the State to return the land to our hands, or at the very least, to compensate us at the present value of the land and not at its value when it was expropriated.

9.    The State rejects the arguments of the petitioners, and according to it what occurred was the substitution of one public purpose with another public purpose.  The building of a neighborhood in that location is within the bounds of a public purpose, and the expropriating authority acquired the authority to substitute one public purpose for another.  That is the law and that should be the law.  Moreover, given the multiple owners of the property, the need to establish a residential neighborhood will not be achieved other than by way of implementation by a single entity and the administration by an authorized authority.  This too demonstrates the ‘public’ aspect in continuation of the expropriation.  The respondents further argue that the petitioners delayed making their claims; that this delay has caused the authorities significant expenses, and therefore their request is to be denied.

These argue so and these argue so, and it is these differences of opinion that we must settle.

A general scheme in expropriations law

10.  There are two periods in the legal status of expropriated land; one, the period of the birth and two, the period of existence and cessation.  The first period – the period of birth – is the period of the expropriation processes, and will include the preconditions of expropriation, the topic of discretion in expropriation, notices, and the like, rules and norms which revolve around the expropriation process itself.  The second period – the period of the existence and cessation of the expropriation – revolves around the legal status of the land after it was expropriated: the use or lack of use – of the land for its designation; the legal status of the land upon the satisfaction of the public purpose for which the land was expropriated – whether this public purpose is replaced with another public purpose or whether there is no other new public purpose which comes to replace the original public purpose; and the question of the former owners’ connection to the land.

11.   Our interest, is primarily, in the second period, however, we cannot leap directly to this period – and understand what occurs in it – without saying a few words about the prior period.  As the second period is nothing other than a continuation of the first period, and we will have difficulty understanding the events of the second period where they are tied – if only chronologically –  to events of the prior period.

We will therefore open with several words about the first period, and we will then go to the second period which constitutes the essence of our matter.

Several words on the expropriation process

12.  None dispute the need to grant the State authority to expropriate the land of an individual for the good and welfare of the general public.  This is so for paving roads, establishing parks, building public structures, and so forth for other public purposes; provided, of course – as a matter of principle – that due compensation is paid to the owners.  This recognition lies at the foundation of the Expropriation Ordinance, according to which the Minister of Finance – meaning the State – has acquired authority to expropriate land for public purposes.  And as per the provision of section 3 of the Expropriation Ordinance, where the Minister of Finance ascertains that it is necessary or expedient for any public purpose he is authorized to acquire (inter alia) ownership, possession and right of use in any land.  Section 5(1) of the Ordinance, establishes that the Minister of Finance will publish in the Reshumot a notice of his intent to purchase land for public purposes, and the provision of section 5(2) further adds and instructs us that publication in the Reshumot as said ‘... is seen as determinative proof that that the Minister of Finance certified that the purpose, for which the land is about to be purchased is a public purpose.’  What is a ‘public purpose’?  Section 2 of the Expropriation Ordinance instructs us that a public purpose is ‘any purpose that the Minister of Finance certified as a public purpose.’

13.  As phrased in the Expropriation Ordinance, these powers that the Minister of Finance has acquired – powers which originally were granted to the High Commissioner himself – are far reaching powers.  And indeed in the early years of the State the Court interpreted the powers of the Minister of Finance very broadly:

The matter of expropriation of land for a public purpose is subject to the unlimited discretion of the Minister of Finance as the executive branch, and as long as he is acting in good faith, when he uses his discretion to implement his policy, he is under the oversight and review of the Knesset and not the review of the Courts. (Mot 33/53 Salomon v. Attorney General (Salomon legal rule [1], at p. 1028.)

‘The unlimited discretion of the Minister of Finance’ – so determined the Court.  The Court in our day would not even consider expressing itself in a similar manner.  See further I. Zamir ‘Administrative Power’ (vol. A) [50], at pp. 106-107, 197-198.  In the same vein the court said in that case (ibid [1], at p. 1027) that ‘there is no doubt, that according to the text of section 3 the discretion of the Minister is absolute’.  See further HCJ 30/55 Committee to Protect Expropriated Nazereth Lands v. Minister of finance [2] at p. 1264.  The courts at that time further determined that as to publication in the Reshumot according to section 5 of the Expropriation Ordinance, the Minister of finance is not required to specify the purpose for which the land was expropriated.

14.  This was so years ago, in the early years of the State.  Over the course of the years the legal rule changed gradually, and always in one direction: to narrow the discretion of the Minister of Finance and to make it more arduous for him in the processes leading up to expropriation.  The right of the individual to his property is dear to the Court, has risen in importance and as the recognition increased that the individual’s property is to be protected from the authority, so the Minister’s power has decreased in the act of expropriation.  Thus, for example, in HCJ 307/82 Lubianker v. Minister of Finance (the Lubianker case [3]) the Acting President determined that the interpretation that was given to the Salomon legal rule [1] ‘... was occasionally too far-reaching’ (ibid, [3]), at p. 147), and later:

The legislator indeed placed in the hands of the Minister of Finance the authority to determine that a certain purpose constitutes a public need, and that publication of a notice according to section 5(1) is decisive evidence of this...  However, it does not necessarily follow from this, that the Court will not examine, in its way, whether the considerations of the Minister, including the provision of certification as to the existence of public necessity, are not marred by a defect that goes to the root of the matter, such as lack of good faith or arbitrariness (ibid).

So too the Court further added and established in the Lubianker case  [3] – contrary to the case law that existed until that time – that the Minister of Finance is duty-bound to specify in the notice published in the Reshumot  the purpose for which the land was expropriated: ‘in order to prevent arbitrary use of the broad powers, that were granted by the Ordinance’ ‘[and] in order to allow effective oversight of the manner and substance of implementation of the discretion, it is proper that the purpose of the expropriation be known’ (ibid at p. 148).  See further: HCJ 67/79 Shmuelson v. State of Israel (the Shmuelson case [4]); HCJ 2739/95 Mahol v. Minister of Finance (Mahol case [5]) at pp. 327-328; HCJ 5091 Nuseiba v. Minister of Finance (HCJ Nuseiba [6]) (and in paragraph 4 of the opinion of Justice Mazza); HCJ 465/93 Tridat S.S. Foreign Corp. V. Local Planning and Construction Committee, Herzeliyah (Tridat case [7]), at p. 633.   In the same vein it was established that there would not be a lawful expropriation unless these three conditions were met:

The existence of a specific and defined public necessity; a connection between the specific public necessity and specific lands designated for expropriation; and the existence of a need to expropriate land in order to realize the public necessity (from the words of Justice Mazza in HCJ Nuseiba [6], in paragraph 3 of the opinion, in reliance on the words of the Acting President Shamgar in the Lubianker case [3], at pp. 146-147).

15.  According to the legal rule that was established, it is not sufficient to have a public purpose to expropriate some specific land; it is the duty of the authority also show that the specific lands ‘are intended and suited to serve a certain purpose’ (the Tridat case [7] at p. 633).  This is required to prove the link between the land and the public purpose and the need to prove that only expropriation would lead the authority to its purpose, meaning: it was not possible to achieve the result via a means causing lesser harm; HCJ 3956/92 Makor Hanfakot v. Prime Minister (Makor Hanfakot case [8] (in paragraph 6 of the opinion of Justice Or).  In one word: the expropriation must meet the test of proportionality.  See HCJFH 4466/94 Nuseiba v. Minister of Finance (HCJFH Nuseiba [9]), at p. 88 (in the words of Justice Dorner); HCJ 3028/94 Mehadrin Ltd. v. Minister of Finance [10], at p. 107, in the words of Justice Goldberg.  See further and compare H. Dagan ‘The Laws of Governmental Taking and Laws of Competition – Toward a New Property Discussion’ [57] at pp. 684-685.  For a similar approach in Jewish law, see A. Hacohen, ‘’Is the Public Thieves’ On the Expropriation of Land Rights in Jewish Law’ [58] at pp. 44-45, 54.  This complex legal rule, a legal rule whose subject is the application of the test of proportionality to an expropriation action and extra diligence in application of the test – we will keep in mind for the later part of our discussion.  We are now speaking of the first period of the expropriation system – the period of birth – and when we arrive at the matter itself – at the examination of the second period – we will seek to draw an analogy from the first period as to the period that follows it.

Thus far – essential elements in an expropriation action.

Land after its expropriation – an act that severs the connection and an act that preserves the connection

16.  All the required prerequisites have been fulfilled according to the Expropriation Ordinance, and the Minister of Finance has ordered the expropriation of a certain land for a certain purpose.  What happens to  the land after its expropriation?  Is the Minister of Finance able and permitted to give the land to the highest bidder the day after the expropriation?  Is he permitted and authorized to change the purpose for which the land was expropriated to another purpose?  For any other purpose – whether it is a public purpose or not?  Does the State acquire ownership in the expropriated land as though it were a person who inherits land from his parents?  Does the State acquire free and clear ownership of the land without any ties to the former  owners?

17.  In principle – and as per the jurisprudence of administrative law – it is possible to characterize the status of expropriated land according to one of two models: the one model is the model of the ongoing connection and the other model is the model of the severing of the connection.

The ongoing connection model holds that the past owner holds on to a legal connection – of some degree or other – to the land that was expropriated from his ownership; and that the act of expropriation does not disconnect the owner entirely from that land.  This is so as regards the past owners.  Regarding the expropriating authority, the meaning of that legal connection is – in principle – that the authority has a continuing obligation to justify the act of expropriation.  An analogy for this could be found in the act of seizing of assets according to the Defense Regulations of 1939.  In one case the authorized authority decided to take possession of a certain apartment, and when the petitioner challenged the decision the respondent responded that the ‘the condemnation order had already been carried out’, and that it is the rule that the Court does not interfere ‘after the fact’.  As to this claim Justice Silberg said the following:

Condemning assets according to regulation 48, is not a one time act, but an ongoing action, which draws its right of existence from the continuing will of the condemning authority (HCJ 5224/97 Yachimovitz  v. Authorized Authority for Defense Regulations 1939, 1945 [11] at p. 200).

According to the law in effect at that time, it was possible to decide as to seized land only for a specific purpose such as public safety, defense of the State, the efficient operation of the war or provision of essential supplies and services for the public.  And this connection between the seizure order and the purpose that the order was meant to achieve has led to the conclusion that the continuation of the seizure ‘requires the continuation of the purposes for which it was carried out.’ I.H. Klinghoffer, Administrative Law [51] at p. 108.  See also HCJ 70/53 M’SH Company v. Bergman [12] at p. 593, in the words of Justice S. Z. Cheshin).

As an antonym to the model of the ongoing connection is the connection-severing model, and as its name implies: when the act is performed properly and without birth defect – it is as though a new life begins that has only a historical connection between it and the life before that action.  According to this model, expropriating the land from its owner severs all connection between the former owner and the land, and from the moment of expropriation the two are strangers to one another.  Indeed it is possible to challenge the act of expropriation if it had a defect or flaw when it occurred; but not if the act was done lawfully and within the framework of authority; in this case the act is done; the owners will be separated from the land and the two will each go their separate ways.

18.  This distinction between the ongoing connection model and the connection-severing model – is a normative distinction; a normative distinction as opposed to a factual distinction, a description, of a set of circumstances.  This normative determination is founded on considerations of legal policy.  The law itself may not guide us explicitly one way or another, but the court will be of the view – in construction of the law – that it is proper to classify a specific action as action maintaining the connection or action severing the connection.  It goes without saying that this classification is made, in order to apply to the given action a set of norms that the Court is of the view should apply to it.

The action of expropriating land – is it a connection-severing action or is it a connection-maintaining action?

19.  How should we classify an act of land expropriation? Is it a connection-severing action or is it a connection-maintaining action?  The law’s naked provisions do not guide us explicitly one way or another.  Ostensibly one could argue that expropriation is a connection-severing action, meaning: after the expropriation the original owner loses all connection to the expropriated asset – forever.  At the same time one could make the counter argument that expropriation is made up of both a connection-severing action and a connection-maintaining action.  And so, in relation to the expropriating action itself, a set of norms will apply which is suited to a connection-severing action.  At the same time the institution of expropriation, the complex of expropriation, the relationship of the former owner to the land that was expropriated – like the seizing of assets in the example we brought above – is a connection-maintaining action.  It follows that, even after the expropriation act the original owner continues to maintain a connection to the land – to one degree or another – parallel to the duty of the authority to continue to use the expropriated asset according to its designation at the time of the expropriation.

How will we determine the law?  Our determination will be derived – as is the practice for us – from the foundational principles which guide the legal system, the same principles which make up a part of the genetic compass of the entire legal system, principles which may not be written in a book but guide us on our path, they are the same ‘pupils’ which live in our bodies and teach us what we will do and what we will not do.

20.  In the distant past – and in the not so distant past – the governing doctrine classified the institution of expropriation as a connection-severing action, an act that was completed – at the very latest upon the registration of the expropriated land in the State’s name.  Upon the transfer of the ownership in the property from the owner to the State the expropriation was completed, and thereafter the connection between the original owners and the land was severed forever.  Indeed, the owner could and was permitted to attack the act of expropriation itself, but once it was found that there was no defect in the act of expropriation itself, the owner would be separated from his land.  The analogy to the matter was to an out-an-out sale, which after the completion of which the seller loses all connection to the land.  Indeed, for certain purposes – such as calculation of compensation – expropriation was compared (and is still compared) to a compulsory purchase, but in the past the doctrine extended this analogy to the connection – or should we say: to the lack of connection – of the former owner to the asset after the expropriation.  The law relied, inter alia, on the provision of section 19 of the Expropriation Ordinance, that after the publication of the notice in the Reshumot on behalf of the Minister of Finance that a certain land is transferred to him ‘... the land will be granted to the Minister of Finance... free of any encumbrance, and the administrator of the Registration and Land Arrangement Division will bring about the proper registration in the property books’.  (Section 19(2) of the Ordinance).  Thus, for example, Justice H. Cohn said in HCJ 142/97 Avivim in Parcel 3947 Ltd. v. Minister of Finance (the Avivim case [13]), at p. 414:

Not only is it that the public purpose for which the expropriation was made does not need to be revealed at all to the owners of the expropriated assets, but it also does not obligate the authority at all: it may use the expropriated land for that same public purpose, it may use it for other needs, or it may not use it at all – and the property owner has no standing before the expropriating authority nor any cause of action against it for any use or other, or for lack of use, of the expropriated asset in the period after the expropriation. 

And Justice I. Cohn said (ibid p. 408):

Not only is the special purpose for which the land will be used not specified in any law, but it also does not need to be disclosed in the notice of the Minister of Finance according to section 5 of the Ordinance.  This fact also has practical ramifications.  As my distinguished colleague Justice Berinson pointed out at the time of the hearing of the arguments, it is not at all necessary that the lands that were expropriated serve specifically that purpose intended by the Minister of Finance at the time of the expropriation, but the purpose can change from one public purpose to another public purpose and it is even possible, that the land that was expropriated for public necessities will not serve those necessities at all.

21.  According to this legal rule, with the completion of the act of expropriation the right of the owner of the asset dissolves, and the authority is permitted and free to do with the asset as it pleases, as in the case of an owner who inherited the land from his elders.  The public purpose for which the land was expropriated was satisfied with the act of expropriation; the life span of that purpose equals the lifespan of the act of expropriation.  When the act of expropriation was completed the authority takes over the land of the owner, while the former owner is not left with any remnant in that land.  This legal rule was reiterated in HCJ 282/71 Binyan v. Minister of Finance (the Morris Binyan Case [14]), in which land was expropriated for the use of the army (the Allenby Camp) and after some time had passed the State wished to offer the land to foreign residents ‘in the framework of savings for building residential apartments.’  The former owner  Morris Binyan asked that after the abandonment of the public purpose that the land be returned to its ownership, but the Court decided it was not authorized to grant the request and assumed as a given that the act of expropriation severed all connection between the owner and the land that was expropriated.  (Justice I. Cohen mentioned the provision of sections 195 and 196 of the Planning and Construction Law 4725-1965 (which deal with the continued connection of former owner to property that was expropriated, and which we will address later), and in discussing them he said (ibid at p. 469) that: ‘... it may be desirable to legislate similar provisions as to all lands that were expropriated for public purposes, but this matter is within the authority and discretion of the legislator.’  All this, despite the fact that in the opinion of the judge ‘in the case of the petitioner, the injustice seems to particularly cry out...’ (ibid).  Justice Landau agreed that an

 ‘When a wrong that cries out was caused to the petitioner, as my distinguished colleague Justice I. Cohen noted, and the Court cannot provide salvation, it is a sign that the law and the use that was made of it in fact do not fulfill the requirements of justice.’ (ibid, at p. 469).

Further in his opinion Justice Landau said (ibid, at p. 470):

In the present case justice would demand that the State return to the petitioner and his brothers the land, once the security need for which the land was acquired has passed, and pay them usage fees for the years in which the land served for security purposes. . .  If the land is required today by the State for another public purpose (and I do not know if the plan of sale to foreign investors is a public purpose), justice would require that the petitioner be compensated according to the value of the land today.  However, this has no basis in the existing law, as the ownership in the land was transferred to the State in 1961, and what has already been acquired for public purposes is not to be acquired again.

...  I am of the view that the Ordinance requires amendment in order to find more just legal solutions to cases such as this.

The Court ruled in the same vein in HCJ 224/72 Geulat Hakerech Ltd. v. Minister of Finance (the Geulat Hakerech case [15]) at p. 157.  And again: the Court did not at all address the dichotomous classification of connection-severing actions and connection-maintaining actions.  The underlying assumption of the judgment – an assumption that was regarded by all as self-evident – was this, the institution of expropriation circles around the act of expropriation, and a completed act of expropriation severs once and for all the connection between the owner and the land that was expropriated from him.

22.  Therefore, the institution of expropriation – so declared the legal rule – is a connection-severing action.  This legal rule was solid – a monolithic law – without exception or loophole in it.  The courts indeed spoke up loudly in dissatisfaction, however, seeing themselves bound by the law’s provisions – as per their construction of the law – did not deviate right or left from the legal rule.  However, it appears that we would not do justice if we did not mention one voice which tried to cry out against the legal rule – not just with calls to the legislator to amend the law but in the construction of the existing law in favor of the owner of the expropriated land.  This was the voice of Justice Landau in the Avivim case [13], in which he sounded in everyone’s ears the rights of the owners after lawful expropriation (ibid, at p. 405):

... I am doubtful whether the Minister of Finance is permitted to expropriate for a given public purpose...  and later make use of the land in fact for a[nother M.C.] purpose or, for example for the purpose of selling it in the market to make a profit.  In such a case I would look for some sort of remedy, perhaps in Torts or in Unjust Enrichment laws, for the owner from whom the land was expropriated with ‘false claims’.

See further the Morris Binyan case [14] at p. 468.  However, here too Justice Landau is not suggesting we deviate from the traditional construction for expropriation, according to which the base assumption is that expropriation is an act severing connection between the original owners and the expropriated land.

23.  The connection-severing action legal rule brought sharp criticism from the father of administrative law in Israel, Professor I.H. Klinghoffer.  This criticism was sounded in a comment to the Geulat Hakerech case [15], in an article entitled ‘Attachment of Expropriation Land to its Designation’ [59].  Professor Klinghoffer suggested recognizing the institution of ‘public property’, according to which land which was expropriated should be subject to a special regime, a regime which is different from land which was not expropriated.  That regime would govern the expropriated land years after the expropriation obligate the authority to follow certain norms and at the same time grant the owners certain rights.  This normative regime is a regime of connection-maintaining action, and with the act of expropriation there is no severing of the connection between the original owners and the land that was expropriated.  Professor Klinghoffer quotes a statement from the decision in Geulat Hakerech case [15] that: ‘the demand of the petitioner [the former owner of the expropriated land – M.C.] is in fact the demand that the State transfer to him part of the property that today is in its ownership.’ And that ‘it is not appropriate that we interfere and turn the orders of land property on its head’, and therefore he says the following (ibid [59], at pp. 876-877):

...  these words, more than reflecting an interpretation of statutory provisions, express an approach and a principle.  The question is whether the approach and the principle are self-evident in the jurisprudence and laws of expropriations.  In several states this is not the rationale and not the law.  There, attachment of the expropriated land to its designation is not merely a formal matter where it is sufficient to simply declare it when the expropriation is decided upon, and which loses all importance after the transfer of ownership to the one who receives it by power of the expropriation.  The opposite is true: the connection to the public necessity for which the expropriation was granted, accompanies the asset for a long time after the property is taken from its owners.  If the asset is not used at all, or is not used in accordance with its designation, then the prior owner is entitled to demand its return...

If permission is established in the law to demand return of land that was not utilized at all according to its designation, the legislator may also find it appropriate to determine that this permission will also be given as to land that was so utilized and then such utilization ceased.

Professor Klinghoffer explained the same idea fifteen years earlier in his book supra [51].  And he said as follows (ibid at p. 154):

Creating public property, whether or not it involves transfer of ownership to the hands of the government, generally constitutes a serious if not severe intervention in property right that is not justifiable other than for the realization of certain purposes for the good of the public.  Therefore it is incumbent upon the legislator to ensure that in every case of such interference by the government the property be limited in a significant legal limitation to a public purpose, and the administrative authorities and the courts that supervise the legality of their actions, must ensure that the intervention not be other than for the public purpose that the property is designated to serve by law.

24.  This being so, Professor Klinghoffer suggested (although not in these words) replacing the doctrine with a better doctrine, meaning: instead of the classification of an act of expropriation as a connection-severing action, to classify it as a connection-maintaining action.  And let us consider this: the idea of changing the doctrine is not sufficient to change the provisions of the Expropriation Ordinance or to interpret the statutory provisions as other than what they are.  We are speaking of a foundational-doctrine which it is as though the Expropriation Ordinance has been built on.  It is as though the Expropriation Ordinance is ‘indifferent’ to the doctrine and can be interpreted according to one doctrine or the other.  The provisions of the Ordinance stay as they were, without any change – according to either one doctrine or the other – and there is no obstacle to maintaining one doctrine or another.  Absent explicit provisions in the law – and there are no explicit provisions in the law – the preference of one doctrine over another is nothing more than the resolution of a conflict of values; the values are those which will determine, they and not any technical interpretation of this provision or another.  These values – as we said elsewhere – are the body and soul of the Court when it sits to do justice and law.  See LCA 6339/97 Roker v. Salomon [16] at p. 264.

25.  It appears to us that Professor Klinghoffer was right in criticizing the legal rule, the legal rule which adopted for itself the doctrine of the connection-severing action.  Not only is this doctrine not called for by the Ordinance, but it particularly calls for the doctrine of the connection-maintaining action.  This latter doctrine is called for–as though on its own – from two principles: one, from the need to interpret in an integrated and harmonious manner the statutory provisions in expropriation – and primarily the continuity and continuousness which are required between the first period of the expropriation and the second period; second, and this is a consideration of the first degree: from the basic principles woven in each and every norm in the law (which also operate in the first period).

26.  As for the continuity from the first period to the second period: in our words above (see paragraph 14) we discussed a bit about the first period in the life of the expropriation – the period which revolves around the act of expropriation itself – and identified several of its features.  First of all, we saw that there is a burden placed on the Minister of Finance to explain and specify the notice which is published about his intention to expropriate specific land, and for which purpose he wishes to expropriate that land.  Second, as opposed to the legal rule established in the first years of the State – according to which the act of expropriation was almost like a locked room that no one enters – the Court determined – explicitly – its authority to exercise ‘effective’ review of every act of expropriation.  Third, the authority must prove that the following three factors exist in every expropriation action: the existence of a specific and defined public purpose; the connection of the public purpose to the land to be expropriated; and the existence of a particular need for expropriation in order to realize the public purpose.  In other words, the expropriation must meet the test of proportionality as to its three elements: the element of the rational connection of the means and the end; the element of the means with the least harm and the element of the utility-harm, an element which is also known to the public as the proportionality test in its narrow sense.  (See the words of Justice Dorner in HCJFH Nuseiba [9] at p. 88; HCJ 3648/97 Stemka v. Minister of Interior [17], at pp. 776-777).

27.  We will now turn to those characteristics required for expropriation to occur  – we will turn to them and ask questions.  The Minister of Finance bears the burden of explaining and specifying the purpose of expropriation and detailing it.  Ostensibly and absent a contrary indication, one would think – and this is the reasonable interpretation of the Expropriation Ordinance – that the specifying of the purpose and its publication were intended not only for the day of the expropriation itself but for the continuation of the road; because the purpose of the expropriation was meant to accompany the land not only on the day of the expropriation itself but years after the act of expropriation.  This interpretation of the Ordinance is more reasonable than the contrary interpretation according to which the purpose of the expropriation dissolves and disappears on the day of expropriation.  Indeed, is it reasonable to assume that the burden to publish the fact that the expropriation is being done particularly for an explicit and specific purpose, that this burden exhausts itself on the day of the expropriation action?  That the purpose of the expropriation is swallowed up and buried in the expropriation action with no remnants?  That the purpose of the expropriation was as ‘the way of the eagle in the sky, the way of the snake on the cliff, the way of the ship in middle of the ocean, and the way of man in woman’ (Mishlei 30, 19 [a]?  Meaning, that after the expropriation action the purpose disappears without leaving a trace?  Will we accept that the day after expropriation the State can sell the land to the highest bidder as the purpose of the expropriation has become, supposedly, not relevant?  Will we agree that after the expropriation the State can sit on its laurels for many years and not make use of the land for the purpose for which it was expropriated?  The questions are questions and the answers within them. 

28.  As for the three conditions which must be met at the time of expropriation (the existence of a specific public purpose; the connection of the purpose to the land; the need specifically for expropriation), we can raise the same queries of them we have asked as to the conditions of publication.  The Ordinance is silent and does not guide us as to the status of the expropriated land after the act of expropriation.  However, we would find it difficult to accept that these three conditions – like a silk-weaver (a silk making-butterfly) – are meant to live only a day or two – during the days of the expropriation – and afterward their lives end.  I could understand an argument that those conditions must exist in full force at the time of the expropriation, but later – in the second phase – they will indeed continue to exist but to a lesser degree.  But I will not be able to agree that these conditions will disappear as though with a magic wand after the expropriation action – literally from evening to morning – and that all the effort to satisfy the conditions was made for one day only, for the day of expropriation.  At the conclusion of all the conclusions we need to remember, expropriation of land was intended not just for one day, but for many years, and according to the doctrine which was accepted in the past: forever; will we accept that all the intensity will be concentrated on that one and single day while all the years to come – until the end of time – will not be counted?  My answer is in the absolute negative.

It also appears that the protection which property deserves – of property as property – necessitates this conclusion.  Just as a property right does not live one day only but exists over days and years – and in the matter of land: forever–so we will claim as a derivative conclusion, that the limitations which apply to the denial of a property right by the sovereign be of an intensity equal to the property right; they will be of equal intensity and will follow like a shadow the expropriated property right after it was transferred to the authority.

If these words apply as to the fundamental conditions of expropriation and for the public publication of the expropriation, all the more so will they be said–and in a loud voice–as to the proportionality test, a test that the expropriation action must meet with dignity.  In HCJFH Nuseiba [9] (ibid, at p. 88) Justice Dorner stated as to the proportionality test in connection with the expropriation of land:

This principle – the proportionality – includes in our matter three elements: first, the land must correspond with the accomplishment of the defined public necessity in whose name it was expropriated.  Second, property right are not to be harmed beyond the minimal degree necessary to achieve the public necessity.  In other words, it is permitted to expropriate land only if the public necessity cannot be achieved without expropriation, such as by implementation by the owner of the property of the project for the sake of which expropriation of the land is sought.  ...  third, there must exist a proper relation between the utility that will be derived by the public from the land and the injury that will be caused to the citizen as a result of the expropriation.

We will now examine these proportionality requirements, one at a time, and we will know that a strange and foreign conclusion it will be if we limit that proportionality to the day of expropriation; such that on the eve of the day of expropriation the need for proportionality will disappear as though it never was.

29.  Our conclusion as to our matter is that the characteristics of the first period in the expropriation – the expropriation action itself including that which is adjoined and attached to it – necessitate as though from themselves continuity to the second period.  The required conditions for the expropriation action, by their very nature and essence, were not intended for a short-term life, for the day of the expropriation alone.  They were intended for a longer life: not only for the day of the expropriation but for the second period as well.  Indeed, a bird’s eye survey of the system – in a broad synoptic view – will teach us that the institution of expropriation – as a continuum of the two periods comprising it – is drawn more to the center of gravity of the connection-maintaining actions – much more – than the center of gravity of the connection-severing actions.

30.  This is so as to the intrinsic characteristics of the expropriation, and it is certainly so when we give thought to the foundational principles in the law and the interests competing for supremacy: on the one side the needs of the state, the needs of the public, and on the other the interest of the individual in protection of his property.  Needless to say – these are self-explanatory – the planting of property right in the Basic Law: Human Dignity and Liberty requires us to strengthen–and in a significant manner – the protection of the property of the individual.  The Basic Law: Human Dignity and Liberty teaches us – in section 3 – that ‘a person’s property is not to be violated’ and this determination in the basic law – including the limitations which are dictated by the basic law itself – proclaims to us in clear language what the value of property of the individual is.  We view the property right of the individual through the prism of the Basic Law: Human Dignity and Liberty, and we know that the connection-maintaining doctrine – meaning a doctrine which in its entirety and its core was intended for none other than protection of the property of the individual – has been granted support of the highest order (in both senses).  As to the importance of the Basic Law: Human Dignity and Liberty to our matter, our colleagues have discussed this in the Nuseiba case [6], [9], and Mahol [5] – our colleague Justice Dorner even made this basic law the foundation of her words – and we have only come to strengthen what they have said.  See further, Zamir in his book supra [50] at pp. 200-201.

Moreover, in particular, because of the enormous power of the State in the expropriation action; in particular because of the limited protections given to the individual trying to protect his assets from an expropriation action; in particular because of these it is incumbent upon us to protect the property of the individual as much as possible.  Indeed, at times expropriation is an unavoidable necessity – this is the good of the public – and to this we all agree.  But, we will recognize the expropriation and support it as long as it does not infringe on the boundaries of the individual beyond the proper proportion.  Take a case where a certain land was expropriated for the purpose of the establishment of a public park.  After several years – following improvement in the city zoning plans, for example – the State seeks to sell the land to the highest bidder and to establish a park in another place.  In such a case we would find it difficult to circumscribe this intent to sell within the framework of the good of the public, and we will not know any reason why the individual should not have the right to have the land returned to him, if only he requests it (of course, while obligating him to return to the authority the compensation that he received, subject to the accepted conditions of interest and indexation, indemnification for improvement in the land, and possibly the payment of certain expenses that the State incurred).  The same is true where the authority did not implement the expropriation for an excessive period of time.  Compare the Tridat [7] and Nuseiba [6] [9] cases.

31.  The conclusion: expropriation should properly be seen as a connection-maintaining action, and conditions which constituted necessary  conditions for the expropriation action, by law should continue to exist – in principle–also in the second period.  We have said in principle, and we are referring to these two qualifications: one, some of the conditions of an expropriation action (such as the duty of publication) by nature will not take hold in the second period, and others may undergo a mutation during that period, meaning: it is possible that certain changes will occur in the conditions and still the expropriation will remain in effect as at first; second, there is a basis for the version that we will not demand that the preconditions to the expropriation action exist in the period of the years after the expropriation in the same intensity that is required for the expropriation action itself.  We will continue to discuss these topics later.

32.  As a side matter we will add (and this is not directly related to our matter): the law that applies where the authority has exhausted the public purpose for which a certain land was expropriated will also apply in the case in which the authority has not carried out the expropriation action over an excessive amount of time.  Indeed, an authority that has expropriated land for a specific purpose and for many years makes no use of the land for the purpose for which the land was expropriated, in its very omission reveals that it does not need the land that was expropriated: not at the time it was expropriated and not for the purpose for which it was expropriated.  That public necessity for which the property was taken from the individual and transferred to the use of the general public has been proven to be insufficiently strong and thus does not justify compulsory taking of the land.  If we have said that the proportionality test applies to the implementation of the expropriation, delay in implementation of the expropriation for an extended period raises doubts as to whether in fact the expropriation was a proportional means under the circumstances (as to this see the words of Justice Dorner in HCJFH Nuseiba [9] at p. 89).  From here the accepted legal rule follows, that unreasonable delay by the authority in accomplishing the purpose of the expropriation grants the individual the right to demand the cancellation of the expropriation.  See, for example, the Tridat case [7] and Nuseiba [6].  See further: HCJ 174/88 Amitai v. Local Planning and Construction Committee, the Center [18]; The Shmuelson case [4]; the Mahol case [5].  See at length A. Kamar, Laws of Land Expropriation [52] at pp. 178-188.

From doctrine to doctrine

33.  The reasons we have brought for the characterization of the second period in expropriation have weighed down the legal rule that classified the expropriation action as a connection-severing action; they have weighed it down and caused it to be tossed to and fro.  And note: the written law has remained as it was.  Nothing has changed in the Expropriation Ordinance itself.  It is the doctrine which has begun to change, the same doctrine that runs through the veins of the Expropriation Ordinance and gives it life.   Thus movement began from the connection-severing doctrine to the connection-maintaining doctrine.  And so, with the beginning of the recognition of the existence of a connection even after the expropriation action, the proper balance has begun to stabilize between the property right of the individual and the interest of the general public – not only for the day of expropriation but for the days to come after the day of expropriation.

34.  The recognition that it is proper that the accepted doctrine, the doctrine of the connection-severing action – will be invalidated and that another doctrine will come in its place – this being the connection-maintaining doctrine – has been seeping  through the case law for some time: beginning with the comments of Justice Landau in the Avivim case [13] and Morris Binyan [14]; continuing with the comments of Professor Klinghoffer; going through the legal rules established by the Acting President Shamgar in the Lubianker case [3] and up to the Nuseiba case in both its incarnations [6], [9]).  The pressure has steadily increased, and increased until the accepted doctrine has begun to lose its balance and stability.

A harsh blow to the connection-severing rule was dealt in the Mahol case [5], and in the same process the connection-maintaining doctrine – free and clear – began to rise up before us.  In that case, land was expropriated for development and building of tenements, public and welfare structures for residents of the area and those moved out of the old city of Acre.  The authorities did not realize the expropriation purpose.  After about 16 years following the publication of the notice according to section 5 of the Expropriation Ordinance and about 6 years after granting the land to the State (as per section 19 of the Ordinance), it was decided to change the purpose of the expropriation.  Following a wave of immigration of the early 90’s a severe housing crisis developed, and therefore it was planned to establish a neighborhood for new immigrants in that location instead of the original plan for the expropriation.  The petitioners, the original owners of the land, objected to this change in the purpose of the expropriation.  The judges were split in their views as to the question whether a change in designation and the leap from one purpose to another is sufficient to uproot the expropriation (and we will discuss this further down the road), however, all agreed that the owners of the land that was expropriated continue to maintain a connection to the land, and that in principle the right of the authority in the expropriated land is entirely bound up and dependent on the continued use of the land for a public purpose.  Justice Goldberg discussed this (at pp. 321-322).

... the expropriation was not intended to enrich the State.  There is an unseverable link between the expropriation of the land and the public necessity, to the point where one could say that from a conceptual standpoint the property right acquired by the State in the land that was expropriated from an individual – even if the expropriation processes were completed – is a conditional right, and the condition is the indispensability of the land for realizing the public necessity.  Once the public necessity has passed, or another ground has arisen to cancel the expropriation, the land is to be returned to its owner, if he so desires.  Returning the land in these circumstances is what restores the ‘property rules in land’, as otherwise the expropriation turns from a tool for achieving social ends to an independent purpose which stands on its own.

And later (at p. 322):

... the link of the land owner to the land that was expropriated does not melt away after transferring the land to the State and it could even be said that this link exists even after he received compensation for the expropriation, as the expropriation is understood to include not only economic harm but also harm to the emotional aspect which makes up property right.  Hence, even after completion of the expropriation processes the Minister of Finance still must act within the range of reasonableness in making use of the land, and is not permitted to make use of the land as though it was not purchased by way of expropriation.

And Justice Mazza stated (at p. 328):

Once we have found that even from the beginning the authority does not enjoy a presumption that it will use the expropriated land for the purpose of a public necessity that is sufficient to justify expropriation, but that it is to be made to explain in advance the purpose of the expropriation, it is difficult to perceive that the authority will be exempt from this after the expropriation, if and when it discovers that the public necessity for which the land was expropriated has ceased to exist...

See further the words of Justice Dorner in HCJFH Nuseiba [9], at pp. 87-88 and the words of Justice Mazza in HCJ Nuseiba [6] in paragraph 5 of his opinion.

35.  We will summarize by saying that in the expropriations sector we find ourselves today at the height of the transition from doctrine to doctrine: from the doctrine of the connection-severing action to the doctrine of the connection-maintaining activity; from a doctrine which instructs that in the act of expropriation the owners are forever severed from their property to a doctrine that instructs that the owners of land that was expropriated continue to maintain a connection to the land even after its expropriation, a doctrine which subjects the expropriated land to a regime of ‘public property’.  The meaning of this is that according to the doctrine which is hatching before our eyes, the expropriating authority is not entitled nor authorized to do with the expropriated land anything it wishes – as if it were the private owner – and it is subject to the regime of specific public uses of the land.  Indeed, the attachment of the expropriated land to a public designation may be necessitated by the property right of the individual, and the right of the individual should properly remain for him – in principle – and the land will return to his possession once its public use has concluded.  With the passing of the public purpose the legitimacy of continued possession of the property and ownership by the authority also passes.  The time has come to establish and erect the new doctrine in its place and we are declaring this today.  We are aware of course, of the mini-revolution we are effecting in expropriation law and the fact that we are recognizing a doctrine which somewhat changes the concept of property in lands.  However, this bite that the doctrine is meant to take out of property ownership, limits itself, by definition – and subject to other doctrines in law – primarily to the relationship between the State (or other public authorities) and the individual, and to the law of expropriation alone.  However, we are of the view that it is proper that we recognize the connection-doctrine.  The time has come for this.

36.  We will be precise in our words and say: all that we are saying now is that expropriation – in and of itself – does not sever the connection of the owner from land that was expropriated from his ownership.  In the second phase of expropriation – which is the phase after the lawfully executed act of expropriation – the original owner of the land maintains a ‘connection’ to the land that was expropriated, and at the same time the expropriating authority is obligated to make use of the expropriated land for a public purpose.  It goes without saying – it is self-evident – that the ‘connection’ of the owner to the land and duties imposed on the expropriating authority are none other than two sides of the same coin.  All that we have said is in the realm of doctrine only, meaning: the normative classification of expropriation is of connection-maintaining activity.  As to the content of that ‘connection’ and the scope of those ‘duties’, we have not yet said a word.

37.  And indeed, what is the meaning of that ‘connection’ and what is the scope of those ‘duties’?  Under what circumstances can the former-owner take legal action to receive what is due to him?  When will we say that the expropriating authority has deviated from the framework of the mandate that was given to it to continue holding the expropriated land, and under which circumstances will a duty be imposed on the authority to return the land to its owners?  What is the connection between the duty of the expropriating authority to return land to its former owner and its duty to pay him compensation?  We must address these questions, these, and others like them, in an organized fashion, one at a time, and not in one package.  We can say this, we are dealing with the second phase – the phase after the lawful expropriation – and where the authority does not make use of the expropriated land for the same designation that was declared upon expropriation.  That is the common denominator of all the types of cases at hand, however, at that point the roads diverge, as one type of case is not like the other type of case.  Thus, for example, a case where the authority makes use of the expropriated land for a different public purpose than the one for which the expropriation was intended is not similar to the case in which the designation of the expropriation was exhausted and the land stands barren or the authority wishes to sell it to a third party; and both these cases are different from other cases in which the authority does not realize the designation of the expropriated land and years pass with no action.  Each of these types of cases must be addressed separately, and the considerations which apply to one type of case will not necessarily apply to another type of case.  Thus, for example, the Court in the past has addressed the question as to what the law is for land that was expropriated but the authority has not realized the designation of the land at all; see the  Nuseiba case [6], [9]; see further the Tridat case [7].  However rules established for this matter will not necessarily apply as to the conversion of one public purpose to another public purpose.

38.  In brief: for now we have only established a framework for the normative structure that will apply in the second phase to land that was expropriated – and now it is incumbent upon us to fill this framework with substantive content.  The question is: what criteria will guide us in establishing the content of the normative structure which will apply to land that was expropriated in the phase after expropriation.  We will now address this question and related questions.

A comment on methodology

39.  This opinion has revolved around the question of the legal status of land that was expropriated from its owners.  This question can be examined from the perspective of two interested parties: the view of the former owner and the view of the expropriating authority.  On the part of the former owner we will ask whether he continues to have any legal connection to the land after it was expropriated.  On the part of the expropriating authority we will ask if the authority is entitled to treat the expropriated land as if it were its own – as though it purchased the land from its owners – or whether any limitations apply to its right to make use of the land.  It is possible, therefore, to look at the issue of the status of the land that was expropriated from the perspective of two interested parties, and it is unnecessary to say that this is a single issue, whether we examine it from the left or from the right; so too there is a single solution.  The way to the solution points, at its essence, to no more than a methodology for working out the issue.

In our opinion we chose to examine the issue from the perspective of the former owner, and for the following reasons (in increasing order of weight): one, this is how the question was examined in the past, and we have not found it proper to deviate from the path that was paved.  Second, the departure point for the interpretive journey is the expropriation action: John Doe is the owner of the asset, and now the State comes and expropriates that asset from his possession.  In analyzing the system from the perspective of John Doe – the owner – we view and consider the expropriation process and the land’s trek from hand to hand, and as something self-understood we ask what remains in the hands of the owner – if anything is left in his hands – after the expropriation action.  Third, examining the issue from the position of the former owner emphasizes especially the property right of the individual and the violent entry of the State into the individual’s realm – indeed, permitted entry, but still a violent entry.  It appears that it is proper to do so, particularly after the passage of the Basic Law: Human Dignity and Liberty, a basic law which elevated property right and placed them at the heights of basic rights.

As said, we will reach the very same solution whether we approach from the East or from the West.  And here, when we reach the solution, we will find – and not surprisingly – that it resides at the intersection of two paths: the path of constitutional law and the path of administrative law.  Constitutional law applies itself directly to the issue of expropriation, and after all we are speaking of violation of a constitutional right, the denial of property right.  At the same time the expropriation process, and afterwards the legal status of the expropriated land, generally are matters to be handled by administrative law.  A right – any right – that a public authority holds, it holds for the good of the public, which makes the right subject to the regime of public law.  We have known this since HCJ 262/62 Peretz v. Local Council K’far Shmaryahu [19], and nothing has changed.  However, land that was expropriated from its owners – is ‘public property’ of a special type, and a special set of norms applies to this public property, among other things as to its permitted uses.

40.  And in continuation of what we have said.  After having written what I wrote, I read the opinion of my colleague Justice Zamir.  My colleague states, that in speaking of the connection-maintaining doctrine I have used language ‘anchored in civil law’, and as to this he comments and says as follows: ‘But we find ourselves in public law.  Therefore I am of the view that it is preferable to say, in the language of public law, that the expropriation power is bound to the purpose of the expropriation throughout the entire period of expropriation.’ (In paragraph 7 of the opinion).  I read these words and continue to hold my position.

First of all, I would have difficulty describing the right of the owner as a right that is ‘anchored in civil law’ only, in the language of my colleague; is the instruction of the Basic Law: Human Dignity and Liberty – in section 3 that ‘a person’s property is not to be infringed upon’, an instruction from civil law?  I am of the view that the answer to this question is in the negative.  Indeed, the basic law cut to the heart of property right; raised it to the heights of constitutional law, and so dislodged it from the exclusive realm of the civil law.  Property right can be described – since the Basic Law: Human Dignity and Liberty – as a right under civil law and also as a right under constitutional law.

Second, in my words I specifically related to the intersection of two paths: the crossing of the path of constitutional law with the path of administrative law, and it appears to me that this is a precise description.

Third, unlike myself, who analyzed the issue from the point of view of the former owner – and consequent to this I talked about the maintenance of the connection of the owner to the land that was expropriated from his possession – my colleague describes the expropriation power as a ‘purpose appended’ power, meaning: ‘the purpose of the power must exist not only at the time the power is exercised, but also after the exercise of the power’ (in paragraph 6 of his opinion).  As to this matter my colleague further mentions (among other things) the Yachimovitz case [11] which I also related to.  My colleague finds the basis for this doctrine of a purpose appended power – as opposed to the prior doctrine in case law – in the Basic Law: Human Dignity and Liberty, and he tells us: ‘The change in the interpretation of the expropriation power, which recognized this power as a purpose appended power, occurred in the wake of the Basic Law: Human Dignity and Liberty.’  Thus, in my colleague’s view we find the basic law divides us, and yet also this is the statute that guides us.  And I stand up and ask: if the property provision in the basic law is itself what changes the law, then do we not learn from here that the defense of property – as per the provision of the basic law – is the fundamental element?  That the power of the authority – for purpose appended expropriation – will come as a result of property right and will be limited consequent to property right (rights from the civil law or the constitutional law)?  That the limited power of the authority to expropriate lands – given that it is purpose appended – is none other than derivative of property right?  That property right is the fundamental element and that we interpret the Expropriation Ordinance as limiting the expropriation power as required by property right?  My opinion can be learned from the questions I have asked.  However, as I said above (in paragraph 39) we stand at the intersection of constitutional law and administrative law – we will add to the intersection the path of civil law – and we can view the system from each of these paths while we capture with our gaze the other two paths as well.

Another comment on methodology

41.  It is proper that we be precise in describing the influence that the Basic Law: Human Dignity and Liberty has had on the scope of the expropriation power.  The Expropriation Ordinance preceded the basic law and as per the provision of section 10 of the Basic Law, that law does not ‘affect the validity of a law that existed on the eve of the start of the basic law.’  This statutory provision was the subject of differences of opinion, and my opinion has been – and has not changed – that the power of the basic law exists in the realm of construction but it cannot create something from nothing as to the statutes that preceded it.  See for example CrimMA 537/95 Ganimat v. State of Israel (CrimMA Ganimat [20]); CrimFH 2316/95 Ganimat v. State of Israel (CrimFH Ganimat [21]).  I spoke of this in CrimMA Ganimat [20] (at pp. 397-398):

And our words are such that by either approach the result is the same: either the prior law is open to several interpretations – if you will: to different ‘balances’ – or it is not open to several interpretations.  If it is open to several interpretations, the Court may and is permitted to change its course – just as it may have done so in the past – but it will do so in reliance on the prior law and its original scope, giving thought, as in the past, to basic rights.  In doing so the Court will operate within the bounds of its authority, while taking upon itself responsibility for its action without trying to rely on an interpretation that is, as it were, forced upon it by the basic law.

I have added to this and said in [21] (at p. 643):

We will add the obvious, that it is proper that the basic law grant us interpretive inspiration.  The legislator has planted a rose bed in the garden of the law, and we smell its scent.  We will interpret past statutes and the scent of the basic law will descend upon us.  However, we will always move in the circles that were established in previous law.

Thus also in our matter, as the Expropriation Ordinance is open to several interpretations at its core, as Professor Klinghoffer has taught us.  The seed of the doctrine of the owner’s connection was embedded – even if dormant – in the ground of the Ordinance from its inception.  All we are doing now is watering the ground above it and around it.  And as is the way of interpretation – in its broad sense – the doctrine that was dormant all these years rises and grows before our very eyes and now comes to life.

42.  As I have learned, the opinion of my colleague Justice Zamir is that after the establishment of the State ‘it was possible and appropriate’ that the Court interpret the Ordinance by way of limiting the power of the authority to infringe upon property right.  In other words, the Expropriation Ordinance could have been – properly – interpreted in our current manner even before the Basic Law.  I agree with the words of my colleague.  Indeed, the interpretation of statutes that were conceived and born during the Mandate period is not the same at their inception as their interpretation after the establishment of the State.  I discussed this question in HCJ 2722/92 Elamrin v. Commander of IDF Forces in Gaza Strip [22], where we were called to interpret the authority of the military commander to order the demolition of houses as per the provision of regulation 119 of the Defense Regulations (Emergency) 5745-1945.  And I have said as follows as to this power to order the demolition of houses (at p. 705).

I agree that in the language of the Ordinance – in its literal form, as my colleague says – there is no room for a narrow interpretation, the interpretation acceptable to me.  Indeed, the military commander has the authority, based on the language of the regulation, to order widespread demolition such as the demolition of that five-story house in the example we mentioned – and much beyond that, as I mentioned in HCJ 5359, 4272/91 [Hizran v. Commander of IDF Forces in Judea Samaria [23] M.C.] – however, it appears that no one would consider employing the authority in this way.  And further I agree with my colleague, that ‘according to the spirit of the words there’, in the regulation, it is not proper to limit its meaning – if he meant the ‘spirit of the words’ at the time the regulation was created in 1945, and in the spirit that a court made up of English ‘Mandatory’ judges would breathe into the regulation.  However that same ‘spirit of the words’ of the regulation has disappeared as though it never was – and by a wind greater than it – in 5748-1948, with the establishment of the State.  Statutes that were conceived and born in the Mandate period – including the Defense Regulations (Emergency) – had one interpretation in the Mandate period and another interpretation after the establishment of the State, after all, the values of the State of Israel – a free, Jewish and democratic state – are entirely different from the basic values that the Mandate holder imposed in the land.  Our fundamental principles – in our days – are the basic principles of a democratic state of law which seeks freedom and justice, and these are the principles which will breathe life into the interpretation of this statute and others.

I am of the view that one can go further, and that we can find the interpretation that narrows the expropriation power in the Expropriation Ordinance itself even without relying on the change that the establishment of the State brought about.  However, the primary point is that this narrow interpretation of the Ordinance was latent in the Ordinance even prior to the passage of the Basic Law.  This basic law indeed helped us reveal the hidden light, but it did not have – and does not have the power – to create something from nothing as to the statutes which preceded it.

Norms which apply to the expropriated land – analogy from the planning and construction law

43.  As said, non-use of land for its designation at the time of expropriation can arise for different reasons and legal rules which will apply in one case will not necessarily apply in another case.  It goes without saying that it is not our intention to deal with each and every one of the types of cases that occurred in the past – or those that might occur in the future – as everything has its time.  In our words below we will deal only with the basics of the normative regime which will apply in our view on the expropriated land in the second phase, and the basic tenets and specific subjects which arise in the matter before us.  To discover and develop the content of that normative regime we will make use of analogy to the Planning and Construction Law in our words below; learn from the regulations that have been adopted in other legal systems and norms which follow – or are even necessitated – in our view from the institution of expropriation itself.  We will begin with the provisions of the Planning and Construction Law, which heretofore we will call – the Planning Law.

44.  Parallel to the authority established in the Expropriation Ordinance – for the expropriation of land or the expropriation of rights in land – the Planning Law dedicates an entire chapter – chapter 8 comprising sections 188-196 – to the matter of expropriations according to zoning plans.  The Planning Law grants power to expropriate land that was designated in a local plan or a detailed plan for a public purpose and goes on to establish specific provisions for the process of implementing the expropriation.  Unlike in the Expropriation Ordinance, the Planning Law establishes specifically and in detail what ‘public necessities’ are (roads, parks, recreation and sports areas, nature preserves, antiquities and more – section 188(b) of the statute), and at the conclusion of the explanations and details it adds: ‘and any public purpose that the Minister of Interior has authorized for the purpose of this section.’   The detailed definition of the concept ‘public necessities’ does not add much, and it can be presumed that ‘public necessities’ in the Planning Law are identical with the public purpose in the Expropriation Ordinance.  Our issue now is not with all the provisions which detail the process of expropriation according to the Planning Law, but in the provisions of sections 195 and 196, which provide:

There is no need to discuss the details of the regulatory arrangement.  We will make do with saying that here the legislator explicitly recognized the continuing connection between the (former) owner and the land that was expropriated from his ownership and the option which must be given to the owner, in certain circumstances for the return of the land to its owner.  And these are the circumstances: where the designation of the land was changed according to the Planning Law – the former owner will be given the option to buy the land for consideration.  Land expropriated according to the Planning Law without payment of compensation, where its designation was changed to a designation for which land is not to be expropriated under the Planning Law – the land will be returned to its owner for free or compensation will be paid to the one who was the owner at the time of the expropriation were the expropriation to necessitate payment of compensation.  In dealing with the Expropriation Ordinance in the past the Court recognized this regulatory arrangement as a fair one in expressing the hope that the regulatory arrangement – or a similar regulatory arrangement – would also be applied to the Expropriation Ordinance.  See the Morris Binyan case [14], at pp. 468-469, 469-470; compare to the Avivim case [13] at p. 405. 

45.  Does the regulatory arrangement in the Planning Law illuminate the normative structure which applies to the second period in the life of an asset that was expropriated according to the Expropriation Ordinance?  There is no doubt that the regulatory arrangement of the Planning Law does not apply to an expropriation according to the Expropriation Ordinance; the regulatory arrangement  in the Planning Law does not apply itself to the Expropriation Ordinance, and the Expropriation Ordinance for its part does not have an incorporation provision of the regulatory arrangement  in the Planning Law while they are ostensibly foreign to one another, it would be odd if, in building a normative structure that would govern an asset that was expropriated according to the Expropriation Ordinance we would entirely ignore the regulatory arrangement  of the Planning Law.  This being so, the authorities can expropriate land from Reuven according to the Expropriation Ordinance or according to the Planning Law, and Reuven does not have control over whether the land in his ownership will be expropriated one way or the other (as to this matter we will mention that the Minister of Finance acquired the authority to expropriate according to the Expropriation Ordinance  even without a zoning plan, although generally a zoning plan will also be required for expropriation.  See for example the Mehadrin case [10] at pp. 96-97).

The choice is therefore in the hands of the authorities in what way and by what power a specific land will be expropriated, whether by the Planning Law or the Expropriation Ordinance.  See, for example the Mehadrin case [10] at p. 111 (however, let us remember that when the authority has at hand two different powers to achieve the same goal, it will not always have the freedom of choice whether it will make use of one power or another.  If it is a matter of infringement of a basic right.  See CrimMot (TA) 1015/96 State of Israel-Minister of Finance v. ‘Paz’ Oil Company Ltd. (the Paz case [40]) (in the words of Justice Kling); HCJ 2313/95 Contact Linsen (Israel) Ltd. v. Minister of Health [24], at p. 405 and the references there; Zamir in his book supra [50] at pp. 155-161.  In these circumstances it would be odd if the rights of Reuven – the owner of the expropriated land – would be different based on an ostensibly irrelevant factor, i.e.: according to the source of the authority that was used for the expropriation of the land from his ownership.  It is no wonder, then, that the thought arose to equate the two regulatory arrangements; see the words of Justice Mazza in the Mahol case [5] at p. 328.

What then is the relationship between the two regulatory arrangements?

46.  We will all agree, it appears, that the technical regulatory arrangements in the Planning Law will not necessarily apply to the Expropriation Ordinance.  This is true, for example, as to the time frame of thirty days mentioned in section 195(2) of the Planning Law.  The same is so as to the relationship between the local council and the district council, which does not apply as to the Expropriation Ordinance.  The analogy is warranted as to the fundamental regulatory arrangements in the Planning Law, and the question is what level of abstraction we will adopt in applying principles of sections 195 and 196 of the Planning Law.  It is clear to all that the fundamental provisions of section 195 and 196 of the Planning Law, were born of the doctrine of the ongoing and continuing connection, and when we say this we draw support for the interpretation of the Expropriation Ordinance as also founded on the same doctrine.  In other words, in expropriation according to the Expropriation Ordinance as well, the former owner maintains a connection with the land that was expropriated from his possession and in a deviation, were it to occur, from the original expropriation purpose, the former owner will be entitled in certain circumstances to the return of the land to his ownership.

47.  Can we go further than this?  For myself, I would proceed with caution.  Thus for example it might be asked: change of ‘designation’ as per the provision of section 195(2) of the Planning Law, can it be applied to a change in ‘purpose’ for land that was expropriated according to the Expropriation Ordinance even without a change in the zoning plan?  The answer to this question – as to many others – is not easy, if only for the reason that a change in designation according to the Planning Law requires, ostensibly, the creation of a new legal norm – preparing a local plan or a detailed plan – while a change in designation according to the Expropriation Ordinance will take place, generally, in an action and not a norm.  Another question: in the case of the exhaustion of the public purpose for which the land was expropriated is the authority bound to notify the former owner of this?  See for example, the criticism of Professor Klinghoffer (in his article that we mentioned in paragraph 23 supra, ibid [59] at p. 877) of the words of the Court in the Geulat Hakerech case [15]; in the opinion of Professor Klinghoffer it is proper that such a burden be placed on the expropriating authority.  See more below at paragraph 85.  We will leave this question – as others – for the days to come, its determination is not necessary for our present matter.  We will make do with stating that we should consider applying, with the appropriate changes dictated by the circumstances, the core elements of the regulatory arrangement in the Planning Law – or perhaps we should say: the life and spirit of the regulatory arrangement – on expropriation according to the Expropriation Ordinance as well.  Compare the Mahol case [5] at p. 319.  This, in any event, until the legislator makes time for the issue of expropriations and engages in the unification of the regulatory arrangements and their refinement.

Norms which apply to land that was expropriated – analogies from comparative law

48.  Additional ideas for the content of the status which applies to land that was expropriated can be drawn from comparative law.  Thus, for example the Constitutional Court in Germany ruled that land that was expropriated returns to its former owner where the purpose of the expropriation is not realized or where the asset is no longer needed for the purpose of the expropriation.  The Court based this conclusion when applying to the expropriation the second segment of the principle of proportionality: use of the least harmful means.  See D.P. Currie The Constitution of the Federal Republic of Germany [64], at pp. 293-294, and in the words of the Constitutional Court:

Aus der Eigentumsgarantie des Art. 14 GG folgt ein Rckerwerbsrecht des frheren Grundstckseigentmers, wenn der Zweck der Enteignung nicht verwirklicht wird. Fr die Realisierung dieses Anspruchs bedarf es nicht unbedingt einer ausdrcklichen gesetzlichen Grundlage (38 BVerfGE 175 [48], at p. 175).

And in free translation:

The right to maintain property according to section 14(1) of the GG includes the right to return of the property of the previous owner, when the objective of the expropriation is not realized.  To realize this right there is no need for an explicit law.

See further H.D. Jarras, B. Pieroth Grundgesetz fr die Bundesrepublik Deutschland: Kommentar [65], Art. 14, Rdnr. 60.

It is interesting to note that this legal rule which the Court in Germany established, constitutes ‘common law, the German version’.  The court based its conclusion on the provision of section 14(1) of the German basic law according to which ‘Property and the right of inheritance shall be guaranteed’ and according to the interpretation of the Court, the guarantee of the property right also contains within it the right of the former owner to return to his ownership land that was expropriated from his ownership where the objective of the expropriation is not realized.  The Court also determined that the provision of section 14(3) of the basic law – which permits expropriation only for the good of the public (‘Expropriation shall only be permissible for the public good’) – also leads to the same conclusion: the act of expropriation is a legitimate act only if it is for the good of the public, and when the good of the public ends – meaning when the purpose for which the land was expropriated ceases – the expropriation itself has nothing to stand on.  With the termination of the purpose of the expropriation, the legitimacy of the possession by the State of the land also terminates.  As discussed, this rule applies both where the purpose of the expropriation was not realized at all and where the first purpose of the expropriation has ended.  This rule is worthy of attention, if only because it is not the product of an explicit statute: it is an interpretation of the law, an interpretation which creates common law, the German version.  In our interpretation of the Expropriation Ordinance – we are similar to them.   Indeed, when the use for which the expropriation was made is completed, it is as though the ownership right is meant to return to the former owner free of any encumbrance or any contrary right (subject of course to the return of the compensation etc.).  The property right of the individual in the land is a legal value of high order.  When the public use is completed, the power of the State to hold the land is exhausted, and it returns home, to its original home prior to the expropriation.  The right of the former owner is not diminished even if at the time he received compensation for the land.  However–and so the law in Germany further adds – if many years passed from the expropriation to the abandonment of the original purpose, the authority is entitled to continue and hold the land and it is not obligated to return it to the original owner.

A similar law applies in French law, and where the authority – after a certain number of years have passed since the expropriation – makes use of the land not in accordance with the purpose of the expropriation, the former owner  is entitled to demand the return of the land to his ownership for a payment of its value.  This is also so in other countries on the Continent.  See the article of Professor Klinghoffer, ibid [59] at p. 896.

49.  The law is different in the United States and Canada. Expropriation of ownership in consideration of fair compensation severs the connection between the owners and the land; the right to compensation as though exhausts the property right of the owners and change of the public purpose later or its total abandonment – does not grant any rights to former owners.  See for example: Higginson v. United States (1967) [42]; Wood v. City of East Providence (1987) [43]; 27 Am. Jur. 2d [69], sub. Tit. ‘Eminent Domain’, §§ 934, 937, 940; and in Canada, Pineridge Property Ltd. v. Board of School Trustees of School District No. 57 (1982) [49].  However, as to the expropriation of lesser rights than ownership, in the United States and Canada a similar law applies as the law on the Continent.  Where the authority has expropriated only a limited right in the land for a certain public purpose, the land returns to its owners – clear of the expropriation – with the conclusion of the accomplishment of the public purpose, and the authority may not make use of the land for another purpose.  And in the language of the Court in the case of Federal Farm Mortg. Corporation v. Smith (1939) [44] at p. 839:

...if or when the purposes which authorized the condemnation had been terminated the burden of servitude is lifted from the land and the owner of the basic fee returns to full dominion.

See further Isley v. Bogart (1964) [45], at p. 34; 27 Am. Jur. 2d [69], §§ 934, 936, 939.

Moreover, due to this distinction between the expropriation of ownership and the expropriation of a lesser right than ownership the courts in the United States interpret narrowly the right that an authority acquires in land, and their tendency is to classify it as a limited right which enables the owners to return to what is theirs.  See 27 Am. Jur. 2d [69], §§ 911, 924.  In the case of Crouch v. State (1926) [46] the law granted the authority the power to seize land for the use of a railroad company.  The land was seized, compensation was paid, and after a time the purpose of the expropriation was abandoned.  The Court determined that the railroad company only acquired an easement in the land and as a necessary conclusion further determined that under the circumstances that were created the ownership returned to the original owners free of any expropriation.  And the Court said as follows (ibid at p. 179):

The rule is that, when private property is taken in the exercise of the right of eminent domain, particularly by a private corporation, the taking is limited to the reasonable necessities of the case, to carry out the purpose for which permission to take is given, so far as the owners of the property are concerned... We hold, therefore, that an easement only was taken in the property in question, which terminated when the state, through its sovereignty, diverted the lands from railroad purposes and appropriated them to its own use.

...

If the owner of such an easement abandons the property, sells it, or devotes it to some purpose foreign to that for which it was acquired, or if it is condemned or appropriated for a new public purpose, the owner of the reversion may assert his right to possession or claim compensation.

See further People v. Helinski (1995) [47].

50.  And so, comparative law may teach us, in principle that an owner can continue and maintain a connection to the land that was expropriated from his ownership, and that where the authority abandons the use of the assets for the original designation of the expropriation, the right of the former owner to return the land to his ownership emerges.

51.  We will be careful with our words: we are speaking only of the basic tenets of the connection doctrine; the tenets and not the detailing of norms that this doctrine brings with it.  The heart of the doctrine is important, it goes without saying, but from here on we will add and say that the ‘permission is granted’ and thus once we have learned the principle, we will put it away in a  backpack on our backs, and for the rest of the journey we will proceed on our own strength.  We will develop the principle in our way and slowly proceed on the road on which we walk, while we determine – on our own responsibility – in the struggle between the basic tenets which guide us at all times: on the one hand the right of the individual to his property and the extent of the proper defense of property, and on the other the interest of the public – the welfare of the public and the undisputed need to establish proper infrastructure for the society in which we live.

Land that was expropriated – leaping from one public purpose to another

52.  Until now we have spoken, primarily, about land that was expropriated for a specific purpose and the purpose ceased to exist (or which never came into being by action).  A separate and different question is, what is the law where the land was expropriated for a specific public purpose, and after a time the authority decides to make use of it for another public purpose – a public purpose that to begin with would have justified expropriation for that designation; it would have been justified – but the land was not expropriated for it.  On this subject – one of the subjects in which ‘permission is granted’ – differences of opinion have surfaced in this Court.  One view holds that within the innards of the concept ‘public purpose’ in the Expropriation Ordinance – meaning, a purpose for which it is possible to expropriate land assets – all the public purposes for which land can be expropriated are running about, and as a necessary conclusion of this: in this framework of ‘public purpose’ it is possible to pass and leap from one public purpose to the next and the validity of the expropriation will not be harmed nor scratched.  Thus, even if a parcel of land was expropriated for public purpose A, the authority can change its mind and make use of it for public purpose B.  Justice Goldberg expressed this in the Mahol case [5] and he told us as follows (ibid, at p. 323):

In my opinion the authority is entitled to use the land that was expropriated for another public purpose, which itself justifies, the expropriation of the land, and its hands are not to be tied specifically to the original purpose that was at the source of the expropriation.  The fact that this approach is consistent with the public interest needs no elaboration… If our assumption is, that the new public need justifies expropriation of the land and that, if the land were not expropriated at the time for the [first] purpose, the authority could have now expropriated it for the new purpose, what is the justification not to allow a change in the purpose?  This example illustrates that the public interest that the planning authorities are charged with advancing requires that they not shut their eyes to the sight of the changing needs of society and in the face of changes in social priorities.  To the contrary: an authority that freezes the policy of making use of the land that it expropriated for needs that were proper at the time of the expropriation and does not adapt itself to the needs of the time and the place, fails to serve the public interest.

The protection of the property right of the individual does not justify an interpretation according to which the Minister of Finance is obligated to stick with the original purpose of the expropriation where there is a new public purpose for whose realization it would have been possible to expropriate the land to begin with.  When the property right retreats before the public necessity, this need continues to prevail despite the change in original purpose.  Change in the purpose of the expropriation, in itself, does not therefore constitute grounds to cancel the expropriation.

A contrary approach was expressed by Justice Mazza in that same case.  According to this view, when the first public purpose terminates, a duty is imposed on the authority to return the land to its original owners.  And if indeed a new appropriate public purpose has been found, the authority can again expropriate the land while paying compensation as per its value at the time of the expropriation (of course with appropriate calculation including deduction of the compensation that was paid at the time of the original expropriation etc.) and in the words of Justice Mazza in the Mahol case [5] (ibid, at p. 328):

When the public purpose for which the land was expropriated ceases to exist, the owners will have the choice of taking back the land, or demanding and receiving its value...  and if the land is still needed to satisfy another public necessity, then the authority is required to again declare the expropriation of the land for the new need.  This method might slightly burden the authority and lengthen the administrative process, but the property right of the owners will be respected and so long as there exists a justified necessity again expropriate the land from him, this necessity will need to be realized via the high road and not by roundabout paths.

Similar words were expressed by Justice Mazza in the Nuseiba case [6] in paragraph 5 of his opinion.  So too were the words of Justice Dorner in HCJFH Nuseiba [9] (ibid, at pp. 87-88):

In states which recognize property right as a basic right, a governmental authority is not free to use an asset it has expropriated other than for that purpose for which it was expropriated, and the asset is not to be used for another purpose, even if it is for the good of the public... In Israel the practice is different.  An authority that expropriated land for a specific public purpose tends to take advantage of it for another purpose.  This practice cannot hold, as a broad interpretation of the power which enables the authority to use the land for a purpose different from the purpose for which it was expropriated, contradicts the principle established in the case law as to a narrow interpretation of the power to infringe on a person’s basic right.  All the more so that a broad interpretive approach is not to be accepted with the passage of the basic law.

My conclusion therefore is that change in the purpose is grounds for cancellation of the expropriation.

53.  In our matter we need not settle between the two versions.  There is logic and reason in each of them and the preference of one over the other is a policy determination.  Some will hold one way, others will hold the other, and absent a legislated and binding statutory provision, a person from the one camp will not be able to protest against a person from the other camp: justice is in my bag, your bag is empty.

After saying the things that I said, I will add for my part, that I lean toward the second version, the one which limits the authority’s power.  First of all, this version brings expropriation as an institution to a complete whole, to an action with its own internal logic, logic which leads us from the beginning of the expropriation until its end.  This version draws a straight path between the act of expropriation itself and the second phase in the life of the expropriated land, and it can fill with substantive content the burden imposed on the Minister of Finance in the expropriation proceedings, and the burden is: to decide precisely for which purpose he is expropriating the land, and by way of publishing it in the Reshumot to publicize this purpose among the public.  The determination of the specific purpose for the expropriation – its establishment and publication in public – are like a royal seal which is stamped on the normative status of the land for the second phase of its life, and they determine the status of the land in the continuation of its life.

Second, this interpretation of the law gives force and intensity to the individual’s right to property, as is appropriate in our time and place.  In this matter we will add what we have all known, the higher status that property right has acquired in the provision of section 3 of the Basic Law: Human Dignity and Liberty.  Indeed, if Reuven’s land was expropriated for a specific purpose for the public good, what justice is there in the public continuing to hold on to that land after the termination of the purpose of the expropriation, even where another public purpose has come to replace it?  If indeed, another public purpose has sprouted and arisen, the authority should show some respect: expropriate the land anew, and in this way give appropriate and proper expression to the property right of the owners in the land.  The individual from whose ownership the land was expropriated has already made his contribution to the public, and there is no justification for him to again contribute to the public.  To the contrary, the principle of substantive equality – the same principle which is woven in each and every norm in law – dictates that when the public purpose for which the land was expropriated from a specific person for the good of the entire public is exhausted, the land is to be returned to that specific person – its former owners – to those owners that have already made their contribution to the public.  With the return of the land to its owners – and it is possible that this will be, as an interim stage, merely a conceptual return – the equality principle will require us to conduct a renewed assessment of which land should be expropriated, and whether it should again be the land of that specific person.  In this renewed assessment it will also be appropriate to make use of the consideration that that same specific person already made his contribution to the public.  This, in the context of our matter, is one of the conclusions that arises from the principles of social solidarity and community responsibility.  See further and compare H. Dagan ‘Distributive Considerations in the Laws of Governmental Taking of Lands’ [60].

Despite all these things – and they are important things – there is reason and logic, even public reason and logic, in the other version as well.  We cannot say to those holding the other version that they are mistaken and their version is not ‘correct’.  And those who come after us will resolve this.

54.  Reason suggests that not every change in the original public purpose will bring about a ‘termination of the expropriation’ and the return of the land to its original owners.  And indeed, Justice Mazza establishes in his opinion in the Mahol case [5] (ibid, at p. 328), that:

Not every change, but only a substantive change in the definition of the public necessity for which the expropriation should be considered as a new public necessity.  Meaning, that a change which is not substantive will not suffice to detract from the ostensible validity of the expropriation.

One should distinguish therefore between a substantive change in purpose and a change which is not substantive, as only a substantive change will uproot the original purpose from its place and impose on the authority the burden of returning the land to its original owners.  Further on, Justice Mazza further adds two criteria for determining whether the change that occurred was ‘substantive’ or not, and one who wishes should study and learn (the Mahol case [5], at pp. 328-329).

Even in this matter – with the reservations we have discussed above – our view leans toward the view of Justice Mazza.  Until we can say that the original purpose of the expropriation has terminated and is no longer, a substantive change must take place in the purpose.  This will be so in the case of the termination of the public purpose whether another public purpose comes in its place or not.  But when another public purpose comes in the place of the original purpose, another question will arise – how distant is the new purpose from the original purpose to the point that we can say that the first purpose has terminated and is no longer.

Resolution of this question will depend on the circumstances of each and every case, and we will have difficulty establishing hard and fast rules in advance.  Indeed, some public purposes are so close to one another that at times we will have difficulty distinguishing between them.  At the core of things, the question is to what level of abstraction will we follow in assessing the various public purposes.  Justice Goldberg, as we saw, was of the view that the authority is entitled to move freely among public purposes and not to return the land to its owner even if another public purpose has come in the place of the original purpose.  This is the highest level of abstraction.  This interpretive approach is difficult for us, as we have seen.  On the other hand, we will not agree that every change and even the smallest change will bring about the return of the land to its owners.  The question is reduced therefore to the level of abstraction which will be appropriate in our view, in general and in each and every case.

55.  As an aside: the very same question will also arise in the interpretation of the Planning Law.  The legislator instructed us in section 195(2) of the Planning Law that where land was expropriated according to a zoning plan, the right of the original owner comes back to life where ‘their designation was changed according to the provisions of this statute’.  What does ‘their designation was changed’ mean in the context of these matters?  For example: is it sufficient that the new plan establish that the designation of the land will be different than in the past, and the map appended to the plan will color the land a different color than in the past?  In my view, the answer to this question is in the negative.  The correct question will revolve around the substance of things and not their outer appearance.  We must examine the prior uses of the land; its new uses; compare them and decide whether the changes that occurred are substantive changes or not.

56.  As a rule, one could claim, that where land was expropriated for one public purpose, and the authority seeks to change its use to another public purpose, the authority must revisit the expropriation path established by law or return the land to the original owner (with deductions as required).  And if for any reason there is no possibility of returning the land to its owners nor a possibility to expropriate it – such as the land was sold to a buyer for consideration and in good faith – reason dictates that a duty will be imposed on the authority to compensate the owner at the appropriate amount, as though it had expropriated the land anew or as though it returned the land to the former owners.  In this way the rights of the owners to petition against the renewed expropriation of the land will be preserved, and in its arguments the proportionality claim will also have a place.  In this way, the authority will have a duty of care as to the uses it makes of the expropriated land, and will also be obligated to demonstrate respect to the property of the individual.

57.  At the end of it all, the question is – at its heart and core – a question of cost.  According to the other view, the authority could take its decision lightly if it changes the uses of the land from one purpose to another.  Change in the use will not require any added cost, and thus the authority will not exert too much effort deciding on such a change.  Not so with the view we are leaning toward, where a change in purpose will obligate the authority to return the land to its owners or to expropriate it anew and to pay compensation as the value of the land at the time of the change (with proper deductions).  These obligations imposed upon the authority will obligate it to give deeper thought and examination to the worthiness of the change in purpose; meaning, the obligation to return the land to its former owner or to expropriate it and pay compensation for it.  If so – if the authority will weigh questions of cost-benefit, expropriations which are not economically efficient – will be prevented from occurring – by application of the test.  Compare further HCJ 4809/93 Local Planning and Construction Committee, Jerusalem v. Kehati [25] at pp. 202-205.  Thus the authority also will not ‘invent’ (or: will not find) a new public purpose for use of the land only for the reason that a change in purpose will not obligate it to pay compensation.

Payment of compensation for expropriated land – Is this sufficient to sever the connection?

58.  A last question in the context of our words now: Does payment of compensation to the original owners sever the connection to the expropriated land?  Does the owner of the land that was expropriated exhaust his right of ownership – and become permanently severed from the land – in that he receives expropriation compensation from the authority?  This question does not arise directly in our matter, as the petitioners refused to accept the compensation that was offered to them and have been steadfast in their refusal until now.  However, we will raise a few thoughts on this subject.

59.  In the past the view was expressed that the payment of compensation does not reduce the connection of the owners to the land even in the second phase, see, for example, the Mahol case [5] at p. 319 and the references mentioned there.  In the words of Justice Goldberg (ibid): ‘payment of compensation indeed minimizes the economic damage which stems from the expropriation of the land, however it does not nullify the emotional damage which is the lot of one whose land is taken away’.  See further and compare: Y.M. Edri ‘On a Declarative Constitution and a Constitutive Constitution – the Status of the Constitutional Property right in the Human Right Ranking’ [61; A. Gross ‘Property Right as a Constitutional Right and the Basic Law: Human Dignity and Liberty’ [62].  Section 3 of the Basic Law: Human Dignity and Liberty establishes that ‘a person’s property is not to be violated’.  And while the payment of proper compensation makes it permissible to violate property (when the rest of the requirements for expropriation are met), here the violation to property, as such, remains even after payment of compensation.  Compare the words of Justice Dorner in HCJFH Nuseiba [9] at p. 85.  That same violation of property has the power to create a connection between the owner and the land that was expropriated from him, even if he was awarded compensation.

Indeed, the payment of compensation is a built-in condition in the power of the State to expropriate land from its owners, however, it is only one condition of expropriation – one condition among others.  By law the State is not entitled to expropriate land for anything other than a public purpose, and once the purpose has terminated, the right of the original owners that the asset return to his ownership (or compensation will be paid to him instead) comes back to life as though on its own.  For a similar approach in Jewish Law, see Hacohen, in his article supra [58] at pp. 53-54.

60.  In this context the claim was made that the protection of property is derived directly or indirectly, from human dignity, from the autonomy of human will, from man’s personality and his liberty.  See: the Mahol case [5] at p. 319 and the references there; HCJFH Nuseiba [9] at p. 85.  President Barak at HCJ 6821/93 Mizrahi Bank Ltd. v. Migdal Cooperative Village [26] at p. 431; Y. Weisman, Property Laws-General Part [53] at p. 115; M.J. Radin ‘Property and Personhood’ [67]; F.I. Michelman ‘Property, Utility, and Fairness: Comments on the Ethical Foundations of ‘Just Compensation’ Law’ [68] at pp. 1214-1218; and the conclusion: the owner perhaps is entitled to monetary compensation for his damages to property, but he does not receive a quid pro quo for the harm to his dignity personality, autonomy of will, free choice.

These words are correct in my opinion, at a very high level of abstraction.  They are true when it is a matter of expropriation of inherited land or the expropriation of a home in which the owner of the asset has been living for many years.  This was so, for example, when King Ahab sought to take over the vineyard of Nabot the Jezreelite:

And Ahab spoke to Nabot saying give me your vineyard so it may be a vegetable garden for me as it is close to my home and I will give you in its stead a better vineyard, if you wish I will give you its price in payment.  And Nabot said to Ahab, the Lord forbid that I should give my inheritance to you.  (Kings I, 21: 2-3).

The deal which Ahab offered Nabot was, ostensibly, a fair deal: in exchange for the vineyard which he would give, Nabot would get a ‘better vineyard’ or ‘its price in payment’.  However Nabot is not interested in a ‘better vineyard’ or in monetary compensation. ‘The Lord forbids that I should give my inheritance to you.’  This is an inheritance which Nabot inherited from his father, his father from his father, and his father from his father, back to the first generation; as his father and his father’s father before him, Nabot was born on that land, played on it as a child, spent his young adult years there, worked on it as an adult and knows every corner of it, even corners others know nothing about; the land has melded with the personality of Nabot and has become part of his existence in the world.  There are those who will defend their land from expropriation as one would defend his homeland from an enemy.  Nabot and his inherited land had become one. Nabot will not separate from his inherited land.  Of inherited land such as this it may be said that it is of human dignity, and it has become part of the personality of the person.

61.  This is so with Nabot the Jezreelite and his land inherited from his fathers.  Can we apply these words – is it proper to apply these words – to land that a land merchant, or a land broker, holds for sale to the highest bidder?  This land is entirely an exchange for money.  Indeed, in this case, it will be difficult for us to identify the property with human dignity or personality.  Compare Radin supra [67].  See further Hacohen, in his article [58] at pp. 45-46 (as to Jewish law’s distinction between inherited land and land that was bought for money).  Do we conclude from here that, where the authority expropriates land from one who deals in land, the expropriation will sever the connection between the owner and the land?  Our answer is in the negative.  There exists a different reason, an additional reason to protect the property, separate and distinct from the protection of the person’s personality, dignity, liberty, and free will.  And the reason is, in our opinion, the same reason, that the great among the greats, Justice Oliver Wendell Holmes, spoke of as a reason to protect possession.  And so says Holmes in his book, The Common Law [66] at p. 213:

Those who see in the history of law the formal expression of the development of society will be apt to think that the proximate ground of law must be empirical, even when that ground is the fact that a certain ideal or theory of government is generally entertained. Law, being a practical thing, must found itself on actual forces. It is quite enough, therefore, for the law, that man, by an instinct which he shares with the domestic dog, and of which the seal gives a most striking example, will not allow himself to be dispossessed, either by force or fraud, of what he holds, without trying to get it back again. Philosophy may find a hundred reasons to justify the instinct, but it would be totally immaterial if it should condemn it and bid us surrender without a murmur. As long as the instinct remains, it will be more comfortable for the law to satisfy it in an orderly manner, than to leave people to themselves. If it should do otherwise, it would become a matter for pedagogues, wholly devoid of reality.

See further FHC 7325/95 Yediot Ahronot v. Kraus [27] at pp. 76-77.

Indeed that same instinct that resides in the soul of a baby and which will prevent him from giving to another the object in his hand, the very same instinct resides in the soul of an adult and awakens in him a ‘natural’ – instinctive – resistance to the desire of another to take from him one of his assets, even with the payment of compensation.  If that tendency and that instinct is called a person’s personhood, the autonomy of man’s will or man’s liberty – so let it be said.  One way or the other, expropriation compensation does not make the very violation that the expropriation of the land brings upon the owners, disappear.

62.  Moreover, if we said that receiving compensation cuts off the connection between the owner and the land that was expropriated from him, as it might be argued, we have almost completely blocked off the connection between the owner and the land that was expropriated from him.  Indeed, receipt of compensation is the least to which the owner is entitled, and it would be difficult – very difficult – if it were decided that only the non-receipt of compensation would leave in the hands of the former owner connection to the land.  The choice that would be placed before the owner not to receive compensation and wait for the unknown, or receive compensation and lose the connection – as it might be argued, is a choice that is not reasonable; it is a cruel choice; a choice that has no justice.  Indeed, there is no justifiable reason that we should obligate the individual to contribute to the public from his property, and that the consideration that is given to him will itself reduce a ‘connection’ whose fate is unknown to us.

However, it could be argued, that it is proper that receipt of compensation bring about severing of the connection.  Why?  Because payment of compensation for the expropriation is meant to place in the hands of the owners – at least theoretically – the value of the expropriated land.  The owner should thus take that compensation and buy other land in the place of the land that was expropriated from him.  And if the owner does not buy other land, it may be said of him: he has brought the damage upon himself.

63.  Having said all we have said, we will now add that it is an open question whether receipt of compensation will cut off – or will not cut off – the connection of the former owner to the land that was expropriated from his ownership, or perhaps the receipt of compensation will only affect the question of the obligation of the owner to return compensation he received as a condition for returning the land to his ownership.  Compare section 196(a) to the Planning Law.  See further and compare CrimMot (J-m) 51/94 Arad v. State of Israel in the words of Justice D. Cheshin at paragraph 6 of his opinion).

The connection doctrine: Does a ‘Statute of Limitations’ apply?

64.  Once we have established that the owner of land that was expropriated from his possession continues to hold on to a connection to land that was expropriated, a related question arises, – whether this connection will be maintained and exist forever as in the case of a regular property right (if you will: a right in regulated property registered in the property registration books)?.  Or perhaps we will say, a limit has been placed on that connection, and when we pass that limit the connection will disappear.  The resolution of this question is not at all simple.  On the one hand it could be argued that this connection that the former owner holds in his bag is derived from the ownership of property (or from another property right that was expropriated); and just as ownership of property does not have a statute of limitation (in principle) the same is true for that connection which is none other than an echo of ownership.  The genetic code of the connection is like the genetic code of ownership, and a ‘statute of limitation’ will not attach to one as it does not attach to the other.  Those holding such a view will seek to find support in the provisions of section 195 and 196 of the Planning Law, according to which a ‘statute of limitations’ does not apply to the right of the owner to return to himself – under conditions established by law – land that was expropriated from his possession.

On the other hand, it could be argued, that a declaration of the existence of a connection that has no end is a declaration that has no reason or logic.  Is it to be said that the former owner – he and his heirs, his heirs’ heirs, and the heirs of his heirs’ heirs until the last generation – can demand return of land that was expropriated from the first generation?  Will the connection survive for fifty years?  One hundred years? Two hundred years? And as for the claim that the connection contains within it the genetic code of its mother – the ownership – the counter argument will be made that one is not like the other.  In this a connection is different from ownership: property ownership as a rule, is registered in the property registration books or the owners physically possess the land, and from here it can be derived that the ownership in property has no ending (until expropriation...).  Connection to the land that was expropriated is unlike ownership, as it is a conditional right to begin with and as such a ‘weaker’ right than an ownership right.

65.  If this is the law, it will be argued, what should be the period of the ‘statute of limitation’ of the connection of the former owner to the land that was expropriated from his possession?  After how many years will the connection dissolve and disappear?  After seven years, as with the statute of limitation in non-land assets according to the Statute of Limitations Law 5718-1958?  After fifteen years or twenty five years, as the statute for unregistered lands and registered lands?  And perhaps an ‘arbitrary’ period will be set?  For example a period of ten years?  None of the solutions seem right to us.  First of all the analogy to the Statute of Limitations Law appears problematic; once we know the topics are not identical, we will further know that the analogy is not appropriate.  As for the ‘arbitrary’ period of years this too is not appropriate, as no one has authorized us to set in advance a fixed and finite period of years.  This task is the task of the legislator: the legislator has his place and we have ours.  What then is the solution to be adopted by the one making the counter argument?

It appears that the jurist will call that same figure – the reasonable person – who stands at our service at all times for assistance and ask him what he will advise us.  And it appears that the reasonable person – meaning the common sense, good taste, logic, and justice – will say to us thus: I cannot tell you when the connection between the former owner and land that was expropriated from his possession dissolves and disappears; this I can tell you, that in various circumstances which will be presented before me, I will answer you whether the connection has dissolved and dissipated or whether it is alive and breathing.  And what will those circumstances be?  They will be many and varied. Thus for example, the length of time in which the land served its designation until it was changed; thus, for example, the question if the owner received compensation for the land that was expropriated or if he did not receive; thus, for example, what use was made of the land over the years, such as: if what was expropriated in fact was none other than possession alone but in fact it was ownership that was expropriated (as in our case); thus, for example, the nature of the connection between the owners and the land (possession as an investment, possession of inherited land etc.); thus, for example, changes and improvements that were done to the land over the years; thus these and other factors, and the like, factors which should affect – in their cumulative weight – determination of the question whether the property-connection exists or whether it has died.  The reasonable person is no stranger to us: he is a regular in our house; we consult him every day, knowingly or unknowingly, in all branches of the law, and ostensibly there is no good and proper reason why we should not consult also in the question before us.  We will also recall, if only as an aside, that in French law there is in the law a limit to the years of connection of the owners to land that was expropriated from his possession (thus according to  the Code de l’Expropriation).  It is also so in German law (for example: section 102(1) number 1 of the BauGB-Baugesetzbuch).

66.  And after we have said all the things we said, we will further add that the considerations which we discussed are not decisive.  One could argue – and the argument would not be devoid of logic or devoid of reason – that lacking a definitive statutory determination, the authority is not ours, the Court’s, to determine dates, and even reasonable dates.  The work of determination of dates has been given to the legislator, and absent guidance by the legislator we will not set a date.

From the general to the specific

67.  The land in our matter was expropriated for the use of the army.  Indeed, as was the custom in those days it was not said in the notice of expropriation other than that the land is absolutely necessary for public purposes, however we all know that later action follows prior intention: from the fact that to begin with – and many years after the expropriation – the land did not serve other than the needs of the army, we will conclude, if only by way of retrospection, that it was expropriated for this purpose.  This purpose was a public purpose, and there is no debate over that.  When the use of the land for military purposes ended, the authority sought to turn its use to a new purpose: for the purpose of building a neighborhood.  Against the changing of the purpose the petitioners raise several claims, and we will discuss them now.

First of all, so the petitioners claim, with the exhaustion of the first purpose – the use of the land for military designations – the land should be returned to its owners.  Second, the new purpose – the building of a residential neighborhood – is not a public purpose at all.  Thus, even according to the approach that holds that the public authority is entitled to leap from one public purpose to another within a single act of expropriation (see paragraph 52 supra), the petitioners are entitled to return of the land to their hands.  Moreover, since the purpose of establishment of a new neighborhood is not a public purpose, the Minister of Finance is not authorized to expropriate the land again for that purpose.  And finally, it is in the hands of the former owner, to implement, on its own, the purpose of establishment of a neighborhood meaning that there is no justice (in any case) that the State specifically should build the residential neighborhood, whether by the first expropriation or by power of an additional expropriation of the land.

Let us discuss these questions one by one in order.

68.  First of all we will say, that based on the normative tapestry that we have discussed in our words above (and subject to the words that we will further discuss later, such as the question of the time that has passed since the expropriation) it can be argued that the owners are entitled – in principle – to return of the land to their hands, as the public purpose for which it was expropriated to begin with was exhausted.  Moreover, even if we were to say that the purpose of establishing a residential neighborhood is a public purpose – and this question is itself in doubt – even then there would be no change in the conclusion.  The reason for this is, so it can be claimed, that the two purposes – land for use for military designations and land for use for the establishment of a neighborhood – are so different from one another that it cannot be said that the one purpose is no more than a variation of the other purpose (see paragraph 54 above).  A conclusion (ostensibly): according to the theoretical-normative tapestry it can be claimed that the petitioners are entitled – in principle – that the land be returned to them, and the respondent must return the land to the petitioners.

Moreover, the land was expropriated for training, shooting ranges and other uses of the military.  Having determined what the purpose of the expropriation was, we will further know, if only by way of retrospection – that in principle the authority could have made due with the expropriation of possession only – as distinct from expropriation of ownership (we will note that according to section 3 of the Expropriation Ordinance, the authority was given to the Minister of Finance to acquire ownership or any other right in the land, including any right of usage).  And thus, had the Minister of Finance, from the beginning expropriated only the right of use of the land, it appears that no one would be disagree that, with the departure of the military from the place, the owners were entitled to the return of the land to their hands.  Compare the doctrine prevalent in the United States as described in paragraph 49 supra.  However, knowing that in fact the land was expropriated for its designation for army training – and that it served this purpose over the years – we will also know that in truth the expropriation was not, at its core, other than for its use and not to exploit it as owners (such as for building purposes).  When the use of the land for military training ended, the law dictates that the land return to its home.  We hasten to emphasize: that we are not stating this consideration of our own accord.  This is none other than one consideration among many that can be raised to justify returning the land to the hands of the petitioners.

Moreover, it can be said that even in the view of those who broaden the power of the authority – those who permit it to change from one public purpose to another within the bounds of one expropriation – even in the their view the owners are entitled to the return to what is theirs, if only because the purpose of establishing a residential neighborhood in that location is not a public purpose under the circumstances.  Let us say a few words on that point.

The establishment of a neighborhood – Is it a public purpose?

69.  Is the purpose of the building of a residential neighborhood a public purpose in relation to the Expropriation Ordinance? The resolution of this question is not directly needed in our matter, but we will add and say that in our opinion this question does not have a single definitive answer.  It all depends on the context: at times the building of a residential neighborhood will be a public purpose as to the Expropriation Ordinance – it can even be a public purpose of a high order – and at times the building of a residential neighborhood will not be a public purpose at all in context.  The resolution of the question will always be a circumstance dependent determination, and we will have difficulty making analogies from one case to another.  If this is so, in the normative realm, all the more so in the circumstances of our case.  We will explain.

70.  Let us ignore for the moment the power of the Minister of Finance according to the Expropriation Ordinance, for he is the one who is meant to determine – according to his discretion – what ‘public purpose’ justifies expropriation of a certain land.  We will presume therefore that the concept ‘public purpose’ – in the context of the Expropriation Ordinance – is subject to the interpretation of the Court in accordance with the accepted construction (in truth, and in the final analysis, the differences between these two versions are few and minor).  When we present the question this way, we will be presented with two models from two ends: one model declares itself to be a ‘public purpose’ and the other model declares itself to be a purpose which is not public.  At one end will stand before us for example, establishing a public park, paving roads, establishing a school and similar purposes which declare themselves out loud to be ‘public purposes’.  At the other end will stand purposes which ostensibly are not public purposes.  Thus, for example, the establishment of an office building in the middle of a commercial neighborhood.  If the Minister of Finance expropriates land for this last purpose, I believe he will have difficulty classifying such a purpose – during the normal course of events–as a ‘public’ purpose.  And we will give thought to the matter: in classifying a specific purpose as a public purpose or as a purpose which is not public, we take into consideration, among other things, if only subconsciously – market forces in a free market and considerations of social norms which are accepted in our area.  Thus, for example, we presume that a private person will not agree, of his own good and free will, to establish a public garden on his land for the use of the public, even in exchange for the accepted compensation.  On the other hand, we presume that land on which an office building can be built, which is in the heart of a commercial area, the market forces will bring about the building of an office building on that land.

71.  The question therefore is toward which of these poles does the purpose of the establishment of a residential neighborhood incline.  It appears to me that the normative analysis will not provide us with an answer, as the purpose might contain both public and private elements, and the question in each case will be which elements dominate.  In any case, let us remember, that the change from one public purpose to another requires the expropriation of the land, and hence the burden is imposed on the State to prove that the purpose of establishing a residential neighborhood – is a public purpose.

72.  In this context we will add, that in each case and every matter the great principle of primary and secondary will apply, meaning: in examining the implementation of the purpose of the authority one is to examine the totality and not one detail or another.  In the words of Justice Berinson in HCJ 147/74 Sapolinsky v. Minister of Finance (the Sapolinsky case [28]) at p. 424:

The fact that, while implementing the purpose of the expropriation a profit is made here or there, whether by the State or by a private construction company which operates on its behalf, does not detract from the true substance of the expropriation and cannot cause a defect to its purpose, if from the start it was not done solely in order to make a profit.  When the purpose of the expropriation is not making profit and this is only an indirect result of the expropriation, it means nothing.  It does not affect the legality of the expropriation.

This was also the conclusion in the Mehadrin case [10] the expropriation of land to expand Ben Gurion airport – where part of the land had ‘commercial elements’.  And in the words of the Court (ibid, at p. 103):

Examination of said purposes and usages reveals that indeed they also contain commercial elements (dining and retail services).  However, these elements are not only negligible to the primary purpose for which the section of land was expropriated, but they constitute an inseparable part of the operation of an airport, meaning they have a direct connection to the public purpose for which the lands were expropriated.  In particular when these are intended for the welfare of the employees of BGA (and this is true as well for the welfare and sports structures).  And even if RST indirectly benefits in some way from these elements, this does not detract from the true substance of the expropriation or damage its purpose, when to begin with the expropriation was not done solely for the purpose of making profits.

And later (ibid at p. 107):

There can be no doubt that parking garages for visitors and others are an integral part of the airport.  And I am of the view that the same is true also for a hotel in a modern airport... Although these are both two commercial elements,  they have, as said a connection to the public purpose for which the land was expropriated.  Therefore, it is not proper to view the commercial elements detached from the entire project, as though they stand on their own.  The propriety of the expropriation of these elements is to be examined as part of the overall view of the purpose of the expropriation, and they are not to be isolated and examined separately.

The reason for this is that only the concentration of the land in one hand will enable the implementation of the project (ibid, at p. 108):

I also see favorably the claim of RST that if the property rights in the airport project are split up between it and another entity, in a manner that in a certain location its rights will be subject to the right of that entity, it would be  difficult for it to properly accomplish its role.  From the substance of the project and its content it is necessary that the rights in the entire area will be in the hands of RST, in a manner that will leave freedom of movement in its hands throughout the area, according to changing necessities and future developments, without being dependent on the will and consent of another entity.  Only concentration of the rights in the hands of RST will enable it to accomplish its role according to the powers given to it.

73.  This was the case, for example, in the Makor Hanfakot and Zechuyot case [8] and the Sapolinky case [28].  Both these cases dealt with the establishment of a residential neighborhood, and in both cases the court was of the view that the public-general need dominated over the private-particular motive.  In both cases the public necessity to establish a neighborhood on the expropriated area was established, and in both cases it was emphasized that the ownership of the lands was divided among many owners, something that would make it very difficult to achieve quick implementation of the building plans.  One case dealt with populating Jerusalem Southward and the other case dealt with populating Jerusalem Eastward.  We  will add that in the second case it was also emphasized that there is both national importance and urban importance to establishing the neighborhood (Makor Hanfakot and Zechuyot case [8], paragraph 9 of the opinion of Justice Or).

The same decision was reached even where it was agreed that the use of the land for a public purpose may lead to profits in the future.  The profit factor did not rule out the legality of the expropriation, provided it was possible – and in the Court’s opinion it was proper – to view the specific expropriation in the overall context of a purpose that is, by all accounts, a public purpose (a commercial district within an airport).  See the Mehadrin case [10]; and HCJFH Nuseiba [9].  (We note, however, the minority opinion of Justice Dorner in FHHCJ Nuseiba, ibid, at p. 88), that ‘the establishment of a commercial structure in a built neighborhood does not enter within the bounds of ‘public necessity’ which justifies expropriation.  Fulfilling needs such as these are to be left to market forces.’  Indeed, the Nuseiba case [9] – and comparison of the majority to the minority opinion – exemplifies well the difficult struggle between the ‘public’ element in expropriation and the ‘private’ element in it.  See further A. Haviv-Segel ‘Problems of Adaptation and the Question of Public Purpose in Land Expropriation’ [63].

74.  And thus, the establishment of a residential neighborhood can be a public purpose and can also not be a public purpose.  In this context we will remember, that generally the initiative to build residential homes belongs to the individual and not the state.

75.  And what about in our matter?  Let us recall that at first – since the mid-eighties – the land was designated for single-story building, recreation and public areas, and that in 1995 an alternate plan begun to be planned: for the designation of the land for multi-story building, for public structures, for a commercial area and for open public areas.  The respondents claim that this new plan was done for a pure public purpose, and Mr. Dan Seto Vice-Chair and Director of the Planning and Development Division in the Israel Lands Administration tells us as follows:

Due to the existing needs and the great demand in the area, the Ministry of Construction and Housing saw fit to change the existing plan, according to which the land was designated for single-story building, and converted it to massive construction of hundreds of residential units.  Among other things, it is intended to be built in the neighborhood small, basic apartments which will serve a needy population.  In addition, there are planned large apartments in the area which are intended to improve the living conditions of the residents, and enable clearing out of the apartments they are living in for the needs of a population with lesser means.

Development of a residential neighborhood of a fairly high quality, as expressed in said plan [HD/VM/944] including a substantial contribution in public areas such as: comprehensive school, sports center, and a community center will bring about the raising of the welfare of the existing neighborhood in Givat Olga.

It appears that these words – intended to substantiate the ‘public purpose’ – are overly broad in their scope.  It is no wonder therefore that the petitioners respond to this – not without anger – that when we take these words at face value, it would be possible to justify any land expropriation for the purpose of building residential units.  Indeed, the State has not been able to show that building a residential neighborhoods in the area has severed it from the zones of private purposes and entered it into the zone of the public purpose.  Moreover, examining these things closely will teach us that the State is making its claims facing backward rather than facing forward.  We will explain.

76.  In preparing and approving the plan of 1985; and the plan for the years 1995-1997; the authorities and the planners presumed – as a given – that the land is fully and completely owned by the State for every matter – available and free from any burden or encumbrance – and that as the owner the State was entitled and permitted to do with the land as it saw fit.  On the basis of this assumption the planners planned what they planned and the authorities approved what they approved.  These things are self-evident – from review of the chain of events and the evidentiary material brought before us – and if there is need for proof, it may be found in the affidavit of the Engineer of the City of Hadera, Mr. Michael Sharon, from whose affidavit we learn the following (among other things):

In the meeting of the respondent no. 4 [the Committee for Residential and Commercial Construction, Haifa District] on June 20 1995 it was indeed decided on the amendment of the plan, before it was filed, such that it would be written in the bylaws that the plan would be implemented with unification and division.  On the other hand, there was not attached to the plan a table of area allocations/balancing as stated in section 122 of the Planning and Construction Law in light of the claim of the respondent no. 1 [the State] which was adopted by respondent no. 2 [the City of Hadera] that it is a matter of lands that are under one ownership (of the State) and therefore there is no need for said table (the first emphasis is in the original; the second emphasis my own – M.C.).

We will learn from here, that the starting assumption of the Planning Committee and of the State were the assumptions that the former owner has no connection to the land, and that the land is not tied at all to any public purpose.  These assumptions are also those that led to the planning processes as they occurred in fact.  Having discovered – based on the theoretical-normative tapestry – that these assumptions were mistaken assumptions, we further learned that classification of the building of a residential neighborhood as a ‘public’ purpose comes only after the fact and not in advance.  The reason for this: the authorities gave no thought at all – in advance – not to the Expropriation Ordinance nor to the connection of the former owner to the land nor to the question whether the purpose is a ‘public’ purpose.  Their claim – made in reverse and facing backward – may be claimed, but will not be successful.  Proof of this, it will be further argued, will be found in the litmus test below.

77.  Everyone agrees that, the State is not authorized to continue and hold the land that was expropriated – after exhausting the first expropriation – unless it makes use of the land for (another) ‘public’ purpose.  This is also the holding of those who broaden the power of expropriation, meaning: those who are of the view, that the State is authorized to leap from one public purpose to another in the framework of the same expropriation, without being obligated to return the land to the former owners.

Thus, the State is entitled  to leap from purpose to purpose only where there is a new public necessity, and where this necessity justifies expropriation of the land as of today.  See the words of Justice Goldberg in the Mahol case [5] at p. 323, which are brought in paragraph 52 supra.  Our opinion is – as opposed to the view of Justice Goldberg – that in a case such as this the State must return the land to its owners or go back and expropriate it in the regular way.  However, if this is the law, it is to be presumed that until it reaches a decision on expropriation, the authority would (in our matter) weigh very carefully whether it is proper to expropriate the land for that new purpose, meaning to expropriate – and to owe compensation to owners.  And here is the litmus test: in our matter the State did not consider the matter.  And if it had considered it, it is possible it would not have decided on expropriation – for the purpose of the establishment of that residential neighborhood – while obligating itself to pay expropriation-compensation.

Conclusion: knowing that it would owe compensation to the owner, it is possible that the State would not decide on expropriation at this time.  In our view, the State is obligated – according to the normative-theoretical scheme – to return the land to its former owner and to deal directly with a new expropriation and with its obligation to pay expropriation-compensation to the new-old-owners.

In order to remove doubt we will add: we do not recommend to the State authorities that they act one way or the other with land that was expropriated for a certain purpose.  In general it will be said, that when land was expropriated for a certain purpose, and the purpose was exhausted, it is not appropriate for the State to manoeuvre and take inappropriate action only in order to continue to hold the land in its possession.

78.  Let us presume – without agreeing to the presumption – that the purpose of establishing a residential neighborhood under the circumstances is a public purpose, and that therefore the authority is authorized – in principle – to expropriate anew the land subject to discussion (it goes without saying, as said, that this question has not arisen at all, as the authority was working from the assumption – mistaken in our view – that the land is in its ownership free of any connection to former owners).  Then too, so claim the petitioners, the question arises on its own – whether the authority is entitled, under the circumstances, to expropriate the land for the purpose of establishing a residential neighborhood?  As this question has not come up for discussion explicitly, we have not heard arguments as to it.  However, we will say, with full caution, several words on the issue, without purporting to settle it one way or another.

79.  Until the authority is entitled to expropriate land for a public purpose – and for our matter we have assumed that the establishment of a residential neighborhood can be, in certain circumstances, a public purpose – it is incumbent upon us to inquire whether it is possible to achieve the public purpose – the same purpose for which it seeks to expropriate the land – not by way of expropriation and not necessarily by way of expropriation of the land that was expropriated and whose expropriation expired.  In theory, a precondition to the expropriation power is that the purpose of the expropriation cannot be achieved in an efficient manner that is not expropriation. This precondition to the power to expropriate land is necessary out of respect for the individual’s property right, and the property right proclaims as though on its own this burden imposed on the authority.  Indeed, where the authority proposes to expropriate Reuven’s land for the realization of a certain purpose; Reuven declares at that time his intention to himself realize, that same purpose and proves that his intent is sincere, that he is capable of doing it, and that he is about to realize that purpose in the near future.  It could be claimed – and we will not decide on the claim–that in these circumstances the power of the authority to expropriate the land will be denied – indeed, not in all circumstances and not every case –.  That same person could further claim – and we will not express an opinion as to this – that the burden is on the authority to point to the need to expropriate the land specifically to realize the purpose of the expropriation and to explain and justify why the owners themselves will not allowed to achieve that same purpose.  In the words of Justice Dorner in HCJFH Nuseiba [9] (ibid at p. 89):

The burden of proof as to the existence of the elements of the limitations clause in an administrative decision which violates property right by expropriation is placed on the shoulders of the expropriating authority.

And Justice Or said on this in the Makor Hanfakot and Zechuyot case [8] (in the words of Justice Or, in paragraph 6 of the judgment).

The fact that the expropriation contains a severe violation of man’s right to his property must stand before the eyes of the court when it comes to interpret section 3 [of the Expropriation Ordinance – M.C.] and to determine if the expropriation is in fact necessary in order to realize that same public necessity in the name of which the expropriation is to be implemented.  Therefore, if it is possible to reach the same result of satisfying the public necessity not by way of expropriation, it would be proper to do so.  Thus, for example, if there exists a public necessity to build a certain residential structure and this can be done by the land owner, in a way and in a manner and within a time frame which is required for that public necessity, it cannot be said that expropriation of that land is necessary for the purpose of building that building.

So taught us Justice Goldberg in HCJFH Nuseiba [9] (at p. 82):

If it is proven that it is possible to realize the public necessity without expropriation, then we face a balance between the public necessity and the property right of the owner of the expropriated lands.  All this, with the condition that it is possible to ensure that the ‘self realization’ will not impair and will not delay the execution of the purpose of the expropriation.

See further the Mehadrin case [10] at p. 107.  But the question is very complex and we will not take upon ourselves to resolve it.  Indeed, real life has taught us that in many cases – possibly in most cases – the nature of the plan, its scope, the multiplicity of ownerships in the land and other similar factors will prevent self implementation of the plan and will necessitate expropriation of the land to achieve a proper public purpose.  See for example Makor Hanfakot and Zechuyot case [8]; the Sapolinsky case [28]; the Mehadrin case [10].  However, in cases where self implementation is possible, we may reach the conclusion that expropriation is an inappropriate means, a means that goes beyond that which is necessary.  In this context it is proper that we give thought to the words of Justice Dorner (in a minority opinion) in HCJFH Nuseiba [9] (at p. 91):

When the individual is not capable of implementing the required project for public purposes on his own due to planning of broad scope, there may be a justification for use of the expropriation power.  But when it is a matter of a small lot, whose owners have declared their intention to develop it themselves, there is no reason not to entrust the implementation of the plan to them.

See further the Paz case [40] mentioned in paragraph 45 supra.

Moreover, just as the burden is placed on the authority not to make use of expropriation if it is possible to realize the purpose of the expropriation not by way of expropriation, so too the burden is imposed on it – ostensibly – not to expropriate the ownership right in the land if it can achieve its purpose by way of expropriation of a lesser right than ownership, such as expropriation of rights of usage.  This statement is important in our matter, if only because to begin with – as we learned at the time of the expropriation and for over 30 years that followed the expropriation – the State could have made due with expropriation of the rights of usage of the land and not expropriated the ownership right in its entirety.  When we say this, we will add and say that here we have found an additional reason for which it can be said that the petitioners are deserving – in principle – of the return of the land to their ownership.

80.  We have said what we have said, and we wish to reiterate, that our words do not go beyond mere ruminations.  Resolution of all these questions – those and others derived from them – will only come about in the days to come.

81.  In our matter, so claim the petitioners, it is also possible to achieve the public purpose not by way of expropriation but by advancing the processes for planning the construction of a residential neighborhood by the owners, and the advancement will occur by way of unification and division (a process which is necessary in any case) and the preparation of a table which deals with allocation of areas and balance, and all this as per the provisions of sections 121-128 of the Planning Law.  Thus the owners will not be required to give up their lands, and thus they will be the ones who advance the construction rather than it being done by private contractors on behalf of the State.  The petitioners’ claims are consistent with the law, but given its view that it need not address this at all – as the land is in its complete and absolute ownership – the State did not attempt at all to be in contact with the petitioners to clarify this matter of self implementation.  Indeed so: the State claims that the area of the plan is split among many lot owners; and that due to the multiple purposes of the plan the authorities will have difficulty constructing balancing charts and because of all this the construction of a residential neighbourhood by the owners will not be possible in the desired time frame.  However, all these arguments did not arise other than as a response to the petitions, and the State never made an effort to try to clarify with the owners these topics that it claims prevent self implementation.  By this course of action the opportunity has been denied from the petitioners to prove that they can achieve self implementation, and thus their rights have been detracted from.

We have not said, and we also will not say, that the petitioners are right in their claims and that the State has the lower hand.  All we are saying is that in our case a precondition for renewed expropriation has not been met (if you wish, for transition from one public purpose to another).

82.  This is also the case with the arguments of the respondents according to which the execution of such a large project, as planned, must be under one hand, and that it will be best for all if a State authority implements it.  As said in the affidavit of Dan Seto on behalf of the State:

The possibility to plan a residential neighborhood which includes hundreds of housing units and public structures exists primarily, and best, where the ownership of the land is concentrated in the hands of one entity, in our case – the Israel Lands Authority.

Hadera is in a high demand area for residences, there is an explicit advantage to development of a residential neighborhood by the Construction and Housing Ministry – as opposed to the private sector – both in terms of concentration of sufficient areas to establish a residential neighborhood of a large scope, and in terms of the ability and desire to donate land and develop it for public purposes.  This advantage is also manifest in all that relates to the speed of the planning and swiftness of implementation.

As can be seen with other parts of the city of Hadera, as in other cities where there exist many split lots in private ownership, the process of development of new neighborhoods, not by governmental entities and tools is lengthy, slow and at times impossible.  Only neighborhoods whose planning and establishment is dealt with by a governmental entity like the Ministry of Construction and Housing, based on lands found in State ownership, can be established with proper momentum and scope, which will be sufficient to serve the immediate public needs.

I will not express my view as to these words, not positively or negatively.  I will make due by saying that this topic has not been properly worked through between the petitioners and the State, and thus it is not appropriate that we address it.  If this is so in general, all the more so when we all know that the State too, being in charge of the building of a public project, makes use of private entities for implementation.  See further Haviv-Segel, in her article supra [63].

83.  The State has followed a process of we will do and then we will listen, while we are of the view that the process must be by way of we will listen and then we will do.  The State has not listened, and therefore – in principle – it is not proper for it to do.

Delay

84.  The State further claims that the petitioners have delayed their petition to the Court; that in that period of delay the State bore significant expenses in planning proceedings and building of infrastructure, and for this reason alone the petition should be dismissed.  The State asks: why haven’t the petitioners petitioned against the plans that began in 1986?  That is a sign and indication that they gave up their rights and hence their petition ought to be dismissed.

Indeed, it is a long held legal rule that delay in objecting to an expropriation action – delay which is accompanied by a change in the situation of the authority due to investments made in the expropriated land – can lead to dismissal of the petition for this reason alone.  See for example HCJ 63/52 Neiman v. Minister of Finance [29]; HCJ 334/63 Galinovitz v. Minister of Finance [30]; Kamer in his book supra [52] at p. 149-153.

85.  This claim by the State is somewhat strange.  The petitioners knew nothing about the proposed plans for the expropriated land, and had no basis to presume that, parallel to the use of the land for military designations, the authorities had plans for civil construction in the area.  Moreover, in its view that it was the unconditional owner, the State did not notify the former owner as to the existence of the plans, and we can but wonder as to the claim of delay it raises, meaning, a claim which is thrown in the face of a petitioner who bides his time.  In the Geulat Hakerech case [15] (supra) the petitioner, the owner of expropriated land, discovered – after five years passed from the day of the expropriation – that a parcel of that land that was expropriated was not needed by the authority to implement the public purpose for which the land was expropriated.  The petitioner sought to declare that the expropriation was not valid for that parcel of land, but the Court was of the view that due to the delay it should not listen to her.  This ruling raised the ire of Professor Klinghoffer, and he stated as follows in his article about the attachment of expropriated land to its designation (in his article, supra [59] at p. 877):

One may ask if the feeling of justice has not been harmed slightly when the blame is placed on the petitioner in such a manner.  It would be more reasonable to expect that, out of decency, the expropriation authority notify the former owner as to the lack of suitability between the expropriated asset and its designation.  If the governmental authorities are not willing to act so of their own will, then it is in the power of the legislator to obligate them to act in this way.  In this context note that in Switzerland, if the intention of the expropriator is to carry out a transfer of the expropriated lands or dedicate them to a designation different than the one determined for purposes of the expropriation, it must give notice of this to the one who is entitled to demand their return.

This was true there; this is true in our matter as well.  Indeed so: our matter is different from Geulat Hakerech case [15], and in the following two ways: first of all, in the Geulat Hakerech case [15] the petitioner sought cancellation of the expropriation retroactively, while in our matter we speak of cancellation of the expropriation only henceforth.  Second, in the case before us the ownership passed to the State many years ago, and the State could not have known that the connection rule would be applied to the expropriation action.  Not knowing this, one cannot criticize it for not notifying the petitioners of the plans that were applied to the area.  But, this claim could hold only until the day in which the Mahol case [5] was decided, which is 12 March 1996.  From that time on the State could have known of the shift that occurred in the legal rule, and if it had undertaken precautionary measures as dictated by the legal rule, then the petitioners would have been warned  about the plans, if only from that time on.

My view is the view of my mentor, Professor Klinghoffer, and his words of criticism on the ruling in Geulat Hakerech case [15] should be applied to our case as well.  This is demanded, in my view, by the duty of decency.  For,  if the individual does not know of the authority’s plans, how can he protest against them and protect his rights?

This duty imposed on the authority – it can be claimed – can also be learned from the provision of section 195(2) of the Planning Law, according to which:

This statutory provision establishes the duty of the authority to notify the individual as to the change in the designation of the lands – so that he can realize his right and buy the land that was expropriated from his possession – and from this explicit statutory provision one can also learn as to our matter what is the Israeli common law, meaning as a legal rule that obligates the authority in the framework of the connection that is maintained between the former owner of the expropriated land and the land that was expropriated from him.  In cases of planning, the duty is fixed explicitly in the statute; in our matter we can learn and establish this duty from the combination of the connection of the owners to land expropriated from them; the duty of decency which fills this connection with content and from a (possible) analogy to planning law.  See further paragraph 47 supra.  But again: Our words are to be interpreted as thoughts only.

86.  In our matter the authority did not notify the owners of the plans – and the changes to them – while, it goes without saying, no changes were visible on the land: just the opposite.  Moreover, reading the words of the petitioners in HCJ 360/97 teaches us that the late attorney Mr. Samuel persevered in his view that the expropriation should be cancelled, and, though the years passed, he never gave up his desire to return the land to his ownership.  The decedent’s son, Mr. Michael Samuel informs us that in the late 1980’s and early 1990’s he travelled to the expropriated land – at his father’s behest and his own initiative, and sought to learn the status of the land.  Only at the end of 1995, so he declares, did he learn – indirectly – about the changes occurring on the land, and only as a result of this learned of the plans applying to it.  Moreover, even though the late Adv. Samuel, and his heirs after his passing, approached the Administration several times with the request that the land be returned to their possession, the Administration was steadfast in its stance that the expropriation cannot be cancelled due to the military’s use of it, and all those years the Administration did not reveal to the petitioners the change in the plan.  When they found out about the change, the petitioners immediately filed the request that the land be returned to their possession, and on 21 March 1996 they even filed an objection to the new plan that was filed.  Their objection was dismissed on 17 November 1996; they were notified of the matter of the dismissal on 2 December 1996, and on 16 January 1997 they came to the Supreme Court.  Against the background of all this we have difficulty understanding in what way the petitioners delayed their petition.

The petitioners in HCJ 1947/97 also declare that they only became aware of the change with the publication of notices as to the cessation of the use of the place for military purposes, and that immediately upon this being made known to them they approached the authorities to clarify the status of the land.  In point of fact therefore, the owners did not know of the intentions of the authorities until close to the date in which the land was returned to the Israel Lands Authority, on 25 August 1996.

As for the petitioners in HCJ 2390/96 – these demanded their rights, and we have not found delay as to them either.

87.  The claim of delay is difficult in our view for another reason.  It relies on the expenses that the authority incurred in implementing and advancing plan HD/VM/944, however, as we saw (in paragraph 7 supra) – and as per the notice of the Chairperson of the Committee for Building for Construction and Industry in the Haifa region that was published on 24 October 1997 – this plan was cancelled.  Once the plan was cancelled, how can the respondents complain as to their situation being made worse due to the implementation of a plan which is no longer among the living?  One way or the other, the expenses expended by the State – it is to be presumed (and so it was argued before us) – will be taken into consideration if the land is returned to its owners.

The claim of delay has nothing to it and is to be dismissed.

Date of applicability – the past and the future or only the future?

88.  As per the ongoing-connection rule – a legal rule which we today plant in the soil of Israeli law – one from whom land was expropriated –  in principle –  to the return of the land or to the payment of its value with the exhaustion of the public purpose for which the land was expropriated (with the payment of certain balancing-payments, for the improvement of the land due to zoning plans or for other reasons, return of the compensation that the former owner received, etc.).  This is so as a general rule, and the matter of the petitioners can also serve as a model in practice.  In this case the petitioners’ lands were expropriated to begin with for military purposes; this purpose exhausted itself, and thus in any event the petitioners can claim that what was taken from them should be returned to them.  Indeed, it is possible the authority can expropriate those lands anew, but this expropriation – if it happens – must be performed properly and according to the accepted process – as per the expropriation legal rules.  All this – as we have emphasized time and again – in principle.  But the principle is not sufficient.

89.  In our judgment we have not discovered a new continent and we have not invented a doctrine ex nihilo.  The idea of the ongoing connection – as we have seen – has come up in the past more than once, and during the course of the years the doctrine has even been favored by some of the judges.  Nevertheless it is not lost on us that this is the first time that we are determining – in a broad panel–definitive statements as to the connection of the owner to land that was expropriated from him.  Until now the connection-severing doctrine governed, and now we have come and turned things upside down: we have uprooted the doctrine from its place and planted another doctrine in its place.  Indeed, the doctrine of the connection sends roots to the expropriation law, and draws its strength from the Expropriation Ordinance – since otherwise we couldn’t decide what we are deciding – and yet it is also true, that removing the queen from her throne and crowning a new queen instead is something of a mini-revolution in expropriation law.  It appears that we would not be far from the truth if we say that the changing of the guards which we are conducting between doctrines appears like a change in the law; until that very day a certain law established arrangements in a certain segment of life, and on the same day a certain law was passed which establishes different arrangements in that life segment, and in certain respects – arrangements which are the opposite of prior arrangements.

90.  As to our matter, the question which is pressuring us for a solution arises on its own.  According to the new doctrine, it is possible that the petitioners have acquired a ground for return of the land to their possession or to receipt of compensation instead.  However, this right, if the petitioners have acquired such a right, was born prior to our establishment of the legal rule which we have established in this decision.  And this raises a question: what will be the date for the beginning and applicability of the new arrangements we have established.  Will the legal rule be applicable prospectively only, meaning: the new arrangements will apply only to an expropriation which will occur in the future or land that was expropriated in the past yet the public purpose will only dissipate in the future?  Or perhaps we will say, the correct date for application of the legal rule will be retrospective – will look toward the past and will apply in the past – meaning: the new arrangements will also apply to an expropriation that occurred in the past and even if the public necessity has ended in the past.  And possibly there will be found those who will say that the new arrangements indeed will apply just for the future but in an exceptional manner they will hold in the matter of the petitioners.

91.  The question of the correct date for the applicability of the new arrangements involves various and important considerations; among them: the reliance interest of the expropriating authority – at the time of the expropriation or at the time of change or giving up of the public necessity; questions of budget and discussions which are necessitated by retroactive application, and on the other hand the consideration of the interest of the owners whose lands were expropriated in the past and more.

On this question of the date of applicability and on the matter of the relevant considerations, we have not heard arguments from the parties, not in writing nor orally, and it would not be right that we make a determination in the law prior to hearing from them.  It is therefore appropriate that we take a short break and ask the parties to argue before us as to the question of the proper date for the applicability of the new arrangements in general, and, particularly, on the question of the applicability of the new arrangements in the petitions before us.

I therefore propose that the petitioners make their arguments in writing as follows: first, arguments on the question of the correct date for application of the new arrangements in general, whether from this day forward or also retroactively, and second, presuming that the new arrangements will also apply retroactively – the question whether they should apply to the expropriations which are the subject of the petitions before us.

The petitioners are requested to make their arguments, as said, within 30 days; the respondents will respond to these arguments within 30 days; the petitioners may submit a response within 15 additional days.  Following that, and if we believe that it is proper, we will set a date for an oral hearing, or we will make a determination in the law on the basis of the written arguments only.

A call to the legislator

92.  Once we have made a determination on the matter of the doctrine, we see it as our duty to direct a call to the legislator that it act – and quickly – to regulate the matter of expropriation of land in a comprehensive and organized statute.  The Expropriation Ordinance of today was passed in the Mandate period – in the year 1943 – and will soon celebrate sixty years to its birth.  Now, with the arrival of the connection doctrine, there is no doubt in our minds that more than a few questions will pop up here and there – some of which we have discussed above – and it would be proper for these questions, at least their core elements, to find a solution in the written law.  In the same motion it is proper that the legislator give thought to the expropriation provisions in the Planning Law and consider the possibility of unifying the law.  The work is great and now is the time to act.

Justice I. Zamir

I agree to the main element in the judgment of Justice M. Cheshin.  And what is the main element?  The essential main is that the power to expropriate land according to the Expropriation Ordinance (Purchase for Public Purposes) is appended to a public purpose.  The meaning of this is that a public purpose is needed not only as a precondition which must exist before the expropriation of lands according to the Ordinance, but also as a later condition which also must exist after the expropriation.  From hence, if the public purpose ceases to exist after the expropriation it is possible and proper, in principle, to cancel the expropriation.

That is the main element, but I reach it by my own path, different from the path which Justice M. Cheshin has taken.  Indeed, we are dealing with theory, but as we know, in the end theory impacts practice.

The expropriation power: the original interpretation

1.    The Expropriation Ordinance (Purchase for Public Purposes) (hereinafter: ‘Expropriation Ordinance’) is a Mandatory ordinance not just in terms of time period but also by its character.  The Ordinance, like other ordinances from that period, expresses the spirit of the Mandatory regime of Britain.  This regime was not very different, in spirit and actions, from a colonial regime, as it was in the colonies of the British Crown.  The regime, by nature of a colonial regime, was not committed to the values of democracy, but primarily to the interest of the Crown.  For this need the regime acquired for itself far ranging powers via ordinances and other means.  The powers that were granted to the regime did not show proper respect for basic human rights. On the contrary, they enabled severe violation of these rights.

So too the Expropriation Ordinance.  The Ordinance grants extreme power to the Minister of Finance (who comes in the place of the High Commissioner) to expropriate private property (with compensation).  In theory it grants the power to the Minister of Finance to expropriate lands only for public necessity.  But in fact it establishes, in language that can mislead the innocent reader, that the Minister of Finance may expropriate land for any purpose he sees fit.  How so?  Section 3 establishes that the Minister of Finance (or according to section 22, any entity or other person that the Minister authorized for this) may expropriate any land if he finds that this is necessary for any public necessity, but section 2 adds that public necessity is any necessity that the Minister has approved as a public necessity, and section 5(2) says that publication of a notice in the Reshumot according to which the Minister intends to expropriate specific land, will be considered definitive proof that the Minister certified that the purpose of the expropriation is a public purpose.

Moreover, the Expropriation Ordinance by its language does not demand that the Minister of Finance conduct an inquiry as to the public necessity in order to establish whether a certain land is necessary for a certain public necessity to a degree that requires expropriation; it does not obligate the Minister to give the owners of the land an opportunity to voice arguments against the expropriation, as would follow from the rules of natural justice, and it does not even impose a duty to note in the expropriation decision the public necessity at the basis of the expropriation.  See, for example, HCJ 67/79 supra [4].  Indeed, as I have said elsewhere, ‘this is a striking example of the unbearable ease of governmental violation of property right’.  See Zamir in his book supra [50] at p. 197.

2.    When the State of Israel was established, it could be expected that the very transition from a Mandatory regime to a democratic regime would lead to the cancellation of the Mandatory Expropriation Ordinance and the legislation of an Israeli expropriation law which would properly balance between public necessities and human rights.  Indeed, in Britain itself the law which regulates expropriation of lands for public necessities has undergone substantive transformations, and it protects property right much more than the Expropriation Ordinance.  But in Israel, surprisingly, not only has the Expropriation Ordinance not been cancelled and not made room for a new law, but it remained as it was, without even one amendment over the course of all the years since the State was founded, as though it were a perfect law.  Moreover, it was left in its original version, which is the English version, with a Hebrew translation which is infelicitous and not binding, and a new version has not even been produced according to section 16 of the Orders of Government and Justice Ordinance 5708-1948.   Is this not so because the Ordinance is so convenient for the government which is given such an easy hand for the purpose of expropriation, to the point where the government is hesitant to touch it, lest the need be found to amend it in a thorough manner?  One way or the other, the fact that this ordinance has remained standing as it was for so many years is not a badge of honor for the State of Israel.  And it is still possible and proper to fix the distorted.

Indeed, the truth must be told, in fact the situation changed since the legislation of the Planning and Construction Law.  This law also regulates the expropriation of lands for public necessities.  Among other things it establishes, in sections 195 and 196, provisions for the case where the designation of lands that were expropriated is changed, and this includes provisions as to the return of lands to the original owners.  Today this law is the basis for the expropriation of land in many cases, and apparently even in most cases.  However, the Expropriation Ordinance still is valid, as it was, and it enables expropriations according to the Ordinance, and not necessarily according to the Planning and Construction Law.

3.    Since the legislator has not done anything to amend the Ordinance, it was possible and proper that the Court do something toward a new interpretation of the Ordinance, as is called for by the very transition, with the establishment of the State, from a Mandatory regime to a democratic regime.  Indeed, as was established in section 11 of the Orders of Government and Law Ordinance, the law that existed in Israel on the eve of the establishment of the State will stay in force, inter alia, ‘with the changes necessitated by the establishment of the State’.  One of the most important changes stemming from the democratic character of the State is the relative status of human rights vis-à-vis public necessities.  The balancing point between these and these, so ruled the Court, changed with the establishment of the State.  The change must also be expressed in a change in the interpretation of the Mandatory ordinances, even if the language of the ordinance has remained unchanged.  So ruled the Court, for example, as to the Journalism Ordinance from 1930.  This ordinance granted the Minister of the Interior power, inter alia, to stop the publication of a newspaper that published something that may, in the opinion of the Minister, endanger public safety.  The Court determined in HCJ 73/53 Kol Ha’am Company Ltd. v. Minister of Interior [31] that the democratic character of the State obligates granting effective protection to freedom of expression, and therefore a new interpretation of that ordinance is necessitated: according to that interpretation, the Minister of the Interior is not authorized to stop the publication of a newspaper unless something has been published in it which creates a near certainty of real danger to public safety.

In a similar manner it was possible to interpret the Expropriations Ordinance, after the establishment of the State, in a manner that would limit the power to violate the right to property.  However, the Court, while it declared property right as a human right, did not act with the property right as it acted with freedom of expression.  It is possible that this was so because the Court did not evaluate the property right as it evaluated the freedom of expression, or because it was not willing to spread its force over all the rights or for any other reason.  Indeed over the years a certain change occurred in the approach of the Court toward the Expropriation Ordinance in a manner that somewhat strengthened the defense of property right.  See HCJ 307/82 supra [3].  However, in a general manner, the Court continued to give the expropriation power a broad interpretation, in accordance with the language of the Ordinance, in a manner that is not accepted in democratic states.  In Mot 33/53 Salomon v. Attorney General [1] the Court said:

‘The manner of expropriation of lands for a public purpose is subject to the unlimited discretion of the Minister of Finance as an executive branch, and as long as it operates in good faith,  when he uses his discretion to implement his policy he is subject to supervision and review of the Knesset and not review of the Court.’

The Court also ruled in this vein after this.  Inter alia the court held that even if it turns out after the expropriation that the lands that were expropriated for public necessities no longer serve a public necessity and the State intends to sell them to the highest bidder, this is not sufficient to rescind the expropriation. See for example, HCJ 282/71 supra [14] where Justice Landau said (at p. 470):

‘Ostensibly the meaning of these words is simple nationalization of private property for compensation that does not compensate, in the guise of purchase for public necessities which ceased and no longer exist.  The tool of the Ordinance of Purchase for Public Necessities was not created for this, although in a formal sense the Administration is acting also in this case within its provisions.’

See further Kamer in his book supra [52] at pp. 158-160.

However, since then a change has occurred in the legal rule, although no change has occurred in the language of Ordinance.  What occurred?

Property right as a constitutional right

4.    In 5752-1992 a substantive change occurred in the legal status of property right in Israel.  The Basic Law: Human Dignity and Liberty, that was legislated that year, established in section 3 that: ‘a person’s property is not to be violated’.  Indeed, this section does not stand on its own, but it is woven with other sections of the Basic Law, including section 8 (‘the limitations clause’) which permits infringement of basic rights, including property right, under certain conditions: infringement in a law (or by power of an explicit authorization in it) which is compatible with the values of the State of Israel, which is intended for a proper purpose, and to a degree that does not go beyond that which is necessary.  Yet, as has been ruled, the basic law has elevated property right up the levels of the pyramid of the legal norms and placed it at the pinnacle: it made it not only into a basic right but also a constitutional right.  See CA 6821/93 supra [26].

From a practical perspective a double significance stems from the status of a constitutional right.  First the Court is authorized to void a new statutory provision that was legislated after the Basic Law if it violates a right in conflict with the provisions of the Basic Law.  Second, the Court may interpret an old statutory provision that was legislated prior to the Basic Law, if it violates the right, in a manner that will reduce the violation.  Indeed, this Court has clarified well in various contexts, that the interpretation of a law that violates a constitutional right, and accordingly the meaning of that law, may change consequent to the Basic Law.  See, for example, CrimMA 537/95 Ganimat v. State of Israel supra [20].  The Court has also clarified this as to property right.  Thus, for example, in HCJ 1188/92 Local Planning and Construction Committee Jerusalem v. Bareli [32], at p. 483, the Court said: ‘The interpretation today, more than in the past, must operate in the direction of reducing the violation of property right.’ See also LCA 5222/93 Lot 1992 Building Ltd. v.  Parcel 168 in Lot 6181 Ltd. [33].

If so, then today it is possible and appropriate that the Court act toward the interpretation of the expropriation power in the Expropriation Ordinance, following the change that occurred in the status of the property right, as it acted after the establishment of the State as to the interpretation of the power to stop the publication of a newspaper in the Journalism Ordinance, consequent to the change that occurred then in the status of freedom of expression.  See supra paragraph 3.  Accordingly, it is possible and appropriate that the expropriation power will be interpreted today on the basis of the balance between public necessities and property right that would be compatible with the values of the State of Israel so that will strengthen the protection, that until now was weak, of property right.

Expropriation power: purpose appended

5.    Indeed, after property right was raised to the level of a constitutional right, and since it went up a level, a change has occurred in the interpretation of the expropriation power in a manner that strengthens the protection of the right: the expropriation power has been recognized as purpose appended.  What does this mean?

There is a strong connection between the power and the purpose.  Every power has its own purpose.  At times the purpose is explicit in the law and at times it is learned, in an implied way, from the history of the statute, the language of the statute, the substance of the power and more.  The Planning and Construction Law, for example, in section 188 grants the power to the local planning and construction council to expropriate land for public purposes, and it defines public purposes in great detail.  The Expropriation Ordinance also explicitly establishes the purpose of the expropriation power: to purchase land for a public necessity (the exact translation from the English source is purpose).  But what is the public necessity?  The Ordinance intentionally uses opaque language: public necessity, as section 2 of the Ordinance establishes, is any necessity which the Minister of Finance certified as a public necessity.  However, today it is clear that the certification of the Minister, like any administrative decision, is subject to judicial review, inter alia, to review in terms of the purpose of the statute and the relevant considerations.  Therefore, it is clear that there is a duty to exercise the expropriation power like any power, for the purpose of the power and not for an irrelevant purpose.  From hence, that if the Minister of Finance decides to exercise this power, for example, for a personal purpose, the decision is defective and illegitimate.

This is so as to any power.  However, there are powers that can be called purpose appended powers, in which the purpose of the power must exist not only at the time the power is exercised, but also after the exercise of the power.  With such power the exercise of the power changes the legal situation over time upon the condition that the purpose of the power exists for the entire time.  When the condition ceases to exist, the legal situation that is created with the exercise of the power must change.  Thus, for example, the Court saw the power according to the Defense Regulations from 1939 to expropriate the use of an asset for a certain purpose, such as public safety or supply of vital services.  The Court stated that such expropriation is ‘an ongoing and continuous activity’, and therefore it can exist as long as the purpose of the expropriation exists.  See HCJ 31/48 supra [11] at p. 200.  The power of the Minister of Finance according to section 2 of the Emergency Powers (Detentions) Law 5739-1979, to order the administrative detention of a person if security reasons necessitate that he be held in detention.  Or the power of a district psychiatrist according to section 11 of the Law for the Treatment of the Mentally Ill 5751-1991, to order compulsory clinical treatment of a mentally ill person who needs continued clinical treatment.  With powers such as these, if the purpose of the treatment that existed at the time of the decision to exercise the power ceases to exist, it is possible that the Court would void the decision.

6.    The expropriation power, as said, was not considered a purpose appended power at the time.  See supra paragraph 3.  The result was that even if the public necessity which lead to the expropriation ceases to exist, the expropriation continues to exist, as if the connection between the power and the purpose had been severed.  This result appeared, more often than once, unjust.  In HCJ 282/71 supra [14], in which such a case was discussed, the Court said (at pp. 469-470) that ‘in the case of the petitioner the injustice cried out in particular’ and that ‘in the present case justice would require that the State return the land to the petitioner and his brother, after the security necessity for which the land was acquired at the time ceased to exist.’  See the criticism voiced by Professor Klinghoffer, in his article supra [59].  See further as to accepted legal theories of public property in the countries of the European continent, and in contrast, as to the Expropriations Ordinance in Israel, Klinghoffer in his book supra [51] at p. 141 and on.  But this was not sufficient over many years to bring about change in the interpretation of the expropriation power as it was established in the Expropriations Ordinance.

7.    The change in the interpretation of the expropriation power, which recognized this power as a purpose appended power, occurred following the Basic Law: Human Dignity and Liberty.  The change was expressed at first in HCJ 5091/91 supra [6]. See also HCJFH 4466/94 supra [9].  There Justice Dorner related to the new status that the Basic Law: Human Dignity and Liberty granted to property right as a constitutional right.  And so she said (at p. 87):

‘The rise in the status of property right to a supra-statutory constitutional right requires an additional development in the interpretation of the Mandatory Ordinance, in order to adapt its provisions to the new normative reality which was created with the passing of the Basic Law…  a broad interpretation of the power, which enables the authority to use the land for a different purpose than the purpose for which it was expropriated, is contrary to the rule that the case law established as to a narrow interpretation of the power to infringe on a basic human right.  All the more so that one is not to accept a broad interpretive approach with the passing of the Basic Law.’

The change found expression once again, after a short time, in HCJ 2739/95 supra [5], at p. 321-322.  Justice Goldberg said there with the agreement of Justice Mazza and Justice Kedmi, as follows:

‘The expropriation is an unavoidable necessity if there is no escape from it in order to ensure that public necessities are satisfied.  However, expropriation was not intended to enrich the State.  Between the expropriation of the land and public necessities there exists an unseverable connection, to the point where it can be said that from a conceptual standpoint the property right that the State acquires in the land that was expropriated from the individual – even if the expropriation processes were completed – is a ‘conditional’ right, and the condition is the necessity of the land to achieving the public purpose: once the public purpose has passed from the world, or other grounds have arisen to cancel the expropriation, the land is to be returned to is owners, if he so wishes.  Returning the land in this situation is what returns the ‘orders of property in land’ to their place, as otherwise the expropriation turns from a tool for realizing social objectives to an independent purpose, which stands on its own.’

This being so we are not today breaking new ground, but rather continuing to go in the path that has already been opened following the Basic Law: Human Dignity and Liberty, which connects the expropriation power to the purpose of the expropriation.  Justice M. Cheshin, who is also of this view, uses the language of an ongoing connection between the lands that were expropriated and the owners of those lands.  This, it appears to me, is language anchored in civil law.  But we find ourselves in public law.  Therefore I am of the view that it is preferable to say, in the language of public law, that the expropriation power is appended to the purpose of the expropriation throughout the entire expropriation.

This way or that, today there is no longer room for doubt that a legal rule has been established by the Court in an extended panel: in principle, expropriation of lands for public necessity is valid as long as the public necessity exists.  This is the new rule.

This is so in principle. But in a practical manner there now have grown out of the new rule many and complex problems.  How is the legal rule to be implemented in the many cases of land expropriations that occurred over decades, being very different from one another?

8.    It is clear that the new rule does not require in every case in which the public necessity expires in land expropriation that, without exception, land will be returned to the original owners.  For example, it is possible that the lands were expropriated a very long time ago, and even the public necessity expired a long time ago, and since then they have served a private purpose, and no one has said a word; it is also possible that in the meantime the lands were sold and have been transferred in good faith from hand to hand; it is also possible that the face of the lands has undergone significant change, such as that a large structure was built on it for a certain purpose, so that under the circumstances it is not practical or reasonable to return the lands to the original owners; so too it is possible that the lands are still necessary for a public necessity although another necessity, slightly or greatly different from the original necessity; and it is possible that there is no justification for returning the land to the original owners because of delay on the part of the owners or because returning the lands will cause severe damage to the public interest.  What is the law in such cases?  Even in other countries where the law establishes that expropriation of lands is valid only as long as the public necessity exists, this law is subject to limitations, such as the time that has passed since the expropriation.

When and how then is it possible and proper to implement the new rule in Israel?

Problems in implementation of the new rule

9.    First, it is to be clarified that according to the new rule, it is not sufficient that the public necessity expired in order for the lands that were expropriated to transfer as though on their own, from the hands of the expropriation authority (whether it be the State or another authority) to the hands of the original owner.  In order for the lands to be transferred from hand to hand a decision is still necessary.  The decision can be made by the expropriating authority after it realizes that the public necessity expired, or by the Court when it is asked to decide in a dispute between the expropriating authority and the original owners.

Indeed, when the expropriating authority realizes that the public necessity expired, it would be proper that it notify the original owners of this and exchange words with him in order to make an arrangement for return of the lands to his possession or to work out another arrangement (such as purchase or compensation) which will be agreed to or even to inform him that it is its intention to continue holding the lands for another public purpose.

This is a change which is derivative of the new rule.  It has practical significance.  The communication between the expropriating authority and the original owners, against the background of the new l rule, is likely to end, and it is desirable that it should end, with an agreed upon arrangement.

10.  Second, implementation of the new rule raises various questions.  Among others, the question arises in the case where the public necessity which led to the expropriation of the lands expired, but in the meantime another public necessity, slightly or greatly different from the original necessity, has arisen.  Is the expropriating authority entitled to continue holding the land for the new public necessity, or does it need to expropriate the land again?  If in such a case, the authority has to expropriate anew, does it also have to pay compensation again?  And if so, in what amount?  And there is also room for the question if there is a difference between the case in which the owner of the land received compensation for the expropriation and the case where the owner did not receive (perhaps because he refused to receive) compensation.  Moreover, is the authority obligated to return the lands that were expropriated to the owner, or perhaps must it sell the lands to the owner?  And if so, at what price?  These questions and additional questions are as complex as they are important.  However, they need not be answered now, nor even an opinion expressed, by the Court.  It is possible and even proper that in time the answer be given in a statute.  If the answer will not be given in a statute, the Court will have no recourse but to provide the answer itself, when there will be a need for this.

11.   Third, a date must be set for the applicability of the new rule.  It is straightforward that this legal rule applies prospectively, on any land expropriation that will be done according to the Expropriation Ordinance from here on in.  From here on in the expropriating authority knows that the expropriating power is purpose appended, and therefore a new expropriation will be valid only as long as there is a public necessity for expropriation.

However, what is the law as to expropriation in the past, such as expropriation which was done a year or ten or fifty years ago:  does the legal rule apply retroactively on every expropriation that was done in the past?  Moreover, let us presume that the legal rule also applies to an expropriation that was done in the past for one period of time or other.  In such a case what is the law if the public necessity for the expropriation has also expired in the past, such as a year or thirty years ago?  It can be said that even if the new rule applies to an expropriation that was done in the past, it does not apply unless the public necessity in the expropriation will expire in the future, meaning from here on in.  But it can also be said otherwise, What is the law?

The question whether to give a new rule retroactive applicability is at the Court’s doorstep, at times explicitly and at times impliedly, whenever it lays down a new rule.  At times, the answer is clear, one way or another, according to the circumstances of the case and the substance of the legal rule.  At times the answer can move to and fro, and it is dependent on the circumstances of the case and the substance of the rule.  Then the Court must develop a stance for itself, as a matter of judicial policy, as to the date of applicability of the rule.

In the present case there are several possibilities for determining a date for the applicability of the rule.  In various countries in Europe in which the expropriation authority is purpose appended, such as France and Germany, the duty to return lands that were expropriated, when the public necessity expires, applies for a specific time period, such as a period of ten years from the day of expropriation.  What is the proper rule?  It is appropriate that these questions and other additional questions derived from the new rule be provided in a statute.  Indeed, the subject of expropriation of lands for public necessities is a topic that should properly be regulated in a detailed and comprehensive manner, as much as possible, by statute.  This is accepted in other countries.  So too in Israel.  But in Israel the Mandatory Ordinance which regulates the expropriation of lands is an outdated ordinance that is not compatible with the values of the State.  It should have already been replaced by a new law.  See supra paragraphs 1 and 2.  In any event now, with the change in the rule, the need for a new statute that will be compatible with the values of the State, will not infringe on property right in a manner that goes beyond what is necessary, and will also provide answers to problems which arise from the new rule, has become more urgent and pressing.

However, the question of the date for applicability of the new legal rule is before us today, in the petitions that were filed already several years ago, and there is no avoiding an answer, if only a partial answer, to the extent it is necessitated by the present case.

12.  However, the question of the date for the applicability of the new rule was not discussed at all before the Court, neither orally nor in writing, and it would not be proper to give it an answer without a foundation of arguments.  Therefore I agree that it is proper to now hear the arguments of the parties on this question, as said in paragraph 91 of the decision of Justice Cheshin.

Justice T. Strasberg-Cohen

1.    I accept that according to the legal rule that has come out of this decision in the words of Justice M. Cheshin and I. Zamir, once the public purpose for which the land was expropriated has been exhausted, the one from whose ownership the land was expropriated is entitled – in principle – to the return of the land or to compensation if it cannot be returned subject to the exceptions mentioned in the opinion of my colleague.

2.    As for myself, I see the ownership acquired by the State by way of expropriation as a special legal institution of ‘public ownership’ which is acquired by compulsion, and which is not expressed in the Land Law 5729-1969 and it is an outcome of the laws of expropriation.  The legal rule that has come out of this decision before us is derived of this.  When the purpose of the expropriation has been exhausted, the duty of the authority arises to return to the original owner the land that was taken from him by the authority by compulsion (or to pay compensation, according to the circumstances).  This duty reflects the protection of the property right of the original owner, which was anchored as a constitutional right in the Basic Law: Human Dignity and Liberty.

3.    From the  legal determination which has come out before us in this decision various questions are derived which we are not called upon to determine at this stage or in this matter, such as on whom the legal rule which has come out before us will be applied, on one whose grounds for his suit – which arises with the change in expropriation of the land – will ripen after the handing down of this decision; one whose grounds for suit arose in the past and the statute of limitations has not applied to it yet, or only on the petitioners before us.  Additional questions are what is the ramification of the passage of time since the expropriation and until the change of purpose on the right to the return of the land or to compensation; what is the ramification of the new purpose that was designated for use of the land by the expropriating authority, on the right to the return of the land; what ramification is there to the state of the land at the time of the change in designation (the existence of structures on it or the granting of rights to third parties) on the question if it is to be returned or if compensation is to be paid for it; what is the fate of improvement of the land by the authority, if it was improved: what are the conditions in which it is made possible for the expropriation authority to change the purpose of the expropriation and leave the land in its hands by power of the expropriation; what are the ramifications of receipt of compensation in the past as a result of the expropriation on the right to return of the land and other similar questions.  Part of these questions will be dealt with – as necessary – at the second phase, after hearing the parties’ arguments, as was determined in the decisions of my colleagues, some of them will be left for later determination, when they arise.

I therefore also join the result acceptable to my colleagues, which finds expression in paragraph 91 of the decision of Justice M. Cheshin and I also join my colleagues call to the legislator, to regulate this important topic in legislation, and the sooner the better.

President A. Barak

Today an important legal rule is being handed down.  According to it if the public purpose which served as the basis for expropriation of lands according to the Expropriation Ordinance (Purchase for Public Purpose) (hereinafter: ‘the Expropriation Ordinance’) ceases to exist, the expropriation is cancelled and as a rule (subject to exceptions) the lands are to be returned to the owner of the lands from which they were expropriated (the ‘original owner’).  This legal rule is acceptable to me.  I ask to make several comments as to the theory (or model) at the basis of this important legal rule and its normative basis.

The model at the basis of the legal rule

1.    My colleague Justice M. Cheshin places the ‘ongoing connection model’ at the basis of the legal rule.  My colleague Justice Zamir places at the basis of the legal rule the approach of ‘purpose appended authority’.  Both of my colleagues seek to establish a ‘model’ or a ‘prototype’ or a ‘doctrine’ (hereinafter: ‘the theory’).  The role of the theory in general is two-fold: on the one hand it explains the existing normative framework.  This framework is not impacted by it nor was it caused by it.  The existing normative framework is deduced from sources which are external to the theory itself (this can be termed the explanatory face of the theory).  On the other hand, it constitutes a legal source from which normative results are derived.  The theory, in itself, effects legal consequences (they can be termed the creative face of the theory).  I have discussed these two roles of theory elsewhere, noting:

‘The purpose of general theory is twofold: first, it can give an explanation of existing law.  From this perspective it constitutes a tool of interpretation; second, it can assist in the solution of new problems, which have not yet arisen.  From this perspective it constitutes an operative legal norm.  In a certain sense, our work is like the work of a mathematician, who on the basis of a given number of geometric points on a surface deduces a general geometric shape which represents these points.  With the help of this geometric shape it is possible to deduce the existence of additional points that have not yet been established’ (A. Barak ‘the Essence of a Note’ [54] at p. 17).

We find that in relation to certain questions, theory summarizes existing law.  It gives a ‘name’ or ‘explanation’ to what was determined without it, and in for whose determination it was not needed.  In relation to other questions, theory is an independent norm, from which solutions are derived.  It grants the solution to the legal problem that is derived from the theory itself.  What is the status of the theory which my colleagues are proposing in the case before us?

2.    I will open with the theory of my colleague Justice Cheshin.  A significant portion of his judgment is dedicated to the model (or the theory or doctrine) of the ongoing connection.  According to the importance which my colleague attributes to it, it would be possible to presume that in relation to the problem before us – whether the cessation of the public purpose brings about cancellation of the expropriation – it provides an answer to the problem (the creative face).  Support for this approach can be found in the stance of my colleague that in expropriation, the authority ‘as though must justify the expropriation action daily’ (paragraph 17).  My colleague continues and learns an analogy from the seizing of assets according to the Defense Regulations from 1939, and from the words below of Justice Silberg as to that seizure:

‘Confiscation of assets according to regulation 48, is not a one-time completed act, but an ongoing continuous action which often draws its right to exist from the consistent desire of the authority that is condemning’ (HCJ 31/48 supra [11], at p. 200)

Indeed, were the ‘institution’ of expropriation built on the concept that the expropriation is not a one-time completed act but a continuing act which ‘often draws its right to exist from the consistent desire of the authority’ that is expropriating, then it would be possible to say that from this model of expropriation the conclusion is to be drawn – as an expression of the creative face – that if the public purpose ceased to exist the expropriation must be cancelled.  But the expropriation is not an ongoing activity.  It does not constitute – while adopting the theory espoused by Justice Silberg as to making a will – ’a sort of ‘ambulatory’, transitory creature’ (CA 148/52 Kasprios v. Kasprios [34] at p. 1292.)  Expropriation is a one-time legal action.  The need for the continued existence of the public purpose is not derived from the very institution of expropriation.  It is concluded from considerations which are external to the expropriation itself, and at their center the central status of property right.  Indeed, as my colleague Justice M. Cheshin has shown, in various countries in which the institution of expropriation exists there are various solutions as to the need for the continued existence of the public purpose.  I have no doubt that there is not in the model (or theory) of the ongoing connection to bring about the legal rule which arises from our judgment.  It is not to be said the since the connection between the original owner and the expropriated lands is an ongoing connection, therefore, with the cessation of the public purpose which stood at the basis of the expropriation the lands return to the original owner.  All that can be said is that the connection-maintaining model (or theory) explains the result that the Court reached for other reasons.  Therefore, it is to be said that since according to the legal rule the State must return to the original owner – to him and not to another – the lands that were expropriated from him, therefore, the original owner maintains, despite the expropriation, the connection to the land that was expropriated.  Indeed, it is important to relate to the connection-maintaining model (or theory) as a model which explains a normative system that was designed by force of considerations which are external to it (explanatory face), and not as a model that has, in terms of the question before us, a life of its own, in a manner that there is in the force of the model to provide a foundation for the legal rule.  If indeed I am right, then in any event the title of the (explanatory) model does not raise a question of much importance.  It is only a matter of judicial semantics.  It can be used if it is precise and does not create excessive problems.

3.    In this textual realm I would like to note that the talk of ongoing connection may create the impression that the original owners is left with a property right in the land even after expropriation.  My colleague Justice M. Cheshin writes:

‘The ongoing connection model shows us that past owner holds on to a legal connection – at some intensity or other – to the land that was expropriated from his ownership; and that the act of expropriation does not disconnect the owner entirely from that land.’

Certainly this is not the approach of my colleague Justice M. Cheshin.  The ongoing connection of the original owner does not grant him a property right to the lands that were expropriated.  All that was granted to the original owner is the right to demand from the State the cancellation of the expropriation and the return of the ownership (or its value) to the original owners.  This is an obligatory right toward the State.  It is not a property right in the land.  It is not to be said that after the expropriation the original owner is in a ‘holding pattern’ for his ownership to be filled with new content.  (See Y. Weisman Property Laws-Ownership and Partnership [55] at p. 28).  He is not left with a blank box titled ‘ownership’ which will be filled with property rights that were ripped from it. (ibid, at p. 31).  With the formulation of the expropriation the original owner ceases to be the owner of the lands.  The ‘box’ in its entirety has been transferred to the State.  However since the property was taken from the original owner without his consent and for the sake of realizing a public purpose, the expropriation is cancelled and the original owners are given a remedy following this.

4.    My colleague Justice Zamir describes the power of the Minister of Finance to expropriate lands as a ‘purpose appended’ authority.  It is clear from his decision that he does not see this characterization as a source of the requirement that the public purpose exist not only at the time of the expropriation but also after the expropriation.  This characterization does not express the creative face of the theory.  This characterization is descriptive, and it expresses the explanatory face of his approach.  The source for the requirement of ‘appendance’ of the purpose does not stem from the expropriation laws themselves or from the jurisprudence of administrative law.  The source for this requirement stems from the weighty status of property right, which in 1992 became a constitutional right.  Justice Zamir notes that ‘This being so we are not today breaking new ground, but rather continuing to go in the path that has already been opened following the Basic Law: Human Dignity and Liberty, which connects the expropriation authority to the purpose of the expropriation’ (paragraph 7).  I agree with this approach and in any event I have no objection to use of the phrase ‘purpose appended’ power.  I hope that in the future it will be possible to develop the rules of this power for additional and similar powers in a manner that it will be possible to use this model not only to explain normative results achieved by sources external to it (the explanatory face), but it will be possible to see in this model itself a source of the requirement as to the appendence of the requirement to the authority (creative face).  This matter does not require determination in our matter.

5.    My colleagues dedicate part of their decision to finding the ‘geometric place’ of the new theory – the model of the ongoing and continuous connection on the one hand and the ‘purpose appended’ model – in the field of private or public law.  It appears that they both agree to the fact that at the source of the legal rule which arises from our judgment rests the central status of property right.  This right has lately received constitutional supra-statutory status.  By its very nature, property right operates both in the public realm (in all that relates to the relationship between individuals among themselves).  In the matter before us – the (obligatory) right of the original owner toward the State (to cancellation of the expropriation) – its operation is in the realm of the public law.  Indeed, Justice M. Cheshin notes in his judgment that ‘this bite that the doctrine is meant to take out of property ownership, limits itself, by definition – and subject to other doctrines in law – primarily to the relationship between the State (or other public authorities) and the individual, and to the law of expropriation alone’ (paragraph 35).

The status of the basic law: Human dignity and liberty

6.    What is the role of the Basic Law: Human Dignity and Liberty in the petitions before us?  In this matter there is a certain difference between the approach of Justice Zamir and the approach of Justice M. Cheshin.  Justice Zamir sees the Basic Law: Human Dignity and Liberty as the primary basis for a change in the interpretation of the Expropriation Ordinance.  Justice Zamir writes:

‘The change in the interpretation of the expropriation power, which recognized this power as a purpose appended power, occurred following the Basic Law: Human Dignity and Liberty.’

The stance of Justice Cheshin is more qualified.  According to his view, it was possible to reach this legal rule already in the Mandate period, and certainly after the establishment of the State and before the legislation of the Basic Law: Human Dignity and Liberty.  We find that it is not the Basic Law which brought about the new legal rule, although it ‘helped us reveal the light of the hidden, but did not have – and does not have the power – to create something from nothing as to the statutes which preceded it’ (paragraph 42).  These differences of opinion are not new (see CrimMA 537/95 [20] CrimFH 2316/95 [21]).  I wish to express my view on them briefly.

7.    The starting point is that the Basic Law: Human Dignity and Liberty did not come to damage the validity of a law that existed on the eve of the start of the Basic Law (see section 10).  However, the Basic Law impacts the interpretation of a statute that existed on the eve of its inception (hereinafter: ‘the prior statute’).  This impact is inherently limited, as there is not in the power of the Basic Law to bring about a new interpretation which cannot be reconciled with the language of the prior statute.  Any interpretation is limited by the language.  The interpreter is not permitted to give the language of the law a meaning which the language cannot bear.  I discussed this in one of the cases, noting:

‘The work of interpretation is not limited only to words, but the words limit the interpretation... it is possible that the language of the statute will be given a broad interpretation or a narrow interpretation, a regular interpretation or an exceptional one, but generally an archimedic grasping point must be found for the purpose in the language of the Statute.’ (FH 40/80 Kenig v. Cohen [35] at p. 715).

But in the framework of the range of textual possibilities of the prior statute the Basic Law has a great influence.  It operates primarily in formulating the purpose of the prior statute.  This purpose is, as is known, the specific purpose and the general purpose.  The first is learned from the language of the law and its history.  The second is learned from the basic values of the system (see HCJ 953/87 Poraz v. Mayor of the City of Tel-Aviv Jaffa [36]).  These two purposes – and the final purpose which is formulated from them – are not frozen in time.  They are dynamic (See A. Barak, Interpretation in Law, Vol. 2, Statutory Construction [56] at p. 264, 603) Therefore a purpose that would have formulated in the Mandate period is not identical to the purpose that the Court would formulate after the establishment of the State HCJ 680/88 Scnitzer v. Head Military Censor [37] at p. 627; HCJ 2722/92 supra [22], at p. 705).  A purpose that would formulate with the establishment of the State is not identical to the purpose the Court would formulate following fifty years of independence.  Our understanding of the language and the history (the specific purpose) changes with the passage of time.  Our understanding of the basic values of the system (the general purpose) change with the change of time.  Our understanding of that which surrounds us changes all the time, and with it our approach as to the purpose of the legislation changes.  I discussed this in one of the episodes, noting:

‘The meaning that is to be given to the statement in the statute... is not set and standing forever.  The law is part of life, and life changes.  With the change in reality the understanding of the law also changes.  The language of the law stands as is, but its meaning changes with the ‘changing life conditions’... the law blends with the new reality.  In this way an old law speaks to the modern person.  From the interpretive approach, that ‘the law always speaks’... interpretation is a renewing process.  Modern content is to be given to the old language, in this way the gap between the law and life is narrowed.  Against this background it would be proper to say, as Radbruch has said that the interpreter may understand the law better than the maker of the law and the law is always wiser than its maker... the law is a living creature, its interpretation must be dynamic.  It is to be understood in such a way that it will blend with and advance the modern reality.  (HCJ 2000/97 Lindorn v. Karnit, Fund for Compensation of Victims of Road Accidents [38] at pp. 32-33.)

Therefore I do not find fault with the justices of the Supreme Court at the time of the establishment of the State for not developing the legal rule that arises from our judgment fifty years ago or thirty years ago.  Times were different.  Problems were different.  Horizons were different.  The balance between the needs of the public and the individual – which formulates the general purpose of every statute – was different.

8.    A central factor which brings about a change in understanding the language of the law is constitutional change.  The new constitutional framework brings after it constitutionalization of all legal systems (see HCJ 3267/97 Rubinstein v. Minister of Defense [39] at p. 522).  Its significance is that it raises new values or gives them new weight.  A new balance is created between the conflicting general values.  This is so generally.  This is so in particular when the constitutional change is in the provision of constitutional status to human rights.  The change creates a new normative framework for the status of human rights.  As a result a new balance is created between human rights and public necessities.  A ‘constitutional revolution’ takes place (see CA 6821/93 supra at p. 352).  In the framework of this new balance a change may occur in the purpose of prior statutes.  A purpose that could not have been formulated prior to the passing of basic laws might be able to be formulated after the passage of basic laws.  And again, the text of the law has not changed.  But the purpose of the law has changed.  The change might be slight.  It may reflect a new purpose that could have been reached – even if in fact it was not reached – in the past.  The change may be weighty.  It may reflect a new purpose that could not have been reached in the past.  Indeed, Radbruch’s statement – that the law is always wiser than its maker – is particularly true during a time of constitutional change.  These change the normative expanse in which we continue to think.  It is no longer possible after the legislation of the basic laws on human rights to think of the general purpose of the legislation in the same manner in which we thought of it before the legislation of the basic laws.  Our normative world has changed, our way of thinking has changed (knowingly or unknowingly).

9.    Therefore, it is only natural in my view that our approach to the purpose of the Expropriations Ordinance is different from the approach to it fifty years ago or thirty years ago.  The central change occurred with the legislation of the Basic Law: Human Dignity and Liberty.  This law granted constitutional supra-statutory status to the property right of the original owners.  In the balance between the property right of the original owners and the public necessities a change has occurred.  This change does not impact the validity of the expropriation ordinance.  It is expressed in our new understanding of the purpose of the Expropriation Ordinance.  It leads to increasing consideration of the rights of the original owners (see HCJFH 4466/94 supra [9] at p. 88 (Justice Dorner); HCJ 2739/95 supra [5] at p. 321 (Justice Goldberg); at p. 327 (Justice Mazza)).  This consideration is not enough to create a property link between the original owner and the expropriated land.  But this consideration is sufficient to impose upon the state the duty to cancel the expropriation if the public purpose no longer exists.  Indeed, the basis for the legal rule is the central status of the property right of the original owner.  The expropriation mortally wounded this right.  The property of the original owner was taken from him without his consent, without leaving in his hands a vestige of right in his property.  The reason for taking the property was in the existence of the public purpose which justified sacrificing the property of the individual on the public’s altar.  Justice requires that when the public purpose terminated, and the original reason was removed for the continued ownership by the State in the land, the ownership will be returned to the original owners (see HCJ 282/71 supra [14], at p. 469-470).  The State’s ownership comes to it for the use of its governmental powers and against the wishes of the original owner.  From hence, that its ownership in the lands is of a special character (‘public property’).  Thus, for example, it is not proper that the day after the expropriation the State can sell the land in the market in order to finance its budget.  Limitations are placed on the State’s ownership.  One of those limitations – which is derived from the demand of justice and from the property right of the original owner which has been denied from him without his consent – is that with the passing of the public purpose which was at the basis of the expropriation the expropriation itself will be cancelled.

10.  My colleagues, Justices Zamir, Strasberg-Cohen and S. Levin have raised a series of questions which they wish to leave for further inquiry.  I join them.  I also join the call to the legislator as to the urgent need to regulate the entire matter in a statute.

Vice President S. Levin

1.    I agree both with the result and the basic approach of my distinguished colleague Justice M. Cheshin in his monumental opinion as to the non-severing of the connection between the owner of the land that was expropriated and the land.  Whether we adopt the model of the connection-maintaining expropriation action or the model of the purpose appended expropriation power, I accept, as do my colleagues, that when the purpose of the expropriation is cancelled the owner of the land is entitled – in principle – to its return to his possession.  The disagreement between my esteemed colleagues Justice M. Cheshin and Justice Zamir as to the precise placement of the question before us – appears semantic to me.  It relates to artificial distinctions, which may be different from one another in various legal systems and may contain elements of this one and of that one.  In the end – the law is one, and its division into separate and distinct squares – each evolving independently –appears undesirable to me and does not serve any useful purpose.

2.    As my distinguished colleague Justice M. Cheshin, I too wish to leave for further inquiry the same questions which he did not determine with finality, without expressing any opinion as to them.  Thus, for example, I wish to leave for further inquiry the question as to what the law is regarding one whose lands were expropriated and compensation was paid to him, and the question whether consequent to a change in the public purpose it is incumbent upon the authority to expropriate the land anew. 

I join the call of my distinguished colleagues to the legislator to regulate the subject of expropriation of lands in a comprehensive, modern, and ordered statute.

Justice D. Dorner

1.  I agree that the expropriation power according to the Lands Ordinance (Purchase for Public Purposes) (hereinafter: ‘the Purchase Ordinance’) is limited to the purpose of realization of a public necessity, and that when the land is no longer necessary for the realization of the public necessity, the Minister of finance, as a rule, is to cancel the expropriation.

This legal rule is not new to us.   It developed following the legislation of the Basic Law: Human Dignity and Liberty (hereinafter: ‘the Basic Law’), in the framework of which constitutional status was granted to the right to property .  This necessitates a re-examination of the interpretation of laws which violate the right to property.  See the words of Justice Or in HCJ 3956/92 supra [8], at paragraph 6 and the words of Vice-President Barak in CrimMA 537/95 [20], at pp. 418-419 (in a majority opinion that was approved in FHCrimA 2316/95 supra [21], at p. 655).

2.  Even before the passing of the Basic Law the right to property was recognized as a basic right.  With the passage of years changes also occurred in the interpretation of the Mandatory Purchase Ordinance.  It was established that the authority of the Minister of finance to expropriate land exists for a defined purpose, which it must publicize; that its discretion is limited and not absolute and that the expropriation will be invalidated if the considerations of the minister were afflicted by severe defects.  See HCJ 307/82 supra [3].

However, the actual decisions of the courts—which possibly fit the social reality of the early days of the State  - did not reflect the rhetoric, which the courts expressed, as to the status of the right to property as a basic right.  See Haviv-Segel in her article supra [63], at pp. 454-455.

3.  In our matter it was decided that expropriation according to the Purchase Ordinance is valid even if the public purpose for which the land was expropriated has ceased to exist, and that in principle the court will not get involved unless the expropriation was afflicted by severe defects such as arbitrariness and lack of good faith.  Thus, in HCJ 282/71 (hereinafter: ‘HCJ Binyan’ [14] a petition to return land that was expropriated without compensation for the purpose of establishing a military camp, and which with the passing of the security necessity was to be sold to investors, was dismissed.  The Court did not find a basis in law to obligate the Minister of finance to cancel the expropriation, although it was of the view that justice would require this.  It was also decided that under the assumption that the land is necessary for a public purpose different from the one for which it was expropriated, it is not possible to compensate the petitioner according to the present value of the land because with the implementation of the expropriation the ownership of the land was granted to the State, ‘and what has already been acquired for public needs, is not to be acquired again.’ (Justice Landau, ibid, at p. 470).  The Court even recommended amending the Purchase Ordinance in a manner that would prevent injustice.

The legislator did not heed the Court’s recommendation, and the Purchase Ordinance was not amended, nonetheless in 1992 the right to property was anchored in the Basic Law.

4.  Against this background, and as the normative change in the status of the property right has introduced an opportunity for the re-examination of the interpretation of laws infringing on the right to property, the laws of expropriation according to the Purchase Ordinance were given a new interpretation, which brought about significant change.

In HCJ 5091/91 (hereinafter: ‘HCJ Nuseiba’ [6]) it was decided in reliance on the Basic Law, to return lands that were expropriated after it was determined that the public necessity for which they were expropriated expired.  And so wrote Justice D. Levin in paragraphs 4-8 of his decision:

‘In light of the principles in the Basic Law itself, the limiting interpretation of [the Purchase Ordinance] is to be given even greater validity.

...

When it turns out after the fact that there is no longer a vital need for the expropriated land, the owners have grounds to free themselves from the shackles of expropriation and to act as the owners of their land.  This result is necessitated by the basic rights of the petitioners over their private property...’

Justice Mazza agreed with Justice D. Levin.  Even Justice Or, who in a minority opinion was of the view that the petition was to be dismissed, did not disagree that indeed a change had occurred in the normative status of the right to property which requires an interpretation which suits this change.  But, Justice Or explained, in the circumstances of that case, as a matter of fact, the original public necessity remained intact.

In addition, in the further hearing that took place on this decision—FHHCJ 4466/94 (hereinafter ‘FHHCJ Nuseiba’ [9])—in the framework of which the stance of Justice Or in HCJ Nuseiba [6] was accepted, no reservation was expressed as to legal rule which establishes that with the passing of the public purpose the authority must return the land to its owners.  The debate between the judges of the majority and the judges of the minority was factual in essence and touched upon the question of the existence of the public necessity.  In the legal literature as well it was explained that in FHHCJ Nuseiba [9] the Court did not intervene in the legal rule that was established in the original High Court of Justice case but rather only in the result.  See Haviv Segel, in her article supra [63] at p. 460; H. Dagan ‘The Laws of Governmental Taking and Laws of Competition—Toward a New Property Discussion’ [57] at p. 676 footnote 6.  In any event, the legal rule -  that the rules of expropriation according to the Purchase Ordinance are to be cancelled when the public necessity for which the land was expropriated no longer exists - is alive and well since the day that FHHCJ Nuseiba [9] was handed down—9 August 1994.

5.  My view in FHHCJ Nuseiba [9]—from which the majority judges did not have reservations—was that in the face of the constitutional status of the right to property a broad interpretive approach which enables the authority which expropriated land for a public purpose to use it for another purpose, after the original purpose has passed on from this world, is no longer to be accepted.  I wrote as follows:

‘It was decided that the Minister is entitled to expropriate the land for a public purpose, and later to change the designation of the land as he sees fit.

...

This approach of the case law... can[not] be accepted after the passing of [the Basic Law].  The basic right to property is today anchored in section 3 of the Basic Law, in which it was determined:

‘a person’s property is not to be violated’

...

Indeed [the Purchase Ordinance] has preceded the Basic Law and therefore its provisions cannot impinge on its validity (section 10 of the Basic Law).  However, as to its interpretation and the exercise of discretion by its authority section 11 of the Basic Law applies.  According to this section, all the governmental authorities—including the Court—must respect the rights anchored in the Basic law, as much as this is consistent with the valid statutes on whose basis they operate.  The Court must fulfill this duty by an exacting interpretation of the statutory provisions which permit infringement of the property right, which will express the status of property right as a constitutional supra statutory basic right.  From this status a new balance is needed between the public interest and the basic right.

...  respect of the right to property as necessitated by section 11 of the Basic Law will be achieved, inter alia, by the exercise of discretion according to the law in accordance with what is said in section 1 and section 8 of the Basic Law.  From section 1 of the Basic Law in which it is established, inter alia, that ‘basic human rights in Israel...  will be respected in the spirit of the principles in the declaration of the establishment of the State of Israel’ it follows that the discretion which relates to the right to property (similar to the rest of the constitutional basic rights) are to be exercised out of ‘complete social and political equality for all the citizens [of the State] without distinction as to religion, race or gender’ (as said in the Declaration).  From section 8 of the Basic Law... it follows that the right to property is not to be infringed upon, other than in a manner that is compatible with the values of the State of Israel as a Jewish and Democratic State, for a proper purpose and to a degree that does not go beyond what is necessary.’

I have continued to hold this view even after reading the decision of my colleague Justice M. Cheshin who has reservations as to connecting the change that occurred in the interpretation of the Purchase Ordinance to the passing of the Basic Law, and in any event I agree with the stance of Justice Zamir.

Indeed the legal rule agreed to by all of us establishes a fundamental approach, alongside which remain a row of open questions which were detailed by my colleagues Vice-President S. Levin, and Justices Zamir and Strasberg-Cohen, who have also recommended that legislation provide an answer to these question.

Indeed, the legal development by way of changes in interpretation is slow and truncated and generally derivative of the concrete cases heard before the Court.  There is, therefore, no doubt, that in our matter it would be proper to establish comprehensive and full regulation in the law.

I therefore join the stance of my colleagues both as to the existence of the open questions and as to the need for legislation.

However, in this proceeding we must determine whether the interpretation according to which the expropriation is subject to be cancelled when the land is no longer needed for public necessity, is applicable in our matter.  We will do so after receiving the arguments of the parties.

Justice D. Beinisch

We have reached broad agreement in determining the legal rule according to which if the public purpose that was at the root of the expropriation of the land according to Lands Ordinance (Purchase for Public Purposes), has ceased to exist, the expropriation is cancelled, and this subject to the exceptions and the rules that are to be developed.  Before I developed my stance in the matter before us there was before me the comprehensive, broad scoped opinion that my colleague Justice M. Cheshin laid out and the opinion of my colleagues Justice Zamir and President Barak which reached the same conclusion on the basis of different theories.

Once we have agreed to the result I do not see the necessity of expanding on the questions which touch upon difference in the starting point which is at the basis of the joint result.  In a general manner it would be correct to say that the basic approach in our system was that the expropriation denies the property right from the owners and severs the property connection to the lands in the transfer of the full rights to the State.  Accordingly this Court did not find that it was able to intervene as to the exercise of powers in all that relates to the later stages of the expropriation, even though this result was unsatisfactory and subject to criticism.  My colleague Justice M. Cheshin is of the view that this approach is to be changed from its core and thereby expressed the criticism that was expressed over many years as to the ‘connection-severing’ approach.  The question of the nature of the connection between the land owner and the expropriated land and the result which arises from this are planted in the legal system in which the expropriation power is anchored.  In my view, the result we reached is necessitated by the character of the expropriation power and from the relationship that was created between the expropriating authority as a governmental authority and the individual whose property was expropriated.  As to the expropriation power and as to the governmental activity which will bring on the principles which limit the power of the regime to infringe on basic rights, where the duty to narrow the infringement is not limited to the expropriation process itself.  In the era after the passing of the Basic Law this limitation is to be given meaning that will express the narrowing of the expropriation power to the public purpose for which it was designated.

In their various opinions my colleagues pointed, each in their way, to the development that occurred over the years in the approach of this Court in relation to the expropriation power and judicial review of it.  In summary it can be established that the path that our case law has taken from the beginnings of the State until today was a one way path that has marched the Court in one direction: a direction of interpretive development according to which the discretion of the authority on the subject of expropriations stands before judicial review according to the general principles which apply to the authority when it comes to infringe on a basic right.

My colleagues have discussed the fact that the manner of this Court in interpretation which touches upon the extent and the nature of governmental powers that were granted to the authority in the period of the Mandatory regime adapts itself to the period in which the interpretation is given, and therefore it is a dynamic interpretation which is not to be detached from the background and the circumstances in which the governmental power is exercised.  Like them, I too am of the view that after legislation of the Basic Law: Human Dignity and Liberty the interpretive process took a significant turn in all that relates to establishment of the proper balance between the protection of the rights of the individual and the public interest.  It appears, that none among us disputes the very impact of the Basic Law on the matter before us.  The difference in views is none other than a difference in the weight that each of us gives to the centrality of the Basic Law in the legislation that preceded it.

I share the view of those who hold that the change in the view of this Court as to the result which is necessitated by the cancellation of the purpose of the original expropriation is anchored in the change in the system of balances between the rights of the individual and the public interest according to the Basic Law.  This change also influences the character and extent of the governmental authority in all that relates to the expropriation of the property of the individual for the public purpose.  My colleague, Justice Dorner, has discussed this development which came following the Basic Law in the decision in HCJFH 4466/94 supra [9] at pp. 86-88.

I join the view that the character of the expropriation power is what necessitates that it be limited to the purpose for which it was granted.  The limitations on the power of the authority according to the principles of the limitations clause in the Basic Law are not exhausted at the expropriation stage itself and apply to every later governmental activity related to the expropriation.  The very expropriation and the processes implemented following it are to be seen as subject to the limitations of the law which are tied to the violation of basic rights.  These principles raise a duty on the part of the authorities as to those from whom the land was expropriated for a purpose that was justified at the time of expropriation and for this purpose only.  Return of the land or provision of compensation, depending on the circumstances, at the time that the purpose of the expropriation ends is part of this duty.

I will further add that I have no other recourse but to join the views of all my colleagues that the change in the legal rule raises many questions that we cannot answer in the framework of the proceeding before us and as to the recommendation shared by all of us for this matter to be regulated in legislation.

Justice T. Or

I had the advantage and pleasure of reading the decisions of my colleagues Justice M. Cheshin, Justice Zamir, and President Barak.  I accept, as do all the other members of the panel, the result reached by the three of them.  According to this result (a) if the public purpose which served as the basis for the expropriation of the lands according to Lands Ordinance (Purchase for Public Purposes), ceased to exist, as a rule, the expropriation is cancelled, and the owner of the expropriated lands is entitled to the return of the lands subject to exceptions and rules that are to be formulated; (b) once the principle has been established in our judgment, it is proper that the legislator say its piece and regulate the matter of expropriation of lands against the background of what has been said in this judgment; (c) as to the question of the applicability of the law to our matter, this will be decided after hearing the parties’ arguments, as said in paragraph 91 of the decision of my colleague Justice M. Cheshin.

HCJ 6698/95

1.     Aadel Ka’adan

2.     Iman Ka’adan

v.

1.     Israel Land Administration

2.     Ministry of Construction and Housing

3.     Tel-Eron Local Council

4.     The Jewish Agency for Israel

5.     Katzir, a Cooperative Society for Communal Settlement in Samaria Ltd.

6.     Israel Farmers Association

The Supreme Court Sitting as the High Court of Justice

[March 8, 2000]

Before President A. Barak, Justices T. Or, M. Cheshin, Y. Kedmi, I. Zamir

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

Facts: The State of Israel, through the Israel Lands Administration, allocated land in the Eron valley region to the Jewish Agency for Israel.  The Jewish Agency, through a cooperative society, set up the settlement of Katzir on this land. The objectives of the Jewish Agency for Israel include the settlement of Jews throughout the land of Israel. For its part, the cooperative society will only grant membership to Jews. Petitioners, a couple with two daughters, are Arabs. They requested to live in the settlement of Katzir. According to petitioners, their request was immediately denied by reason of their being Arabs, since the land was allocated for the exclusive establishment of a Jewish settlement.

Held: The Court held that the principle of equality is one of the foundational principles of the State of Israel. It applies to all actions of every government authority. The Court held that the policy constituted unlawful discrimination on the basis of nationality.  The Court held that the fact that the settlement was built through the Jewish Agency for Israel could not legitimize such discrimination.

Justice Y. Kedmi in a separate opinion was of the view that only a declaratory judgment regarding the status and weight of the value of equality with regard to the allocation of state land was warranted along with the clarification that the judgment is forward-looking and does not provide grounds to re-examine acts performed in the past.

For petitioners—Neta Ziv, Dan Yakir

For respondents 1 & 2—Uzi Fogelman

For respondent 3—Ilan Porat

For respondent 4—Dr. Amnon Goldenberg, Aharon Sarig, Moti Arad;

For respondents 5 & 6—Gad Shteilman, Yehudah Torgeman.

Basic laws cited:

Basic Law: Israel Lands, s. 1.

Basic Law: Human Dignity and Liberty, ss. 1, 8.

Basic Law: Freedom of Occupation, s. 4.

Legislation cited:

Law of Return 5710-1950.

World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952, s.

8(b).

Israel Land Administration Law, 5720-1960, s. 3.

Draft legislation cited:

             Draft Proposal for Basic Law: National Lands, Hatzaot Hok 5719-1959 at 272 in 27 Divrei Knesset (5719-1959).

             Draft Proposal for the Israel Land Administration Law, 5720-1960 (Hatzaot Hok 34).  

Israeli cases cited:

1. CA 55/67 Kaplan v. State of Israel, IsrSC 21(2) 718.
2. HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309.
3. HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46(2) 692.
4. CA 105/92 Re’em Engineers and Contractors Ltd. V. The Municipality of Nazareth-Illit, IsrSC 47(5) 189.
5. HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485.
6. HCJ 114/78 Burkan v. Minister of Finance, IsrSC 32(2) 800.
7. HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. The Prime Minister, IsrSC 52(4) 193.
8. EA 2/88 Ben-Shalom v. The Twelfth Knesset’s Central Elections Committee, IsrSC 43(4) 221.
9. HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.
10. HCJ 840/79 Israeli Contractors and Builders Center v. The Government of Israel, IsrSC 34(3) 729.
11. HCJ 262/62 Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu IsrSC 16 2101.
12. LCA 5817/95 Rosenberg v. Ministry of Construction and Housing, IsrSC 50(1) 221.
13. HCJ 5023/91 Poraz v. Minister of Construction and Housing, IsrSC 46(2) 793.
14. HCJ 392/72 Berger v. Regional Committee for Planning and Construction, Haifa Region, IsrSC 27(2) 764.
15. HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49(4) 94.
16. HCJ 2671/98 Israel Women’s Network v. Minister of Labour, IsrSC 52(3) 630.
17. HCJ 73/53 Kol Ha’Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.
18. HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel, IsrSC 51(2) 509.
19. HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 51(4) 1; [1997] IsrLR 149.
20. HCJ 528/88 Avitan v. Israel Land Administration, IsrSC 43(4) 297.
21. HCJ 1000/92 Bavli v. Great Rabbinate Court of Jerusalem, IsrSC 48(2) 221.
22. HCJ 453/94 Israel Women’s Network v. The Government of Israel, IsrSC 48(5) 501.
23. EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19(3) 365.
24. LCA 7504/95 Yaasin v. Party Registrar, IsrSC 50(2) 45.
25. LCA 2316/ 96 Isaacson v. Party Registrar, IsrSC 50(2) 529.
26. HCJ 175/71 Abu-Ghosh/Kiryat Yearim Music Festival v. Minister of Education and Culture, IsrSC 25(2) 821.
27. HCJ 200/83 Wathad v. Minister of Finance, IsrSC 38(3) 113.
28. EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225.
29. HCJ 4212/91 Beth Rivkah National-Religious High School for Girls v. The Jewish Agency for Israel, IsrSC 47(2) 661.

American cases cited:

1. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
2. Burton v. Willmington Parking Authority, 365 U.S. 721 (1961).

Canadian cases cited:

1. Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624.

Israeli books cited:

1. Y. Weisman Property Law 216-217 (3rd ed. 1993).
2. I. Zamir, Administrative Power 236-37 (1996).
3. Y. Dotan, Administrative Guidelines 315-16 (1996).

Israeli articles cited:

1. R. Alterman, ‘Who Will Sing the Praises of the Israel Lands? An Examination of the Justification for the Continued Local Ownership of Land,’ 21 Iyunei Mishpat at 535 (1998).
2. Barak-Erez, ‘An Acre Here, an Acre There’--Israel Land Administration in the Vise of Interest Groups, 21 Iyunei Mishpat 613, 620 (1998).
3. E. Benvinisti, "Separate But Equal" in the Allocation of State Lands for Housing, 21 Iyunei Mishpat 769 (1998.

Non-Israeli articles cited:

1. D. Days, Brown Blues: Rethinking the Integrative Ideals, 34 Wm. & Mary L. Rev. 53 (1992).
2. M. Tein The Devaluation of Non-White Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463 (1992)

Jewish Law Sources Cited:

1. Genesis, 1:27.
2. Leviticus 24:22.
3. Babylonian Talmud, Tractate Ketubboth, 33a.
4. Babylonian Talmud, Tractate Babba Kamma 83b.

Other:

1. Proclamation of Independence of the State of Israel.
2. Universal Declaration of Human Rights.
3. Covenant on Civil and Political Rights (1966).
4. European Convention on Human Rights.

JUDGMENT

President A. Barak

The State of Israel has allocated land to the Jewish Agency for Israel. The Jewish Agency, in turn, has established a communal settlement on that land. The settlement was established through a cooperative society. In accordance with its objectives the Jewish Agency deals with the settlement of Jews in the State of Israel. The cooperative society, for its part, in fact accepts only Jews as members. The result in this situation is that an Arab cannot build his home on state lands allocated to the Agency. Under these conditions – and taking into account the circumstances of the case -- is the State’s decision to allocate lands to the Agency unlawful, due to prohibited discrimination against Arabs? That is the question before us in this petition.

The Facts

1. The State of Israel is the owner of lands in the Eron valley region. On some of these lands it is in the process of establishing a large urban settlement called Harish. In another area, some distance from Harish, two adjacent hills were settled that together constitute the settlement of Katzir. On one of these hilltops, called “The Central Hill”, the State (the Ministry of Construction and Housing: respondent no. 2) established a neighborhood. The State constructed the residential units. These units were allocated to the public at large, in accordance with the customary rules of the Ministry of Construction and Housing. Both Jews and Arabs are entitled to purchase residential units in this neighborhood. The area located on the second hilltop (known as the “Western Hill”) was allocated for development to the Jewish Agency for Israel; respondent no. 4 (hereinafter; The Jewish Agency) by the State of Israel (the Israel Land Administration: respondent no. 1.  Hereinafter: “the Administration”) -- within the framework of a “licensing agreement”.  The Agreement, drawn up in 1986, is for a term of seven years.  It is extended periodically. The last agreement, dated September 1, 1993, was to remain in force until the year 2000.

2.    The Jewish Agency decided to establish a rural-communal settlement on the land it received from the State (on the Western Hill). It established (in 1982), the Katzir Communal Settlement [hereinafter: “the Communal Settlement”].  The Jewish Agency invested considerable sums in it, in the form of infrastructure and buildings. Katzir is a cooperative society for communal settlement (respondent no. 5: hereinafter the Katzir Cooperative Society). It was formed (in 1981) with the assistance of the Israel Farmers Association (respondent no. 6). The goals of the Katzir Cooperative Society are, inter alia, to establish, maintain and manage a rural communal settlement, set up on the basis of the organization of its members as a community that institutes cooperation among its members. The cooperative society numbers more than 250 families. These families built their homes in Katzir, leading their lives in a communal and cooperative framework, as defined in the Society’s bylaws. These bylaws stipulate, inter alia, that only a person who, inter alia, “has completed [the] compulsory military service in accordance with the Security Service Law [Consolidated Version]-1959, or has been discharged from compulsory service under that same law, or whose military service was postponed in accordance with that law” (chapter C, s. 6e of the regulations, as amended on 8.2.82.) may be admitted to the Society. In point of fact, Arabs are not admitted as members of the Cooperative Society.

3.    From a municipal standpoint, the Katzir Communal Settlement is managed by a local committee.  It is within the jurisdiction of the Tel-Eron Local Council (respondent no. 3). The urban settlement of Harish is also within that Council's jurisdiction.

4.    The petitioners are a couple with two daughters. They are Arabs currently living in an Arab settlement. They sought – and continue to seek -- to live in a place where there exists a quality of life and a standard of living different from the one in which they currently live.  The petitioner approached (in April, 1995) the Katzir Cooperative Society and requested information regarding his options for purchasing a house or lot in the Katzir Communal Settlement. According to the petitioner’s claim, he was told on the spot that, as he was an Arab, he would not be accepted to the Communal Settlement given that the lands upon which the Communal Settlement was built were designated exclusively for Jews. As a result, (on April 7, 1995) the Association for Civil Rights in Israel, approached the Local Council of Tel-Eron on the petitioners’ behalf, and filed a complaint about the response the petitioners were given. The Council replied, (on July 16, 1995), that the procedures governing acceptance to the Communal Settlement are under the control of the Cooperative Society, and that the petitioners were free to purchase a residential unit in the urban settlement of Harish. The Association for Civil Rights in Israel subsequently filed a complaint with the Minister of Construction and Housing and the Director of the Administration. Their complaints were not responded to as of the date of the filing of this petition.

5.    Upon the filing of the petition, (on October 30, 1995), an order nisi was granted. The respondents were requested to show cause as to:

“1.  Why they (the Administration, the Ministry of Construction and Housing and the Local Council)or one of them, do not offer lots for independent building in the Katzir settlement, by way of tender, or by any other alternative manner, which would maintain equality of opportunity between all those interested in settling in the settlement; and

2.  Why they do not amend their policy or their decision whereby lots for independent building in the Katzir settlement are allocated only after receiving approval (from the Jewish Agency and the Katzir Cooperative Society – A. B.) of acceptance of a candidate for residence in the Cooperative Society as a member (in the Cooperative Society – A.B.) and why they should not adopt all the steps demanded by such an amendment; and

3. Why they do not enable the petitioners to directly purchase from (the Administration, the Ministry of Construction and Housing or from the Local Authority – A.B.) a lot for personal construction in the Katzir Settlement, on which they can build a home for themselves and their children.”

The petition was heard, (on October 13, 1996), before a panel of three (Justices Goldberg, Kedmi and Zamir). The panel decided that, in light of the issues raised by the petition, the presiding panel should be expanded. The judges convened for oral arguments (on March 19, 1997) and we decided to hear the parties’ claims by way of written summations. Upon completion of the first round of summations, (on February 17, 1998), I recommended to the parties that an effort be made to find a practical solution to the petitioners’ problem. I noted that such a solution may be found within the framework of the Harish Urban Settlement or the Katzir Communal Settlement, with the petitioners submitting their candidacy to the Cooperative Society. Mr. Bar-Sela was appointed as a mediator.  His efforts failed. The petitioners notified us of this, (on December 17, 1998), and requested that the Court rule on the merits of their petition.

The Petitioners’ Claims

6.    The petitioners’ principal claim is directed against the policy according to which settlements are established which are intended exclusively for Jews. They claim that establishing settlements in such a manner, as well as allocating land on the basis of nationality or religion (whether directly or by way of allocation to entities whose operation is based on these criteria) violates the principle of equality and therefore cannot be upheld. Their primary arguments, on this issue, are directed at the Administration. They argue that the Administration breaches its obligation to act as a fiduciary for all Israeli citizens and residents and to treat them equally in its allocation of State land to entities (such as the Jewish Agency, the Farmer’s Association and the Katzir Cooperative Society) which make use of the land in a discriminatory and unequal manner.

7. The Petitioners are not disregarding the Jewish component in the identity of the State of Israel, nor do they disregard Israel’s settlement history. Their petition is forward-looking. They submit that the Jewish component in the identity of the State carries determinative weight only in matters that are fundamental to the Jewish essence of the State -- such as the Law of Return 5710-1950. Additionally, the petitioners do not completely negate the right of a closed community to establish unique criteria for accepting new members -- provided that the community in question is truly distinct, with clearly defined characteristics, displaying a high degree of solidarity and cooperation between its members. It is the petitioners’ contention that such characteristics do not exist in the Katzir Communal Settlement.

The Respondents’ Claims

8.    The respondents raise two preliminary claims. First, they claim that the petition was filed after a prolonged delay, as the land upon which the Communal Settlement is situated was allocated to the Jewish Agency many years ago, and since that time the respondents have invested considerable investments in its development and infrastructure. The respondents also argue that the change in the existing situation, sought by the petitioners today, would also lead to a serious encroachment on their autonomy, and interference with the social-settlement fabric that the society’s members have chosen. In this regard, the respondents go on to claim that if the petitioners desire to alter the existing situation, they have the option of waiting until September 1, 2000, at which time the existing development license is scheduled to expire. Therefore, the petition suffers from both delay and prematurity.  An additional preliminary claim raised by the Katzir Cooperative Society relates to the fact that the petitioners failed to actually apply for membership in the Cooperative Society. Their application was therefore never evaluated on its merits, and was consequently never rejected. In light of the above, the Cooperative Society claims that the petition was filed prematurely. Furthermore, the Cooperative Society claims that it has the autonomous authority to decide whether to accept or reject any of the candidates for membership, and that the authority to review the exercise of this discretion, lies only with the general court system, and not with the High Court of Justice.

9.    Substantively, respondents 1 and 2 (the Administration and the Ministry of Construction and Housing) claim that they acted lawfully in allocating the land to the Jewish Agency, in reliance on the World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952 [hereinafter: “the Status of the Jewish Agency Law”], and the “Covenant between the Government of Israel and the Jewish Agency for Israel” dated 28.6.79 (Yalkut Pirsumim 5737-1979 2565 at 2172 [hereinafter: “the Covenant”], the Covenant replaced the prior Covenant of 1954) and that given the specific circumstances of the case, and in view of the restrictive language characterizing the order nisi issued, the Court is not required to conduct an in-depth examination of the general constitutional issues raised by the petitioners by way of their specific petition.

10.  The Jewish Agency clarifies that it has set itself the goal to settle Jews all over the country in general, and in border areas and areas with sparse Jewish population in particular. This goal, the Agency asserts, is along with the other goals it has set itself a legitimate goal, anchored in the Status of the Agency Law and the provisions of the Covenant, and is consistent with the State of Israel’s very existence as a Jewish and democratic state. As such, it argues, granting the present petition would effectively signal the end of the extensive settlement enterprise operated by the Agency since the turn of the century. It would also constitute a violation of the Agency's freedom of association, and essentially thwart one of the fundamental purposes at the core of the Agency's existence. Furthermore: no one disputes the petitioners’ (or any other person’s) right to establish a new settlement or join an existing one; however, this does not mean that the petitioners may demand to settle in a settlement established by the Jewish Agency and to benefit, directly, or indirectly, from the Jewish Agency’s investment.  In this matter, it goes on to claim that the Supreme Court has in the past recognized the authority to allocate residential land to an identifiable segment of the population, whether on the basis of nationality or any other basis.

11.   For their part, the Farmers Association and the Cooperative Society emphasize the national goals underlying the establishment of a communal settlement in the Eron River specifically. These respondents, too, do not contest the right of Israeli Arabs to live on state lands and enjoy full equality.  Rather, they hold that there is no place for mixed communal settlements against the will of residents of the settlements.

The Preliminary Claims

12.  I will first deal with the preliminary claims presented by the respondents. The argument regarding the petitioners’ delay in bringing their petition must be dismissed, as the petitioners were not late in submitting their application. They applied to the Katzir Cooperative Society during the registration period. When it was made clear to them that as Arabs they would not be accepted as members of the Society they turned to this Court. It is true, the policy that underlies the respondents’ action is not new, but this does not preclude its examination by the Court. This is certainly true—as per the petitioners’ submission—in all that relates to the future. Nor can it be said that the petition is premature due to the petitioners’ failure to apply for membership formally.  As can be seen from the factual foundation laid out before us, it is uncontested that had the petitioners applied for membership to the Katzir Cooperative Society their request would have been denied. Under these circumstances, there is no point in submitting a completely futile application. Nor did the mediation process produce any results. We will therefore proceed to examine the merits of the petition before us.

The Questions before Us:

13.  The legal question before us is whether the State (through the Israel Land Administration) acted lawfully in allocating the lands on which the Katzir Communal Settlement was established to the Jewish Agency, given that on these lands -- which were leased to a cooperative society that did not accept Arabs as members -- the petitioner (or any other Arab) cannot build his home. In light of the question’s complexity, it is appropriate to divide the question into two sub-questions: First, would the State (the Ministry of Construction and Housing and the Israel Land Administration) have acted lawfully had it itself directly formulated a policy whereby licenses or tenancies on state land were allocated to the Katzir Communal Settlement, which limits its memberships to Jews? If such a policy is found to be unlawful, we must then turn to the second sub-question: Are the State’s actions no longer unlawful if it itself does not operate directly within the bounds of the Katzir Communal Settlement, but rather, as is in fact the case, it allocates rights in the land to the Jewish Agency which, in turn, contracts with the Katzir Cooperative Society? We will begin by addressing the first sub-question.

The State Allocates Land to a Rural Communal Settlement that does Not Accept Arab Members

14.  Was the State of Israel permitted to establish a policy according to which it would directly issue land use permits for the purpose of the establishment of the Katzir Communal Settlement, designated exclusively for Jews? Answering this question requires us to turn to the normative framework applicable to the allocation of state lands. The starting point in this respect is the Basic Law: Israel Lands.  This Basic Law (s. 1) provides that:

The ownership of Israel lands, which are lands in Israel belonging to the State, the Development Authority or the Jewish National Fund, shall not be transferred, whether by sale or by another manner.

We are only concerned with Israel lands that are state lands, and our discussion will be confined to these lands alone. Israel lands are administered by the Israel Land Administration. (Israel Land Administration Law, 5720-1960). Policy respecting the land is formulated by the Israel Land Council (Israel Land Administration Law s. 3). 

15.  In establishing the Administration’s policy, the Council must strive towards the realization of the purposes which are at the foundation of the Administration’s authority, and which determine the scope of its discretion. These purposes, like those underlying the establishment of any statutory authority, are of two types: specific purposes, which flow directly from the statute regulating the authority’s powers, and general purposes, which extend like a normative umbrella over all statutes. We shall first examine the specific purposes and then turn to the general purposes.

The Administration’s Activities: Specific Purposes

16.  Examination of the specific purposes underlying the Israel Land Administration’s authority reveals a complex picture: the laws regulating Israel lands are premised on the desire to create a uniform and coordinated administration of the totality of the lands. It has been written in relation to this topic that:

“. . .A striking feature is the legislature’s trend of ensuring that the land policy governing all future acts and transactions pertaining to Israeli state lands, the lands of the Development Authority, and of the Jewish National Fund, will be a coordinated national policy, which will be subject to the principles set forth in this law on the one hand, and which will be established in accordance with these principles by a government-appointed council, on the other hand; and also to ensure that the performance of such acts and transactions, in accordance with the policy formulated, is henceforth centralized under one, single administration; an administration appointed by the government and operating under the supervision of said council, and whose actions are subject, as a consequence of the government’s duty to report its actions, to the review of the Knesset.”  (CA 55/67 Kaplan v. State of Israel [1] at 727; see also Y. Weisman Property Law 216-217 (3rd ed. 1993) [33]; R. Alterman, ‘Who Will Sing the Praises of the Israel Lands? An Examination of the Justification for the Continued Local Ownership of Land’ [36] at 535; see also Draft Proposal for Basic Law: National Lands, Hatzaot Hok 5719-1959 at 272, in 27 Divrei Knesset (5719-1959), at 2940, 2952). 

It will be noted that beyond the centralization of powers relating to lands administration, the laws do not include a definition of the purposes and objectives for which the centralized authority will be employed. The Israel Land Administration Law, 5720-1960 does not define the specific objectives and purposes of the Administration. All that is said in the statute in this regard is that:

The Government shall establish an Israel Land Administration [hereinafter: “the Administration”] to administer Israel lands.

This arrangement has been the subject of much critique. It has been characterized as an act of “lazy legislation,” inconsistent with the rule of law and one which further poses a threat to proper government. (See I. Zamir, Administrative Power 236-37 (1996) [34]; see also Y. Dotan, Administrative Guidelines 315-16 (1996) [35]; see Barak-Erez, ‘An Acre Here, an Acre There’--Israel Land Administration in the Vise of Interest Groups [37] at 620.

17.  In light of the statute’s silence on the matter, we must turn to sources external to it and examine the specific purposes underlying it. In this context, we will initially refer to the draft proposal for the Israel Land Administration Law, 5720-1960 (Hatzaot Hok 34). The explanatory notes state:

“According to the Covenant about to be concluded between the State of Israel and the Jewish National Fund, with the approval of the World Zionist Federation, the government will establish the Israel Land Administration as well as a council which shall formulate the land policy of the administration, approve budget proposals for the administration and supervise its activities.  The proposed law will grant the Israel Land Administration and the Israel Lands Council the legal status necessary to discharge their functions under the Covenant. The Administration will form part of the governmental framework.”

Section 4 of the said Covenant, (signed on November 28, 1961 and published in Yalkut Pirsumim 1456 at p.1597) stipulates:

“Israel lands shall be administered in accordance with the law, meaning, in conformity with the principle that land may only be transferred by lease, in a manner conforming to the land policy formulated by the Council that was established under section 9. The Council shall formulate land policy with the goal of strengthening the absorption potential of the land and preventing the concentration of land in the hands of private individuals. In addition, the lands of the Jewish National Fund will be administered in accordance with the memorandum and articles of association of the Jewish National Fund.”

18.  As to the specific objectives and purposes of the Administration, we may further refer to Government Decision No. 489, dated May 23, 1965 (section 3 of the decision) which established that:

“It is incumbent upon the planning authorities promptly to complete a national plan for the designation, use and utilization of state lands, which will give expression to the government’s policies, including the policy of population dispersal, the defense policy, the preservation of agricultural land, and the allocation of areas for vegetation and recreation and open areas for public use, as well as the maintenance of land reserves for national and public purposes.”

This government decision was submitted to the Council prior to its adoption by the government, and was adopted by the Council, without any amendments (on May 17, 1965). (See Weisman, supra [33] at 243-44, n. 2.)  The Israel Lands Council also ratified the key elements of the Administration’s policy in Decision No. 202, of March 28, 1978, which established that:

“. . . The Israel Land Administration is the exclusive body managing Israel lands, in accordance with the land policy determined by the Council. Both in accordance with the Covenant between the Israeli Government and the Jewish National Fund, and by statute, the Israel Land Administration is the single and authorized body for managing Israel lands. The policy of the Council shall be dictated by the need to preserve the land as a national asset and by the aim of bringing about appropriate dispersal of the population throughout the land.”

19.  We see, therefore, that the specific purposes underlying the Administration’s authority relate to the maintenance of Israel lands under state ownership, and the centralization of their administration and development under the auspices of one statutory body. This is in order to prevent the transfer of land ownership to unwanted entities, to implement security policies, and to allow for the execution of national projects such as the absorption of immigrants, the dispersion of the population, and agricultural settlement. The legislation also contains specific purposes intended to facilitate planning, while setting aside land reserves for national needs and allocating open areas for public needs. This is necessary to enable implementation of planning schemes and to prevent speculative trade in state land. (See also Weisman supra [33] at 216-18.)   It should also be noted that to the extent that the specific statutory purposes are explicitly set out in the statute or clearly stem from it, a judge is required to give them expression. To the extent that these specific purposes are not explicit and do not clearly stem from the statute—as is the case here—it is incumbent upon the Court to learn about the specific purposes not only from the law itself but also from external sources, such as legislative history, the essence of the issue, the essence of the authorized power and the general values of the legal system. Indeed, in formulating the specific purposes – to the extent that they do not stem explicitly and clearly from the statute – it must be insisted upon that those purposes are consistent with the totality of the values of the system.

The Administration’s Activities: the General Purpose of Equality

20.  Alongside the specific purposes underlying the Administration’s authority and discretion, there are overarching, general purposes that extend as a normative umbrella over all Israeli legislation. These general purposes reflect the basic values of Israeli law and society. They are an expression of the fact that each piece of legislation is an integral part of a comprehensive legal system. The basic foundations of this system “permeate” every piece of legislation, and constitute its general purpose. (See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa [2] at 328 [hereinafter: “the Poraz case”]; HCJ 869/92 Zwilli v. Chairman of The Central Elections Committee for the Thirteenth Knesset [hereinafter: “the Zwilli case”] [3]; CA 105/92 Re’em Engineers and Contractors v. Municipality of Nazareth-Illit [4] at 198.) These fundamental principles also reflect the State of Israel’s character as a Jewish and democratic state. Among these principles the principle of equality is relevant to our issues.

Equality as a Fundamental Principle

21.  Equality is one of the State of Israel’s fundamental values. Every authority in Israel—and first and foremost the government, its authorities and employees—is required to treat all individuals in the State equally. (See I. Zamir & M. Sobel, Equality Before the Law, 5 Mishpat U'Memshal 165 (1999)). This is dictated by the Jewish and democratic character of the State; it derives from the principle of the rule of law in the State.  It is given expression, inter alia, in our Proclamation of Independence [42] which establishes that:

“The State of Israel will . . . ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender. . .”

Indeed, the State must honor and protect every individual’s fundamental right to equality. Equality lies at the very foundation of social co-existence. It is the “beginning of all beginnings.” (Justice Cheshin in HCJ 7111/95 Center for Local Government v. The Knesset [5] at 501). It is “one of the central pillars of the democratic regime. It is critical for the social contract at the core of our social structure.” (Zwilli [3] at 707). It constitutes a basic constitutional principle, intertwined with, and incorporated into, all of our basic legal concepts, constituting an indivisible part of them (Justice Shamgar in HCJ 114/78 Burkan v. Minister of Finance [6], at 806). I referred to this in one of the cases where I stated:

“Indeed, equality is a basic principle of every democratic society, ‘to which the law of every democratic country, for reasons of justice and fairness, aspires.’ (President Agranat in FH 10/69). . .  The individual integrates into society and does his part to help build it, knowing that others too are doing the same. The need to ensure equality is natural to man. It is based on considerations of justice and fairness. A person who seeks for his right be recognized must in turn recognize the right of others to seek similar recognition. The need to ensure equality is critical to society and the social contract upon which it is founded. Equality protects the regime from arbitrariness. In fact, no element is more destructive to society than the feeling of its sons and daughters that they are being treated unequally. The feeling that one is being treated unequally is of the most difficult to bear.  It weakens the forces that unite society. It harms the person’s sense of self.” (The Poraz case [2] at 332)

In a similar vein, Justice Cheshin wrote:

“The claim that one is being discriminated against shall always be heeded, as it is at the foundation of foundations. The principle of equality is rooted in a deep need within us, within each of us—it can perhaps be said that it is part of man’s nature and one of his needs: in man but not only in him—that we not be detrimentally discriminated against, that we be afforded equality, from God above, and from man at the very least…. Discrimination, (real or imagined) leads to feelings-of-oppression and frustration; feelings-of-oppression and frustration lead to jealousy, and when jealousy arrives, intelligence is lost. . .  We are prepared to bear the burdens, the hardships and the suffering if we know that our fellow man – who is equal to us – is like us and with us; but we will, rise up and refuse to resign ourselves where our fellow man --—who is equal to us—receives what we do not. (HCJ 1703/92 C.A.L. Cargo Airlines v. The Prime Minister [7] at 203-04.)”

As such, “equality of rights and obligations for all citizens of the State of Israel is part of the essence and character of the State of Israel” (Vice-President M. Elon in EA 2/88 Ben-Shalom v. The Twelfth Knesset’s Central Elections Committee [8], at 272, see also his decision in HCJ 153/87 Shakdiel v. Minister of Religious Affairs [9].)

22.  The State’s duty to operate with equality applies to each and every one of its actions. It certainly applies where an administrative authority operates in the realm of public law.  In a long list of judgments, the Supreme Court has repeatedly emphasized the obligation of administrative authorities to treat all individuals equally. (See Zamir & Sobel, supra [38]). The principle of equality is also applicable where the State acts within the realm of private law. Therefore, it applies to contractual relations entered into by the State. (See HCJ 840/79 Israeli Contractors’ and Builders’ Center v. Government of Israel [10], at 746).  Indeed, at the basis of our stance is the approach that the State and its authorities are public fiduciaries. “Governmental authorities derive their authority from the public, which elected them in an egalitarian manner, therefore they too must exercise their authority over the public in an egalitarian manner.” (Zamir & Sobel supra [38], at 176). Justice Sussman, (in HCJ 262/62 Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu [11], at 2115).  Justice Sussman also discussed this, noting:

“While the private citizen is entitled to ‘discriminate’ between one person and another and choose those he will deal with, even if his reasons and motivations are unreasonable, the discrimination by a public authority is prohibited. The reason is that when administrating its assets, or when performing its functions, the authority assumed the role of a fiduciary vis-à-vis the public, and as such, the authority must treat equals equally, and when it violates this fundamental principle and unlawfully discriminates against a citizen, then those are grounds for the intervention of this Court: it is of no consequence whether the use itself or the action itself belong in the realm of private law or public law. The role of fiduciary vis-à-vis the citizen and the obligations that stem from this stem from the law and, as such, are subject to supervision and review in this Court.”(HCJ 262/62, Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu [11] at 2115).

23.  The State’s obligation to act in accordance with the principle of equality applies to all of its actions. As such, it also applies to the allocation of state land. Indeed, the Israel Land Administration holds state lands “by way of trust, and is therefore subject to all of the duties owed by a trustee. Since the Administration is -- both theoretically and practically -- the state itself, it is subject to all of the obligations applicable to a public authority.” (Justice Cheshin in LCA 5817/95 Rosenberg v. Ministry of Construction and Housing [12], at 231).  Therefore, decisions of the Israel Lands Council which come together to form the policy respecting the allocation of land must respect the principle of equality. President Shamgar discussed this, noting:

“Public lands must be administered in accordance with government criteria—the adoption of such criteria is incumbent upon public authorities in all of their dealings, and, all the more so, when the matter relates to property belonging to the public as a whole. Translation of these criteria to behavioral norms points, inter alia, to the need to act with fairness and equality and in accordance with the norms of proper administration.” (HCJ 5023/91 Poraz v. Minister of Construction and Housing [13] at p.  801)

Thus, the principle of equality establishes that the state may not discriminate among individuals when deciding on the allocation of state lands to them.

24.  Equality is a complex concept.  Its scope is unsettled. With that, all agree that equality prohibits different treatment on grounds of religion or nationality. This prohibition appears in international declarations and conventions. (See, e.g., The Universal Declaration of Human Rights (1948) [43], the Covenant on Civil and Political Rights (1966) [44] and the European Convention of Human Rights [45].) It is accepted in most modern constitutions. It was given expression in our own Proclamation of Independence [42], which established that the State of Israel shall “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender.” This Court further ruled – in the words of Justice Shamgar -- that “the rule according to which one does not discriminate between people on grounds of . . .  nationality . . . religion is a fundamental constitutional principle, interspersed and interlaced with our fundamental legal perceptions and constituting an inseparable part of them.”  (HCJ 114/78 Burkan v. Minister of Finance supra [6] at 806).  Justice Berinson expressed this well, noting:

“When we were exiled from our country and cast out from our land, we fell victim to the nations among whom we dwelled and in each generation we tasted the bitter taste of persecution, oppression and discrimination, just for being Jews—whose ‘laws are diverse from all people.’ Having learnt from our own bitter, miserable experience, which permeated deep into our awareness and national and human consciousness, one can expect that we will not follow the wayward ways of these nations and with the renewal of our independence in the State of Israel, it is our responsibility to avoid even the slightest hint of discrimination and unequal treatment toward any non-Jewish, law abiding, person who lives among us, whose desire it is to live with us in his own way according to his religion and beliefs. The hatred of strangers carries a double curse: it destroys the divine image of the hater and causes harm to the hated, through no fault of his own. We must act humanely and with tolerance towards all people created in the image of God, and ensure the great principle of equality between all people in rights and duties. (HCJ 392/72 Berger v. Regional Committee for Planning and Construction, Haifa Region [14] at 771).  

The practical translation of these fundamental understandings as to equality is that the (general) purpose of all legislation is to guarantee equality to all persons, without discrimination on the basis of religion or nationality. Dissimilar treatment on the basis of religion or nationality is “suspect” treatment and is therefore prima facie discriminatory treatment. (Compare HCJ 4541/94 Miller v. Minister of Defence [15] at 136-37; HCJ 2671/98 Israel Women’s Network v. Minister of Labour [16], at 659.) We state that the treatment is prima facie discriminatory, for there may be circumstances -- such as in affirmative action (according to the approach that views affirmative action as a realization of the principle of equality and not an exception to it: see the view of Justice Mazza in the Miller case supra [15]) -- in which different treatment on the basis of religion or nationality is not deemed discriminatory. Additionally, dissimilar treatment on the basis of religion or nationality may at times be lawful. This is the case, for example, when explicit and clear language of a statute sets out specific purposes that lead to discriminatory treatment and, in balancing between the specific purposes of the statute and the general purpose of equality, the specific purposes prevail. We will now move on to the balance between specific statutory purposes and general purposes.

25.  In solidifying the purpose of a statute, both the specific and the general legislative purposes must be considered. Often, these purposes all lead in one direction and reinforce each other.  Occasionally, however, contradictions arise between these purposes. Thus, for example, there may be contradictions between specific purposes which seek to realize social objectives, and general purposes which seek to ensure human rights. When such a conflict occurs, a (fundamental and horizontal) balance between the conflicting purposes must be achieved. This court has taken this approach since the Kol Ha’am case. (HCJ 73/53 Kol Ha’am Company Ltd. v. Minister of the Interior [17]). In that case, it was held that in balancing the specific purposes at the core of the legislation being discussed, which related to the preservation of public peace and security, against the general purpose relating to freedom of expression, preference would be given to the specific purpose (public peace) only if there was a near certainty that allowing for the realization of the general purpose (freedom of expression) would cause concrete, severe, and serious harm to the possibility of realizing the specific purpose (public peace). Ever since that decision, this Court has adopted similar “balancing formulas,” in a long line of conflicts between special and general purposes. (See HCJ 7128/96 Temple Mount Faithful v. Government of Israel [18]; HCJ 5016/96 Horev v. Minister of Transportation [19]). It is a good question whether this particular balancing formula should be employed in the conflict between the general purposes and the specific purposes in this instance as well? Would it not be more appropriate to turn to a different balancing formula, such as that of the reasonable possibility? Does the issue of equality not require a spectrum of balancing formulas, depending on the specific substantive violation of equality? There is no need to address these issues in the framework of the petition before us, for, as we shall see, in this petition there is not any conflict between the general and specific purposes of the statute. We therefore leave this matter for further examination at a later date. We shall now proceed to examine the circumstances of the case before us.  Prior to doing so, two comments need to be made. First, we are dealing here with the underlying purpose of the Basic Law: Israel Land Administration. Under ordinary circumstances after the purpose has been established – and in the framework of examining the lawfulness of the Administration’s actions -- the proportionality of the means used to realize the statute's purpose must also be examined. This issue does not arise in the case before us, and we will not expand upon it; second, in special situations -- where the specific purposes are explicit or clearly implied in the statute, it is not sufficient that the balancing formula enables the determination of the specific purpose at the foundation of the authorizing law. We must also examine the constitutionality of those purposes, and this from the perspective of the basic laws relating to human rights (the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation) and the limitation clause (s. 8 of the Basic Law: Human Dignity and Liberty; and s. 4 of the Basic Law: Freedom of Occupation). This question does not arise here at all, as the issue of the constitutionality of the Israel Land Administration Law has not been raised.  The only issue this Court has been asked to determine is, whether the decision of the Israel Land Administration, in all that relates to the allocation of land for the establishment of the communal settlement of Katzir for Jews exclusively, was within the parameters of the authority granted to the Administration in the Israel Land Administration Law.

From the General to the Specific

26.  The State accepts that when it established the urban settlement of Harish, and an additional neighborhood on the Central Hill of Katzir (via the Ministry of Construction and Housing), the land allocated was “for the public at large, in accordance with the accepted norms of the Ministry of Construction and Housing.” This allocation was done in an equal manner, with no distinction between Arab and Jew.  Indeed, the State noted in its response “we do not disagree with the petitioners that the eligibility to live in the municipality of Tel-Eron, at the present time and in the future, is the same as in any other municipality, with provision of the opportunity to purchase apartments being offered to the general public. This is with the exception of the area of the cooperative society, where acceptance to the society is conditioned upon the processes that exist in every cooperative society in accordance with its bylaws.” But in what way is the communal settlement in question different from the urban settlement? No answer to this question was provided in the response briefs of the State (the Israel Land Administration and the Ministry of Construction and Housing) other than to note that the land was allocated to the Jewish Agency, which operates as the agent of the Jewish People in the Diaspora. Our concern now is not with the Jewish Agency, but with the State of Israel. The question we ask therefore is whether the State (meaning the Administration) is permitted to establish that it will itself allocate directly to the Katzir communal settlement, situated within the borders of the Tel-Eron municipality, land intended exclusively for Jews,? Such allocation violates the petitioners’ right to equal treatment, as it entails unequal treatment based on nationality. What are the specific purposes whose realization lawfully encroaches upon the principle of equality? We have not heard any answer to this question from the State.

27.  A response to these claims has been provided by the Jewish Agency, the Farmers Association and the Katzir Communal Society. In their response, they claim that the Jewish settlement is a “link in a chain of outposts, intended to preserve Israel’s expanses for the Jewish people” (as stated in the founding declaration of the communal settlement) and that the settlement is consistent with the purposes they have delineated for themselves,  which is the settlement of Jews throughout the country as a whole, and in rural areas and in areas where the Jewish population is sparse in particular; population dispersal; and increase of Israel’s security thereby. In a specific context, the Farmers Association argues that Arab residents may encounter difficulties in fulfilling their duties of guarding the settlement, which has been exposed in the past to various terrorist actions. Moreover, the respondents argue that the presence of Arab residents in the settlement may cause Jewish residents to leave, turning a settlement that was intended to be a Jewish settlement into an Arab settlement.

28.  These responses raise difficult and complex general questions. These have significance as to both the past and the future. However, we do not need to address them in the petition before us. This petition does not deal with the totality of Jewish settlement in all of its aspects, and this petition is not concerned with the full spectrum of the Jewish Agency’s activities.  The petition before us is concerned with a specific communal settlement, whose establishment does not raise the entire spectrum of difficulties that the Jewish Agency and the Farmers Association have raised.  Indeed, respondents do not contest petitioners’ right to reside in the Eron valley region.  They do not deny the existence of “mixed” settlements, be they urban or rural, where Jews and Arabs live in the same settlement, the same neighborhood or the same apartment building. Moreover, respondents do not dispute the petitioners’ right to live in Katzir itself, in the neighborhood built by the Ministry of Construction and Housing, together with the neighborhood’s other residents, Jewish and Arab as one, under the auspices of the same local council, maintaining common educational and social frameworks.  It is therefore inexplicable – and no factual basis has been laid before as – as to why in particular the residence of the petitioners in a communal settlement, located approximately two kilometers away from the neighborhood built by the Ministry of Construction and Housing, would justify violating the principle of equality.

29. My conclusion is therefore the following: A decision by the Administration to directly allocate land in Tel-Eron for the establishment of an exclusively Jewish neighborhood would have violated the (general) purpose of the Administration’s authority— which is the realization of equality. Such a decision would not have realized the special purposes of the Israel Land Administration Law that under the circumstances – and according to the appropriate balancing formula – would have prevailed. Therefore, such a decision, had it been adopted by the Israel Land Administration, would have been unlawful. The Jewish Agency and the Farmers Association raised two fundamental arguments counter to this conclusion, to which we now turn.

30.  Their first argument is this: since the Administration is equally prepared to allocate land for the establishment of an exclusively Arab communal settlement, its decision to allocate land for the establishment of the exclusively Jewish communal settlement of Katzir does not violate the principle of equality. Their contention, in its legal garb, is that treatment which is separate but equal amounts to equal treatment.  It is well known that this argument was raised in the 1950’s in the United States, regarding the United States’ educational policy that provided separate education for white students and African-American students. Addressing that policy’s constitutionality, the United States Supreme Court held (in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) [30]) that a “separate but equal” policy is “inherently unequal.” At the core of this approach is the notion that separation conveys an affront to a minority group that is excluded, sharpens the difference between it and others, and cements feelings of social inferiority. This view was expressed in section 3 of the International Convention for the Elimination of all Types of Racial Discrimination. Over the years, much has been written on the subject, emphasizing that occasionally, separate treatment may be considered equal, or in the alternative, that separate treatment may be justified, despite the violation of equality. This is especially so, inter alia, when it is the minority group itself that initiates the separate but equal treatment, seeking to preserve its culture and lifestyle and hoping to prevent “forced assimilation.” (as noted by Justice Shamgar in Burkan [6], at 808; E. Benvinisti, "Separate But Equal" in the Allocation of State Lands for Housing, 21 Iyunei Mishpat 769 (1998); and D. Days, Brown Blues: Rethinking the Integrative Ideals, 34 Wm. & Mary L. Rev. 53 (1992); M. Tein The Devaluation of Non-White Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463 (1992)).  Indeed, I am prepared to assume -- without ruling on the matter -- that there are situations in which treatment that is separate but equal is lawful. This Court’s decision in the Avitan Case (HCJ 528/88 Avitan v. Israel Land Administration [20]) illustrates this point. In that case, the Israel Land Administration decided to lease out land exclusively for Bedouins, within the framework of a policy of helping Bedouins transition to permanent housing. A Jewish petitioner’s request to lease this land was denied by the Administration. His petition against the Israel Land Administration was denied.  In explaining the court’s position Justice Or noted:

“It is a matter of the Bedouins who, for many years, have lived nomadic lives, and whose attempts to settle in permanent locations were unsuccessful, often involving violations of the law, until it came to be in the State’s interest to assist them, and thereby also achieve important public objectives. The way of life and lifestyle of nomads lacking permanent, organized settlements, with all that it entails, is what makes the Bedouins a distinct group that the respondents consider worthy of assistance and encouragement, and special, positively discriminating, treatment, and not the fact that they are Arabs.” (Ibid. at p. 304).

Such a situation -- in which separate treatment may be considered lawful -- does not present itself here, and this is for two reasons: First, in point of fact, there has been no request for the establishment of an exclusively Arab communal settlement. In actuality, the State of Israel only allocates land for Jewish communal settlements.  The result (“the effect”) of the separation policy, as practiced today, is discriminatory, even if the motive for the separation is not the desire to discriminate.  The existence of discrimination is determined, inter alia, by the effect of the decision or policy, and the effect of the policy in the case before us is discriminatory. (Compare HCJ 1000/92 Bavli v. Great Rabbinate of Jerusalem [21], at 241; as well as Justice Mazza in HCJ 453/94 Israel Women's Network v. The Government of Israel [22]); thus, the policy of the Administration today, in practice, grants Arabs treatment that is separate but not equal. Second, there are no characteristics distinguishing those Jews seeking to build their homes in a communal settlement through the Katzir Cooperative Society that would justify the State allocating land exclusively for Jewish settlement. The communal settlement of Katzir is open to all Jews per se (subject to the conditions that appear in the Cooperative Society’s bylaws, the contents of which are not known to us). In any event, the residents of the settlement are by no means a “distinct group,” (in the words of Justice Or in Avitan [20]). Quite the opposite is true: Any Jew in Israel, as one of the many residents, who desires to pursue a communal rural life is apparently eligible for acceptance to the Cooperative Society. As such, the Society can be said to serve the vast majority of the Israeli public. No defining feature characterizes the residents of the settlement, with the exception of their nationality, which, in the circumstances before us, is a discriminatory criterion. Indeed, most of the considerations presented to us by the Jewish Agency, are based on the same “suspect” classification of national origin, and their entire goal is none other than to advance Jewish settlement in the area.  Indeed, the combination of the unequal consequence of the policy and unequal considerations driving it, together form a critical “mass” of inequality, a “mass” that can by no means be cancelled out or mitigated by the respondents’ fundamental readiness to allocate land for a separate Arab rural communal settlement. We therefore dismiss their claim that, in the circumstances before us, there is no violation of the principle of equality.

31.  The second fundamental argument raised by the respondents is as follows: They claim that, even if the Israel Land Administration had directly allocated land for the establishment of an exclusively Jewish settlement, it would have been lawful, as this would realize the values of the State of Israel as a Jewish State. These values have constitutional status, (see the Basic Law: Human Dignity and Liberty, s. 1), and as such, suffice to provide a legal basis for the Administration’s decision. This argument raises many important questions. We need not rule on most of them. There are two reasons for this: First, to the extent that this claim comes to say that the values of the State of Israel as a Jewish State (which constitute a general purpose at the foundation of the law) conflict with the principle of equality, the answer is that such a conflict does not exist. Indeed, we do not accept the approach that the values of the State of Israel, as a Jewish state, would justify—on the level of a general purpose—discrimination by the State between its citizens, on the basis of religion or nationality. The Basic Law: Human Dignity and Liberty (s. 1) provides that:

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

The values of the State of Israel as a Jewish and democratic state, inter alia, anchor the right of the Jewish people to stand on its own in their sovereign state, as declared by the Proclamation of Independence [42]:

“The Land of Israel was the birthplace of the Jewish People. Here their spiritual, political, and religious identity was forged. Here they first attained statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.”

Indeed, the return of the Jewish people to their historic homeland is derived from the values of the State of Israel as both a Jewish and democratic state. (See EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [23]), at 385). From these values -- each separately and from their amalgamation -- several conclusions arise. Hebrew, for instance, is necessarily the principal language of the State, and its primary holidays will reflect the national renewal of the Jewish nation. Jewish heritage constitutes a central component of Israel’s religious and cultural heritage, and a number of other conclusions are implicit, but need not be expanded upon at present. However, the values of the State of Israel as a Jewish and democratic state do not, by any means, suggest that the State will discriminate between its citizens. Both Jews and non-Jews are citizens with equal rights and duties in the State of Israel.  “The State -- is the state of the Jews; the regime that exists in it -- is an enlightened democracy, which grants rights to all citizens, Jews as non-Jews alike.”  (Justice D. Levin in EA 2/88 Ben-Shalom v. the Twelfth Knesset’s Central Elections Committee. [8], at 231). I discussed this issue in one of the cases, noting:

“In the State of Israel, as a Jewish and democratic state, every person—irrespective of his religion, beliefs or nationality—will enjoy full human rights.” (LCA 7504/95 Yaasin v. Party Registrar [24], at 70).

My colleague Justice M. Cheshin noted in another case:

“It is incumbent upon us to remember and to know— how could we forget—that the Jewish people have never had – never had nor does it have now -- any state other than the State of Israel, the state of the Jews. And yet, within the State itself, all citizens have equal rights.” (LCA 2316/96 Isaacson v. Party Registrar (hereinafter: “the Isaacson case”) [25] at 549).

Moreover: not only do the values of the State of Israel as a Jewish state not dictate discrimination on the basis of religion and nationality, they in fact proscribe such discrimination, and demand equality between religions and nationalities. (See HCJ 392/72 supra. [14], at 771; HCJ 175/71 Abu-Gosh-Kiryat Yearim Music Festival v. Minister of Education and Culture [26]): “The principle of equality and prohibition of discrimination, embodied in the Biblical commandment ‘You shall have one law, it shall be for the stranger, as for one of your own country’ (Leviticus 24:22) [39], that has been construed by the Sages as requiring a law which is equal for all of you’ (Babylonian Talmud, Tractate Ketubboth, 33a [40]; Babba Kamma 83b[41]) is a rule that has been sanctified in the law of Israel since we became a nation.”  (Justice Türkel in HCJ 200/83 Wathad v. Minister of Finance [27] at 119). 

Justice Elon stated that “one of Judaism’s established foundations is the idea that man was created in the Lord’s image. (Genesis, 1:27)[38]. Thus begins the Torah of Israel, and from this Jewish law derive basic principles as to the value of human life – each person as they are -- in their equality and their love.” (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset [28] at 298).  Indeed, “the Jewish people established the Jewish State, this is the beginning and from here we shall continue the journey.” (Justice Cheshin in the Isaacson Case [25], at 548). The Jewish State having been established, it treats all its citizens equally. The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter (see the Law of Return-5710-1950), but once a person has lawfully entered the home, he enjoys equal rights with all other household members. This was expressed in the Proclamation of Independence [42], which calls upon “the Arab inhabitants of the State of Israel to preserve the peace and take part in the building of the State on the basis of full and equal citizenship.”  There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state.  As such, the second fundamental argument brought before us, inasmuch as it relates to the general purpose at the base of the statute, must be dismissed.

32.  Another aspect of the argument as to the values of the State of Israel as a Jewish State pertains to the influence of these values on the formation of the special purposes of the statute. We do not deny that the State of Israel’s values as a Jewish state may come together to form special purposes on different levels of abstraction. As we have seen, in the circumstances before us (see para. 26-28) there are no such special purposes that prevail. As such, this aspect of the claim must also be dismissed.

Interim Summary

33.  We have therefore reached the conclusion that had the land for the establishment of the Katzir communal settlement been allocated by the State directly, the State would have been duty-bound to act with equality towards all those requesting the right to build a house there. The significance of this is that, every person in Israel, regardless of nationality, would have been eligible to compete for the right to build a house in the Katzir communal settlement. As is known, however, the State of Israel does not directly allocate land for the building of houses in the communal settlement of Katzir.  Direct allocation by the State took place in the urban settlement there and, in that case, the State acted with equality. Whilst with respect to the communal settlement, the State allocated land -- within the framework of a “licensing agreement” -- to the Jewish Agency, which, in turn, assisted –through the Israel Farmers Association -- in turning  the land over to the Katzir Cooperative Society, which extends membership exclusively to Jews. Did the State of Israel violate its duty to act in accordance with the principle of equality in transferring the land (via the licensing agreement) to the Jewish Agency? We can “split” this question into two sub-questions. First, would the State have breached its obligation to provide equal treatment had it allocated the lands (via the licensing agreement) to any third body (that is not the Jewish Agency) that used the land in a discriminatory manner? If the answer to that question is affirmative, then a second question must be addressed, namely: can it not be said that the State’s duty to act in accordance with the principle of equality is not violated if the land is transferred specifically to the Jewish Agency? We shall now proceed to examine these two questions.

Transfer of Land to any Third Party which Contracts Exclusively with Jews

34.  The State’s duty to respect equality in allocating rights in land is violated by the transfer of land to a third party that itself discriminates in the allocation of land on the basis of nationality or religion. The State cannot escape its legal obligation to respect the principle of equality by using a third party that adopts a discriminatory policy. What the State cannot do directly, it cannot do indirectly.  And note that we are not dealing with the question of whether by virtue of having been granted rights in state lands the third party in question is equally bound not to discriminate between Jews and Arabs. (See Burton v. Willmington Parking Authority, 365 U.S. 483 (1961) [31]; Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624 [32]). That question does not arise in this case, as it goes beyond the parameters of the petition. The question before us is whether the State itself violates its obligation to act with equality when a third party to which state lands have been transferred adopts a policy of allocating land to Jews exclusively. Our answer to this question is in the affirmative.

The Transfer of Land to the Jewish Agency

35.  In the petitions before us the State allocated land to the Jewish Agency which, in turn, transferred it to a body that allocates land exclusively to Jews. Under these circumstances, can the State be said to have discharged its obligation to act in accordance with the principle of equality, and is no longer to be seen as violating this principle? The answer to this question is no. The Status of the Agency Law and the Covenant between the Israeli Government and the Jewish Agency do not grant a permit to the State to discriminate among its citizens. (See the Status of the Agency Law, s.8 (b), the Covenant, s. 2). Indeed, the Status of the Agency Law is “at its foundation, only declaratory. It does not confer governmental powers, nor does it delegate them.” (Vice-President Elon in HCJ 4212/91 Beth Rivkah, National-Religious High School for Girls v. The Jewish Agency for Israel [29], at 668: hereinafter the Beth Rivkah case). The Jewish Agency fulfils important functions. As provided by the Covenant, it operates “on the basis of a program, to which the Government agrees in advance.” (See the Covenant, s. 3). Such a program, to which the State is a party, must not be discriminatory. State action that is discriminatory in its circumstances, if carried out toward any third party, does not lose its discriminatory character simply because it was carried out through the Jewish Agency.

36.  Of course, the Jewish Agency’s unique status in the State of Israel, as well as its contribution to the development of the State and its role in realizing the Jewish facets of our Jewish and democratic state are not to be overlooked. The Status of the Agency Law 5713-1952 provides that the Jewish Agency “operates in the State of Israel in the areas of its choosing, subject to the Government’s consent” (Section 2a), that the World Zionist Organization and the Jewish Agency “work perseveringly as previously on immigration absorption, and orchestrate absorption and settlement projects in the State” (Section 3),  that the State of Israel recognizes the Jewish Agency as the authorized agent that will continue to operate “for the development and settlement of the country, the absorption of immigrants from the Diaspora and the coordination of the activities in Israel of Jewish institutions and organizations active in these fields” (Section 4 and on).  The Covenant, which was signed between the State of Israel and the Jewish Agency in 1979, also gives expression to the special status and the important mission of the Jewish Agency. In the Beth Rivkah case [29], this Court cited at length the provisions of the Jewish Agency Law and those of the Covenant, and noted (Vice-President Elon at 667) that “the essence of the Agency Status Law is in the expression it gives to the historical connection between the Jewish people and the State of Israel.” This status has found expression throughout the country for decades: Prior to the establishment of the State, en route to the establishment of the State, and subsequent to the establishment of the State, until this very day. The Jewish Agency fulfilled a most important role in the realization of the Zionist dream, the ingathering of the exiles, and the blossoming of the land.  And it has yet to complete the task designated to it.  It still serves as a “voluntary body,” (HCJ 4212/91, supra [29] at 670), an agent of the Jewish people in the development of the State as a Jewish and democratic state.

37.  The petitioner’s counsel does not dispute the important role played by the Jewish Agency in the history of the State of Israel, nor does he criticize the policy adopted over many years with respect to the establishment of Jewish settlements throughout the country.  The petitioner states as follows in the petition:

“This petition is primarily forward-looking. It is not our intention to examine anew the long-standing policy by virtue of which (with the assistance of settlement organizations) settlements – kibbutzim, moshavim, and outposts -- were established in which, almost always, only Jewish residents lived and live. The petitioners are not focusing their claims on the legitimacy of the policy practiced in this area in the period prior to the establishment of the State and during the years since its establishment. Nor do they dispute the decisive role played by the Jewish Agency in the settling of Jews throughout the country during the course of this century.”

Not only is this petition forward-looking, but it also focuses solely on the communal settlement of Katzir, in the circumstances as they were brought before us. By the nature of things, there exist different kinds of settlements, including kibbutzim, moshavim, and outposts. Different types of settlements may give rise to various difficulties. We did not hear any arguments regarding the different types of settlements and will consequently not adopt any position regarding them. Moreover, there may be special factors to be considered apart from the type of settlement in question, such as factors of national security, which may have significance. No arguments were made regarding any of these factors, and we shall therefore express no opinion on their significance. In addition, we must keep in mind that we are taking the first step on a difficult and sensitive path. It is therefore appropriate that we step heel to toe so that we do not stumble and fall but rather advance carefully from case to case, according to the circumstances of each case. However, even if the road before us is long, it is important that we always bear in mind, not only whence we came, but also to where we are headed.

38.  What arises from all of the above as regards the case before us?  We have held that the State may not discriminate directly on the basis of religion or nationality in allocating state land. From this it follows that the State is also not permitted to discriminate indirectly on the basis of religion or nationality in the allocation of land. Consequently, the State cannot enable such discrimination by transferring land to the Jewish Agency.  There is nothing in the Status of the Agency Law 5713-1952 or in the Covenant between the Government of Israel and the Jewish Agency, which legitimizes such discrimination in the allocation of land. Indeed, according to section 3 of the Covenant, the Jewish Agency operates “on the basis of a program, to which the Government agrees in advance.” However, according to section 8(b) of the Status of the Agency Law, the cooperation between the State of Israel and the Jewish Agency must be “in accordance with the laws of the State.”   It is clear that according to this section, and in accordance with basic principles, a plan for cooperation between the State and the Jewish Agency cannot be a discriminatory plan. Discrimination does not lose its discriminatory character, even if it is being carried out through the Jewish Agency, and therefore is not permitted to the State.

The Remedy

39.  What remedy, then, are the petitioners entitled to? The answer is by no means simple.  The petition, as the petitioners have said, is forward-looking. However, it cannot be forgotten that the State allocated the land on which the communal settlement of Katzir was established according to an agreement that was made in 1986. The agreement was drawn up with the knowledge that the Jewish Agency would invest resources in land development in accordance with its founding documents, in other words, in order to set up a Jewish settlement. And indeed, on the basis of this agreement and in accordance with the founding documents of the Jewish Agency, the Jewish Agency invested resources in the establishment of the communal settlement of Katzir. It was for this purpose that it contracted with the Katzir Cooperative Society. Furthermore, the residents of the communal settlement purchased homes and went to live there, in reliance upon the situation as it existed at the time. All of these factors pose serious difficulties from the perspective of the Agency, the Cooperative Society and residents of the settlement, not only from a social perspective, but also from a legal perspective. For it must be remembered that the decision is being rendered today, approximately fourteen years after the allocation, and after the residents and the Jewish Agency itself acted on the basis of expectations which were accepted at that time and place.  All of these create difficulties for the State and may also impose restrictions on the State from a legal perspective. We too cannot ignore these difficulties.

40.  In this situation, out of a desire to take all of these factors and difficulties into account, and in order to reach an appropriate balance, we have decided to make the order nisi absolute, in the following manner:

A.    We declare that the State was not permitted, by law, to allocate state land to the Jewish Agency, for the purpose of establishing the communal settlement of Katzir on the basis of discrimination between Jews and non-Jews.

B.    It is incumbent upon the State to consider the petitioners’ request to purchase for themselves a parcel of land in the settlement of Katzir for the purpose of building their home, and this on the basis of the principle of equality, and taking into consideration factors relevant to the matter-- including the factors which relate to the Agency and the current residents of Katzir –and including the legal difficulties entailed in this matter. On the basis of these considerations, the State must decide, with appropriate speed, whether it can enable the petitioners, within the framework of the law, to build a house for themselves within the bounds of the Katzir communal settlement.

Justice T. Or

I agree.

Justice I. Zamir

I agree.

Justice M. Cheshin

In the allocation of public resources among individuals in Israeli society, the petitioners were discriminated against and are therefore entitled to the remedy to which one who was discriminated against would be entitled. For this reason, I agree with the ruling of my colleague, President Barak.

Justice Y. Kedmi

Opening Comments

1.    I concur with President Barak’s fundamental approach regarding the position of the value of equality among the values of the State of Israel and the implications this has for the allocation of state lands. I also agree with the President’s position according to which the application of the value of equality cannot be circumvented, in the present context, by allocating state lands to the Jewish Agency; which in itself is permitted to limit the sector of the population that will benefit from its activities, it being a Jewish Zionist settlement institution.

This fundamental approach does not—to the best of my understanding—prevent us from balancing between the value of equality and other values, including the value of national security. This value speaks of ensuring the existence of the State of Israel as a Jewish and democratic state; and in circumstances in which this is justified – and taking into consideration its location and the purpose of the establishment of a settlement that is located on national land – has the power to gnaw at and even override the value of equality (hereinafter: “the opening for balancing”).

In the early days of the State, the scope and proportions of said “opening for balancing” were relatively wide, in light of the significant weight that other values had – including the value of national security—in the special circumstances that existed at the time. However, as the State continued to develop, and as the perils that stood in the path to its establishment as a Jewish and democratic state lost some of their force, so too did this opening become narrower. Today, the proportions of this opening are particularly narrow and restricted; and such a balancing will be necessary only in rare circumstances. Unfortunately, we have not yet attained rest and tranquility; and so long as we don’t reach that point, there will not – it appears – be any escape from leaving remnants of the opening intact.

From the General to the Specific

2.    Against the backdrop of the existence of the opening for balancing, -- in my view -- past allocations of state lands are shielded from re-examination and retroactive adjustment. First, for the reason that they benefit from a presumption according to which: if they did entail a violation of the principle of equality, it is to be seen as having been necessitated by the demands of competing critical interests. The subject of the petition-meaning: the decision to establish a communal settlement in Katzir, whose population is limited to veterans of the Israeli Defense Force—was taken about eighteen years ago; I have found nothing in the material presented before us that justifies undermining the force of said presumption. In my view, it is not sufficient that the location of the communal settlement at issue is topographically close to an urban settlement for which there are no population restrictions, to establish that restrictions of this type in a communal settlement were not necessary at the time—in view of the circumstances that existed at that time—by the balance between the value of equality and other critical values.

And second, in light of the innovation in this judgment, both in terms of the power of the value of equality in all that relates to utilization of national lands generally and in terms of its application in regard to the allocation of such lands to the Jewish Agency in particular.  By its nature -- and especially with respect to the allocation of state lands to the Jewish Agency – such an innovation does not operate retroactively.

It is for these two reasons that it is appropriate – in my view -- to satisfy ourselves in the case before us with a declaratory judgment regarding the status and weight of the value of equality with regard to the allocation of state land, as detailed in the President’s opinion; and this, while making it clear that the judgment is forward-looking and does not provide grounds for re-examining acts performed in the past.

Decided by majority opinion, (in opposition to the dissenting opinion of Justice Y. Kedmi) to make the order nisi absolute, as stated in paragraph 40 of the President’s judgment.

March 8, 2000.

1 Adar B 5760

HCJ 453/94, 454/94

Israel Women’s Network

v.

1.     Government of Israel

2.     Minister of Transport

3.     Ports and Railways Authority

4.     Amir Haiek

5.     Minister of Energy and Infrastructure

6.     Minister of Finance

7.     Oil Refineries Ltd

8.     Doron Kashuv

9.     Yaakov Wagner

The Supreme Court sitting as the High Court of Justice

[1 November 1994]

Before Justices E. Mazza, Y. Kedmi, I. Zamir

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

Facts: In 1993, the Government Corporations Law was amended, and s. 18A was added. This section provides that the boards of directors of Government corporations shall have equal representation of men and women, and until such time as this goal is achieved, members of the underrepresented sex should be appointed, ‘to the extent that circumstances allow’ (affirmative action).

After the new section came into effect, and despite the new section, men were appointed in two cases by Government ministers to boards of directors of Government corporations, on which there were no women directors.

The petitioner argued that the appointments were therefore unlawful. The respondents argued that, notwithstanding the new s. 18A, the appointees were the best candidates for the positions, and even if the court held that the ministers had acted wrongly, the appointments should not be cancelled on this occasion, as it was the first time the matter had come before the court.

Held: (Majority opinion — Justice E. Mazza and Justice I. Zamir): The appointments were unlawful since the ministers had not obeyed the provisions of the new section, and they should therefore be revoked, so that the ministers could begin the appointment processes again.

(Minority opinion — Justice Y. Kedmi): The main consideration in making an appointment is the qualifications of the candidates, even after the new section of the law came into effect. It was sufficient for the minister to consult a list of female candidates in his ministry, and he did not have to look outside the ministry. Thus in the case where the minister had such a list, his decision was valid. In the other case where the minister did not have such a list, the appointment was flawed, but in this case, the appointment should not be set aside, both because of the injustice that would result to the appointees who had done nothing wrong, and also because the petitioner had not shown that there existed a specific female candidate with qualifications equal to those of the appointees.

Petition allowed, by majority opinion.

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

Development Towns and Areas Law, 5748-1988.

Emergency (Emergency Plans for Building Residential Units) Regulations, 5750-1990.

Employment Service Law, 5719-1959, s. 42(a).

Equal Employment Opportunities Law, 5748-1988.

Equal Remuneration for Female and Male Employees Law, 5724-1964.

Equal Retirement Age for Female and Male Employees Law, 5747-1987.

Government Corporations Law, 5735-1975, ss. 18A, 18A(a), 18a(b), 18B, 60A.

Government Corporations (Amendment no. 6) (Appointments) Law, 5753-1993.

Ports and Railways Authority Law, 5721-1961, ss. 2, 6(a).

Women’s Equal Rights Law, 5711-1951, s. 1.

Israeli Supreme Court cases cited:

[1]        FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[2]        HCJ 202/57 Sidis v. President and Members of Great Rabbinical Court [1958] IsrSC 12 1528.

[3]        HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

[4]        CA 337/61 Lubinsky v. Tax Authority, Tel-Aviv [1962] IsrSC 16 403.

[5]        HC 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[6]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [1988] IsrSC 42(2) 309.

[7]        HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[8]        HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[9]        HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[10]     HCJ 528/88 Avitan v. Israel Lands Administration [1989] IsrSC 43(2) 292.

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

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

[13]     HCJ 292/61 Rehovot Packing House Ltd v. Minister of Agriculture [1962] IsrSC 16 20; IsrSJ 4 96.

[14]     HCJ 199/86 Amir Publishing Co. Ltd v. Minister of Tourism [1986] IsrSC 40(2) 528.

[15]     HCJ 5023/91 Poraz v. Minister of Building [1992] IsrSC 46(2) 793.

[16]     HCJ 2994/90 Poraz v. Government of Israel [1990] IsrSC 44(3) 317.

[17]     HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [1993] IsrSC 47(5) 832.

American cases cited:

[18]     Griggs v. Duke Power Co. 401 U.S. 424 (1971).

[19]     University of California Regents v. Bakke 438 U.S. 265 (1978).

[20]     Wygant v. Jackson Board of Education 106 S. Ct. 1842 (1986).

[21]     Steelworkers v. Weber 443 U.S. 193 (1979).

[22]     Johnson v. Transportation Agency, Santa Clara County 480 U.S. 616 (1987).

[23]     Teamasters v. United States 431 U.S. 324 (1977).

[24]     Hazelwood School District v. United States 433 U.S. 299 (1972).

Canadian cases cited:

[25]     C.N. v. Canada (Human Rights Commission) [1987] 1 S.C.R. 1115.

For the petitioner — R. Meller-Ulshinsky, R. Benziman.

For respondents 1-6 — A. Mendel, Senior Assistant and Head of High Court of Justice Cases at the State Attorney’s Office.

For respondent 7 — M. Sheler.

JUDGMENT

Justice E. Mazza

1.    The petitions before us concern the practical application of s. 18A of the Government Corporations Law, 5735-1975, which was added to the law by the Government Corporations Law (Amendment no. 6) (Appointments), 5753-1993 (hereafter — ‘the Appointments Law’).

Introduction

2.    The Appointments Law was passed in the Knesset on 16 March 1993. It includes a series of amendments to the Government Corporations Law about the qualifications and methods of appointing candidates for the office of directors in Government corporations. Among these amendments section 18A was added to the Government Corporations Law, and this provides:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both sexes.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’

Under s. 60A of the Government Corporations Law, which also was added to the law by its amendment under the Appointments Law, the provision of s. 18A applies (inter alia and mutatis mutandis) also to appointments — by a minister or the Government, or on the recommendation of, or with the approval of, either of these — of members of the boards of management of statutory corporations.

3.    The petitioner — the Israel Women’s Network — is a registered society (amuta). Its declared purpose is to struggle to promote equality of the sexes in Israeli society. The petitioner’s main activities are directed towards achieving equal representation for women among decision-makers and policy-makers in the various sectors of public and social activity. Its two petitions — in which a panel of three justices issued show cause orders — are directed at decisions to appoint directors under the Government Corporations Law made after the Appointments Law came into effect. The petition in HCJ 453/94 concerns the appointment of a new member of the board of the Ports and Railways Authority. The petition in HCJ 454/94 relates to the appointment of two new directors on behalf of the State to the board of directors of Oil Refineries Ltd. All three new appointees are men, and the composition of the two relevant boards do not have (nor did they prior to the said appointments) even one woman.

The petitioner complains about these appointments. It should be said at once that the petitioner does not have even the smallest criticism of the qualifications and abilities of any of the appointees for any of the said positions. It should also be stated — and this too is not disputed — that each of the appointments was preceded by a consultation with the Appointments Review Committee, in accordance with s. 18B of the Government Corporations Law. Nonetheless, the petitioner challenges the lawfulness of the appointments. Its argument is that, in the circumstances of both cases, and under the provision of s. 18A of the Government Corporations Law, preference should have been given to the appointment of women; however, in their decisions with regard to the appointments made, the authorities ignored the express directive of the law. For this reason — the petitioner argues — the appointments made cannot stand. It therefore asks for an order that cancels the appointments and reopens the appointment procedures, so that the provision of s. 18A may be implemented in these cases.

HCJ 453/94

4.    The Ports and Railways Authority (the third respondent) was established by the Ports and Railways Authority Law, 5721-1961. Under s. 2 of the law, ‘the Authority is a corporation, competent to acquire any right, to undertake any obligation, to be a party in any law suit and a party to any contract.’ However, s. 6(a) of the law stipulates that:

‘The Government shall appoint, on the recommendation of the Minister of Transport, a board for the Authority (hereafter ‘the board’); the board shall have seventeen members, of whom ten shall come from the public and seven shall be State employees, including two representatives of the Ministry of Transport, a representative of the Ministry of Finance and a representative of the Ministry of Industry and Trade.’

There is therefore no doubt — nor is there any dispute — that the provision of s. 18A of the Government Corporations Law does indeed apply to the appointment of members of the board of the said authority.

5.    On 9 January 1994, the Government decided, on the recommendation of the Minister of Transport, to appoint Mr Amir Haiek (the fourth respondent) as a member of the board of the authority. Mr Haiek, an accountant by profession, is an employee of the Ministry of Industry and Trade. The recommendation of the Minister of Transport to appoint him was based on the recommendation of the Minister of Industry and Trade, who chose him as its new representative on the board (instead of its previous representative who finished his term of office). Prior to the appointment of Mr Haiek, fifteen members served on the board of the authority, all men. The argument of the petitioner is that, in these circumstances and under the provision of s. 18A of the law, preference should have been given to the appointment of a woman to this position. We should say once more that the petitioner does not dispute that Mr Haiek has all the essential qualifications for the office to which he was appointed. It also agreed that he has suitable personal qualities and traits. Nonetheless, the petitioner points to the fact that the senior staff of the Ministry of Industry and Trade also include twenty-five women. There are employees of the ministry who are on the four highest levels of seniority, with the rank of academics or the rank of lawyers. Its argument is that had thought been given to the matter, a suitable candidate for membership on the board of the authority could have been found among these women employees. The choice of a male candidate, when the possibility of recommending a suitable female candidate was not even considered, is inconsistent with the provision of s. 18A of the law, and it should be made void.

6.    The show cause order granted in this petition was directed at the Government of Israel (which appointed Mr Haiek) and the Minister of Transport (on whose recommendation the appointment was made). The Government’s affidavit in reply was given by the Minister of Industry and Trade. A separate affidavit was not submitted by the Minister of Transport. We will therefore assume that what is stated in the affidavit of the Minister of Industry and Trade also represents the position of the Minister of Transport.

In his affidavit in reply, the Minister of Industry and Trade argued that Mr Haiek’s appointment was within the framework of the law and there was nothing wrong with it. The Minister pointed out in his affidavit that the Ministry of Industry and Trade has only one representative on the Authority’s council. In such circumstances, he argued, he was bound to consider ‘only who was the best and most suitable candidate for the position from among the employees of the Ministry and not from the general public.’ Mr Haiek is his economic adviser. Upon assuming his position as Minister of Industry and Trade, he appointed Mr Haiek as the person responsible for all aspects of freight, handling, and delivery of matters related to industry and trade, both inside Israel, and to and from Israel. Since the Authority is responsible for a significant proportion of land and sea freight, Mr Haiek was required, by virtue of his position, to maintain contact with the Authority. When the one and only place on the Authority’s council reserved for a representative of the Ministry of Industry and Trade became vacant, it was only natural that he would choose Mr Haiek. As to his reasons for selecting Mr Haiek, the Minister says in his affidavit as follows:

‘My decision to recommend the fourth respondent as the representative of the Ministry of Industry and Trade on the Authority’s council was made in view of the fact that he is in charge of, and responsible on behalf of the Ministry for, the issue of sea and land freight with regard to the implications of this for industry and trade in Israel. Because of this position of his, Mr Haiek is more of an expert, with regard to the activity of the Ports and Railways Authority, than anyone else in my Ministry, and he has the tools and the breadth of vision required in order to represent faithfully, on the Authority council, all the issues in which the spheres of responsibility of the Ministry of Industry and Trade overlap with the areas of activity of the Ports and Railways Authority.’

The Minister goes on to reject the petitioner’s claim that the Minister of Transport should have submitted to the Government a proposal to appoint a woman from among the senior female employees of the Ministry of Industry and Trade. When a need arose to appoint a new representative for the Ministry of Industry and Trade, the discretion in choosing the appropriate candidate was exercised by him as the responsible Minister. The obligation to appoint a woman is not absolute, but is imposed on ministers (according to what is stated in s. 18A(b) of the law) only ‘to the extent that circumstances allow’. Although the Minister does not question the excellent qualifications of the senior female employees in his Ministry, his not choosing one of them does not indicate that he did not comply with his duty under the law, for, in view of the special qualifications required for the candidate, and the necessity that he should have a general and extensive familiarity with all the needs and requirements of the various divisions and departments of the Ministry, the circumstances of the case did not allow him to propose the candidacy of a woman for this position.

HCJ 454/94

7.    Oil Refineries Ltd (hereinafter — ‘the Refineries’) — one of the respondents in this petition — is a Government corporation as defined in the Government Corporations Law. Its business is the refining of crude oil and the manufacture of oil products. Its board of directors has twelve members, eight of whom represent the State and four represent private shareholders. All the board members are men. Throughout 1993, several directors completed their terms and new directors were appointed in their stead. Four of the new directors were appointed on behalf of the State, and the appointment procedures for three of them were conducted after the Appointments Law came into effect. First, on 7 June 1993, Mr Moshe Ritov was appointed. On 9 November 1993, Mr Doron Kashuv was appointed, and on 16 December 1993 the appointment of Mr Yaakov Wagner was finalized (the latter two are both respondents in this petition).

The petitioner complains about the appointment of Mr Kashuv and Mr Wagner as directors. Here too the petitioner completely accepts that Mr Kashuv and Mr Wagner are qualified and desirable candidates for the office to which they were appointed. But the appointment of two additional men as new directors on a board of directors that has only male members is contrary to the provision of s. 18A. This, and this alone, is the subject of this petition.

8.    The show cause order granted in this petition was directed at the Minister of Energy and Infrastructure and the Finance Minister, since by their joint decision (by virtue of their authority under the Government Corporations Law) Mr Kashuv and Mr Wagner were appointed to the office of directors. In the reply to the order, affidavits were submitted on behalf of each of the Ministers. Affidavits were also submitted by Mr Kashuv and Mr Wagner. The ‘Refineries’ gave notice that it is not adopting a position.

In the main affidavit in reply on behalf of the Minister of Energy and Infrastructure (by the director of the Planning and Economics administration in this Ministry), it is stated that the Minister’s decision to appoint Mr Kashuv and Mr Wagner as directors was based on the professional qualifications of the candidates, which were of the kind required on the board of directors of the ‘Refineries’. Mr Wagner worked at the ‘Refineries’ for many years and served as its assistant director-general for about fifteen years. He has considerable professional expertise and is an expert on all secret workings of the ‘Refineries’. It was also stated that Mr Wagner already served in the past as a director in the ‘Refineries’, and during his earlier term of office he made a significant contribution to the activities of the board of directors. Mr Kashuv is described in the affidavit as a senior administrator, someone with an extensive academic background in business management, and an expert in the fields of finance and marketing. In the past, he worked in auditing and gained experience also in this field. Further on it states that the Minister is aware of the need to present the candidacy of a woman for membership of the board of directors of the ‘Refineries’. The committee for examining appointments, within the framework of the approval of Mr Wagner’s candidacy, also drew the Minister’s attention to the fact that the board of directors of the ‘Refineries’ did not include any women. However, the State’s quota of directors on the board of directors of the ‘Refineries’ is not yet filled, and prior to filling the two positions that are still vacant the Minister is indeed considering the appointment of a woman to this board of directors.

In reply to the questions presented by counsel for the petitioner, a further affidavit was submitted on behalf of the Minister of Energy and Infrastructure (this time by the Director-General of the Ministry). From this affidavit it transpires that the Minister originally considered the appointment of a senior female employee in his Ministry to the office of director at the ‘Refineries’, but the candidacy of this employee was withdrawn because of a suspicion that she might find herself in a conflict of interests between the needs of the ‘Refineries’ and the Ministry’s policy regarding the status of the ‘Refineries’. The deponent goes on to concede that, prior to the appointments, the Minister did not examine a list of suitable female candidates, since such a list — which is currently in his possession — did not yet exist when the previous appointments were made.

9. In the affidavit in reply on behalf of the Finance Minister (made by the Minister’s assistant), the deponent focused on a description of the procedure determined by the Finance Minister for implementing s. 18A. This should, in my opinion, be quoted in full:

‘… Since s. 18A of the Government Corporations Law, 5735- 1975, which sets out the requirement for proper representation on boards of directors of the sex that is not represented, came into effect, I examine, according to the Minister’s directive, whether any women hold office on the board of directors for which a candidate is required. If no woman holds office on the board of directors, and we are concerned with one of the last vacant positions in the quota of directors (usually the two or three last places), I make a further investigation in order to find a suitable women candidate from the pool of candidates at the Finance Ministry, which includes the names of candidates submitted by the Forum of Businesswomen and the Na’amat Organization. At the same time, I contact the Prime Minister’s Adviser on the Status of Women, Mrs Nava Arad, who has in her possession a larger selection of suitable women candidates.

To the best of my knowledge, since the said amendment came into effect, there were only a few cases where a Government corporation reached its maximum quota of directors and a woman was not appointed when a position became available.

As a rule, whenever there remain, as stated, only two or three places on a board of directors, efforts are made to appoint a woman as the first of these.’

10. Mr Kashuv and Mr Wagner submitted affidavits that were identical in their contents. Each of them discussed briefly his reputation and good character that he acquired for himself in his work and expressed a concern about the severe harm that he would suffer should the court decide to cancel his appointment. Since the fact of the appointments was made public, their cancellation might create an erroneous impression on the public as to the reason for their cancellation. In the nature of things, the reason for the cancellation would be forgotten, while the actual cancellation would be well remembered.

The points of contention

11. Section 18A of the Government Corporations Law contains two parts. The first part, s. 18A(a), defines the desired and binding purpose of the law. The purpose and the obligation are that ‘the composition of the board of director of a Government corporation shall reflect the proper representation of persons of both sexes.’ The second part, s. 18A(b), prescribes a binding course of action which ministers are ordered to follow ‘until such proper representation is achieved...’.

Counsel for respondents 1-6 pointed to the vagueness of the term ‘proper’ (representation) which appears in both parts of the section. Nonetheless she agrees that the fact that before the appointments under discussion not even one woman held office — either on the council of the Authority or the board of directors of the ‘Refineries’ — is sufficient for us to be compelled to conclude that on neither of these bodies was there ‘proper’ representation of women. Counsel for the said respondents therefore concedes that in making their decision regarding the choice of candidates for the positions in question, the Ministers were obliged (and, in the case of the appointment of a new member to the council of the Authority — the Government was also obliged) to act in accordance with the provision of s. 18A(b) of the law.

In view of this agreement, the dispute between the parties focused on the following three questions: first, what is the nature of the duty imposed on the Minister (and, where relevant, on the Government) under s. 18A(b)? Second, in the appointments under discussion in these petitions, did the Ministers (or the Government) fulfil the duty that was imposed on them? Third, assuming that the answer to this second question is no (i.e., that the duty was not fulfilled), what is the law with regard to the appointments that were made, now that they have become a fait accompli?

12. The premise for the respondents’ position, with regard to the first question, is that the section imposes on ministers only a relative and qualified duty. The respondents base this position on the qualification stated in the section itself: ‘to the extent that circumstances allow’. From this qualification, they appear to wish to infer that the section merely provides a kind of general guideline with regard to the factors that ministers must take into account in their considerations for choosing the candidate for the appointment. It follows that if in a specific instance the minister thinks that in the circumstances of the case he must prefer other considerations, he may depart from the guideline in the section. From the explanations included in the affidavits in reply, counsel for respondents 1-6 wishes to submit that no defect occurred in the appointments under discussion, for in the circumstances of both instances objective considerations determined the outcome in favour of the appointments that were made. Alternatively, counsel for the said respondents argues that, even if it transpires that the possibility of appointing a woman to either of the positions under discussion was not properly considered by either of the Ministers, this is insufficient to justify cancelling the appointments. The reason for this is that we are concerned with a new and innovative statutory provision; if it was not applied correctly in the cases under discussion, this should be deemed an error and a result of insufficient understanding of the nature and scope of the duty prescribed. Similarly, we should take account of the fact that in practice the decisions do not harm the public, since no-one disputes that the candidates who were appointed are qualified and fitting candidates; however, cancelling the appointments retrospectively will harm the candidates who were appointed. Therefore we should not make an order that might correct one wrong with another wrong, but should merely apprise the Government and its Ministers of their error and lay down guidelines for applying the provision of s. 18A(b) in the future.

13. The petitioner also does not dispute the fact that the obligation to appoint directors of the sex that is not properly represented, as set out in s. 18A(b), is not an absolute duty, but a relative duty, qualified by the possibilities that exist in the circumstances of the case. However, subject to this qualification, the petitioner argues that the duty imposed on the ministers making the appointments under this section is clear. The purpose set out in the section is that in the interim period (until proper representation is achieved for both sexes), affirmative action should be adopted in order to close the gap between the extensive representation of men and the hitherto minimal and negligible representation of women. The duty of the minister making an appointment, according to the express directive of the section, is therefore clear: assuming that all other qualifications are equal, he must prefer the choice of a female candidate to the choice of a male candidate. If he does otherwise, he must show that, in the circumstances of the case, it was not possible to find a suitable female candidate. The petitioner adds that from what is stated in the affidavits in reply it can be clearly seen that, in making the appointments under discussion, the Ministers and the Government acted with total disregard for this provision of the section. She also argues that from what is stated in the affidavits in reply there is no (even ex post facto) evidence that in the circumstances of either of the appointments it was impossible to comply with the letter and the spirit of the duty under the section. In such circumstances we must conclude that the appointments made are unlawful and they should therefore be cancelled. The rule that ‘one should not remedy an injustice with an injustice’ does not apply here, for the fear that cancelling the appointments may harm the candidates who were appointed is countered by the need to repair the harm arising from the impropriety of the proceedings and to implement the law.

            Section 18A — introductory remarks

14. Section 18A was intended to apply equitable criteria for the representation of women on the boards of management of Government and statutory corporations. It should immediately be said that we are not speaking of a new statutory basis for established rights, such as the basic right to equality of the sexes and the rights deriving therefrom with regard to the acknowledged right of women to equal opportunities in public, social and economic life, and in the fields of employment and labour; we are speaking of a new norm whose purpose is to enforce, by means of a duty, proper representation of the members of both sexes in the composition of boards of directors of Government corporations and the equivalent executive organs of corporations created by statute.

The purpose of the section is to correct a social injustice. It appears that the participation of women on the boards of directors of Government corporations and on the boards of management of statutory corporations has always been negligible. The proponents of the draft Government Corporations Law (Amendment No. 6) (Appointments), 5753-1993, on behalf of the Constitution, Law and Justice Committee of the Knesset, MK D. Zucker and MK H. Oron, pointed out in this respect that ‘only a few percent of directors are women and, in absolute terms, their number is minimal’ (Explanatory Notes to the draft Government Corporations Law (Amendment No. 6) (Appointments), at p. 75). Within the framework of the Knesset’s deliberations about the draft law, MK Oron stated that of the approximately one thousand and eight hundred directors holding office in Government corporations, only thirty-five were women (Proceedings of the Thirteenth Knesset, second session, 5753, at p. 4061). The proposal to add s. 18A to the Government Corporations Law was designed to correct this extreme injustice. With regard to the manner of the proposed amendment, the Constitution Committee brought two alternative versions before the Knesset: the first alternative was limited merely to a provision (now included in s. 18A(a) of the law) that ‘the composition of the board of directors of a Government corporation shall give proper expression to representation of both sexes;’ the second alternative, however, presented the text of the section with both parts, i.e., with the addition of the provision of s. 18A(b), that ‘until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’ With regard to the decision of the Constitution, Law and Justice Committee to bring two alternative proposals before the Knesset, it is stated in the explanatory notes (ibid.):

‘The Constitution Committee chose not to decide, at this stage, whether to set a minimum quota of women or whether to instead adopt a policy of “affirmative action”. The Committee thought that, since we are speaking of passing a fundamental and unprecedented provision in Israeli legislation, this question ought to be submitted for wide public debate, inter alia before the plenum of the Knesset, at the time of the first reading.’

The Knesset chose the second alternative. Thus a binding criterion for achieving equality of the sexes, based on the principle of affirmative action, was enacted in legislation for the first time. The desired objective set forth in s. 18A(a), as stated, is that the composition of every board of directors (or equivalent board of management) ‘shall give proper expression to representation of both sexes.’ Section 18A(b) goes on to provide that ‘until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’ The petitioner correctly argues that the provision of s. 18A(b) requires that, in the interim period until the goal stipulated in s. 18A(a) is achieved, a path of affirmative action is adopted. But it is important to point out that even s. 18A(a), which presents the long-term purpose of the law, does not merely declare the existence of the said purpose, as a goal that we should aspire to within the framework of well-known and established doctrines; instead, it sets out a practical mission which must be accomplished immediately. The mission is to achieve proper representation of both sexes; and the duty to accomplish it — stipulated in the words ‘shall give’ — is imposed on the ministers who make the appointments (and, where relevant, on the Government). The reason for this is that, since the ministers have the authority to make appointments, it is they (and they alone) who are able to do the work and turn the desired objective of the law into a practised and accepted social reality. It transpires that the criterion for affirmative action, which s. 18A(b) expressly mandates with regard to the interim period, is in fact incorporated also in the provision of s. 18A(a). Is not the significance of the duty to give proper expression to the representation of members of both sexes that also at every time in the future proper expression to such representation must continue to be maintained? It follows that the need to consider also the sex of a candidate will arise anew when appointing every new member to a board of directors; whether in order to maintain the balance between representatives of the two sexes that was achieved in the composition of the board of directors before the departure of the director, whom the new appointment is intended to replace, or in order to correct the exact balance, if this was breached by a prior appointment of any other director.

15. The clear purpose of s. 18A, which as stated was one of the innovations of the Appointments Law, is to correct existing injustices in the scant representation given to women in the composition of the boards of directors of Government corporations. The method set out in the section for achieving this purpose is the application of a norm of affirmative action. This is, without a doubt, a normative innovation. We shall therefore begin by establishing the basic nature of the norm.

Affirmative action

16. The idea of ‘affirmative action’ derives from the principle of equality, and its essence lies in establishing a legal policy for achieving equality as a resultant social norm. The core of the principle of equality (according to the traditional approach) is  ‘equal treatment of equals’, and its usual expression in social life lies in affording equal opportunities to everyone. The problem is that affording equal opportunities is likely to achieve an equal result only when the population groups who are competing do so from a starting point that is more or less equal; for only under circumstances of initial equality do they have equal opportunities to achieve it. This is not the case with respect to populations composed of very strong groups and very weak groups. A significant gap in equality of opportunity — whether it originates in discriminatory laws that were in force in the past but are now obsolete, or whether they were created by mistaken beliefs that became entrenched in society — increases the chances of the strong groups and reduces the chances of the weak groups. Affirmative action seeks to close this gap. It is based on the view that in a society where some elements start at a disadvantage, it is insufficient to give everyone an equal opportunity. Giving an equal opportunity in such circumstances merely complies with a kind of formal equality, but it does not afford persons in the disadvantaged groups a real chance to receive their share of the resources of society. The existence of formal equality in the long term raises the fear that because of the way of the world and human behaviour, the results of the discrimination will be perpetuated. Correcting the injustices of the past and achieving actual equality can, therefore, only be done by giving preferential treatment to members of the weak group.

17. The doctrine of affirmative action is practised in the United States. It began with public movements that arose in the middle of the 1940s and that set themselves the goal of ridding American society of the scourges of discrimination and prejudice, mostly on the basis of race and ethnic origin. These movements sought de facto to realize the principle of affording equal opportunities to members of the disadvantaged groups in society, as a practical expression of the equal protection clause set out in the Fourteenth Amendment of the Constitution. This objective was ostensibly achieved upon the enactment, in 1964, of a federal statute (The Civil Rights Act), which in paragraph 703 declares unlawful any practice of selecting, employing or promoting employees on the basis of discrimination because of the race, colour, religion, sex or national origin of the candidate or the employee. On the basis of this prohibition, the Supreme Court forbade aptitude tests for the acceptance of employees, which ostensibly afforded equal opportunities to all candidates, but were in practice irrelevant to the substance of the job and their real purpose was to negate the chances of black candidates (see Griggs v. Duke Power Co. (1974) [18]).

Eventually it became clear that even when equal opportunities were given the desired results were not achieved. Against this background, a new trend emerged at the end of the 1960s: no longer only giving equal opportunities, but also a redistribution of resources and ‘social engineering’, designed to produce equal results. According to this approach, which grew stronger during the seventies, the existence of social equality is not measured in terms of providing the means for achieving it (granting equal opportunities), but in actual achievements, namely results. But bitter opponents challenged this approach. They argued that equality and preference (even if ‘corrective’) are contradictory. Preference for reasons of race or ethnic origin violates the right of equality of anyone who is not of the preferred racial or origin. So it transpires that the burden of the correction of the injustices of discrimination against one person unjustly falls on the shoulders of another. There were also some who pointed out a contradiction between the reasons for affirmative action and other relevant considerations that oblige the authorities to develop a social policy devoid of favouritism, such as considerations of viability and economic advantage. It should be noted that the critics also included recognized liberals. Thus, for example, the scholar Morris Abram (himself one of the founders of the social movement for the elimination of discrimination) criticized the quota system involved in implementing the policy of preference for the weak (see Morris B. Abram, ‘Affirmative Action: Fair Shakers and Social Engineers’, 99 Harv. L. Rev., 1985-1986, 1312). But there were also some who answered the critics of the affirmative action approach in their own terms. Particularly appropriate here are the remarks of Professor Sunstein:

‘The antidiscrimination principle — of course, widely accepted — forbids government from discriminating against blacks and women, even when such discrimination is economically rational. Affirmative action — of course, a highly controversial practice — calls for employment and other preferences for members of disadvantaged groups. The two ideas are often thought to be in severe tension, and indeed, for advocates of affirmative action, the antidiscrimination principle sometimes seems an embarrassment.

In some settings, however, an antidiscrimination norm, conceived as a barrier to economically rational behavior, has the same purposes and effects as affirmative action. Affirmative action is controversial partly because it can be economically irrational, can impose serious social costs, and harms innocent victims. But an antidiscrimination principle often does precisely the same as what affirmative action does, and also does it in the interest of long-term social goals. For example, an antidiscrimination norm may require innocent victims to sacrifice — customers may be required to pay higher prices — in order to produce long-term equality.

A great failure of the assault on affirmative action is in its inability to account for the ways in which a requirement of nondiscrimination involves very much the same considerations. Indeed, the distinction between affirmative action and antidiscrimination is sharp only to those who see discrimination as always grounded in hostility and irrationality, which it clearly is not’ (C.R. Sunstein, ‘Three Civil Rights Fallacies’, 79 Cal. L. Rev., 1991, 751, at p. 757).

18. The socio-political argument in the United States with respect to the question of affirmative action finds clear and strong expression in the rulings of the Supreme Court. It appears that only three of the justices (Steven, Marshall and Blackmun) were prepared to recognize affirmative action as a criterion of equality. In view of ‘past iniquities’, they argued, the perpetuation of the status quo in itself also creates and amounts to discrimination. It follows that affirmative action should be seen as one of the corollaries of the principle of equality itself. It does not ignore the reasons why substantive equality does not exist, but it recognizes their existence and acts directly in order to eliminate them; thus it constitutes a real guarantee for the realization of equality. The remarks of Justice Blackmun in University of California Regents v. Bakke (1978) [19] in this respect are well-known; in his criticism of the approach that views affirmative action as contrary to the protected constitutional right of equality, he said, at p. 407:

‘I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the equal protection clause perpetuate racial supremacy’ (emphasis added).

But the tendency of the majority of the justices was to recognize affirmative action merely as a permissible exception to the equality principle. The rationale underlying this approach was that affirmative action may be recognized only when it is proved that it is designed to compensate an individual or group, which belong to the weaker strata of society, for the sins of social discrimination from which they suffered in the past. In other words, affirmative action will succeed in being recognized only when it applies a measure of ‘reverse discrimination’. On the basis of this approach, the court, in University of California Regents v. Bakke [19], disqualified an admissions scheme for a medical school that reserved sixteen out of one hundred places for students from under-privileged minority groups, but even the judges who formed the majority agreed that a candidate’s racial origin could be considered by the university as one of the considerations for determining his eligibility for admission to the school. In subsequent years the question was submitted several times to the Supreme Court, but in all the cases the court refrained from an overall endorsement or an overall rejection of affirmative action as a social norm. In an interesting survey written in response to the judgment in the case of Wygant v. Jackson Board of Education (1986) [20] — in which the court disqualified a collective agreement, which, for reasons of affirmative action, gave non-white teachers a degree of preferential treatment over white teachers in the event of a work stoppage — Professor Sullivan showed that, despite the different approaches in the majority and minority opinions of the justices, in the six cases (up to 1986) in which the court approved arrangements based on affirmative action, the common denominator for the positive decision was expressed in the reasoning that the need to compensate for past discrimination prevailed, in the circumstances of the case, over the consideration of preserving the principle of equality (see K. M. Sullivan, ‘Sins of Discrimination: Last Term’s Affirmative Action Cases’, 100 Harv. L. Rev., 1986-87, 78). The criteria for the limited recognition of affirmative action were defined (by Justice Brennan) in the case of Steelworkers v. Weber (1979) [21]. According to him, affirmative action may only be recognized as a temporary means for correcting injustices resulting from racial imbalance, as opposed to an intention to achieve racial balance (‘… a temporary measure, not intended to maintain racial balance but simply to eliminate racial imbalance’). It should be noted that on the basis of this approach, the court upheld the legality of a program under which the promotion of a female employee was preferred to that of a male employee who was also found equally deserving of promotion (Johnson v. Transportation Agency, Santa Clara County (1987) [22]). Even though the factor which tipped the scales in making the selection was the sex of the candidate, the court decided (this time also through Justice Brennan) that the program was legitimate, since it was designed to rectify an injustice of non-representation of women in jobs at that level of seniority that had previously been held only by men, but it did not impede the promotion of male employees.

19. We see therefore that the doctrine of affirmative action gained a foothold in American law neither easily nor openly, but cautiously, narrowly and subject to qualifications. It would appear that two main reasons were jointly responsible for this.

First, the recurring need to reconcile affirmative action with the mandate of the Constitution, which in its rigid definitions forbade preference of any kind. Second, the fact that most affirmative action programs submitted for the court’s review were designed to promote the black population, and American society sometimes has difficulty in admitting the de facto discrimination of this population.

Canada learned a clear lesson from the difficulties posed by the United States’ Constitution, and in drafting the Canadian Charter of Rights and Freedoms, which constitutes the first part of the Constitution Act, 1982, it included the principle of affirmative action within the framework of the definition of the right of equality. The following is the text of s. 15 of the Charter of Rights:

‘Equality Rights

Equality before and under the law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

It should be pointed out that the constitutional recognition of the existence of the need to practise affirmative action is very evident in the reasoning of the Canadian Supreme Court, also with regard to the rationale justifying this need. Canada’s Chief Justice (Chief Justice Lamer) expressed this well in C.N. v. Canada (Human Rights Commission) (1987) [25], at p. 1143:

‘The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears.’

20. It should be noted that other countries have also adopted legislation that accepted the criterion of affirmative action in order to advance the material equality of women. Examples of this can be found among European countries that acted under the inspiration of ‘positive action’ of European legislation (see, for example, the article of D.A. Grossman, ‘Voluntary Affirmative Action Plans in Italy and the United States: Differing Notions of Gender Equality’ 4 Comp. Lab. J., 1992-1993, 185). However, I think that the most striking example of all is Australia, which in 1986 incorporated the principle of affirmative action in a law prescribing equal employment opportunities for women: The Affirmative Action (Equal Employment Opportunity For Women) Act, 1986. In this context, see J.J. Macken, G. McCarry & C. Sappideen, The Law of Employment, Sydney, 3^rd ed., 1990, 609; and also the chapter ‘Anti-discrimination legislation and affirmative action legislation’, in the book of C. O’Donell & P. Hall, Getting Equal, Sydney, 1988, 75).

21. It should be recalled that, according the approach of those who recognize affirmative action as a norm in the field of equality, the true test of equality does not lie in declarations of recognition of equality but in its actual realization and its practical results. Indeed, together with the dissemination of the ‘redistribution’ approach, there has been an increase in the importance of statistical evidence; instead of dealing with the question of the existence of discriminatory intent, the importance of which has greatly declined, attention has focused on the realities of the situation. This, inter alia, led to the extensive consideration in the rulings of the United States Supreme Court as to the proper degree of use of affirmative action as a device for correcting existing injustices in real equality. Thus, for example, in relating to the expression of practical equality in the labour market, case-law distinguished between ‘ordinary’ jobs, and jobs and positions for which special professional training is required. With regard to the first category it was held that as a rule it should be expected that there will be more or less equal representation in the work force of all elements of the various racial and ethnic groups in the community (Teamasters v. United States (1977) [23]). However, that equality should prima facie prevail in the representation of the various elements of the community, who have the special professional qualifications, also in the professions and the jobs that require those qualifications (Hazelwood School District v. United States (1977) [24]; see also the case of Johnson [22], at p. 632).

The equality of women – de facto

22. The principle of equality, which in the words of President Agranat ‘is merely the opposite of discrimination…’ (FH 10/69 Boronovski v. Chief Rabbis [1], at p. 35), has long been recognized in our law as one of the principles of justice and fairness which every public authority is commanded to uphold. We will not dwell upon the case-law development of basic human right of equality. We should, however, emphasize that as a rule there has never appeared to be a need to enshrine the principle of equality in statute, and certainly it has never been necessary to lay down statutory formulae to impose it in the various spheres of public and social activity. Even the possible entrenchment in the Basic Law: Human Dignity and Liberty, as part of the value of human dignity, is not express but implied (see H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, HaPraklit — Jubilee Volume, 1994, 9, 32; A. Barak, Judicial Construction, Vol. 3, Constitutional Interpretation, Nevo, 1994, at 423-426; Y. Carp, ‘The Basic Law: Human Dignity and Liberty – A Biography of a Struggle’, 1 Law and Government, 1993, 323, 345 et seq.). It is merely that the statement at the beginning of the Declaration of Independence that the State of Israel would ‘… guarantee absolute social and political equality to all of its citizens irrespective of religion, race and sex’, and the rapid absorption of democratic practices into civil life were sufficient to establish the principle of equality as part of the basic principles and ways of life accepted by all citizens.

But this rule had one exception: although the binding application of the principle of equality in general was easy and clear, upholding the right of equality for women (at least in the social sphere, as distinct from the political sphere) was not so simple and evident. Initially, for historical reasons related to religious laws and ethnic traditions, the social equality of women was a special problem (see A. Rubinstein, The Constitutional Law of the State of Israel, Shocken, 4^th ed., 1991, 325). The Women’s Equal Rights Law, 5711-1951, which was enacted in the first years of the State, was intended to correct this injustice. However, the law was mainly intended to cancel the force of prevailing laws and customs, in so far as these discriminated directly against women. However, in addition to its specific provisions — which established women’s property rights, made women and men equal with regard to the guardianship of children, etc. — the law asserted the equality of women (in s. 1) ‘for every legal act’. In this way, statute recognized the binding legal nature of absolute equality of rights for women. Although the ‘formal’ status of the Women’s Equal Rights Law is no different from that of an ‘ordinary law’, it has always been regarded as a law with a ‘special status’. Indeed, Justice (later Vice-President) Silberg attributed its special status to its being ‘an ideological and revolutionary law that changes the social order; its name and its first “programmatic” section indicate that — apart from the reservation in s. 5 — it seeks to eliminate utterly anything which, under the prevailing law, involves any legal discrimination whatsoever against women…’ (HCJ 202/57 Sidis v. President and Members of Great Rabbinical Court [2], at p. 1537). Recently, Vice-President Justice Barak called the law a ‘majestic’ statute (HCJ 1000/92 Bavli v. Great Rabbinical Court [3], at p. 240). In practice, the law has been interpreted, at least as a rule, as protecting the right of women not merely to equality ‘for every legal act’ in the narrow meaning of the statute, but to equality ‘in every legal respect’ (in the words of Justice Witkon in CA 337/61 Lubinsky v. Assessing Officer, Tel-Aviv [4], at p. 406), i.e., a right to full and complete equality under the law in every respect (for comments on this point see the article of Professor F. Raday, ‘On Equality’, 24 Mishpatim, 1994-1995, 241, at pp. 250-254). Based on this approach, inter alia, the right of women to have an equal part in several spheres of public and social activities which were previously deemed the exclusive province of men, was implemented and enforced de facto (see particularly: HCJ 153/87 Shakdiel v. Minister of Religious Affairs [5]; HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [6]).

Unfortunately the recognition, in principle, that women have equal rights, did not help that much in affording women equal status and rights in the fields of employment, work and salary. In order to prevent unfairness and discrimination against women, and to enforce equal standards for both sexes in these fields, the legislator resorted to a series of specific statutes (see, mainly, s. 42(a) of the Employment Service Law, 5719-1959; the Equal Remuneration for Female and Male Employees Law, 5724-1964; the Equal Retirement Age for Female and Male Employees Law, 5747-1987; the Equal Employment Opportunities Law, 5748-1988). But even in these fields the court was at times required to make a decision, not in accordance with provisions in a specific statute, but based on the principle of equality. The most striking example is the disqualification of a provision in an employment agreement, which was made before the Retirement Age Law came into effect, that discriminated between Female and Male Employees with regard to retirement age (HCJ 104/87 Nevo v. National Labour Court [7]).

23. The negligible representation of women on boards of directors of Government corporations is one expression of the discrimination against women in Israeli society. Before we turn to consider the purpose of s. 18A of the Government Corporations Law, which was intended to correct this injustice, we ought to note that discrimination against women in modern society is not an unusual phenomenon even in other free countries that are considered civilized in every respect. We ought to see clearly that discrimination against women in the fields of employment and economic activity has a destructive effect on the equality of the social status of women in its widest sense.

It is merely that attitudes and assumptions from the past continue to exert their influence almost everywhere. Note that we are not dealing at all with discrimination based on a stated ideology but with social habits that have become entrenched and are fed by the existence of a kind of unconscious consensus — which prevails of course even among women themselves — that makes discrimination into a continuing social phenomenon. An indication of this attitude can be found in a report submitted in 1984 by a commission chaired by Rosalie S. Abella (who has since been appointed judge in the Court of Appeals for Ontario), which investigated instances of inequality in the employment of women in Canada. The report presented by the Abella Commission (Report on Equality in Employment, Ottawa, Ministry of Supply and Services of Canada, 1984) contains a discussion of factors that create systematic discrimination against women. Below is a brief excerpt from the report, at pp. 9-10, on this matter:

‘In other words, systematic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job”.’

Searching for the causes of discrimination against women in any sector, when its existence as social reality in that sector is proved by statistical evidence, is of secondary importance; for in general it is possible to assume that discrimination against women in any sphere — particularly when their promotion does not depend merely on the qualifications of candidates but also on decisions made at organizational power centres — is a result of a deep-rooted consensus which many upright people act upon without being aware of the impropriety in their behaviour. But the absence of discriminatory intent is irrelevant; for the problem is the phenomenon of discrimination against women, as a proven fact, and discrimination is wrong even when there is no intention to discriminate (see: the remarks of Justice Bach in Nevo v. National Labour Court [7] at p. 759; the remarks of the Vice President Barak in Bavli v. Great Rabbinical Court [3] at pp. 241-242).

It is also important to understand, in the spirit of what has already been suggested, that discrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks. Remarks to this effect were recently written in the United States:

‘Practices that prevent women from participating equally in the work place are not justifiable, even if done by employers who are unaware of the discriminatory effects. Maintenance of the status quo is itself discriminatory and has more than a merely economic impact on women’s lives. Inequality in the workplace translates into more general restrictions on women’s abilities to direct and control their lives; political and social influence follow from the independence that can come only with economic freedom’ (Note, ‘The Civil Rights Act of 1991 and Less Discriminatory Alternatives in Disparate Impact Litigation’, 106 Harv. L. Rev., 1992-93, 1621, 1622).

See and cf. also remarks made, to exactly the same effect, in C.N. v. Canada (Human Rights Commission) [25], at pp. 1143-1144.

Section 18A construed according to its purpose

24. Section 18A was intended to correct the injustice in the lack of proper representation of women on the boards of directors of Government corporations. In order to realize this objective effectively, the legislator employed, for the first time, the principle of affirmative action.

It should be mentioned that the principle of affirmative action, which is set out in s. 18A, is not a complete innovation in our legal system, and that on several occasions in the past the court has considered it as a possible means for achieving equality in special cases. Thus, for instance, in HCJ 246/81 Derech Eretz Association v. Broadcasting Authorities [8], Justice Shamgar pointed out that the premise ‘whereby equality means that equals are to be treated equally and non-equals unequally still makes it necessary to determine the characteristics and elements by which equality is measured and to evaluate their extent and degree in each specific case’ (ibid., at p. 19 {38}). He went on to state:

‘A question that derives from this is, for example, whether instantaneous equality is indeed just in its immediate result, or whether there are circumstances in which equality can only be achieved by adopting operative methods that treat people unequally, such as when seeking to apply reverse discrimination…’

In the same judgment, Justice Barak emphasized that ‘it is not at all a paradox that in order to achieve equality one must act differentially’ (ibid., at p. 11 {31}), and after quoting from Justice Blackmun’s opinion in University of California Regents v. Bakke [19], he added graphically (ibid. [8], at p. 12):

‘Indeed, affording a rich man and a pauper the equal opportunity to sleep under a bridge does not create equality between the two in respect of their chances of a good night’s sleep.’

Another example can be found in the remarks of Justice Netanyahu in HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [9], at p. 21:

‘Moreover, equal treatment does not always lead to a just result, and sometimes one must act unequally in order to achieve justice, depending on the objective that we wish to achieve. When the starting position of one person is lower than that of another, it is necessary to give him more in order to make the two equal… the justice of the result is what counts and not the sanctity of the principle of equality, which merely serves the purpose of achieving justice.’

In this spirit Justice Or held, in HCJ 528/88 Avitan v. Israel Lands Administration [10], that leasing land cheaply for the housing requirements of Bedouins, which the State has an obvious interest in achieving, does not contravene the principle of equality, and therefore it does not entitle someone who is not a Bedouin (like the petitioner) to claim that he too should be leased land for housing on the same terms.

But it can be shown that examples in case-law of the principle of affirmative action are few and of limited application. Professor Raday was therefore correct in pointing out (in her article, supra, at p. 259) that ‘the concept of affirmative action is almost unknown in Israel’. Its incorporation as a statutory norm, in s. 18A of the Government Corporations Law, can indeed be regarded as a significant innovation in the normative outlook. In my opinion, it should be accepted and recognized as a criterion of equality, which is one of the necessary implications and one of the main guarantees of the principle of equality itself (similar to the approach adopted in Canada), rather than as a tolerated exception to the principle of equality (like the limited approach that has taken root in the United States). Time will tell what will be the scope of operation of the principle of affirmative action in Israeli society de facto. But by including the principle of affirmative action within the framework of the said s. 18A, the legislator rightly expressed a clear intention to oblige ministers (and the Government, where relevant) to initiate deliberate and intentional action whose clear objective is to correct existing injustices in the real equality of women in the economic sector that de facto is within the Government’s control. Ostensibly this is a defined and limited specific need, which appears indispensable in view of the figures presented to the Knesset with regard to the negligible representation of women on boards of directors of Government corporations. But these figures were evidence of a social phenomenon that is clearly more widespread; in other words, general acknowledgement of the right of women to complete and absolute social equality does not truly exist in real life. They clearly showed that in our society, which recognizes equality and supports it as a principle of justice and fairness, talk about equality is one thing and its application is quite another. Indeed, personally I refuse to believe that the figures presented to the Knesset indicate a phenomenon that is unique to the composition of boards of directors of Government corporations. It is far more logical to assume that the figures presented, about the significant and obvious discrimination against women in the composition of these boards of directors, are merely a reflection of a much wider social phenomenon. Therefore it is quite possible that the innovation of s. 18A may and should be interpreted against a background of the objective context of a broad social need, namely, the need to strengthen the share of women in employment frameworks in general, and management levels in particular, in all sectors of the economy. This approach would appear to be required by the recognition that the enactment of the Basic Law: Human Dignity and Liberty raised the principle of equality to ‘a constitutional, super-legislative normative status’ (in the words of Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [11], at p. 362). Therefore there are grounds for an assessment that from now on the right of equality will be construed — according to the criteria of the Basic Law: Human Dignity and Liberty — as protecting the individual not merely from the arbitrariness of authorities, but also from the lack of good faith of others within the framework of the relationship in the field of private law (see the remarks of Justice Barak in CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [12], at pp. 530 et seq.; in his article ‘Human Rights Protected in Private Law’, in The Klinghoffer Book on Public Law, The Harry and Michael Sacher Institute for the Research of Legislation and Comparative Law, edited by I. Zamir, 1993, 163; and in his book, supra, at pp. 647 et seq.. See also Professor F. Raday’s article, ‘The “Privatization of Human Rights” and the Abuse of Power’, 23 Mishpatim, 1994, 21).

25. The lesson that must be derived from this is: since discrimination against women in modern society is mainly a phenomenon rooted in subconscious beliefs, the moral strength of a society that aspires to equality can be measured by the extent of the positive measures and efforts that it is prepared to adopt and invest in breaking down the status quo and creating a new and egalitarian reality. In this context, affirmative action has great, and maybe decisive, importance; the intentional and deliberate de facto advancement of the group that is a victim of discrimination towards the positions of which it was deprived in the past not only corrects the practical injustices of inequality, but also creates a new reality, which will eventually eliminate from the world even the hidden roots of discrimination and the consequences that accompany it. In this way an act of affirmative action, designed mainly to correct a specific injustice, is likely to serve a general purpose of realizing the principle of equality. A simple example given in the article ‘Human Rights — Statutory Interpretation — Affirmative Action’, by D. Greschner and K. Norman, 63 Can. B. Rev., 1985, 805, 812, will emphasize this:

‘When a program is said to be aimed at remedying past acts of discrimination, such as by bringing women into blue-collar occupations, it necessarily is preventing future acts of discrimination because the presence of women will help break down generally the notion that such work is man’s work and more specifically, will help change the practices within that workplace which resulted in the past discrimination against women. From the other perspective, when a program is said to be aimed at preventing future acts of discrimination (again by bringing women into blue-collar occupations), it necessarily is also remedying past acts of discrimination because women as a group suffered from the discrimination and are now benefiting from the program.’

The test of ‘proper expression’ and the ‘circumstances of the case’ reservation

26. In view of the aforesaid, let us return to the questions that are the subject of dispute between the parties and that we defined at the end of paragraph 11 supra. The first question requiring clarification is: what is the nature of the obligation imposed on the competent minister (or, where relevant, on the Government) under s. 18A(b) of the Government Corporations Law? The answer to this question derives from the construction of two key concepts in the text of the section: one is ‘proper expression of representation’, which determines the criterion for affirmative action with which the Minister is compelled to comply; the other is ‘to the extent that circumstances allow’, which establishes a qualification to the minister’s duty to comply with this criterion de facto with respect to every appointment.

27. Since counsel for respondents 1-6 concedes that neither of the bodies in question give ‘proper expression’ to the representation of women, I see no need to propose a comprehensive answer to the substance of this concept. Nonetheless, and in view of the affidavit in reply submitted to us (by the assistant to the Minister of Finance) about the procedure prescribed by the Minister for implementing s. 18A (the precise wording of the deponent were set out in paragraph 9 supra), I would like to make the following comments:

I accept that the term ‘proper representation’ — with regard to the representation of both sexes in the composition of a board of directors — must be construed in accordance with the special circumstances of the case. This means that we are not speaking of fixing equal quotas, or any quotas at all, for the representation of either men or women; but we are speaking of giving proportional representation to each of the sexes, and the proper degree thereof should be determined in accordance with the character, the purposes and the special needs of the Government or statutory corporation under discussion, and according to the distribution of the candidates of both sexes found to be suitable for the specific office that is sought. It is possible that the conclusion that derives from this premise is that in the absence of proven circumstances that justify giving greater weight to members of one sex, ‘proper expression’ should be interpreted to require equal representation for men and women. However, in general and specifically, we must take care not to instil an approach that holds that giving any representation to women may be deemed giving women proper representation. The procedure established by the Minister of Finance, according to the affidavit in reply submitted on his behalf, has precisely this deficiency; for it appears from what is stated in the affidavit that the Minister directed himself to consider the appointment of a woman to the board of directors of a Government corporation only when it transpired that no woman held office on the current board of directors, and the appointment under discussion was one of the last three vacancies in the total number of directors. It should therefore be emphasized that this procedure is inconsistent with the approach underlying the provision of s. 18A, which requires proper expression — and not any expression — of the representation of women.

28. We shall now consider the reservation ‘to the extent that circumstances allow’.

Section 18A(b) imposes a duty on ministers to appoint directors of the sex that is not properly represented, until proper expression of the representation of both sexes is achieved in the composition of the board of directors. This obligation is not absolute but relative, since its application for ministers is qualified by the words in the section: ‘to the extent that circumstances allow’. By providing this qualification, the legislator wished to balance between two potentially conflicting interests: the obligation of affirmative action and the existence of constraints arising from the prevailing practicalities. But what is the precise nature of the proper balance? Obviously if for a particular office there is not one female candidate who has the necessary qualifications, it will be easy to determine that the terms of the reservation are satisfied, i.e., the appointment of a woman is impossible in the circumstances of the case. But what about a case where both the male and the female candidates for a position have the necessary qualifications, but the qualifications of each of the female candidates do not reach the same standard of the qualifications of one of the male candidates? Even in such a case is it not possible to determine that the male candidate who, in comparison with the other male and female candidates is the best, should be preferred? It should be noted that counsel for the petitioner suggested that this question should be answered in the affirmative. Affirmative action for women — she claimed — merely means that when there is absolute equality in all other respects, the appointment of a woman is preferable to the appointment of a man. But I would prefer to adopt a more flexible test, that makes the decision conditional upon the special circumstances of each case, after considering the relevance in the said context of the relative advantage of the male candidate, against a background of the recognition of the centrality of the principle of affirmative action. Thus, for instance, if the relative advantage of the male candidate over a female competitor derives from his particularly rich practical experience as a director on various boards, I would tend to regard taking the candidate’s experience into account as a valid consideration justifying his being given preference only if it were proven that, in the circumstances of the case, the extensive experience of the candidate is an especially relevant consideration. An example of this would be where the existing composition of the board of directors only contains a few experienced directors, and for this reason it is especially important to bring in a director with extensive experience. If this is not the case, a female candidate ought prima facie to be chosen, even though she is less experienced. The reason for this derives from the principle of affirmative action, for in a social context where women have been the victims of discrimination, it is only natural that more men than women with be found with experience in management. Preferring male candidates over female candidates because they have greater and more varied practical experience, is liable to perpetuate the same models of discrimination against women that section 18A was intended to eliminate. It is not superfluous to point out that the very same considerations may test the definition of qualifications, according to which a minister will decide that, in the circumstances of the case, a woman cannot be appointed. In other words, if it transpires that the qualifications, according to which the Minister decided to prefer the appointment of a man, are irrelevant for carrying out the particular job, it may and should be determined that the reservation does not apply and that the duty to prefer the appointment of a woman has been breached.

29. In principle it should be emphasized that in the internal balance between the duty of ministers to prefer the appointment of women and the extent of the taking into account the limits of the framework within which ministers are directed to carry out this duty, primary importance should be attached to the duty to prefer women. We should remember that the duty of preference in the appointment considerations is general, while the reservation (that releases the appointing minister from the said duty) is likely to apply only in exceptional cases, in which carrying out the duty is not possible.

30. An additional conclusion that is required here is that the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question. When he must appoint a director from among the employees of his ministry, the examination must encompass all the female employees in his ministry who prima facie have the basic qualifications required. If he must choose the candidate from among the general public, his examination must encompass those sectors of the population where a suitable female candidate is likely to be found. This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a ‘formal’ search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. For this purpose, it is not impossible that the Minister will seek assistance not only from his assistants and advisors, but also from external public bodies (such as business guilds, professional associations and societies, trades unions, the universities, women’s organizations, etc.) and of professional authorities (such as the Adviser on the Status of Women in the Prime Minister’s Office), who have in their possession the relevant information which he needs and who may recommend candidates with the qualifications required for the various appointment.

The appointments under consideration

31. In the appointments under consideration, did the Ministers (or, where relevant, the Government) discharge their duty under s. 18A(b)? I regret that I must answer this question in the negative.

It should be pointed out that in the case of the appointment of the directors at the ‘Refineries’ this question was not really in dispute. These appointments were made by a joint decision of the Minister of Finance and the Minister of Energy and Infrastructure. From the affidavits in reply submitted on behalf of the Ministers, it transpires that the proposal to appoint Mr Kashuv and Mr Wagner were made by the Minister of Energy and Infrastructure, and the Minister of Finance supported that proposal. Thus it is stated in the affidavits that prior to the decision about the appointment of the said directors, neither Minister making the appointment gave any thought to complying with his duty to prefer the appointment of women. This was true even with regard to the Minister of Finance; for even if we assume that in this matter the Minister acted in accordance with the procedure that he outlined for his assistant, in view of the defect in this procedure, which I have already discussed, even if he followed these precisely he would not have discharged his duty. This is also true of the Minister of Energy and Infrastructure, since the supplementary affidavit submitted on his behalf (by the Director-General of the Ministry) includes an express admission that prior to the said appointment the Minister did not examine a list of suitable female, for — so it was alleged — such a list (now in his possession) did not yet exist. A similar admission is implied also in the first affidavit submitted on behalf of the Minister of Energy and Infrastructure by the head of the Planning and Economy Administration in his Ministry. In this affidavit, it will be remembered, the considerations that led the Minister to propose the candidacy of Mr Kashuv and Mr Wagner are listed. Although this affidavit does indeed say that the Minister is aware of the need to propose a female candidate for membership on the board of directors of the ‘Refineries’, this was said with regard to the future; in other words, before filling the two remaining vacant positions on that board of directors, the Minister was indeed considering the appointment of a woman (note: the appointment of a woman and not the appointment of women). The simple and clear conclusion to be drawn from the affidavits in reply is that the Minister of Finance and the Minister of Energy and Infrastructure decided on the appointment of two new male directors to the board of directors of a Government corporation whose members were all men, without thinking about discharging the duty imposed on them, under s. 18A(b), to prefer the appointment of women.

32. The conclusion about the non-compliance with the provision of s. 18A(b) is inescapable also with regard to the appointment of Mr Haiek as a member of the board of the Ports and Railways Authority.

The persons involved in this appointment were the Minister of Industry and Trade, who chose Mr Haiek as his candidate for this position, the Minister of Transport, who submitted the proposed appointment to the Government, and the Government which decided to make the appointment. The facts before us do not show that the Minister of Transport or the Government thought about their duty to prefer the appointment of a woman. The Minister of Industry and Trade — as can be seen from his affidavit in reply — thought that since he was only able to recommend the appointment of one candidate, who was supposed to be chosen from among the employees of his Ministry, it was sufficient for him to choose the person who, in his opinion, was ‘the best and most suitable candidate for the job from among the employees of the Ministry’. According to this criterion, the Minister thought it was natural for him to choose Mr Haiek. So although the Minister did not disagree with the petitioner’s argument that the twenty-five women on the senior staff of his Ministry also had good qualifications, his affidavit does not say that he considered the candidacy of any of them. On the contrary, his affidavit shows that in his opinion he did not have any duty to consider any other female candidates. I cannot sanction such an approach. I am albeit prepared to accept as a fact that special and extensive knowledge of Mr Haiek with regard to the activity of the Ports and Railways Authority was an important and objective factor in his selection. But in my opinion the Minister was not entitled to decide the outcome of the selection before he examined whether among the senior employees of his Ministry there was a female candidate who was well qualified for carrying out the job under discussion. It is insufficient that the Minister assumed, or even knew, that no female worker in his Ministry could compete with Mr Haiek, in so far as the scope and depth of his knowledge of the Authority’s activities were concerned. Had he examined the matter, he might have found that the excellent professional qualifications of a female candidate (even if her knowledge of the Authority’s activities was not equal to that of Mr Haiek) made her, on the whole, a candidate whose chances of filling the position successfully were not smaller.

As stated, the Minister of Industry and Trade had a duty to make an examination, and without doing this the Minister did not have the authority to complete the proceeding of selecting his candidate. With regard to the representative of his Ministry on the board of the Authority, his decision was of decisive importance. Nonetheless, it must be emphasized that the duty to ascertain, at the proper time, whether such an examination had indeed been made was the duty also of the Minister of Transport, when he was required to submit his proposal for the appointment of Mr Haiek for the decision of the Government, and it was also the duty of the Government, before it decided to support the proposal and approve the appointment.

The defect and the remedy

33. Under s. 18A(b), the Ministers were obliged to prefer the appointment of a woman for each of the jobs. The evidence shows that not even with regard to one of the jobs was the possibility of appointing a woman considered at all. Since we are concerned with a disregard for a consideration that the law gives express preference, the inescapable conclusion is that the Ministers’ decisions are clearly and manifestly unlawful.

What should become of the appointments made on the basis of these decisions? The petitioner’s position is that the appointments are unlawful and therefore should be set aside. Counsel for respondents 1-6, who related to this in her alternative argument, did not dispute that the defect in the decisions does indeed give rise to a basis for setting them aside. Nonetheless, she argued that in the circumstances of the case the court should content itself merely with granting declarative relief, whose purpose should be to apprise the Government and the Ministers of their mistake and to direct them with regard to the methods of implementing the provision of s. 18A(b) in the future. The three reasons that she gave in support of this position (already mentioned in para. 12, supra) were, it will be remembered, the following: first, that we are speaking of a new and innovative provision of law, and the failure to implement it in the present cases should be attributed to the error of the Ministers and their not being sufficiently aware of the nature and scope of the duty imposed on them; secondly, that the candidates who were appointed are qualified and suitable, and therefore there is no harm to the public in allowing their appointments to stand; and third, that setting the appointments aside retrospectively would harm each of the candidates appointed, and would violate the principle that ‘one should not remedy an injustice with an injustice’.

34. In my opinion, the law in this dispute supports the petitioner. We are dealing with administrative decisions, made at the most senior level (by the competent Ministers, and in one of the cases by the whole Government), with complete disregard for the existence of an express statutory provision. It is true that we are speaking of a new statutory provision which introduces an innovative norm, but it is impossible not to comprehend the importance of the purpose that the said law is intended to achieve: de facto equality for women in the economic sector which is wholly under the control of the Government. It follows that even the innovation in the criterion of affirmative action does not lessen the seriousness of the failure to act in accordance with the law. Perhaps the opposite is the case, for the adoption of precisely this special measure should have alerted the Ministers to the degree of importance and the degree of urgency with which the legislator viewed the need to correct the injustices of discrimination against women. Hence, there is no significance to the argument that the defective decisions were the result of an oversight. On the contrary, if further proof is required of the essentiality of enforcing this law, the alleged lack of awareness of the Ministers to act in accordance with its binding provision provides the necessary proof. Furthermore, the approach underlying the procedure laid down by the Minister of Finance following the passage of the Appointments Law, and the affidavits in reply that were submitted in these petitions merely strengthen the impression that the nature of the obligation imposed on the Ministers under section 18A(b) has not yet been properly understood. We have already discussed the danger in upholding the status quo, and there are genuine grounds for apprehension that any concession with regard to complying with the binding provision of the law will encourage this negative trend. It follows that the court has a duty to take a firm stand and enforce the realization of the new norm.

It follows automatically that the second reasons of counsel for respondents 1-6, that allowing the appointments to stand will not harm the public, must also be rejected. There is no need to bring further evidence to show that non-compliance with the law harms the public interest; the fact that the candidates who were appointed are, in themselves, worthy and qualified persons does not detract from the harm to the public interest from holding selection and appointment proceedings tainted by illegality. Moreover, the statute’s stated objective is that, to the extent that circumstances allow, the Ministers are obliged to prefer the appointment of a woman. The appointments that were made did not realize this purpose; even in retrospect, the respondents failed to produce any evidence that even if the appointment proceedings had been held in accordance with the binding provision of the law, the results (or some of them) would not have changed, because of the impossibility of appointing a woman to one of the positions.

35. We are left with the argument that setting aside the appointments will harm the candidates who were appointed and who have already assumed their new positions.

The significance of the rule that ‘one should not remedy an injustice with an injustice’ (in the words of Justice Berinson in HCJ 292/61 Rehovot Packing House Ltd v. Minister of Agriculture [13], at p. 31 {107}), on which the respondents rest their case, is apparently that even if there was a defect in an administrative act, the act will not be set aside if this harms innocent third parties. It appears that, in the past, this court tended to regard this rule as decisive, and the question of the justice of setting aside an administrative act was considered, in several cases, in this perspective (see the decision of Justice Malz in HCJ 199/86 Amir Publishing Co. Ltd v. Minister of Tourism [14], and the references cited at p. 531). But this approach, which attributes decisive weight to this rule, is no longer accepted. The law currently holds that the possibility of harming innocent parties should be taken into account (according to its proper weight in the specific case) within the framework of a balance of all the relevant considerations. The standard for the balance derives from the weight of each of the conflicting considerations in the circumstances of the specific case. The accepted tendency — particularly when dealing with an administrative act that suffers from a serious defect — is to set aside the administrative act, while trying to restrict, in so far as possible, the damage to third parties who relied on it in good faith. President Shamgar considered the balancing considerations in such a case in HCJ 5023/91 Poraz v. Minister of Building [15], where it was decided to set aside a flawed administrative decision, while leaving some of its results untouched. The following are his remarks, at pp. 804-805:

‘As has been explained, the importance of the trend not to ratify improper acts is that it prevents any benefit being derived from an improper act and prevents the creation of a feeling among the public that the power to circumvent or evade the proper procedures prevails, de facto, over the duty to uphold them.

In a case like this, we must balance between the objective of maintaining proper executive administrative and preventing abuse of authority and the desire not to harm an innocent party, who completed his act before the proceedings began.

The second objective of recognizing an act carried out in good faith prevents the undesirable result of remedying one injustice with another injustice towards someone who did no wrong.’

Another example is the case of HCJ 2994/90 Poraz v. Government of Israel [16], where an order was made, setting aside the Emergency (Emergency Plans for Building Residential Units) Regulations, 5750-1990, but important considerations were found to suspend the effect of the order so that the parties who acted in good faith on the basis of the regulations could prepare themselves, and also so that the Knesset should have time to consider new legislation that would validate the acts already carried out (see the remarks of Justice S. Levin, ibid., at p. 323).

In this context we should also remember the case of HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [17]: when the decision of the Government to reclassify development towns and development areas was set aside because it was contrary to the provisions of the Development Towns and Areas Law, 5748-1988, the justices were divided in their opinions as to whether there were reasons justifying a suspension of the effect of the order that set the decision aside. I thought, in a minority opinion, that suspending the effect of the order was ‘not an option available to the court, when the order dealt with putting an end to an arrangement which had been held to be tainted by clear and manifest illegality’ (ibid., at p. 845), and in any case, the circumstances of that case did not warrant a suspension of the effect of the order. But my esteemed colleagues (Justice Goldberg and Justice Dorner) held that the immediate setting aside of the Government’s decision might harm towns that had relied on it. We therefore held, by a majority, to suspend the effect of the order for a period of four months. This is not the place to discuss the details of that disagreement (see, in this respect, what is stated in Professor Barak’s book, supra, at pp. 746-748). But I will point out that even Justice Dorner, who joined the majority on this matter, argued forcefully, at p. 848, that ‘the first and principal interest that the court will take into account in exercising its discretion with regard to determining the results of the violation and the resulting remedies, if the interest of upholding the rule of law; the more substantial and serious the breach of the law, the more the weight of this interest increases.’ Moreover, ‘only in exceptional circumstances will the court not order the immediate setting aside of an administrative act tainted by a material defect.’

With respect, it seems to me that even according to this approach the appointments in the petitions before us cannot stand; what is more, the respondents’ request is not to suspend the effect of the annulment for a limited period (which, under the circumstances, appears reasonable), but to leave the defective appointments as they are. I am not ignorant of the fact that setting aside the appointments will harm each of the directors, and this harm is certainly regrettable. But the main interest under discussion is the practical implementation of the provision of s. 18A of the Government Corporations Law’s requirements, the special importance of which has been discussed at length. This important interest tips the scales.

36. The inescapable result, in my opinion, is therefore that in both petitions an order absolute should be made, setting aside the appointments that were made and ordering the relevant Ministers to begin the appointment proceedings anew, in the course of which the binding provision of s. 18A(b) of the Government Corporations Law will be upheld. I will reemphasize that not even the slightest fault was found with any of the directors whose appointments are being set aside. Therefore our judgment will not bar any of them from being appointed as a director in a Government corporation. It is also possible that in the new appointment proceedings — when the provisions of the law are upheld — one of them may be reappointed to the same position to which he was appointed in the previous proceeding. In order to prevent any disturbance to the proper and uninterrupted activity of the board of directors of the ‘Refineries’ and the board of the Ports and Railways Authority, I think it appropriate and correct, in the circumstances, to rule that the order absolute made in the petitions shall come into effect on 31 December 1994.

In my opinion, we should find the State liable for the costs of the petitioners, in both petitions, for a total amount of 10,000 NIS.

Justice I. Zamir:

I agree. Nonetheless, I see no need, in reaching the result reached by my colleague, Justice Mazza, to rely on the Basic Law: Human Dignity and Liberty.

The principle of equality has deep roots in Israeli law. It has always been accepted as one of the basic values of the State. The Declaration of the Establishment of the State clearly states this. And the courts relied on this Declaration and on other sources in order to determine that the principle of equality is a guiding rule in the construction of laws. This is true in general and this is true of the equality of the sexes, which also is enshrined, inter alia, in the Declaration of the Establishment of the State. Here, for example, are remarks made, on the subject of sexual equality, by Justice Barak in Poraz v. Mayor of Tel-Aviv-Jaffa [6], at p. 331:

‘Among the fundamental values of our legal system, the value of equality is accepted and recognized.’

And at p. 333:

‘… we must presume that by enacting the Religious Services Law and the Regulations, the parliamentary and subordinate legislators wanted to uphold the principle of equality… We must interpret this authority in a way that the power of subordinate legislation may not be exercised in a way that undermines the principle of equality.’

These are matters that are well-known, and Justice Mazza has elucidated them very well. It follows that we merely have to apply them to the case before us, for the purpose of the interpretation of s. 18A of the Government Corporations Law.

Indeed, the principle of equality, as a rule of construction, receives powerful expression in the Basic Law: Human Dignity and Liberty. Section 1 of this Basic Law states:

‘Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free, and they shall be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel.’

This section states, inter alia, that laws, in so far as they relate to basic human rights, shall be construed in the spirit of the principles found in the Declaration of the Establishment of the State of Israel, including the principle of equality. But this is merely an impressive declaration which in fact says nothing new, for we have long since acted in this way.

My colleague, Justice Mazza, says more than this. He states, albeit not decisively, that the principle of equality is enshrined in the Basic Law: Human Dignity and Liberty ‘as part of the value of human dignity’, which is one of the rights enshrined in this Basic Law, and therefore the Basic Law has had the effect of elevating the principle of equality to a ‘constitutional, super-legislative normative status’ (see paras. 22 and 24 of his opinion). This is a far-reaching statement. What does it mean that the Basic Law: Human Dignity and Liberty elevated the principle of equality to a super-legislative status? As stated, this has no real practical effect in so far as the construction of the law or the implementation of the law are concerned, for this was the law even prior to and without the Basic Law. It follows that this has only one practical significance: that from now on, the court can use the principle of equality for constitutional review of laws. In other words, the court can use it as a basis for setting aside a new law that is inconsistent with the principle of equality. It is questionable whether this is really the intention of the law.

In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that see many aspects in the Basic Law. This is particularly so with regard to the right to dignity. The same is true of legal literature. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, seemingly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: ‘Study it from every aspect, for everything is in it’.

I would like to warn myself, in this context, against making obiter dicta that find their way in-between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a necessary part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of ‘do not raise or disturb it until it is required’.

In this case, I think that there is no need to say that the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty, as part of the right of dignity, and that it therefore has super-legislative status. Time will tell whether this is the case. For the time being, it is sufficient that s. 18A of the Government Corporations Law provides the right of equality, in the sense of affirmative action, and the court merely construes and applies this section in the way long since accepted by it.

On this basis, I agree with the opinion of my colleague, Justice Mazza.

Justice Y. Kedmi

1. Introduction

Regrettably I cannot agree with the conclusion reached by my learned colleague, Justice Mazza, in his illuminating judgment, even though the principles set out there, per se, are acceptable to me.

I have two reservations with regard to my colleague’s decision, which have ramifications on the outcome that he reached. The first refers to the manner of implementing the duty incumbent upon Ministers who appoint directors under the provisions of s. 18A of the Government Corporations Law (hereafter — the law); the second refers to the ramifications of non-compliance with the said duty, in the special circumstances of the case that was argued before us.

Below I shall discuss each of the two reservations separately.

2.    Section 18A of the law — the duty incumbent upon ministers

a.     General

(1) The apparently ‘operative’ provision in sub-section (b) of s. 18A of the law embodies the essence and meaning of the obligation prescribed in sub-section (a) of that section; for the present case, the reservation ‘to the extent that circumstances allow’ (hereafter —the reservation) is important — and decisive.

(2) Sub-section (b) does not speak of a ‘transition period’ at the end of which it will ‘expire’. In my opinion, sub-section (b) presents a ‘permanent provision’, which remains valid at all times and with respect to every board of directors on which the duty prescribed in sub-section (a) has not been fulfilled.

b.    ‘Proper Expression’

(1) I accept in this respect the position of my colleague, that — as stated in para. 27 of his opinion — this expression has a flexible meaning, adapting itself to ‘the special circumstances of the case’. In other words, ‘we are not speaking of fixing equal quotas, or any quotas at all… but we are speaking of giving proportional representation to each of the sexes, and the proper degree thereof should be determined in accordance with the character, the purposes and the special needs of the corporation… and according to the distribution of the candidates…’ etc..

(2) In this situation, the aforesaid sub-section (a) establishes a ‘relative duty’ to guarantee ‘proper expression’, subject to the special circumstances of each corporation; and the determination whether there is ‘proper expression’ as stated, on this or that board of directors, is within the discretion of the appointing minister.

(3) In my view, the minister must act in the context under discussion here in two stages: in the first stage, he must examine whether, on the board of directors under discussion, there is no ‘proper expression’ of the representation of members of both sexes as stated in the sub-section; and only where his answer is negative, he must examine whether ‘in the circumstances of the case’ — subject to the reservation stated in sub-section (b) — he is able to appoint a suitable director of the sex that is not ‘properly’ represented on the board of directors at that time.

c.     ‘To the extent that circumstances allow’

(1) Everyone agrees that this expression provides a reservation with respect to the duty of appointment set out in sub-section (a). In my opinion, we are talking about a reservation that relates both to the requirements of the job and to the qualifications of the candidates. Therefore, even where the appointing Minister reaches a conclusion that the composition of the board of directors does not reflect ‘proper expression’ of the representation of both sexes, someone of the sex that is not properly represented will not be preferred, if in the circumstances of the case the position requires qualifications which that person does not have, whereas a candidate of the other sex does have them.

(2) In this situation, the crux of the matter lies in locating the candidates. The position that I find to be implied by the arguments of the petitioner is that the party making the appointment must act in every possible way in order to locate candidates of the under-represented sex, in all sectors of the population; whereas in my opinion, it is sufficient, in this context, for him to act reasonably.

For this reason, as a rule, the minister may in my opinion content himself by examining lists of candidates — of both sexes — from among the employees of his ministry, whose sphere of activity is related to that of the corporation concerned (including workers as stated who are employed in bodies connected with the ministry’s activities). He is not obliged to apply to ‘external’ parties and to make every possible effort specifically to locate ‘women employees’, outside the ministry, even if it is possible to appoint to that position someone who is not ‘an employee of the ministry’. The appointing Minister is required to act in this respect with ‘reasonable diligence’ and no more; as long as his activity lies within the bounds of reasonableness, the appointment will not be tainted with illegality because he did not locate this or that woman candidate.

The duty incumbent upon the minister is not to remedy the ‘absence of proper representation’ in every possible way and in the shortest time possible; it is to act reasonably to ensure equality in the selection process between the two sexes, while preferring ‘equal’ candidates of the sex that is not properly represented — all of which to a reasonable degree and while ensuring that following the principle of equality to remedy the situation does not occur at the expense of the degree of suitability of the candidate for the special requirements of the job.

d. Interim summary

(1) Section 18A of the law requires a minister who appoints a director of a Government corporation to consider the following two issues: first, he must examine whether the specific board of directors gives ‘proper expression’ to the representation of members of both sexes (in the relative sense outlined above); second, in a case where there is no such ‘proper expression’, he is bound to prefer the candidate of the sex that is not properly represented ‘to the extent that circumstances allow’ (in the sense outlined above).

(2) In order to comply with his second obligation, the minister must ensure two things: first, that lists of candidates (of both sexes) who are located with ‘reasonable’ action in the circumstances (as distinct from making every effort to guarantee that no ‘possible’ candidate whatsoever is ‘omitted’) are prepared and submitted to him. Second, where there is no obstacle for reasons of personal qualifications and the requirements of the position — and only in such a case — preference shall be given to the candidate of the sex that is not ‘properly’ represented on the board of directors.

(3) As stated, I do not think that adopting the principle of ‘affirmative action’, as it is expressed in sub-section (b), requires that it be implemented in the extreme sense of ‘taking every possible step’ to locate candidates of the ‘discriminated’ sex. For this reason, it should not be said that pointing to any ‘possible’ step that was not taken is sufficient in order to undermine the legality of a selection of someone of the other sex.

With regard to the preference of a person of the ‘discriminated’ sex, it is, in my opinion, correct to examine and review the decision of the appointing minister — just as with regard to the existence of the absence of ‘proper expression’ of the representation of members of the two sexes (as stated in sub-section (a)), and with regard to the location of a candidate from members of the sex that is not properly represented (for the purpose of complying with the duty of preference required by the provision of sub-section (b)) — with the criterion of ‘reasonableness’, as distinct from ‘putting oneself in the minister’s place’ as was implied, as I understood it, by the arguments of the petitioner; and there will be grounds for the intervention of this court only where we are talking of a gross and extreme deviation from that criterion.

(4) Adopting another standard in the context under discussion here — as is implied by the arguments of the petitioner — will lead, naturally, to a far-reaching restriction of the discretion given to the appointing minister with regard to the selection of the ideal and qualified director, whereas, in my opinion, the language of the reservation set out in sub-section (b) dictates the giving of ‘preference’ — also with regard to the duty of ‘affirmative action’ — to the requirements of the position and the qualifications of the candidates.

With all respect to the legitimate aspiration of the petitioner to attain ‘absolute equality’ in the number of directors of the two sexes in Government corporations as soon as possible, we should not forget that the legislator did not prescribe in this respect a mechanical-formal criterion of a quota, nor did he impose on the appointing ministers an ‘absolute’ duty of affirmative action at any price. The central consideration in the appointment of directors remains — as it was and as it must be — an objective consideration of the requirements of the position and the qualifications of the candidate; this consideration — as expressed in the reservation set out in sub-section 18A(b) of the law — must stand, in the final analysis, above all other considerations.

This court examines the reasonableness of the performance of the appointing minister and does not put itself in his place. One should not regard him — as is implied by the petitioner’s arguments — as someone who must ‘be in the forefront’ of the struggle that underlies the petition.

3.    HCJ 453/94 — a director for the Ports and Railways Authority

a.     The reply of the Minister of Industry and Trade in this matter seems to me sufficient to obviate our intervention in the appointment of Mr Haiek on the grounds of non-compliance with the duty prescribed in s. 18A of the law. The Minister here is responsible for appointing only one director to the board of directors. Naturally, therefore, his scope of choice is very limited, and the qualifications of the candidate — as the representative of the Ministry of Industry and Trade — has decisive weight, which restricts the duty of ‘preference’ set out in the aforesaid section 18A.

b.    The questions that need to be addressed in this respect are the following: did the Minister consider the fact that there was not proper representation of women on the board of directors of the Authority? If so, did he comply with the ‘duty of preference’ set out in the aforesaid s. 18A?

c.     In my opinion, the answer to both questions is in the affirmative:

(1) The Minister was aware that women were not represented at all on the board of directors, and that therefore the duty of preference applied here.

(2) In the circumstances, one cannot say that the Minister failed to comply with the duty of ‘preference’ in the appointment because he ‘contented himself’ with examining the candidacy of the senior women employees of his Ministry ‘only’, and did not contact external parties in order to locate candidates who were ‘foreign’ to the Ministry and the Minister.

(3) The special qualifications required of a director in this case were what tipped the scales in favour of the appointment; and this consideration, as stated, is the decisive consideration underlying the reservation prescribed in sub-section (b).

d.    In this situation, I do not think that we should intervene in this matter, since the proceeding followed by the Minister and the consideration which led him to decide the question of the selection of the candidate are not — in the special circumstances of this appointment — beyond the scope of reasonableness.

e.     To remove doubt, I would like to emphasize once again: even if it is possible that an effort to find women candidates outside the framework of the relevant Ministry would have found a candidate comparable to the male candidate who was appointed — I would not, in the circumstances of the case, regard as beyond the scope of reasonableness the fact that the Minister contented himself with women candidates from inside the Ministry; in any event, in this special case, women candidates ‘foreign’ to the Ministry are ab initio less qualified to be the sole director on behalf of the Ministry.

4.    HCJ 454/94 — Two directors for Oil Refineries Ltd

a.     According to the material before us, the Minister of Energy and Infrastructure was aware of the lack of appropriate representation for women on the board of directors under discussion, as was his duty under sub-section (a) of s. 18A of the law. However — and it appears that everyone agrees on this — he did not take the reasonable steps required to prepare a list of women candidates, and therefore, naturally the qualifications of such women candidates was not examined.

In this situation, one cannot rely on the reservation ‘to the extent that circumstances allow’, and the appointment of the two directors is indeed flawed because of the non-compliance with the duty prescribed in s. 18A of the law.

b.    The question which troubled me was whether, in the circumstances of the case, cancellation of the appointment is a necessary result of the said flaw, in view of the following two considerations: first, what weight should be attached in this context to the special qualifications of the two directors, who were appointed by the Minister on the basis of their many years of experience? Second, what weight should be attached to the personal injustice that each of the two directors who were appointed will suffer as a result of the appointment being set aside?

c.     With respect to the weight that should be attached to the qualifications of the directors who were appointed:

(1) Objectively, the candidates fulfil the requirements of the position and the qualifications, and according to the material before us no-one doubts that this was a proper choice, that befits the requirements and expectations of a director in that organization.

(2) The defect in the appointment is not a defect of ‘lack of authority’, but a defect arising from non-compliance with a ‘duty of preference’ that exists in a sphere which is ‘external’ to the objective sphere that determines the appointment authority.

(3) In this situation, it appears to me that we do not have a ‘duty’ to set the appointment aside — in the sense of ‘let justice take its course!’ — and the matter is subject to our discretion, and the considerations of aptitude for the position and the personal injustice have very considerable weight.

d.    With regard to the personal injustice, I do not think much need be said to demonstrate the nature and force of the injury that each of the two respected directors will suffer personally. Nor was this disguised from us in the responses both of them made to the petition.

I think that we should not allow such an injustice, except in a case where it is unavoidable; but in my opinion, this is not the situation in the case before us.

e. (1) The petitioner did not take the trouble of submitting to us a list of women candidates whose qualifications are ‘equal’ — in every respect — to the qualifications of the two directors who were appointed, nor did it argue before us that it is able to locate such candidates. On the contrary, the petitioner does not even deny the possibility that, after the Minister does his duty and orders a list of candidates to be prepared, the two directors who have already been selected may be selected a second time, both because of the requirements of the position and the special qualifications required to fill it, and because of , first, due to the positions’ specific requirements, and also because of the lack of women candidates who are ‘equal’ to the two who were selected.

By the way, I would like to point out in this context that, in my opinion, wherever the Minister acts on the basis of a list of men/women candidates and there are persons who have complaints about it, the persons with complaints have the burden to show that the criteria used by the Minister in making the list are not reasonable; where it is argued that the selection of the candidates was not made by carrying out the duty of preference in a reasonable manner — those making this claim must prove their claim, whereas the Minister merely needs to give his reasons. In the final analysis, here too the Minister is presumed to have acted properly.

(2) We are being asked to set aside the appointments of the two directors merely because of the defect that no examination was made of the (vague) possibility that, had had a list of women candidates been prepared, and had their qualifications been equal to those of the persons selected, women might have been chosen; this defect has absolutely nothing to do with the qualifications of the two appointees and their objective special and exceptional suitability for filling the positions for which they were selected.

(3) In this situation, the decisive considerations, in my opinion, are the absolutely objective suitability of the qualifications of the two persons who were selected on the basis of their past experience and the special requirements of the position, and the consideration of the personal injustice that will be suffered by each of them as a result of setting the appointments aside.

f.     I have not, of course, ignored the argument that if the appointments are not set aside, what is the point in finding that the Minister did not carry out his duty under s. 18A of the law. In my opinion, it is sufficient in this case to make this determination in order to instil the relatively new provision of the law in the minds of all those who are concerned; but the defect in the manner of applying it, in itself, does not justify — in the special circumstances of this case — taking the harsh and radical step of setting aside an appointment when no-one contests its quality, and when the real possibility of the existence of equal women candidates has not been proved.

5. Conclusion

In view of all the aforesaid, in my opinion:

a.     The petition in HCJ 453/94 should be dismissed.

b.    The petition in HCJ 454/94 should be granted in part by pointing out the defect in the selection process and bringing the matter to the Minister’s attention; but the appointments should not be set aside.

c.     There is no justification for finding the State liable for the petitioner’s costs.

Petition granted by majority opinion (Justice E. Mazza and Justice I. Zamir), Justice Y. Kedmi dissenting.

1 November 1994.